Reynolds and Walls

FAMILY COURT OF AUSTRALIA

REYNOLDS & WALLS

[2018] FamCA 905

FAMILY LAW – CHILDREN – With whom the child spends time with – Parental responsibility –Where the mother contends that the child lives with her and spends no time with the father – Where the father proposes the child live with the mother, but undergoes counselling after which the child be re-introduced and spend time with the father as recommended by the counsellor – Where the mother alleges the father is a risk of sexual and emotional harm to the child – Where the relationship between the child and the father is severely fractured – Where the father is not found to be an unacceptable risk to the child – Where the child genuinely believes that her father poses a risk of harm to her – Child’s wishes taken into account – Where the mother’s proposal is least likely to cause harm to the child – Mother to have sole parental responsibility and for the child to live with her – Where the father is not to spend any time with the child, but is permitted to communicate in writing to the child four times per year.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Evidence Act 1995 (Cth) ss 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge and Anor & Harridge [2010] FamCA 445
Re Andrew (1996) FLC 92-692

APPLICANT:

Ms Walls

RESPONDENT:

Mr Reynolds

INDEPENDENT CHILDREN’S LAWYER:

Ms Wallace

FILE NUMBER:

TVC

403

2009

DATE DELIVERED:

7 November 2018

PLACE DELIVERED:

Cairns

PLACE HEARD:

Mackay

JUDGMENT OF:	Tree J
HEARING DATE:	4, 5 and 6 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lyons

SOLICITORS FOR THE APPLICANT:

Everett’s Family Law

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Mr Collins

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER:

Legal Aid Queensland

Orders

That X born …2008 (“the child”) live with Ms Walls (“the Mother”).
That the Mother have sole parental responsibility for the child but in the exercise of that parental responsibility, must keep Mr Reynolds (“the Father”) informed about the child’s education, involvement in extra-curricular activities, health (including, within 24 hours, advising the father of any medical emergencies) and any changes to the child’s living arrangements. Save for medical emergencies, the Mother is to advise the Father of the above at the end of each month through Talking Parents or a similar app.
The Father shall be permitted to send presents and a card or letter to the child on her birthday, at Easter and at Christmas, and on one other occasion per year. Any notes which the Father writes in a card or letter must make no reference to any family law issues, the Mother, or make any reference to the Father being restrained from spending time with the child.
In the event that the child wishes to communicate with the Father, then the Mother will facilitate that communication.
That these orders are sufficient authority for the Father to obtain copies of the child’s school reports, and to seek information from the child’s school in relation to her attendance and progress there.
The parents are to communicate via the Talking Parents app or similar, and the parents are restrained from denigrating each other in the course of that communication.
That the Independent Children’s Lawyer be discharged with the thanks of the court, upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.

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

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

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

FAMILY COURT OF AUSTRALIA AT E TOWN

FILE NUMBER: TVC403 of 2009

MS WALLS

Applicant

And

MR REYNOLDS

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These proceedings relate to the appropriate parenting orders for the only child of the parties’ relationship, being X, born in 2008 and hence presently 10 years of age (“the child”). For her part, Ms Walls (“the mother”) contends that she should have sole parental responsibility for the child, who would live with her, and neither spend time nor be obliged to communicate with Mr Reynolds (“the father”). To the extent that she contemplated any ongoing involvement of the father in the child’s life, it was only that he be permitted to communicate with the child in writing by card, letter or gift on four occasions per year, that she be obliged to keep the father informed of medical emergencies regarding the child, and that he be authorised to obtain details from the child’s school as to her progress. The mother justified that regime of orders on the basis that the father poses such a risk of sexual or emotional harm to the child, that she could only be kept safe by the virtually complete exclusion of him from her life.
For his part, as ultimately formulated at the end of the trial, the father proposed that there be equal shared parental responsibility for the child, who would live with the mother, but be required to undergo counselling by a clinical child psychologist with specialist experience in parental alienation. Then, either at the conclusion of, or during, that counselling, the child would be re-introduced to the father at the therapist’s recommendation, and spend time with him and communicate with him also as recommended. Implicit in his position was a denial that he poses any risk of sexual harm, but a tacit concession that, at least at present and without the assistance of specialist counselling, further engagement with the father does pose a risk of emotional harm to the child.
For her part, the Independent Children's Lawyer supported the orders proposed by the mother. That said, her support appeared, at least to my mind, to be begrudging, and was said to be arrived at by a process of elimination of all other options, such that the mother’s contended position was the “least worst” outcome for the child.
At the conclusion of the hearing I reserved my decision. This is that judgment and the reasons for it.

BACKGROUND FACTS

The father

The father was born in 1960, and hence is presently 58 years of age. I know little of his life prior to 2006, other than that, at some stage, he qualified as a professional, and has been previously married for a period of 24 years, to which marriage were born three sons, presently 27, 25 and 24 years of age. At some point the father moved to the B Town district, where he was employed in his profession. By then he had (it seems) separated from his wife, and it was in 2006, when aged about 46, he met the mother and commenced a relationship with her.

The mother

The mother was born in 1971, and hence is presently 47 years of age. It appears she had a difficult childhood, largely because of the consequences of her father being a war veteran. At some stage she was placed into foster care, but at an age which is unclear on the evidence (the father asserts 12 years old, but the mother says she was older) she ran away from her foster home in Western Australia to Sydney, where it appears she became involved with illegal drugs. While she was living there, she was detained against her will by someone, and sexually assaulted.
Eventually she returned to Perth, although it is unclear whether she returned to living with her foster parents or her father. Annexed to the father’s trial affidavit are a number of emails from the maternal grandfather and his wife (not the maternal grandmother) which claim that the mother, in the late 1980’s, was experiencing considerable difficulty with drugs and violence while living in Perth, and it is claimed that she assaulted her father with a motor cycle helmet. The mother denied this under cross-examination.
At some later stage the mother again moved away from Perth, ultimately ending up in D Town in Northern New South Wales. For some period of time she lived in a commune there. It is plain that at that stage of her life she was smoking considerable quantities of marijuana. I say it is plain because whilst there, in June 2000 she commenced counselling with the Counselling Service. Its notes variously record that she “smokes quite a lot of marijuana,” .. “she is trying to smoke less marijuana” .. “she is smoking way too much marijuana,” albeit noting that by 12 April 2001 “the mother and [her then partner] have both stopped smoking marijuana..” In part that cessation is likely because by then the mother and her then partner were expecting a child, who was born in 2001. He is Y, presently 17 years of age.
By the time of Y’s birth, it appears as though the mother and her then partner had broken up, or certainly that is recorded in the counselling notes of 12 June 2001. In her oral evidence before me, the mother denied that she had ever been in a partner-like relationship with Y’s father, but the counselling notes make it plain that is not correct.
The mother would have it that she has not smoked marijuana since she fell pregnant with Y. However that must be rejected in light of her counselling notes for 25 January 2005, which record “[the mother] feels really ready to leave [D Town]. She is also ready to permanently leave the [marijuana] habit and has begun work with a drug and alcohol counsellor to this end.”
At that time she was contemplating moving to Victoria to be with her then boyfriend, however it appears as though by August 2005, that relationship was either over, or certainly not going well.
Also by then, the mother claimed that Y had been sexually assaulted by a neighbour on the commune who was babysitting him. The counselling notes for 8 August 2005 record that she was then contemplating moving back to Perth. Two weeks later, the counselling notes record:
.. Since the sexual abuse allegations about her neighbour and little son, the community has divided and there are many of her friends who are not speaking to her. Hence she has decided to move to the [B Town] area where she has a good network of friends.
Precisely when she did so is unclear, but plainly she did, and it was at that stage of her life that she met the father, and formed a relationship with him, in 2006, when she was either 35 or 36 years of age.

