Richards & Brown
[2011] FamCA 662
•25 August 2011
FAMILY COURT OF AUSTRALIA
| RICHARDS & BROWN | [2011] FamCA 662 |
| FAMILY LAW – CHILDREN – Where allegations made father sexually abused child – Where positive finding of abuse sought then abandoned – Where young child – Disclosure process contaminated and flawed – Assessment of risk - No unacceptable risk of abuse – Whether appropriate to make positive finding abuse did not occur – In relation to some allegations positive finding of non-abuse unavailable – Assessment of parenting capacity – Nature of child’s relationship with the father – Where the child’s long term interests require time spent with father – Transitional regime from supervised to unsupervised time ordered. FAMILY LAW – EVIDENCE – Where father sought s 69ZT(3) ruling – S 69ZT(3) ruling made. |
| Family Law Act 1975 (Cth) – Part VII, s 61C, s 60CA, s 61DA, s 60B, s 60CC, s 60CG, s 61DA, s 64B, s 65AA, s 65DAA Evidence Act 1995 (Cth) s 140 |
| Goode & Goode (2006) FLC 93-286 M v M (1988) 166 CLR 69 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Johnson v Page (2007) FLC 93-344 W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 A. v. A. (1976) V.R. 298 Collu & Rinaldo [2010] FamCAFC 53 |
| APPLICANT: | Ms Richards |
| RESPONDENT: | Mr Brown |
| INTERVENOR: | Department of Human Services |
| INDEPENDENT CHILDREN’S LAWYER: | Stanfords Solicitors |
| FILE NUMBER: | SYC | 2689 | of | 2010 |
| DATE DELIVERED: | 25 August 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 7, 9, 10, 11 & 14 February 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schroder |
| SOLICITOR FOR THE APPLICANT: | Dignan & Hanrahan |
| COUNSEL FOR THE RESPONDENT: | Ms Obradovic |
| SOLICITOR FOR THE RESPONDENT: | CA Williams Legal |
| COUNSEL FOR THE INTERVENOR: | Ms Neville |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitors Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Ryan |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Stanfords Solicitors |
Orders
That all prior parenting orders are discharged.
That the mother shall have sole parental responsibility for the child, J Brown (“the child”), born … July 2005, in relation to her education.
That the parties shall have equal shared parental responsibility for the child in relation to her attendance upon counsellors, therapists and/or programs which concern sexual abuse and/or the child’s relationship with the father.
That the child live with the mother.
That the child spend time with the father as follows:
(a)from the date of the orders for a period of four weeks, each Saturday from 10.00 am to 2.00 pm at either his residence or the paternal grandfather’s residence supervised by the paternal grandfather, Mr Brown Snr; and thereafter
(b)each Saturday from 9.00 am to 6.00 pm at either his residence or the paternal grandfather’s residence supervised by the paternal grandfather.
That after Order 5 concludes that the child spend time with the father as follows:
(a)when the child commences school, during the school term time, each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday and commencing the first weekend after the commencement of the first day of school;
(b)for one half of the school holidays falling at the end of terms 1, 2, 3, 4 as agreed and if not agreed, the first half of 2012 and each alternate year thereafter and second half in 2011 and each alternate year thereafter;
(c)from 5.00 pm on the Friday prior to Father’s Day until 5.00 pm Father’s Day if the child is not already in his care;
(d)on the day after the child’s birthday as follows:
(i)from after school until 7.00 pm on a school day;
(ii)from 10.00 am until 7.00 pm on a non-school day;
(iii)at all other times as agreed between the parties.
(e) such other time as may be agreed between the parties.
School holidays are deemed to commence at 9.00 am on the first day after the public school term ceases and changeovers shall occur at 6.00 pm on the day in the middle of the school holiday period.
In addition to the time that the child spends time with the father pursuant to Order 6 above, on the following occasions the child shall spend time with the parties as follows:
(a)the father shall not have the child on the weekend which includes Mother’s Day; but in substitution the father will have the child with him on the following weekend at the same times as set out in Order 5(a) above.
(b)the parents are entitled to attend all events involving the child including:
(i)sporting fixtures;
(ii)special extra curricular activities for parents;
(iii)school functions and events that allow for parental attendance;
and the parent who has the child in his or her care on the day of such activity will be responsible for her care and transportation.
That for the purpose of spending time with the child, when the child attends primary or high school and during school holidays, the father will collect and return her at P shopping centre.
Provided the child is at home, the mother will encourage the child to speak with the father:
(a)by telephone between 6.00 pm and 7.00 pm on Tuesday and Thursday;
(b)in the event the child is unavailable, the mother shall encourage her to return his call that or the following day.
That the parties keep each other advised of their address and telephone numbers (landline and mobile phone numbers) and advise the other of any changes within seven days of such change occurring.
Pursuant to section 65L the Family Consultant is requested to:
(a) prepare the child to resume spending time with the father;
(b)to the extent the Family Consultant considers it appropriate confer with the parties or either of them in relation to the re-establishment of the child’s time with the father;
(c)explain to the paternal grandfather how best to fulfil his role as a supervisor.
The father shall, forthwith, confer with Dr B and/or any therapist recommended by him for the purpose of assisting the father to manage the re-establishment of his time with the child and facilitate his capacity to communicate with the mother about the child.
That the mother shall commence counselling to enhance her capacity to communicate with the father and to assist her to fulfil her parental responsibility in relation to the child’s relationship with the father and compliance with these orders.
That the mother is restrained from:
(a)discussing the child’s statements made on 10 April 2010 or any other associated event in the presence of the child or, subject to these orders, permitting any other person to do so (this order does not prevent a government child protection agency or police from interviewing the child in relation to any future matter relevant to the child’s welfare);
(b)criticising the father in the presence of the child or permitting any other person to do so;
(c)discussing any proceedings between the parties in the presence or within the hearing of the child or permitting any other person to do so;
(d)having the child attend a counsellor, therapist and/or program which concern sexual abuse and/or the child’s relationship with the father without his consent.
That the mother informs the father in writing as soon as practical of any specialist medical appointments with any psychologist, psychiatric, counsellor or therapist in relation to the child.
That within 14 days of these orders and within 14 days of the child’s subsequent enrolment at any school the mother do all acts and things to ensure that whichever school the child may attend from time to time, that the father is entitled to receive from the school copies of the child’s school reports and material similar to that provided to the mother.
That the mother furnish to the father within seven days of receipt copies of all order forms for school photographs for the child.
In the event of the child being hospitalised or requires significant medical attention, the parent who the child is with, shall notify the other parent as soon as practicable.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Richards & Brown is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2689 of 2010
| Ms Richards |
Applicant
And
| Mr Brown |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings which concern the parties’ six years old daughter, J Brown (“the child”). She lives with her mother, Ms Richards (“the mother”) and until April 2010 regularly spent time with her father, Mr Brown (“the father”).
The child’s time with the father ceased because, according to the mother, the child said he sexually abused her. Whether the father sexually abused the child or poses an unacceptable risk of sexual abuse comprised the pivotal issues in this hearing; the resolution of which has not been without difficulty. This is because while there is no doubt that on a number of occasions the child has described behaviour by the father which, if it occurred, would be accepted as sexual abuse, there are serious issues about the reliability of the child’s statements and evidence given by others about what they say the child said.
It is clear the disclosure process was contaminated through leading, repetitive and suggestive questioning. Nonetheless, five days after the mother said the child first disclosed sexual abuse by the father, the child was interviewed by the New South Wales Police Service (“JIRT”), in which she denied sexual abuse by the father or, indeed, anyone.
Immediately after police were notified about the allegation an interim apprehended violence order (“AVO”) was made. The effect of the interim AVO was, subject to an order under the Family Law Act 1975 (Cth) (“the Act”), to prohibit the father from contact with the child. Because there was no relevant order under the Act, contact between them ceased. A magistrate dismissed the AVO on 12 July 2010. There was thus nothing which prevented the father spending time or communicating with the child.
In following days, the father tried unsuccessfully to see the child at preschool and further Child at Risk notifications were made by members of the mother’s family to DHS. These notifications triggered JIRT consideration about whether a further interview of the child was warranted. NSW Police decided against another interview. DHS decided that they would interview the child.
The DHS interview occurred on 27 July 2010. In this interview the child made statements which suggest she had been sexually abused by the father. So that it is clear, the child had not been in the father’s care since 8 April 2010. It follows, that the father’s behaviour referred by the child in the DHS interview predated the JIRT interview. This invited consideration of whether the JIRT or DHS interview provided the more reliable account of what occurred between the father and child. For reasons which will be explained later, the JIRT interview is accepted as being more reliable and worthy of significant weight. The DHS interview was poor quality and in relation to the risk of harm issue warrants little weight.
