RIGG & STILWELL

[2014] FCCA 2453

FEDERAL CIRCUIT COURT OF AUSTRALIA

RIGG & STILWELL [2014] FCCA 2453

Catchwords:
FAMILY LAW – Parenting – unacceptable risk – allegations of sexual abuse – supervised time ordered on an interim basis – where the circumstances of the case warrant supervision of time to provide protection on three levels, protection of a party from further allegation, protection of the child from further abuse and protection from the child from further allegation and investigation.

Legislation:  

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA(5), 68P

Deacon & Castle [2013] FCCA 691
B & B (1993) FLC 92-357
M & M [1988] HCA 68

Applicant: MR RIGG

Respondent: MS STILWELL

File Number: AYC 324 of 2011

Judgment of: Judge Harman

Hearing date: 14 August 2014

Date of Last Submission: 14 August 2014

Delivered at: Albury

Delivered on: 14 August 2014

REPRESENTATION

Solicitors for the Applicant: Ms Robb of Robb & Associates Solicitors

Solicitors for the Respondent: Ms Toner of Nevin Lenne & Gross

ORDERS

1. Pending further Order, the Final Parenting Orders made with respect to the child X born (omitted) 2011 shall be and are hereby suspended.

2. Pending further Order and pursuant to section 61C of the Family Law Act 1975 each parent shall have parental responsibility for X whilst she is in their care.

3. Pending further Order, X shall spend time with her father from 10am until 5pm each Sunday and from 2pm until 6pm each Thursday.

4. The above time spent by the father with X shall be subject to the following terms and conditions:

   (a)All time that the father spends with X shall occur in the presence and supervision of one or other of Ms P and/or Ms C;

   (b)The father (in company with one of the above) shall collect X from her day care centre or the mother’s home at the commencement of each period of time and return X to her day care centre or the mother’s home at the conclusion of each period of time.

5. Pending further Order, X shall spend time with her mother at all times save for when she is spending time with her father.

6. The father shall be at liberty to telephone and speak with X between 6.00pm and 6.30pm on each day he has not spent time with her and with respect to same:

   (a)The father shall initiate a telephone call to such number as is provided by the mother;

   (b)The mother shall ensure that the number provided is switched on, charged, in credit and in a mobile service area between 6.00pm and 6.30pm each day.

7. Each of the parties shall be and are hereby restrained from:

   (a)Denigrating the other party to or in the presence of the child or allowing any other person to do so.

   (b)Discussing with the child these proceedings or issues relating to the current proceedings in the Federal Circuit Court or the Magistrates Court and shall use their best endeavours to prevent any other family member or friend from doing so.

   (c)Questioning the child about her time with the other parent including questions relating to alleged sexual assault by the father and will use their best endeavours to prevent any other family member or friend from doing so.

   (d)Taking the children to see any counsellor or psychologist or any person for the purpose of interviewing the child or providing her with therapy other than as directed by the Independent Children’s Lawyer, the Police, the Department of Family and Community Services or this Court.

   (e)Taking the child to any medical practice other than the (omitted) Medical Centre.

   (f)Changing the child care centres at which the child attends.

8. Pending further Order, the parties and each of them shall be and are hereby restrained from causing X to attend upon or engage with any counsellor for the purpose of receiving counselling or support with respect to suggested abuse, inappropriate touching or other behaviour alleged of the father and including but not limited to the prohibition upon X attending further counselling appointments with the counsellor “Ms T” at (omitted) Community Health.

9. Pursuant to s.69ZW(1) I order and direct the Victorian Police Service (“the agency”) (as a State Agency prescribed by Regulation 12CD/schedule 9 of the Family Law Act Regulations) to provide to this Court within 14 days with all documents and information held by them about one or more of the following:

   (a)Any notification to the agency of suspected abuse of or by the following:

   (i)X born (omitted) 2011;

   (ii)Mr Rigg born (omitted) 1982; and

   (iii)Ms Stilwell born (omitted) 1982;

   or any of them

   (b)Any notification of suspected family violence affecting the above child or any of them;

   (c)Any assessment by the agency of investigations into a notification of suspected abuse or family violence and/or the findings and outcomes of those investigations;

   (d)Any reports commissioned by the agency in the course of investigating a notification;

   and provided that no document need be provided which identifies directly, indirectly or by reference the identity of any notifier or witness (unless a party to the proceedings or a Police Officer)and to achieve compliance with this order and with s.69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier or witness is to be blanked out or otherwise removed or obliterated from the document/s so produced.

10. Pursuant to section 69ZW(1) I order and direct the NSW Police (“the agency”) (as a State Agency prescribed by Regulation 12CD/schedule 9 of the Family Law Act Regulations) to provide to this Court within 14 days all notebook entries, COPS event records, or other written materials relating to any communication between Detective Senior Constable Mr G and the Respondent mother Ms Stilwell.

11. Pursuant to s.68L an Independent Children’s Lawyer is appointed for the reasons and with ancillary orders as set out in the usual form of order Exhibit A hereto.