The relationship

It appears as though the parties’ relationship initially went well, although an interesting alternative snapshot is provided by some counselling notes for the mother arising, it seems, from telephone counselling with the Counselling Service, which she undertook towards the end of 2007. By then the mother was six months pregnant with the child. A counselling report relevantly reads:
[The mother] presented as overwhelmed with situational stress. [The mother] is six months pregnant, and reported that the father… was inconsistent in his commitment to their relationship, saying to her that he wants them to be together, and providing financial support but told his co-workers and friends otherwise…
[The mother] is also estranged from her father, stepmother, mother and sister and feels isolated and unable to cope, and has issues from a childhood she describes as traumatic and also from a sexual assault as an adolescent.
...
Depression and general stress were at severe levels, while anxiety levels scored moderate. Alcohol use at hazardous level however [the mother’s] overall score was at 3 and her alcohol use not at dependant nor at harmful levels.
…
[The mother] reported an improvement in her capacity to cope and a sense of optimism regarding her future with or without her new partner, at our third and final session.
It seems as though the parties’ relationship was punctuated by periods of separation; although they are not in agreement as to how many separations there were, nothing turns on that. Certainly it appears as though the parties agree that they separated in September 2008, and at the time believed it was likely to be permanent, although as shall be seen, that did not prove to be the case. It seems likely that separation was associated with an altercation between them; the father asserts that the mother assaulted him, which the mother denies. It is unnecessary to determine that particular episode of asserted family violence, as it is clear that family violence has been a feature of the parties’ interactions thereafter.
At separation, the child was only five months old, and still being breast fed. That meant that the father was only able to spend short periods of time with the child, without any overnights. Apparently, at least initially, the parties were able to agree about such a regime.
The Queensland Department of Child Safety (“the Department”) appears to have been first involved with the parties, in consequence of a notification made on 15 December 2008. The notification in evidence (heavily redacted) relevantly reads as follows:
Mother smokes marijuana every day and notifier believes that if the mother is smoking marijuana and breastfeeding a baby the dope will go to the child through the breast milk.
The Department contacted a cardiologist in relation to that concern the following day, and was ultimately advised that the impact of smoking marijuana on an unborn child would be similar to smoking cigarettes. Nothing seems to have ensued from the notification.
Sometime prior to 12 January 2009, the mother privately sought a Domestic Violence Order against the father. The application does not seem to be in evidence before me, however it was served by police on the father on 12 January 2009. It appears that police who served the application were concerned about the entries from a diary then maintained by the mother, which was annexed to her affidavit in support of the application. The police report notes that “.. the private application involved both emotional and physical abuse to the children which could actually be linked to both parties…” That led to police referring the matter to the Department. Interestingly, the Departmental records show that “police have previously investigated the family with the mother being the suspect, and the father the informant.” This particular episode does not appear in the police records produced pursuant to subpoena, but seems to have arisen from the father’s concern that the child was dehydrated.
According to the police notes, by 19 March 2009 the mother had “withdrawn” her Domestic Violence Order against the father.
The second police notification to the Department does not appear to have occasioned any action until 24 March 2009. That was in consequence of the father having contacted police again on 23 March, after he claimed to have been assaulted by the mother. According to the police reports, the mother attended the father’s house at about 2:00pm that day, and stated “that she had had enough and she no longer wanted to have any contact with [the child]..” The father then agreed to take the child, who was nonetheless being breastfed every three hours. That led to him later attending the mother’s address, and a verbal argument ensued, in the course of which the father says the mother ripped his shirt and scratched his face. Photographs purporting to show that were in evidence.
It appears as though after the father left the mother’s unit on 23 March, the mother then drove to the father’s unit, demanding the return of the child. An incident then ensued which resulted in the mother crashing her car into a tree, police attending, and taking the mother into custody for, according to what she told Departmental officers in September 2009, four hours.
The police notes of their attendance on that occasion read as follows:
At approximately 02:00am on Sunday 22 March 2009, police were called to attend [the father’s] residence as [the mother] was in attendance. Police attended and located [the mother] walking along [D Street] a short distance from [the father’s] residence. [The mother] stated that she had attended [the father’s] residence in an effort to breastfeed the child however [the father] had demanded that she leave the residence. [The mother] stated that she was in such a distressed state that she crashed the vehicle on [the father’s] property while leaving.
Police attended [the father’s] residence and he stated that [the mother] had attended and demanded the return of the infant child. [The father] stated that there was a verbal altercation however would not state how he obtained new visible injuries to his face.
Police detained [the mother] and transported her to the [B Town] watch house where an application for a Domestic Violence Order was furnished and she was released from custody on conditions.
The police investigation concluded that “the level risk of any future abuse or neglect” to the child was minor, however police brought an application for a protection order on the father’s behalf against the mother, which ultimately led to mutual orders being made.
After the 22 March episode, the parties appear to have been unable to agree a regime of the child spending time with the father, and on 9 April 2009 the father involved solicitors, who wrote to the mother requesting that the father spend time with the child.
The father then commenced these proceedings in the Federal Magistrates Court, as it was then titled. On 15 June 2009, interim orders were made in that court which provided that there be equal shared parental responsibility, and for the child live with the mother, but spend day time with the father on specified occasions during the week, with those orders to be reviewed on 29 March 2010.
It appears as though the parties thereafter complied with those orders, although on 29 January 2010 there was a Child Concern Report noted by the Department, that the child “is red from her vagina to her anus after visiting her father ..”
On 21 July 2010, the Department was notified that the child “is being sexually abused by her father. The notifier stated that they had been informed that these allegations had been raised as that child has bad nappy rash and her vagina and anus are also quite red. It was reported that the mother has sought several medical examinations from various doctors in the E Town area. There has been no further contact from other professional organisations around the allegations of sexual harm…”
It appears as though between 29 January and 21 July 2010, there had been further involvement of the Department as in a summary of the July investigation, it is noted that information had been received by the Department “on 31 March 2010, from [F Medical Centre] that the reporter that the mother had attended the surgery four (4) times in order to subject her child to ongoing medical examinations with “no detected signs of child abuse in any occasions.”.. Whilst there is a relatively extensive CP history in relation to the family, on closer inspection these raised concerns appear to be “tit for tat” types of concerns with similar information being reported each time. It has been previously recorded that there is a Family Court dispute in progress at present which may be fuelling the repeated reports to Child Safety. At this time, with the information available, there is no evidence that the child is at an unacceptable risk of suffering future harm, and the current information will be recorded as a Child Concern Report.”

