S and C-S

[2006] FCWA 64

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY LAW ACT 1975
LOCATION:	PERTH
CITATION:	S and C-S [2006] FCWA 64
CORAM:	MARTIN J
HEARD:	23 & 24 MAY 2006
DELIVERED:	27 JUNE 2006
FILE NO/S:	PT 7100 of 2003
BETWEEN:	S

Applicant

AND

C-S
Respondent

(Page 2)

Catchwords:

Contact - risk of abuse - half-brother

Parenting orders - variation

Legislation:

Family Law Act 1975 - s 65D, s 65E and s 68F

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Clinch
Respondent	:	Ms Pinnington
Child Representative	:	Ms Somers

Solicitors:

Applicant	:	DCH Legal Group
Respondent	:	Pinnington & Associates
Child Representative	:	Sarah B Somers
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Case(s) referred to in judgment(s):

Fitzpatrick and Fitzpatrick (2005) FLC 93-227
M and M (1988) FLC 91-979
(Page 4)

1 The issue for determination was the applicant father’s application contained in an amended reply filed 5 September 2005.

2 The issues were very narrow:

1. Whether the only child of the parties, a girl now aged nearly seven years, should have direct contact with her half- brother [C], and on what terms. The mother’s position was that there was an unacceptable risk of child abuse should the child have contact with [C] until she is 14 years old.

2. The father sought variation of the extensive parenting orders made, by consent, on 9 May 2005, to increase his interim weekly contact with the child, which is presently from 1:00 pm Sunday until 7:00 pm Monday, to extend to the commencement of school on Tuesday. The mother opposes this application, and would prefer for the father to have contact during school terms on weekends.

3 By the conclusion of the trial, the father sought the following

orders:

Without any admission as to need and without any admission of the allegations raised against [C] born November 1986:

1. Until the child [N] born July 1999 attains the age of 14 years, the following shall apply:

(a)	the husband shall personally supervise the child at all times that she is in the presence of the husband's son [C];
(b)	that any mail, email or other correspondence and gifts and presents from the child [C] to [N] be exchanged through the husband;
(c)	the child [N] have reasonable telephone contact with her half brother [C] with such telephone contact to be supervised by the husband.

2. That the husband ensure that in the event he is exercising overnight contact with the child [N] in the presence of [C]:

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(a)	same room as the husband.
[C] not sleep in the same dwelling as the husband and (b) the husband ensure the child .[N] is sleeping in the

4 It was proposed that the proposed written undertaking of [C], in the following terms, be accepted:

Without admission as to the allegations that have been made about me or for the need of this undertaking, I undertake to the Court that until the child [N] reaches 14 years of age;

(a)	I will only have contact with the child in the presence of my father Mr [S];
(b)	I will only communicate with the child by telephoning, sending letters and presents through my father Mr [S];
(c)	I will not sleep in the same room and/or dwelling as the child;

And I agree to be bound by this undertaking until 21 July
2013 or excused by the Court.

5 The mother’s position was as follows:

1.	She sought orders that the applicant husband be restrained by injunction from allowing the child of the marriage from having contact with [C] until the child attains the age of 14 years, and thereafter, the husband personally supervise the child at all times that she is in the presence of [C].
2.	The husband continue to have contact to the child from 1:00 pm Sunday until 7:00 pm Monday each week.

6 By the conclusion of the trial, she accepted there could be some indirect contact by mail and email and through the giving of presents.

7 By the end of the trial, the child representative supported the father’s position in relation to the issue of the child’s contact with [C]. Appropriately, she made no submission in relation to the additional overnight contact issue.

Background

8 The father is 42 years old and a [tradesman] engaged in contract work , and in lecturing for a few hours per week, part- time, at TAFE in this area. The mother is 35 years old and is

(Page 6)

engaged in home duties. At trial, she described her occupation as
“unemployed”.

9 The father was previously married to [AC] in 1985, and there is one child of the marriage, [C] , now aged 19 years. The father and [AC] divorced in 1988. He has a good relationship with [AC], and her husband, [DC], who live in [the south of the state]. The couple have two children, [B], aged eight years, and [G], aged seven years. In the past, when the [C] family have visited Perth sometimes they have stayed with the father. Last year, this occurred on two occasions, in July and September.

10 The father and mother began living together in 1993, and married in 1997. Their child [N], was born in July 1999, 12 weeks prematurely. The child remained in hospital for approximately three months after her birth as she was critically ill. As a result of her prematurity and the medical treatment she received, she has some health and developmental problems. She suffers from asthma, and has some speech and developmental delay. She has attended a [ language development centre], to help in this, and progressed so satisfactorily, she has this year, commenced primary school.

