SEDGEMAN & NOVOTNY
[2015] FamCA 527
•8 July 2015
FAMILY COURT OF AUSTRALIA
| SEDGEMAN & NOVOTNY | [2015] FamCA 527 |
| FAMILY LAW – CHILDREN – with whom the child spends time – where there are allegations of physical and sexual abuse perpetrated by the father - whether there is an unacceptable risk to the child - whether the mother genuinely believes the allegations - whether the father’s time with the child should be supervised –whether the parties have the capacity to make decisions jointly |
| Family Law Act 1975 (Cth) s60CC, 61DA |
| M & M (1988) 166 CLR 69 |
| APPLICANT: | Mr Sedgeman |
| RESPONDENT: | Ms Novotny |
| INDEPENDENT CHILDREN’S LAWYER: | Brisbane Family Law Centre |
| FILE NUMBER: | BRC | 10713 | of | 2010 |
| DATE DELIVERED: | 8 July 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 7, 8, 9, 10 & 11 April 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Alexander |
| SOLICITOR FOR THE APPLICANT: | Simondis Steel Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Pendergast |
| SOLICITOR FOR THE RESPONDENT: | Family Law Group Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McArdle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brisbane Family Law Centre |
Orders
IT IS ORDERED BY WAY OF FINAL ORDER THAT
All previous Orders are discharged.
The child B, born … 2009 (“the child”) live with the mother.
The mother have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) for the child with such issues to include but not be limited to:
(a) the child’s education;
(b) the child’s religious and cultural upbringing; and
(c) the child’s health.
Except in the event of an emergency involving the child, the mother is to consult with the father about decisions to be made in the exercise of her sole parental responsibility as follows:
(a)the mother shall inform the father about the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision, in writing;
(b)the mother shall give the father fourteen (14) days to respond;
(c)the mother shall consider the father’s views/response when coming to her decision;
(d)the mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.
Each party has responsibility for daily decisions about the day to day care, welfare and development of the child while in his or her care.
The child spend time with the father at all times as agreed between the parties and failing agreement as follows:
(a)on 10 July 2015: from after school until 6.00 pm with the father to collect the child from school and return the child to the mother at McDonald’s Restaurant Suburb C and either the paternal grandmother or paternal grandfather (or both) to be present;
(b)on Wednesday, 15 July 2015: from after school until 6.00 pm with the father to collect the child from school and return the child to the mother at McDonald’s Restaurant Suburb C and either the paternal grandmother or paternal grandfather (or both) to be present;
(c)for six (6) visits commencing Friday, 17 July 2015: each week from after school Friday until noon Saturday with the father to collect the child from school at the commencement of time and changeover at the conclusion of time to occur at Suburb D McDonald’s Restaurant and either the paternal grandmother or paternal grandfather (or both) to be present for the first three (3) visits; and then
(d)for six (6) visits commencing 28 August 2015: each weekend from after school Friday until 5.00 pm Saturday with the father to collect the child from school at the commencement of time and changeover at the conclusion of time to occur at Suburb D McDonald’s Restaurant; and then
(e)commencing 9 October 2015: each alternate weekend from after school Friday until 4.30 pm Sunday (with the time to extend to 4:30 pm on Monday in the event that Monday is a public holiday) with the father to collect the child from school at the commencement of time and changeover at the conclusion of time to occur at Suburb D McDonald’s Restaurant.
(f)commencing Friday, 16 October 2015: each alternate Friday from after school until 6.30 pm with the father to collect the child from school and return the child to the mother at McDonald’s Restaurant Suburb C;
(g)from 5.00 pm Christmas Eve 2015 until noon on 25 December 2015;
(h)during the Easter 2016 school holiday period: from after school on 24 March 2016 to 9.00 am on 28 March 2016 (if the child is being returned to the mother’s care) or 5.00 pm (if the child is being returned to vacation care); and
(i)during the June/July 2016 school holiday period: from 4.00 pm on 1 July 2016 to 9.00 am on 6 July 2016 (if the child is being returned to the mother’s care) or 5.00 pm (if the child is being returned to vacation care); and
(j)during the September/October 2016 school holiday period: from 4.00 pm on 23 September 2016 to 9.00 am on 29 September 2016 (if the child is being returned to the mother’s care) or 5.00 pm (if the child is being returned to vacation care); and
(k)during the December 2016/January 2017 school holiday period: in the first, third and fifth weeks with time to occur:
(i)from 9.00 am on the Saturday immediately after school concludes for the Term until 5.00 pm on the second Saturday after school concludes for the Term with changeovers to occur at McDonald’s Restaurant Suburb C; and
(ii)from 9.00 am on the third Saturday after school concludes for the Term until 5.00 pm on the fourth Saturday after school concludes for the Term with changeovers to occur at McDonald’s Restaurant Suburb C; and
(iii)from 9.00 am on the fifth Saturday after school concludes for the Term until 5.00 pm on the sixth Saturday after school concludes for the Term with changeovers to occur at McDonald’s Restaurant Suburb C;
(l) commencing with the school holidays at the end of Term 1 in 2017 for:
(i)the first half of school holidays in odd numbered years; and
(ii)the second half of school holidays in even numbered years.
(m) on the child’s birthday:
(i)if it falls on a non-school day: from 9:00 am until 1:00 pm with the father to collect the child from McDonald’s Restaurant Suburb C and return the child to McDonald’s Restaurant Suburb C; and
(ii)if it falls on a school day: from after school until 6.30 pm with the father to collect the child from school at the commencement of time and changeover at the conclusion of time to occur at McDonald’s Restaurant Suburb C;
(n) on the father’s birthday:
(i)if it falls on a non-school day: from 9:00 am until 1:00 pm with the father to collect the child from McDonald’s Restaurant Suburb C and return the child to McDonald’s Restaurant Suburb C; and
(ii)if it falls on a school day: from after school until 6.30 pm with the father to collect the child from school at the commencement of time and changeover at the conclusion of time to occur at McDonald’s Restaurant Suburb C;
(o)from 31 January 2016, unless otherwise agreed between the parties in writing the child shall spend time with the father:
(i)from 4.00 pm Christmas Eve until 10.00 am Christmas Day in odd numbered years;
(ii)from 10.00 am Christmas Day until 5.00 pm Boxing Day in even numbered years.
(p)from 31 January 2016, unless otherwise agreed between the parties in writing, the child shall spend time with the mother:
(i)from 5.00 pm Christmas Eve until 10.00 am Christmas Day in even numbered years;
(ii)from 10.00 am Christmas Day until 5.00 pm Boxing Day in odd numbered years.
(q)in the event that the child would not otherwise be spending time with the father on the weekend on which Father’s Day occurs, the child shall spend time with the father from after school Friday until 5.00 pm Sunday on that weekend with the father to collect the child from school at the commencement of time and changeover to occur at McDonald’s Restaurant Suburb C at the conclusion of time.
Commencing with the Easter 2016 school holiday period, the child’s time with the father pursuant to clauses (6) (e) above shall be suspended during all school holiday periods and shall recommence on:
(a)the first weekend after Term starts if the child has spent either the first week of the school holiday period or any time in the first week of the school holiday period with the father;
(b)on the second weekend after school starts for the Term if the child has spent either the second week of the school holiday period or any time in the second week of the school holiday period with the father.
Commencing with the Easter 2016 school holiday period, the child’s time with the father pursuant to clause (6)(f) above shall be suspended during all school holiday periods and shall recommence on the first Friday after the school Term starts on which weekend time does not occur.
The child shall be at liberty to communicate with each parent by telephone at all such times as she reasonably requests and the parent in whose care she is at the time of the request shall facilitate the call.
The father shall be at liberty to communicate with the child by telephone, face time or Skype each Wednesday between 5.00 pm and 6.00 pm on a telephone number provided by the mother, and the mother shall ensure that the child is available to receive such communication.
Each party provide to the other a mobile telephone number and/or landline telephone number upon which the child can be contacted at all times.
When the child is spending holiday time with the father, the mother shall be at liberty to communicate with her by telephone, face time or Skype each Wednesday between 5.00 pm and 6.00 pm on a telephone number provided by the father, and the father shall ensure that the child is available to receive such communication.
The father’s time with the child, as prescribed above, shall be suspended:
(a) for the weekend on which Mother’s Day occurs each year; and
(b) on the mother’s birthday each year.
Unless otherwise specified in this Order or agreed between the parties in writing, changeover will occur at McDonald’s Restaurant Suburb D.
Each party shall be entitled to have another person attend changeover on their behalf, provided that such person is known to the child.
The mother and father shall:
(a)keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within 24 hours of such change;
(b)keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the child;
(c)inform the other as soon as is reasonably practicable of any serious medical condition, significant health issue or significant illness suffered by the child;
(d)inform the other immediately in the case of any emergency concerning the child;
(e)keep the other informed of any school, educational facility or extra-curricular activity provider attended by the child;
(f)refrain from being under the influence of alcohol at a level higher than that which would enable that parent lawfully to operate a motor vehicle whilst the child is in that parent’s care and for 24 hours before the child is in that parent’s care;
(g)refrain from taking any illicit drugs whilst caring for the child and for a period for 24 hours prior to the commencement of the child’s time;
(h)refrain from exposing the child to any person who they reasonably believe to be under the influence of illicit drugs.
Neither parent shall enrol the child in any activity which takes place during time she is to spend with the other parent without first obtaining consent in writing from the parent in whose time the activity takes place.
Any day care, school, educational facility or extra-curricular activity provider attended by the child are hereby authorised to provide to each parent, at that parent’s request and cost, all information about the child’s educational progress and school related activities.
Any medical or other health professionals who treat the child are hereby authorised to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about the child’s attendance and treatment.
