Regent and Driscoll

FAMILY COURT OF AUSTRALIA

REGENT & DRISCOLL

[2009] FamCA 14

FAMILY LAW – CHILDREN – Sole parental responsibility to mother but with consultation of father – Orders for no face to face time – Orders for no oral communication – Spend time with orders – Unacceptable risk of psychological or emotional harm – Child resistant to seeing father – Findings of no sexual abuse

Family Law Act 1975 (Cth)
Family Law Reform Act 1995 (Cth)

Neil v Knott (1994) 68 ALJR 509
Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218
CDJ & VAJ (1998) 197 CLR 172
U v U (2002) 211 CLR 238
M v M (1988) 166 CLR 69
Mazorski v Albright [2007] FamCA 520
Rossi and Rossi [1980] FLC 90-839
AIF v AMS (1999) 199 CLR 160

APPLICANT:

Mr Regent

RESPONDENT:

Ms Driscoll

INDEPENDENT CHILDREN’S LAWYER:

Mr Tester

FILE NUMBER:

BRC

10843

2007

DATE DELIVERED:

9 January 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

02-05 June &
01-02 December 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr P. Smart of Counsel 2-5 June
The Applicant Father in person 1-2 December

COUNSEL FOR THE RESPONDENT:

Mr Burridge

SOLICITOR FOR THE RESPONDENT:

McVittie Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Tester

Orders

Parental Responsibility

IT IS THIS DAY ORDERED in respect of the child … born … August 2002, THAT:

The mother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that the mother shall, prior to making the sole ultimate decision about any such issue:
(a)Use her best endeavours to advise the father in writing of the decision intended to be made;
(b) Seek the father’s written response in relation thereto;
(c)Consider, by reference to the best interests of the child, any such response prior to making any such decision;
(d)Advise the father in writing as soon as reasonably practicable of her ultimate decision.
The parties shall each do all such things, sign all such documents and each pay any charges or fees as are reasonably necessary to:
(a) Keep the other informed of their current residential address;
(b)Keep the other informed of each and all doctors, health professionals, educational institutions, counsellors, therapists and extra-curricular activities which the child attends or undertakes as the case may be;
(c)Immediately advise the other in the event that the child sustains any serious injury or suffers any serious illness;
(d)Authorise any person, institution or body referred to in the previous sub-paragraph to provide to the other parent any and all such information in respect of the treatment of the child, or her activities as the case may be, as the other parent might reasonably require;
(e)Have the child’s school/s provide to the other parent a copy of the child’s report cards, together with any other written report issued by the school in respect of the child;
(f)Authorise any school or educational institution, teacher, tutor or other educational professional to provide to the other parent any and all such information in respect of the progress of the child, including, but not limited to, her social, sporting and extra-curricular activities as the other parent might reasonably require.
In order to give better effect to each of the above Orders, a copy of these orders and the reasons for judgment be approved for publication to each of the persons or institutions referred to in sub-paragraph (b) of the previous order but the publication of no other “account of the proceedings” within the meaning of s 121 of the Act is approved.
The Independent Children’s Lawyer shall request from the mother or father, as the case may be, a list of such persons or institutions and each party shall forthwith comply with any such request and thereafter, the Independent Children’s Lawyer shall provide each such person or institution with these orders and the reasons.
As and from the date of discharge of the appointment of the Independent Children’s Lawyer in accordance with these orders each of the parties shall do all such things as are necessary to give effect to Order (3) from time to time.

Live With and Time

The child shall live with the mother.
The child shall spend no face to face time with the father.

Communicate

The father shall be at liberty to communicate with the child at all such times as he might choose by letter or card sent via Australia Post and to forward gifts to the child for her birthday, Christmas, or other special occasions of his choosing, with such gift to be forwarded by pre-paid post.
The father shall not otherwise communicate with the child.

The Independent Children’s Lawyer

The Independent Children’s Lawyer is discharged as and from compliance with Order (4), or on 28 February 2009, whichever is the sooner.

IT IS FURTHER ORDERED:

Pursuant to Rule 17.01 of the Family Law Rules 2004, these orders shall take effect:
(a)For the purposes of Rule 22.03(1) (relating to the commencement of the appeal period) from 16 January 2009;
(b)Otherwise, from 9 January 2009.

IT IS NOTED that publication of this judgment under the pseudonym Regent & Driscoll is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10843 of 2007

MR REGENT

Applicant

And

MS DRISCOLL

Respondent

REASONS FOR JUDGMENT

The parties’ child, who is just six, having been born in August 2002, strongly resists spending time with, or communicating with, her father. So much is this so, that it is submitted in these parenting proceedings – by both the mother and the Independent Children’s Lawyer – that to order her to do so is to expose her to an unacceptable risk of psychological or emotional harm.
This was not always the case. After a brief initial relationship between her parents, and a brief resumption in that relationship prior to final separation, a consensual arrangement had evolved. From about the time that the mother and the child moved to a small town in Northern New South Wales in April 2005, the child was seeing her father every Saturday night.
Initially, according to the mother, this time was marked by the necessity for the child to return home – a circumstance not surprising, it seems to me, given her age and the fact that she and the mother had moved residences.
In September 2005, the child stayed with her father for a whole weekend whilst the mother attended a local music festival. Shortly thereafter, the child continued seeing her father every Saturday night, but, from about this time onward, until contact with her father ceased in about October 2006, it was not necessary for the child to return to her mother early.
The child has spent but two hours with her father in the approximate two years since time with him stopped. That time was a visit at a contact centre in April 2007.
The catalyst, or, perhaps, one of the catalysts, for this dramatic change and the current situation, is a belief by the mother that the child has been subjected to sexual abuse by the father.
The genesis of that belief is probably not capable of precise definition, but it appears that, at the earliest, the belief arose in about October 2006 from therapy by, and opinions expressed by, a counsellor, Ms B to whom the child was referred by a GP and, shortly thereafter, contact with representatives of the Department of Community Services.
The mother alleges that, currently, the child is implacably opposed to seeing her father, has expressed hatred of her father, and, despite what she alleges is her best efforts, the child cannot be convinced to see or speak to her father, whether at a contact centre, or otherwise.
The mother asserts that she currently has (an apparently unshakeable) belief, that the father has engaged in sexually improper acts towards the child and that she continues to be at risk of harm from him.
Whilst that is her belief, the case presented on her behalf eschewed the need for the court to make findings either as to the occurrence or otherwise of sexual abuse or whether the child was at an unacceptable risk of harm from any such cause. In that respect, her position accorded with that contended for by the Independent Children’s Lawyer.
The father denies any and all impropriety of any type. He effectively suggests that the mother has, in effect, projected onto the child her feelings of repugnance toward him and projected on to the child her implacable opposition to the father spending time with the child.
The father asserts that he has only ever been a loving father to the child and says, poignantly, “I want to emphasise that this is a big mistake and I want you to help [the child] to get to know her father in a normal way again”.

The Two-Year Time Frame

It is necessary in this case to say something of the somewhat circuitous path by which this matter comes to be finally determined before this court in November 2008.
The matter was designated as a Magellan matter on 25 April 2008. However, it has a much lengthier history than that date suggests.
The matter was first designated as a Magellan matter on 4 September 2007, having been transferred from the Federal Magistrates Court. On 8 November 2007 it was determined that the matter was no longer a Magellan matter. It is, with respect, not clear to me, on the basis of the evidence and information before me, why that decision was made.
In any event, and consequent upon that decision, the matter was transferred back to the Federal Magistrates Court. The matter was identified – correctly, as it seems to me, with respect – as fulfilling the criteria for inclusion in this court’s Magellan programme, and, as a result, as a matter which ought be heard by this court. On 25 April 2008, the matter was then transferred to this court.
In my respectful view, the transfer back and forth between the two courts is highly regrettable. It means that the matter has, as a result, fallen well outside of the time frame projected for such matters. Such a timeframe is, in turn, based upon the court’s best efforts to ensure that allegations of this type are dealt with as expeditiously as possible.
Not the least of the reasons why this is so, is that the very nature of the allegations and the inability of the court to make findings ahead of a trial, often results in significantly curtailed time between a parent and a child which such curtailment in time, takes place, very frequently, within a highly-charged and volatile co-parenting situation.
That situation can create, or exacerbate, a number of significant issues for children – particularly young children.
In this particular case, whilst this matter has been within the court’s system, allegations have been left unresolved and a child has not properly spent time with a parent for over two years without any findings having been made which might (or might not) provide a basis for orders of that type.
That situation serves no-one’s interests – least of all the child’s.
Ultimately, this matter proceeded before this Court at the Lismore Registry for three days in June. During the course of that part of the hearing, it became increasingly apparent that a central concern for the court was whether or not time for the child (whether supervised or not) could, as a matter of reality, be carried into effect, even if appropriate findings were made that such a result was in her best interests.
By reference to the Court’s obligations (see eg, in particular, ss 69ZN and 69ZQ) orders were made which were designed to facilitate the child seeing specialist services offered through Inter-Relate that had as their focus, or one of their foci, the sort of difficulty confronting the child in this case.
Some five months later, when the matter resumed before me in Brisbane, I was informed by the ICL that Inter-Relate wished, consistent with their policy in that respect, to not provide a formal, written report of what had occurred during that process. I determined to respect the wishes of that organisation and its programs and permitted the ICL, Mr Tester, to appraise the Court of those matters from the bar table (as to which see, eg ss 69ZN(7); 69ZT). Neither party objected to that course.
The parents undertook an assessment with Inter-Relate and completed the “Building Connections” course. The child was seen by a counsellor there, Ms D. Shortly prior to the resumption of the hearing, in November, 2008, a meeting occurred between Ms D and the manger of Inter-Relate.
It was determined that, after four sessions with the child, no further sessions would be helpful and, indeed, that any further consultations would be risking “systems abuse” [my expression, not theirs]. In a similar vein, the ICL informed the court that Ms D had considered a referral to another agency or specialist, but, again, it was determined that the child had spoken to many people and that further referral was not justifiably in her best interests.