(Page 7)
11	During the relationship, the mother was the child’s primary caregiver, but the father was actively involved in the care of the child.
12	In 1999, the mother was diagnosed with post-natal depression, and took anti-depressants for a time.
13	During 2001, there were incidents which caused the mother to become concerned about [C]’s inappropriate behaviour towards [N]. These will be referred to in more detail subsequently.
14	The parties’ relationship deteriorated and during 2003 they occupied separate bedrooms.
15	The mother’s concern grew to such a level, that she left the former matrimonial home, with the child, on 16 December 2003. She withdrew the substantial balance in the parties’ bank account without telling the father. The circumstances were that [C] had been quite badly injured in an accident and was flown to Perth to hospital. She had thought the child may see [C] the next day so felt she had no alternative other than to leave.
16	The parties have not lived together since that time. The mother felt the father was not taking the allegations sufficiently seriously. The child probably last saw [C] in early 2003, and has certainly not seen the child since the parties separated.
17	The mother, initially, did not inform the father of her whereabouts and, appropriately, on 22 December 2003, parenting proceedings were commenced by the father in relation to the child. He also sought a Commonwealth Information Order to locate the child. The order was granted, and the mother, who had gone to a women’s refuge, became involved in the proceedings. The mother was then making allegations that the father had been violent to her and the child. While at the refuge, the mother had an interview with departmental offices about the allegations of abuse, which eventually were referred to the [local] office for further assessment.
18	On 13 January 2004, orders were made that the father have reasonable contact with the child from 10:00 am to 2:00 pm each Thursday, in the presence of Mother Hen babysitters, and telephone
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contact. Without admission as to need, the father was restrained by injunction from bringing the child into contact with his son [C].

19 Both parties attended a parenting course about this time.

20 On 12 February 2004, the mother filed a notice of child abuse or risk of child abuse in the following terms:

1. The wife believes the child [N] would be at risk of further sexual abuse if the husband was to allow contact between the child and [C] born November 1986.

2. In July 2000 whilst the child, the husband and wife were at [a suburban pool] with the said [C], [C] sexually assaulted the child by fondling the child’s genitals whilst holding the child.

(Page 9)

3. The child [N] has displayed sexualised behaviour after having had contact with [C].

4. The child [N] has also told mother that “[C] hut me” (sic) and when the mother asked where he had hurt her, she pointed to her vagina.

21 On 11 March 2004, it was ordered, by consent, among other orders, that the father to have reasonable unsupervised contact on Wednesdays, with the handover to be supervised by the Mother Hen agency.

22 On 2 July 2004, it was further ordered, by consent, that the restraining order in relation to the child’s contact with [C] continue. Among other orders, it was ordered that the father have contact for eight weeks from Friday at 11:30 am until 9:00 am on Saturday, extending to 5:00 pm Saturday for the following eight weeks.

23 On 9 May 2005, the parties attended a conference and after negotiating at length, orders were made, by consent, in relation to many issues.

24 The orders relevant to the issues in this case are:

“2.	The child of the marriage reside with the mother;
3.	While the child is in the care of the wife she have sole responsibility for decisions concerning the day to day care, welfare and development of the child;
4.	While the child is in the care of the husband he have sole responsibility for decisions concerning the day to day care, welfare and development of the child;
5.	The husband and wife be jointly responsible for the child's long term care, welfare and development; …
10.	Without admission as to need, that save for emergency, arranging or changing contact times and/or advising the wife of his intention to attend school and other events or telephone contact the husband not telephone the wife’s residence. …
20.	That the husband allow the child to telephone the wife during any period of contact should she wish to do so

(Page 10)

and in any event, the husband cause the child to telephone the wife at 5:30 pm on Monday of each contact period.

21. That the wife allow the child to telephone the husband at any time should she wish to do so, and in any event the husband be permitted to telephone the child at 7:00 pm each Thursday and Saturday that the child is in the wife’s care.

22. The husband be permitted to attend school functions and events for the child on the basis that he give the wife at least 48 hours notice of his intention to do so.

(Page 11)

23. Subject to the willingness of the relevant school(s) the husband keep himself appraised by direct contact with the school in respect of the child’s educational needs and progress.