Neither parent denigrate the other, their partner or their family to, or in front of, or within the hearing of, the child and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within the hearing of, the child and, failing compliance with such a direction, shall remove the child from that environment immediately.
Neither parent shall discuss these proceedings with the child nor involve the child in any discussions regarding any issue in dispute between the parties other than in the course of counselling provided for in this Order.
The parties do all things necessary to:
(a)attend upon either Mr E, psychologist or Mr F, psychologist, or such other professional nominated by the Independent Children’s Lawyer for a period of up to six (6) months from the date of the Order, or such other period as recommended by the psychologist, for the purpose of family support and therapy to assist with the implementation of this Orders; and
(b)follow the reasonable direction of the psychologist as to the frequency of their attendance; and
(c)make the child available as directed by the psychologist; and
(d)be responsible for the costs of their own attendance upon the psychologist; and
(e)be equally responsible for the costs associated with any joint session or sessions for the child undertaken by the psychologist.
The Independent Children’s Lawyer has leave to provide the nominated psychologist with a copy of the following:
(a)the two (2) Family Reports prepared by Ms G in these proceedings; and
(b)the reports prepared by Dr H in these proceedings; and
(c)the Reasons for Judgment delivered 8 July 2015; and
(d)this Order.
Each party has leave to provide the Department of Communities, Child Safety and Disability Services with a copy of the following:
(a)the two (2) Family Reports prepared by Ms G in these proceedings; and
(b)the reports prepared by Dr H in these proceedings; and
(c)the Reasons for Judgment delivered 8 July 2015; and
(d)this Order.
In the event that the mother intends to move the child’s place of residence from Suburb C to any location further away from the father’s current residence in Suburb I, Brisbane, she shall provide the father with no less than 60 days’ notice in writing of her intention to move and shall also provide him with details of any proposal which would mean a change to the arrangements for the child’s time with him pursuant to this Order.
All outstanding Applications are dismissed.
The Independent Children’s Lawyer is discharged on 8 January 2016.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sedgeman & Novotny has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 10713 of 2010
| Mr Sedgeman |
Applicant
And
| Ms Novotny |
Respondent
REASONS FOR JUDGMENT
The parties met over the internet. After corresponding for a period, they had a relationship between about December 2008 and about March 2009. They did not live together. Mr Sedgeman visited Ms Novotny’s home on no more than about three or four occasions.
The mother’s unexpected pregnancy linked together forever two people who do not really know or understand each other. Their child, B, was born in 2009.
B appears to have struggled at various times with separation anxiety. She is otherwise a robust and active child who, on occasions, has exhibited wilful behaviours and tantrums.
B has always lived primarily with the mother and her half-sister J, born in 2000. She is yet to spend overnight time with her father. She had previously spent unsupervised weekly daytime time with him but currently spends supervised time with him for two hours each fortnight at the K Town Contact Centre.
The circumstances in which this situation has arisen are outlined and discussed in more detail below.
Two Family Reports have been prepared by Ms G to assist the Court. At the time of the first report, the child was 3½ years old. At the time of the second she was just over four years of age. Dr H, a psychiatrist, has prepared a psychiatric assessment of each parent.
The parenting proposals
The father’s position at the commencement of the trial was that the child’s best interests would be met by an order which saw her live primarily with him. However, having heard Ms G’s evidence about the impact such an order would have on the child, he conceded she should remain living primarily with her mother.
The proposed orders handed to the Court on 11 April 2014 by Counsel for the father contain details of the unsupervised time it is asserted it is in the child’s best interests to spend with her father. The father proposed that changeovers occur either at the child’s school[1] or at a specified McDonald’s Restaurant.[2]
[1] If on a school day.
[2] If they occur on a non-school day.
Part of the father’s proposal was that the child and her mother return to live in Brisbane so the child could spend time with him as follows:
a)from after school or 5.00 pm Tuesday until the commencement of school or 9.00 am each alternate Wednesday; and
b)from 5.00 pm or after school Friday until the commencement of school or 9.00 am Monday each alternate weekend.
During his cross-examination, he outlined his proposal for the child to spend increasing time with him over a period of months, moving toward this hoped-for end point.
As it transpires, after the parties were notified that Judgment was to be delivered, they agreed that the Court be told that the mother and the child (and, presumably, J) recently relocated from L Town to Suburb C as a consequence of the mother being made redundant from her previous employment in L Town. The Court was also told the parties had been able to agree about schooling arrangements for the child. She now attends M School at Suburb C.
In practical terms then, the mother’s household is now situated at Suburb C whilst the father remains living at Suburb I. These suburbs are no less than about 45 minutes’ drive apart.
The mother proposes that the child spend supervised time with the father. She says this is in the child’s best interests because the child has made statements to her which she says have convinced her that the child has been sexually abused by her father. She considers, therefore, that the child is at an unacceptable risk of being harmed by her father if her time with him is unsupervised.
The father does not accept that the child actually made the statements the mother asserts she did. He says the mother fabricated the reported statements and the assertions contained within them in order to undermine his relationship with the child. Alternatively, he suggests the mother coached the child to make any statements in which allegations against him are contained. He thinks her motivation is to restrict his relationship with the child, to remove him from her life and to alienate her ‘against’ him.
Whatever comments the child in fact made – and in whatever contexts – her father vehemently denies ever acting inappropriately toward her at any time.[3]
[3] Paragraph 126, father’s affidavit filed 15 November 2013.
The mother also alleges that the child will be at an unacceptable risk of physical harm if her time with her father is unsupervised because of previous injuries she has observed the child to have on her return from time with him and his use of marijuana and alleged misuse of alcohol.
An overview of the child’s previous parenting regime assists in appreciating each party’s case and the context in which the allegations against the father fall to be determined.
Previous parenting arrangements
The mother and father both lived in Brisbane until the mother moved with the child and J to L Town about June 2013. After she was born, the child initially spent time with the father for short periods of time in the mother’s presence.
By November 2010, the parties had reached agreement about the terms of an order which was made, by consent, on 29 November 2010. The November 2010 Order provided that:
a)the parents have equal shared parental responsibility for the child; and
b)B spend time with her father on an increasing basis until November 2011; and
c)the parties would engage in further dispute resolution, after the child turned two years of age in November 2011, to review her future time with her father.
Whilst the parties disagree[4] about when they agreed to vary the November 2010 Order, it is clear that, by no later than about June 2011 (when she was about 19 months of age), the child was spending time with her father from 6:30 am until 6:30 pm each Thursday and from 9:00 am until 3:00 pm each Sunday. During these times she also spent time with her paternal grandparents. This extended time between the child and her father occurred in circumstances where the mother knew about certain matters (such as the father’s alleged behaviours toward earlier partners) which she now relies on as providing the basis for concern about the father’s parenting capacity.
[4]See: paragraph 22, father’s affidavit filed 15 November 2013 and Page 8, mother's affidavit filed 18 November 2013.
From the father’s perspective, the parties were, at this time, both flexible and co-operative in their arrangements relating to the child’s time with him – for example:
a)in May 2011, he cared for her when the mother had job interviews; and
b)in June 2011, he collected the mother and the child from a garage after her car had broken down, spent the day with them and returned them to the garage; and
c)in October 2011, he collected the child from the mother’s residence (rather than from McDonald’s at N Town) because the mother had injured her ankle and was unable to drive for the changeover.[5]
[5] Paragraph 23, father’s affidavit filed 15 November 2013.
Whilst the mother rejected the father’s request – made as a consequence of changes to his work arrangements in about September 2011 - that the child spend time with him on Wednesdays rather than Thursdays, she did agree to increase the child’s time with him on Sundays so that it commenced at 8:00 am and finished at 5:00 pm.[6]
[6] Paragraph 24, father’s affidavit filed 15 November 2013.
In January 2012, the father decided it was “appropriate” for the child to start spending overnight time with him. As was provided for in the November 2010 Order, he proposed the parties engage in further dispute resolution/mediation to determine what time the child would spend with him into the future.
The parties differ about ‘who did what’ in terms of arranging the mediation. However, it is clear that, in about July or August 2012, the father asked for mediation to occur and the mother told him he would need to arrange and pay for it as she could not afford it.[7]
[7] Paragraph 187, mother's affidavit filed 18 November 2013.
The father says that it was only after he proposed mediation to discuss increasing the child’s time with him to include overnight time that the mother alleged the child had made statements to her about his behaviour toward the child.
As a result of an asserted disclosure on 26 August 2012, the child did not spend time with her father again until Sunday 9 September 2012, when she resumed the previous 8.00 am to 5.00 pm regime. She spent time with him on 16 September 2012 but after that, as a result of a further asserted disclosure, did not see him again until either 7 October 2012 or the following weekend.
B spent time with the father from that weekend until her last unsupervised time in his care on 24 March 2013. On that day, the third asserted disclosure was made.
Despite an order made by Howard FM (as his Honour then was) on 18 April 2013 for the child to spend supervised time with her father at a Contact Centre, such time did not commence (at another Contact Centre) until 14 July 2013. The parties disagree about why this was the case.
B has continued to spend time with her father on a supervised basis at the K Town Contact Centre for two hours each alternate weekend since her first attendance there on 14 July 2013.
Principles
In these proceedings, being proceedings for a parenting order[8] in relation to the child, I may, subject to s 61DA[9] and s 65DAB[10] and Division 6 of Part VII of the Act, make such parenting order as I think proper.[11] I must have regard to the Objects of Part VII of the Family Law Act (1975) and the principles which underpin those Objects.[12] In deciding whether to make a parenting order, I must regard the child’s best interests as the paramount consideration.[13]
[8] s 64B of the Family Law Act 1975 (Cth).