The mother proposed that she would have sole parental responsibility for the child who would continue to live with her and not spend time with the father. In short, unless on a subsequent application a court exercising jurisdiction under the Act made different orders, the child’s relationship with the father would be terminated.
The father denies that he sexually abused the child or that there is an unacceptable risk he may do so. He is concerned about the mother’s role in the sexual abuse allegations; torn between his view the child should have strong relationships with both of her parents and the notion that perhaps the only way he can protect his relationship with the child from further ill-conceived or fabricated allegations of abuse is for the child’s time with the mother to be supervised. Ultimately, he sought orders for equal shared parental responsibility, that the child reside with the mother and a graduated arrangement which would result in her having substantial and significant unsupervised time with him.
Because of the complex issues an Independent Children’s Lawyer (“ICL”) was appointed to represent the child’s interests. In closing addresses, it was submitted on behalf of the ICL the Court would make positive findings that the father sexually abused the child and the orders sought by the mother. Because of the gravity of the finding contended for by the ICL, it was appropriate for counsel for the ICL to analyse the evidence by reference to the applicable law. This did not occur. At best, counsel’s closing address could be described as impressionistic off-the-cuff remarks. The type of critical analysis which the Court would ordinarily receive did not occur. Unfortunately, it is necessary to record counsel for the ICL’s cross-examination was also unhelpful. Few relevant questions were asked. As an example, the mother was aggressively questioned about breast feeding the child. As counsel made no subsequent reference to this, whatever relevance those questions had supposedly remains a mystery. In short, the court cannot be confident the ICL and her counsel undertook the type of analysis of the facts and law prior to the closing addresses required. The lack of apparent consideration of the complexities in the case has resulted in little significance being attached to their support for the mother’s case.
The Director-General of DHS intervened by right to support the mother’s application. Contrary to the position taken at the end of the hearing by the ICL, it was submitted by DHS there was insufficient evidence upon which to base a positive finding of sexual abuse. An unacceptable risk of abuse was, however, said to have been established. With this submission the mother agreed.
Background facts
Unless I have stated differently throughout these reasons, the balance of probabilities will determine findings of fact. Section 140 Evidence Act 1995 (Cth) (“the Evidence Act”).
The mother was born in 1966.
In 1968 the father was born.
The mother’s son from a previous relationship was born in 1983.
The parties met in November 2002 and in about August 2003 moved into a home they purchased at Suburb C. At that time, the father was employed as a school teacher and the mother was employed by a health services provider.
J Brown, who is the subject child, was born in July 2005. Following her birth, the mother took 12 months maternity leave and the father continued to work full-time. She has throughout been the child’s primary carer.
In August 2007 the parties separated. Although separated they continued to live in the same home.
On 3 January 2008 the mother and child moved into a home owned by the mother. From then until 8 April 2010 by informal agreement the child regularly spent time with the father. Thus the opportunity existed for him to abuse the child.
According to the mother, on 10 April 2010 the child described behaviour by the father which, if it occurred, was sexually abusive.
Other than with the Family Consultant during this hearing the father has not seen the child since 8 April 2010.
The General Law in Parenting Cases
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64B). They arise in proceedings conducted under Pt VII of the Act. Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children”. Essentially, the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2), the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child, has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DA(4)). Thus, if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements.
Section 60B sets out the objects of Pt VII and the principles, which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensure that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimal outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
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).
3. For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
To the extent they are relevant to the particular case, the Court must consider thirteen additional considerations set out in s 60CC(3). Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities (s 60CC(4)). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence (s 60CG).
If the Court is satisfied parents are to have equal shared parental responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with his or her parents (s 65DAA) and whether doing so would be in the best interests of the child (ss 65DAA(1)(a) and (2)(c)). The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in ss 65DAA(3) and (4).
Where neither concept delivers an outcome that promotes the child’s best interests, the issue is at large and to be determined in accordance with the child’s best interests (Goode & Goode (2006) FLC 93-286).
By virtue of s 60CA, the Court will determine the weight to be given to the various factors, be they primary or additional considerations or considerations as identified as issues arising in the particular case but not specifically referred to in the Act. Ultimately, the weight attached to each factor is a matter of discretion.
General principles to be applied in determining abuse allegations
The legal principles to be applied in a case involving allegations of sexual abuse are laid down by the High Court in M v M (1988) 166 CLR 69. The oft quoted passages are found at pp 76-77 where the High Court held:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
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) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] (1986) FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 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.
By way of further elaboration of the civil standard of proof, the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 per Mason CJ, Brennan, Deane and Gaudron JJ said at pp 170-171
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 facts 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.
Although the authorities discussed above were decided prior to the Evidence Act they have been applied in decisions made subsequently. That they apply to cases such as this one was clearly stated in Johnson v Page (2007) FLC 93-344.
The onus of proof in the civil standard of proof in accordance with s 140 of the Evidence Act. As the Full Court in Johnson and Page said a Court will only make a positive finding that sexual or other abuse has happened when, by reference to s 140(2)(c) of the Evidence Act the judge “is satisfied to the highest standard, on the balance of probabilities abuse has occurred”: W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235.
If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether in all the circumstances there is an unacceptable risk of it. Where none, rather than some only, of the accumulation of factors considered satisfy the standard of proof it is generally accepted a judge should be cautious in reaching a conclusion that an unacceptable risk of abuse has been established. Whether or not there exists an unacceptable risk involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable. The components, which go to make up that conclusion, need not each be established on the balance of probabilities. The Court may determine that a constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard: Johnson and Page.
The findings made in the assessment of risk addresses part of the Court’s responsibilities. Whilst the resolution of the risk issue may be the central issue in proceedings, the Court’s role is broader in that it must determine the best interest of the child having regard to the relevant statutory factors. In M v M (at p 76) the High Court said:
The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide, cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse and the balance of probabilities.
If the Court reaches the conclusion that there is no unacceptable risk, the Court must consider the separate issue of the parent’s belief in the occurrence of the events. In A v A the process is described thus:
The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether it will have a significant impact on the party’s capacity as the resident parent and so impinge on the interests of the children. The Court then needs to take steps proportionate to that circumstance.
Application of the Law to the Facts
In Collu & Rinaldo [2010] FamCAFC 53 the Full Court pointed out that a number of s 60CC(2) and (3) considerations potentially overlap. For example, in relation to s 60CC(2)(a) and s 60CC(3)(b) it may be necessary to make findings in relation to the nature of a child’s relationship with his or her parents before the Court could consider whether there is the potential for a meaningful relationship or there was no benefit for the child from a relationship with a parent. Their Honours explained where considerations overlapped it could be appropriate to consider the additional considerations first. This is the approach I will adopt so that overlapping considerations will be dealt with simultaneously.
Section 60CC(2)(b) and other additional considerations concern the need to protect the child from physical or psychological harm and from being exposed to abuse, neglect or family violence. The key issues this required the Court consider was whether the father had or presented an unacceptable risk of sexual abuse to the child. Because these are the pivotal issues these shall be addressed first.
In July 2006, the mother returned to work part-time. She continued to work with a health services provider where she was employed as a health education officer and worked approximately 20 hours per week. The child (who was 12 months old) was placed with S Kindergarten which she attended two days per week.
Commencing in January 2007, the father took leave from his employment for the year whereupon the child’s time at kindergarten was reduced to one day. The father cared for the child alone on the other day that the mother worked. Within a couple of months, the father started up a business. He continued to care for the child one day each week on his own.
In August 2007, the parties separated. Although separated, they continued to live in the C home. The father slept upstairs in a bedroom adjacent to the child’s and the mother moved her bedroom downstairs. No alteration was made to the child’s care.
On 3 January 2008, the mother and child moved into a home the mother owned at rural town G. G and Suburb C are some distance apart. No issue was raised by either party against the child having substantial and significant time with each of them. I infer they each considered that the child’s relationship with each of them was strong and positive and it was in her best interests for these to continue in a real way. The child’s time was divided each week so that from about midday Sunday until 5.00 pm Monday and for an hour or two on Wednesday afternoons the father cared for her.
Relations between the parties were tense and from about this time the mother found it difficult to deal with what she viewed (with some justification) as the father’s confrontational behaviour at changeover. When she could arrange it, her father or sister accompanied her or undertook changeover for her. Partly to address these issues the mother approached Family Relationships Australia and unsuccessfully sought that the father joins her in family dispute resolution.