On 12 September 2010 the mother presented at the G Hospital with the child. The hospital notes were in evidence before me. The presenting condition was identified as “redness around labia and swollen labia.” The presenting history records the mother’s concerns about the redness and noted “claims that it is always worse after gets back from father’s.” Later in the notes it is said “mother is concerned re: sexual abuse by father and [indistinct] is due to sexual abuse… Has seen two x GPs’ with little result?”
The person who was attending the mother at the hospital then undertook a vaginal examination of the child. It is noted in the hospital records that the child’s hymen was intact, but there was mild swelling of the labia. The notes then continue:
Explained to mother that appears to be simple thrush/chafe and not something that only appears in 24 hours but has all the time but may flare up at times. There is no evidence of abuse and the candide is not from abuse. Possible that child and wet nappy or not getting washed properly when with father but not able to tell this from examination.
It can therefore be seen that by the time the mother took the child to the G Hospital, concerns in relation to sexual abuse had been circulating for well over six months. Indeed it is troubling that the allegations had commenced to be raised with the Department – although by whom is unclear – less than four months after separation.
A further notification was made to the Department on 13 September 2010, in relation to the child’s presentation upon return from the father, on that occasion being nappy rash with broken skin. It is further noted that “the mother has had [the child] checked for sexual abuse in the past and to check if her hymen was intact because [the child] said “Daddy oww.”” Again the Department simply noted this as a Child Concern Report, but took no further action.
On 18 September 2010, an incident occurred between the mother and father. The mother later told police that it comprised the father attending at her house to drop off the child after having spent time with her. The mother claimed that the father had threatened her by asserting, in front of the child, that the mother drinks and takes drugs. It transpired that the mother recorded that conversation, however police noted that when played the recording “the tone of voice used by [the mother] to describe threats was vastly different to the quiet monotone actually used by [the father] and he made no actual threats of violence or damage.”
Next, on 21 September 2010, the mother again attended police complaining about an inappropriate comment on a Facebook page that the father had set up for the child. The police took no action.
On (probably) 4 October 2010 the child returned from spending time with the father with redness in the genital area. The mother took the child to hospital, where she was diagnosed with a urinary tract infection. Further, the Department was notified on 4 October 2010 that the child had returned from the father’s with a vaginal rash “on the last five times in a row” that he had seen her.
The Departmental notes suggest that in fact both parents attended the E Town Base Hospital on 4 October, and continue “father reported to the doctor that the mother gives [the child] something before the visits in order to give [the child] diarrhoea which results in nappy rash. The mother provided the doctor with photos of the sores of [the child’s] vulva which the doctor will take to the hospital’s paediatrician for consultation… The parents displayed a degree of animosity towards each other whilst in the hospital and both blamed the other for the rash on [the child].”
A further notification relating to vaginal rash and sores was made to the Department on 5 October 2010. It is recorded that “notifier stated that the father is now of the belief that [the child’s] mother .. is deliberately making [the child’s] have diarrhoea to “set up the father” for neglect of his daughter.” However the Department concluded that there was no evidence of the mother deliberately inducing such symptoms.
On 2 February 2011 there was a notification to the Department about the child’s Facebook account.
A further notification was made on 19 April 2011, which related to a number of concerns which it was said the mother had in relation to the child, including the child “having extremely red vulva and being distant and withdrawn.”
In the Departmental notes relating to this notification, it was observed that by then there had been 21 recorded intakes in relation to the child, and further that “there is a clearly documented Family Court dispute between the parents in relation to [the child] and whilst this does not mean that there are no legitimate child protection concerns, the information requires careful consideration to determine the actual harm and risk to the child.” Other than noting it as a child concern report, the Department took no action in relation to the 19 April 2011 notification.
There then appears to have been a brief, relatively quiet period, during which there was no involvement of the police or the Department, but on 26 August 2011, the mother again contacted police following the child returning into her care from time with the father that day. The police report says that the mother reported that the child said “mum, I’m so sore. My bottom is really sore. It’s the naughty games I play with Daddy.” The mother told police that she then observed the inside of the child’s bottom to be quite red, and attempted to take the child to a doctor, but was unable to find one that was open. The mother then had the child ring the father, and recorded the conversation on a digital voice recorder. Police records note:
[The child] has said on the phone “it’s the princess game – I don’t like it. I don’t like you fucking me” (interpretation by the informant). This recording has been heard by the reporting officer and a CD copy has been made. The reporting officer interprets this conversation slightly differently believing the victim child’s states “I don’t like you FLIPPING me” going on to state “when you were taking me off the Tinkerbell Castle.”
An Icare interview was then conducted with the child on 28 August 2011 in which the child discussed the “princess game” she plays with the father (showing bowing, curtsies and dancing around) and said that her bottom is sore from when her father throws her (describing flipping off the makeshift “castle”). The child denied knowing what “the naughty game” was.
Police concluded that there were no concerns of any sexual offence at this time.
At least on the evidence, things again thereafter seem to have quietened down, with the father continuing to spend time with the child on a fortnightly basis from Friday evening until Saturday afternoon.
In about June or July 2013, the father commenced working regularly in Melbourne, and then in October 2013, relocated to H Town in Western Australia. In December 2013 the mother also moved to Western Australia, although to an area in the south of that State.
In March 2014 the parties recommenced their relationship, cohabiting in H Town in Western Australia. Living with them were both the child and Y. The parties are in considerable disagreement as to what occurred during their period of cohabitation in H Town. However contemporaneous records are contained in principally three sources; firstly, the mother’s Counselling Service notes, secondly, Western Australian Police reports, and thirdly, documents held by the Department of Child Protection of Western Australia.
First in time appears to have been the involvement of the Counselling Service. The mother seems to have re-commenced with that service on 6 May 2014. Her presenting issues then were largely anxiety, and her poor relationship with her father, although the records of her first consultation appear to note that the mother “is needing to drink two glasses of wine a night to settle herself but wasn’t much of a drinker before this.” On 20 May 2014 the notes record “anxiety issues – doesn’t like going out; requires one and a half days to prepare to go shopping; uses alcohol to calm feelings.” A little later the notes record “currently socially isolated and financially dependent upon [the father].”
An important but undated note is contained at tab 11 of the tender bundle. That positioning allows it to be identified as having likely been created in May 2014, however its precise date is probably not overly relevant, as it plainly pertains to a time during cohabitation. It reports a physical assault on the mother by the father approximately ten days earlier. Particularly, it is said that later in the evening in question, the mother and father “were in the bedroom and for no apparent reason [the father] grabbed [the mother] and aggressively threw her across the bed causing her to slam into the railings of the bed…” The mother reportedly received two large bruises from the incident.
The notes continue “[The mother] reported that the next morning while she was in the bathroom, [the father] came into the bathroom and forced himself upon her sexually against her wishes…” The notes then go on to record that the mother has sought legal advice and “has initiated her plan to leave and return to Perth.” A little later it records that the mother “is mainly fearful of how [the father] will react to her leaving. But is confident that she can and will once adequate plan is in place.”
The father says that this is evidence that what thereafter occurred was all part of a deliberate plan to enable the mother and the children to leave H Town for elsewhere.