[9] The presumption of equal shared parental responsibility.
[10] Parenting plans.
[11] s 65D of the Act.
[12] s 60B of the Act.
[13] Family Law Act 1975 (Cth) ss60CA, 65AA.
The benefit to the child of a meaningful relationship with both parents
I accept the father’s evidence to the effect that he has always attempted to ensure the child has had the opportunity to spend time with him so she can maintain her knowledge of him and continue the bond between them. To facilitate this, he has travelled from his home at Suburb I to K Town each alternate weekend since July 2013 in order to spend time with her at the K Town Contact Centre.
I accept the evidence given by Ms G to the effect that the child is entitled to have a relationship with her father as long as she is safe in his care. In so far as such opinion rests on an inherent acceptance of the fact that, as long as she is safe in his care, the child will obtain benefit from the opportunity to have a meaningful relationship with her father (as she no doubt has with her mother), I accept it.
The contents of the notes provided by the K Town Contact of the observations of the child’s visits with her father there between 14 July 2013 and 16 April 2014[14] establish clearly that she:
a)transfers readily from her mother to her father; and
b)has consistently enjoyed her interactions with him; and
c)has not demonstrated any hesitation, fear, reluctance, avoidance or discomfort in her interactions with him; and
d)has, on occasion, said that she wanted to go home with him; and
e)has consistently demonstrated spontaneous affection toward him.
[14] Exhibit 2.
From the Centre’s perspective, all of the interactions between the child and her father have been positive. He has been observed to be child focused, attentive, interactive, positive and appropriate in his interactions and communications with her and to have managed their time appropriately. He has supervised her properly. I accept that the contents of the Centre notes accurately portray the interactions between the child and her father.
B’s excitement, spontaneous demonstrations of affection and enjoyment of her time with her father is such that, absent a conclusion that unsupervised time with him poses an unacceptable risk to her, (for whatever reason) there could be no conclusion other than that she would obtain significant benefit from the opportunity to have a meaningful relationship with him.
The need to protect the child from harm from being exposed to abuse, neglect or family violence
Authority makes it clear that the resolution of allegations of sexual and other abuse are “subservient and ancillary” to this Court’s determination of that parenting order which is in the child’s best interests.[15] However, an assessment of such allegations is clearly necessary when the prescribed statutory framework imposes an imperative of protecting a child from harm.[16]
[15] M v M (1988) 166 CLR 69 and the numerous authorities which have followed it.
[16] Section 60CC(2)(b)
This Court is not compelled to make a determination about whether the father sexually abused the child. Rather, the ultimate and paramount requirement is to make orders which are in her best interests. Orders which place her at an unacceptable risk of harm clearly could not be seen as being in her best interests.
I accept Ms G’ evidence to the effect that research and literature clearly provides that sexual abuse in childhood can cause lifelong psychological difficulties and that, if the child has, in fact, been sexually abused by her father, the damage to her from such behaviour is ‘incalculable’.[17] I also consider it more likely than not that if the child has not, in fact, been sexually abused by her father, a continued incorrect belief that she has been may well be enormously harmful to her. It is for this reason that I intend to outline specifically the conclusion I have reached about allegations that the father sexually abused the child.
[17] Paragraph 55, Family Report dated 15 April 2013.
It is also well-established that, in determining whether or not the child would be at an unacceptable risk of harm if she spent unsupervised time with her father, the Court is likely to be assisted by evaluating the nature and degree of such risk and determining whether, with or without safeguards, it is, or is not, of an acceptable nature.
The mother’s case for the continued imposition of supervision over the child’s time with her father rests upon the contention that she has previously been sexually abused by him. This conclusion is something the mother says she has arrived at after the child’s comments to her over time and the child’s behaviours after she has been in the father’s care.
Given that the mother is the main – and, certainly, the first – source of the reports of the child’s alleged comments about her father’s alleged behaviour toward her, it is, I think, appropriate to discuss matters relevant to an assessment of her credit and/or reliability before embarking upon a consideration of the particular allegations.
The following evidence has persuaded me that I should approach the mother’s evidence with significant caution:
a)despite hospital records recording that the injury suffered by the child in July 2011 was a “wrist sprain/strain” (or a soft tissue injury) and that no obvious fractures had been observed on the x-rays undertaken at the time, the mother told Ms P that the father “broke her arm” (referring to the child) when she was 18 months of age; and
b)the mother told Ms G that Dr O was angry with her for sending the child back to the father and admonished her, but the doctor’s notes do not record such admonition; and
c)the mother told the Department in January 2013[18] that the father smoked marijuana on a daily basis for 12 months and that it affected his behaviour and, in essence, made him angry and later outlined that he ‘definitely’ continued to do so in circumstances where the parties had not lived together and had only been involved in a very short intimate relationship; and
d)the mother said that, during the March 2013 appointment, Dr O told her words to the effect: “[B] has signs of abrasions on her vagina.” However, Dr O’s note of her subsequent communication with the Department on 1 May 2013 emphasise that ‘NO ABRASIONS” were mentioned to the mother, that she did an ocular examination and treated the child with Keflex because of possible vulvovaginitis; and
e)the mother told Ms G that as they (her household) never talk about the allegations at home, she has no idea what triggers the child to repeat the statement that ‘daddy put his finger in my rudie’[19] but accepted, during cross-examination, that the contents of the recording taken by J in the car on 16 September 2012[20] provided a clear example of a discussion with the child about ‘the allegations’;
f)the mother’s assertion to the Department on 14 October 2013 that the father “definitely” still smoked marijuana every day in circumstances where she had no opportunity to know whether that was, in fact, the case.
[18] Page 5. Exhibit 1.
[19] Paragraph 23, Family Report dated 4 March 2014.
[20] Exhibit 7
Having considered the contents of the mother’s August 2010 Application for a Protection Order, the contents of Departmental records and the mother’s own evidence, I have concluded that it is highly unlikely that there has been such limited investigation into, and discussion about, the allegations in the mother’s household as the mother suggests.
It seems to me to be much more likely than not that the mother has always been particularly vigilant about the child’s presentation and/or comments on her return from spending time with her father: as she told Dr H in 2013, her mother’s intuition told her something was not right about the child’s time with her father well before her first “disclosure”. Notably, she said during her cross-examination that she never trusted the father.
The “disclosures”
The first asserted disclosure: 26 August 2012
The father spent time with the child, then nearly three years of age, on 26 August 2012. He accepts that, at changeover, he said words to the effect: “Gee, she ([B]) has the ‘doctors and nurses’ down pat with the poking and prodding.” The mother says that, because she considered the father to have previously made comments of a sexual nature to her at changeover, she did not think his comment appropriate - it concerned her.[21]
[21] Paragraphs 54 and 56, mother's affidavit filed 18 November 2013.
The father’s solicitors subsequently referred to a “doctors and nurses kit” the child had in both parents’ homes as providing context for the father’s comment. The mother accepted, during her cross-examination, that she had such a kit at her home. She did not know the father also had such a kit. However, the existence of the “doctors and nurses kit” puts the father’s comment in context and it does not seem to me to be a comment which would compel concern.
When she arrived home on 26 August 2012, the mother changed the child’s nappy. She noticed her vaginal area was extremely red. She thought it more than her “usual” nappy rash. Such evidence suggests that the child had previously experienced nappy rash. the child said “sore bottom” so she applied cream. She says that, as she was doing so, the child said “Daddy hurt my rudie”. About half an hour later, when she was giving the mother a cuddle, the child asked her: “Mummy did Daddy hurt your rudie too?”
I accept the father’s evidence that :
a)B had never referred to her vagina as her “rudie” whilst in his presence; and
b)whist the child referred to her ‘bum’ occasionally, she had not referred to her vagina at all whilst in his care; and
c)he had regularly changed her nappy and attended to her toileting needs - including applying ointment to her bottom and vagina as needed - when she was in his care; and
d)he ensured she was clean and tidy on her return to her mother’s care, bathing her and/or changing her clothes if she was wet or dirty from playing.
The next day (27 August 2012), the mother took the child to her general practitioner, Dr Q. He examined the child, noted she was “red” but was unable to ascertain anything further.
A perusal of Dr Q’s notes[22] establishes he recorded that the mother told him:
a)she had concerns about sexual issues and the father;
b)B had said ‘someone’ hurt her “rudie” – a recounting which differs from that given by the mother in which the child identified her father as the person who hurt her “rudie”;
c)when the child was younger (and older) she had baths with her father despite only being there 8 hours;
d)he (presumably the father) had no other children;
e)he (presumably the father) smokes pot on a regular basis.
[22] Contained within Exhibit 1.
On examination, Dr Q noted nothing abnormal about the child – there were no specific abnormalities about her vaginal area and no bruises or swelling.
On 28 August 2012, the mother contacted Parents’ Helpline and the Department of Communities (Child Safety Services). It was recommended she report her concerns to the Queensland Police and she did so. An appointment was scheduled with a member of the R Town Child Protection Investigation Unit for 10:00 am on Wednesday, 29 August 2012.[23]
[23] Paragraph 61, mother's affidavit filed 18 November 2013.
The mother took the child for interview as arranged. During a very short interview, the following occurred:
a)when asked whether something happened to her at her father’s house, the child said: “my bum”;
b)when asked whether someone hurt her at her father’s house, the child responded: “my bum”;
c)when asked what happened, the child raised her legs in the air;
d)when asked where it hurt, the child lifted her shirt and pointed, including to her belly button – when the police officer said “your belly button?”, she said “yeah”;
e)when asked if she could tell him how it got hurt, the child said “my bum”;
f)when asked who did that, the child said “daddy” and when asked how did he do that, she said “daddy”.