24. The wife forthwith authorise the principal of any school the child attends to release to the husband copies of all school reports, any other reports on school progress and behavioural issues and all school circulars in relation to the child together with details of all functions, parent and teacher nights and other activities to which parents are invited. …

28. The husband and wife shall communicate with each other in relation to contact arrangements and any other matters relevant to the child’s welfare via a communications book to be handed over contemporaneously with contact handovers. …

34. Without admission as to need the husband be restrained by injunction from bringing the child into contact with the wife’s parents and in the event the wife’s parents attend any place the husband is with the child, the husband forthwith remove the child.

35. Without admission as to need, the husband be restrained by injunction from:

(a)	Leaving the child alone with [G] [the mother’s brother].
(b)	Allowing the child to sleep at the residence of [G] and [S] [the mother’s sister-in-law].
(c)	Allowing [G] and [S] or either of them to babysit the child. …

37. The said application and response and reply save and except as they relate to the issue of unsupervised contact between the child and [C] and property settlement be otherwise dismissed.”

25 Until further order, orders were made as follows:

(Page 12)

“38. Pending the final hearing of these proceedings and without prejudice to the husband’s application for contact until before school Tuesday commencing the first Sunday following the date these orders are made from 1.00 pm Sunday until 7.00 pm Monday with such contact to be suspended during school holiday periods commencing the Sunday immediately following the conclusion of the school term and to recommence on the first Sunday following the commencement of the next school term.

39. Pending the final hearing of these proceedings and without admission as to need and without admission as to the allegations raised against [C], the husband be restrained by injunction form

(Page 13)

allowing the child to have any contact with [C] born
November 1986.”

26 The order for an injunction in relation to contact with the mother’s parents was made because the mother alleges that her father has behaved sexually inappropriately to her as recently as 2001. She has had virtually no contact with her parents since early 2001, except for infrequent telephone calls with her mother.

27 [G] is the mother’s brother, with whom she has not had contact for some years, as she alleges that she was sexually abused by [G] when she was nine years old. The child has some contact with her Uncle [G] through the father, and the mother does not oppose this, but has imposed conditions on the contact, which have been accepted by the father and [G].

28 The parties were divorced in August 2005. Orders, by consent, were made in relation to property settlement on 21 September 2005. Pursuant to those orders, the father was to retain the former matrimonial home in [the suburbs], and pay a substantial sum to the mother.

29 The proceedings were initially listed for trial before me on 27 February 2006, but there were practical problems and the trial was adjourned. It was intended that evidence of witnesses from the [the south of the state] area, where [C] and the father’s former wife, [AC] reside, be adduced by video-link, but this again proved impracticable, and, at considerable inconvenience and expense, the witnesses from [the south of the state] came to Perth for the trial.

30 [C], although 19 years of age, has not given evidence in the proceedings. The evidence is that he denies the allegations of abuse, and would like to have a relationship with his half-sister. His circumstances are that he now lives independently from his mother and step-father in accommodation in [the south of the state] with a former school associate. He works in his grandparents’ [business].

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Relevant factors

31 The object of Part VII of the Family Law Act 1975, relating to children and the principles underlying it are set out in s 60B of the Act.

“(1)	The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure 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

(Page 15)

(b)	children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)	parents 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.”

32 Pursuant to s 65E of the Family Law Act 1975, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interests, the Court must consider the matters set out in s 68F(2) of the Act.

33 Section 65D(2) of the Family Law Act 1975, provides that a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.

34 As to any wishes expressed by the child, and the weight to be given to those wishes, [N] is nearly seven years of age. The father says that she is expressing a desire to spend more time with him and also “asks after” her elder brother, [C], whom she has not now seen for about three years. The mother denies that the child has asked to spend longer periods of time with the father, and has expressed no wish to see, talk to or be near, [C] and has actually shown fear when in his presence. [AC]’s evidence was that she had heard [N] ask [G] about [C] “in a happy and inquisitive tone of voice. She did not sound afraid or wary of Chris on such occasions”.

35 Having regard to the child’s age, and the issues in dispute, I do not accept that the expressed wishes of the child, unless they raised concerns about the child enjoying time with her father, are significant to my determination.

36 As to the nature of the relationship of the child with each of her parents and with other persons, there is no dispute that the child has a close and loving relationship with both parents.