The father commenced a relationship with Ms F in about July 2008. Around that time, or in any event no later than November 2008, the parties rearranged the child’s routine. Without court intervention, they agreed that the child would spend each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday, in addition to Wednesday evenings, with the father. One Wednesday afternoon, the father continued to collect the child from pre-school for an hour or two, with the mother collecting the child on her way home. On the other Wednesday the child remained with the father until Thursday afternoon.
On those weekends Ms F had her daughter, Y, and the child was with the father; the children shared the child’s bedroom. The child Y slept on a mattress on the floor. On occasion, the father and child spent the weekend at Ms F’s home. The child Y has bunk beds and the child slept in a bed in Y’s room. Ms F corroborated the father’s evidence that the children did not sleep with them and that the child has never shared their bed. I accept her evidence on this and other matters.
In early 2009 the parties discussed the child’s attendance at day care. The mother felt the child was unhappy at S Kindergarten and wanted to enrol her at town G. In relation to travel, G was much easier for the mother. She was particularly keen that the child attends preschool with children likely to attend the same school as her. The father agreed the child should attend an extra day each week at preschool but not at G. Because S Kindergarten is close to his home, if her second day was at that preschool, he would have been able to see her an additional afternoon each week. Eventually, the parties agreed the child would continue to attend S Kindergarten one day a week and a second day at town G. Amongst other things, for a child about to turn 4, their agreement meant constant change in where she lived and attended preschool. It is no surprise she started to struggle and became distressed.
Between April 2009 and August 2009 the parties negotiated a property settlement which is documented in a Binding Financial Agreement dated 3 August 2009.
During August 2009 the father told the child that henceforth she must sleep in her own bed. Although she was put to bed in her own bed, during the night reasonably often she would come to his. The change he introduced was that if during the night she wanted to sleep with him, she was gently dissuaded and returned to her own bed.
That same month the child told the mother she did not want to stay overnight with the father. The mother discussed this with the father who, in the child’s presence, explained she had to sleep in her own bed. In response to the mother’s reassurance she would be fine the child mentioned she had already fallen out of bed. The child was also anxious about sleeping at her maternal aunt’s home and cried when this was attempted. Similar problems arose when she slept at her maternal grandparents’ home.
The mother spoke to staff at S Kindergarten about the child’s unhappiness. Various strategies were adopted by the mother and staff to help moderate the child’s distress when she was delivered. Around October 2009 the mother raised this issue again with the father and sought his consent to the child’s withdrawal from S Kindergarten in favour of increased time at G. Although he agreed the child was unsettled at S Kindergarten, which he thought was related to her enjoying having her cousin at town G, the father refused. His views about the child’s unhappiness are consistent with her remark to the mother that she did not like S Kindergarten because she had no friends. The child’s distress on S Kindergarten mornings greatly upset the mother and she told the father she could no longer cope with it. Thus, they changed the preschool delivery arrangements. For the following three weeks the mother delivered the child to the father’s home at 7.30 am and he dropped her at preschool. There was no improvement and after three weeks, the parties agreed that the mother would deliver the child directly to preschool and the early morning drop offs at the father’s home stopped. The child continued to complain about S Kindergarten and told the mother she was scared to sleep at the father’s home because he made her sleep in her own room. As was mentioned earlier, she was also scared about sleeping at various maternal relatives’ homes.
The father returned to full-time teaching in January 2010. Again, the child’s routine changed and thereafter each Wednesday he collected her from preschool and delivered her to the mother’s home between 7.30 pm and 8.00 pm. Alternate weekends continued unaltered.
Accompanied by Ms F and child Y, the father took the child to the C Show in March 2010.
From late 2009/early 2010 during school holidays the child stayed overnight with the father Wednesday night. Thus on 7 April 2010 after preschool the child would stay with the father overnight. That morning she cried and told the mother she did not want to go to pre-school. Comparatively, the child was more distressed than usual but her resistance to S Kindergarten was not unusual. Ms H is an Assistant Teacher at the kindergarten. She gave evidence and recalled that on that day, when the mother started to leave the child became distressed. She said this had been the situation for several weeks. During those weeks, there had been a fairly constant refrain from the child for Ms H to ask the mother to pick her up early because she did not feel well. There is no evidence the child was unwell and I infer she was not. That day, the child was still distressed at rest time. Ms H sat with her and asked “why don’t you want to stay at [S Kindergarten]?” The child responded “I don’t want to go to Dad’s place and I want to stay with Mum”.
The mother telephoned the father at midday. She told him the child had been crying and did not want to stay at his home that night. The mother told the father she thought the child would “probably be okay when she gets there” (mother’s affidavit, par 54). Although the mother said she did not connect the child’s distress before S Kindergarten to staying overnight with the father until that was raised by Ms H when they spoke later that day, the earlier conversation shows that this evidence was wrong and it is likely this had been playing on her mind.
The father collected the child from the kindergarten at about 4.30 pm. When they arrived at his home, she told him she did not want to stay overnight.
Ms H telephoned the mother at about 5.30 pm. According to Ms H the conversation was as follows:
9.At around 5.30pm after I had finished work, I rang [the mother] in an endeavour to find a solution to this ongoing problem and said:
“I had a conversation with [the child] and she said she didn’t want to go to her Dad’s place and she wanted to stay with you”
[The mother] asked: “What are you implying that there might be some sort of abuse happening?”
[The mother] said: “I don’t feel that any abuse is happening”
I said to her: “No I am [sic] implying anything of that nature and that having been in a similar situation in regards to parental custody, that sometimes the child doesn’t want to be separated from the main caregiver for no apparent reason”.
I asked: “Has [the child] told you how she didn’t want to stay with her father?”
[The mother] said:“[The father] had a “new” female friend and [the child] had changed bedrooms and that she does not like sleeping in that room”.
[The mother] said: “I will talk to [the child] about this”.
10.I recall that [the mother] also said to me: “[The child] phoned me earlier wanting to come home and I told her that I had a previous engagement and I couldn’t pick her up”.
11.[The mother] also said: “I will discuss with [the father] your concerns about [the child’s] separation anxiety”.
According to the mother Ms H said “[The mother], I think I know why [the child] doesn’t want to come to preschool anymore. She has been crying off and on all day. She’s been crying because she doesn’t want to go to her dad’s this afternoon after preschool” (par 57).
So that it is clear, the mother denied saying anything to Ms H along the lines “what are you implying that there might be some sort of abuse happening?” The mother’s evidence about this conversation was somewhat inconsistent and varied between no mention of sexual abuse in that conversation in her evidence in chief, and the issue being raised by Ms H but not her. Eventually, the tenor of the mother’s cross-examination was to the effect she could not recall the conversation with Ms H and, when later that day, she told the father the preschool was concerned that something untoward might be happening between he and the child, she had no basis for saying so.
In relation to this conversation, I prefer Ms H’s evidence. Ms H is a neutral third party whose evidence about the conversation and events was unshaken. As I have already indicated, there were inconsistencies in the mother’s evidence about the conversation. It is also clear that when Ms H spoke with the mother the child had been collected by the father. The conversation as recalled by the mother in this regard is in the future.
In any event, after the mother and Ms H spoke, the mother telephoned the father. According to the mother their conversation was as follows:
59.I then telephoned the respondent father to let him know about [sic] discussion I had with [Ms H]. [The child] at the time was with her father as he had picked her up that day from preschool. I recall saying to the father words to the following effect,
“I’ve just had a call off [Ms H] and she has rung me because she is concerned because [the child] has told [Ms H] that she doesn’t want to come to your house after preschool and that is why she is upset. I think that they think that something untoward is happening at your house.”
Father:“[Ms H] never said anything to me when I picked [the child] up.”
Mother:“I have explained to them that she might be feeling like that because you are making her sleep in her own room and that is why she doesn’t want to come to your house anymore”.
60.The father was very quiet. I then said words to the effect,
“Can I speak to [the child] then??
[The child] came on the phone and started to cry and said to me words to the following effect,
“Mum I don’t want to stay here tonight. I’m not staying. Can you come and pick me up?”
Mother:“Put dad on.”
The father came back on the phone and I said to him words to the following effect,
“[The child] wants to come home”
Father: “I’ll bring her to your home later tonight then.”
Mother:“I’ve made plans for the night. Can you bring her at 9.30pm?”
Father:“Fuck off. Who do you fucking think I am. I’m tired. I have been on a school camp all day and I don’t want to be driving to fucking [town G] at that time of the night?
