Redington & Freed
[2022] FedCFamC1F 91
•25 February 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Redington & Freed [2022] FedCFamC1F 91
File number(s): BRC 1388 of 2018 Judgment of: HOGAN J Date of judgment: 25 February 2022 Catchwords: FAMILY LAW – PARENTING – Unacceptable risk of harm – Whether the children will be at an unacceptable risk of harm if required to engage in therapeutic counselling to rebuild their relationships with the father or spend time with him – Where the children live with the mother and have not spent time with or communicated with the father for four years – Where the mother contends that the father’s actions or recklessness caused the female child to contract a sexually transmitted infection – Where the father denies the allegations and was acquitted of charges of indecent treatment of the child – Where that finding does not axiomatically result in a conclusion that the father does not present an unacceptable risk – Where both children describe their relationship with the father as “horrible” – Where the mother is highly likely to suffer psychological distress if she is required to facilitate the children participating in a therapeutic process designed to reintroduce them to their father. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth)
Cases cited: A v A (1998) FLC 92-800; [1998] FamCA 25
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bant & Clayton (2019) FLC 93-924; [2019] FamCAFC 198
Cox & Pedrana (2013) FLC 93-537; [2013] FamCAFC 48
M v M (1988) 166 CLR 69; [1988] HCA 68
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
N and S and the Separate Representative (1996) FLC
92-655; [1995] FamCA 139Vigano & Desmond (2012) FLC 93-509; [2012] FamCAFC 79
Division: Division 1 First Instance Number of paragraphs: 131 Date of hearing: 26, 27 and 28 July 2021 Place: Brisbane Counsel for the Applicant: Mr Blackah Solicitor for the Applicant: Macgregor O’Reilly Nash Solicitors Counsel for the Respondent: Mr George Solicitor for the Respondent: Robyn McKenzie Solicitor Counsel for the Independent Children's Lawyer: Mr Dodd Solicitor for the Independent Children's Lawyer: Stewart Family Law ORDERS
BRC 1388 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS REDINGTON
Applicant
AND: MR FREED
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOGAN J
DATE OF ORDER:
25 FEBRUARY 2022
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1.All parenting plans and previous parenting orders are discharged.
2.The children, X, born … 2008 and Y, born … 2010 (“the children”) live with the mother.
3.The mother
have sole parental responsibility for the children in respect of all major
long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)).
4.The children have no contact or communication with the father, whether in person or by electronic means such as telephone, text message, email or social media unless such contact is agreed to by the mother in writing.
5.The father is restrained and an injunction is hereby granted restraining the father from having contact with the children unless such contact is agreed to by the mother.
6.The father is restrained and an injunction is hereby granted restraining the father from asking another individual to contact the children.
7.The father is restrained from approaching the children unless agreed by the mother in writing, with this to include but not be limited to:
(a)approaching the children’s place of residence; and
(b)approaching the children’s day care centre and/or school from time to time; and
(c)approaching School C.
AND IT IS FURTHER ORDERED THAT
8.No party is permitted to use the documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.
9.The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
10.All outstanding parenting applications are otherwise dismissed and removed from the list of cases requiring finalisation.
11.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Redington & Freed has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
These proceedings require the determination of those parenting orders which are now in the best interests of 13 year old X (who was born on … 2008) and nearly 12 year old Y (who was born on … 2010).
X and Y have always lived primarily with their mother. It is agreed that they will continue to do so.
Whatever the nature of the children’s relationships with their father before 6 January 2018, neither has spent any time nor had any communication with him since then. When interviewed on 2 March 2021 by Mr D, the Family Consultant who prepared the March 2021 Family Report,[1] X said that he did not want to see his father or read anything sent from him and that he had felt a lot happier without contact with his father, whilst Y said that her relationship with her father was “horrible” and that she did not want to speak with him or spend time with him. When interviewed by Mr D, the father himself described his relationship with X as non-existent.
[1]I note that, whilst Mr D interviewed the mother and children in person and observed interactions between the children and their mother, he interviewed the father using Microsoft Teams and did not undertake any observations of the children with their father.
One of the issues for the Court is whether, as the father advances, it is now in the children’s best interests for them to be required to engage in a process of therapeutic counselling (initially individually and, if the therapist considers it appropriate, then involving their father) to determine if their current non-existent relationships with him can be repaired; or whether, as their mother advances, their best interests will now only be met by orders which provide for them to spend no time and have no communication with their father.
Despite seeking orders to require the children to engage in therapeutic counselling and for the mother to be required to facilitate their participation in the same, the father’s case did not include evidence from any counsellor or therapist; further, he had made no inquiries himself at all to identify a therapist who might be willing to engage with the children and he did not proffer any evidence about the issue of how the practicalities of counselling would be addressed, other than accepting that he would be totally responsible for meeting the costs associated with his participation and that of the mother and the children in the process.
Instead, the matter proceeded on the basis that a therapist identified by the father’s legal representatives should be the person engaged – a proposal with which, given the form of orders sought, the Independent Children’s Lawyer joined.
The absence of evidence from the proposed therapist means, obviously, that neither the Court nor the mother have had the opportunity to determine the following matters (which are provided by way of example only and are not intended to be exhaustive): whether the proposed therapist would, in the circumstances of this case, actually provide counselling services to the children when this is intended to have them resume a relationship with their father; the conditions under which any therapy would occur; the anticipated duration of the same; the degree of persistence the therapist would anticipate seeking to impose if the children were resistant to the idea of resuming a relationship with their father; and how any opposition the children might have to engaging in therapy designed to have them resume a relationship with their father would be addressed by the therapist.
In essence, the proposal by the father and the Independent Children’s Lawyer that the Court would conclude that it is in the children’s best interests to be required to engage in “therapy” is one which, it seems to me, focused more on the theoretical than the practical; it required the Court to proceed on the basis, really, that if engagement in therapy or counselling intended to facilitate the children resuming a relationship with their father was found to be in their best interests, matters such as those outlined above would, and could, be addressed satisfactorily.
A further complication lies in the fact that the father remains employed overseas on a ten week on/six week off roster, such that it seemed to be anticipated that at least some of his involvement with whomever was selected to provide counselling would occur using technology, rather than in-person.
In any event, it is the competing proposals in the manner advanced that require consideration.
Such consideration occurs in circumstances where it is uncontroversial that, from the parental separation in 2012 until January 2018:
(a)the children spent regular time, comprising a number of consecutive nights, with their father whenever his work as a fly-in/fly-out professional (based most recently in Country B) permitted him to be available to do so and also communicated regularly with him electronically when he was overseas; and
(b)whatever the mother’s concerns about the father’s behaviours when the children were in his care, she supported them in spending time with him during this period; and
(c)these parents had been able to negotiate and implement their children’s care arrangements without recourse to court proceedings and without the necessity of a court imposing obligations upon them; and
(d)the children’s parents retained, generally, an amicable relationship from after separation in 2012 until January 2018 and that, on occasions, their amiability resulted in intimacy between them.
What then, caused the complete rupture in the children’s relationships with their father?
It was not the fact that, after the mother and father had had sex on 27 November 2017, in a manner that did not prevent the transmission of sexually transmitted diseases, the father told the mother on 28 November 2017 that he had noticed some discharge from his penis, thought that he might have a sexually transmitted infection and that she should arrange to be tested for the same; it was not the fact that, on either 29 November 2017 or 1 December 2017, the mother learned that she had contracted Medical Condition E (in circumstances where the results of tests undertaken by the father on 30 November 2017 revealed, on 5 December 2017, that he had Medical Condition E and, on 7 December 2017, that he had Medical Condition F); it was not the fact that Y presented to the mother on 22 December 2017 with a complaint about abnormal discharge on her underwear (which caused the mother to take her to the doctor); it was not (at least contemporaneously) that Y was very upset or “hysterical” when at her father’s home on 23 December 2017 and contacted her mother and asked to return to her mother’s home (which request was, with the assistance of a nanny the mother then employed, effected); it was not the fact that Y continued to experience thick yellow vaginal discharge (albeit reduced), together with dysuria[2] which caused the mother to take her back to the doctor on 3 January 2018 (during which consultation the GP queried whether Y had a urinary tract infection, Y underwent an external genital examination which revealed thick yellow discharge and during which a swab was taken and, when asked directly by the doctor, she denied that anyone had seen her genitals before then); it was not the fact that the medical centre contacted the mother on 5 January 2018 to tell her that Y needed to go to the centre immediately so that her prescribed antibiotics could be changed; it was not (contemporaneously at least) that the father left the medical centre rather than accompanying the mother and Y into the consultation on 6 January 2018; it was not even when the mother was first told by the doctor on 6 January 2018 that then seven year old Y had tested positive for Medical Condition E and that, due to Y’s age and the severity of the diagnosis, this had to be reported to the relevant authorities (because, when she messaged the father on 7 January 2018 to tell him this – as he had returned to Country B on 6 January 2018 – her message included the information that Y was adamant that she had not been interfered with and also raised the prospect that they should seek a second opinion and swab). Such communication makes it clear that the mother did not then regard the father as the cause of Y’s infection.
[2] Burning, tingling or stinging of the urethra associated with urination.