12. IT IS NOTED that the above Orders and in particular Orders relating to time and communication between the child X and her father Mr Rigg are Orders made pursuant to section 68P of the Family Law Act 1975 and are made:

    (a)In the full knowledge of the Interim Apprehended Domestic Violence Order made by the Local Court Albury 4 August 2014;

    (b)Are made even though they are inconsistent with the above Interim Apprehended Domestic Violence Order and having considered all evidence before the Court, including but not limited to transcripts of ERISP interviews of the child 19 June 2014 and 4 July 2014, statements to Police by Ms Stilwell including but not limited to 4 July 2014, a statement by Detective Senior Constable Mr G 25 July 2014 and material produced by the Department of Family and Community Services/Joint Investigation Response team; and

    (c)Are made and considered to be in the child’s best interests. 

13. In light of the above and provided that Mr Rigg is spending time or communicating with X in accordance with these Orders he is not and should not be taken to be in breach of the Interim Apprehended Domestic Violence Order made 4 August 2014.

14. The matter is adjourned for further mention and directions to 31 October 2014 at 9.30am.

15. 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.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ALBURY

AYC 324 of 2011

MR RIGG

Applicant

And

MS STILWELL

Respondent

REASONS FOR JUDGMENT

Proceedings and parties

1. These are proceedings involving competing applications for interim parenting orders with respect to a young child, X, born (omitted) 2011. X is accordingly three years and seven months of age. 

2. X’s parents are the parties to the proceedings, being her father, Mr Rigg, who is the Applicant, and her mother, Ms Stilwell, who is the Respondent. 

3. This round of litigation is not the first, and in all probability, will not be the last round of litigation between these parents.

4. Proceedings were initially commenced 24 August 2011. Those proceedings had commenced some months after the parties had separated in or about January 2011. At the time that those proceedings were commenced, clearly, X was a much younger child. 

5. By his August, 2011 Application the father had sought that the parents have equal shared parental responsibility and that X live with her father each Tuesday and Sunday from 3pm until 9am the following morning together with a period each Thursday from 4pm, after swimming lessons, until Friday 12noon.

6. The father sought a graduating regime of time and such that from 1 January 2013, the father sought that there be time each alternate weekend from after school Thursday until the commencement of school Monday and each intervening week from Thursday to Friday, very much a shared care arrangement. 

7. In the prior proceedings the mother had, by her Response filed on 19 September 2011, sought that the parents have equal shared parental responsibility, that the child live with her and spend time with the father for periods that were not dissimilar as to frequency and pattern, but which did not and were not envisaged to include overnight time until X was three years of age.

8. Those proceedings were before the Court for some time before being resolved by final parenting orders made by consent on 30 August 2013.  That order remains in effect. 

9. The orders made 30 August 2013 provide that the parents have equal shared parental responsibility, that X live with the mother and spend time with the father each week from Sunday morning until Monday afternoon, each Tuesday afternoon and overnight until Wednesday morning and for a brief period each Thursday.  That was the arrangement that was to commence 1 September 2013 and arrangements would then gradually build up over time.

10. Those orders having been made, the arrangements operated in accordance therewith until June 2014. 

Allegations of abuse

1. It is suggested that on 17 June 2014 the father spent time with X overnight, being a period from Tuesday afternoon through to Wednesday morning. 

2. The father gives evidence that on that evening he had picked X up from her day care centre at 4.30 pm. After doing some shopping, they went home and dinner was cooked and eaten. 

3. The father’s partner, Ms A, then arrived at the home as dinner was being finished and both adults and X played together and watched television for some little time until at 8.15pm or thereabouts, when X was prepared for bed.

4. It is suggested that at that time X was changed into her pyjamas which the father deposes consisted of a t-shirt and knickers. There are, in the various documents that have been read and considered, various other descriptions of what X was or may have been wearing on that evening, including pyjamas, a nightie, underwear and other items. 

5. In any event the father deposes to his getting X ready for bed, taking her to the toilet, where she urinated and attended to her own cleaning, and that she was then put to bed, read a story, her back rubbed and tickled and her hand held until she fell asleep.

6. It is suggested that the following day and as a consequence and in celebration of X having spent the night in her own bed for the entire night and having slept through the evening for the first time while spending time with her father, that she was taken to McDonalds for breakfast, then to gymnastics and dropped off at her day care at about 10.30am in what was described as being “as usual”. 

7. The mother, for her part, deposes that the child spent the period of time referred to with her father, that she was then collected from day care by her mother on 18 June, and taken home by her mother where she, again, had dinner.

8. The mother suggests that having had dinner and whilst sitting on the couch, the mother studying, X watching television that X asked her mother to “put cream on her bottom”.  It is then suggested, commencing at paragraph 36 of the mother’s Affidavit and continuing on through to and including paragraph 50 that certain events then unfolded. 

9. The mother suggests that she was familiar with X having redness and soreness on her vaginal area, that this had been occurring for some time and that the mother had assumed that this related to the child not wiping herself properly after going to the toilet. The child had been to the toilet shortly before dinner. 