Mother:“What about 8.30/9.00pm?”
Father:“Oh, okay, 8.30 at the latest.”
I received a text message later that night approximately 40 minutes later saying,
“[The child] asleep on the lounge 40 minutes ago.”
I then contacted the father as soon as I got home from work and said to him words to the following effect,
“Does that mean you are still bringing her home?”
Father:“I’ll see how it goes. If she wakes up when I try to put her into bed I’ll bring her over.”
The father recalls two conversations with the mother that afternoon. In relation to Ms H, he said this occurred in the first conversation and was as follows:
69.On 7 April 2010, [the mother] called me and we had the following conversation:
Mother:“[Ms H], [the child’s] teacher has phoned me because [the child] was upset and wanted her to ring me. [Ms H] asked me if there was anything untoward of a sexual nature that it going on between you and [the child].”
Father:“What?!”
Mother:“I told [Ms H] that [the child] was just upset at the school and that nothing like that is happening. What do you think about that?”
Father:“Well I can’t do much about what other people think! I’ll have a talk to [the child] and find out what is going on.”
Mother:“I don’t think that’s a good idea. She’s too young to have an adult conversation like that.”
The second conversation related to the child returning to the mother that evening. The father says the conversation was as follows:
71.Before I had the chance to ask [the child] why she didn’t want to sleep over, [the mother] phoned. We had the following conversation.
Father:“[The child] is still upset and wants to come home tonight, so maybe I should drop her off after dinner?”
Mother:“I am busy until 9.30pm you can bring her over then.”
Father:“No way, I’m not having [the child] stay up that late and I won’t even be up that late myself as it would be past 10pm by the time I would get home”
[The child] then got on the phone and said “I want to go home”
Mother:“Alright how about 8.30pm then?”
Father:“OK”
It is clear the mother told the father (erroneously) that Ms H asked if anything untoward of a sexual nature was going on between him and the child. Such a fabrication, which I am satisfied it was, is very troubling. It is also clear that the child was upset and while upset the father agreed she would not stay overnight and he would deliver her to the mother at about 8.30 pm.
While the father prepared dinner the child fell asleep on the lounge and the father put her to bed. He sent the mother a SMS message to the effect that unless she awoke she would stay the night which is what occurred.
The following morning the father asked the child why she had been upset and had not wanted to stay the night. She explained she thought the mother was going to buy her another pet that afternoon.
The child returned to the mother on 8 April 2010. She spoke with the father on 9 April 2010 about the pet. Other than for the Family Report they have not seen each other since.
On 10 April 2010 the mother and child had a bath together. According to the mother the following conversation took place:
Child: “Do you want a massage?”
Mother: “Yes please”.
Then the child took a face washer and started to pressure (massage) the mother’s back. The child said: “I massage daddy”.
Using a jovial tone the mother replied “What, in the bath?”
Child: “No, on the couch”.
Mother: “Oh I bet he likes that”.
Child: “He does, I massage his doodle”.
Sounding astounded the mother said “You do not.”
Child: “Yes, I do mum. Daddy wees in my mouth”.
Mother: “What do you mean, show me what you mean.”
The mother took a wet face cloth and made it into the shape of a penis. She said the child “started to put her hands around the face washer and move her hands up and down”. The child said “It wees in my mouth”.
Mother: “Oh yuck”.
Child: “I suck it”.
The mother said the child “was about to put her mouth around the face washer”. The mother shook her head to signify no and, with her hand up said “That’s okay darling”.
Child:“It starts off really small but when it’s in my mouth it gets big. Mum we have a wee hole in our flower don’t we? Daddy’s wee hole is really big, when his doodle is big”.
Flower is the child’s word for vagina. Doodle is her word for penis.
The mother said the child showed with her fingers and hand how it started small and became big. She then said “I suck daddy’s boobies too mum, here I will show you mum”.
Mother:“No darling you don’t touch anybody’s boobies”.
It is the mother’s evidence she and the child got out of the bath and, in a state of shock she telephoned her mother who she told she thought the father had sexually abused the child. In tears, she asked her mother to collect the child. The child asked the mother why she was upset. The mother spoke about an unrelated matter and told her she would be staying with her grandmother.
The mother then telephoned police who, after the child departed with her maternal grandmother, attended the mother’s home. The mother was interviewed by two officers a record of which is contained in Constable K’s Police notebook[1]. The mother’s statement to police about her discussion with the child that evening is consistent with the evidence outlined above.
[1] Exhibit “F”
In the early hours of that morning (11 April 2010) police attended the father’s home where he was served with an interim AVO in which the child was named as a person in need of protection. Appraised of the nature of the allegation the father offered to undergo a polygraph test and suggested police take his computer hard drive. Twice during the day he contacted police in further attempts to establish what had occurred and protest his innocence.
A police officer from JIRT telephoned the mother at approximately 1.30 am and asked her to make the child available at V Hospital at 6.00 am for examination by a medical practitioner. The mother complied and thus, on 11 April 2010 the child was interviewed by a social worker, then interviewed and examined by Dr X.
Dr X is a medical officer employed through a local area health service in relation to which she works at the … Sexual Assault Service. She qualified in medicine in an overseas country in 1974 and in 1987 was licensed in Obstetrics and Gynaecology. The following year she migrated to Australia where, for 12 months she worked in Western Australia as a general practitioner. When she moved to New South Wales in 1989, because her qualifications were not recognised, she lost her medical registration. Thereafter, Dr X found it too difficult to obtain registration in New South Wales as a medical practitioner and until 2005 she worked as a clerk. She returned to the overseas country in 2005 where she completed training as a medical resident. She was registered by the NSW Medical Board as a general practitioner in 2008. Immediately, Dr X was employed by the Sexual Assault Service in relation to which she completed a three day training module in sexual assault at Westmead Children’s Hospital. Thus, when she interviewed and examined the child she had about two years experience in Australia in the sexual assault field, in relation to which she had seen four or five children who were the same age as the child. The doctor does not claim experience or skill in forensic interviews of child sexual assault victims.
In relation to the genital examination undertaken by Dr X, there were no abnormalities to the child’s intact hymen or peri-anal area. So that it is clear, at no stage has the child said that the father inserted anything into her body. Thus, the absence of physical abnormalities does not mean that the father did not sexually abuse her some other way.
Dr X interviewed the mother and the child. The mother was interviewed first during which the child was in an adjacent room with a sexual assault counsellor and police. To the doctor the mother recounted her conversation with the child in the bath as follows:
Child: Mum, do you want a massage?
Mother: Oh yeah go on.
[The child] placed soap on her hands and started massaging then said:
Do you want hard or soft?
The child starting thumping the mother’s back with her fists.
Child:I massage dad on the lounge. I massage all his body, mum, and his doodle, mum. I massage his doodle and he wees in my mouth.
Dr X records that the mother told her that the child said this occurred morning and night and that “I also suck his boobies, mum”.
It will be immediately apparent that the mother’s account to Dr X about her conversation with the child the night before is materially different to her evidence and her statement to police. For example, in the latter statements the mother does not claim the child said “Do you want hard to soft?” or “I massage all his body, Mum, and his doodle, Mum”. In her latter statement she said the child massaged her with a face cloth. To Dr X she said the child soaped her hands, started massaging and then thumped her with her fists.
During her interview with Dr X the mother became distressed and cried. The child was then brought into the interview during which she sat on the mother’s lap. According to Dr X the child was reluctant to speak to her and it was necessary for the mother to prompt her to do so. Once they moved from background material to “the massage she gives her dad” the conversation became even more difficult. The child said she “did not want to tell” and “it’s naughty”. The child refused to speak aloud and her side of the conversation was whispered to the mother. In this regard, the doctor did not hear the child’s words. The mother told Dr X what she said the child said.
Dr X rolled up a paper towel, in a penis-like shape, and asked the child how she massaged the father’s “doodle”. She heard the child say “I squeeze it and then he starts to wee on the bed or the lounge”. In response to further questions she heard the child say “he wees in my mouth” followed by “I am joking”. Asked by Dr X if “it happened last Wednesday” the child said “I do it every single day I go there”.
Dr X was not troubled by the process she used to interview the child in order to establish the facts. Questioned about the efficacy of such an interview being conducted in the presence of a parent, she said “we do not even think about coaching by parents”. During cross-examination the doctor explained it is not possible for the child to have known about masturbation unless she had seen it. Asked about access to pornographic material it was her evidence if this occurred “it was in her father’s house”. She was able to provide no basis for this remark. It bespeaks prejudgment and an attitude inconsistent with a genuine desire to establish the facts.