She also responded affirmatively when asked whether she was happy at her father’s and, when asked how many brothers and sisters she had, said ‘four’. She in fact has three.
I am not persuaded that the contents of this interview amount to the child “disclosing” that she had been sexually abused by her father.
After the child was interviewed, the Police officer told the mother that, given the child’s age, the matter had been referred to the Department for investigation. The mother contacted the Department on 30 August 2012. They confirmed a report had been received from the Police but were unable to provide her with further information at that time.
Whatever was conveyed to the mother, Departmental documents establish that, on 30 August 2012, the Department concluded[24] - from the information provided - that it was not possible to draw a reasonable conclusion that the child had experienced harm in her father’s care as a result of abuse or neglect by him. I agree. The contents of the child’s interview with Police and the information provided by the mother do not provide a basis for a reasonable conclusion she had been sexually abused by her father.
[24] Exhibit 1.
On 31 August 2012, the mother’s solicitors wrote to the father, advising of the “disclosures” made by the child and the steps taken. The correspondence contained the information that the mother had taken the child to a general practitioner who had examined her and who noted she was ‘red’ but could not ascertain anything further. It was proposed the child spend time with him each Sunday from 9:00 am to 12:00 pm under the supervision of the mother and a member of her family until any Departmental investigation was completed. [25]
[25] Paragraph 37, father’s affidavit filed 15 November 2013.
When the father responded (that day) to outline his opposition to the imposition of supervision over his time with the child, he raised his belief she may have had a urinary tract infection. He suggested she may have been referring to him “hurting her rudie” when he applied cream to the red area. This seems a plausible explanation.
The father contacted the Department on 31 August 2012 and was told he would only be contacted if there was an investigation. He was not contacted until 17 October 2013.[26]
[26] Paragraph 40, father’s affidavit filed 15 November 2013.
The mother spoke with Police again on 5 September 2012. She was told that, because of the child’s age, the Department was not proceeding with any further investigation.
On 6 September 2012, the father invited the mother to participate in mediation. She accepted this invitation on the proviso that he pay for the mediation, which was scheduled to occur on 20 September 2012.
On 8 September 2012, the mother advised the father that “visits” with the child, in accordance with the existing regime, would resume until new consent orders have been agreed and registered by the Court.[27]
[27]Paragraph 41, father’s affidavit filed 15 November 2013; Paragraph 66, mother's affidavit filed 18 November 2013.
B spent time with her father from 8.00 am until 5.00 pm on 9 September 2012.[28] He says that, during this visit, when the child was jumping on the trampoline, she rolled onto her back and said “hit the bum, hit the bum” or, as recounted to Ms G, “hit the rudie”,[29] while slapping herself between the legs. He told her it was “rude” and distracted her. The father considered the child “could only have been coached in relation to these comments.”[30] I do not accept that this is the only plausible explanation for why the child behaved as she did on this occasion. I suspect that the topic of “rudies” was one that was being discussed in her mother’s household. I also note the child has not made any other comments of a similar nature to her father at any other time.
[28] Page 8, mother's affidavit filed 18 November 2013.
[29] Paragraph 32, Family Report dated 15 April 2013.
[30] Paragraph 54, father’s affidavit filed 15 November 2013.
The second asserted disclosure: 16 September 2012
B spent time with the father on 16 September 2012. He says she was happy and “full of beans”. It is accepted the child was upset, distressed and crying when her mother collected her. It is also accepted that she was difficult to put into the car and that both parents were involved in doing this. The father believes the child was upset because she wanted to spend more time with him.
The mother says that, as she drove off, the child started yelling and screaming, spread her legs, grabbed her vagina and yelled “Daddy hurt my bum”. She also swore and said things like: “What the hell daddy.” She asked J “Did Daddy hurt your bum [J]?” J recorded part of this event using her mobile phone.[31] The mother says the child continued to yell and scream until they arrived home and it took her over an hour to calm her down; the child also had nightmares that evening.[32]
[31] Exhibit 7.
[32] Paragraphs 67 and 68, mother's affidavit filed 18 November 2013.
The father says that neither he nor his father (B’s paternal grandfather) ever use the expression “what the hell”. He denies knowingly hurting her “bum” but suggests that she could have done so as he pushed her around in a wheelbarrow in play.
The mother contacted the Department again. They referred her to the Police.
On 17 September 2012, the mother spoke to the same Police officer with whom she had previously spoken. He suggested she take the child to see a female doctor. Whilst the father raised concerns[33] about why the mother took the child to a practitioner other than her usual general practitioner, I accept that she did so following the Police officer’s suggestion.
[33] Paragraph 50, father’s affidavit filed 15 November 2013.
On 17 September 2012, the mother took the child to Dr O at The Family Practice at S Town. The notes of this attendance record that the mother told Dr O the child was complaining of a sore vagina and had said “Daddy hurt me down there”. This differs from the mother’s sworn account that the child said her father had hurt her “bum”. Examination showed redness of the vagina wall. Dr O records that, when she started to take a swab, the child became frightened, cried and screamed. Such a reaction to that procedure for a child of her age seems highly likely. No lesions and no discharge were seen.
On 18 September 2012, the mother advised she would not participate in the mediation scheduled for 20 September 2012 and that the child’s time with the father would be “postponed” until the Department completed its involvement.
Departmental records note information was provided that, on 16 September 2012, the child said “Daddy hurt my rudie, my bum, my bum” and pointed to her vagina and that J (then 12 years of age) used her mobile phone to video record the child. These recordings are in evidence before the Court.[34] A perusal of the two recordings of the child whilst in the back of her mother’s car reveals a child to whom questions like, “What did Daddy do to you; why did he hurt your bum; what did Daddy do to you; why did he hurt your bottom; where did your bottom hurt?” were asked.
[34] Exhibit 7.
On 19 September 2012, the Department concluded that there was not enough information to indicate that the child was harmed or at risk of harm as a result of actions by her father.[35] Again I agree. the child’s comments that her father “hurt her bum” is capable of referring to many matters other than sexual abuse and her complaint of a sore vagina is consistent with the redness seen by Dr O and the subsequent results of the swab. They do not persuade me that it is more likely than not that her father sexually abused her on 16 September 2012.
[35] Exhibit 1.
On 21 September 2012, the mother returned to Dr O. She was told that the results of the vaginal swab indicated increased bacteria in the child’s vagina. Given the prescribed treatment, it seems quite possible that redness could have been caused by some sort of infection. Dr O noted[36] the mother told her that the child was not then complaining of pain in her ‘private parts’ and was no longer red there. Whilst she told the doctor that the child was not seeing her father due to the Department, it is quite possible the Department had not yet told her of its conclusions.
[36] Exhibit 1.
B did not spend time with the father on 23 September 2012 or 30 September 2012.
The mother says that, on 3 October 2012, Police told her they and the Department were unable to proceed further given that the reported allegations were “below the threshold” for further investigation. This seems a little at odds with the Department’s notes that there was not enough information to substantiate an allegation that the child had been harmed by her father but this distinction may easily be explained as a difference in interpretation.
On about 4 October 2012, the mother told the father that, on 16 September 2012 the child had said “Daddy hurt my bum” and was touching herself inappropriately and she had been told by the Department (on 3 October 2012) that investigations would cease at that time because the assertions were below the threshold for further investigation. That part of the car journey home on 16 September 2012 which was captured in the recordings does not seem to me to show the child (who was in a car seat, the straps of which were between her legs) touching herself inappropriately.
The mother also told the father the child’s time with him would resume, but would be accompanied by her “close monitoring” of the child after her return. This comment suggests that, from this time on at least, the mother was highly likely to be extremely vigilant about the child when she returned after time with her father.
B resumed spending time with her father on either 7 October 2012[37] or the next weekend.[38]
[37] Page 8, mother's affidavit filed 18 November 2013.
[38] Paragraph 48, father’s affidavit filed 15 November 2013.
B spent time with the father on 30 December 2012. The mother says that after she collected her, the child became visibly angry, was uncontrollable and hitting and yelling and tried to bite her arm and then bit a hole in the corner piece of the kitchen wall.
The father was clear in saying that, whilst the latter behaviour was concerning, he had never seen the child engage in it whilst in his care.
Whilst this behaviour suggests the child was upset about something, it does not mean she had been sexually abused by her father or that she had suffered physical harm whilst in his care.
B continued to spend time with her father in early January 2013. The mother says when she collected her, the child was very cranky and bit the strap on her car seat. This was the subject of a report to the Department in January 2013.
On 16 January 2013, the Department again concluded that there was insufficient evidence or information to indicate that the child had been harmed by the actions or inactions of her father.[39] Again, on the evidence before me, I agree with this conclusion.
[39] In Exhibit 1.
The parties participated in a mediation on 22 January 2013. They reached an agreement which was recorded in a “Heads of Agreement”. Each signed it. The terms of the “Heads of Agreement” provided that the child would spend overnight time with her father, on an increasing basis.[40]
[40] Paragraph 56, father’s affidavit filed 15 November 2013.
The mother says she felt pressured during the mediation to enter into the “Heads of Agreement.” At least inferentially, she contends that her agreement to overnight time should not be interpreted as either a demonstration of a view that it was appropriate for the child to spend overnight time with her father or that she had no concerns about the child’s safety: she says she remained concerned for the child’s emotional and physical well-being when with her father because of the previous “disclosures” she had made.
Whilst the father does not accept the mother’s contention that she was pressured during the mediation process, it is probably of little moment given that, whatever happened in that process, she changed her mind within about a fortnight.