(Page 16)
37	The child has virtually no contact with other family members while with her mother, her mother being estranged from her brother and sister-in-law, and her parents.
38	While with the father, the child has, in the past, had some limited contact with [C], who, for a time, attended [a private school] as a boarder, and spent time with his father on weekends. However, she has not now seen [C] at all for years, and has little memory of him. She is aware of his existence, and apparently recognises him in photographs.
39	While with the father, [N] has had some contact with her mother’s brother and his family, under the supervision of her father, and she also sees her paternal grandparents, Mr and Mrs [S], who reside in [the south of the state], but also have a home in [the suburbs]. They travel to Perth fairly regularly. I believe she does not see her maternal grandparents.
(Page 17)
40	As to the father’s relationship with [C], it is accepted that he has not had a close relationship largely because of the physical distance involved and his first wife’s remarriage. The relationship is likely to have been affected, to some extent, by these allegations and proceedings, and the limitations imposed, for example, after the allegations were made, and before separation, the father generally took [C] out on visits or to his parents’ Perth home because of the mother’s concerns about him being around [N]. It is obvious that the mother and [C] did not have a good relationship as he grew older. He readily accepts that [DC] has been a father- figure to [C]. However, his evidence is his relationship with [C] is improving. He has seen him three times this year on trips to [the south of the state].
41	As to the likely effect of any changes in the child’s circumstances, including any separation from either of her parents, the child is used to living with her mother, and spending approximately a day and a half with her father each week (including school time), and school holidays. The father’s position is that it is unlikely to have a detrimental effect on the child, if she stays with him an additional night. I accept this is the case.
42	There is no relevant practical difficulty or expense in the child having contact with either parent.
43	As to the capacity of each parent or of any other person to provide for the needs of the child, including her emotional and intellectual needs, both parties are clearly capable of meeting the physical, emotional and intellectual needs of the child.
44	The mother claims that the father does not have the capacity to recognise danger to the child’s physical and emotional wellbeing, or should he recognise potential danger, does not have the inclination to take precautionary measures. I do not accept this is the case.
45	The mother suffered from post-natal depression and received treatment. The father’s evidence is that towards the end of the marriage, she showed signs of depression which he set out in some detail in his trial affidavit, for example, she appeared to be spending a lot of time in bed during the day and seemed not to be
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supervising the child properly. The father says that the mother’s concern about [C] may impact on the mother’s ability to adequately meet the child’s needs to develop a relationship with her elder sibling. This has obviously been the case.
46	As to the child’s maturity, sex and background, and any other characteristics of the child the Court thinks are relevant, it is common ground that [N] has learning difficulties and has had some health problems. Neither party suggested that these were significant to the issues for determination.
47	An important factor is whether there is a need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed, either directly or indirectly, to abuse, ill treatment, violence or other behaviour.
48	The mother is convinced that the child has been sexually interfered with by her half-brother, [C]. The mother’s evidence is that while the parties lived together, [C] did not have a close relationship with [N]. The mother spent substantial periods caring
(Page 19)
for [C] as the father would be working at times when [C] was visiting their home. As [C] grew older, her relationship with him deteriorated.

49 In her trial affidavit she said:

“15.	As [C] grew older he started to become rude, aggressive and disobedient. If I tried to engage him in conversation I would often get several rude responses. He would roll his eyes, tell me that what I was saying was boring, or that everything I talked about was stupid or dumb.
16.	[C] also started behaving aggressively towards [N]. On one occasion when [his father], [C] and I went to the zoo he was pushing [N] in her pram and allowed the pram to roll down a hill into a garden bed. For some reason [his father] held my hands behind my back to stop me from running after the pram.

(It seems to be accepted by the parties that this occurred in early 2001. The father’s evidence is he has no knowledge of this incident occurring. [AC] and [DC]’s evidence is that they were present throughout this visit, and would certainly have known if this had occurred.)

17. We went to visit [the fathers]’s parents after we had been at the zoo and whilst there I saw [C] grab his sister [G]'s head and grind it into the floor. [G] is approximately one year younger than [N]. [The father] did nothing to stop this behaviour.

(The father’s evidence is he has no knowledge of this incident and his parents and the Christians certainly did not see anything of this nature.)

18. The first time I was concerned about [C]'s behaviour towards [N] was in approximately July 2000 [the mother later accepted it was probably early 2001] when [C], [the father], myself and [N] were at the [local swimming pool]. Whilst in one of the swimming pools [C] had hold of [N]. He was holding her around her

(Page 20)

mid-waist with one hand and with his other hand I
believe he was fondling [N]'s genitals.

19. I watched the expression on [N]'s face change whilst she was being held by [C]. [C] was talking to [N] in a low voice. [N]'s expression went from happy and smiling to pale and withdrawn.

20. At the time I was with [the father] in the pool and I attempted to move towards [N] to get her away from [C]. [The father] held my hands back, however and would not let me go to [N] even though I told him [C] was hurting her.