I consider it clear that the mother stopped the children spending time or communicating with their father because of the cumulative combination of the following:
(a)that X told her (albeit subsequently) that, in late December 2017, he had woken up in the middle of the night to find his father naked in his bed hugging him from behind – he said this happened when the father did not buy his pull-ups and told him that “it feels better to sleep naked anyway”: she said X told her this made him feel so uncomfortable he got out of bed and sat on the couch until morning and that he had also told her that the father had insisted on washing him in the shower (which made him fell uncomfortable) despite him (X) telling his father that he was old enough to wash himself; and
(b)she learned, on about 6 January 2018, from the general practitioner upon whom Y had attended, that the practice was mandatorily required to report the fact that Y had Medical Condition E to the police and to the child protection authorities; and
(c)on 8 January 2018, she was contacted by an officer from the P Town police investigation unit about the information that Y had tested positive for Medical Condition E; and
(d)on 8 January 2018, the father (who had that day learned that he had also tested positive for Medical Condition G) emailed her to tell her that and said, amongst other things, that: “I know you tested negative but I’m SUPER concerned about [Y] considering what has been happening. If she hasn’t she needs to be tested ASAP”; and
(e)on 9 January 2018, Y was interviewed by an officer from the P Town police investigation unit, who subsequently told the mother that she had revealed “significant information” about the father’s actions; and
(f)she was required to take Y to a local hospital on 10 January 2018 so that she could be medically examined by Dr H (in her role as a “child protection” paediatrician) who likely informed her that Medical Condition E in a pre-pubertal child such as Y was indicative of some kind of sexual contact and that it was extremely unlikely that Medical Condition E can be spread in a non-sexual manner; and
(g)following an application by police for an apprehended violence order to protect Y, a provisional order was made on about 12 January 2018; and
(h)the application made by police for the apprehended violence order included the assertions that:
(i)when interviewed, Y said that: she did not like having to sleep in her father’s bed; she felt unsafe staying with her father since returning from Indonesia in April 2017; despite asking her father to put her into her own bed when she fell asleep in the lounge room, he would put her into his bed and refused to listen to her; he gave her “[Y] cuddles” – which were different to “cuddles” in that “[Y] cuddles” happened during the night and in the father’s bedroom when she was laying in his bed when he was naked and this made her feel uncomfortable and she did not like being in his bed;
(ii)Y was said to have been visibly upset when speaking about her father making her sleep in his bed;
(iii)due to Y testing positive to Medical Condition E “which can only be transmitted by sexual contact”; the father (who had tested positive for Medical Condition E and Medical Condition G) stating that he was concerned for Y and wanted her tested for Medical Condition G as soon as possible; and Y disclosing “[Y] cuddles”, the investigators believed that she had not disclosed everything and were of the view that the father had been sexually assaulting her; and
(i)having provided a urine sample on about 18 January 2018, X tested negative for both Medical Condition F and Medical Condition E;[3] and
(j)that she recalled, after being told of Y’s description of “[Y] cuddles”, that Y had been hysterical on 23 December 2017 when, on her account, the father had told Y in her presence that if she did not come and see him he would miss “our special [Y] cuddles” – at which time she said Y had become extremely upset, started crying hysterically and backed away from her father and, when asked what was wrong, kept crying and said that she did not want to spend time with him that day; and
(k)after the initial police interview, Y told her mother that the father insisted on washing her in the shower even after she told him she could wash and dry herself and that his behaviour made her uncomfortable; and
(l)that since the police interview, Y had described “[Y] cuddles” where the father was naked in his bed with her, hugged her from behind her body, pulled her close to him and she felt something poking her “down low” and said that, despite her telling him when this happened that she was uncomfortable and did not like it and asking him to stop, he would not; and
(m)she took Y and X to the police to be interviewed on 28 January 2018; and
(n)on about … 2018, police obtained an apprehended violence order against the father, which order included that the children were named as “protected persons” and prevented the father from contacting them and/or approaching them or their school; and
(o)on … 2018, the father was charged with unlawfully and indecently dealing with Y and subjected to bail conditions which prohibited him from having any contact (directly or indirectly) with the children[4] and the mother was advised to immediately cease contact with him; and
(p)in a statement dated 2 February 2018, Dr H advised the mother that:
It is my opinion that [Medical Condition E] in a pre-pubertal child, outside the immediate newborn period, is indicative of some kind of sexual contact. It is extremely unlikely that [Medical Condition E] can be spread in a nonsexual manner, other than vertical transmission from a [Medical Condition E] positive mother to her baby. There is no indication that [Ms Redington], [Y’s] mother, was positive for [Medical Condition E] during her pregnancy with [Y] or at the time of [Y’s] birth, hence this mode of transmission can be excluded.[5]
[3] Exhibit 10.
[4] As well as the mother.
[5] Exhibit 10; Exhibit 16.
It is overwhelmingly clear on the evidence that the previously amicable parental relationship has been ruptured – I think, irrevocably – by the matters outlined above. The parents have not spoken since the father was charged.
Further, the mother’s belief that the father sexually abused Y – a belief that I accept she genuinely holds – has not been shaken by the fact that, following a Judge-only trial in the District Court of Queensland in 2020, the father was acquitted of the criminal charge of unlawfully and indecently dealing with Y on … 2020, for the reasons expressed by the District Court Judge.[6]
[6] Exhibit 19.
Despite the father’s acquittal, police successfully applied for an extension of the apprehended violence order and it remains in force until 25 October 2022, such that, absent a court order allowing contact, the father is prohibited from seeing the children.
In these proceedings, the mother seeks a finding that the children will be at an unacceptable risk of harm if they resume spending time with their father; she does so on the basis of the contention that, notwithstanding the father’s acquittal of the criminal charge, this Court would be persuaded on the evidence before it that there is an unacceptable risk that the father acted toward Y in such a manner that she contracted Medical Condition E from him – including, as I appreciate the evidence, by sleeping naked with her; that he had previously cuddled Y in a manner that was inappropriate (that is, that he had given her “[Y] cuddles”); that he had previously smacked the children excessively; that he had locked X in a cupboard and refused to let him out; that he had deliberately given the children food which was too hot for them; and that he consumed excessive alcohol when the children were in his care.
The father, supported by the Independent Children’s Lawyer, advances that the Court will not be persuaded that the children will be at an unacceptable risk of harm if they eventually spend time with him; that they will benefit from the opportunity, supported by appropriate therapy, to consider whether they wish to try to resume having a relationship of some kind with their father and, in essence, that their best interests will not be met by preventing them from having the opportunity to re-engage with their father.
APPLICABLE PRINCIPLES
In these proceedings, being proceedings for a parenting order[7] in relation to the children, I may, subject to s 61DA[8] and s 65DAB[9] and Division 6 of Part VII of the Family Law Act 1975 (Cth) (“the Act”), make such parenting order as I think proper.[10] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[11] In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration.[12]
[7] Family Law Act 1975 (Cth) s 64B.
[8] Presumption of equal shared parental responsibility.
[9] Parenting plans.
[10] Family Law Act 1975 (Cth) s 65D.
[11] Family Law Act 1975 (Cth) s 60B.
[12] Family Law Act 1975 (Cth) s 60CA and s 65AA.
The matters to which regard must be had in determining those parenting orders which are in each child’s best interests are found in s 60CC of the Act. The requirement to “consider” each of these matters does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[13] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in these children’s best interests. I have considered all of the relevant considerations in arising at my conclusion about those orders which are in the children’s best interests.
The benefit to the children of a meaningful relationship with both parents[14]
[13]See Banks & Banks (2015) FLC 93-637 (whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings).
[14] Family Law Act 1975 (Cth) s 60CC(2)(a).
The Act does not define the term meaningful relationship, nor does it prescribe criteria on which the Court should rely to assess how a child’s parents have, or should have, a meaningful involvement in that child’s life.
In McCall & Clark,[15] the Full Court concluded that the preferred interpretation of “benefit to a child of a meaningful relationship” is the prospective approach. That is, the Court should consider and weigh the evidence at trial and determine how, if it is in a child’s best interests, orders can be framed to ensure that he or she has a meaningful relationship with both parents. The determination of whether there is a benefit to the children in having a meaningful relationship with each of their parents does not depend simply on there being a lack of danger of physical or psychological harm to children arising from time and/or communication with that parent.[16] If the Court determines that a benefit exists, then it must also consider whether the benefit needs to give way to the requirement to protect the children from physical or psychological harm.[17]
[15] (2009) FLC 93-405.
[16]Vigano & Desmond (2012) FLC 93-509 at [128]-[129] per Bryant CJ, Strickland & Murphy JJ.
[17]Vigano & Desmond (2012) FLC 93-509 at [128]-[129] per Bryant CJ, Strickland & Murphy JJ.
Given that the mother continues to believe that the father has sexually abused Y and has acted harmfully toward X, it is unsurprising that she regards the children having a future relationship with him as conveying no benefit at all to them.
As I appreciate his case and his evidence, the father contends that the benefit to the children of being required to engage in a therapeutic process intended to assist them to renew some sort of relationship with him is that this would, in essence, enable their falsely based negative views of him to be “corrected”, relieve them of the burden of going through their lives thinking he is a paedophile or monster and provide them with a person other than their mother upon whose shoulders they could cry and who could “push” them a little bit harder on occasions when they might need this. He clearly also considered that having the children engage in a therapeutic process would meet his need to know that the children were okay and for them to know that he is “not a bad guy”.
Whilst Mr D’s evidence included that the benefit to the children of having a meaningful relationship with their father was that he may be able to provide them with physical, emotional and financial resources which would enhance their well-being, this seems to me to have amounted to little more than a generality; there was nothing in Mr D’s evidence which specifically identified those specific benefits to the children of having a meaningful relationship with their father in the future.
The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[18]
[18] Family Law Act 1975 (Cth) ss 60CC(2)(b) and (2A).
Authority makes it clear that the resolution of allegations of sexual and other abuse are “subservient and ancillary” to this Court’s determination of the parenting order which is in the children’s best interests.[19]
[19] M v M (1988) 166 CLR 69 and the numerous authorities which have followed it.