On 6 February 2013, the parties attended at Court, - ostensibly to have an order made in terms of the Heads of Agreement. However, the mother no longer agreed to an order being made by consent in such terms.[41] Instead, Federal Magistrate Howard (as his Honour then was) ordered that the child live with her mother and spend time with her father each Sunday from 8:00 am to 5:00 pm. An Independent Children’s Lawyer was appointed and a Family Report ordered.
[41] Paragraph 190, mother's affidavit filed 18 November 2013.
B continued to spend time with her father on an unsupervised basis.
On 13 March 2013, Ms F (B’s day care teacher) told the mother the child said her Daddy put cream on her “bum” “all the time”. Ms F apparently raised her concerns about this given:
a)the limited time the child was with her father; and
b)that the child wore undies and not nappies; and
c)that when the child was in her care on Mondays, she did not have nappy rash and she did not need cream during the week.
At this time, the child was about three years and three months of age. Any comment like “all the time” needs to be approached in this context. Additionally, wearing nappies is not a pre-requisite to the need for cream and the absence of nappy rash does not mean that there was not a proper basis for cream to be applied to soothe a complaint of hurt.
On 16 March 2013, the mother saw the child go up to U, her half-brother, and pull his nipple. When he told her not to, because it was “rude”, the child told him her father let her do it to him. I accept the father’s explanation to the effect that, on an occasion when he was bare-chested and cuddling the child, she grabbed his nipple. I accept he distracted her. I am not persuaded he “let her” do it to him. I am not persuaded there was anything inappropriate in the way in which the father reacted to the child grabbing his nipple. I reject any implication that there was anything of a sexual nature involved in this incident or that in opportunistically grabbing her brother’s nipple the child was demonstrating that she had been sexually abused by her father.
Additionally, her comment when reprimanded for acting as she did – that is, to say to the effect “Daddy lets me do it” – seems consistent with the response of a child of her age deflecting a possible reprimand.
B spent time with her father on 17 March 2013. The mother said that, on 18 March 2013, she had difficulty putting the child, who was complaining about monsters, to bed. When she took the child to the toilet, she saw her pulling her vagina apart while she was sitting on the toilet. The child told her: “You have to clean it mum and get all the yukky stuff out.” When asked who said she had to do that, the child said her father did. The father denies ever making any such comment to the child. Whilst I accept his denial, the fact that a parent might tell a child of the child’s age that she is to clean her genital area is not indicative of sexual abuse or anything other than an attempt to assist the child to learn good hygiene.
On 19 March 2013, the child asked her mother to put cream on her when she was removing her nappy pants. When the mother told the child she did not need any and that she was not red or sore, the child told her “Daddy puts cream on me all the time but he scratched my rudie and it hurt.”
Even accepting the mother’s account of the child’s comments to her on this occasion, such a comment does not inexorably point to a conclusion that the father was acting sexually in applying cream to the child if she asked him to.
The third asserted disclosure: 24 March 2013
B spent time with the father at his home on 24 March 2013. The father described the visit as going well. Her grandparents visited. He thought the child did not want to go back to her mother when it was time to do so.
The parties met at McDonald’s for changeover. The child wanted to play in the playground. The father followed the mother and the child into the play area. The mother thought this strange because he usually simply dropped the child off and left - she appears to have imputed some sinister motive to this behaviour.
The parties largely agree about the child’s unsettled behaviour. She was kicking and biting and had to be restrained. The mother had to pick her up and carry her to the car. Later that evening, when the child went to the toilet before her bath, the mother noticed her vagina was red. She says it had not been red when she left to spend time with the father that morning. When the mother put the child in the bath, she started to cry and would not sit down.
The mother explained that, as she got the child out of the bath and was drying her, the child said: “Mummy my rudie is sore.” This comment seems consistent with her observed redness. When the mother looked, she saw that the child’s vagina was “very red around the opening and down each side of her vagina on both the inside and outside”. The mother said that, when she said to the child “that does look sore”, the child said: “Daddy put his finger inside and it hurt.” The mother said that, when she asked, “Inside where”, the child pointed to her “opening” and started to cry and whimper.
Given the child’s age at this time and the evidence of her pointing captured in the August 2012 Police interview, it seems quite possible that she pointed to her genital area generally and that her mother reported this as her pointing to her “opening”.
The mother took the child to Dr O the next day (25 March 2013). The doctor’s notes record that the mother was concerned about the child’s complaints of a sore vagina and that the child had said her father had inserted his finger into her vagina. On examination, the child was seen to have an erythemalous (redness of the skin which can occur from injury, infection or inflammation) vagina. Dr O took a vaginal swab. On the mother’s recounting, when the doctor put gloves on before undertaking the procedure, the child started to cry and scream: nurses were needed to help hold the child’s leg and chest while the swab was taken. Whilst this event itself can only have been frightening and distressing for the child, the mother appears to have focused on her suspicion the father had abused the child rather than reflecting on the fact that this was the second occasion within about six months that the child, then still only three years and four months of age, had undergone such procedure.
Dr O discussed with the mother that she might need to go to the hospital. She prescribed Keflex because of possible vulvovaginitis: an inflammation or irritation of the vagina and vulva thought to be very common in young girls[42]. The presence of vulvovaginitis may certainly explain the redness seen by the mother and the child’s comment that her “rudie” was sore.
[42]Symptoms include itching, discharge, redness of the skin and a burning sensation on urination; it can be caused by moisture, irritants like soaps and bubble baths and is treated by the application of soothing creams (like a nappy rash cream).
The mother contacted the Department and followed Dr O’s recommendation that she report her concerns to the Child Protection Investigation Unit. When the mother spoke with Police on 26 March 2013, she outlined the child’s comments, the previous history and said that Dr O had told her the child had signs of abrasions on her vagina. As noted earlier, Dr O’s notes of her later communication with the Department emphasises that ‘NO ABRASIONS” was told to the mother.
The mother told the officer the doctor had recommended a ‘full’ examination for the child but the officer advised against this because it would be traumatic for the child. Dr O’s notes do not, it seems to me, necessarily corroborate that she recommended a full examination of the child – rather, she seems to have suggested that the mother might have to take the child to the Hospital Sexual Assault Service if such an examination was to be undertaken.
When the mother collected the child from day care on 28 March 2013, Ms F told her the child had been telling the other children she slept in her daddy’s bed. Whilst this clearly concerned Ms F, it does not seem to me to be inherently unusual that a child of the child’s age (about three years and four months) might, on occasion, sleep in a parent’s bed during a visit. The fact that she had is not, of itself, an indication that she had been sexually abused by her father.
On 28 March 2013, the mother sent an email to the father’s solicitors in which she alleged he sexually assaulted the child on 24 March 2013. She advised she was suspending the child’s time with him until the Police and the Department had completed their investigations.
As it turns out, the child was prescribed antibiotics to treat a bacterial infection after the results of the swab taken on 25 March 2013 were received. Again, the presence of the infection seems to me to be a possible cause of the redness to the child’s vagina and the hurt and/or discomfort she complained of.
The mother’s evidence is that for the next couple of days[43] the child continued to say – just about every time she went to the toilet or when she was having a bath - “Daddy put his finger in my rudie.” The mother says she told her she was safe as she was with her. The mother says that, on 3 April 2013, the child took the last of the antibiotics she had been prescribed. She told her mother that her bottom was all better and that “Daddy don’t hurt me anymore mummy.”
[43] Until 1April 2013.
Dr O notes of an appointment on 3 April 2013 record that the child felt okay and did not have a sore vagina. The mother said that, on 4 April 2013, the child told her that “Daddy has to check me down there and then he takes me to the park.” I find it difficult to accept as likely that the child’s reported comment occurred simply out of the blue. I also find it difficult to believe that a parent such as the mother – who had expressed the view in August 2010 that the child was not safe with her father without supervision – would not have asked the child if her father had done anything else inappropriate to her. Whenever the child made comments to her or appeared upset, the mother reassured her by hugging her and telling her she was “safe”. Such a response certainly is likely to have provided the child with a reinforcement: that is, she made such a comment and received a hug and reassurance.
The father told Ms G during the interview in April 2013 that, before the first allegations, the child had “a few urinary tract infections.” The mother certainly accepts there was one. He had applied cream. He also said that, as she was still in nappies then, he also put nappy rash cream on her. Whilst she was fully toilet trained at the time of the interview, he still occasionally wiped her bottom. The father said the child occasionally had a bath at his place.[44] None of these explained behaviours seem to me to suggest that the father was sexually abusing the child.
[44] Paragraph 34, Family Report dated 15 April 2013.
On 25 April 2013, Dr O contacted the mother to discuss correspondence from the Queensland Police Service for, or about, the child’s medical examination. The doctor’s notes record she explained that, if a full examination was required, the child needed to be seen at hospital.
On 30 April 2013, Dr O wrote a referral to the sexual assault service at the children’s hospital. Her notes record she had seen the child because the child had been complaining of vaginal pain, especially when urinating. Such complaint seems consistent with the known symptoms of vulvovaginitis. She had prescribed Keflex which had been administered for a week or so. Results from urine tests showed nothing abnormal. The doctor outlined that she had explained on her last contact with the mother that, if there was to be a further examination of the child, it needed to take place at the Sexual Assault Service. She recorded she would contact the Department.
On 1 May 2013, Dr O contacted the Department to confirm that “NO ABRASIONS” had been mentioned to the mother and that she had treated the child with Keflex because the child might have had vulovaginitis
The mother says that, on 11 May 2013, whilst she, J and the child were in the car, the child was pretending her dolls were having a conversation. She is reported to have said, on two occasions: “Why are you crying? Did your daddy hurt you?”[45] The mother clearly interpreted this as a reference to the father sexually abusing the child.