(Page 21)

21. [The father] did not let me go until [C] actually brought [N] back to me. When [C] handed [N] to me she was as stiff as a board catatonic and in shock.

(The father admits that an incident occurred at the swimming pool. His evidence was [C] was a few metres away from the parties. [C] was in about a metre of water, so would have had to hold [N] around the waist. He had not noticed any change in the child’s face, but if there had been, she could have been frightened by other people jumping in the water. To this, the mother responded that it was early and the pool was not busy. [N] had started to cry, the father suggests because she was just a bit cold and frightened.)

22. At home afterwards I changed [N], and whilst I was doing so she bent her pelvis up towards herself and stuck some fingers inside her vagina. She had never done this before and it was a very sexually explicit action.

(The father was not present when the child was being changed. The mother, in oral evidence, accepted touching in this area was normal, but not putting fingers in the vagina.)

23. I spoke to [the father] about the incident later during the night and [the father]'s response was that there was "no proof” and that we "should give [C] the benefit of the doubt". He then said: "so what if he hurt her".

(The father admits saying there was no proof, but denies
making the last comment.)

24. I could not believe what [the father] was saying and from that time on I have been very cautious about leaving [N] alone with [C].

(The father points out that because of the child’s prematurity and fragile health, the mother was always cautious about leaving the child with others. This was supported by the maternal grandmother who said the

(Page 22)

mother was concerned about anyone touching the
child.)

25. Following this incident I started noticing that after [C] had been to our home [N] would often display sexualised behaviour. This included her wip ing her vagina with her hand and then licking her hand. She also tried to put her face into my vagina whilst I was lying on the couch.

26. On one occasion [N] also put her face directly onto my vagina whilst I was sitting on the edge of a lounge chair, before standing up.

(Page 23)

(The father denies anything similar happened to him, and if it had happened to the mother, he had not seen it. In cross-examination, the mother admitted she was wearing jeans at the time.)

27. When [the father] and I were toilet training [N] we would put her on the toilet and read to her. On one occasion we did this whilst [C] was at our home. [C] insisted on watching [N] whilst she was on the toilet and said "let me look at her". [The father] stopped him. [The father] later told me that it took all his strength to stop [C] from opening the toilet door.

(The father does admit that, on this occasion, [C] had tried to come into the toilet while [N] was there and he had had to push him away.)

28. I am also aware that there are concerns in [the father]'s family that [C] may have sexually abused his sister [G]. One evening, in or around October 2003, [the father] received a telephone call from his father. I heard the telephone ring but did not hear the conversation. After the telephone call I asked what was wrong. [The father] appeared to be in a state of shock. He informed me that his father had told him that [C] had been seen coming out of [G]'s bedroom early in the morning and behaving in a surreptitious manner. [The father] said, or words to the effect, "Dad asked me if [C] had ever harmed [N]. I didn't tell him about our worries with [C]'s behaviour towards [N]".

(The father admits a conversation with his father occurred, as the grandfather was concerned that [C] could be getting into bad company, drinking and smoking. [G] was not mentioned. He had not mentioned to his father [C]’s alleged behaviour to [N] as he felt it was “not necessary”, and personal to himself.

(Page 24)
Mr [S] has little recollection of any telephone call, but was firm he had never raised any concerns about [C]’s behaviour to [G] with the father.)
29.	[The father] later informed me that [C] had been moved to another part of the farming property so that he was not under the same roof as his sister.
(The evidence of the father and the Christians is that [C] was moved so he could practice his drums and have some privacy. The transportable home was about 100 metres from the main building.)
30.	In late 2001 [N] told me that "[C] hurt me". When I asked [N] where [C] had hurt her she put her hand over her vagina.
(The father says he could not comment on this as he was not there.)

(Page 25)

31. When [N] told me [C] hurt her I was very worried I rang [the father] at work and told him. I also rang Crisis Care that night. [The father] was standing next to me; he kept asking, "what are they saying" over and over. He said he was scared, that he thought something may have happened. I left it until night-time so that [N] had a settled day, at least as much as was possible.

32. I do not believe that this incident relates to the incident at [the swimming pool] and I believe that [C] has, at some other time whilst he has been at our home, sexually abused [N].

33. I recall one occasion in particular when [C] was visiting overnight. I had tried to stay awake because of my concerns and I could hear someone walking about the house and trying door handles. I was aware that it was [C] and not [the father] because the lay out of the house separated [C]'s bedroom from my room and that of [N] and [the father]. I was unable to stay awake. The following morning [the father] said to me or words to the effect "something unusual happened in the early morning; [N] started screaming her head off”. I replied, "That's unusual". I didn't question [N], because I didn't want to put her under pressure. It hasn't happened again, but she had never screamed out before.