Issues, Proposals and Considerations

A decision about the child’s best interests occurs, then, against a background where the parties’ proposals, and a determination of the issues underpinning them, are stark and clearly defined.
Each of the issues, defined by the assertions and proposals of each of the parties, readily finds reflection in the statutory considerations which the Family Law Act 1975 (Cth) (“the Act”) mandates the court must take into account when arriving at a decision about the child’s best interests.

Proposals

The proposals of the ICL are contained in a minute of order which, for ease of identification was marked as Exhibit A. In essence, the ICL contends that there should be no order for face to face time or telephone communication between the child and her father. It is proposed that the father be at liberty to communicate by cards and letters and to receive information about the child from the mother.
The mother contends for a proposal in almost identical terms, but seeks to make it clear that any such communication should be by mail.
If those orders are acceded to, the child will neither see her father or hear his voice until such time as she decides – if indeed she ever decides – to make contact with her father when she is at an age and maturity to give effect to any such decision.
Effecting that prior to her being many years older than she is now will depend upon (presumably) the co-operation of the mother. For reasons which will emerge, I think it extremely unlikely that the mother will do anything to facilitate such contact (although I make it clear that this precise proposition was never put to her directly).
The proposals in Exhibit A contain no orders in relation to parental responsibility. I pressed the ICL for submissions in respect of same. Ultimately, it was submitted that there should be an order that the mother have sole parental responsibility. The mother, implicitly, also seeks such an order.
The father was represented by Counsel and solicitors at the hearing in Lismore. At the resumed hearing, he represented himself. I am mindful that self representation can create difficulties or disadvantages for a party. I consider it did so for the father.
I have sought to be particularly careful to bear this factor in mind (I have in mind, for example, what the High Court said in Neil v Knott (1994) 68 ALJR 509). Of course, self representation can also bring with it the opportunity for a trial court to see and hear things (albeit in the “artificial setting” of the courtroom) that otherwise might be shrouded in legal representation (see, for example, the comments by Justice Wilson (UK) in his 2002 Atkin Lecture “The Misnomer of Family Law”).
On the one hand, opening comments and ultimate submissions made by the father appear to indicate an acceptance that there is a profound practical difficulty in having the child start or follow, let alone embrace, any orders (of whatever type or duration) for her to spend time with him.
The father “opened” his case at the resumed hearing by telling me that he sought an order that the child be assessed, and receive treatment or therapy from, an expert psychiatrist experienced in problems of this type. The father did not specify any particular psychiatrist leaving it to “the Court’s expertise in these matters” and to a potential referral from a doctor.
At the end of the hearing, the father sought an order (albeit not articulated with precision) for “50/50” which I took to be an equal shared living arrangement.
I consider, though, that, in truth, the father was at a loss to know what to suggest so as to address what, I consider, he saw as the central purpose of the proceedings which was to re-establish a “normal” relationship with his daughter. I will, nevertheless, consider his proposals in the broad terms outlined by him.

Best Interests – Issues and Considerations

The Act mandates the consideration of specified matters in ascertaining best interests, and, upon the application of the presumption of equal shared parental responsibility, mandates consideration of specified periods of time.
But, as the Act reminds the Court more than once (eg ss 60CA; 65AA), findings as to best interests are at the heart of the decision and the task is to arrive at orders which best promote the best interests of this particular child in her particular circumstances.
That findings as to best interests lie at the heart of every parenting decision is reinforced by the Act providing that those findings are the servant of many masters within the Act, including matters that can be seen as central to Part VII.
Indeed, a central component of the Part – the statutory presumption of equal shared parental responsibility – is, ultimately, governed (in part) by an exception based on findings as to best interests.
So, too, the mandatory consideration of specified periods of time can be seen to be subject to an ultimate consideration of best interests (see the coda to each of the sub-sections of s 65DAA).
Ultimate findings about best interests specific to the case before the court rest on a fact-finding or value-finding exercise performed within a mandatory statutory framework. In particular, the Act prescribes the means by which best interests are to be determined; the heading to s 60CC is “How a court determines what is in a child’s best interests”.
Clearly enough, that section, together with complementary provisions of the Act, including the Part’s Objects and Principles, are each central to the court’s role and the orders made by it.
It is, in my view, important to bear in mind that the Act’s mandatory considerations (s 60CC) are, like their predecessor (s 68F(2)), not objective standards (see, eg Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 at 270-2).
The s 60CC considerations are signposts or touchstones within which the broad enquiry as to best interests must be conducted. That the enquiry remains a broad one is evident from the section itself (s 60CC(3)(m)).
Furthermore, ascertaining best interests by reference to those mandatory signposts, and that broad enquiry, must embrace the fact that: “[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require … [b]est interests are values, not facts” (CDJ & VAJ (1998) 197 CLR 172 at 219).
In my view, then, it is necessary to commence the application of the process required by the Act by examining, and making findings about, the issues specific to the best interests of the child arising from the proposals for her care put forward by the parties (or, subject to procedural fairness, any alternative proposal which the court considers better meets her best interests – see U v U (2002) 211 CLR 238). Those findings can, then, be used to inform the statutory requirements.

Here, the issues relevant to the parties’ contentions and proposals readily find clear reflection in the mandatory considerations – whether “Primary” or “Additional” – by which the court is to determine the child’s best interests.
The mother asserts that the child is at risk of serious harm – principally, in terms of the findings sought, emotional or psychological harm. Clearly enough, that brings into question a significant primary consideration (ss 60CC(2)(b); 60B(1)b)).
Equally clearly, given that the father asserts that the child is at risk of no such harm, the benefit to the child of having a meaningful relationship with each of her parents (and, in particular, him) is also clearly a matter of primary concern in these proceedings (ss 60CC(2)(a); 60B(1)(a); 60B(2)(a); (b)).
The asserted implacable opposition by the child to spending time with her father calls into question not only the primary consideration just referred to, but also the nature of the relationship that the child has with her father and the willingness and ability of the mother to facilitate and encourage a close and continuing relationship between the child and the father (s 60CC(3)(b) and (c)).
If the child was to commence living with her father, or seeing him on a regular basis, that would represent a very significant change in her circumstances both from those which have occurred effectively since birth in the former case and, in the latter case, a change to that which has occurred in the last two years (s 60CC(3)(d)).
To the extent that a finding is made that the child simply cannot be reasonably encouraged into spending time with her father, then doing so presents practical difficulties (not to mention emotional difficulties) for both the mother and the child in giving effect to any such order (s 60CC(3)(e)).
Moreover, if a finding is made that significant coercion is needed in order to have the child spend time with her father, or indeed, communicate orally with him, then an issue arises as to the benefit for the child of a relationship that would impose upon her in that way (s 60CC(2)(a)).
In circumstances where the father asserts that he has never behaved in any inappropriate way towards the child, but where he is confronted with evidence of an apparent attitude by her expressed verbally as her hating him, and expressed physically by her being unable to be encouraged sufficiently to see him, it is hardly surprising that assertions are made by him that the child is being convinced to think that way about him, primarily through her mother. Obviously enough this raises an issue about the attitude to the child and the responsibilities of parenthood exhibited by the mother (s 60CC(3)(i)).
That consideration also falls to be considered in the light of evidence from Ms S, Family Consultant, who produced a report dated 18 July 2007, in which an interaction was attempted between the child and her father. Ms S records the child making comments such as “I’m not going to do anything” and “just play with my toys”.
Ms S comments that “the child rejected all of her father’s demands to play with him and as she played separately he stated that he would similarly play separately and continued to build a game of mousetrap quite angrily”. Ms S went on to say:
“4.The father continually repeated “you will come and see me” over and over in response to the child stating that she would not. I note that the mother had previously stated that [the child] resisted a second visit at the contact centre, fearing she would have to go to her father’s house. The contact centre staff affirmed to the mother that the father had made such comments but they were “future orientated”. Several times the father stated “it’s going to take some time to undo the damage done to you [the child]”. The father’s attitude in the face of the child’s rejection was one of anger and criticism.” [emphasis in original]
The father denies that he said to the child “you will come”. Ms S was not cross-examined. Whether those precise words were or were not used is, in my view, less important as an issue than the tenor and insightfulness of the father’s reactions.
At that time he had seen the child once in about nine months. Orders had been made for him to do so at a contact centre. The evidence (which I will return to in more detail below) is that the session in April at the contact centre had gone well. It could hardly be doubted that the father was exasperated at his inability to see the child – exasperation he clearly expressed during the hearing before me.
I think it highly likely that his exasperation was expressed during the session with the child and Ms S in a manner similar to that asserted by Ms S. Whilst some allowance ought to, in my view, be made for the spilling over into words of that frustration or exasperation, the child was not quite 5 years old at the time and greater insight into her needs and sensitivity ought, in my view, have been exhibited.