As noted earlier, in these proceedings, the father seeks only that the children are required by order to participate in counselling and that the mother is required, by order, to facilitate their attendance at the same. However, given that the Act imposes a statutory imperative of protecting children from harm,[20] it seems to me to be necessary to consider not only whether the children will be at an unacceptable risk[21] of psychological harm if required to undertake counselling intended to facilitate them resuming a relationship with their father, but also whether spending time and/or communication with him will place them at an unacceptable risk of suffering harm – because having the children spend time and communicate with him is clearly the underlying purpose of seeking that they engage in a therapeutic process.
[20] Family Law Act 1975 (Cth) ss 60CC(2)(b) and (2A).
[21]See the discussion in M v M (1988) 166 CLR 69; N and S and the Separate Representative (1996) FLC 92-655; A v A (1998) FLC 92-800; Bant & Clayton (2019) FLC 93-924 for example.
It was conceded on behalf of the mother that, in the absence of any specific disclosure by Y to that effect or any physical evidence to establish sexual abuse, the Court could not make a positive finding that the father sexually abused Y.
The mother contends, in essence, that the Court will be persuaded that Y and X will be at an unacceptable risk of harm if required to spend time or communicate with their father in the future because:
(a)it will conclude that it is more likely than not that the father’s actions caused Y to contract Medical Condition E; and/or
(b)if what was advanced on the father’s behalf at the criminal trial – namely, that it was possible that Y contracted Medical Condition E from a towel at his house – the father:
(i)recklessly or negligently used a towel he had used to dry himself to dry Y, notwithstanding that he knew he had experienced discharge from his penis; and/or
(i)failed to take appropriately protective steps to ensure that Y was not exposed to the risk of contracting Medical Condition E (which risk became an eventuality); and/or
(c)he gave Y “[Y] cuddles” when she was sleeping in his bed with him after he placed her there contrary to her wishes and whilst he was nude; and/or
(d)of the manner in which he has previously smacked the children; locked X in a cupboard; put hot sauce on their food and excessively consumed alcohol.
Counsel for the mother submitted that the Court would be persuaded to conclude, on the balance of probabilities and given Professor H’s evidence in the criminal trial conducted by the District Court of Queensland in 2020, that Y contracted Medical Condition E by sexual transmission and that the instigator of such sexual transmission was the father. Counsel also submitted that the Court would be persuaded to the requisite standard to conclude that there is an unacceptable risk that the father sexually abused Y given: the improbability of non-sexual transmission of Medical Condition E; Y’s distress when in her father’s care on 23 December 2017; Y’s report of “[Y] cuddles” when interviewed by police and the contents of a Victim Impact Statement (which I accept was written by Y in the manner outlined by the mother and in the course of the prosecution of the criminal charge) which included her assertion that her father had hurt her mentally and physically.
The allegation that Y contracted Medical Condition E because of something her father did
The father strenuously denied any allegation that he had acted in any way to cause Y to contract Medical Condition E. He advanced, in his criminal trial and in these proceedings, the possibility that Y contracted Medical Condition E by non-sexual means, and, in particular, by using the same bath towel as he had.
Y was interviewed by police on four occasions: 9 January 2018;[22] 29 January 2018;[23] 11 September 2019;[24] and 12 September 2019.[25]
[22] Exhibits 1 and 1A.
[23] Exhibits 3 and 3A.
[24] Exhibit 5.
[25] Exhibit 6.
I accept that, during her 9 January 2018 interview, Y told the interviewing officer that she did not like it when her father took her into his room to sleep in his bed, when she fell asleep on the couch, rather than putting her to sleep in her bed; that she said she wanted to sleep in her own bed and kept telling him “no” and he kept putting her into his bed and that she woke to find herself there and she did not want to be there. I accept she told the officer that X sometimes slept in the father’s bed. I accept she also told the officer, when asked in essence why she was really unhappy about sleeping in her father’s bed, that he never slept in pyjama pants or a T-shirt and that he slept in nothing and that made her feel uncomfortable. I accept that she answered in the negative when asked whether anything else made her feel uncomfortable. I accept that she told the officer that what made her feel uncomfortable with her father was that he slept without pants or clothes on and she did not want to sleep in his bed. I accept that Y was able to identify her “private parts” and to explain that she called them that because it was private and no one else could look at them but her; I accept that, when she was asked if anybody had looked at her private parts, she said “the doctor” and that her mother had showed her; I accept she responded negatively when asked if anyone else had seen or touched her private parts. I accept that Y said that she was allowed to touch her private parts but nobody else other than her had touched them. I accept Y told the police officer that she could see her father’s private parts if she was facing him when he got up to get dressed. I accept she said that she had told her father that she did not like sleeping in his bed, but he kept taking her there when she fell asleep on the couch and that this occurred three or four times a week – although she later said that he had only started taking her into his bed a month or so earlier and that, before that, she slept in her own bed. I accept Y told the police officer that she felt safe at her mother’s house but not at her father’s house because she told him to stop and he had not, and said he wanted to get “[Y] cuddles”.
I accept that, when the officer asked her about “[Y] cuddles”, Y said that her father hugged her and she did not want him to and just wanted to sleep in her own bed; that he just hugged her and she did not like it because he had no clothes on and she wanted him to sleep in clothes because her mother and siblings did. She said the father asked for “[Y] cuddles” when she woke up and she said “stop” and he said “no, he wanted [Y] cuddles”. I accept that, when asked how the “[Y] cuddles” made her feel unsafe, Y said that it was because her father was not wearing any clothes and that he had to wear clothes for her to feel safe. She described “[Y] cuddles” happening only in her father’s room and said she did not like them; she said he gave her cuddles elsewhere and that she was comfortable with these because it was in the daytime and he had clothes on and she liked the cuddles.
I accept that, whilst Y told the officer that she has “only a bit of fun” at her father’s house, she also said that, if she had the choice, she would choose not to go to his house. I accept she said that she would FaceTime him but not see him in person and, when asked the reason for this, that she said it was since he brought her up into his room that she did not feel comfortable around him. I accept that, despite being given the opportunity to tell the police officer “more”, Y’s response was that she did not think there was more.
I accept that the thing Y said she had asked her father to stop was taking her up to his bed; and that she had asked him to put clothes on and he said “no”. I accept that, when Y was asked whether her father did anything else to make her feel uncomfortable, she responded in the negative.
I accept that Y told the police officer that she had first told her mother about her father taking her up to his bed the night before the interview; I accept Y said her mother had told her that she had to tell her the truth; Y said that she had told her mother the truth and then her mother had told her (Y) that she had to tell the police officer. I also accept that Y refuted the suggestion that her mother had asked her if her father had taken her up to bed; I accept Y told the officer, when asked what made her tell her mother this the night before the interview, that she thought she had to tell someone.
I consider it very clear from the interview on 9 January 2018 that the thing that made Y feel really uncomfortable was the fact that her father did not wear clothes whilst sleeping in bed with her and that he hugged her whilst she was lying down in bed (the “[Y] cuddles”). I accept that she told the police officer that, when he gave her the “[Y] cuddles”, the father was lying on his side in bed, she was lying on her back and his arm was around her hips.
I accept that, when the interviewing officer asked Y on 29 January 2018 why she had come to speak that day, she said that it was about what she had said to her mother “last night”; that she explained that her mother had asked her questions (such as whether she felt anything on her back and what way she was facing when her father cuddled her in bed) and she had told her mother that she had felt a little tickle and then something soft on her back; that she was facing the wall and her father was facing her back and that was when she felt a tickle on her back – that it felt really soft and light and that there was then a poke that was “like really soft” in the centre of her back or just below the centre and that, when she felt the poke/tickle, she moved away from her father because she did not feel comfortable when he did that. I accept that, when asked what she thought tickled her, Y told the officer that she was not sure what tickled her because the father was facing her back. I accept she told the police officer that the “poke” had happened more than once and that it was all the same; that she was wearing a nightie with long sleeves and a skirt and underwear, whilst her father was not wearing any clothes. I accept that, when she was asked whether anything else made her feel uncomfortable when she was in bed with her father, Y said that it was when he hugged her as he pulled her right up against him whilst she was facing away from him - she was unsure about what parts of his body were touching her because she was facing away from him. When asked why that made her feel uncomfortable, Y said that she just wanted to be alone, because there was no reason to touch when sleeping in bed. I accept that, when the officer asked her whether there was anything else that made her feel uncomfortable, Y answered in the negative. I also accept, though, that when she was asked whether she remembered her father ever touching her body anywhere else that made her feel uncomfortable, Y told the interviewing officer that her father “washes me” and when she tells him to stop he does not; that it is in the shower; that he dried her; that he used his hands and soap and wet his hands a little bit as he washes her on her arms, legs, knees and face. I accept that, when she was asked whether she remembered if her father had ever washed her anywhere else, Y said he washes “my private parts”; when asked to tell the officer how, she said that he just washes them, then she rinses off and gets out; that her father gets a towel and wraps it around her and then she gets into her nightie. I accept Y told the officer that she did not like it when her father washed her and that she had told him to stop: that sometimes he said “no, it’s faster when I do it”. I accept that Y told the interviewing officer that her father probably washed her three days in her week with him and that she was not sure if he ever helped X to have a shower.
I accept that, when the interviewing officer asked Y whether there was anything else that made her feel uncomfortable with her father, she said that it was when he brought her to his bed and that she told him that she wanted to sleep in her own bed. I accept that the information Y provided to the interviewing officer was that, apart from the washing occasions, there was no other time her father touched her private parts. I accept that she also told the officer that her father sometimes got in the shower “with us”, washed himself and was the first one to get out.