10. It is suggested that when X asked to have cream put on her bottom, that the mother asked “which bottom she wanted cream on”.  X is suggested to have then pointed to her vaginal area. There was conversation as to the child’s toileting, and the child has then suggested that she had not wiped herself too hard but she had wiped herself. She is suggested to have then volunteered in response to a question of the child as to whether she knew why her bottom, (i.e., her vagina), was sore, “daddy touched my bottom.”

11. The mother then gives evidence as follows:

    I asked X if Mr Rigg, [the father], had touched her to put cream on her and whether she had told Mr Rigg that it was sore.  X replied “no.”  I was confused by what X was saying and asked X how Mr Rigg touched her.  X then stood up, pulled down her pants and knickers and opened up her vagina, placing her finger on her clitoris.  I again asked X whether Mr Rigg was putting cream on her.  X replied, “no.”

    I then asked X what Mr Rigg said when he was touching her, and X replied “he said I could touch his bottom if I wanted to, but I said no.”  X told me that Mr Rigg tickles her after he has touched her bottom.  I found this an extremely strange thing for X to say, given I had never spoken to her about that area, save to tell her that no one is to touch her down there, except for daddy, myself and nanny and that is only when she is having a bath.  I had also previously told X that if anyone was to touch her there, she is to tell me or Mr Rigg if something had happened.

12. At paragraph 40 the mother then makes the leap from those discussions to the following allegation:

    Following X making this disclosure to me [emphasis added]

13. The mother then deposes that she telephoned her mother and called the child to the phone to tell her grandmother what she had already told her mother. The mother says that she heard X say to her mother, the child’s grandmother, “daddy touched me on my bottom.”  X is suggested to have then shaken her head and pointed to her mother, which the mother took as indicating that she wanted her mother to tell the story.

14. Following this, the mother suggests at paragraph 41:

    X was due to call Mr Rigg that evening for her regular telephone call.  I dialled the number for Mr Rigg so that X could speak with him.  I could hear X on the telephone to Mr Rigg and it was as normal.  The telephone call lasted for about a minute.

15. The mother deposes as to what was said by both the child and the father, presumably, she being able to hear both. 

16. It is suggested that after the telephone conversation the child was showered and dressed for bed. She was put on the couch to watch a television program and fell asleep rather than being put to bed as she had been prepared. The mother went to another room and telephoned the Police. 

17. When the mother had finished on the telephone she suggested that she returned to the room and X was asleep. 

Investigation of the allegation

1. The Police arrived approximately half an hour after the phone call, it then being after 9pm. The two Police Officers identified themselves and spoke to the mother.  It would appear they also spoke to X.

2. It was suggested by the Police Officers that the child might need to be taken to the hospital to be examined. Indeed, later that evening the child was taken to the hospital.  She would appear to have been there from approximately 10pm until about 2am when she finally returned home. The mother and maternal grandmother both accompanied her to the hospital. 

3. Whilst at the hospital the child was seen by at least one doctor and, in addition, a paediatrician and possibly also a sexual assault worker. It was suggested that the paediatrician said that nothing out of the ordinary was observed.

4. There are no notes before this Court from the examination or any other medical evidence. It would seem, in any event, from the Police material there is no medical evidence, what is referred to in that material as “hard evidence”.  Indeed, it is suggested that the consulting paediatrician had suggested that the child’s redness around the vagina may well have been “… irritation caused by low Estrogen, which is common in little girls”.

5. Thereafter at least three “formal” interviews of this child have occurred. 

6. On 19 June 2014 the child was interviewed, it would seem, by officers from the Joint Investigation Response Team, being a detective, Mr G, together with a case worker, described throughout the transcript of the interview as “"Caseworker (omitted)"”.

7. The interview which occurred with the child on that date is lengthy, some 20 pages of transcript. The time of the interview is not entirely clear, but it would appear to have occurred in the morning. 

8. During that interview a significant number of leading and suggestive questions are put to the child. Questions are repeated continuously until an answer is forthcoming. By the time suggestive questions begin in earnest at question 47 at page 5 of the transcript, the child would appear to have become most reluctant to engage in any discussion.  She instead asks continuously if she can play. She is continuously told, disturbingly so and more so by the caseworker than by the Police Officer that she “needs to stay and answer some questions first” that is before she can play. 

9. At question 47, and whilst being shown various body parts on a diagram, the child is shown what would seem to be the vaginal area of the diagram. She is asked:

   Is it your bottom? or is it your front bottom or? What, do you call it?

10. She replies:

    Nothing.

11. Further conversation occurs for a page or so with respect to body parts.

12. The child is asked several times by page 7 of the transcript whether anything had ever happened to her and whether she had ever been touched “there”, presumably the vaginal area, “by anybody”.  She does not reply or does not reply verbally.  In light of the lack of success with obtaining an answer, the Police Officer then begins to ask her:

    Have you ever told Mum that someone touched you there?

13. She responds when the question is put to her directly:

    Have you ever told Mum about someone touching you on your front bottom?

    No.

14. The question is then put:

    No?  What about Dad?  Did you tell Mum that Dad touched you there?

15. The child then replies “Yeah”. 

16. There is then some further questioning in relation to what is suggested to have occurred, all of which is leading and suggestive. Such questioning continues on for some little time. 