Unacceptable Risk – Sexual harm

I reiterate that neither the mother nor the ICL contends for a finding either that sexual abuse has occurred or that the child is at an unacceptable risk of sexual harm from the father.
I took the father, however, to seek a finding that sexual abuse did not occur and that he does not pose an unacceptable risk of sexual harm to the child.
Part of the difficulty confronting the court is that, by reason of the child’s extreme aversion to seeing or speaking with her father, as reliably reported by a number of sources, the trial very much had as its focus – what was ultimately submitted by both the ICL and the mother to be of greater immediate concern to the court – the potential for an unacceptable risk of psychological or emotional harm to the child resulting from effectively being coerced against her will into contact with her father.
Nevertheless, the husband essentially contends for findings as indicated and, in the long term best interests of the child, I consider it appropriate that I make findings on that issue and that the evidence allow those findings to be made.
“Unacceptable risk” is, of course, an expression (sometimes said to be a test) which, in this jurisdiction, has been used where allegations of sexual abuse are made in respect of a child (M v M (1988) 166 CLR 69).
In light of the child’s current expressed attitudes, the acute issue this presents and the father’s desire for specific findings, it is important to record part of what the High Court there said (at 76):
“Viewed in this setting, the resolution of an allegation of sexual abuse against a person as subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoinded to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…”
Further, in the passage just quoted, the High Court, prior to the passing of the Family Law Reform Act 1995 (Cth), pointed out that:-
“In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents.”
That is, it seems to me, all the more so now consequent upon the passing of the Reform Act introducing what is now Part VII of the Family Law Act.
Now, just as when M v M was decided, an allegation of potential risk of harm ought not divert the court from the central task of assessing the best interests of the child, in which, of course, an assessment of the risk of harm is a “primary consideration”.
That the inquiry in the current legislative context remains a broad one with an ultimate focus on best interests is clear from a number of sections within Part VII, for example, s 65CA and s 60CC(3)(m).

The Mother’s Evidence

There is no dispute on the evidence that, when a young baby, the child needed surgical treatment for an imperforate anus. The mother told Ms B (Exhibit ICL4) that it was repaired at nine months and the child had a colostomy bag when nine months old.
There is also no dispute on the evidence that the mother had presented the child to the doctor who had been her usual treating general practitioner since 2003 in respect of concerns relating to vulval irritations and the like. The doctor prepared for the mother a list of those consultations which is contained in Exhibit F1:
“23/6/04        MSU MC/s – normal
24/6/04         note in [history] re needing urine test
4/1/05           vulval complaint
18/5/06         stingy “wees”
dipstick urine – normal
23/5/06         persistent painful urination
referral for renal u/s – normal
21/9/06         MSU M/C/S – normal
vaginal swab M/C/S – normal
Chlamydia swab – normal”
The affidavit of the mother refers to a number of matters prior to October 2006 that can, in my view, have only been included in that affidavit as a pointer to what might be broadly described as concerns about the father’s sexual proclivities. Included, for example, are allegations of the father taking improper photographs of underage girls.
So, too, there are allegations of drug-taking and, for example, a self-serving paragraph where the mother deposes to saying to the father (in about July 2005) “please don’t come over here hungover or stoned. Put clean clothes on and arrive looking clean and fresh for [the child]. If you are going to be late, please ring and let me know”. She alleges that, on one occasion, he responded: “I can do whatever I fucken’ want and when I fucken’ want”.
Yet, it is a significant fact that, during the time frame encompassing these allegations, the mother continued to permit the child to spend overnight time with the father. She does not allege this was as a result of any threat or undue coercion. Equally significant, those occasions included, as earlier mentioned, two weekends (one of which occurred approximately three months after the conversation just referred to) and the other in March 2006, during which, respectively, the mother attended a music festival and went camping.
In September 2006, a month prior to time with the father ceasing altogether, and after the doctor’s appointments earlier referred to, the mother placed the child into the care of the father for nine days when she went to Fraser Island.
I have no hesitation in finding that the mother is an appropriate loving mother who would seek to properly and appropriately meet all of the child’s day to day needs. I find it inconceivable that the mother would permit the child to stay with the father at all, let alone for weekends and for nine days, if, in respect of the latter, in September 2006, she had any concerns that he presented a sexual danger – or, indeed, an emotional or psychological danger – to the child.
Such “disclosures” by the child as the mother deposes to occurred after she had seen Ms B and the Department of Child Safety. It seems that each, and certainly Ms B, had formed a firm view by October 2006 that the child had been sexually abused by the father. Those “disclosures” also occurred after a conversation between the mother and the father’s mother. The evidence of Ms B and the grandmother will be addressed below.
By the time there are, what might be described as, “disclosures” by the child, it seems highly likely that the mother was convinced – primarily, as I find, resulting from input from Ms B and the Department – that the child had been sexually abused by her father.
Although the mother was a little vague in pinpointing the start of her belief to that effect, she effectively conceded that it was probably after the first occasion on which Ms B saw the child in October 2006. That appears consistent with the mother’s actions in and about time that the child ought spend with the father.
An example of a “disclosure” occurring after this time is given by the mother at paragraph 83 of her affidavit. There, a conversation is deposed to occurring on 19 December 2006, in which the child says she doesn’t like her father because he “smacks me all the time, really hard”. The conversation deposed to continues:
“What would you say after he smacked you?
[The child] replied:
“I would go to my room and shut the door and he would try to push it open”
I then said:
“[Child] is that why fanny used to get sore?”
[The child] replied words to the effect:
“Yes, because fanny is friends with bottom”
A conversation occurring on 18 February 2007 between mother and child is deposed to at paragraph 91 of the mother’s affidavit. Included within it is this exchange:
“Mum, why are boys mean to me?”
I replied:
“What boys are mean to you, at school?”
[The child] said:
“No, why is daddy mean to me?”
I replied:
“I don’t know [child], I didn’t know he was mean to you until now. Maybe if there is another time anyone is ever mean to you or hurts you or makes you feel yucky inside, tell mummy straight away so we can fix it”
[The child] then said:
“How can you fix it, are you going to hit him and kill him and make him die?”
I then said:
“Well, we’ll talk about it”.
[The child] then said:
“I hate my dad, mummy. Do you hate dad, mummy?”
I responded
“Why do you hate your dad?”
[The child] replied:
“Because he hurts me, and he’s mean to me. Do you hate my dad mum?”
I said words to the effect:
“Well, [Child], sometimes people are mean and can hurt us, even sometimes nice people or people we love can hurt us. It is not right to be mean or hurtful and it’s not your fault if people are like this to you. They need help to treat people nicely. I don’t like daddy being mean to you or hitting you or hurting you. It’s wrong. Don’t worry about anything [Child], I love you very much, let’s go to sleep now.
The mother deposes to an incident occurring while she and the child were at Byron Bay. Again, the mother records a conversation with the child. Some of those words are preceded by the mother deposing to them being “words to the effect” while other parts of the conversation are in quotes with no such preface.
There is no doubt in my mind that, by the time of this conversation (on 27 February 2007) she believed that the child had been sexually abused at the hands of her father. While she and the child were playing, with the mother burying the child in the sand, a conversation proceeds as follows:
“Mum, don’t push in there, that’s my fanny”
I replied:
“Oh, sorry [Child], ok”
[The child] then lifted a hard caked wedge of sand from this area and said words to the effect:
“See, mum, this is my fanny”
I responded:
“Oh right, that looks like sand to me”
[The child] poked the sand with her finger and said:
“See, I’m poking it” and then continued “No, this is daddy’s doodle and I’m poking it in the sand”
I responded:
“What?What are you doing that for?”
[The child] replied:
“Because daddy puts his doodle in the sand”
I then said:
“What do you mean? Have you seen him put his doodle in the sand?”
[The child] answered:
“No”
I then said:
“Then why did you say that”
[The child] then replied:
“He puts his doodle in the toilet paper and puts the toilet paper in the sand, pokes the toilet paper in the sand”
I said words to the effect:
“He does that? May (sic?) you mean when you go to the beach with daddy and you go to the toilet he buries your toilet paper in the sand?”
[The child] responded:
“No, he wipes his doodle and then buries it in the sand”
A few minutes later [the child] said:
“My dad does funny tricks with marbles mum”
I responded:
“Does he?”
[The child] replied:
“Yeah, he pretends to pull them out from behind my ear, is that magic mum?”
I replied
“Oh really”
I attach little weight to the evidence just described as being indicative of abuse or risk of abuse. Part of the difficulty I have in attaching weight to the evidence flows from the fact that it is being reported by someone who has an implacable belief that abuse has occurred and that there is no other evidence as to the conversation, including, in particular, any earlier or subsequent context to any conversations.
The conversations not only occur with – and, more importantly, are relayed to the court by – a person with that belief system but also occur after the interviews with Ms B and the Department who in turn share – and communicate – that belief system to the mother.
I do not accept that any mother – and certainly not this mother – who has had communicated to her such a belief from professionals into whose care their child has been entrusted, would not be, as it were, “on the lookout” for behavioural signs or things that a child says that might underscore that assessment. I think that is what has occurred here.
Further the mother’s affidavit is redolent of seemingly disparate incidents and matters, all occurring at a time when the child was seeing her father regularly, that are now given improper overtones. For example, a number of paragraphs are devoted to the father taking photos of young women and it is alleged that he took a photograph of a pre-pubescent girl in sexually provocative poses. This is said to have occurred well prior to the child’s time with the father ceasing.
So, too, the mother, in a self-serving paragraph says that she said to the father (apparently, according to the paragraph, on more than one occasion, and on one occasion at least, about three months before she left the child with him for the weekend): “Please don’t come over here hungover or stoned. Put clean clothes on and arrive looking clean and fresh for [the child] …”. Allowing a child to go with a parent who is “stoned” would not in my view be consistent with exercising appropriate parental responsibility and I find it hard to believe that the mother would have done so.
A particular example of behaviour by the child that attracted significant attention in the evidence was evidence of the child tucking her underpants into her vagina. This is deposed to at paragraphs 96 to 104 of the mother’s affidavit. She says that “[the child] developed a habit of tucking her underpants right up into her vagina. This started in 2006 and continued throughout 2007” and was “…putting her hands down her pants at various times during the day”.
Of itself, this is, as it seems to me, indicative of nothing other than a child, for some reason, tucking her underpants into her vagina. It is, of course, possible to speculate as to the cause of that behaviour. Is it a sign that she has been sexually abused? Is either such behaviour occurring because she was suffering from vaginal irritations? Does either such behaviour have anything to do with her medical problems as a baby? Is it a sign of anxiety? Is it simply masturbatory behaviour?
The mother, though, attaches causative significance to the fact that “the behaviour was worse following her visits with [the father] and gradually ceasing as she no longer spent time with [the father]”. Even if that is accepted as true (as distinct from the mother’s hindsight perception affected by her beliefs about the father), it is not, in my view, evidence of anything causative: it is evidence that the behaviour was more or less prevalent at particular times.
I see it as no more or less indicative of sexual misbehaviour as a speculative cause than the possibility of a child’s anxiety about her mother hating her father as a speculative cause. As to the latter, the mother’s evidence reveals the child asking her twice if she hated her father and her mother twice not answering the question.
The mother’s affidavit and her oral evidence, as I find it, has taken a number of what are, in truth, disparate events capable of many meanings and interpretations and, in an account – given in hindsight – drawn them together and, in effect, asserted they present a coherent and cogent picture of abuse and/or risk.
I have, though, some concerns about attaching veracity to the mother’s account as a pointer to risk in addition to those emanating from the factors just mentioned.