To like effect are the counselling notes of 24 June 2014, which record that the mother was preoccupied regarding her relationship with the father, compared to whom she feels that they are “just too different.” She was then considering moving back to Perth or the south west of Western Australia to live by herself with the children, but was intending to make arrangements for the father to have regular access. There then appears “reported an incident where [the father] forced himself upon her sexually despite [the mother] stating that she did not want to engage with him. [The mother] felt unable or unwilling to stop him however did not describe the scenario as an abusive incident. [The mother] described it as “just not on” and “inappropriate.” [The mother] did not report any other events such as this with [the father].” The mother has subsequently alleged that in fact the father had raped her, but that she did not then report that, as she, in effect, was not ready to.
Although on 22 July 2014, the mother reported improvements in feelings and anxiety, on 5 August 2014 she reported a further physical assault upon her by the father.
By then, on 1 August 2014, Y had made a disclosure to Student Services at his school. The note of the disclosure is as follows:
[Y] came into Student Services saying he needed to speak to me. I met with him and he said he was worried about his sister again. He said she came back from the weekend with her dad and was “withdrawn.” He said his sister said she was “uncomfortable” sharing a bed with her dad. He also said his sister reported that she and her father slept in the bed together “naked,” “there were no jammies.”
It is difficult to put that into context because, at least according to the counselling notes, the parents were then in fact still residing together.
On 18 August 2014 the mother reported to the counsellor events which allegedly occurred on the previous Friday, seemingly 15 August. The notes read “[The mother] has been admitted into [H Town] Women’s Refuge following an aggressive verbal altercation with [the father] last Friday. [The mother] advised that [the father] unexpectedly stayed home from work on Friday and was silent all day. He began to drink and then in early evening a verbal altercation escalated to him yelling directly in [the mother’s] face at which point [the mother] retreated to her bedroom with her two kids. [The mother] did not believe she could leave at this point however upon waking on Saturday morning was able to gather her emergency pack and left with both children for the women’s refuge.”
A further disclosure was made by Y to school counsellor on 26 August 2014. That was recorded by the school as follows:
[Y] said he is worried about his sister. She came home from her dad’s house and was “moody.” She then went on to tell [Y] about “icky things,” “icky things on the bed,” and she said she watched movies of people naked.
According to the school records, the mother was advised of this conversation.
On 29 August 2014 an Interim Violence Restraining Order was made naming the mother as the person protected, and the father as the person restrained.
On 1 September 2014, a worker from a domestic violence victim support agency, made contact with Ms J, a social worker employed by an organisation known as “Q Group” in H Town. Ms J then spoke to the mother, who told her “my daughter came home from her father’s house on Saturday afternoon (30 August) and her behaviour was abnormal.” She then went on to detail that the child was refusing to take her clothes off to shower, and indeed it had taken her until that morning to get her to shower. The mother then brought the child to see Ms J on the following day for an introductory appointment. In answer to leading questions from Ms J, the child said that she had watched a rude movie once at her father’s, and went on to say “the people were naked.” There were then some further leading questions asked about the child sleeping in the same bed as the father, to which the child disclosed that the father comes into her bedroom when she is in her bed, that he sometimes touches her on her private parts, which sometimes hurts, and that when that occurs, she says “daddy please stop it and daddy will you please listen?” The child further said that when she returned to her mother’s she felt angry. Ms J then contacted the Western Australian Department of Child Protection and police.
In due course the child was interviewed by Ms K, who was seemingly attached to Western Australian Police. In that interview the child disclosed that the father tickled and pinched her vagina which caused it to get red, and on another occasion, whilst pretending to cuddle her, with one arm touched her vagina and pulled her dress up a little bit, to make sure it was “the right spot.”
At some stage which is unclear, the father was contacted by police, but declined to be interviewed. However the investigation continued.
Although it does not appear to be in the transcript of the child’s interview with Ms K, there is a handwritten comment in the police records dated 10 September 2014, where it is noted “during CAI child indicated “mum told me to tell all those things/everything.””
On 5 September 2014, the Western Australian DCP wrote to the mother advising of its investigation, and recommending that until the investigation was finalised, time between both children and the father be suspended.
On 19 September 2014 Ms K interviewed Y at his school. He repeated much of what he had previously told his school counsellors, but there appears a note in the police records as follows:
It appeared to officers that [Y] had been somewhat “coached” in his responses and while he identified that his sister had told him things about her father he was not able to particularise what the “icky” things were, or what the “icky” movies had been.
In the meantime Western Australian Police had made contact with New South Wales Police, and had identified that the mother had, as I have noted, years earlier made an allegation in relation to Y having been abused. It seems as though the officer in charge of the Western Australian investigation then became suspicious that the mother may be using the children for an ulterior motive.
The mother commenced proceedings in the H Town Magistrates Court seeking parenting orders on 19 September 2014.
On 26 September police contacted the father. He reported concerns about the mother’s drinking and that he feared that she was going to “take off” with the children to Eastern Australia.
On 27 September the father collected the child from school, which prompted the mother to make contact with the Department, who determined not to intervene.
On 22 October 2014 the Department provided the father with correspondence identifying that it was its view that the children would not be at an immediate and significant risk of harm if they were to have contact with him.
Those proceedings were transferred to the Family Court of Western Australia on 23 October 2014. On 24 October the father recommenced spending time with the child, who on returning from overnight time, allegedly told the mother “I didn’t have to sleep with daddy anymore. I slept in [Y’s] bed. He had left a lot of lolly papers under the bed.”
On 12 December 2014 consent orders were made suspending the father’s contact with the child, seemingly so as the mother could holiday away from H Town. Then, whilst on holidays with the mother, the child allegedly made a further disclosure to her, saying “mummy. Its happened again.”
The child was then re-interviewed by Western Australian police on 16 January 2015. She made disclosures, including that the father had touched her private parts three times, once when she was five, and two times when she was six. She described the father inserting his fingernail into her vagina. She also made disclosures of the father physically assaulting her by bashing her, or dropping her. Departmental officers advised the mother of the interview, and told her that she should not permit the child to spend time with the father.
On 6 February 2015 Departmental officers met with the father and, according to a note of that date, advised him that “he has been assessed as being ASH assessed as causing the significant harm of sexual abuse on his daughter.” The evidence does not enable me to be confident what “being ASH assessed” means.
In about late March 2015, it appears as though Western Australian police resolved not to proffer any charges against the father for sexual abuse of the child. In addition to there being a lack of corroborating evidence, a note of the conversation between the relevant police officer and a Departmental officer records “he stated that mum hasn’t helped matters given she made allegations before that there would be too much a defence lawyer could use.”
Notwithstanding the absence of any intention to charge the father, on 13 April 2015 orders were made permitting the mother to relocate with the child to B Town in Queensland. Orders were also made for the father to spend supervised time with the child at the E Town Contact Centre.
On 1 May 2015 the mother and the children relocated to B Town. By then the father had not spent time with either of the children since December 2014.
Subsequently the father engaged with the Department and persuaded them to overturn their finding of substantiation of sexual harm against him.
Notwithstanding the orders permitting the father to spend time with the child at the E Town Contact Centre, he did not do so until 10 December 2015. Also present on that occasion was the first Family Report writer, Mr L. By then, in her interview with him, the child had told Mr L that if she were to have unsupervised time with the father, he would “touch my private parts” and “pinch me down there.”
Mr L recorded his observations of the father’s re-engagement with the child in the first Family Report. Mr L noted that, although initially polite but reserved, the child “appeared to begin to relax as the visit progressed.” Nonetheless the child kept a distance between herself and the father, and made no attempt to touch him, or be touched by him. At the conclusion of the visit the child made it clear that she did not wish to touch the father whilst saying goodbye.