17. Much is made in the transcript of the suggestion that the child had seen the father’s “front bottom”, notwithstanding that this is a phrase introduced into the conversation by the Police Officer and not by the child herself. She in fact had suggested she did not call that part anything.

18. When she is asked whether she has seen her father’s front bottom, she says that she did. When she says she has seen it, she is asked what it felt like, and she replied “Spider”.  There is then discussion about spiders and spider webs. 

19. It is inferred by the learned Police Officer that this is a reference by the child to pubic hair. That is one possible explanation. There are perhaps many others. 

1. The child is then asked pointedly at question 99:

   Did you go to the doctors because Daddy touched you?

2. The child replies “No.” 

3. The child’s understanding and cognisance of the purpose of her presentation at the emergency department of the hospital after 10pm is presumably less than complete.  She does recall, however, that she was required to “wee in a cup”, there being reference to a urine sample having been taken to eliminate urinary tract infection. 

4. There is then further discussion as to what is suggested to have occurred, again most or all of which is leading and/or suggestive. 

5. There is nothing particularly clear that arises from the interview. There is certainly no disclosure. If one removes responses given to blatantly leading and suggestive questions, generally repeated three, four or five times before any response is provided, there is nothing. 

6. More concerningly, two further recorded interviews occur. 

7. The first of those interviews is an interview undertaken of the child by the child’s own mother. It is videoed and it would appear, at that point in time, to be the first interview.

8. The questions that are put to the child during this interview suggest that it is somewhat dark, although it is not suggested by the video what time the interview is undertaken, purely that the lighting is dim. 

9. The child is clearly tired.  She yawns repeatedly throughout the interview. 

10. Leading questions are put to the child, asking her “What did you say to Daddy when he touched you?” etcetera. 

11. References are made to the child having made statements to members of the preschool staff.  The staff of the preschool, as is apparent from Police material, deny any such statements having been made by them.

12. The child is asked by her mother to identify, by reference to a toy doll on the child’s lap, where her father touched her and how he touched her. 

13. There is some discussion with the child about cream being applied by her father. The child refers to it being applied, although that is absent from any of the earlier narratives and it is unclear whether she is suggesting it was supplied at any particular time or a time later than that as to which she is being questioned.

14. What one is left with by that interview is a clear impression, that by the time of that interview, which occurred at least 10 days after the suggested initial disclosure, that the child has had a number of conversations with respect to the event, not only those which have been recorded and transcribed. 

15. The child ultimately is allowed to resume whatever activity she is engaged in, with the statement by her mother, “All right.  We won’t talk about it anymore”.  That statement comes after the child has suggested to her mother several times she does not wish to talk about it.

16. What is concerning about the mother’s interview with the child (other than the interview itself) is twofold. 

17. Firstly, the mother suggests that prior to her interview with the child that the Police Officer, presumably Detective Senior Constable Mr G, recommended that she undertake the interview. That, no doubt, will become a matter of significance at final hearing, namely, to ascertain whether that was, in fact, a suggestion made to the mother or not.

18. In any event, the second issue of concern is that Detective Senior Constable Mr G then determined to make a further statement in support of an application for an amended apprehended domestic violence order for the child’s protection, relying in part upon the suggested “disclosures” made by the child during the interview between the mother and the child.

19. The mother has clearly provided a recording of that interview to the Police. It is referred to in paragraph 4 of the Police Officer’s statement as having been produced to him and downloaded from the mother’s mobile phone after an attendance by the mother upon the Police Officer on 24 July.  Indeed, that would place this interview as being some six weeks after the initial disclosure. It gives rise to serious concern as to how many conversations have occurred with this child regarding this suggested disclosure in the intervening period.

20. What is highly concerning is that Detective Senior Constable Mr G purports to rely upon that which is suggested as “disclosures by the child to her mother” in that recorded interview (any disclosure of information being preceded by a leading or suggestive question), as being further proof positive that there has been abuse. 

21. The Police Officer refers to the child in the initial interview on 19 June as having “provided information about being inappropriately touched by her father”.  Specific reference is made to paragraphs 67 to 85 of the transcript in that regard.

22. Those paragraphs would not, with the greatest of respect to the learned Police Officer, suggest anything of the sort. What it would suggest is continuous repetition of a suggestive question, “Did your daddy touch you on the front bottom?” That is the very part of her body with respect to which X has indicated she does not understand the terminology or adopt it and it is only after the suggestion has been repeated to her several times that a narrative is then produced.

23. Between paragraphs 67 and 85 what one has, at its highest, is a suggestion by the child, in response to repeated leading and suggestive questions, that she was, whilst at her father’s house, touched on her “front bottom” by her father using his finger whilst she was in her room and that it hurt. She also indicates that it “felt bad”.

24. That the Police Officer has gone to the extent of preparing a further statement himself based upon the interview between Ms Stilwell and the child as now accepting and having “further concerns”, indeed, expressing with respect to that videoed interviewed between the mother and the child, “this video provided further evidence of X being inappropriately touched by her father”, is alarming. 

25. What the video produced by the mother suggests is that the child is being coached or at the least very inappropriately questioned with respect to matters which do nothing but make it almost impossible to accurately ascertain events which may have occurred - if anything in fact occurred.