I accept that Y told the officer that no one had ever told her to keep secrets; when asked whether anyone else knew about the things that happened, she said she had told her mother and a “girl” named Ms Z (who was the police officer who interviewed her on 9 January 2018). I accept that, despite being given the opportunity to raise other matters, Y said that there was nothing else that she wanted to talk about and that nothing else made her feel uncomfortable with her father.
I accept that, when Y was interviewed on 11 September 2019, she told the interviewing officer that she wore nighties to bed and that her father washed them three times a week; that the sheets were washed and changed once or twice a week; that she slept in her father’s bed two days per week; that her father had made her and X shower together and sometimes showered with them because “[Mr Freed]” said it would be easier if he washed her and he normally did. I accept that Y told the officer that “[Mr Freed]” had an orange towel; and X had a black towel; and that she had a pink towel with a mermaid on it and that she was the only person who used this towel. I accept she said that no one was allowed to use each other’s towels and that she had never used either of the other towels and that no one had used hers. I accept that she told the officer that the towels were washed a couple of times a week. I accept she also told the interviewing officer that her father had used a loofah to wash her: that there were two loofahs in the shower and that he used one on him and the other on her.
I accept that, when Y was interviewed on 12 September 2019, she told the interviewing officer that she was sleeping on a mattress in her mother’s room; that she would wear shorts and a
T-shirt to bed if it was hot and long pants if it was cold; that the sheets were washed and changed three to four times per week; that, in her mother’s house, the procedure was that everyone would take a towel, use it and put it in the wash basket; that everyone had their own loofah and they were in different colours; that she had not worn anyone else’s pyjamas; and that her mother had not asked to borrow her pyjamas and that they would not fit her.
I am not persuaded on the evidence before me that the mother has actively coached Y to tell the police the matters outlined above.
I accept that, when interviewed by police on 10 January 2018, the father told the interviewing officer that he had not spoken to a doctor about how Y would have contracted Medical Condition E; I accept he also said that the mother had been saying that Medical Condition E was only transmitted through sexual contact and, consequently, he assumed that that was why he was being interviewed.
I accept that the father told police that he had had “a little bit of discharge”; “like a milky. Like a spot”. I accept that, when he was asked whether he had had discharge at home, the father said “Well probably had a little bit”. I accept that, when he was asked what he had done generally, he said that he did not know; that he had a shower he guessed; that he probably would have dried off his genitals and put a towel back on the rack; that he did not even think about noticing discharge. I accept he told the interviewing officer that he did not notice any discharge on the towel; that he would have noticed; that there was not a lot (of discharge, I infer); “it wasn’t like it was a lot” (again, of discharge, I infer) and that it was “like a tiny little bit at the end of your penis”.
I accept that when asked, the father said that he understood that Medical Condition E and Medical Condition G were sexually transmitted.
I accept that the father told police during this interview that they did not generally have their “own” towels at his home but simply grabbed them; that Y could have grabbed his towel. I accept that, when he was asked, in essence, whether he had any idea how Y contracted Medical Condition E, he said he had no idea and referred to the officer’s questions about towels. He said that, whilst he slept in the nude with the children, the children were never naked. I accept that the father told police, in essence, that Y had perhaps contracted Medical Condition E from the towels or sheets and discharge on the same; however, he also said that she would have had underwear on.
I accept that the father told police that he did not recollect Y having told him that she did not like sleeping in the same bed as him: I also note, though, that when cross-examined about this issue in the proceedings before me, the father accepted that Y had told him that on one occasion.
In a similar vein, whilst the father told police during the 10 January 2018 interview (during discussions about him having contracted a sexually transmitted infection) that he did not think he had been given medical advice about having sex with someone and did not think that that topic had even been brought up, the notes of his consultation with Dr J on 5 December 2017[26] make it clear that, having then been told that he had tested positive for Medical Condition E and Medical Condition F, he was also told to “stay away” from sexual activity.
[26] Exhibit 15.
I accept that Y has never disclosed to anyone at any time that her father has sexually abused her. I accept that she made no disclosures of sexual abuse during any of her four police interviews; I accept the mother’s evidence that Y had been adamant that she had not been sexually abused by anyone; I accept that X has never alleged to anyone that the father has sexually abused him. I accept that the father has consistently denied sexually abusing Y.
I accept that both X and Y were accurate and truthful when they told police that the father slept in the nude, including on those occasions he shared a bed with them or either of them. I note that Y told police that she wore pyjamas or a nightie to bed and that X wore pyjamas.
The District Court Judgment delivered … 2020 (the Judgment)[27]
[27] Exhibit 19.
It is, of course, relevant that the father was found not guilty of the charge of indecent treatment of Y. However, as was clearly acknowledged during these proceedings, that finding does not axiomatically result in a conclusion that the father does not present an unacceptable risk of harm to Y. Further, a conclusion that elements of a particular offence have not been proved by the Crown to the requisite standard of beyond reasonable doubt (particularly in a circumstantial case where a guilty verdict could only be rendered if the District Court Judge concluded that guilt was the only rational inference that could be drawn from the circumstances) does not mean that a subsequent court cannot be satisfied, on the balance of probabilities,[28] that a person alleged to have engaged in specified behaviour engaged in the same, provided that proper regard is had to matters such as the gravity of the matters alleged.[29]
[28] Evidence Act 1995 (Cth) s 140(1).
[29] Evidence Act 1995 (Cth) s 140(2)(c).
It is also relevant, I think, that there is no mention in the Judgment of the email sent by the father to the mother on 8 January 2018. Given the thoroughness of the Judgment, it seems highly unlikely that the learned District Court Judge would have omitted to refer to this document at all if it had been in evidence before him.
I also note that Professor H, the expert who gave evidence on behalf of the Crown in the criminal trial, agreed in the course the same that he did not have any records to exclude the possibility that the mother’s ex-partner (who occupied her home) had Medical Condition E; he also said that, whilst he believed the time difference before Y developed symptoms meant that the infection had come from the father, this opinion was based on an assumption that the mother’s ex-partner did not have Medical Condition E which had been passed to Y.
I also note that the Judgment records that the submissions made on behalf of the father at the trial included that “at most there is a degree of suspicion here but the Crown has not proved its case beyond reasonable doubt.”[30]
[30] Exhibit 19, paragraph 145.
In arriving at his finding that the father was not guilty of indecent treatment of Y, the learned District Court Judge recorded his conclusion that the Crown could not establish beyond reasonable doubt that the father had removed or adjusted Y’s underwear whilst she was asleep (the Crown case having been that she had been touched indecently by the father while she was asleep); he concluded that he could not exclude the father’s denials of such behaviour – as recounted in the police interview he gave on 10 January 2018 – beyond reasonable doubt and that he could not exclude, as a hypothesis consistent with innocence, the possibility that Y contracted Medical Condition E as a consequence of the father wiping his penis on a towel which she subsequently used. The District Court Judge also concluded, amongst other things, that the various medical studies about which Professor H[31] gave evidence before him provided “ample evidence” from which he (the District Court Judge) considered it could be determined that the Medical Condition E bacteria could be passed on in a non-sexual way: his Honour also found that Professor H had relied on vague evidence as to the level of discharge from the father’s penis to readily find the explanation of non-sexual transmission unlikely; his Honour also concluded that “the fact is the majority of patients have profuse discharge” – a finding which seems likely to have provided the basis for his decision not to accept Professor H’s evidence about the unlikelihood of non-sexual transmission of Medical Condition E.
[31]Whose qualifications include higher degree education in the medical field and who has authored a number of publications in the medical field, including in relation to Medical Condition E: see Exhibit 17 at p.314–315.
Given that the father did not give evidence in his criminal trial, his Honour’s reference to the “vague evidence as to the level of discharge” can only, it seems to me, have been a reference to the information the father provided to the police when he was interviewed by them on 10 January 2018.[32] His description then of the discharge he had noticed included that:
(a)there was not a lot; and
(b)it was like a “tiny little bit” at the end of his penis; and
(c)it was like a milky spot.
[32] Exhibits 2 and 2A.
When the father was cross-examined before me, his evidence included that:
(a)he had noticed a small amount of white discharge coming from his penis; and
(b)it was a “spot with a diameter of 3 millimetres”; a small spot – probably smaller than the size of a little fingernail; and
(c)he had not noticed that there was any discharge on his bed sheets and could not remember noticing any discharge on the sheets the morning after he noticed the discharge; and
(d)he could not remember if he had had a shower when he first saw the discharge – as he had told the police when interviewed on 10 January 2018 (and he explained that he had said this because it was the first thing that had come into his head); and
(e)he did not recall there being any discharge on his penis after 28 November 2017.
The transcript of the evidence given by Professor H before the learned District Court Judge is in evidence in these proceedings.[33] Reference to it reveals that Professor H’s evidence included that:
[33] Family Law Act 1975 (Cth) s 69ZX(3)(ii).