I specifically asked the mother about instances where the child had said that she (the child) hated her father. The mother said in oral evidence that when the child had said “I hate my fanny” she would also say “I hate my father”.
It was pointed out to the mother this was not in her affidavit. It was also, pointed out that this appeared unusual as such evidence appeared (using the mother’s causative perceptions) to present an important potential link between the child’s distress with her genitals and the father. The mother’s reason for not putting any such statements in her affidavit was “if I included everything in the affidavit it would be 2000 pages”.
I am not convinced that was the reason. I strongly suspect this is something recently arrived at by the mother to fit the picture of abuse otherwise (earlier) arrived at by her.
Having in the witness box detailed the concerns that led her to a conclusion the child had been sexually abused, it was pointed out that the concerns expressed did not directly raise disclosures of a sexual nature. The mother agreed but said “as time has gone on I believe that she was trying to tell me something”. The mother said that she felt the child’s behaviours, such as sticking her fingers into her underpants and genitals were the child’s way of getting the message across about the father.
I think this is important evidence. It seems to me to be a clear pointer to the view I have otherwise arrived at about the mother’s evidence, namely that she has, in effect, joined a number of dots – in hindsight – to form what, in essence, she contends is a coherent and cogent picture of sexual harm at the hands of the father.
Her evidence, including the matters just referred to, presents no such coherent or cogent picture to me.
Saying that is not necessarily to criticise the mother: If a picture is presented to a parent, particularly by professionals to whom a child has been entrusted – it is difficult to criticise a parent for acting upon, and continuing to act upon, the opinion thus presented and the beliefs such an opinion engenders.
In that respect, the evidence of Ms B and the paternal grandmother is important; each was, it seems clear to me on the evidence, a significant reason for the mother forming a belief about sexual abuse.
So, too, it is, in my view, very important to appreciate that the mother’s account of what the paternal grandmother had allegedly said to her about the father’s behaviours, was a piece of collateral data informing Ms B’s first interview with the child.
First, though, it is necessary to refer to the evidence of the child’s general practitioner who provided the referral to Ms B.

The Evidence of Dr A

In response to complaints of vaginal irritation and vulval infections the mother took the child to see Dr A.
A letter from Dr A became Exhibit F1. It was written on 17 January 2007. Dr A was not cross-examined.
Dr A indicates that he has been the child’s general practitioner since about 2003. Since that time she has presented to the clinic on about 30 occasions and Dr A has seen her on about 20 of those occasions. The doctor refers specifically to a consultation in May 2006 where he noted the mother’s report of the child suffering from “recurrent vaginal and vulval infections …”.
Dr A says of the parents (he was familiar with both as patients):
“[The child] has been brought in by either or both parents through this time. They have both impressed me with their care and concern for her health. As sometimes happens where parents are separated, they are perhaps more likely to bring her in for more minor ailments to make sure everything is alright.
[The child] has always appeared equally at ease and with a good bond to both parents and although shy, she appears a normal child.
I have also been impressed with [the mother] and [the father] being able to communicate well and in a friendly manner around [the child], as I am aware that their relationship was not always harmonious.”
In respect of the specific matter under consideration, the doctor writes:
“… in September, 2006 [the mother] brought [the child] to see me with a concern that she appeared to have a preoccupation with playing with her vagina, especially when upset or anxious. She didn’t have any other symptoms and denied putting anything in her vagina and said no one else had touched or put anything there.”
It will be noted that the last sentence indicates a denial by the child that anyone had touched or put anything (presumably on or in) her vagina. The note does not make clear whether the doctor is speaking of a statement to that effect by the mother or the child (or, perhaps, both).
But, crucially in respect of the first medical (or, it seems, any other professional) intervention, there is an indication that no untoward touching or insertions have occurred to the child by anyone.
Significantly, as it seems to me, the following factors also attend his evidence: the father is known to the doctor; he had had the opportunity to observe him with the child; he had not been “coloured” by information from any other source and the child’s statement appears on its face spontaneous.
Examination by the doctor was normal as were swabs and urine tests. Significantly, as it seems to me, the doctor records:
“[the mother] asked me whether this behaviour could indicate the possibility of sexual molestation, specifically by her father.
My feeling at the time was that this was very unlikely but needed to be explored to ensure [the child’s] safety and an alternative explanation found, if present.
My feeling was that it was not abnormal for children to touch or hold there (sic) genitals at times, and that perhaps [the child] was more inclined to when under some stress because of the influence of her past surgery in that region.”
Dr A appears, in the last paragraph just quoted, to have had regard to three matters – each in my view important – not otherwise apparent as having been considered as part of any analysis by any other person, including, specifically Ms B.
Dr A referred the child and the mother to Ms B, who is a counsellor. The medical centre records (Exhibit F1) show Dr A noting (on 15 October 2006) a conversation with Ms B. The doctor records that Ms B “indicated she had significant concerns of the possibility of CSA [Child Sexual Abuse] despite no disclosure by [the child]”.
Ms B’s evidence will be addressed shortly. It is to be noted, however, that, at the second professional intervention with the child – and the first having sexual abuse as its focus – there was, again, no “disclosure” by the child.
It appears that, as a result of that conversation between Dr A and Ms B, the child was referred to Dr W who was a paediatrician.

Evidence of Dr W

Dr W is a deponent in the mother’s case. She too was not cross-examined.
Dr W examined the child on 20 February 2007. She records that she was “asked to see [the child]…by both [Ms B], social worker and [the mother’s solicitor]”. Dr W concludes,
“I spent approximately 15 minutes drawing and talking with [the child]. She told me quite openly she did not want to go to her dad’s place. I asked her why and she stated that he smacks her.
I asked “where did he smack you?”,
“On my bottom”.
I asked “where your undies on or off when he smacked you?”
“On”.
I asked her if he “smacked anywhere else?”
She said “no”.
I asked her about her sore bottom and why it was better now. She stated “because she was not at daddy’s”.
I asked her why did it get sore when she would visit daddy?
She stated “because he did not wipe it properly, he wiped it with a tea towel”.
The Doctor continues:
“We had some general conversations and she said at the assessment time on at least 3 occasions that she did not want to stay at her dad’s place. I asked her what would happen if someone made her go and stay with dad, and she said that she would tell her mum. [The child] did not make any other disclosures”
Dr W goes on to record:
“from the history that I have received today, it sounds like there was an issue of distress at [the child’s] fathers place that lead her to be anxious and to rub her external genitalia. This most likely led to the redness and inflammation described by her mother and caused it then to sting when she weed and also gave her the feeling of needing to wee often or urinary frequency. Since she has not been visiting her father, the anxiety issue seems to have settled and the symptoms have resolved. I did not get any disclosures today with regard to sexual abuse, but a definite sense from [the child] that there is some issue with her visiting her father. I have read the report by [Ms B] and agree that [the child’s] reaction to the story she read to her as abnormal and that the play [Ms B] describes in her report is concerning with regard to abuse.
…I am unable to determine at this stage if [the child] has been sexually abused and it is not my role to do so…”