[45] Affidavit of the mother filed 18 November 2013, paragraph 109.
The mother says that, on 17 May 2013, she took the child to the toilet and then left the room to run a bath. The toilet door remained open. J called out “Mum, the child is doing something you should see” and she then saw the child sitting on the toilet with her legs apart, “flicking her clitoris” up and down with her finger. When the mother told the child not to do that because she might hurt herself, the child said: “No, it’s funny, daddy does it”. J’s recounting of this behaviour to Ms G is more restrained and less graphic: she described the child as “playing with herself”.
The mother says that, on 9 June 2013, whilst she and the children were in the car, she heard the child say to her dolls “Did your daddy put his finger in your bum?”
The mother says that, on 11 June 2013, whilst she was in the kitchen and the children were in the lounge room, she heard J say “Stop the child, why are you doing that?” When she walked into the lounge room, she saw the child moving in a humping action up against the right side of J’s body and leg - she kept doing this despite J saying “Get off”. The mother picked the child up and took her to her room. She asked her why she was doing that to her sister. the child said “Daddy does it to me”.
Despite this apparently being the child’s first reference to a completely different type of alleged behaviour by her father, there is no suggestion that the mother raised it with either the Department, any medical practitioner or Ms P, a psychologist who saw the child in mid-July 2013.
The mother says that, on 3 July 2013, whilst driving the child home from kindy, the child started to cry and, when asked why she was crying, said “Daddy hasn’t said he is sorry”. The mother says she asked whether the child meant he had not said sorry to her and the child replied “Yes, for putting his finger in my rudie”. Again, I struggle to accept the mother’s contention that the child simply made such a comment out of the blue.
B first spent time with the father at the K Town Contact Centre on 14 July 2013. At this time, she had not seen him since 24 March 2013. The mother said the child was “very apprehensive” and quiet before this visit and needed a lot of reassurance that it was a safe place and that her mother would be there to collect her.
The mother recounted that, when they arrived at the Centre, the child said she did not want to go in. When the supervisor came over to the child and told her she would be taking her into see the father, the child said “My daddy put his finger inside my rudie”. The mother apologised for the comment - the supervisor told the child that “It’s okay the child, I will be with you the whole time and I will keep you safe.” The mother said the child appeared relieved to hear this and went with the supervisor. None of this account is corroborated by the contents of any notes kept by the Contact Centre.
The father describes that, when the child saw him, she immediately ran to him and hugged him. He thought the visit went very well and the child played comfortably as if they were at his home. His recounting is corroborated by the Centre notes.
During this visit, the child said “You put your finger in my bum.” He said she was smiling and said this as if it was a joke. The father said he told her he did not put his finger in her “bum” and distracted her and redirected her play. This account is not in the Contact Centre notes.
When the mother collected the child at the conclusion of the visit, the child showed her a backpack with three toys, two DVDs and a bunch of fresh flowers. The mother appeared to see something sinister in the fact that the father, who had not seen the child for approximately four months, bought presents for her. As they were leaving the Centre, the child told the mother “Daddy didn’t hurt me today mum, the lady kept me safe”. The mother told the child that she was glad the lady kept her safe. The mother says that, when they approached the car, the child told her that “Daddy told me he’s not going to hurt me anymore.” The father does not accept that this comment was made and I accept his evidence in this respect. Whilst it may be somewhat of a supposition, it seems to me that one way of interpreting the child’s comment to her mother is as an implied request to keep seeing her father: that is, she was clearly seeking to reassure her mother that her father was not going to “hurt her anymore”.
The mother says the child had a nightmare that evening and woke at approximately 12.30 am, screaming, crying, shaking and whimpering “No no no”. Again, the mother seems to have concluded that this event is evidence that the child was in some way traumatised by seeing her father. There is no evidence to support such a contention.
The mother first met with Ms P, a psychologist specialising in educational matters and play therapy, on 15 July 2013. Included within the information the mother provided was the assertion that, when the child was 18 months of age, the father “broke her arm”: an assertion that is simply untrue. She also told Ms P that the child had said that her father hurt her “down there”, put his finger inside her and that, at the Contact Centre, she said “my daddy put his finger inside my bum”. In fact, another recounting of this asserted comment is, as noted above, that “Daddy put his finger in my rudie”.
The mother said that, on 16 July 2013, while she and the child were watching a movie, the child became upset and started to cry. When she asked her (B) what was wrong, she said “Daddy said he didn’t put his finger in my rudie, but he did, mummy.” The mother told the child she believed her and that she was doing everything she could to make her safe. In fact, the father said the child told him he had put his finger in her “bum” during the visit and not her “rudie”.
Again, I struggle to accept that, if the mother’s household had not engaged in any discussion with the child about the allegations (as the mother contends), it is likely the child would have come out with this statement out of the blue. Her comment seems to me to be more likely to be consistent with a response to queries about things like what had happened during the visit and whether the father had said anything to her.
The mother contacted the K Town Children’s Contact Centre on 17 July 2013 to raise her concerns about the comments the child had made to her. The Centre told her conversations between the child and the father were noted and monitored closely. Whilst the notes from the Contact Centre contain no reference to any inappropriate conversations during the time there, it is not in dispute that the child made the comment outlined above and that the father told her he had not put his finger in her “bum”.
The mother met with Ms P again on 25 July 2013. She raised her concern that she was saying something wrong because, seemingly, the police and the Department had raised her anxiety as an issue. This is a matter about which Dr H expressed an opinion in his report. It appears that she and Ms P had a discussion about responding to the child’s needs and following her lead.
B first met Ms P on 31 July 2013. She had sessions with her on 22 August 2013 and 12 September 2013.
The mother collected the child from day care on 1 August 2013. The child’s carer, “Ms V” told her that, when the child was playing outside, she said she was going to see her father at the lady’s house. After the carer told the child her mother had told her she was doing that, the child said, “My daddy put his finger in my rudie”. The carer reassured the child by telling her she was safe at kindy and with her mother.
The mother says that, on about 12 September 2013, she saw the child playing with dolls on her bedroom floor. All of the dolls had no clothes on. The child rejected her suggestion that she put clothes on the dolls. When the mother put clothes on the dolls, the child ripped their clothes off and became upset. The mother clearly concluded that this behaviour was, in some way, indicative of sexual abuse by the father as she raised it with the child’s counsellor.
B saw Ms P on 12 September 2013. The mother told her that the child blurted out a “disclosure” to a woman in Ms P’s waiting area. When Ms P asked the child about what had happened, the child said: “My dad’s a rudie. He put his finger in my bum.” Despite this, Ms P did not recount this event at all in her report dated 17 October 2013 but included it in her report dated 25 March 2014.
The mother saw Ms P on 19 September 2013. Ms P’s notes contain a recounting of the mother’s outlining of the child’s comments to her which included things like “something is wrong with my dad; need to get a new daddy; my daddy hurts a lot of people”.
On 24 September 2013, a Departmental officer telephoned the mother to ask for an update and was told the child was spending supervised time with the father.
The mother says that, in about October 2013, the child’s carer pulled her aside to tell her that the child was not co-operating at sleep time: when she picked her up, the child became distraught and started crying uncontrollably and shaking all over. Again, the mother appears to have connected this behaviour with the prospect that the child had been sexually abused by her father in March 2013. This does not seem to be the connection drawn by Ms P, who clearly outlined her opinion that such sleep - resistant behaviour may have its source in general difficulties with separation anxiety.
On 14 October 2013, the mother spoke with a Mr W from the Department. She told him that:
a)the father was a heavy marijuana smoker who smoked every day for 15 years and that this was something he still did “definitely” - even though two drug tests commissioned by the Independent Children’s Lawyer had returned negative results and she had not had any opportunity to observe his behaviour since sometime before the child was born in 2009; and
b)B had disclosed to her counsellor, kindergarten, a lady at the Contact Centre and a family friend; and
c)B still loved her father and was upset because he had not apologised.
The mother had a session with Ms P on 17 October 2013. She reported that after visiting her paternal grandparents at the Contact Centre, the child was teary about “everything” on the way home. She reported the child wet the bed on the day of her first telephone call with the father and that her behaviour had changed in that she was not listening, was angry and had hit her mother. The mother also reported that she was “detecting an increase in his (the father’s) anger, nastinesses”.
By report dated 17 October 2013, Ms P informed the Independent Children’s Lawyer that the child had been referred with difficulties, primarily related to separation anxiety, such as:
a)excessive clinging to her mother; and
b)an inability to separate satisfactorily to go to day care; and
c)resistance to attending in public places; and
d)extreme resistance to bed and bath; and
e)excessive and frequent tantrums.
Ms P reported that, whilst these behaviours were still occurring daily, the mother had reported some improvements in the child’s behaviour at both home and day care. Ms P considered that the predominant factor that had contributed to the child’s behaviours was separation anxiety. She outlined her opinion that the child needed a therapeutic opportunity to master her issues with social and/or emotional difficulties in behaviour and that, without such opportunity, there was a risk she may develop an anxiety disorder.
Ms P also said that, in responding to her willingness to engage with him, the father told her he had not observed the child to behave as she described during their time together at the Contact Centre. When he asked for further information and/or particularisation from her, she offered him an appointment at a cost of $150.00 – he did not respond.
Departmental officers interviewed the father in his home on 18 October 2013. His home was described as child friendly (with toys and play equipment), with an appropriate bedroom for the child. The father told the Department he had provided two clear drug tests. He says they were satisfied with his living arrangements for the child.[46]
[46] Paragraph 118, father’s affidavit filed 15 November 2013.