26. What it also suggests is that the Police Officer is approaching the matter from anything but a null hypothesis. He is looking for evidence that will support the position that has already been concluded and which will be addressed by them through the Local Court.

27. The interview undertaken by the mother is nothing short of abusive.  That the Police suggest it be done or condone it having been done beggars belief.

28. That the Detective Senior Constable would appear to embrace the interview and engage in it by adoption is nothing short of remarkable.

29. However, there remains the “spectre of allegation” and I put it specifically in those terms. It cannot be dismissed as one must go back to the suggested initial comment by the child, suggested to have been unprovoked and unsolicited, that the father had touched her without good cause, not applying cream and without being asked to. 

30. One cannot dismiss the allegation, even though the evidence that relates to it, particularly through the mother’s own actions, is now so clouded and so impugned that it will be difficult, if not impossible, as indicated, to ever ascertain what may or may not have genuinely been in the mind of the child on 18 June 2014.

Material Considered

1. Lest there be any doubt or concern as to the material that is being considered in dealing with this matter today, it being dealt with in a duty list and on an interim basis, I enumerate it now. The material considered comprises:

   a)The Initiating Application filed by the father in these proceedings on 15 July 2014;

   b)The father’s affidavit of evidence, sworn or affirmed 15 July 2014;

   c)The mother’s Response filed 13 August 2014;

   d)The mother’s affidavit sworn or affirmed 13 August 2014;

   e)The mother’s Notice of Abuse filed 13 August 2014.

2. There are also a significant number of tenders in the proceedings, comprising:

   a)Exhibit A1, the minute of orders proposed by the father today;

   b)Exhibit A2, a chronology;

   c)Exhibit A3, the present interim domestic violence orders, (it seeming to be at least the third that has been made since 17 June);

   d)Exhibit A4, the statement of Mr G, 25 July 2014; 

   e)Exhibit A5, the video of the mother’s interview with the child;

   f)Exhibit A6, the mother’s statement to police, 4 July 2014;

   g)Exhibit A7, a brief note or report from a Dr B, produced by the (omitted) Medical Centre;

   h)Exhibit R1, two pages from material produced by the Department of Family and Community Services; 

   i)Exhibit R2, the transcript of the child’s interview, some 20 pages, 19 June 2014;

   j)Exhibit R3, the transcript of the child’s interview, 4 July 2014. 

Proposals

1. The father’s proposal is that he spend time with the child supervised by one of three nominated supervisors. To that end, I have also read and considered affidavits by each of those persons and comprising:

   a)An affidavit of the paternal grandmother, Ms C, sworn or affirmed 14 August 2014;

   b)An affidavit of the paternal aunt, Ms P, sworn or affirmed 14 August 2014;

   c)An affidavit of the father’s partner, Ms A, sworn or affirmed 14 August 2014; and

   d)A handwritten affidavit of Ms A, also sworn or affirmed today. 

2. The father submits that the allegations raised by the mother are so flawed and that the evidence in support of them is so weak, so inconsistent or now, as would appear clear, so trampled upon as to lack any probative value. The father suggests that one would disregard them.  I am not satisfied I can adopt that course today.

3. The mother proposes that there should be no time between the child and the father, or if time is to occur, that it should be supervised and supervised only through a professional contact service. 

4. There is some delay before that service can come into effect, being two to three months. That delay is but one and a small part of the considerations to which the Court must have regard. It is far from determinative or dispositive of the issue.  If supervision on that basis is required, then supervision on that basis will occur. 

5. To that end I am conscious that one must consider the risks that exist for this child at this point in time. 

Legislative pathway

1. I have considered the legislative pathway commencing with the objects and principles in section 60B and then considering sections 60CA, 61DA, 60CC and 65DAA(5) of the Family Law Act 1975.

2. I do not specifically address each of the above sections.  I have had regard to each and had regard to each in determining to make the orders presently operating.

3. The fundamental issue in this case is an allegation of unacceptable risk and an application for variation of the presently operating final orders by reference thereto. Accordingly, I propose to turn to and deal with the fundamental issue of risk and that which flows from it.

Unacceptable risk and caution

1. As is common, the court is urged to “act cautiously” in the circumstances. One must have some regard to both the unacceptable risk test and consider what “caution” might constitute in these proceedings.

2. With respect to the unacceptable risk test, I incorporate the discussion of same in Deacon & Castle [2013] FCCA 691 for the purpose of ensuring consistency of discussion and for ease of time being that contained at paragraphs 454-459:

   454. In dealing with an issue of unacceptable risk, I am considerably assisted by the Full Court’s decision in Johnson & Page and particularly passage of that judgement at paragraphs 62 and 63 and 65-68 (inclusive) as follows:

   “Relevant legal principles

   The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M and M. 

   Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M and M at 76-77 

   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.”

   455. And:

   456. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:

   In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred.   We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.  The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty.  However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.

   457. Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 which are as follows: 

   One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration. 

   Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:

   “Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.

   In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:

   “It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.

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

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.

   In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?

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

   In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party.  As Thomas J said at 670:

   “In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”

   Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘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’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.