Evidence of the Paternal Grandmother and the Use of Her Evidence

It might be anticipated that evidence or statements by a party’s mother adverse to that party, particularly when the evidence consists of concerns allegedly expressed about her son’s conduct toward a young child, would be of considerable significance to a counsellor seeing that child and to a reporting psychiatrist (just as it might, indeed, be thought to be of considerable significance to the court).
Ms B saw the mother for a session alone (6 October 2006) prior to seeing the child for a session a week later (13 October). Her notes became Exhibit ICL 4. It is important to record what is said there in full:
“[The mother] reported that:
… [the father’s] mother [the paternal grandmother] was staying there for the week during [the child’s] visit [in September 2006]. [The paternal grandmother] rang [the mother] after this week to express her concerns:
‘Please don’t tell [the father], it could be dangerous, you know how hot headed he is’
[The paternal grandmother] reported that she felt [the father] was treating his daughter like they were in a relationship”
She goes to sleep laying on him in front of TV. G’ma said: ‘ I don’t like the way he holds her – with his hands on her hips in front of TV”
“I don’t think she should be having a shower with him” “I don’t like the way he is ‘zincing her up’ – Mum explains that due to sore vagina she needs cream put on her.
G’m:“the way he speaks to her like she’s a replacement for a relationship he never had – not like its his daughter”
In front of G’ma when lying on Dad’s tummy in front of TV, [the child] reportedly said: ‘Daddy, can you kiss my fanny’ – said reportedly in a very matter of fact way. Mum reports [the child] has never spoken to her in such a manner
Mum expressed her fear to [the mother] “he could come down here with a gun – shoot me, you know how dangerous [the father] is”
G’mother also reportedly said “it’s just not right” “the relationship is not healthy” “I’m really concerned”
[The paternal grandmother] left early and apparently didn’t stay as long as she had intended. She rang [the mother] very soon after her visit to report the above. Several weeks later she rang again and seemed to be expressing less concern and reducing her statements” [underling as per original].
No contact was made by Ms B with the grandmother. She did not, then, have a first hand account of what the grandmother allegedly said and saw. Nor was she able to make any independent assessment of the grandmother.
In another part of the same notes, under the heading “Background”, Ms B reports the mother as saying that the father has “a love / hate relationship with his mother”.
In another part of the “Background” Ms B records the mother saying of the father that “he’s sexually strange” “there’s another side to [the father] a secretive side” “pervert really” “voyeuristic”. The mother then recounts her version of the father’s photo-taking referred to earlier in these reasons and then says to Ms B that “He’s always worried me”.
Ms B does not, apparently, explore these issues further and does not, it seems, take up the point raised earlier about the apparent inconsistency between those (then) concerns and permitting her very young child time with the same man.
The father also played no part in Ms B’s process. No account was taken from him of the relationship. He was not asked to comment on the accuracy or veracity of what the mother had to say. Nor did Ms B have any opportunity to make any independent assessment of the father.
Dr P is a reporting psychiatrist who also relied upon collateral information emanating from the grandmother – in his case from her affidavit.
The doctor, too, refers to the grandmother swearing that the father “actually showered with [the child]…” and that cream was applied in response to the child saying her “fanny was sore” “…privately in the bathroom on request”. Reference was also made to a request by the child to “kiss my fanny” (to which the father’s response was “no people don’t do this”). The doctor also made specific mention of the grandmother’s conclusion in her affidavit that “[the father] has not developed appropriate boundaries with his four year old daughter”.
The paternal grandmother was a deponent in the mother’s case. In my judgment, very significant caveats need to be placed on the affidavit evidence of the paternal grandmother (and the accounts just described) by reason of her evidence under cross-examination in the trial.
At paragraph 5 of her affidavit she deposes that “[the father] actually showered with [the child]…”. In cross-examination, she admitted that she hadn’t seen that occur. She deposed that she had never discussed or raised any such issue with anyone, at any time, during her visit with the father and the child.
She also said she did not witness the father drying or dressing the child at any time during the visit nor did she raise any concerns about any such issue.
Dr P refers only to the grandmother swearing that “sometimes they [the father and the child] would whisper to each other and have ‘secrets’”.
Significantly, as it seems to me, there is little doubt that sinister overtones are thought to attend the sharing of “secrets”. The deposition by the grandmother in fact continues:
“[The child] always told me ‘the secret’ which was ‘daddy loves [the child], then ‘[the child] loves daddy’ then repeated. It was never whispered ‘[the child] loves nanna’ or ‘nanna loves [the child] which would seem the natural progression of such play, so then the ‘secrets’ stood out as something odd.
I do not share the grandmother’s assessment of a “natural progression”. As described (and contrary to any implied sinister overtones), it depicts a loving game between a father and a young child and I can see no reason why “nanna” should be, or would necessarily expect to be, included.
Also contrary to the notion of “secrets” having sinister overtones, the grandmother agreed in the witness box that, in terms of “secrets”, she never at any stage heard anything whatsoever untoward passing between the child and her father. Moreover, she deposed that she had heard everything that was said between father and child.
Contrary to the impression of an improper or age-inappropriate relationship created at paragraph 16 of her affidavit, the grandmother gave evidence in the witness box that the father would say to the child – in a joking manner – “yes, dear, no dear”. In her affidavit, she said that this expression as used “[gave] the impression of boyfriend/girlfriend rather than parent/child.” The grandmother admitted in the witness box that it was “only in retrospect after talking to the mother that she attributed any [sexual or adverse] meaning to these statements.”
Ms B records the mother’s account of the grandmother telling her that the child had asked her father to “kiss my fanny”.The notes do not, however, record the mother telling Ms B that the grandmother’s account was that the father had responded “No, people don’t do that” to which the child had asked why and the father had responded “They just don’t”.
Further, under cross-examination from the ICL, the paternal grandmother indicated that “she didn’t have any concerns” about the relationship between the child and the father while she was staying in his house. Those concerns, she said, “came later”. It was only after speaking to the mother, she said, that the concerns arose.
For the reason identified earlier, I cannot accept that either Ms B or Dr P could be uninfluenced in arriving at ultimate conclusions (in Ms B’s case) or “impressions” (in Dr P’s case) by the statements of the grandmother. However, in my judgment those statements, as reported, are either inaccurate or utterly unreliable.
I think it highly likely that the processes and conclusions of Ms B and Dr P are each very likely to be coloured by, and significantly influenced by, information which, on its face, is ostensibly powerful but which is, on the grandmother’s own admission, inaccurate. Those inaccuracies, or changes in emphasis dramatically affect the power of that evidence and the persuasiveness it ought properly to have had on Ms B and Dr P.
The evidence of the grandmother provides in my view a seriously compromised basis upon which to base any finding, or indeed suspicion, of sexual abuse or unacceptable risk.
I consider that the initial statements, as recounted, seriously compromise the conclusions that Ms B reached and the impressions of Dr P relating to the risk of sexual abuse posed by the father.
I have additional concerns about the evidence of each, to which I will now turn.

The Evidence of Dr P

Dr P is a consultant psychiatrist who saw each of the parents on 10 August 2007 and produced a report dated 13 August 2007.
Dr P assessed no psychiatric disorder in either party. Nor did the doctor consider that either parent “had any substantial evidence to suggest a personality disorder”.
As well as psychiatric opinion, Dr P shared a number of “impressions”. In each case, I am by no means sure that any such impressions fall within the area of psychiatric expertise or, if they do, that there is any sufficient basis provided for the “impression”.
An example of the latter is that:
“The father may have under-estimated his use of alcohol and cannabis …”
In a similar vein, the doctor said that he was:
“… quite concerned that there may be some substance to at least poor boundaries between the father and child and possibly inappropriate sexual behaviour. Consequently I would not recommend unsupervised access”
The doctor says this opinion is reached “taking into account [his] observations and other affidavit material…”. Yet it is not at all apparent to me what observations can be said to found the opinion. If that opinion has a foundation it seems to me that it can only be based on the collateral information the doctor had, including, primarily, the affidavit material.
Included in that is the affidavit of the paternal grandmother to which I have already made reference. Equally, though, it is by no means apparent from the report what, if any, process of analysis was applied to other statements within the affidavit material in support of alternative “impressions”. The apparent incongruence between the mother’s behaviour pre-September 2006 and her evidence about the father at that time is an example.
The doctor says that “it is also clear from the reports from the contact centre and a supervised access at the Family Court in Brisbane that [the child] has been extremely resistant and negative about contact with her father at the present time”. This is clearly correct, as a statement of fact, on the evidence before me, but only as far as it goes.
The affidavits and reports (each, it is to be noted, is expressed in the plural) are not listed. One might gather that at least one of the “reports” is the report of Ms S, family consultant.
However, it is by no means clear that the doctor was made aware of, for example, the reports or notes from the contact centre (Exhibit F3). If he did, the conclusion needs, in the very least, a context.

For example, shades of grey are added to the conclusion of “extreme resistance” when recourse is had to a letter from the contact centre to the mother dated 3 May 2007. It will be recalled that the child saw her father there in April 2007. It was the first time he had seen her for about 6 months. The letter says:
“… the first visit went well, but the subsequent visit did not go ahead due to [the child’s] refusal to visit with her father and her obvious distress, a child consultation was organised. [emphasis added].
In the ‘feedback to parents’ stage of the child consultation process you indicated that [the child] was re-presenting with behaviours that had ceased when she stopped contact with her father. You also indicated that you were supportive of the consultation process but would not be encouraging [the child] to attend visits with her father at the Centre. You also indicated that you did not encourage [the child] to participate in the second visit …” [emphasis added].
I am by no means convinced that such opinions as Dr P expresses emerge from a picture which has in it all of the elements it should. The doctor says, understandably enough, “…I took considerable note of the affidavit prepared by [the father’s] mother…” But, in light of her evidence in the witness box, using that affidavit as a firm factual basis upon which to base opinions or “impressions” is, in my view, unsafe.
I accept the doctor’s psychiatric opinions. I do not find Dr P’s other “impressions” particularly helpful in reaching ultimate conclusions about abuse or risk of abuse. I consider any such “impressions” to be a very unsafe basis to inform any such findings.