Mr L then re-interviewed the child. When asked how she felt about the father, he reported “she shrugged her shoulders, and when asked whether or not he had been nice to her, she stated “because you two were around and he had to be nice.””
Paragraph 60 of the first Family Report continues:
[The child] was then asked how she thought he would have been if no one else had been there, which she immediately stated that he would be “touching my private parts and being mean to me.” [The child] was then asked whether she felt that he would be mean to her all the time, to which she replied that he “always did mean things, every time I saw him and pinching me down there.” When asked why she did not touch the father, she said that she was “really scared of him.”
At [83] Mr L recorded that he thought that the child’s disclosure to him immediately following a visit to the father “is of real concern.” He concluded “the manner of her disclosure does not indicate coaching and in my view needs to be taken seriously.” He opined that there may well be substance to her allegations of sexual abuse, and recommended that the father’s time be suspended.
On 17 December 2015 the father had a second supervised visit with the child at the E Town Contact Centre. The mother’s evidence is that the child’s behaviour afterwards was noticeably odd, and she appeared to be fearful, including destroying a toy and a card that the father had given her during that visit.
At around that time, directions for the preparation of the matter for the trial were made, and the matter listed for hearing. However on 16 March 2016, interim consent orders were made, providing for equal shared parental responsibility in relation to the child, and for the child to live with the mother. A regime of therapeutic counselling was also ordered for the child, and the counsellor was left to determine when, if at all, the child should re-commence spending time with the father, and the circumstances in which that time might occur. It was then anticipated that, after re-introduction of the child to the father, a further updated Family Report would be prepared in due course, and the matter again proceed to trial.
The counsellor that the child commenced to see was Ms M. Six such sessions occurred. However, ultimately Ms M declined to be further involved, noting that “the child has been consistent in all sessions regarding her father. She does not speak positively about him and does not want any contact with him, citing fear related to past events and fear of future harm as a reason. I would be concerned about the child’s emotional well-being if she was forced to have contact with her father.”
Nonetheless, for reasons which are not altogether clear, in fact supervised visits thereafter ensued. It does not appear as though the mother prepared the child for those, as the child told the second family consultant who later prepared a further Family Report, that “her mother simply told her one day she was going there to see her father.”
The notes of the Contact Centre which supervised those visits were in evidence before me. The first such visit was on 19 November 2016. Initially the child was reluctant to engage with the father, although she ultimately did so. However the child told the supervisor that she was nervous, and the supervisor recorded that the child was wringing her hands together during the visit. At the conclusion, the father asked for a hug, and whilst the child permitted him to hold her, she held her body and face away from him, whilst he put his arms around her shoulders and gave a squeeze. She then moved quickly away.
The next visit appears to have been 10 December 2016. Initially the child refused to give the father a hug, and would only consent to a hand shake. Their conversation appeared to be limited, with the child only giving short responses to the father. She once touched the father on the arm during the visit, but refused to hug again at the conclusion of it; instead they again shook hands.
A third visit occurred on 17 December 2015, and appeared to go reasonably well. The Contact Centre notes state that the father and child watched videos together, played a soccer game, and were smiling, laughing and chatting. At the conclusion, the father asked for a hug “for Christmas,” to which the child agreed, although the Contact Centre notes record “they hugged quickly then she moved away.”
A further visit occurred on 15 January 2017. At the commencement the father went to hug the child, however she did not return the hug. Conversation appeared stilted, and when asked if she would like to see her brothers in B Town, the child declined. The child was observed to be jiggling her legs in a nervous way. She frequently checked the time. At the conclusion of the visit the father hugged the child, who hugged him back, but only with one arm and patted his back.
There is a co-ordinator’s note to the Contact Centre’s records for 15 January, which observed that “there were some serious concerns about the supervision and lack of support for the child and lack of intervention by the supervisor.” It is then said that the particular supervisor no longer works for E Town Contact Centre.
The next visit was on 11 February 2017. According to the Contact Centre’s notes, the child observed the father walking towards her, but was wringing her hands together at that time, and it does not appear as though there was any physical greeting between them, but only a verbal one. The child deployed short answers in response to the father’s questions. At some stage the child began tapping her foot, but in answer to a supervisor’s question, indicated that she was “OK.” Although she did play some games with the father, it appears as though the child was anxious for the session to conclude. At its conclusion the father asked for a hug, which the child permitted, but did not reciprocate.
On 4 March 2017 a further visit occurred. Again there does not appear to have been any physical touching at the commencement of the visit, which was characterised by the father asking the child questions. She did not ask for the visit to conclude when prompted by the supervisor.
The father and child played some games with water and had some conversations, but the notes record “[The child] was kicking her legs and wringing her hands as [the father] talked to her, [the child] then said to the supervisor “I think that’s enough.” She then asked for the visit to conclude.” At the conclusion, the supervisor suggested that the father bring lunch to the next visit, and the father asked the child if she would like that, and what she would like, and the notes record that they then decided on fish and chips. At the conclusion of the visit the father asked for a hug, and whilst the child moved to him, she turned her body away, and apparently did not reciprocate the hug.
The final visit was on Sunday 19 March 2017. Again there was no physical touching at the commencement of the visit, and initially the father sat down opposite the child. As agreed, he had brought with him fish and chips. When he asked the child if she was hungry, she responded “no” in a quiet voice, to which the father said “that’s rude.” The father asked her whether she had had lunch, to which the child nodded her head and said “yes.” The Contact Centre notes record that the “father stared at the child and said that he had texted her mother to let her know that he was getting lunch for them and that he was really looking forward to having lunch together.” The father was plainly upset that the child had already had lunch, and the child appears to have picked up on this. Her eyes began to tear, but the father began eating whilst not looking at the child. The Contact Centre notes state that “the father looked over at the child then said “are you going to join me and come and have something to eat” to which the child shook her head negatively. Her eyes began to redden, and after about a minute the child indicated to the supervisor that “I want to go now.” The observation notes are that her shoulders were slumped and she was wringing her hands together with her head down, her eyes were red and teary. Tears then began to run down her face. She told the supervisor that her stomach was tight and sore and that she was also anxious.”
The supervisor told the father that the child wanted to end the visit, and that she was upset, to which the father stated “no,” shaking his head negatively, and then said “no I will not end the visit.” The supervisor advised the father that the visit was being ended as the child was visibly upset, and that it was in her best interests. The Contact Centre notes record that the father responded “what about my best interests.”
The father concedes that he then became emotional and teary, as did the child. The father apologised to the child, and said it was upsetting for him, as he had looked forward to having lunch with her, but the child did not verbally respond. The father then gave her, with her consent, a photo album of her at various ages from birth. The child flicked through the album, but gave it back to the father, indicating that she wished to go. The Contact Centre notes then continue:
[The father] became teary telling [the child] that he looks forward to seeing her and that they used to have a really good relationship and fun together, while he was talking [the child] began wringing her hands together, shredding a tissue that she held, and moving her legs in jerky up and down movements, her eyes were wide and her body straight and tight as she stared at the father, supervisor looked at father and shook her head negatively whilst she put her hand on [the child’s] knee which was moving in jerky quick up and down movements and asked if she was ok, [the child’s] shoulders slumped and she let out a deep breath and her leg movements ceased but she did not verbally respond. [The father] said sharply “this is what I should be doing for you comforting you” said “you have been told a lot of lies” [the child] straightened and said in a firm voice while looking at father directly “I haven’t been told anything.” [The father] stated quickly “I won’t give up on you, on us, I’m going to keep trying.” [The father] got up from the chair said “I am going, [the child] said “bye” [the father] said bye and left the tv room…
This is the last occasion that the father has spent time with the child, as the E Town Contact Centre thereafter refused to further supervise time.
On 15 May 2017 interviews for an updated Family Report were undertaken by Mr N. The child refused to meet the father on that occasion. At paragraphs 61-70 of the second Family Report, Mr N reported as follows:
61. [The child] said there was no way she could foresee feeling safe around her father and there was nothing people could do to help her feel safe. Whilst discussing the previous supervised arrangements, [the child] advised that the presence of a contact supervisor allowed her to feel, “only a little bit safer.”
62. When asked to identify three wishes in respect of what she wanted to be different regarding her father, [the child] said first she would wish for her father to be safer, “like a normal dad” and that he would not hurt her anymore. Secondly, she would like him to be nicer and finally, to be a calmer person, alleging when he becomes agitated then is not nice. [The child] was asked what she thought could possible improve the situation and she responded, “Not have this dad” and then perhaps she may feel a bit safer. However, later in discussions she suggested not having a father at all in her life would make things better.
63. [The child] was asked to recall the last supervised visit with her father and said he brought fish and chips with him and, “he was rude” and did not speak to her nicely. [The child’ said she left the contact room early and burst into tears, but she was uncertain why her father was not removed or asked to leave the room by the supervisor instead. [The child] was uncertain what her father did to make her so upset, but she cried because she wanted to leave and end the visit. It was particularly noted when this issue was discussed [the child] seemed to become stressed as she started to fidget quite a lot.
64. [The child] expressed criticism that on nearly every visit with her father he would purchase her a gift. She stated that she gave most of the things away because she does not want anything from him and usually placed items in the recycling bin.
65. [The child] was asked to describe what her father was like. She dislikes his cooking and he reportedly would give her mother food she was not supposed to have. The only positive memories she had was of a slideshow with her father. Whilst comparing and contrasting both parents, [the child] identified positive qualities regarding her mother stating that she liked everything about her, she was safe, and she helped her pronounce different words. When the same question was posed in respect of her father, [the child] advised she liked his blue eyes. When asked whether there was anything she disliked or sought to be different regarding her parents, as to her father, [the child] said she wanted him to be a safer person and regarding her mother, [the child] said she ([Ms Walls]) would like to move house and she, “kind of wants to.”
66. When returning to the issue of safety which [the child] spoke of above, she was again asked to provide further details as some of her comments appeared lacking. She said her father has, “done weird stuff,” in reference to when he lived in his unit and she had her own bed. [The child] continued, alleging her father would take her into his bed and, “do stuff” and it was later that she pretended to be asleep. [The child] said she remembered, “something happened,” but struggled to recall any detail.
67. When asked her views if the court decided she should spend additional time with her father, [the child] said she would feel sad and angry. If unsupervised time was a future consideration, [the child] advised she would feel angry and frightened because she would be uncertain what her father may possibly do to her. Conversely, [the child] was asked how she would feel if time with her father no longer occurred and she stated that she would feel happies and rated the intensity of such joy as a 10/10. However, she advised that if future time with her father ended her mother would likely feel a 9/10 (as a rate of happiness) and her father a 3/10 (very low happiness) regarding such an outcome. Somewhat poignantly, [the child] stated that she would like to forget about her father and even opposed any indirect future contact with him.
68. With respect to the current parenting arrangements, [the child] said she becomes angry and frustrated when she has to spend time with her father. She said, “My body gets angry and sad because I don’t want to be with him.” When asked to rate just how much she does not want to see her father, she responded immediately and advised that she rated this level of intensity as a 10/10, indicating a very high rate. Moreover, [the child] was adamant that she does not wish to participate in any counselling with her father because in her view, it would be of little benefit because the difficulties with her father she viewed as, “permanent.”
70. She was asked a final time about seeing her father even momentarily on the day of the scheduled Family Report interviews and advised the Court often had an expectation that children needed to be seen with each parent by the Family Consultant. In response, [the child] firmly said she would come angry, upset and yell at this Family Consultant, “No I do not have to.” [The child’s] views were re-examined on multiple occasions in an attempt to assess the possibility of facilitating an observation session with her father, but [the child] consistently refused. It was at this stage she displayed a physical reaction suggestive of high anxiety as her face/neck/cheeks all turned red and she seemed flustered.
Also in the course of the second Family Report preparation, Y was interviewed. At 78-79 Mr N reported as follows in relation to that interview:
78. [Y] explained that when [the child] returns from time with her father that she seems to change, she becomes angry, experiences random outbursts and runs off to her bedroom crying. He said she become withdrawn and their mother comforts her by watching television together, playing a board game or they do artwork together. [Y] added that his sister can be sad or angry and has even hit him and whilst he does tell his mother, he understands her feelings and frustrations.
79. [Y] said that before the regular visits with her father, [the child] seems nervous, sad and angry, but such feelings are not to the extent as she displayed when the visits first commenced. He said generally [the child] is fine, but she appears to feel worse after visiting her father and, “She gets so mad and angry, it’s hard to see is a big brother.” [Y] added that he has noticed his sister’s hearing has improved, as well as her pronunciation of various words. In general terms he advised that his sister seems a lot better when she is not spending time with her father.
Later in his report, when discussing the vehemence of the child’s refusal to spend any future time with the father, Mr N concluded “.. this issue was explored exhaustively and eventually [the child] appeared to demonstrate a physical reaction suggestive of a heightened level of anxiety and strong feelings of becoming uncomfortable. This Family Consultant was not in a position, nor assessed it as appropriate to have insisted, coerced or compelled [the child] to see her father which she opposed so strongly. To have done so would have been professionally unethical and not a child focussed decision.”
On 31 October 2017 the child made a disclosure to a fellow student at her school, which was then reported to a teacher, who in turn contacted police. The child was interviewed by Queensland Police on 1 November 2017, Y interviewed on 8 November, and the mother interviewed on 10 November. I know little about that investigation, other than it was eventually transferred by Queensland Police to Western Australia Police. Apparently Western Australia Police received information from Queensland Police on about 14 November 2017, and ultimately concluded their investigation in about April 2018, advising the mother that there was insufficient evidence to lay any criminal charges against the father.
All the while this trial continued to be prepared. Although at one stage it appeared as though the father had disengaged from the proceedings, he later re-engaged.