On 22 October 2013, Departmental officers attended at the child’s child care centre and noted that the child [47]:
a)appeared to be appropriately clothed and clean; and
b)appeared to be within normal weight and height for a child of her age; and
c)presented as having no obvious health or developmental concerns; and
d)appeared alert to the Child Safety Officers’ presence; and
e)appeared to be content and calm in the day care facility.
[47] Exhibit 1, page 17
On 31 October 2013, Departmental officers spoke with a supervisor from the Contact Centre. The Centre said the interaction between the child and her father was very good and it held no concerns about “contact”. The Centre reported the father was very appropriate with the child and she transferred between her parents very well during the eight visits that had occurred at the time of this discussion.
The Centre also informed the Department that the child presented as excited to see her father, appeared comfortable with him (laughing and playing), initiated hugging, told him she loved him and was very affectionate toward him. The Centre said there was nothing inappropriate or concerning in the interactions between the child and her father and that the child had not been observed to demonstrate or display behaviour which indicated she had experienced trauma and/or abuse. The father was described as having dealt appropriately with the child’s request that he look at her “pretty undies” on an occasion. He had been appropriate in his interactions with staff.
The mother saw Ms P on 6 December 2013. During this session she reported that the child had improved and had less anger: she put it (presumably, the child’s upset and/or anger) down to the paternal grandparents visits. She reported that the child was still saying her disclosure and that she thought it may be triggered by certain things.
During her session with Ms P on 19 December 2013, the mother reported that the child was sleeping better and that she was no longer taking her for a drive each night to get to sleep.
On 19 January 2014, Ms G spoke with J, who was about to turn 14 years of age. During this interview, J told Ms G that
a)B had told her several times, including in the presence of one of her friends, that “Daddy put his finger in my bum.”;
b)B would just come out with this statement for no apparent reason;
c)B had also said “Daddy put his finger in my rudie”[48] and, on one occasion, this was in front of a friend of hers;
d)when the child was having day visits with her father, she would always return in different clothes, had “an unusual smell” and was “hypy, changeable, angry, hard to control” after the visits; and
e)about two to three months before the interview, she saw the child playing with her dolls (when the child did not realise she was there), saying to them: “Did Daddy hurt you too? Is that why you are crying.”[49]
f)about four months before the interview, when she was lying on the couch, the child jumped on top of her, saying “this is what Daddy did to me” and she did not think the child was being playful; [50]
g)she had previously seen the child playing with “her private area” in the toilet and that the child had told her it tickles and “Daddy does it.”
h)in the car on the way to the Contact Centre, the child often asks whether ‘the lady’ will be there and whether she “will stop Daddy from hurting me?”[51]
[48] Paragraph 35, Family Report dated 4 March 2014.
[49] Paragraph 38, Family Report dated 4 March 2014.
[50] Paragraph 39, Family Report dated 4 March 2014.
[51] Paragraph 41, Family Report dated 4 March 2014.
The mother told Ms G, during her second interview, that the child had made disclosures to staff at the child care centres in Brisbane and L Town. She said the child made the same comment about “Daddy put his finger in my rudie” just before she saw her father again at the K Town Contact Centre.[52] She said the child continued to make disclosures to her, to J and her friends, to June the supervisor at the K Town Contact Centre, to her kindergarten teacher at L Town and to a stranger in the waiting room at Ms P’s rooms. She said the child’s disclosures often came “out of the blue” and had they never talk about the allegations at home, so she has no idea what triggers the child to repeat this statement.[53] The contents of the recording made in September 2012 and my concerns about the mother’s overall veracity cause me to treat these comments with scepticism.
[52] Paragraph 22, Family Report dated 4 March 2014.
[53] Paragraph 23, Family Report dated 4 March 2014.
The mother told Ms G that, when she told the child “there will be another lady there today as well, called [Ms G]” (the report writer), the child said “So Daddy can’t hurt me.” Despite this comment, Ms G saw the child run in and greet the father as “Daddy” very enthusiastically that day. The child hugged him several times spontaneously, was chatty, did not appear fearful or hesitant with him and appeared to be having fun. This behaviour seems to me to be incongruous if the child truly feels that her father had hurt her, as opposed to saying on occasion that he had. Ms G observed the father to be very attentive and responsive to the child. He did not make any critical comments about the mother when the child spoke of her.
Matters relevant to the father’s capacity to care for the child and his attitude to the mother and the responsibilities of parenting
I accept the father agreed to use the K Town Contact Centre’s services so that he could spend time with the child as soon as possible and reduce the period during which she was did not see him. I consider that, in making this decision in circumstances where he vehemently thought (and continues to think) that the imposition of supervision over their time together was completely unnecessary, the father demonstrated the ability to place the child’s need to continue to spend time with him above his own need not to see her within the confines of a Contact Centre.
I also think he has demonstrated commitment to her and their ongoing relationship by continuing to travel from his home at Suburb I, Brisbane to K Town every alternate weekend since mid-2013. Similarly, the mother has supported their relationship by taking the child from L Town to K Town to spend time with her father at the Contact Centre.
I accept he has done everything he can to ensure the child has continued to have the opportunity to develop and strengthen her relationship with him since supervision of their time commenced.
I consider he will ensure that the child is properly accommodated in his house if she spends unsupervised time with him – the earlier observation by the Department provides a clear snapshot of the facilities the father has previously made available to the child whilst she was in his care. There is nothing to suggest he will not do the same into the future.
Allegations of family violence[77]
[77] As defined in s 4AB of the Family Law Act (1975) (Cth).
During a hospital attendance in June 2009, the mother provided information used to complete a “Family/Child Health Risk Tool”.[78] This amounted to positive denials of matters falling within a definition of “domestic violence” - consequently, the hospital concluded that there was no identified risk of domestic violence.
[78] Page 34, Exhibit 1.
The mother alleges that, during 2010, the father continued to telephone her late at night or early in the morning when she thought he was under the influence of marijuana or alcohol. As she felt unsafe and fearful of him, she applied for a Protection Order.
A perusal of her application for a domestic violence order filed 5 August 2010 reveals that the mother said she was concerned that, without an order, matters would escalate from verbal abuse to physical violence. She specified two events:
a)1 August 2010 - when the child hit father across the face with a toy, she (the mother) saw him become red in the face and his left hand clenched into a fist: this made her feel that the child would be unsafe in an unsupervised situation; and
b)4 August 2010 – the father called her at home and, when she did not answer, continued to call and then turned up at her home, banged on her door and left a note saying that he was there because she had not answered the phone and he was seeing a solicitor: after more text communication, she told him not to come to the home again.
The mother withdrew this application when the father offered an Undertaking[79] on terms acceptable to her. Consequently, there has never been a Protection Order made between these parties.
[79] Exhibit 10B.
The mother told Ms G in 2013 that she had received increasingly abusive text messages from the father – for example, after he became aware of the allegation that he had sexually abused the child, he referred to her (the mother) as a “lying piece of scum”. Whilst such behaviour is not in any way condoned, it is noteworthy that the abusive text messages from the father relied on by the mother are those authored after he had been accused of sexually abusing the child.
Whether it is preferable to make the order least likely to lead to the institution of further proceedings in relation to the children
The parental dynamics as outlined in these Reasons persuades me that it is more likely than not that, without the benefit of clear orders regulating the child’s time with each of her parents, the prospect of further proceedings in relation to her may well be increased.
What orders are in the child’s best interests?
Parental responsibility
The father seeks an order for equal shared parental responsibility. The mother seeks an order for sole parental responsibility. The Independent Children’s Lawyer opposes the making of an order for equal shared parental responsibility.
Given the findings outlined above, when making a parenting order, I am bound to apply a presumption that it is in the child’s best interests that her parents have equal shared parental responsibility for her[80] unless I am satisfied that it would not be in the child’s best interests for this to be the case.[81]
[80] s 61DA of the Act.
[81] s 61DA(4) of the Act.
In her first report, Ms G observed[82] that:
Even without these serious allegations, it would be very difficult for [Mr Sedgeman] and [Ms Novotny] to co-parent due to the lack of a significant relationship or even friendship between the parents when the child was conceived; their lack of trust and goodwill towards each other and their inability to communicate with each other about their daughter.
[82] Paragraph 58, Family Report dated 15 April 2013.
In that the second report, in early 2014, Ms G indicated “the comments made in the Family Report of 15 April 2013 still apply to this update”.
I accept the evidence given by Ms G at the trial to the effect that she thought there was “no possibility” the child’s parents could co-operate and communicate sufficiently for parental responsibility to remain shared.[83] Whilst they have, in fact, been able to reach agreement about the religious school at which the child will attend after her recent return to the Brisbane environs with her mother, they have done so in circumstances where an existing order for equal shared parental responsibility has compelled this.
[83] Paragraph 48, Family Report dated 4 March 2014.
Prior to the disputed matters discussed in these Reasons, the parties had shown some capacity to make decisions about the child jointly: for example, they agreed about the child’s name, and they attended hospital together when her wrist was hurt. Additionally, even where the father believed the mother delayed in engaging with the Contact Centre and deliberately moved to L Town to prevent the child from having a relationship with him and deliberately invented the contents of the child’s reported statements, he was able to agree – after receiving information from her counsellor – that the child attend therapy/counselling.
However, the father accepted during cross-examination that:
a)he had expressed the opinion that neither party had the capacity to communicate well; and
b)there had been little to no communication in the 18 months prior to trial; and
c)he did not have the mother’s current telephone number (but, rather a number on which he calls the child).
In support of the order for equal shared parental responsibility he sought, he advanced that both parents would have to ‘step up’ and communicate for the child’s sake so that they could communicate about major long term issues relating to her. He proposed they address the absence of communication by using email, consider attending at further mediation and both work on their respective communication skills for the child’s sake. Whilst all of these seem positive and sensible suggestions theoretically, I have significant reservations about the reality.