JIRT interviewed the child on 15 April 2010. This is an electronically recorded interview undertaken by a police officer in conjunction with an officer from DHS. The electronic interview and a transcript are in evidence[2].
[2] Exhibits “E” & “K”
The interview commenced with general introductions, description of the facilities, differences between truth and lies then segued into discussion about family. On the DVD one sees the child settle into the interview and thereafter she appears to respond thoughtfully and fairly promptly to her questioner. She is more engaged in this interview than she is in the second interview. In the JIRT interview she gave generally accurate information about her family and discussed her feelings. At question 76, in a discussion about her maternal grandmother, she described feeling sad when she sleeps over. She said, “… My mum’s out. And I’m really scared … Because, in case the, I had a dream about witches on my holiday … And then I start, got scared and when I didn’t have a dream I didn’t start getting scared but now I are.”
At question 95 she was asked “O.K. What do you like about dad?” In response she referred to the C Show and him taking her out. The following question enquired: “What don’t you like about dad?”
Answer:Is when he picks me up from school because sometimes I have a sleepover there and I’m very sad.
Question: And why are you sad?
Answer:Because I get to go to school in the morning and I don’t like him packing stuff.
Question:Why don’t you like him packing your stuff?
Answer:Because, because, because, um, he packs me not enough.
The interviewer then introduced a sketch drawing of a girl, which the child accurately identified. This was followed by questions about who touches on identified body parts. In relation to her “boobies” the child said only her mother and father were permitted to touch her there. Asked “when does dad touch your boobies?” the child said “When he needs to wash them or I need to wash them or he washes my bellybutton. He needs to wash that the same time as my boobies.”
At question 122, the child is asked “When does dad [sic] your mouth?”
Answer: He doesn’t touch it.
Question: He doesn’t touch it?
Answer: No.
The interviewer then asked the child about her vagina (“flower”). In response to questions about its function the child answered accurately and was then asked “Who’s allowed to touch your flower?” She responded “Only if daddy’s putting cream on it or mummy putting cream on it.” She agreed her mother and father had each touched her vagina and was then asked “… and when has dad touched your flower?” to which she replied “… when I have a sore flower and he puts some cream on it.” The interviewer said “Yeah” and the child responded “When I have just right flower he doesn’t touch it.” The child explained only her mother and father were allowed to touch her bottom “when they’re putting cream on it.”
After further questioning, the interview turned to questions about a man’s penis and bottom. The child correctly identified these body parts and their toileting functions. At question 160, the child was asked:
Question: Have you see a man wee before?”
Answer:Yes. I went in the toilet once - while my dad was doing a wee.
Question: So, have you, so you, have you seen your dad do a wee?
Answer: Yes.
Question: And where, where does your dad wee?
Answer: He weed in the toilet.
Question: Have you seen him wee anywhere else?
Answer: He wees in the bath but he can’t in there now.
Question: O.K.
Answer: He wees in the shower and that’s all.
The child was then questioned about touching a man’s body (head, arm) and “boobies”. She acknowledged having touched the father’s head, elbow, arm and boobies, legs and knees. At question 173, the child was asked whether she had touched a man’s “doodle” to which she responded “yes”. The interview proceeded as follows:
Question: Who, whose doodle have you touched?
Answer: I never touch my dad’s before.
Question: You’ve never touched?
Answer: Ahhmm.
Question: Who’s doodle have you touched?
Answer: No one’s.
Question: No one’s?
Answer: No.
Question: No?
Answer: No.
At question 182, the interviewer asked the child to identify the man’s bottom. This she did and was then asked “Have you touched a man’s bottom before?” The child answered “yes”:
Question: Whose?
Answer: My dad’s.
Question: Your dad’s. When did you touch your dad’s bottom?
Answer: Ah, every time I go there.
Question: Every time you go there?
Answer: Yeah.
Question: Why do you touch his bottom?
Answer: Because, I don’t know.
Question: You don’t know.
Answer: No.
Question: O.K. Have you held your dad’s doodle?
Answer: Hmmm?
Question: Have you held your dad’s doodle?
Answer: No.
Question:No. I got told by someone that your dad’s done something with his doodle to you.
Answer:Oh, Yeah. That’s probably the other work.
Question:The other work?
Answer:Yeah. Probably might be.
Question:What do you mean?
Answer:If, well, he squirted wee in my mouth.
Question:He squirted wee in your mouth? When did that happen?
Answer:It didn’t really happen. I was just lying.
Question:You were just lying?
Answer:Yeah.
Question:Why?
Answer:They didn’t actually know.
Question:Who did you tell that to?
Answer:Um, the other work at [V Hospital]. Where my mum works.
Question:Oh. Why? Why?
Answer:Because I just tell jokes on everyone.
Question:But where did you get that idea from?
Answer:Hmmm. I just think in my head.
Question:You just think. So did it actually happen or not?
Answer:No.
Question:No. Did someone tell you to say that?
Answer:No.
Question:No?
Answer:I just thinked.
Question:Why would, why would you - - -
Answer:What?
Question:Have you seen, have you seen someone wee in someone’s mouth before?
Answer:No.
Question:No. Has someone told you about that before?
Answer:I’ve seen it in the newspaper before.
Question:Seen it in the newspaper?
Answer:Yeah.
Question:What do you mean you’ve seen it in the newspaper?
Answer:I just saw it.
Question:You just saw it. So, so your dad, your dad’s never put his doodle in your mouth?
Answer:No.
Question:Have you ever held your dad’s doodle?
Answer:No.
Question:No?
Answer:No.
Question:Are you telling the truth or are you lying?
Answer:I’m lying.
The mother explained that the child’s reference to “the other work” is probably to Dr X. I agree. From the child’s perspective Dr X had a workplace not dissimilar to her mother’s and she is the person who recently questioned the child about this matter. This interview occurred only five days after the child’s conversation in the bath. Although she had not seen or spoken to the father from her perspective this was not unusual. When this is considered along with her comfortable presentation on the JIRT DVD, I am satisfied that the child was not concerned about any ramifications for the father if she disclosed what he had allegedly done. In other words, she did not hold back “the truth” out of concern about potential consequences.
After the 15 April 2010 interview the mother spoke with the child about her failure to “talk to the ladies”. She made clear her preference she do so in relation to which the child responded “Mum I don’t want to talk about it. Don’t talk about it anymore.”
The following weekend the mother brought the subject up again and again the child said she did not want to talk about it. The mother took advice from the Sexual Assault Team and counsellors about how to deal with the situation and what not to say to the child. Again, the mother raised the issue with the child and told her she was “a very brave little girl … because you told me a story about massaging dad. Because mums and dads know what’s right and what’s wrong and what is naughty and what’s ok. Daddy letting him massage your doodle was naughty.” Again, the child asked the mother to stop talking about it and reminded her she had said she was joking. When the mother told her she knew the child hadn’t been joking and “little girls don’t know these things” the child said “Yes I do mum. I’m very smart, I’m smarter than … and ….”
On 22 April 2010 the child asked the mother when she would see her father. The mother responded “You won’t see him for a while because daddy knows what’s naughty”. Again the child said she had been joking and in response to the mother’s enquiry about how she knew those things to joke about the child again said she was smart. After further discussion the mother said the child said “Please mum, he won’t do it again. I have told you now so he won’t do it again.” Even if the child’s words are accurately recorded, in the face of the mother’s implacable rejection that she had been joking, it seems likely the child (in age appropriate terms) here attempted to address his naughtiness (the mother’s term) and persuade her it would not happen again.
The child again asked about seeing her father on 30 April 2010. Again, the mother reinforced that the father’s behaviour “was not ok” and again the child told the mother she had been joking.
Throughout these conversations one sees positive reinforcement by the mother for the child to say she “massaged” her father’s penis and acknowledge he was “naughty” and relentless rejection of the child’s denials and statements she had been joking.
After these proceedings commenced on 3 May 2010 the matter was included in the Magellan protocol. A Magellan Report was requested from DHS who were invited to intervene. Two Magellan Reports issued the first, which is dated 27 May 2010, dealt with the 10 April 2010 Risk of Harm Report and JIRT interview. In relation to the JIRT interview DHS concluded “[The child] did not make any disclosure of sexual abuse; therefore the allegations of sexual assault against her father were not substantiated. [The child] was already referred to [the] Sexual Assault Service for counselling.” The matter was finalised on 26 May 2010 and the file closed. No further action was taken by police.
On 27 April 2010 the AVO application was listed for hearing to take place on 12 July 2010 and an interim order made for the child’s protection.