   In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:

   “It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”

   If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question.  An example of this is Thomas J’s approach at 681-2:

   “I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”

   This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court’s emphasis]

   458. Also potentially relevant to the issues raised in this appeal are Warnick J's comments in his separate judgment in Napier v Hepburn, which were adopted with approval by the Full Court in Potter v Potter (2007) FamCA 350. His Honour said: 

   I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change. (paragraph 114)

   459. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:

   (a) The decisive issue is and always remains the best interests of that child.

   (b) All other issues are subservient.

   (c)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.

   (d) Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.

   (e) The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.

   (f) The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.

   (g) The onus of proof in reaching that conclusion is the ordinary civil standard.

   (h) But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.

1. The Court must be satisfied that there is real evidence that establishes that the child would be exposed to an unacceptable risk. 

2. The risk in the mother’s case is suggested to be that the child has been abused and that the child is thus at risk of further abuse if spending unsupervised time with the father.  The allegation perhaps goes further to suggest that the child would be exposed to an unacceptable risk of emotional and psychological harm through her exposure to the father, as her child abuser. 

3. It is no doubt to that end that the mother has sought to include within her material diary notes and other comments and criticisms suggesting the child’s unsettled behaviour once she had started overnight time with her father. 

4. I am not satisfied that I can take that as being any suggestion, as might be intended to be inferred, that there is potentially much more to the allegation of abuse than the one simple disclosure suggested to have been made to the child.

5. The context in which the mother leads all of that evidence is unclear. 

6. The mother also leads evidence, albeit modest, regarding a catalogue of complaints with respect to the father which predates the parties’ separation and indeed predates the orders made by consent on a final basis 30 August 2013. 

7. The father for his part makes less criticism of the mother during that period but makes clear that he faced difficulties in spending time with the child.

8. The mother also suggests that the child has settled significantly in her behaviour since her time with her father ceased. However, there is nothing of any specificity in that regard.  The mother simply refers to it on the basis of saying at paragraph 65 “X has her moments, however is doing much better”.

9. The mother goes on to indicate that the child is no longer wetting her bed and has not had any such bedwetting episodes since shortly after the disclosure was made, that she had stopped sucking her fingers, has stopped stuttering and more recently and since late July has begun to tell her mother that she was having bad dreams about Daddy and that these had coincided with bedwetting. She also goes on to indicate that since ceasing to spend time with the father, the child no longer experiences a red or sore vagina.

10. If it is in fact intended to suggest thus that the difficulties that were suggested in the child’s behaviour, and are related at length in the notes that the mother has kept and which she has annexed both to her affidavit material and to that which she has provided to the Police, is symptomatic or responsive to a more extended level of suspicious behaviour by the father, I reject that submission.  It simply cannot be made out on the evidence that is available nor does the mother’s evidence support that it would be so. 

11. Both of the parties would suggest that there were difficulties once overnight time started, including the child having difficulty separating from each parent and each reported those concerns to the other.

12. It is also quite clear that the child is reactive to the stress and anxiety that is somewhat circumjacent to the arrangements that were put in place for her. 

13. To the extent that the mother asserts that the child is thus now in a much better place, as it were, since ceasing to spend time with her father, I again cannot accept that this is so or if a change has occurred that it is in any way connected to the child’s relation or interaction with the father.

14. That is not to suggest that there have not been changes in the child’s behaviour, either after overnight time started or since time with the father ceased. However, there are many possible explanations for why that may be so, some of which might arise in the mother’s household.  They are matters for final hearing. 

15. What is suggested at this time is one allegation with respect to a suggested disclosure by the child. 

16. The mother also seeks to rely upon portions of material produced from the Department of Family and Community Services records and which would purport on two occasions to suggest evidence or knowledge of “known historical sexual matters” regarding the father and dating from 2001 and 2002. 

17. Nothing is known about that suggested knowledge by departmental officers.  Nor is anything known specifically as to how that information has come to them.  There is at one point reference to a COPS event, but they have not produced the document. Nor is it clear whether they have ever sighted it.  What is made clear in relation to that event is that the suggested victim also spoke with New South Wales Police on an occasion subsequent to an initial statement, if one was in fact made to Victorian Police, and suggested they did not know if the events complained of had, in fact, occurred.

18. Clearly further records will need to be obtained from both New South Wales and Victorian Police to ensure that those matters can be properly put to rest if they can, in fact, be put to rest. 

19. The father, for his part, suggests that the mother has manufactured the allegations and that this is entirely consistent with her pattern of behaviour, being to seek to limit his involvement in the child’s life. 

20. The father tenders in his case the letter exhibit A to which I have referred. It is a letter from Dr B, to the mother’s treating general practitioner which suggests that the mother is suffering from:

    Social phobia, generalised anxiety, disorder and has significant self-esteem issues.  She is working hard using CBT skills but definitely needs ongoing care at this stage.

21. Nothing further can be taken from that letter other than that it is clearly another avenue of inquiry that will need to be pursued and these parties can expect that they will spend significant time and resources in addressing the issues which now exist between them. 