(a)Medical Condition E is a bacterial organism transmitted by the contact of a susceptible mucosal surface (such as the vagina, penis, rectum or pharynx) with that of an infected person; and
(b)Medical Condition E can also cause conjunctivitis if a person with discharge on their finger wipes their eyes; and
(c)there has been no study to attempt to determine how Medical Condition E is transmitted to children or to investigate matters such as: the length of time from infection to the appearance of symptoms or how often a child infected with Medical Condition E manifests symptoms of that infection; and
(d)he considered that there had been no scientifically rigorous study into how Medical Condition E is transferred to pre-pubertal children; and
(e)in adults, Medical Condition E is transmitted via vaginal, anal or oral sexual contact with an infected mucosal surface and/or infected secretions from that mucosal surface passing to another; and
(f)there was no suggestion in Y’s case of the existence of disseminated Medical Condition E infection (where the infection passes into the bloodstream) which is a very, very rare syndrome; and
(g)
the primary site of infection in men is the lining of the penis or urethra, whilst in
pre-pubertal girls it is the vagina or lining of the vagina; and
(h)whilst Medical Condition F, another sexually transmitted infection, is transmitted in the same way as Medical Condition E, it is much more commonly asymptomatic and is less infectious per sexual contact than Medical Condition E – there is a 20 per cent chance of contracting Medical Condition F in a single male/female contact, whereas the literature (albeit of not great quality and not a huge amount) suggests that there may be up to a 50 per cent chance of transmission of Medical Condition E per contact (especially if the male had a discharge – because studies have shown that the amount of Medical Condition E bacteria is significantly higher in men with discharge when compared to men who did not have discharge) and, insofar as Medical Condition G is concerned, sexual transmission by an infected male to the vagina is estimated to be in the order of one in one thousand; and
(i)it is far, far less easy to contract Medical Condition G than Medical Condition F, which is less easy to contract than Medical Condition E; and
(j)the chance of transmission of Medical Condition E from a penis to a vagina is higher than from an infected vagina to an uninfected penis; and
(k)a man infected with Medical Condition E who does not have discharge is less likely to pass on Medical Condition E than a man with discharge and a man with a small amount of discharge is less likely to pass on Medical Condition E than a man with a large amount of discharge; and
(l)whilst there have been several or numerous “case reports” (which he said the scientific/research community regarded as the weakest form of evidence that something has or has not happened – because, for example, they are simply stories of children who have tested positive with Medical Condition E without identification of the source of the same) regarding the potential for non-sexual transmission of Medical Condition E, he considered that these had been published because it is considered to be highly unusual for Medical Condition E to be non-sexually transmitted: that is, there is a publication bias in favour of case reports which assert that children had contracted Medical Condition E via non-sexually-transmitted means when compared to reports that a child had contracted Medical Condition E via sexually-transmitted means because the rarity of something results in its reporting whereas editors do not report the known; and
(m)his opinion was that the published case studies are inherently weak because: they are case studies; in many of the older accounts the accuracy of the tests undertaken to diagnose the presence of Medical Condition E are nothing like the tests available today; many arose in the pre-antibiotic era where no treatment was available; they generally proceeded absent a consideration of the possibility that children may fail to disclose sexual abuse even when it has occurred; and
(n)whilst Australia does not have national guidelines on the significance of Medical Condition E in children, other countries and organisations do and the details of these are that:
(i)in Canada: if Medical Condition E is diagnosed, then the probability of sexual abuse is strong but probable if the child is older than one year of age; and
(ii)in Britain: sexual abuse is the most likely mode of transmission in pubertal and pre-pubertal children with Medical Condition E; and
(iii)for the World Health Organisation: “the identification of sexually transmissible agents in children beyond the neonatal period in the vast majority of children is suggestive of sexual abuse”; and
(iv)according to the United States Centre for Disease Control: the identification of sexually transmissible agents in children beyond the neonatal period “strongly suggests” sexual abuse and the presence of Medical Condition E postnatally is “indicative of sexual abuse”
(o)given the matters summarised in (n), his opinion is that the consensus of medical experts worldwide in the field of child sexual abuse based on expert opinion and published research is that Medical Condition E in a child is almost always related to sexual abuse; and
(p)Medical Condition E cannot be transmitted through the air and, whilst it is very susceptible to drying once outside the body and rapidly becomes non-viable, it can survive in a laboratory; whilst it is a fastidious bacterium with exacting growth requirements and is actually quite difficult to grow, it is cultured specifically in a moist, humid environment because that facilitates its growth – the standard way of culturing it today is for four days in an environment which has a temperature of 37°C and 5 per cent carbon dioxide; and
(q)whilst a case study undertaken in 1980 suggested that it was possible to culture Medical Condition E in a laboratory from a towel left in the laboratory (where the same was maintained with a room temperature between 20° and 22° and a relative humidity of 60 per cent), there is no evidence from this study to support the assertion that the towel on which the Medical Condition E culture was grown would actually be able to transmit Medical Condition E if wiped onto a mucosal secretion; and
(r)whilst another case study undertaken in 1972 suggested that, certainly in a laboratory setting, Medical Condition E could be cultured from an inanimate object like a towel for at least 24 hours after the towel was inoculated, there was no proof that the towel that could grow Medical Condition E would actually have sufficient Medical Condition E on it to transmit to another person’s susceptible mucosa so as to cause an infection in that person; and
(s)simply growing Medical Condition E on a culture plate did not mean that there would be enough of it there to actually infect a susceptible human surface; and
(t)whilst the third case study suggested that Medical Condition E could be transmitted to humans through contact with a toilet seat, the Experiment K undertaken in 1979 concluded that sitting on a toilet seat that had Medical Condition E organisms on it was not sufficient to result in a person contracting Medical Condition E – it was not his opinion that a person could acquire Medical Condition E from a toilet seat; and
(u)he was sceptical of the reliability of the numerous case reports about the “innocent” transmission of Medical Condition E for reasons which included that many of them focused on situations where people lived in overcrowded or unhygienic situations – such that, if in fact there is a case for non-sexual transmission of Medical Condition E, it may be in those conditions.
Further, Professor H’s evidence about symptomology included that:
(a)whilst not every male who has Medical Condition E has symptoms, the vast majority (90–95 per cent) do, usually within five to seven days of exposure to the infection; however, symptoms could be present as early as one to two days after exposure to infection; and
(b)the most common symptoms in males were discharge from the urethra and a burning sensation on passing urine; and
(c)the greater the amount of discharge, the more infectious a person is; whilst Medical Condition E is an infection that mostly produces a lot of discharge, this is not always the case; and
(d)his experience over 20 years suggested that it was much more common that the discharge produced by Medical Condition E is a kind of pussy, creamy, yellow discharge; and
(e)women who have contracted Medical Condition E can have the infection for months and not know it; women are less commonly symptomatic (with 50 per cent of women developing symptoms) and most develop symptoms within 10 days of contact if they are going to develop any symptoms at all – if a woman does not show symptoms, she is not able to pass the infection on other than sexually.
Professor H’s evidence about the issue of transmission of Medical Condition E included that:
(a)there is no evidence in scientific literature that transmission of Medical Condition E from towels has ever occurred; and
(b)it was unknown whether, just because it was possible to culture Medical Condition E after a certain time-frame from a towel in ideal laboratory conditions, it was possible to cause an infection in a human being by contact with such a towel: that is, it is unknown whether being able to culture Medical Condition E from a towel means that one could cause someone to suffer infection from the towel; and
(c)the key factor in his opinion is that, when interviewed by police, the father referred at least twice to having a tiny amount of discharge (“a little dot”) – this was significant because the smaller the amount of discharge the less the amount of infectious organism present and, therefore, the less infectious the father would have been; and
(d)he thought it was not possible for the small amount of discharge the father reported to the police to be inoculated onto a towel and then inoculated onto another person’s (here, Y’s) susceptible mucosa to cause infection; and
(e)there are no studies to suggest that Medical Condition E is able to penetrate clothing and he did not believe that Medical Condition E could have penetrated through Y’s underwear or pyjamas, especially given the father’s position that he had a tiny amount of discharge; and
(f)especially given the father’s position that he had a tiny amount of discharge, he did not believe that Y could have contracted Medical Condition E from contact with discharge on the bedsheets; and
(g)insofar as the fifth case study considered the possibility of non-sexual transmission of Medical Condition E conjunctivitis:
(i)he believed that the vagina could be infected with Medical Condition E if a person wiped an infectious secretion from an eye infected with Medical Condition E and placed their finger into a vagina; and
(ii)if there had been adequate inoculum on a towel Y used to dry herself (including her face) to cause her to be infected with Medical Condition E from this, then he would have thought that her eyes would have been equally susceptible – but there was no indication in the medical records that Y had conjunctivitis caused by Medical Condition E; and
(h)he believed it was possible for a child to autoinoculate from a Medical Condition E infection in the eye onto the vaginal epithelium and cause a Medical Condition E infection from there; and
(i)he did not believe that there could have been a transfer of Medical Condition E from the mother to Y because:
(i)there was no mention, in the mother’s medical records of the consultation she had with the doctor after the father told her he had noticed discharge, of her having discharge; and
(ii)there was no mention, in any of the mother’s statements provided to him or in her patient health summary, of the mother suffering any symptoms; and
(iii)it was not possible for there to be a transfer of infection if the mother was clothed and asymptomatic and Y was clothed; and
(iv)given that the primary site of infection in the mother was the cervix, the only possible way for there to have been transmission to Y via a towel would have been for a towel to have been placed directly up the mother’s vagina (such that it came into contact with the cervix) and then inoculated directly onto the child’s vagina – albeit that he believed that this would be very unlikely; and
(j)he did not think towels were an “efficient” way of transmitting Medical Condition E to Y; and
(k)whilst transmission could occur via a hand touching the child, the hand would have to have Medical Condition E discharge on it and would have to be very close to, if not inside, the vagina in order to establish an infection; and
(l)whilst he supposed it was “possible” for a child to be inoculated from the towel onto that child’s finger and, via rubbing their genitals, introduce the infection into the vagina, he considered that there were so many other variables that he could not really indicate how possible that scenario would be – “highly unlikely” would be as far as he would be willing to go; and
(m)whilst he thought Medical Condition E could possibly be transmitted if there was Medical Condition E discharge on toilet paper which was rubbed directly onto the genital area, there were lots of variables involved in this postulation: however, he said that, if a large amount of Medical Condition E discharge was freshly inoculated onto toilet paper and a girl wiped her genitals with it, this would quite easily transmit Medical Condition E; and
(n)given that soap is quite effective at destroying Medical Condition E on surfaces, he did not believe that transmission could occur when it was involved (for example, where a parent washed a child in the shower with their hands when soap was involved) and did not believe that the father washing Y in the shower with his hand/soap was an effective way to transmit Medical Condition E.