Current situation

As at the time of trial, the mother remained living in the B Town area, and was employed in the service industry. Y and the child continued to live with her.
The child is presently in grade five at O School in G Town. Whilst I know little of her current progress there, in 2017 Mr N contacted her grade four teacher, who advised that the child “does not display any behavioural issues, she follows school rules, does as she is asked and occasionally may require clarification due to her hearing issues.” Although there are occasions when those hearing issues means she misreads social cues and may react differently compared to other children of her age, she has learned various coping mechanisms which have helped her. Apparently she is academically below average, likely reflective of her hearing loss.
For his part the father is presently living in P Town, and has obtained some employment for a few days a week in Brisbane. He also works as a commission-only salesman.
Neither the mother nor father have re-partnered.

THE ISSUES

With the assistance of the parties during the course of the Trial Management Hearing, I identify the following as being the issues in this matter in the sense that their determination is likely to substantially inform the exercise of my discretion:
1.What is the nature of the relationship between each parent and child;
2.Would the child benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated;
3.What risk, if any, does each parent pose to the child;
4.Would each parent facilitate a meaningful relationship between the child and the other parent;
5.What would be the likely effect on the child of a change in primary residence from the mother to the father;
6.Could the parties’ communication adequately support equal shared parental responsibility;
7.What is the nature of the relationship between each parent and child;
8.Would the child benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated;
9.What risk, if any, does each parent pose to the child;
10.Would each parent facilitate a meaningful relationship between the child and the other parent;
11.What would be the likely effect on the child of a change in primary residence from the mother to the father;
12.Could the parties’ communication adequately support equal shared parental responsibility.

Once I have considered the relevant statutory provisions and legal principles, but in advance of the traverse of any residually relevant s 60CC factors, I shall discuss those issues individually and then proceed to determine the appropriate orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]
[1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The standard of satisfaction required

Section 140 of the Evidence Act 1995 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)      the nature of the cause of action or defence;
(b)      the nature of the subject-matter of the proceedings;
(c)      the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2]
[2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

The notion of unacceptable risk

It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings in the context of allegations of sexual abuse of a child. At [20] and [25] the Court said as follows:
20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. 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: cf. J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.
…
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In Harridge and Anor & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

“No contact” orders

Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692. However, a Court would only cut the relationship between the child and parent on such a ground with considerable hesitation.

ISSUE 1 – NATURE OF RELATIONSHIP BETWEEN CHILD AND PARENT

Ultimately the evidence in relation to the nature of the child’s relationship with both parents was not particularly controversial. Mr N said that, to his observation, the child’s relationship with the mother was positive and intact. He thought that the child’s primary attachment was clearly with the mother, and from that relationship derived nurture, comfort and support.
As to the child’s relationship with the father, Mr N said that it was not possible to observe it, and therefore his views of the relationship were formed from the balance of the material. He thought that, even if the father was correct that previously he had enjoyed a positive relationship with the child (although Mr N expressed some concern as to whether that may be accurate) it has nonetheless deteriorated quite substantially. He opined that it was currently a severely fractured relationship, from which the child derived neither nurture, comfort or support.
No challenge to that evidence was made by the father. I accept it.