22. As regards the suggested disclosure by the child,  I am satisfied that it would pose, as regards and to the extent that it suggests the child’s sexual assault, an unacceptable risk. That is not to suggest that I accept the allegation proven. Far from it. Indeed, there are such significant concerns with the evidence as it stands and particularly the tainting of that evidence through the mother’s own actions that one is reluctant to place any weight upon that evidence and one can imagine the Local Court Magistrate will face similar issues.

23. Certainly to the extent that Senior Constable Mr G seeks to suggest that there is proof positive of the child having been inappropriately touched, I do not accept that is so. The interviews between the Police and departmental officers and the child are scandalously and badly conducted. They do not reflect anything resembling the best practice standards that govern their office in interviewing children. Put bluntly,  they should be ashamed of themselves as to how they conducted those interviews, both as to their timing, the manner in which they badgered the child to provide answers when she does not wish to and persevering with the interview for 20 pages of transcript when clearly the child does not wish to speak about things and only speaks about things when matters are put to her in such a direct, suggestive and leading fashion that it comes close to, if it does not in fact represent, putting words in her mouth.

24. The mother’s interview is even more scandalous.  Her attempts at non-suggestive, objective and forensic interviewing are beyond clumsy.  They are irresponsible and might, were it not so pejorative to gentle and beautiful creatures, be described as elephantine.

25. However, I cannot dismiss the allegations out of hand and thus I must have some caution in that regard.  However, caution is twofold. 

26. I must also be cautious of the alternate hypothesis that there is absolutely nothing that the father has done that would be abusive and thus I would, by making an order for no time or an order for time to occur through a supervised contact service (which would have the effect that during any adjournment, there would be no time), be terminating and interfering in a perfectly healthy relationship which should not be interfered with.

27. In that regard it is curious, if not instructive, to consider the manner in which the mother has expressed her allegation in her Form 4 Notice of Risk. The mother describes therein:

    On 18 June 2014, the child made disclosures to the respondent mother that, “Daddy touched my bottom.”  The mother, confused by what the child was saying, asked the child how the applicant father had touched her.  The child then stood up, pulled down her pants and knickers and opened her vagina, placing her fingers on her clitoris.

28. That is where the suggested risk of abuse and alleged abuse starts and ends. 

29. The affidavit certainly contains more information, but to the extent of that allegation as it stands, there are a number of possible interpretations of it and a number of ways in which such a statement might be received, rather than with incredulity and suspicion. For a parent of a three-year-old child to touch their child’s bottom, suggested later to be the child’s vagina rather than bottom would be so unremarkable that it would, to most minds, whether of an intact or separated parenting unit, pass without notice.

30. Clearly it has sparked something in the mother’s mind in this case. 

Supervision of time

1. The evidence, troubled as it is by interference and incompetence in interviewing, does not allow me to dismiss the allegation.  It is a serious allegation and it must be treated and moved forward seriously.  It warrants and calls for supervision which will provide protection on three levels:

   a)Protection of the father from further allegation;

   b)Protection of the child from further abuse; and as is submitted in the father’s case,

   c)Protection of the child from further allegation and investigation. 

2. Thus I am satisfied that there must be some interference with the existing final order and that, during the period of adjournment, until the matter can be properly forensically examined (if that is now even possible in light of the mischief that the Police, the Department and perhaps more importantly the mother have wreaked upon the investigation), for supervision to apply.

3. The issue is then who is to supervise time. 

4. The mother proposes the contact centre.  The father proposes three persons related to him. 

5. As has been discussed in B & B (1993) FLC 92-357 and M & M [1988] HCA 68, supervision is intended in circumstances such as this to meet the three levels of protection described. Protection from abuse, protection from further allegation and the child’s protection from further allegation and, in light of that which flowed from 18 June, further unnecessary and intrusive investigation, having consisted of at least one if not more physical examinations, and at least three recorded interviews and one can only begin to guess how many informal unrecorded interviews.

6. This child has clearly been engaged in significant discussion with respect to the matter. The child is presently engaged with a counsellor for the purpose of receiving sexual assault counselling. That counselling will cease. There is no evidence to suggest the child requires counselling for anything. 

7. The mother asserts in her evidence that the child is enjoying the counselling and that she believes it is beneficial to her.

8. However, there is nothing to indicate for one moment that there is in fact any real basis for it.  If the child has not in fact been sexually abused, then counselling the child for abuse is perhaps the quickest way to cause damage to this child.  It is also the quickest way to cement in her mind a false memory of abuse. 

9. The evidence with respect to counselling is contained solely within paragraph 64 of the mother’s evidence in the following terms:

   X has been receiving counselling and support from Ms T at (omitted) Community Health.  She sees Ms T generally about once a week since the disclosures were made.  The first visit with Ms T took place the following week after the disclosures were made. 

10. It is not suggested that the counselling has occurred by referral or recommendation, but clearly it is inferred that it relates to suggested disclosures of abuse. Thus it will cease. If the child does genuinely require support and counselling for abuse, it can be reinstated once there has been proper forensic investigation, which one would hope can occur as soon as possible, if that is at all possible now, some months after the event and after the mischievous, unskilled and elephantine trampling of the trail of evidence.