Professor H did not accept the proposition put to him during the criminal trial that in the present case it was possible for a seven-year-old female to contract Medical Condition E by
non-sexual methods.
I consider that Professor H also said that he did not believe, given the father’s description of a tiny amount of discharge, that:
(a)there would have been sufficient inoculum of viable organism for autoinoculation to occur by finger (as it would require a sufficiently large amount of inoculum on a finger placed very close to, or in, the vaginal opening for inoculation to occur); and
(b)there would have been sufficient inoculum of viable organism for inoculation to occur by a fomite (“any inanimate object that, when contaminated with or exposed to infectious agents, can transfer disease to a new host”) such as clothing or linen.
Reference to the transcript of his evidence in the criminal trial reveals that, when it was suggested to him that he could not exclude the possibility, scientifically, that a Medical Condition E infection can be passed to a child by non-sexual contact, Professor H said that he believed that “if you had a very large amount of inoculant of Medical Condition E, a huge amount of pus and it was on a towel and that was wiped directly onto the vagina of a susceptible prepubescent girl, then transmission could occur”; he emphasised, in my view, though that his conclusion in this case that he did not accept that it was possible for Y to have contracted Medical Condition E by non-sexual means was based on the father having “self admittedly” a tiny amount of discharge.
Professor H also said that he agreed with the opinion of the expert obtained by the father (who did not give evidence in the criminal trial following a court ordered conference with Professor H) that it was far more likely that the father infected the mother with Medical Condition E.
Whilst the father’s evidence included that a Dr L from the Medical Centre M had told him on 10 January 2018 that Medical Condition E could be passed on via non-sexual means, (such as from a towel), Dr L was not called as a witness in the father’s case and there is no documentary evidence before me to verify the accuracy of the father’s recounting of the advice he received. Given this, Professor H’s evidence is the only expert evidence before me and I accept it.
The email sent on 8 January 2018
As noted above, the email sent by the father to the mother on 8 January 2018 was not the subject of discussion in the Judgment.
The father’s evidence about the circumstances surrounding him sending the mother the communication on 8 January 2018 in the terms in which it was sent included that: he did not know much about Medical Condition G but knew that it could be contracted through sexual means; he thought that, if Y had contracted Medical Condition E through non-sexual means, she might have contracted Medical Condition G via non-sexual means; his only thoughts were to make sure Y was okay and did not have Medical Condition G; he had tried unsuccessfully to call the mother; he was in a state of shock about his Medical Condition G diagnosis and that Y had been diagnosed as having Medical Condition E.
In addition, the father denied the suggestion made to him by Counsel for the mother during his cross-examination that the email was sent in the terms that it was because he knew, at that time, that Y had been exposed to his bodily fluids and that X had not been.
Given the content of the father’s police interview on 10 January 2018 and his evidence that he was told by Dr L on 10 January 2018 that Medical Condition E could be transmitted by non-sexual means, I am sceptical of his assertion that, as at 8 January 2018, he thought it possible for Y to have contracted Medical Condition E through non-sexual means and therefore was concerned that she might also have contracted Medical Condition G. This scepticism is magnified by his comments to police when interviewed by them on 10 January 2018 – an interview which, it seems to me, provided the genesis of the idea that Y may have contracted Medical Condition E by using a towel her father had used.
Further, whilst the father said that he had not referred to X in his 8 January 2018 email because he (the father) had Medical Condition E and Y had Medical Condition E, the reality is that it was not then known whether X might equally have been exposed to Medical Condition E via the same type of non-sexual means of transmission the father asserted to have been responsible for Y’s contraction of the infection. X in fact underwent tests for sexually transmitted infections on about 11 January 2018 and the same were negative.
The father’s evidence about why the contents of the 8 January 2018 email do not refer to X at all and do not raise the prospect of both children being tested for Medical Condition G has not allayed my concerns about it at all. I retain the uncomfortable thought that the reason the father did not suggest that both of his children undergo testing for Medical Condition G was because he knew, at that time, that only Y was at risk of contracting the same. Had he thought that there was nothing in his interactions with Y which could have been responsible for her alone being at risk of contracting Medical Condition G, then it seems unlikely to me that he would have positively excluded X from his request for testing to determine the presence/absence of Medical Condition G.
The father’s attitude toward the assessment of risk
Examples of the manner in which the father has previously approached the risk that may be posed to others by him having sexually transmitted infections are that:
(a)it is highly likely that he slept naked with one or both of the children in the period between late November 2017 – early December 2017, whilst aware that he potentially had a sexually transmitted infection; and
(b)despite considering, from no later than about 27 November 2017, that he may potentially have a sexually transmitted infection, he made no change whatsoever to any of the hygiene or sleeping practices within his home; and
(c)he told police, when interviewed on 10 January 2018, that he had not done any reading or research about Medical Condition E.
Whilst not directly related to the children, it is, I think, relevant to assess the father’s overall approach toward the assessment of the risk that his behaviours might pose to others. For example, during a medical consultation on 4 January 2018 the father was told that his test results for sexually transmitted diseases other than Medical Condition G were negative and normal. Despite having no medical confirmation of a negative result for his Medical Condition G test, it appears (from information the father told police when interviewed on 10 January 2018) that he had unprotected sex with another woman sometime between then and 8 January 2018 (when he received the advice that he had Medical Condition G). Whilst he told the police that he had had sex with a woman after having been given the “all clear” about him having sexually transmitted infections and having already “passed” an Medical Condition G test and been told that he did not have Medical Condition G, there is nothing in the evidence before me to corroborate the father’s asserted chronology in this respect: if anything, it seemed quite possible that the father had unprotected sex with this unknown woman (whom he later had to advise that he had tested positive for Medical Condition G) after he was told that he was no longer positive for Medical Condition E and Medical Condition F, but before receiving the results of the medical tests for Medical Condition G.
Other aspects of the father’s alleged conduct said to give rise to unacceptable risk and further discussion and conclusions about unacceptable risk
I accept that the father has consistently denied physically harming either Y or X, locking X in a cupboard under the stairs, putting hot sauce on the children’s food or otherwise behaving abusively toward them. Given the mother’s actions in continuing to support the children spending time with their father in the period from 2012 until early January 2018 and that there is no suggestion by her that, during this period, the children made any significant complaints to her about their father’s conduct toward them (other than his smacking of them), I am not persuaded that, by virtue of behaviours such as these, the children would be at an unacceptable risk of harm if they were to resume spending time with her father at some time in the future.
However, given the contents of Y’s police interviews and the evidence given by Professor H, I am certainly not prepared to make the finding, sought by the father and supported by the Independent Children’s Lawyer, that the father has not sexually abused Y. In fact, given such evidence, I have concluded, after much deliberation, that there is an unacceptable risk that the father’s actions toward Y caused her to contract Medical Condition E.
Even if I am wrong in arriving at this conclusion, I consider that the father’s behaviour toward the children (for example, continuing to sleep naked with them despite Y raising, on no less than one occasion in 2017 that she was uncomfortable with this arrangement; continuing to insist that the children sleep with him because he liked it; and, most significantly, making no change to his hygiene practices or sleeping regime despite thinking that he might have contracted a sexually transmitted disease) and his approach generally to the assessment of the risk that his decisions and consequent behaviours could place the children in is such that they would likely be at an unacceptable risk of harm if they were to recommence spending time with him, particularly absent any demonstration by him of any change to the manner in which he assesses risk and acts upon it.
Further, given the strength of the children’s views about the father, I consider that they would now be at an unacceptable risk of suffering emotional and, perhaps, psychological harm if they were required to engage in a therapeutic process designed to have them resume a relationship with him.
The children: their views and the nature of their relationship with each of their parents[34]
[34] Family Law Act 1975 (Cth) ss 60CC(3)(a), (b), (d) and (g).
X
Part of the father’s case included that X is a child who is untruthful. In support of this contention, a report dated 4 June 2015 prepared by Ms N (a psychologist) was tendered.[35] The report records a concern at that time that X had a tendency to lie or make up stories which were described as innocent and far-fetched and that, when challenged about them, he would maintain that they were true. I am not necessarily persuaded an assessment as at June 2015 can usefully be extrapolated in assessing X’s veracity when interviewed by police in October 2018.
[35] Exhibit 8.
Ms N’s report, though, provides an insight (albeit dated) into X’s past functioning: it records, amongst other things, that he had then been experiencing high levels of anxiety at school; appeared to have social difficulties; that his worries included loud noise, meeting people, school pickups, something bad happening to his family and making mistakes at school. Ms N’s report also recorded that X’s teachers reported that he had had social and emotional problems since the start of that year; required lots of support and reassurance; demonstrated a high level of anxiety on a daily basis; liked to be in control and became upset, with emotional reactions out of proportion when things did not go his way. He was described as having trouble making and retaining friends and had been assessed as a sensitive, emotional and loving child who needed lots of attention and support during the day.