(The father recalls [N] woke up crying during the night. If [C] had been trying door handles, it could just be he was looking for the toilet, as he was unfamiliar with the house at night.)

34. On [N]'s third birthday [C] came to lunch. He was seated at the table when [N] entered the room. When she saw him she hid under a nearby table and drew some boxes in front of her. When I tried to get her out she screamed. At the table [N] looked at [C] with fearful sidelong looks and [C] kept saying "she's so stupid".

(The father says he does not recall this incident.)

(Page 26)
35.	On 2 February 2004 at around 7.00am I went to the toilet and [N] followed me. I was sitting on the toilet and [N] was standing at the door waiting to be changed. When I lent back on the toilet seat [N] said "No No don't do that" she then backed into a corner and said, whilst looking at my groin "I too like it that is [C]'s privates". I was very surprised by this comment and asked her to repeat what she had said. She then said the same thing again.
39.	[The father] has failed to protect [N] since protect [N] since I first told him about my concerns. Over the years he has agreed not to bring [C] to the house and then he turns up with him in the middle of the night. I believe this has led to further incidents of abuse following which [N] would display sexually explicit behaviour.”

(Page 27)

(The father believes he has protected [N]. On occasions, prior to separation, [C] has had to be collected at night due to airline flight problems.)

42. On the 25th day of March 2005, being Good Friday morning, [N] came into my bedroom whilst I was in bed. Out of the blue, she said to me “I touched mum’s private parts, breasts, bottom and vagina”. I said “I don’t remember that happening. Do you remember that happening?” [N] said “No, but I say I touched mum’s private parts, breasts, bottom and vagina”. I said “did someone tell you to say this?” [N] said “yes”. I asked “did you meet them whilst you were at Dad’s?” [N] said “yes”. [N] did not know the name of the woman who had told her to say this but her description of the woman matches the description of one of [the father]’s cousins. I reported this incident to the police that morning.”

(The father said when he collected [the mother] that day she had just come from the police station to report this incident. He does not regularly see his cousins, so it could have been [N]’s cousins, who are [G] and [S]’s children. He has had no contact from the police about this. There was minimal evidence about this incident from the mother, but her actions in taking the child to the police are of some concern to me.)

50 The father’s position is that he does not believe that [C] has behaved in any way inappropriately towards [N] and, despite the mother’s evidence, there has been no allegations that he has ever behaved inappropriately to his half-sister, [G]. There is evidence from the husband’s parents, and [AC and DC ], that [C] is not rough with [G] and [B], and has a good relationship with them. [AC] has no doubt that [G] would have been forthright in reporting any inappropriate behaviour.

51 The mother has concerns about the father’s attitude to the allegations, saying that he does not take them seriously and although he, at times, has agreed to keep the child away from [C], he had, prior to separation, allowed [C] direct contact with [N]. He

(Page 28)

had done nothing about the possibility of getting [C] some psychological help. She does not believe he has any control over [C] and, as a result, is unable to help [N] should she need his help.

52 The father says he has never had a casual attitude to his children’s safety, or behaviour, and there is no need for [C] to get help.

53 In M and M (1988) FLC 91-979, the High Court said, at pp 77,080 - 77,081:-

"Viewed in this setting, 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

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in the child's best interests 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 on the balance of probabilities.

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. …

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

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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". … 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."

54 The mother has been very dissatisfied about the Department for Community Development’s involvement in investigating the allegations. The evidence in this regard is that, just after separation, three years after the most serious incident at the pool probably occurred, the mother contacted the Department. She was interviewed