The Evidence of Ms B

Reference has been made above to aspects of Ms B’s process and ultimate opinions. In particular, her reliance upon information provided by the mother and, through the mother, purportedly by the paternal grandmother, calls into question, in my view, any ultimate opinions reached by her.
Further concerns attend the process and report by Ms B insofar as that process and report is to be used to inform a finding that sexual abuse has occurred or that there is an unacceptable risk of abuse.
First, Ms B’s intervention with the child was, at least purportedly, therapeutic. As Ms B herself acknowledged in the witness box, that fact alone militates against significant reliance being placed upon the report in the context of a forensic investigation.
I note that her “recommendation” is that the child spend no time with the father “until a thorough investigation and assessment is completed by an appropriately experienced and independent counsellor”. It was not clear how Ms B envisaged that any such process could have any forensic integrity in light of the counselling already carried out by her or, indeed, that Ms B had any appreciation of how her processes might have compromised any such process.
Counsel for the mother agreed during the course of submissions, that such information as was gleaned from the child by Ms B occurred only after leading questions. A good example is:
“…
How does he hurt people, does he smack?
Yes
Does he do bad touching
Yes
Where does he touch
(looking at the ground and appearing uncomfortable) Nowhere”
The exchange is also notable in a number of other respects. Credence is apparently given to the answer “yes” to the first leading question but not, apparently, to the answer “nowhere” to the second leading question. According to Dr A’s notes, Ms B was prepared to say to him that that she “has significant concerns of the possibility of child sexual abuse despite no disclosures by [the child]” despite only having seen the child on one occasion on 13 October during which no “disclosures” occurred.
Ms B’s report reveals that she “employed the therapeutic tools of sand play, drawing and reading for her sessions with [the child]”. During the first session, the child was asked to select figures that reminded her of people in her family. In respect of her mother she chose “a pig with babies attached” “it’s nice and kind”; in respect of herself, a penguin because “sometimes nice and sometimes bad”; and dad a witch “cause it’s bad”. This occurred during “sand therapy” in the “sand tray”.
Ms B reports that “[the child] did not want to place the witch in the sand tray. The child was asked whether she would like to say anything “to the witch”. She responded in an agitated manner “Stop!! Don’t do that again! Don’t do that again or to anything other animals!... the penguin would want to hurt the witch, to take it out and put it in jail, put it in a stew and eat it and make it die!” ”.
A little later the child said “lets get the horse in so that the horse can kick the witch. Lets bring all the animals in, they are going to hurt the witch, they want to hurt the witch”.
This, it seems, is the totality of the observations made by Ms B, and things said by the child during that first session. Certainly, that is all that is recorded. However, the report of that session goes on to record:
“[the mother] reported that on the way home from the session [the child] asked tentatively, “mum we won’t tell daddy about the witch and the drawing that I did will we? It’s just our secret isn’t it”? When reassured [the child] added “mum I don’t ever want to go to daddy’s again. I want to stay with you all the time.””
Those matters taken together (added, of course to the information already mentioned garnered from the mother) appear to be the totality of the information used by Ms B to inform her opinion, expressed to Dr A as “significant concerns” about the possibility of sexual abuse.
This opinion is offered, it will be recalled, despite the (it seems accurate) recording that there were “no disclosures by [the child]”. Ms B said under cross-examination that there was never, at any stage, any spontaneous disclosure by the child of any inappropriate behaviour by the father. This opinion is also given without consideration being to the possibility (if, in any event, credence is to be given to these statements) that the child may perceive that others hate “the witch” – a question she posed of her mother but which was not answered.
Ms B continued to see the child. Over time, some “disclosures” emerged. I have no confidence whatever in placing reliance upon those “disclosures”. Ms B’s process as manifest in the evidence before me involves significant leading questions. It is one thing to be concerned about the use of leading questions by a therapist – and I am – but quite another when, over time, there continues to be such questioning of a young child.
A complete picture of the nature and extent of that questioning is unable to be gained from the evidence. However, such evidence as does emerge from the notes of Ms B and her report is of great concern to me. For example, Exhibit ICL 6 has Ms B saying in (an undated) note made by her:
“Note:[the mother] informed me that she has [the child] telling this story to her on tape (taped at home)
After seeing [Ms S] at the Family Court [the mother] reported that [the child] had said afterwards “I wanted to tell [Ms S] all the bad things that Daddy did to me but I couldn’t. I couldn’t tell her how Daddy poked his fingers in”
I asked [the child] about this and she nodded with her head down. I asked what might help her to tell [Ms S]. “I don’t know” said [the child].
[The mother] reported that it was after the session with [Ms S] and [the father] and [the child] began to tell the story of animals and kissing fanny started to emerge. [The child] appears to tell a little bit more of the story each time she tells it. [underlining in original]
[signed] [Ms B] (Social Worker)
Notification to DOCs re above story [file references and signatures omitted]
I am by no means confident that I have, from the evidence of the mother, or otherwise, anything like a clear picture of conversations and/or behaviour between mother and daughter about the topic of the father abusing the child but passages of the evidence exemplified by that just quoted cause me considerable concern.
Certainly, I place little weight on the evidence of what the child might have said consequent to the intervention of Ms B and the mother’s reaction to the intervention by Ms B. I consider it very likely that any such statements have been highly influenced (albeit not necessarily consciously) by the behaviour and/or words of the mother and Ms B and their treatment of the child (albeit done in what they regard as her best interests).
Although Ms B’s notes make mention of matters such as anxiety on the part of the child and her mother and of the child having surgery to the anus when a baby, I can see no evidence manifest in her notes or reports that Ms B countenances, let alone explores, any possible alternative explanations for the child’s behaviours, including, for example: anxiety and heightened awareness resulting from early anal surgery; cessation of time with her father; and concerns (expressed more than once) that her mother might “hate” her father.
There is also, in my view, what is effectively, as and from the first session with the child, an assumption of abuse (and of abuse by the father) despite no disclosures.
There is also, in my view, a high likelihood of pre-judgment about the father based on reports from the mother and paternal grandmother and no assessment by Ms B of the father based on his account and presentation.
In my judgment, I should not use the evidence of Ms B as a foundation upon which to make any finding about child sexual abuse or unacceptable risk of sexual abuse and I have no confidence in that evidence for that purpose.

Findings As to Sexual Abuse or Unacceptable Risk

I consider that the evidence falls a long way short of that which would be required to satisfy me to the relevant evidentiary standard that the child has been sexually abused by the father (or anyone else).
Similarly, in my judgment, the evidence falls a long way short of that which would be required to satisfy me to the relevant evidentiary standard that the child is at an unacceptable risk of sexual abuse at the hands of her father (or anyone else).

The Mother’s Belief System

Unsurprisingly, perhaps, the father contends that the mother has, in effect, manipulated the child’s opinions of him and has inculcated a false belief that he has harmed her sexually as part of that.
Certainly, some parts of the evidence give rise to concerns about the mother’s attitude to the father seeing the child – for example, the contents of the contact centre file (Exhibit F3) earlier referred to.
Similarly, I am not convinced that the mother is an entirely accurate historian, particularly when it comes to relating what was, or was not, said by the child at varying times relating to what the mother sees as potential sexual misconduct.
Ultimately, however, I am persuaded that the mother genuinely believes that the child has been sexually abused by the father and is at risk of further abuse from him.
The father would have me find, in effect, that the opinions of Ms B (and perhaps the Department) have been influenced wrongly by intentionally false or exaggerated information given to them by the mother and, he alleges, reliance upon their opinions serves as a convenient platform for the mother to exclude the child from his life. I am, again, ultimately not persuaded that the evidence justifies that conclusion.
I am troubled by some of the things said by the mother. An example is the things said by the mother to Ms B only a week or two after she had left the child with the father for nine days. But, intervening, was the conversation with the paternal grandmother and, however unreliable her affidavit evidence ultimately proved to be, it seems to me the mother relied upon what was said by her at face value which served to heighten significantly an existing disquiet.
In respect of reliance upon Ms B it is of some significance, that the referral to Ms B came from Dr A. It could not be properly suggested, it seems to me, that the evidence reveals that the mother was “shopping” for an opinion that suited some underlying purpose.
I accept, ultimately, the submission of counsel for the mother that, rather than pointing to conscious distortion for an ulterior purpose, the evidence points to an acquired belief over time.