Ms N’s report also records that, at that time, X was assessed as experiencing significantly more worries than his peers; he had been referred to cognitive behaviour therapy as a consequence of his teachers’ rating him as experiencing significant levels of anxiety. Ms N noted that, during the several cognitive behaviour therapy sessions X had done with her, he had learned relaxation strategies and to recognise his symptoms of anxiety; she reported that he had sometimes made up stories and that she had found it difficult to distinguish between fact and fiction in these. She said that despite lots of assistance from his school in various ways, he still presented, at that time, with high levels of anxiety in class and was very needy; she considered that he had some traits commonly found in children with generalised anxiety disorder and recommended that a paediatric review be undertaken.
The paediatric review recommended by Ms N was undertaken by Dr O. His report, dated 2 July 2015,[36] contains the information that X has an extraordinarily inquiring mind with interests ahead of his age; that he liked everything to be perfect and was tearful and anxious at times; tended to fixate on issues, became stressed and worried about not being good enough and was a perfectionist. Dr O concluded that X’s anxieties were then significantly interfering with his education and social function and expressed an intention to review him in three to four months.
[36] Exhibit 7.
I accept that, when then nine-year-old X was interviewed by police on 29 October 2018,[37] he told the interviewing officer, amongst other things, that on his “last night there”, his father had run out of dry-nights and told him to sleep naked as it was the best feeling; he slept naked and woke up to find his father in bed naked with him – which he said was so uncomfortable. He told the officer that he had slept naked because he had nothing to wear as it was in the dryer. X said that he had gone to bed nude because his father had told him to; he fell asleep and woke up and his father was naked behind him and he got up and went downstairs and felt really uncomfortable. I accept he also told the officer that his father “washes me” in the shower and scrubbed his hair and that, whilst he told him to stop because he could do it himself, his father did not stop; I accept that he told the police officer that his father had made him and Y shower with him and that he had made X and Y shower together; I accept that X said his father washed him in the shower (arms, legs, hair) and volunteered that it was not “the rude parts”; I accept that he confirmed that his father had not washed his “rude parts” after the interviewing officer asked him questions about that. I also accept that X advised that his father had not washed his penis in the shower. When asked, he said that his father had washed Y in pretty much exactly the same way as he had washed him and that he did not wash her “rude or private parts” that he knew of. I accept that X also told the interviewing officer that his father always slept naked and always had. In addition, X complained, in essence, that his father did not assist him when he was being bullied by two boys who lived in the same complex as his father; called him fat; drank alcohol; would not let him speak to his mother; was mean to him and became angry easily and would not let him hang out with his friends; once threw his dinner in the bin when it was something he did not want; and, when he was about five years of age, “chucked” him out of the car and did skids on the road in front of the house.
[37] Exhibits 4 and 4A.
I accept that X also told the interviewing officer that Y had told him that the father was a bloody idiot; so mean; should go to jail; that she had felt something on her back when the father was lying behind her in bed; and that she hated the father so much.
I accept that X also told the interviewing officer that he had told the mother about things but no one else and that, when he had told her, she had told him to tell the police. I accept he said he absolutely liked his mother’s place better than his father’s.
I note that, despite his complaints about his father, when X was asked who he would tell if something had happened, he said that if something happens at his mother’s house, he tells his father and if something happens at his father’s house, he tells his mother.
I accept that X did not tell the police during this interview about the allegations that his father had put him in a closet, smacked him and made Y watch.
I accept Mr D’s recounting of X’s interview with him in March 2021. I accept that he assessed X as presenting confidently and as able to express his views. I accept X described having a great relationship with his mother and said that he felt absolutely safe in her care. I accept he told Mr D that his relationship with his father was horrible and that he did not feel at all safe in his care. I accept he also told Mr D that his father had locked him in the closet, smacked him and made his sister watch; I accept he said that, when in his father’s care, he was not allowed to call his mother and that he felt so anxious on occasion he would experience panic attacks in his father’s home.
I accept X also told Mr D that he did not want to see his father or read anything sent from him; and that he had felt a lot happier without contact and had been able to make tonnes of friends (in a context where he also suggested that his anxiety had previously obstructed him from being able to make friends). X’s correlation between his anxiety and the difficulties he had previously experienced in developing friendships appears to me to be supported by the content of Ms N’s June 2015 report.
Y
I accept Mr D’s assessment of 10 year old Y when he interviewed her in March 2021. I accept his recounting that she was confident and that he considered that she was able to express her views. I accept she told him she really liked living with her mother and that she described her relationship with her father as “horrible”: I accept she described him drinking beer as soon as he got up in the morning and said that he would be mean to X by calling him “fat, ugly or stupid”; I accept she told Mr D that he also put chilli on their food and forced them to eat it. I accept Y said that her father would move her into his room every night or come into her bed and sleep naked with her; she also said he had showered with her and X because he believed it would be faster if he helped them with this task.
I accept that, when asked if there was anything she enjoyed about spending time with her father, Y said that he had sometimes taken them to the pool – but also indicated that he mainly drank beer and would not watch them.
I accept Y told Mr D that she did not want to speak with her father or spend time with him.
The likely effect on the children if the orders sought by their parents are made[38]
[38] Family Law Act 1975 (Cth) s 60CC(3)(d).
In his report, Mr D noted that, if the children were happy, felt safe, connected and were progressing well socially and academically (as I accept they are), then contact with their father could have an unnecessarily destabilising influence and cause them to regress in these areas.
Given the strength of their expressed views about their father (as reported by Mr D), I think it much more likely than not that, if required to engage in a therapeutic process designed to facilitate them resuming a relationship with their father (a matter which I assume a therapist would ethically be obliged to raise with them during the course of that person’s engagement in the process), the children’s functioning is highly likely to be significantly destabilised. Given X’s past documented history of anxiety (albeit that there is no evidence of current issues with this), there seems to me to be a real prospect that, if he is required – contrary to his forcefully expressed wishes – to engage in the counselling proposed by his father, he may suffer a regression of any progress he has made in dealing with the anxiety that, as at mid-2015, was significant enough to cause a psychologist to consider that he had some traits commonly found in children with Generalised Anxiety Disorder and to recommend a paediatric review.
I accept Mr D’s evidence, in essence, that, if it is accepted that the children are fearful of their father, then being required to interact with him could cause them to suffer anxiety and impact deleteriously on their psychological functioning.
Whilst they are not the subject of these proceedings, it seems likely that any disruption to the mother’s household as a result of the children feeling destabilised would likely also have consequences for the children’s half-siblings, V[39] and W[40].
The parents: their respective involvement in the children’s lives; their capacity to meet the children’s emotional, intellectual and other needs; their attitude to the children and to the responsibilities of parenthood
[39] Born … 2013.
[40] Born … 2016.
The mother
As noted earlier, it is clear that, until the seminal events of January 2018, the mother had facilitated the children spending time and going on holidays with their father for six years after the parental separation and maintained her own relationship with him. I consider that her concerns about his asserted consumption of alcohol, putting hot sauce on the children’s food and forcing them to eat it and smacking the children were not clearly not sufficient as to cause her to prevent the children from spending regular and extended time with their father from 2012 until January 2018.
I accept Mr D’s assessment that the mother has not deliberately alienated the children from their father; I accept that, had she facilitated them spending time with him after he was charged with a criminal offence, she could have been placing them at risk. I accept that, given she was told by the police and members of the medical profession that Medical Condition E could only have been transmitted sexually to Y, the mother acted protectively and appropriately in ensuring that the children did not come into contact with the father.
I accept that, on 10 January 2018, Dr H told Y’s treating general practitioner, amongst other things, that she considered that the mother was then acting appropriately and that child safety had raised concerns about her well-being and ability to cope with such a traumatic event as Y contracting Medical Condition E and the investigations and events associated with that.[42]
[42] Exhibit 18.
It is clear that the mother’s belief system surrounding the father was, I think, understandably and reasonably, significantly shaken by the police investigation into Y’s diagnosis of Medical Condition E and by the fact that a decision was made to charge him with a criminal offence; I accept that, since that time, her view of the father has become more resolute and that, as Mr D accepted, she is now strident in her professed belief that he is a sexual predator.
I accept Mr D’s assessment that the mother acted protectively following police advice and ceased the children’s time and communication with their father. I accept that the mother told Mr D in March 2021 that she felt really scared the Court would consider ordering time between the children and their father; I accept she indicated that the children felt as if they had been “saved” and would not communicate with their father if they were ordered to communicate with him by telephone. I accept she also told Mr D that the children’s anxiety had decreased since they stopped spending time with their father: I accept she outlined that they slept in their own bedrooms, their school grades had improved and X had been able to make friends for the first time in his life.
I accept that Mr D accurately recorded that the mother told him that, whilst she would love the children to have access to a father, she did not believe they were missing anything by not having any contact with their father, particularly, in essence, because they interacted with her brother-in-law and her two other children’s father (notwithstanding that she and he separated a number of years ago).
I accept that the mother indicated her belief that the father would be convicted and incarcerated to Mr D; I also note his assessment that, given the father had not been convicted, there are questions about the mother’s willingness to support the children’s relationship with their father if time between them was ordered. I consider that the mother’s evidence during her
cross-examination to make it clear that, whilst she will comply with an order for the children to attend at counselling, she will do so in a manner that leaves them in no doubt whatsoever that they are being required by the Court (and not her) to undertake such a process.
I accept Mr D’s proposition that if time or contact between the father and children was ordered, this could be distressing for the mother. Whilst his proposition rested on the basis of an assertion that this may be because the mother “may” continue to believe the children are at risk of psychological, physical or sexual harm if they spend time with their father, I accept that the mother continues to believe that the children will be at such risk. Given this, I think it much more likely than not that the mother is highly likely to suffer psychological distress if she is required by order to facilitate the children participating in a therapeutic process designed to reintroduce them to their father and that such psychological distress will be highly likely to impact negatively on her parenting of the children, as well as causing them anxiety.