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by two departmental officers from the [local] Warwick office, one of whom, Rosalie King (then Poore), gave evidence before me. Ms King gave evidence that because of the age of the allegations, and the lack of evidence, it was decided there was little could be done. The mother did not appear to understand from the information given that the allegations could not be substantiated.
55	The matter was referred for assessment to the [the south of the state] office, but the address for the [C family] and [C] proved to be incorrect.
56	In June 2004, the mother wrote to the DCD team leader at [the local] office, saying that she had been informed that no investigation had been done because [C] was living in [the south of the state] and the child in Perth, but she had learned from the Family Court proceedings that the father intended to allow [C] to have contact with the child when visiting Perth. She also said the reason advanced by Ms Poore for non-investigation was that [N] would not be able to be interviewed because she was developmentally unsuited to do so was incorrect. There had been a break-down in communication between Perth and [the southern] offices. In that month, [AC] and [C] visited Departmental officers in [the south of the state] expressing concern about the situation.
57	The Department had been having some dealings with the [Mr and Mrs C] over an unrelated matter (they were caring for a teenage girl and were regarded as a responsible family). [C] and his mother were interviewed by Paul Power, a departmental officer, who reported that [C] denied the allegations. The file was referred back to [local] office. No further Departmental action has been taken.
58	As to the actual allegations, while I accept the child became upset while being held by [C] at the swimming pool, it is beyond belief that if the mother thought the child had been sexually abused she would not have sought medical advice, particularly if the child was in shock and catatonic, and it is extremely unlikely that [C] would have touched the child inappropriately in the presence of her parents. I consider it far more likely that [N], who was probably 18 months old and was a fairly vulnerable and clingy child, became understandably upset by something else at the pool and wanted to
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be with her mother. I do not accept there is any foundation for the other allegations at all.
59	On the evidence, I am satisfied that there is not an unacceptable risk of abuse to the child should she see [C], and there is no risk of abuse should orders be made and the undertaking accepted as proposed by the father.
60	As to the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, both parties generally have a responsible and caring attitude towards the child, and are committed and child focused parents.
61	The father’s work commitments are such that it is preferable for him to have contact with the child from Sunday rather than for the entire weekend, and now the child is at school, this is convenient as [N] then has time available to spend substantial weekend time with her mother. The father has been involved in school activities, such as being a parent assistant.
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62	The mother is very protective of the child, which is not surprising, having regard to the fact that she may not have survived infancy, and also the mother’s history of alleged abuse by family members of herself. Clearly, it was not in the child’s interests for the mother to remove the child from contact with her father at separation in the manner she did. The mother admits [N] missed her father at that time.
63	The father presently pays modest child support of only $54 per month, but since his income has increased, expects this to increase shortly. He has contributed to additional expenses for the child if asked.
64	At trial, the father was cross-examined about not being more actively involved in the child’s medical appointments. He admitted he could have done more, but I accept the mother would rather not have to be directly involved with him. The parties communicate with a communication book, and the telephone contact is defined by order. The child has had some problems with toilet training and bed-wetting, which was not discussed with the father. He has sought advice from his family and friends in this regard.
65	As to family violence, the mother, in her Papers for the Judge, referred to being physically assaulted by the father on several occasions, but, at trial, there was no evidence in this regard, and I am satisfied that even if there had been, it was not an issue of significance, having regard to the matters in dispute. The father admitted shouting at the mother a few times prior to separation.
66	As to whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child, the mother sought that an injunction be granted only until the child is 14 years of age “at which age it is hoped that the child will have the ability, to some extent, to protect herself”. The father accepted that some more limited injunctions and undertakings should continue, to provide reassurance to the mother. The child representative suggested the mother’s proposals were more likely to lead to further proceedings.
67	Any other relevant fact or circumstance will be referred to in my conclusion.
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Conclusion

Injunction in relation to the child’s contact with [C]

68 The father’s position in this regard is that he accepts the mother’s belief is genuine, but is not reasonable in the circumstances. The mother’s allegations have been investigated by the Department for Community Development and were not substantiated. He does not accept that any allegations are true, although he accepts he cannot be 100% certain of this. [C] has denied the allegations and would like to see his half-sister. [N] should be able to have a relationship with her half-brother and, in any event, it is likely she will only be seeing him infrequently because he lives in [the south of the state] and she and her parents live in Perth.

69 He said that in the very unlikely event that the mother’s concerns are justified, and [C] has behaved inappropriately towards [N] several years ago, the injunctions and undertaking proposed by the father would ensure that the child was at no risk of