ISSUE 2 – BENEFIT FROM MEANINGFUL RELATIONSHIP AND BEST MEANS OF FACILITATION

Mr N’s evidence is that the child benefits from a meaningful relationship with the mother, and that the best means of facilitating that relationship would be by her regularly spending face-to-face time with her mother, and for the mother to be involved in all areas of the child’s life. Leaving aside the issue of alleged parental alienation, the father did not seriously challenge that evidence, and I accept it.
As to the benefit which the child may obtain from a relationship with the father, Mr N’s evidence was that, leaving aside issues of risk, otherwise there was potential for the child to obtain benefit from the relationship. However the child was highly resistant to any relationship resuming, to the point where Mr N, despite his best efforts, could not persuade the child to spend even a fleeting visit with the father at the time of the second Family Report interviews.
It appears as though the father has successfully parented his three sons, who are all now young men. Leaving aside his propensity to engage in perhaps overly direct communication, and his demonstration of anger from time to time, it cannot really be doubted that the father has something to offer the child. He has considerable life experience and is likely the only realistic gateway to the child’s family on the paternal side. There is no reason to doubt that the child would not benefit from a relationship of substance with those family members.
It follows that I am therefore persuaded that the father does have some benefit to offer the child. However as Mr N has indicated, it seems highly unlikely that, at least at present, the child would countenance the relationship resuming.

ISSUE 3 – RISK POSED BY EACH PARENT

Overview

This was the central battleground of the case. The mother contends that the father is an unacceptable risk of sexual harm to the child, or alternatively, is an unacceptable risk of emotional harm. For his part, the father asserts that the mother has alienated the child from him, however he did not develop that to then assert that the child should move into his care, recognising that as unrealistic.

The father

With the assistance of the parties, during the course of the trial, I identified the points which suggest that the father is an unacceptable risk of sexual harm to the child as follows:
(a)The child has made disclosures of sexual and/or emotional abuse of her by the father on several occasions;
(b)The child’s disclosures sometimes contained considerable detail, albeit on occasion, little context;
(c)The recipients of the child’s disclosures have been varied, including the mother, Y, a counsellor (albeit in response to leading questions), a school teacher, police, and much later, the first Family Report writer and Ms M;
(d)On occasion, the child has evidenced distress before, during and after, spending time with the father, which may be consistent with having been abused by him;
(e)Initially, Western Australian DoCS found the notification of sexual abuse substantiated, albeit that was later reversed.
On the other hand, the following factual matters suggest that the father is not an unacceptable risk of sexual harm to the child:
(a)The child has told some interviewers that the mother has told her what to say, and the mother’s rationalisation for the child having said that (namely, that she encourages the child to disclose whatever has happened to her, rather than suggesting a particular version) seems rather contrived;
(b)The child’s disclosures often lacked context;
(c)The father has never been charged with any offence against the child;
(d)The timing of the disclosures by the child have coincided with the mother’s desire for a particular gain (eg; leaving H Town) and hence coaching her to make them would have been strategically advantageous;
(e)The evolution of the mother’s allegations of rape by the father – initially not so reported – raise questions as to her credibility generally;
(f)There is nothing in the father’s history to otherwise suggest he is sexually interested in children;
(g)The mother’s recommencing cohabiting with the father in 2014 is seemingly inconsistent with her view in 2009/10 that he had sexually abused the child;
(h)The child’s claim that the father caused her deafness and strangled her when she was 2 years old, are patently false, yet one held by the child with the same fervour as the claims of abuse.
To my mind, weighing those various factual considerations in the balance, tells strongly against any conclusion that the father is an unacceptable risk of sexual harm to the child. I place particular significance upon the reversal of the substantiation of risk that had previously been found by the Western Australian Department, the absence of any police action against the father, and the fact that the mother herself recommenced cohabitation with the father in 2014 notwithstanding, on her view, the history of the father having sexually abused the child some years earlier.

That is not to say that the father poses no risk of sexual harm; the child’s disclosures necessarily mean that some risk must be acknowledged, however I do not assess the likelihood of father sexually abusing the child to be any greater than minimal.
The second species of risk which the father was said to pose is emotional harm. As to that, the points which suggest that the father poses such a risk are as follows:
(a)The most recent attempt to coax the child to see the father resulted in Mr N aborting that attempt, given the child’s display of “a physical reaction suggestive of high anxiety…”;
(b)The E Town Contact Centre refused to conduct further supervised visits of the father’s time with the child, on the basis that they posed a risk of emotional harm to the child;
(c)Ms M, a social worker, declined to therapeutically further engage with the child with a view to reintroducing her to the father;
(d)The child has not indicated any wish to spend time with the father, and quite to the contrary, is vehement that she does not wish to;
(e)The prospect that, if the father did in fact sexually abuse the child, then forcing her to spend time with him may re-traumatise her. Mr N’s evidence was that identical re-traumatising may occur if the father did not abuse the child, but she nonetheless believes that he did, as seems to be the case here;
(f)The father has a demonstrated history of poor emotional self-regulation, both with the mother and the child.
On the other hand the following points suggest that the father is not an unacceptable risk of emotional harm to the child:
(a)The child was able to, with a degree of enthusiasm, engage with the father for brief periods of time during the E Town Contact Centre times;
(b)It is likely that the child has been exposed to the mother’s view of the father, and may be reflecting those, rather than her own, experience-based, beliefs.
Although the mother put this aspect of her case as an unacceptable risk, it does not seem to me as though the evidence demonstrates that the father, per se, presents an unacceptable risk of harm to the child of an emotional kind, or at least there is no sign on the evidence that her spending time with him in the past has affected that sort of harm on her. Rather, it seems to me that the likely reaction of the child to spending time with the father is a matter which I should take into account when assessing her best interests, in the context of whether there should be an order for time and communication between her and the father.

The mother

The evidence would not permit me to conclude that the mother has set about to alienate the child from the father. That said, there are some matters which do point in that direction, and particularly:
(a)She has, on several occasions now, been associated with allegations of sexual misconduct by others against her children;
(b)The H Town allegations in relation to the child, plainly were used as a basis for obtaining permission to relocate away from that region;
(c)Her campaign in 2010, involving repeatedly taking the child for medical examinations, suggests a desire to achieve an adverse finding against the father.
However it may be seriously doubted that the level of detail in the disclosures which the child has given on occasions, could be wholly without some species of factual foundation (albeit perhaps not necessarily sexual assault) and further, the way in which the H Town allegations first came to light – by Y disclosing to a counsellor at school, rather than the mother or the child making disclosures – is most unusual.
Further, the mother is an individual with a long history of, initially, a very troubled childhood, and later, drug and alcohol abuse, sexual abuse and poor emotional functioning. Her asserted beliefs in relation to the father having abused the child must be understood against that background.
I am not persuaded that the mother poses an unacceptable risk of harm of alienating the child from the father. In any event, as I have noted, notwithstanding that was the father’s case, he did not press for a change in living arrangements for the child.

ISSUE 4 – WOULD EACH PARENT FACILITATE MEANINGFUL RELATIONSHIP BETWEEN OTHER AND CHILD

Mr N’s evidence in this was unchallenged. He accepted that the mother is not supportive of a relationship between the child and the father, and he contemplated, even if orders were made requiring that relationship to resume, that the mother would find it extremely difficult for her to support it. I accept that the mother has no interest or inclination of supporting a relationship between the child and the father.
As for the father, Mr N’s evidence was that, although the father indicated that if the child were to live with him, he would support a relationship between her and the mother, and facilitate the child spending time with the mother, he was uncertain if it was genuinely held. He thought that there was a good prospect that the father’s capacity to promote the relationship would be limited, and doing so beyond him. I share those concerns. In any event the father does not now seek an order for the child to live with him.