Further discussions by the mother with the child about the father’s penis took place on 9 and 17 May 2010. Although the mother cannot recall the entire discussion, she said the child said “He lies on the bed and his doodle gets big.” The child then lay on the bed with her legs apart and moved her hand up and down in a movement the mother considered simulated masturbation. Then the child said “You will really hate this. Daddy puts an injection into his doodle and there is blood in the toilet.” The mother said “Oh, yuck I would hate that.” The child said “I wee on his eyes and he wees in mine and then puts cream on them later to make them better and daddy plays games with his doodle and doodle cooks breakfast and it stays big.” The mother says “Why didn’t you tell me about these things before?” The child said “Because the police would get my dad and hit him. I want to see him so I know he’s ok.” It is the mother’s evidence the child was extremely distressed during this conversation. On neither the JIRT nor DHS DVD’s did the child show signs of distress. Although the details were different the subject matter was similar and in the second (DHS) interview the child was placed under intense pressure to disclose sexual abuse by the father. Yet she remained good humoured and can be seen laughing and discussing abusive behaviour without any glimpse of appropriate affect. When these factors are combined with the child’s love for her father, her distress in this conversation was probably connected to her unrequited desire to see him. It is highly unlikely it related to her recalling events of the type referred to in her discussion.
Police informed the father on 10 May 2010 that the child had been interviewed by JIRT in relation to which no further action would be taken. Thereafter he contacted various members of the mother’s family hopeful they would discuss the child and JIRT decision with him. They refused to have anything to do with him. This may well have been the catalyst for discussion which the mother’s sister initiated with the child.
Ms R, who is the mother’s sister, gave evidence in the mother’s case. Ms R (who was sexually abused as a teenager) believes the father sexually assaulted the child and has done what she could to keep the child from him. Without either party’s permission she took it upon herself to question the child about the father and reinforced with the child that it was important for her to talk about what had occurred and that he needed help to get better. It may be that she is the person who implanted the idea the father needed “fixing”. She involved herself in DHS investigations and came to the Family Report interviews where, before the child was interviewed by the Family Consultant, she told her it was important she tell what the father had done.
Cross-examination revealed Ms R had written an unpleasant letter to Ms F accusing her of involvement in the sexual assault allegation. The information she had came from the mother. Cross-examination also revealed confusion by Ms R about when conversations with the child occurred. Also, that her evidence about her conversations with the child does not purport to be precise. Rather, it is a précis of what she can recall. No notes were made by her of these conversations. In short, I was not satisfied that Ms R’s evidence was sufficiently reliable to warrant reasonable weight in relation to the child’s statements.
The first conversation she had with the child occurred between 8 May 2010 (probably after 10 May 2010 when the father contacted members of the mother’s family) and mid May 2010. On that occasion, after the child commented that she missed the father, although Ms R knew the reason, she decided to question her about why she had not seen him. In response, the child said “Because he wees in my mouth but he’s very sorry and he’s not going to do it any more”. Ms R said (in a joking manner) “He weed in your mouth like wee?” The child said “No, it was like grey stuff. It came out of his wee hole. I didn’t like it, it tasted yuck.” The balance of this conversation is found at paragraph 4 of Ms R’s affidavit.
According to Ms R, the next conversation occurred on 5 June 2010. Again, the conversation commenced when the child spoke about missing her father. Again, Ms R directed the conversation to sexual assault. Again, she reinforced how very important it was for the child to talk about the sexual assault allegation and questioned the child about what occurred. In the child’s responses, she separately referred to “the massaging”, “the father weed in her mouth” and she “massaged his doodle”. The child repeated she knew the father would not “do it again”.
On 26 June 2010, the child joined the mother in bed. Whilst they cuddled the child climbed on top of her mother, straddled her and bounced up and down in a manner the mother described as being “bucked in a sexual manner”. There is nothing inappropriate about a young child bouncing on a parent when they are in bed. That the child said she behaved the same way with the father is unremarkable. The gloss which the mother applied is troubling.
Ms T, who is the mother’s son’s de facto partner, gave evidence about a conversation she overheard between the child and her daughter after preschool on 5 July 2010. After discussion about the child’s forthcoming birthday, she spoke about missing the father and not seeing or speaking to him on her birthday. When Ms T’s daughter questioned the child about this, Ms T intervened. She knew from the mother the reason why. Nonetheless she looked at the child and said “He can’t call but you know why he can’t call you at the moment.” The child answered “Yeah, cause he did something really bad, really, and he has to get fixed up.” Ms T’s daughter continued to press for information about the need for him “to get fixed up”. After further pressure on the child from Ms T and her daughter the child said “OK. Well he put his, oh, I don’t like to say the name of it, but he put his thing, look (pointed towards her vagina) his thing, he put it in my mouth and that’s really bad.” Ms T responded “Oh, oh really, no-one should ever do that.” Her daughter told the child she should tell him not to do it, to which she replied she had. Ms T’s daughter suggested he had kept doing it which the child said “…is the reason he required fixing.”
Then the child recounted a conversation with the mother in which she said that the mother told her “…she saw him at the shops and said, did you do that to my little girl? And he said, yes and she said, you shouldn’t do that and he said, I won’t do it anymore so yeah he’s getting fixed.” No such conversation occurred between the parties and the mother did not say this to the child. In this regard, the child’s conversation with Ms T and her daughter was fabricated.
It will be recalled, that a Magistrate dismissed the AVO. This occurred on 12 July 2010 as a consequence of which there was no restriction on the child’s contact with the father. In the following days Ms R and Ms T made further child at risk notifications to DHS, as did Dr X. She did not have new information but was concerned that she missed the AVO hearing and wanted steps taken by JIRT to, in effect, reopen the case.
The father telephoned G Preschool on 12 July 2010 and again on 14 July 2010. In short, he forcefully tried to persuade the preschool to co-operate with him seeing the child there. Although it was explained this would not be appropriate, on 15 July 2010, he attended and asked to see her. The owner of the preschool had informed the mother about the father’s telephone calls, as a consequence of which, the mother kept the child away from preschool.
Ms R reported some conversations to DHS on 14 July 2010. These records are in evidence and show Ms R’s account of her conversations with the child on 8 May 2010 and 5 June 2010 are different. For example, in relation to the child’s remarks about “grey stuff” and the words “it came out of his wee hole” do not appear in the account she gave DHS. The June conversation is materially different in the version she gave DHS. To DHS, she said there was a portion in the conversation where she said “do what?” to which the child responded “weeing in my mouth and massaging his doodle”. No similar passage appears in her affidavit or oral testimony.
In response to the child at risk notifications made by members of the mother’s family and Dr X in July 2010, on 16 July 2010, DHS commenced a secondary assessment of the Risk of Harm Report. As part of this process, the mother, Ms R and the child attended V JIRT Office on 19 July 2010. On this occasion, the mother and Ms R were interviewed but the child was not.
DHS then consulted NSW Police about whether the police would undertake a second JIRT interview, which the police decided against. Nonetheless DHS decided the child would be reinterviewed with the interview conducted by DHS officers. This interview occurred on 27 July 2010. An informal transcript of the interview is exhibited to the affidavit of Ms L. Ms L observed and transcribed the interview which was conducted by Child Protection Caseworker Z. This interview was electronically recorded, a copy of which was provided to the Court. Comparison of the electronic recording to the informal transcript reveals a number of transcription errors, particularly by omission. In relation to the words used, the omissions are not significant. In relation to descriptions of the child’s behaviour, however, these are quite significant as is the failure to record in the written account the multitude of occasions on which there was a long pause before the child answered. The transcript speaks for itself in terms of how often the child said she could not remember and/or in effect she had nothing to add, yet undeterred the questioner pushed on. Apart from the nonsensical and materially internally inconsistent descriptions of events described by the child in this interview, the DVD shows long pauses during which she seems to be either pondering what the questioner might mean and/or making up an add on to her previous remarks simply to proffer an answer to seemingly unending questions or, her given answer having been rejected, find something different which might satisfy her questioner.
It is appropriate to here record my concern about the nature and style of the second interview. It was long and of poor quality. Many questions were leading or suggestive. The repetition of questions by the interviewer almost certainly clued the child about the answer required. Almost certainly, the repetitive nature of the questioning sent an unsubtle message that the given answer was unacceptable and something different was required. The type of open ended questions used in the JIRT interview were utilised far less and there are many instances of manipulation by the questioner of the child’s responses. For such a young child to be subjected to this type of interview is troubling. The interview is of such poor quality, in relation to “disclosures”, it warrants little weight.