11. If supervision is required one is left with the dicta of precedent as to those who are appropriate.

12. A supervisor needs to be someone who is vigilant. It needs to be someone, ideally, known to the child although clearly staff at a supervised contact service are not presently known to the child but would go through some process of familiarisation before time started.  It should be a person who is not presently a witness in the proceedings.  It should be a person whom, ideally, both parties have some faith and confidence in.

13. It would seem, by the mother’s rejection of each of the three proposed supervisors, that the mother does not have faith or confidence in any of them. That may well have specific basis, although it is not clear that it is. It may be a more generalised concern that those persons are simply part of the father’s family or camp. 

14. In relation to Ms A and without intending any criticism of her whatsoever, I am concerned that the purposes to be achieved;  protection from further allegation, protection from further investigation of allegations and protection from the possibility of abuse, she would not meet the standards set by precedent.

15. That is particularly so as she is now a witness in the proceedings. To that extent, significantly, partisan and involved in the forensic examination of the matter. It is suggested that she was present at the very time from which the allegation of abuse is suggested to have arisen. In those circumstances the mother could not have any faith or confidence that Ms A could appropriately guard against any untoward behaviour as, if one were to accept the mother’s evidence and Ms A’s, which I have no reason to doubt, she was present for the entirety of the period when it is suggested that abuse occurred.

16. Accordingly, I could not accept Ms A, although I again make clear, that is in no way a slight upon her truth, veracity or general appropriateness to be in contact with the child. It is simply that it would not meet the relevant tests prescribed.

17. I have less concern in that regard with respect to each of the maternal aunt and grandmother. It is suggested by each of them that they have spoken with an attorney, presumably the father’s, to obtain advice as to what is required of them.

18. They each undertake on oath that they will be present and monitor not only time between the child and the father, but all conversations between him and the child. They, on oath, undertake that they will monitor physical displays of affection and that they will attend to the child’s toileting rather than the father.

19. Time will be limited to day only time. At this point in the proceedings, it must be.  It is simply not possible for a person to supervise overnight time appropriately, unless they remain awake and vigilant at all times during the period.

20. If time is not overnight then the child will not need to be put to bed, at least not for any significant period. The child may be put down for a nap, and they are matters that again I am satisfied either of those good persons can attend to. They each have significant experience in dealing with children. 

21. I am satisfied one or either of the grandmother or aunt are appropriate supervisors for the limited purpose of supervision during the adjournment and until an independent children’s lawyer can be engaged in the proceedings and inquiries made as to the appropriate expert who might prepare a report in these proceedings, if it is possible for them to properly examine anything at this point in time.

22. One would think a significant part of a Part 15 expert’s role would be to comment upon the methodologies that have been undertaken in the various interviews with the child so far, which on their face appear vastly flawed. 

23. I am satisfied that each of those relatives will suffice.  I am conscious that Ms Stilwell no doubt will not feel reassured or significantly reassured by their presence. However, I accept that caution is warranted, but caution with respect to both the positive and negative hypothesis with respect to the allegation.

24. If the allegation is true, I am satisfied it is a sufficient safeguard for this child and this child’s best interests. It may not safeguard the mother, who on the material tendered in the father’s case, exhibit A7, has some degree of emotional or psychological fragility, but nor is there evidence that suggests that it will be so limiting or undermining that it will impact upon the child. 

25. If the allegation is incorrect, it will provide the greatest possible opportunity for minimal interference in the child’s relationship with the father, which is otherwise described as entirely appropriate and healthy.

26. The matter can and will be reviewed once the independent children’s lawyer is appointed and the matter is brought back before the Court.  At that time it may be that the parties move to some other arrangement, including a further reconsideration of a supervised contact service or possibly further address of whether supervision is required at all.  But they are matters for another time when there is hopefully better evidence.

27. If time will not occur on an overnight basis (and the father without admissions and without prejudice sensibly concedes supervision at this point is intended to safeguard himself and the child from further allegations more than anything) then the father’s alternate proposal for time one day each week, 10am until 5pm on Sunday, and a brief period on each Thursday, 2pm until 6pm, would seem entirely appropriate.

28. There are a number of other orders that are sought by the father in his case, the majority of which are agreed. They particularly relate to the appointment of an independent children’s lawyer, mutual non‑denigration and non-discussion or examination orders, preparation of an expert’s report – although the independent children’s lawyer will need to have a role in addressing that and the terms of reference therefore – as well as a plea by the father for a continuation of telephone time.

29. I am conscious that telephone time for a child of this age is unsatisfactory as a means of continuing a relationship.  But then again so are limited periods of supervised time Telephone time at least allows X to hear her father’s voice and discuss matters in her day which the father can use to engage with X when he physically sees her.

30. I accept that it would be important for telephone communication to continue. Accordingly, I propose to make the order for telephone communication that the father seeks. 

31. The mother’s evidence makes clear, without intending to suggest that it has been in the past in any way appropriate, that there is a degree of vigilance if not monitoring of that communication.  Accordingly, I am satisfied that this is a sufficient safeguard.

I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate: 

Date:  12 November 2014