ISSUE 5 – WHAT WOULD BE THE LIKELY EFFECT ON CHILD OF PARTIES’ PROPOSALS

The mother’s proposal is that the child should not spend time nor communicate with the father. Mr N opined that was likely to see the child more settled and content in her lifestyle than living with the father. Given she holds steadfastly to her belief that the father poses a risk of harm to the child, and believes that he has harmed her in the past when she was young, that informs that the child was likely to perceive that she was safer under those arrangements. He said that the absence of the father in the child’s life might cause a sense of loss, but thought that, so long as her safety was attended to, and she perceived herself to be safe in the mother’s care, it was likely that the child could be supported through any sense of loss.
I accept that evidence.
At the time that Mr N gave evidence, the father’s primary position was for the child to undergo counselling, but remain in the mother’s care. Mr N thought that the impact of that on the child would be an extremely difficult one. He did not seem optimistic of the prospects that therapy would convince her that her memory was inaccurate. He thought that going down that path would be a very difficult journey. Moreover, there was the risk of re-traumatisation of the child.
As to the father’s alternative proposal (that was at the time of Mr N’s evidence, still pressed by him) of the child moving to live with him, Mr N thought that would be disastrous. The child’s primary attachment was with the mother, he said, and her sense of security and emotional warmth was derived entirely from her. He described the mother as being the child’s safety net, and that she perceives that the mother protects her. He thought that to remove her from someone from whom she derives a sense of safety, into the care of someone whom she believes has abused her, would make her feel like she was being thrown into the lion’s den. He thought that description was justified, because that was his perception of the sense of fear that the child had of the father. He predicted that the child might withdraw if forced into the father’s care, or abscond, even though she is still young. He thought that the prospect of her self-harming was limited, but he could not exclude it.
I accept that evidence.

ISSUE 6 – COULD THE PARTIES’ COMMUNICATION SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY

Mr N’s evidence on this point was emphatic. He said that in answer to the question, “absolutely not.” I accept that evidence. These parties cannot communicate in any civil way. It follows therefore, that an order for equal shared parental responsibility would be a complete failure.

SECTION 60CC CONSIDERATIONS

It will be appreciated that I have already addressed both primary considerations, and a number of the additional considerations, when traversing the issues. Nonetheless I make the following further observations.
It is difficult to assess the nature of the relationship of the child with other members of the paternal family on the evidence. It is likely that she is aware of them, and has some recollection of them, but presently derives no real benefit from those relationships, which are now fractured, and in any event of some vintage.
The father, somewhat inexplicably, did not make any effort to spend time or communicate with the child between April and November 2015, notwithstanding that there were orders permitting him to do so.
The father presently does not pay child support, albeit that reflects the state of his present assessment.
The father lives in P Town and the mother in B Town. Inevitably there would be practical difficulty and expense in the child spending time with the father on a regular basis.
I am satisfied that there has been family violence between the parties, and family violence orders have been made from time to time. The inference which I draw from the latter is that these parties will, on occasion, behave in a violent way towards each other in various situations.
Whilst it would be preferable to make an order least likely to lead to the institution of further proceedings in this case, that consideration cannot outweigh the other factors which otherwise inform where the child’s best interests lie.

PARENTAL RESPONSIBILITY

I am satisfied that there are reasonable grounds to believe that there has been family violence between these parties. The presumption of equal shared parental responsibility therefore does not arise. In any event, I am satisfied that an order for equal shared parental responsibility would be wholly unworkable. There will need to be an order for sole parental responsibility, and it will need to reflect the primary living arrangements for the child.

WITH WHOM SHOULD CHILD LIVE

As I have indicated, ultimately the father did not press for any orders which would see the child move into his primary care. I am satisfied that indeed any such order would not be in the child’s best interests. She has always lived with the mother, has a primary attachment with her, has never lived solely with the father, and has a genuinely held fear of the father as posing a risk of harm to her.
Plainly it is in the child’s best interests that she live with the mother.

TIME AND COMMUNICATION WITH FATHER

The mother’s proposal was that the child neither spend time nor communicate with the father again. The father’s case was that the child should live with the mother, undergo counselling from a clinical child psychologist, so as if possible, she could be persuaded to again start to spend time with him.
During the course of the trial, with the parties’ assistance I identified the following points as in favour of the mother’s proposal, or against the father’s proposal:
(a)The child’s primary attachment is with the mother, and she has a relationship with her from which she derives her principal nurture, comfort and support;
(b)The child has always been primarily in the mother’s care, has never primarily lived with the father, and has not spent any time whatsoever with the him since April 2017;
(c)The mother’s proposal would wholly eliminate any risk of harm to the child posed by the father;
(d)The child’s relationship with the father is currently severely fractured;
(e)The child has regularly expressed strong views about not wanting to spend any time with the father, which predicts limited prospects of success of her either positively engaging with any further counselling, or otherwise working towards rebuilding a relationship with the father;
(f)There is a level of consistency in the child’s independently expressed views to various experts over a lengthy period of time, that she does not wish to have a relationship with the father, which therefore require those views to be given weight;
(g)If the father did sexually abuse the child, spending any time with the father would likely further traumatise her;
(h)If there was credibility to the claim of parental alienation by the mother, supervised contact visits would have given the opportunity for evidence of a positive/loving relationship between the father and child to surface;
(i)The mother will not support a relationship between the child and father, which predicts the prospects of rebuilding it as low;
(j)Even if the allegations of sexual abuse are false, and the mother coached the child to make them, the child’s beliefs and attitude towards her father may nonetheless never change, even with the interventions proposed by the father;
(k)The father’s proposal is premised on the fact the child will be counselled by a child psychologist to “undo” the parental alienation to her; however there is no certainty this will work, and may even do more damage to her mental health.
On the other hand I identified the following points as favouring the father’s proposal, or telling against the mother’s:
(a)The father’s proposal would likely optimise the benefits which the child would derive from a relationship with him;
(b)The father’s proposal is the only one which see any realistic prospect of the child ever having a meaningful – or any – relationship with him, or indeed the paternal family generally, including her three half-siblings;
(c)The father’s proposal is the only one which might see the child have a meaningful relationship with both parents;
(d)The father’s proposal would not disrupt the child’s attachment to the mother, or her sibling bond with Y;
(e)The father’s proposal might, to some degree, mitigate any risk which the mother’s household poses to the child, of her being alienated from the father;
(f)The father’s proposal is perhaps the one least likely to lead to further litigation, as he concedes that if he does not obtain the orders he seeks, he will seek to re-litigate these;
(g)The Family Report Writer supported recommendations for further counselling by a clinical child psychologist if there was a finding that there was no potential risk of sexual harm posed by the father (although that precise finding is not made by me);
(h)To the extent that the child’s beliefs of abuse are false, the father’s proposal is the way in which the child may best be disabused of those beliefs.
Weighing those matters in the balance, unfortunately leads firmly to the sad conclusion that the mother’s proposal is the least likely to harm the child. It gives me no pleasure whatsoever to so conclude, particularly given my view that the father does have something to offer this child. However there is really no doubt that the mother’s proposal is the only one which sufficiently protects the child from the consequences of her belief that the father harmed her, and continues to pose a risk of harm to her.
Moreover, I place weight upon the fact that Ms M was unable to move the child forward with a view to reunifying with the father, and to repeat that process, albeit with a clinical child psychologist, rather than a social worker, is by no means likely to lead to a different conclusion. Particularly the child’s subsequent behaviours at the E Town Contact Centre, and with Mr N, predicts that she is likely to respond very negatively to any further attempt to re-introduce her to the father, and experience serious distress, anxiety and upset. That plainly is a form of emotional harm, and to my mind, far outweighs the chance that a further intervention may achieve some success in re-introducing her to the father.
Therefore, unfortunately, in the sad circumstances of this case, I am satisfied that the child’s best interests lie more in the mother’s proposal than the father’s. There will therefore be no orders for the father to spend time with the child, save that he will be permitted to have occasional written communication with her and be able to send her gifts on special occasions, as contemplated by the Independent Children's Lawyer and mother.

OTHER ORDERS

Otherwise there will be orders largely as proposed by the Independent Children's Lawyer and mother, as I am satisfied that they are in the child’s best interests.

CONCLUSION

For these reasons there will be orders as set out at the commencement of this judgment.

I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 7 November 2018.

Associate:

Date: 7 November 2018

[2018] FamCA 905

7 November 2018

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