Meaningful Relationship and Benefit

If, as I have concluded, the child vis not at an unacceptable risk of sexual harm by spending time with, or communicating with the father, a number of powerful considerations point in favour of an order that either or both should occur.
An Object of Part VII of the Act is “ensuring children have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.   Two of the principles contained in s 60B(2) underscore that object:
(a)   children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)   children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development …”
Again, though, best interests can be seen to be the criterion by which those objects and principles are applied to the particular circumstances of individual children. Parenting orders are not the manifestation of theoretical principle, but the expression of ultimate findings about the best interests of the particular child the subject of the proceedings in his or her particular circumstances.
When attention turns to s 60CC which, as its heading suggests, is how a court is to determine best interests, a primary consideration is “the benefit to the child of having a meaningful relationship with both of the child’s parents”.
Findings about harm or abuse or the risk of either, or the likely effect of change for a child, or the capacity of one or both parents to provide for children’s needs, all involve findings of fact which can be readily seen as likely to impact on orders about the nature and extent of a future parent/child relationship.
The position with respect to s 60CC(2)(a): (“the benefit to the child of having a meaningful relationship with both of the child’s parents”) is, it seems to me, less clear.
“Meaningful relationship” is not defined in the Act. Brown J in Mazorski v Albright [2007] FamCA 520 concluded in respect of the phrase (reasons para 26) that it was not a strictly quantitative concept:-
“…when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one…”
I respectfully agree, noting the use of the qualifying word, “strictly”. That is, quantity of time is an element of a meaningful relationship but not necessarily determinative of it.
Further, in my respectful view, her Honour’s conclusion receives added weight by reason of the Act specifically eschewing (see note to s 61DA(1)) a presumption as to time. Put in her Honour’s terms, the Primary Consideration is, then, relevantly, “the benefit to the children of a relationship which is important, significant and valuable to the child.”
But, significantly, as it seems to me, the Act does not require a court to consider whether a party’s proposal is important, significant and valuable to a child. Rather, it appears to require the court to consider that such a relationship is of benefit to the subject children. Whilst not a “presumption” necessary to be rebutted (in the same sense as, for example, the express presumption as to equal shared parental responsibility), the paragraph appears to be presumptive in concept or effect.
The Considerations are the pathway by which factual findings underpinning ultimate findings about best interests are to be arrived at. The court can only “consider” the required matters in the light of factual findings made about those matters (or other relevant matters – see s 60CC(3)(m)). If that is so, it seems to me difficult to know what to make of the Primary Consideration under discussion.
The “presumption”, or consideration of a fait accompli, that a relationship with each parent which is “important, significant and of value” is of benefit to a child is, it seems to me, either axiomatic or a fact in issue.
That is, if it be determined – as a fact – that a current, or proposed future, relationship is not, for the particular children, important, significant and valuable, and best interests is the ultimate criterion, a court surely can’t proceed on the basis that such a relationship is of “benefit”.
Conversely, if it is found as a fact that a current, or proposed future, relationship is, for the child, important, significant and valuable, and best interests is the ultimate criterion, it is difficult to see how a court could conclude that such a relationship is not of benefit to the child.
In either case, it is difficult to see how, as part of the fact-finding (or value-finding) exercise, the sub-paragraph usefully serves as a pointer to the best interests of the particular children in the particular circumstances under consideration. Yet, the heading to s 60CC says that is its purpose.
That is in no sense to undermine its importance. A meaningful relationship clearly has importance – indeed, primary importance. But, it seems to me, its primary importance is in emphasising an underlying philosophy (or Object, or Principle) of the Act. The difficulty, as it seems to me, is one of application.
Factual findings as to attachment, developmental stage, the children’s views, the respective exercise of parental responsibility, the nature of the relationship between child and parents and the like can be seen immediately to shine a light on ultimate findings about best interests.
Each such finding is overtly and intimately attached to individual justice for the particular children and their particular circumstances the subject of the proceedings. Each focuses (or should focus) upon the individual needs, developmental stage, psychological and emotional health and personality of the individual children. And, of course, parenting orders are, axiomatically, about effecting individual justice.
The role of a court in effecting individual justice occurs within a factual context which, by definition, has resisted resolution and which (almost by definition), almost invariably involves parents in high conflict. In such cases, both the nature of the existing, and possible future, relationship between child and parent – and the possible benefit or detriment of any prospective relationship (including a prospective relationship that might not be properly considered “meaningful”) – are frequently in issue.
A presumed or assumed benefit from an important, significant and valuable relationship says nothing of the particular circumstances of a child. Indeed, reference to the relevant statutory objective (s 60B(1)(a)) underlines why this is likely to be so. It assumes individual justice: the objective is to ensure that parents have a meaningful involvement in the lives of their children only “to the maximum extent consistent with [their] best interests…”.
The Primary Considerations, including s 60CC(2)(a), take their place, as it seems to me, as a supervening imperative of primary importance.
That is, to the picture of best interests emerging from factual findings based on all of the statutory considerations (including s 60CC(3)(m)) must be added a consideration of two matters of primary importance in the ultimate finding of best interests. First, is the need to protect the children from the specified acts and omissions (s 60CC(2)(b)). The second is the consideration (not application) of an assumption that, consistent with the Act’s objects and principles, children benefit from maximising the extent to which both parents have an important, significant and valuable role in their lives.

Here, there is little doubt that the mother has provided the vast bulk of the day to day care for the child for the whole of her life. The father’s role, in terms of time, was more limited.
I have no doubt at all that the father loves the child and seeks to play a role in her life. I repeat in this context the issues and considerations, listed by reference to the applicable s 60CC “additional considerations”, outlined earlier in these reasons.
Whilst I have earlier in these reasons referred to what I consider to be failings in insight into the child’s needs and a less than optimal capacity to act in a way sensitive to her particular emotional needs, I consider that the child would derive significant benefit from spending time regularly with her father if her circumstances permitted of that occurring in a way that was enjoyable, and relatively stress free, for her.
Tragically, I think that this is extremely unlikely in the short or medium term.
I have earlier referred to the letter and notes from the contact centre in which the mother’s reluctance to promote time between the child and her father was noted.
Under cross-examination from then counsel for the father, the mother was asked whether the father could play a positive role in the child’s life. The mother replied to the effect that:
“[The child] doesn’t want to see her dad, she’s made that clear. I don’t see that could be positive. I don’t know how the relationship could be positive. I don’t know how the relationship could be facilitated as my daughter does not want to see her father. I cannot make my daughter see her father. I don’t want to see her distressed.”
I have already found that the mother harbours a genuine belief that the child has been sexually abused at the hands of the father. To that should be added a finding that the mother is, in my view, a highly anxious person and mother.
That was certainly my impression of her. The contact centre notes of the first visit and the lead up to it (part of Exhibit F3) are redolent of a highly anxious person. The intake assessment sheet forming part of the same records notes:
“Mother appears highly stressed anxious and appears to be seeking the truth as to the genesis of [the child’s] concerns. Broke into tears on several occasions during intake and 2^nd meeting 12/4/7”
and, in a separate passage, suggests the need to “Look at supports for mother”.
In my view, the evidence, when looked at as a whole, is most consistent with, first, a mother who initially did not believe that her child’s complaints of vaginal irritation and the like were due to sexual abuse (I accept, for example, her evidence that she dismissed the suggestion from a GP, Dr L, in May 2006 of sexual abuse being a possible cause for noted unusual behaviour).
Secondly, that evidence is consistent with, and I find, the mother developing a genuine belief (principally through information from Ms B and Ms B’s report to her of input from the “SAS” (Sexual Assault Service) (as to which see Exhibit ICL 5) that the child had been sexually abused by her father.
Thirdly, the evidence suggests in my view, a potent combination of: the mother’s natural anxiety emanating from that belief, a person who is anxious in any event, and a degree of maternal guilt at not (as she sees it) having protected her child from sexual abuse.
That confluence of factors (and perhaps others) has produced a mother who has little capacity and, as I find, little willingness, to support the child having any time with, or communicating with, her father.
If these proceedings were about the parties, or moral judgment or, indeed, justice, the application of the Objects, Principles and Considerations when applied to the findings already made, produce a result that would see orders – significantly coercive in nature – designed to facilitate time occurring between the child and her father.
But, best interests can be less susceptible to such results.
At a time well prior to many amendments to the Family Law Act, and certainly many years before the current Part VII was introduced into the Act, Justice Fogarty had this to say in Rossi and Rossi [1980] FLC 90-839 at 75,304:
“The traditional access order of alternate weekends and half the school holidays, etc., works well enough in the ordinary sort of case where the parties and the children are normal and reasonable and are not only prepared to comply with the order but see it as a desirable thing to do so. But where one or both of the parties are not normal or reasonable or where access is imposing unacceptable pressures upon the children concerned it seems to me that the matter has to be looked at in an entirely different light. We are still I think too influenced by the traditional formulations of the principles relating to access which, although they give lip-service to the view that access orders are made in the interests of the child and the test is the welfare of the child, really still give far to much weight to the ``right'' of the non-custodial parent to access. We have all been guilty of this, see for example my own judgment in Horman's case (1976) FLC ¶90-024. That traditional approach seemed to me to proceed upon the fairly robust assumption that even if a child did not really want to go on access and even if no positive advantage to the child could be seen in access to the non-custodial parent, nevertheless it is good for the child in some way as a form of character building as well as maintaining for the child contact with both parents. But where the continuation of access can only occur in circumstances of conflict and pressure I must say my own view is that that circumstance outweighs the general or theoretical advantage that access is otherwise said to have. It seems to me that both more recent writings by social scientists and increasing degree of experience by the Court itself all points, almost irresistibly, in the one direction, namely that however unfortunate it may appear to be to the non-custodial party to refuse access, nevertheless, in the interests of the child, access ought not to be compelled where it will be attended by circumstances of real stress and pressure to the children. To do so is really to subvert the idea that the welfare of the child is the decisive factor …
…In some cases, that circumstance may, with others, call for reconsideration of the custodial position but in the majority of cases that is not really a viable alternative and in that latter situation in my view real weight should be given to the real welfare of the child and that in most cases would compel a situation where access is suspended or terminated. Frequently in that situation the custodian is the long term loser. In addition the non-custodian needs to remember that the period of non-access is comparatively short in the overall life of the child. [emphasis added in each case]
It is, of course, vital to bear in mind that what his Honour says there, particularly about “rights to contact” may no longer, as a matter of law, be correct in light of what is now Part VII of the Act. I am, of course acutely aware of that.
Furthermore, I am acutely aware that the comments were made in the context of more general statements about perpetual litigants in the context of contempt proceedings (as contravention proceedings were then called).
However, the passage is cited here – and in my view, remains important – in seeking to emphasise that it has long been recognised that, if the “best interests of children” is to have real meaning in terms of the parenting orders made by this court, decisions will sometimes be made that appear “unfair” to a parent who has, as it were, “done nothing wrong”. Such decisions weigh heavily on this court and prey on the reflection of judges.
These proceedings, although guided by those Objects, Principles and Considerations, are not, as those same Objects, Principles and Considerations make clear, ultimately about the expectations or rights of parents, however reasonable the former and however clear the latter; they are, ultimately, about the child’s best interests.