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abuse, and thus reassure the mother, while facilitating interaction with the father’s family, and the [C] family. The suggestion about [N] staying in his room came from me, when there was evidence that [N] could be locked into her room at night if [C] was around. In any event, family functions or meetings would probably not occur more than once or twice each year. Presently the father and [N] cannot attend if [C] is attending and vice versa. Should the father visit the [C family] in [the south of the state], with [N], [C] no longer lives with his mother and step-father.
70	The mother strongly believes there is an unacceptable risk of abuse and that only indirect contact should be permitted.
71	While I accept the mother’s concerns are genuine, I do not accept they are justified, even though [C] did not attend the trial to enable him to be cross-examined on this issue. I understand why it was decided not to call him, at only 19 years of age, having regard to the stress, cost and inconvenience caused. However, it obviously would have provided more direct evidence of [C]’s position on the facts, and perhaps even some reassurance to the mother. The only issue about which I would criticise [C] is coming into the toilet when the child was being toilet-trained. I do not accept the mother’s assertion that by contact the child “gains a risk of being exposed to abuse by a half-brother she doesn’t really know or like”. It is unfair to criticise [C] for a lack of interest in the child when he has not had an opportunity to have any contact with her for several years.
72	A significant consideration in this case is the possible impact on the mother, who is [N]’s primary caregiver, should the stress she is likely to experience if [N] comes into contact with [C], affect her ability to appropriately parent the child. As submitted by counsel for the father, as in Fitzpatrick and Fitzpatrick (2005) FLC 93-227, there was no evidence that the mother’s parenting capacity would be so adversely affected by the continuation of contact that the child’s welfare would best be served by acceding to the mother’s wishes.
73	In the very unlikely event that [C] did behave inappropriately towards [N], or any other child, I accept that the orders proposed by the father should sufficiently reassure the mother.
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74	I am concerned that the mother has not yet been able, or perhaps willing, to properly address the other serious problems she has had, that is the relationship with her own family, and I hope that she will seek professional assistance, if she is not doing so already, to help her cope with the possibility of [N] seeing [C], and her dysfunctional family. The mother accepted that she was more aware than most people of the risks of abuse, and the child’s health, have made her highly protective of the child to an unusual level.
75	I do not accept that the minimal level of contact envisaged should have any effect on the mother. While [C] may have had some faults, I do not accept that it is in the child’s best interests not to have any direct relationship at all with her only half-sibling, [C], until she attains the age of 14 years, in seven years’ time, although despite my findings, the mother is still likely to be stressed about the situation.
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76	I have therefore determined that it is in [N]’s best interests for orders to be made as proposed by the father. However, I would exhort the father to ensure that the orders are very strictly complied with, not because of any risk to [N], but because of the impact it is likely to have on the father’s relationship with the mother, and through her, with the child, should she learn that the child has spent any time alone with [C].

Extension of contact to include overnight Monday

77 The father’s case is that the present interim order, which requires him to return the child to the mother by 7:00 pm on Monday evenings, is unnecessarily restrictive in all the circumstances of the case. The background is that he takes the child to swimming lessons after school on Mondays, and these finish about 5:30 pm. He then has to ensure the child is showered, dressed and fed prior to returning to the mother, and this means that he and [N] are rushed and, on occasion, he has delivered [N] home late. If he returned the child to school on Tuesday, this would give [N] more time to settle in with him as he presently only has one overnight period per week with her. It would also give him an opportunity to have further involvement in the child’s school, although at present he can have this involvement on Mondays.

78 The mother’s position is that she has been reasonable in allowing the father to have contact with the child on Mondays, even though this, to some extent, is disruptive of the child’s school week. She permitted this because of the father’s work commitments on Fridays and Saturdays, and any further extension would be not in the best interests of [N].

79 I have concluded that it is in [N]’s best interest to spend overnight on Mondays with her father. She is used to seeing him after school on Mondays, and also is used to going to school from his home on Monday mornings. In these circumstances, I have no concern about disruption to the child by spending an additional night in the father’s home. It seems likely the forthcoming amendments to the Family Law Act are likely to lead to more orders for contact during the school week.

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Proposed orders

On the undertaking of [C] that:

(i) he will only have contact with the child in the presence of his father [S];

(ii) he will only communicate with the child by telephoning, sending letters and presents through his father;

(iii) he will not sleep in the same room and/or dwelling as the child;

with him being bound by this undertaking until 21 July 2013, or

excused by the Court:

1. Until the child, [N], born July 1999, attains the age of 14 years, the following shall apply:

(a)	the father personally supervise the child at all times that she is in the presence of the husband's son [C];
(b)	that any mail, email or other correspondence and gifts and presents from [C] to the child be exchanged through the father;

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(c) the child have reasonable telephone contact with [C] with such telephone contact to be supervised by the father.

2. The father ensure that in the event he is exercising overnight contact with the child in the presence of [C]:

(a)	[C] not sleep in the same dwelling as the father and the child; and
(b)	the father shall ensure the child is sleeping in the same room as the father.

3. The father’s contact with the child during school terms extend from 1:00 pm Sunday to commencement of school Tuesday in each week, commencing after the July 2006 school holidays.

4. The applications otherwise be dismissed.

I certify that the preceding [79] paragraphs are a true copy of the reasons

for

judgment delivered by this Honourable Court

Associate