It is unhelpful to recite the interview in full and the approach I will adopt is to highlights examples about why it warrants little weight. Early in the interview the interviewer sets the scene with the child. At about the 2.33 minute mark the interviewer said “[r]emember I asked you, if you could talk to me by yourself. Do you remember that? Yeah, what did you say?” The child answered “I said; daddy done something” and interviewer “[l]ets talk about that in a minute, ok. First, let’s talk about if you can talk to me by yourself.” The conversation ensued along the lines of the physical makeup of the room and the interview being recorded. The interviewer then asked:
Question: Yeah. Ok. Alright. Did we talk about anything else?
Answer: No.
Question: No.
Clearly the child’s earlier remark about what she told the interviewer, which the interviewer did not correct as being wrong, shows they had spoken about other things before the interview started. Interestingly, their discussion involved the very allegation the interview was designed to elicit. DHS did not produce evidence about that conversation with the child.
The question about the 10 minute mark, (p 65) “[s]o, [the child], tell me why you’ve come to talk to me today?” might have been better phrased if reference was made to the earlier off-camera conversation. In any event, the conversation proceeded as follows:
Answer:Because my daddy did something really naughty to me that’s why.
Question:Did something really naughty - what do you mean by naughty?
Answer:Well he… I don this… well I… I did massage his… (hand action pointing to genital area)…(whisper) doodle.
Question:That’s ok, you can say it.
Answer:And I massaged his doodle and it wasn’t the right thing to do.
Question:It wasn’t the right thing to do.
Answer:And he putted wee in my mouth and…
Question:And he put wee in your mouth?
Answer:Yeah.
Question:What do you mean by that?
Answer:Yeah, he just done it.
Question:He just done it?
Answer:I don’t know why though.
Question:When you said that you massaged his doodle, what do you mean by that?
Answer:I don’t know.
Question:You don’t know. What did you do to his doodle?
Answer:I massaged it.
Question:What does massage mean?
Answer:Well I was doing this… (action of pressing along her ankle).
Question:Um…
Answer:That’s what.
Question:That’s what massage is?
Answer:Um…
Question:And what were you using to massage his doodle?
Answer:Just my hands.
The child was then shown a body chart similar to that used in the JIRT interview. Again, she correctly identified where a penis would be located. She was then asked:
Question: What’s it [doodle] used for?
Answer:Weeing.
Question:Weeing. Hmm… Ok. So daddy… Where were you?
Answer:At his house.
Question:At his house?
Answer:So mummy didn’t see me.
Question:Ok what room in his house?
Answer:In his lounge room.
Question:The lounge room. When was this, [the child] do you remember when?
Answer:No, it was a long time ago. A long, long time ago.
Question:And how many times did you massage daddy on his doodle?
Answer:… (With fingers indicated 10, then 1) One.
Question:You sure?
Answer:(Nods).
Question:And how many times did daddy wee in your mouth?
Answer:One.
Question:One. You sure?
Answer:Yeah.
Question:And what would happen, what happened when dad weed in your mouth?
Answer:I don’t know.
Presently, the father is angry with the mother for her role in the disruption to his relationship with the child. The question which arises, is, if the child spends time with the father unsupervised is he willing and able to support the child’s relationship with her mother or is there a risk he may seek to undermine it? During cross examination the father revealed his heart felt dilemma about whether to pursue his application that the child lives with him. Paraphrased, he recognised the strength of the child’s relationship with the mother, their mutual affection and the distress which separation from the mother would cause the child. On the other hand, he was gravely concerned that unless the child lived with him their previously good relationship would be destroyed. After he took further advice, as I have already indicated, the father’s primary application involved the child continuing to live with the mother. In so doing he demonstrated his willingness and ability to support the child’s relationship with her.
I have accepted the mother’s evidence that at change over the father was on occasion, rude and hostile. This occurred in the child’s presence and communicated a poor opinion of the mother. It is conduct which, if it continued, would tend to undermine the child’s relationship with the mother. If it continued for a long time, it may rebound upon the father and cause the child to view him in a critical light. I am strongly of the view the father would benefit from therapeutic counselling in relation to the events which culminated in this hearing, to assist him support the child’s relationship with the mother and better equip himself to communicate with her respectfully. On balance, I am satisfied unsupervised time for the child with the father does not compromise her relationship with the mother.
I have already commented upon how the mother will for some time find it difficult to encourage the child’s relationship with the father, even in a supervised setting. However, I have accepted that the mother was not ill-motivated and did not consciously seek to create the situation which developed. In short, she lacked the life experience or judgment to deal with the events which unfolded. As was mentioned earlier, the mother will benefit and possibly require ongoing therapeutic support to reframe her views about the child’s safety with the father.
If time is resumed, orders which guide the manner in which the parties speak to the child about the other party and which protect her from critical comment about her parents are appropriate.
Section 60CC(3)(d) concerns the likely effect of any change in the child’s circumstances, including separation from parents or any other person with whom the child has been living. This is an important matter. On the mother’s application, the child’s circumstances would change through the termination of her relationship with the father. Almost certainly, this would have adverse long term effects. Long term she would need to grapple with the loss of one of her founding relationships which is an important aspect of her identity and for which there can be no substitute.
On the father’s application the child would transition from supervised to unsupervised time with him and, reasonably soon, she would divide school holiday time equally between her parents and, during term, spend each alternate weekend with him. Until April 2010, in the period following the parties’ physical separation, the child regularly spent time with the father. He continues to live in what was the family home with which the child is familiar. The child previously accepted that she lived in two homes and understood she was cared for separately by her parents. While she has adapted to her mother’s exclusive care, I am satisfied she will welcome the opportunity to again spend time with her father. The amount of time, which on the father’s application, the child would spend with him, would not weaken the strong and affectionate relationship she enjoys with her mother.
For the foreseeable future the mother and child will reside at town G. If the child spends time with the father, this would initially be at his father’s home at Suburb D then his home at Suburb C. Although not too far apart, town G and Suburb C are not adjacent and, as they did previously, it would be necessary for the parties to drive to a change over point. The parties each have motor vehicles and are able to deliver and collect the child. The father’s nominated time of 5:00 pm for change over during the school week is compatible with the parties’ work commitments, as are the minor variations which would enable him to share special occasions with the child.
To an extent, the parties’ capacity to provide for the child’s needs, including her emotional needs, is connected to the nature of her relationships with them. My findings about these matters do not require repetition. It is appropriate to observe, however, the parties love the child dearly and each want her to have those opportunities in life that are within their gift. As a teacher, the father is ideally placed to support the child educationally and intellectually. At different times, both parties have misunderstood the child’s emotional needs. Although it required more effort by him, it would have been emotionally less stressful for the child had the father agreed she could attend G pre-school where she was happy and her cousin attended. In failing to agree, he placed his needs ahead of hers. I have already commented upon him being unpleasant to the mother in the child’s presence at change over which, inherently involves his failure to appreciate the impact this could have upon the child emotionally.
While I am satisfied the mother is a generally capable parent and that in her care the child’s needs are adequately met, aspects of how she dealt with the child’s emotional needs in the context of the sexual abuse allegations are troubling. She demonstrated virtually no appreciation of the intense pressure she placed the child under, nor how inappropriately she was manipulated emotionally. I accept that to an extent she was guided by others but it is also clear she lost sight of how to manage the events which unfolded in a manner which minimised the potential emotional harm to the child. Her failure to facilitate supervised time after the father nominated a therapist is one example. Her failure to allow the paternal grandmother to maintain contact with the child is another.However, the mother has some appreciation of the emotional havoc which terminating the child’s relationship with the father would cause the child. Unless there are sound reasons connected to the child’s welfare which warrant the termination of the child’s relationship with the father, in order for her long term emotional needs to be met, this relationship should be restored.
Section 60CC(3)(i) concerns the parties’ attitudes to the child and parental responsibility. From separation, until April 2010, the parties were able to cooperate in relation to major parenting issues. For example, they agreed upon where she should live, change over arrangements, pre-school and the like. Although agreement on occasion involved compromise and was sometimes misguided, by and large the parents cooperatively exercised their parental responsibility.
Both parties are committed to fulfilling their parental obligations into the future. An issue which will require consideration is whether they would be able to communicate sufficiently well to jointly make long term parenting decisions. They have not spoken since April 2010 and, in the context of these proceedings, each has said unpleasant things about the other. For example, the father listened to the mother explain why she believed he sexually abused their daughter. The mother heard him accuse her of drinking alcohol to excess, placing her needs above the child, accusations of family violence and that she manipulated the child to make false allegations of sexual abuse against him. These accusations are confronting and will have done nothing to improve their ability to communicate.