Mr D outlined that the mother may benefit from attending therapy to assist her to process her own concerns, put aside her own views, give the children a “safe space” and support them in re-establishing a relationship with their father. However, I consider there to be significant weight in the submission made by Counsel on her behalf when, having submitted that there was no proper basis for the mother to be required to attend upon a mental health practitioner, he asked, rhetorically: “To be treated for what?”
The father
I accept that the father told Mr D that he thought that the children may have been given false information about him and that there was no reason for them to be scared of him; that he indicated a belief that the police and the mother may have reinforced or perpetuated a negative view of him; that the children would likely have undergone a traumatic experience via police involvement, being given false information about him and spending three years without contact with him. I accept he also suggested to Mr D that he thought it would be a burden for them to go through their lives thinking him a monster or paedophile and that such views needed to be “corrected”.
I also accept Mr D’s recounting that the father indicated that he did not know how the children felt about him – but said he needed to know they were okay and for them to know that he is “not a bad guy”. I accept he told Mr D that he believed the children should attend counselling to learn how to reconnect with him; that they needed a father to have another shoulder to cry on and that there were occasions when they might need him to push them a little bit harder.
I note that, during his cross-examination, the father accepted that: Y believes he has physically hurt her; it was clear that X did not want a relationship with him; there was nothing he had seen or heard to make him think that Mr D erred in his assessment of the children’s views of him as “negative and absolute”; Y strongly expressed to Mr D that she did not want to speak to or spend time with him (the father) and was unambiguous in her Victim Impact Statement in saying that she and X were now safe from him and requested that he not come near the family again; Mr D had assessed that both children had developed rigid views about him in light of the events (the subject of discussion in these reasons), that such views mirrored those held by the mother and that they may use her as a guide or barometer if called upon to navigate relationships with him; the children’s exposure to events (including their mother’s views) likely reinforced the negative views of him; the mother’s demeanour and evidence during her cross-examination suggested that she retained an absolute belief that he represented a risk to the children.
The father also accepted that counselling intended to reintroduce the children to him would likely only be successful if the mother’s beliefs about him and his actions were different to what they currently are and that there is a real risk that the counselling he proposed simply would not work.
The father also accepted that both children were currently well-settled in their current environment and school. He also agreed that, given the absolute views about him held by the children and their mother, contact with him may have an unnecessarily destabilising influence and cause regression in the children feeling happy and safe and also in their social and academic progress.
The father’s evidence when cross-examined clearly established that he had made no enquiries to identify a therapist to undertake the counselling he proposed (whilst he agreed with the person nominated by his Counsel, his subsequent reference to that therapist being a man when she is a woman clearly established that he had not made any enquiries even about her) and that he had taken no steps to obtain professional advice about those steps he might need to take to attempt to re-engage with the children.
I accept the submission made by Counsel for the mother to the effect that the father lacked insight into the possible impact on the children of being required, in counselling, to confront “the truth” as he perceived it. I note that his evidence when cross-examined included, as I understood it at least, that the point of counselling from his perspective was so that the children could be told “the truth” and decide matters for themselves; his explanation of “the truth” included that he loved and missed them; had never hurt them and had not done what “people” (in reality, though, the children themselves) had said that he had done.
I note that, during his cross-examination, the father’s evidence included that, if after participation in counselling the children continued to hold the absolute views about him that Mr D reported, he would consider giving up on attempts to establish a relationship with them but was unable, at this time, to know when he would be able to make such decision.
I accept as more likely than not that Y asked her father more than once to wear pyjamas when they shared a bed. I consider it much more likely than not that he simply proceeded to do what he liked (noting that he told the police on 10 January 2018 that he liked sleeping with his children as he slept better); given these conclusions, I accept Mr D’s evidence to the effect that he would have concerns about the father’s capacity to place Y at the centre of his decision-making; and, further, that his behaviour in this respect demonstrated an inability to put his own wishes aside in order to accommodate and respect then seven year old Y’s wishes.
Family violence[43]
[43] Family Law Act 1975 (Cth) ss 60CC(3)(j), 60CC(3)(k) and 60CG.
I accept Mr D’s assessment that the information available suggested that family violence was now a potential, rather than a substantive, risk factor: particularly given that the father’s proposal was for the children only to engage in a process of counselling.
Parental Relationship
When called to give evidence the mother declined to provide her address orally; she explained that she preferred that the father did not know where she and the children live, although it is clear that he knows which school the children attend as he has previously received school reports directly from the same.
This What Orders are in the children’s best interests?
Allocation of parental responsibility
Whilst the mother sought to be accorded sole parental responsibility for the major long-term issues relating to the children, the father contended that the children’s best interests would be met by an order for equal shared parental responsibility. It was submitted on his behalf that such an order was proper and in the children’s best interests because the parents had previously worked together and that, with the assistance of therapy, the mother may come to understand that the parental relationship could be repaired so that the parents could make long-term decisions about the children jointly.
Given my findings about the mother’s belief that the father’s actions toward Y caused her to contract Medical Condition E, I am not remotely persuaded that it is in any way likely that, in the future, the mother will be prepared to repair the parental relationship.
When making a parenting order, I am bound to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them.[44] The presumption is rendered inapplicable by the matters prescribed in s 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in their best interests for the parents to have equal shared parental responsibility for the children.[45] If the presumption does not apply, then the power to make parenting orders pursuant to s 65D of the Act is “at large”, albeit subject always to the children’s best interests being the paramount consideration.[46]
[44] Family Law Act 1975 (Cth) s 61DA.
[45] Family Law Act 1975 (Cth) s 61DA(4).
[46] Cox & Pedrana (2013) FLC 93-537 at [19]; Family Law Act 1975 (Cth) ss 60CA and 65AA.
Given the father’s admission that he spat on the mother whilst inebriated at a wedding many years before their 2012 separation, it may well be that the presumption does not apply. Even if it did, I am easily persuaded that it is not in these children’s best interests for there to be an order that their parents have equal shared parental responsibility for major long-term issues about them. This is because, if there is an order that the children’s parents are to share parental responsibility for them and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to them, such order requires the decision to be made jointly by the parents[47] and that each party consult the other in relation to the decision to be made about that issue and make a genuine effort to come to a joint decision about it.[48]
[47] Family Law Act 1975 (Cth) s 65DAC(2).
[48] Family Law Act 1975 (Cth) s 65DAC(3).
Nothing in the evidence persuades me that these parents can make joint decisions or realistically consult each other or make a genuine effort to come to a joint decision.
Further consideration of whether it is in the children’s best interests to be required to engage in counselling for the purpose of attempting to reunify them with their father
Given my conclusions about the father’s behaviour, I think it more likely than not that a requirement for the children to engage in a process designed to reintroduce them to their father and have them spend time with him could well be, as Mr D opined, re-traumatising for them. Further, given that a requirement to engage in counselling for the purpose of
re-establishing a relationship with their father is something that is not in accordance with the children’s wishes or views, it is, I think, much more likely than not that they would reject this process.
Given my conclusions about the father’s behaviour, I am not persuaded that it is possible to conclude that the views and beliefs about their father that the children have expressed are “false” and require correction for their best interests to be met.
Mr D’s evidence, in essence, included that, if an order for the children to participate in counselling was made and the mother complied with it, but without “enthusiasm” (a word which I consider to understate significantly the likely approach by the mother to being required to facilitate the children’s attendance at counselling), it would “possibly” impact on the likely efficacy of the counselling. I think this is an overly-optimistic conclusion. I consider it much more likely than not that any therapeutic process that is not completely and unreservedly supported by the mother is almost certain to fail. Whilst Mr D (again,
overly-optimistically in my view) said that the mother might be “encouraged” if the children’s reaction to counselling was positive, I think it highly unlikely that their reaction will be positive, given the strength which they hold their negative views about their father.
Further, Mr D’s evidence was to the effect that, if (as I accept has been the case – albeit in the most concentrated manner in the first half of 2018) Y has participated in counselling designed to assist victims of sexual abuse, then it would possibly be, or could be, confusing for her to be required to engage in therapy designed to disavow her of the belief that she had been harmed by her father. I accept this: whilst there is no evidence before me about the exact content of Y’s counselling following her diagnosis with Medical Condition E, I think it much more likely than not that such counselling would have proceeded on the basis that her father was the cause of her contracting this infection. I think it highly likely that being required to participate in counselling which challenged that view would be significantly confusing for her – particularly at her age.
I accept that, had it otherwise been thought to be in the children’s best interests to be afforded the opportunity to resume a relationship with their father, the process of counselling proposed by the father and the Independent Children’s Lawyer would likely have been the least intrusive and most cautious approach to them resuming a relationship with him – because it would, theoretically at least, afford them the opportunity to discuss their concerns with the therapist and plan how, if they could be persuaded to do so, any interaction with him could occur.
However, I am unpersuaded that it is in the children’s best interests to be required to undertake such a process because I consider that, whatever possible benefits might flow to them from the opportunity, with therapeutic support, to see whether they wish to resume a relationship of some sort with their father are much more likely than not to be outweighed by the highly likely and significant disruption to their current stability and to the quality of the parenting to be provided to them in the future by their mother, their sole parental support since January 2018.
If the mother considers it is appropriate and/or beneficial for the children in the future to have the opportunity – for whatever reason – to communicate or interact with the father, the orders to be made will permit that to occur.
For the reasons expressed, I consider that the orders set out at the commencement of these Reasons are the orders which, in the reality of the children’s circumstances, as established by the evidence before me and as adverted to above, are now in their best interests.
I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 25 February 2022
[41] Family Law Act 1975 (Cth) ss 60CC(3)(b), (c), (ca), (f), (i) and (m).
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