Unacceptable Risk – Psychological or Emotional Harm

As earlier noted, each of the mother and the ICL submit that the child is at risk of psychological or emotional harm should time or communication with the father be ordered.
There can be no doubt that, on the evidence, the child is highly resistant to seeing her father. The evidence also contains a solid basis for significant concerns about the prospect of emotional or psychological harm being caused to the child if she is coerced to see her father.
The letter from the contact centre to the mother earlier referred to (part of Exhibit F3) says, in part:
“Taking into account the above contributing factors [the child’s refusal to visit the father on the second contact occasion; her “obvious distress”; the mother indicating she “would not be encouraging [the child] to attend visits” and the mother also indicating that “she did not encourage [the child] to participate in the second visit”] and [the child’s] very apparent distress when attending the second visit, I would anticipate that if [the child] was to attempt another visit the out come (sic) would be the same.
One of the philosophies of the Contact Centre is not to cause undue stress or distress to a child. I believe any attempted visit in the present conditions would be extremely stressful to [the child] and therefore I cannot in all good conscience expose [the child] to such distress. Regrettably I am withdrawing service to [the child]”
The passage just cited is in respect of time ordered by Jarrett FM and occurring (or not occurring) in early 2007. Part of the mother’s cross-examination in the first part of the hearing before me in June 2008 indicated a similar intractability in the child’s attitude to seeing her father.
Obviously enough, it was evidence such as that (together with the fact of the father having spent but 2 hours with the child in, then, nearly two years, which prompted the attempts to facilitate time through trained professionals at the Inter-Relate Centre.
It will be recalled that, despite the intervention of trained professionals, in respect of a course specifically designed to deal with situations similar to the present, a conclusion was reached that exposing the child to further intervention of that type risked “systems abuse”.
I think the child has had enough of interventions. I cannot persuade myself that the psychiatric intervention proposed by the father is in the child’s best interests.
Those same professionals are, in effect, at a loss to suggest anything that might assist in facilitating the child seeing her father.
I consider it highly likely that the mother would not in any real sense support any such coercive orders.
I can readily foresee one future scenario – perhaps a “least worst” scenario – where further litigation ensues because (as I think is highly likely) the mother would not be able to bring herself to comply with any order that the child spend time with the father.
That obviously does not prevent such an order being made. However, here, the child’s behaviour in and about the prospect of seeing her father, at all times, apparently, since the second scheduled visit at the contact centre, now over 18 months ago, is redolent of any such order causing her psychological and/or emotional harm.
In that respect, as highlighted by me in argument, I remain profoundly concerned about one piece of evidence. In April 2007, after an absence of 6 months and despite initial reluctance, the contact visit between the father and the child (although in the restrictive confines of a contact centre) “went well”. A few weeks later, the level of the child’s distress was so great that, not only could she not be coerced into time with her father, but the contact centre would not permit it.
I have significant suspicions that, consciously or not, significant emotional pressure was brought to bear upon the child by the mother in the intervening period. However, suspicions do not translate to findings in the absence of a proper evidentiary foundation. Here, there is insufficient evidentiary foundation to make any finding to that effect.
It seems to me that the almost inescapable conclusion on the evidence before me is that orders that would force the child to spend time with her father, communicate other than by letter:
·Are likely to be doomed to fail;
·Are likely to cause the child very significant distress;
·Risk causing emotional or psychological harm to her;
·Are highly unlikely to be supported in any real way by the mother.
I should indicate that I have considered making orders which would see the child in the father’s exclusive care for a significant block period of time so that she could, after more than two years, experience for herself, his parenting.
However, the child remains young. The father has (but for one nine-day period during most of which his mother was present) not cared for her for significant block periods of time. It is highly likely the child would be extremely distressed – certainly initially and would undoubtedly seek, at least initially - to return to her mother’s care. Further, the child’s erstwhile primary carer would, I think, be highly distressed by such an order.
I have also considered whether making interim orders might be in the child’s best interests, particularly if those orders were to incorporate a relatively lengthy period of time within which there was no time or communication.
However, I consider that the prospect of further proceedings “hanging over [the child’s] head” is not in her best interests and nor does the potential anxiety of that for the mother optimise her parenting of the child. The child needs to settle down away from further proceedings.
In those circumstances, and in light of the matters earlier discussed in these reasons, it seems to me that the child’s best interests require orders that effectively accord with those sought by the mother and the ICL. They, in essence provide for the child to live with her mother, for communication to be by card and letter and gift and, otherwise, for there to be no time or communication with her father.

Parental Responsibility

It will be plain that I consider there is no realistic prospect of the parties reaching agreement about major long term issues (as that term is defined in the Act) in respect of the child. There is likely to be little, if any, real contact between them. Neither situation is likely to change in the foreseeable future.
The statutory presumption of equal shared parental responsibility is rebuttable in circumstances where the court has reasonable grounds to believe that potential harm to the child or her bests interests require that presumption to be rebutted. It will be clear from my earlier reasons that I consider that it be rebutted here.
However, the rebuttal of the presumption and the circumstances, and proposed care arrangements, outlined earlier in respect of the child do not in my view necessarily lead to an order that the mother have “sole parental responsibility” – at least not without more.
Parental responsibility is defined in the Act to mean “… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” [emphasis added]. Save as the court orders, each of the father and mother has parental responsibility for the child. A parenting order does not derogate from that save as is expressly ordered.
“Equal shared parental responsibility” is not separately defined. Not only is that phrase not defined, but it might be thought to involve a concept different to that which guides the practicalities of co-parenting of children in either intact families or in arrangements where high levels of co-operation, respect and agreement attend consensual post-separation co-parenting arrangements.
In those situations, there can be little doubt that, appropriately, parties share “parental responsibility” (as defined). Yet, common experience shows that parental responsibility (or, at least, aspects of it, for example, responsibilities and duties) is – for a variety of reasons, some born of necessity, others not – by no means always, or even frequently, shared equally.
The Act (s 65DAC) makes it clear that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it requires those sharing parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.
Each of those considerations point, at least arguably, to an order for “sole parental responsibility” meaning that the other party has no rights, responsibilities and authority in respect of “major long term issues” for the children save as expressly ordered (decisions in respect of day to day issues are specifically provided for: note to s 65DAE(1)).
The exercise of discretion in favour of excluding one parent completely from consultation and decision making in respect of major long-term issues for a child – particularly when, as here, the child is young – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
There is no doubt that the exercise of that discretion ought be resolved in favour of an outcome which is seen to be in the best interests of the child. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
The Act clearly contemplates that aspects of parental responsibility can be allocated between parents. It also seems to me to contemplate that an order can be made allocating “sole parental responsibility” to a parent when a child’s best interests require it, but placing conditions on the exercise of same (for example, compelling the involvement of the other parent in decisions about major long term issues). That can be so, it seems to me, even if the inability to co-operate as the Act contemplates eventuates, and other factors, point to one parent being, ultimately, the sole decision maker.
Orders to that effect have the potential to strike a balance between the considerations just referred to in a manner consistent with a child’s best interests.
Whilst the circumstances here dictate, as I have judged it to be, the exercise of discretion in a manner that sees the parents unable to conduct the s 65DAC process and which determine that the child should live with her mother and spend no time with her father, I consider that the child’s best interests, and the legitimate rights of the father, require passive participation by him in significant decision making and in her schooling and progress generally.
It seems to me orders of the type following are clearly contemplated by the Act – see s 64B(2)(d). Those orders are:
The mother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that the mother shall, prior to making the sole ultimate decision about any such issue:
(a) Use her best endeavours to advise the father in writing of the decision intended to be made;
(b) Seek the father’s written response in relation thereto;
(c) Consider, by reference to the best interests of the child, any such response prior to making any such decision;
(d) Advise the father in writing as soon as reasonably practicable of her ultimate decision.
The parties shall each do all such things, sign all such documents and each pay any charges or fees as are reasonably necessary to:
(a) Keep the other informed of their current residential address;
(b) Keep the other informed of each and all doctors, health professionals, educational institutions, counsellors, therapists and extra-curricular activities which the child attends or undertakes as the case may be;
(c) Authorise any person, institution or body referred to in the previous sub-paragraph to provide to the other parent any and all such information in respect of the treatment of the child, or her activities as the case may be, as the other parent might reasonably require;
(d) have the child’s school/s provide to the other parent a copy of the child’s report cards, together with any other written report issued by the school in respect of the child;
(e) authorise any school or educational institution, teacher, tutor or other educational professional to provide to the other parent any and all such information in respect of the progress of the child, including, but not limited to, her social, sporting and extra-curricular activities as the other parent might reasonably require.
In order to give better effect to each of the above Orders, I direct that a copy of these reasons for judgment be approved for publication to each of the persons or institutions listed in sub-paragraph (b) in the previous order but the publication of no other “account of the proceedings” within the meaning of s 121 of the Act is approved.

A particular consequence of orders restricting time or communication with a child to cards letters and gifts, in circumstances where the parties do not, and are realistically never likely to, have any contact with each other, is that a parent is deprived of the opportunity to share – even if passively and at a distance – in their child’s triumphs and tribulations. More importantly, a child is denied the knowledge that their other parent is aware of those important things.
That, in turn has practical consequences – the nature and extent of information that might inform letters or cards is significantly reduced. As a child progresses through school, their activities at school, their friendships, sporting and cultural activities etc, form a crucially important part of their world. It is in my view vital that each parent – including the “absent parent” – knows about these important things, and that a child knows that each parent knows. So, too, in respect of the medical and other matters referred to in the mooted orders just outlined.
I can see no reason whatsoever why the father should not have the opportunity to receive and thus participate – albeit passively and at a distance – in all aspects of the child’s life.
It will be seen that an order pursuant to s 121(9)(g) is mooted. As a result of the orders intended to be made, the mother will be the primary source of information about the child to each of the people or institutions contemplated by the orders. She has an apparently implacable belief that the child has been sexually abused. It is not difficult to imagine that this issue is likely to be raised by the mother in a miscellany of potential future situations (eg behavioural issues at school; medical appointments; any future counselling and the like).
The child’s current, and future, primary carer has an apparently implacable belief that the child has been abused. It is likely that situations may arise where that may be communicated to a person or institution with which the father – quite appropriately – might seek to have contact or access.
It seems to me vital that those other persons or institutions know that a court has assessed the evidence said to found the mother’s beliefs and come to a different conclusion to her and, specifically, come to a conclusion that the father does not pose an unacceptable risk of sexual harm to the child
I order accordingly.

[2009] FamCA 14

9 January 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Appeal