Section 60CC(3)(j) and (k) concern family violence and whether there is a family violence order. There is no family violence order. In late 2006 the father notified DHS of an incident in which he alleged the mother was drunk and violent to him. It would appear DHS accurately assessed there was no need for intervention by them. Whatever occurred in late 2006 did not reoccur and there has been no family violence since then. On balance I am satisfied there is no risk of family violence in either home.
Section 60CC(3)(l) requires that the court consider whether it would be preferable to make the order that would be less likely to lead to the institution of further proceedings in relation to the child. Further litigation would be likely to exacerbate the tensions between the parties and as far as possible this should be avoided. Whichever suite of orders the court makes would involve at least a theoretical risk of further litigation. Ultimately, there is little to distinguish the probability of future proceedings.
If, however, in the face of orders for the father to spend time with the child, the mother were to fail to cooperate and/or she undermines the child’s relationship with him through further questioning and re-enforcement of the notion he sexually abused her, the risk of litigation would increase. If the mother were to adopt such an approach she could anticipate that the father could claim that this amounted to a sufficient change in circumstances to warrant the court considering afresh whether the child should live with her or him. While I take these matters into account, they warrant relatively modest weight.
There is considerable overlap between s 60CC(4A) and s 60CC(3). I have already considered matters prior to and since separation. From when the allegations were raised the father did not pay child support. Thereafter until December 2010 the only child support be paid was seized by the Child Support Agency. In this regard, his attitude was immature and showed poor judgment in relation to his parental responsibilities. Now that he has resumed full time teaching the Child Support Agency takes his assessed child support liability ($751.50 per month) at source. This is likely to continue.
The effect of these findings is that I am satisfied it is in the child’s best interests that her relationship with her father is restored and that, after a transition period she regularly spends time with him without supervision.
Conclusion and structure of the orders
When making a parenting order the court must apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility. The presumption does not apply in the circumstances specified in s 61DA(2) and may be rebutted if the court is satisfied application of the presumption would not be in the child’s best interests. The issue about parental responsibility is difficult. I have already referred to the parties communication difficulties and it is clearly the case that their relationship is at an extremely low point. A particular difficulty for the future is the extent to which the parties would be able to communicate and problem solve potential disagreements about the child. It is difficult to anticipate when civil face to face discussion might occur. For some time, the most that can be anticipated is essential and cursory discussion. Face to face discussion is not, however, essential for the effective exercise of joint parental responsibility. Alternate means of communication, such as email and telephone, are reasonable alternatives.
An order for equal shared parental responsibility would have the effect of requiring the parties to consult about changes to the child’s school and, excluding counselling which may be ordered, future counselling for the child. In relation to the former, the father’s judgment about pre-school was lacking, as was the mother’s repetitive questioning of the child. It is difficult to see other areas where each would need to contribute to major long term decisions. As I have already found, I am not persuaded the father presents an unacceptable risk of sexual abuse to the child. I am strongly persuaded that she needs again to experience him carrying out his parenting role which includes him having an appropriate vestige of parental responsibility.
Because the child will primarily reside with the mother it is necessary that she has significant parental responsibility in relation to the child. Sole parental responsibility, however, makes the child vulnerable to instances of poor judgment by her and inappropriately marginalises the father. A better (from the child’s perspective) approach to parental responsibility is for the parties to have parental responsibility in accordance with s 61C of the Act. Two exceptions to this are in the child’s best interests. Although the father is a teacher and keenly interested in the child’s education, the mother has shown sound capacity in relation to the child’s educational needs and, to avoid conflict, she will have sole parental responsibility for this aspect of the child’s care in the future. On the other hand, the mother has shown unsound judgment in relation to the sexual assault allegation and it is appropriate constraints are put in place which limits the prospect of similar action by her. This is best achieved by an order which requires that the parties agree (subject to orders made in these proceedings) upon the child being counselled or involved in therapy/programs.
Neither party sought an equal time order. The orders proposed by the father satisfy the definition of substantial and significant time and are both in the child’s best interests and reasonably practicable. In relation to his time with the child, the father proposed that he initially spend time with the child for four hours each Saturday, supervised by his father. This would occur at his or his father’s home, both of which the child knows well. Thereafter, a further period from 9:00 am to 6:00 pm upon the same conditions.
The point of supervision is to enable the child to feel safe and for the mother to adjust to the idea that the child’s relationship with the father is to be restored. A supervisor is not required to protect her from the risk she may be sexually abused. The mother, ICL and DHS did not support the paternal grandfather supervising the child’s time. In short, it was submitted he was not sufficiently appraised of the detail of the allegations made against the father and that his age and loyalty to the father rendered him unsuitable. The paternal grandfather is in his early seventies. He is agile and healthy enough to keep a watchful eye over the child. She does not need him to carry or run after her to keep her safe. He is well able to facilitate the child’s time with the father.His presence and the familiar setting maximises the prospect the child will feel safe and comfortable. It provides the best set of circumstance for the resumption of her relationship with the father to proceed smoothly.
After eight weeks of day supervised visits the child should be settled back into time with the father and used to the idea she sees him regularly. While she may have experienced moments of anxiety by then she should moved beyond them. In those eight weeks, she will spend happy times with the father and should have come to realise she need not be concerned her may abuse her. Provided the idea he may hurt her is not reinforced, her erroneous concern that he may should have faded and she should be ready for unsupervised weekend time.
To assist the parties to communicate and fulfil their roles in the implementation of these orders, the parties will be required to attend counselling. Having nominated Dr B previously it is appropriate that the father consults him or someone he nominates.
There are a suite of other parenting orders and injunctions which are self explanatory. They are designed to facilitate the parties’ ability to better manage the complex issues which now arise and ensure regular contact between the child and the father. I have not ordered telephone contact as often as the father sought. Twice weekly is more manageable. The order is designed to enable the mother and child reasonable flexibility and for the child to speak with him when she is available and wants to.
It was proposed by the ICL, that in the event the court found the father did not pose an unacceptable risk of sexual abuse to the child, the father would consult with Dr B. Dr B is a child and adolescent psychiatrist previously proposed by the father to undertake therapeutic counselling. Provided Dr B “deems it appropriate” the father and child would then resume contact at a contact centre. Five months hence Dr B would provide a report “including but not limited to any recommendations relating to how the child should spend time with the father and the progress of any therapy”. The matter would then be reconsidered by me. The approach adopted by the ICL does not find favour. It is inconsistent with the Court’s findings in relation to the child’s relationship with the father and the opinion expressed by the Family Consultant. The parties do not have limitless financial resources and the prospect of further litigation which this approach may entail would impose on them and the child a heavy burden.
Unfortunately I am not confident that the ICL should be involved in explaining the outcome of these proceedings to the child. It is appropriate that this task is performed by the Family Consultant and, that to the extent required by her, the parents co-operate with her in the implementation of these orders. This may involve the Family Consultant (pursuant to s 65L) seeing the child to help prepare her to move from supervised to unsupervised time. Beyond that, it is unlikely that the child would require counselling support. It is appropriate that the Family Consultant explains to the paternal grandfather how he might best supervise.
For these reasons, I make the orders identified at the start of this judgment.
It is appropriate to make brief remarks about the approach taken by counsel to objections. It will be recalled that the mother initially sought a positive finding that the father sexually abused the child. Given these exceptional circumstances, pursuant to s 69ZT(3) the rules of evidence otherwise excluded by s 69ZT(1) were applied. The effect of this was that counsel for the father provided reams of objections. While counsel for the mother adopted a similar approach, it was far less egregious. No regard was had by counsel for the father, it would seem, to the exceptions to the hearsay rule contained in the Evidence Act (for example, s 64(3)) or whether the material objected to was uncontentious (s 190(3)). This required an inordinate amount of time prior to the hearing and absorbed far too much time during the hearing. Indeed, the approach taken by counsel for the father was that even the statements made by the child should be excluded.
As might have been anticipated, this resulted in the hearing not finishing in the time allocated. It was necessary to sit longer than usual hours and an extra day. The effect of this was that the evidence component absorbed time which would otherwise have been used on the case. In this case, the time allocated to the hearing was that sought by the parties. If, counsel were unable to complete the hearing in the time allocated, this should have been brought to the Court’s attention in advance. Had this occurred, the competing time pressures which unfolded by way of trial preparation and subsequently may have been avoided.
I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 25 August 2011.
Associate:
Date: 25 August 2011
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