On balance, I accept the submissions made by Counsel for the Independent Children’s Lawyer and those made by Counsel for the mother. I accept it is highly unlikely these parties will be able to make a genuine effort to come to joint decisions. I accept that they lack sufficient (or any) goodwill and trust and/or sufficient knowledge of the other to be able to co-operate or communicate sufficiently for parental responsibility between them to remain “shared” – as it will be absent an order according sole parental responsibility to one of them.
For these reasons, I consider that an order for equal shared parental responsibility is not in the child’s best interests and that it is in her best interests for her mother, the parent with whom she will continue to live predominantly, to have sole parental responsibility for major long term issues relating to her, subject to the requirement to consult with the father and take his views into account in making decisions about such issues.
B’s time with the father
Counsel for the mother submitted it may be open for the Court to conclude that the child’s time with her father at the Contact Centre has not been detrimental to her and thus, inferentially at least, there would be no detriment to her in time continuing there into the future. In essence, she submitted that the “least worst” outcome for the child was to continue to spend supervised time with her father at a Contact Centre indefinitely.
Given that I have concluded that I am not persuaded that the father has sexually abused the child and that I have concluded he does not pose an unacceptable risk to her, a continuation of supervision of their time is not required to protect the child from harm from being exposed to abuse or neglect.
Counsel for the mother also submitted the Court would be persuaded that the mother is unable to support the child spending unsupervised time with her father and the child’s supervised time should continue. However, I note Dr H’s assessment of the mother as resilient and capable and his evidence that people are capable of change and can adjust their behaviour accordingly. I consider it more likely than not that, with appropriate support, the is likely to be able to support the child in spending unsupervised time with her father.
After all, the orders she proposed on the first morning of trial involved the child immediately spending daytime time with her father in the presence of the paternal grandparents before moving to time without the requirement for their presence.
A continuation of supervision would impede the child’s ability to continue to develop a full and wide ranging relationship with her father, Such impediment is not, in my view, something which is in the child’s best interests. I do not accept that supervision, which I consider unnecessary to safeguard her from harm, is the “least worst” result for the child at all.
I consider that affording to the child the opportunity to spend unsupervised time with her father on a gradually increasing basis will provide her with the opportunity to continue to develop a meaningful relationship with him and members of her extended paternal family.
The mother told Ms G, amongst other things, that she felt the Centre and its staff gave the child a sense of security. This sense of security can be achieved by ensuring, (at least initially), that one (or both) of the child’s paternal grandparents are present during her time with her father.
Whilst Ms G concluded in her first report, after her discussion with the paternal grandmother outlined there, that she, in particular, would find it extremely difficult to provide a highly vigilant level of supervision, this is not something which I find is required.
The intention underpinning the requirement that at least one of the child’s paternal grandparents is present initially is:
a)to provide the child with the reassurance of another known person; and
b)to provide the father with support in managing the child as she returns to spending unsupervised time with him; and
c)to provide the mother with the reassurance of knowing that adult/s other than the father are present to support the child as she returns to spending unsupervised time with her father.
There was nothing in the paternal grandparents’ evidence or presentation to suggest that they would not be generally supportive during the child’s time with her father. She clearly has a relationship with them, given her previous experiences of spending time with them when she was with her father and during supervised time at the Contact Centre.
Whilst it is unnecessary to consider it, I record that I am not persuaded that an order requiring the child to spend equal or near equal time with each of her parents is an order which is in her best interests. I arrive at this conclusion given the limitations of her interaction with her father historically, including the significant reduction in her opportunity to spend time with him which has been operative since July 2013. I consider that it is highly likely to simply be too much for the child to be asked to go from spending two hours each alternate weekend in a supervised environment with her father to living with him on an equal time or near equal time basis.
I am, however, persuaded that an order which provides the child with the opportunity to spend increasing time with her father is one which is in her best interests. After an initial period during which her time with him will occur in the presence of either or both of her paternal grandparents (which will provide her with support and her mother with reassurance) the child will be afforded the opportunity to spend unsupervised overnight time with her father. She will be given the opportunity to experience him collecting her from school. He will have the opportunity to spend time with her on days which are weekdays and those which occur on weekends. He will have the opportunity to be involved with, and participate in, her activities which occur at each of these times. In the future, she will have the opportunity to spend holiday time with him. Orders which afford the child these opportunities are reasonably practicable given the fact of her parents’ respective residential locations.
I suspect that the mother may initially find such a regime difficult to accommodate. However, I note that her proposal for resolution of the matter on the first day of the trial included the child being afforded the opportunity to spend unsupervised daytime time with her father. I emphasise that, logically, there is no risk associated with time overnight which does not exist with unsupervised daytime time.
In fashioning the orders I have made, my intention is to transition the child into unsupervised time with her father, supported initially by the presence of another adult, before building toward more significant time. Given that she has previously spent unsupervised time with her father for two days per week (albeit between June and September 2011) and that he has demonstrated an obvious capacity to interact with her, I am persuaded it is not in her best interests that this progression move too slowly.
Whilst the progression of the child’s time with her father will be quicker than that proposed by either parent during their negotiations on the first day of the trial, the child is significantly older than she was at that time. She is now half way through her first year at Prep. She is now older than the age she would have been if overnight time had started as the mother proposed.
How and when should the child transition between households?
I consider it more likely than not that the child will benefit from having the opportunity to be collected from school by her father at the commencement of their time together. In this way, she will be shielded from her mother’s anxiety – something which is highly likely to assist her in transitioning into her father’s care. Additionally, the child will have the support of her classroom teacher, who will also be available to observe how she transitions into his care at these times.
Whilst there may well initially be some discomfort and/or distress demonstrated by the child on the first occasion (or couple of occasions) she is collected by her father from school – because this is an unknown experience for her so far - I am confident that, given her observed interactions with him during their time at the Contact Centre and their previous unsupervised time together, such discomfort or distress is highly likely to be relatively short lived.
I also consider that by collecting the child from school at the commencement of their time together (wherever possible) the father will have the opportunity to be fully involved in the child’s education. She, too, will have the opportunity to observe that he fulfils a practical role in supporting her in her attendance there - this can, I consider, only be beneficial to her.
Additionally, the occasions on which the child’s parents are required to be present for changeovers will be minimised and the mother will not be asked to come into regular and frequent contact with the father.
I am not persuaded that it is in the child’s best interests for her weekend time with the father to be extended to encompass a return to school on Monday mornings. I arrive at this decision because the distance between the suburbs in which her parents live means that she would have to get up very early on alternate Mondays and also because the evidence suggests that the father’s work commitments are such that he is unlikely to be available to care for her on Monday mornings in any event.
I have concluded that it is in the child’s best interests to have the opportunity to spend time with her father from after school on Fridays: one Friday will be the commencement of her weekend time with him and the alternate Friday will provide her with the opportunity to spend a few hours with him at the end of the week without impinging greatly on the mother’s alternate weekend time. The advantage of selecting each Friday is also that it will provide the child with a clear routine, not disrupt the middle of her school week and ensure that she has the opportunity to spend weekly time with her father now that they live in close enough proximity for that to be reasonably practicable.
Telephone/Skype communication
Both parties agree that the father’s telephone communications with the child have been problematic in the past. The father thinks the mother cuts the child off, whilst the mother says the child does not want to speak with her father for more than about two to three minutes at a time.
It is, I think, important for the child to continue to have the opportunity to speak with her father by telephone. He needs to appreciate that there may well be occasions on which this conversation is short – she is, after all, still a young child who may well be easily distracted whilst engaging in communication with any person over the telephone. The father also needs to appreciate that the purpose of telephone communication – as part of a more extensive raft of orders providing the child with the opportunity to spend time with him – is simply to supplement that time. If he is able to approach this form of communication in this way, I consider it more likely than not that – over time – the child may well wish to speak to him for longer than has previously been the case. If not, focusing upon difficulties associated with this form of communication is highly unlikely to persuade the child to engage in it further.
I am hopeful that with the benefit of his increased involvement in her life, there may well be much for the child and her father to speak of– albeit briefly, perhaps – during weekly telephone communication.
B’s name
The mother seeks an order that the child be known by the name under which she is registered with Births, Deaths and Marriages: namely, “B”. This was name agreed to by both parents soon after her birth.
The father seeks to change her name to “B Sedgeman-Novotny” and that the parties sign all documents necessary to ensure that a change of her name is recorded with the Department of Justice and Attorney-General, Births Deaths, Marriages and Divorces.
The father accepted that his parents (B’s paternal grandparents) held the view that her name should be as he now seeks. I also accept that he, too, now holds that view.
I am not persuaded that changing the child’s name is something which is likely to be beneficial to her. She has always been known as ‘B Novotny”. Given that this is her registered name, it is the name by which she will have been known at day care, Prep and in the community generally. I am not persuaded that changing her name now will add anything to the relationship she has with her father or paternal grandparents, who she clearly knows and identifies in those respective roles.
The Department
The mother said that, in October 2013, a Departmental officer told her that if the child’s time with the father is unsupervised, the Department would be concerned she was at risk and would likely “step in”.
Given the Department’s previous involvement in this matter, an order will be made permitting the parties to provide the Department with a copy of the family reports prepared by Ms G, Dr H’s psychiatric report, the Order and these Reasons for Judgment.
Counselling and other significant matters dealt with by the terms of the Order
I consider that orders which require the parties to engage with a professional, for whatever period of time is thought useful by that professional, are more likely than not to assist them and the child in the implementation of the orders providing for her time with her father.
In order to maximise the potential of this intervention to assist the parties in their long-term parenting of the child, it is appropriate they are able to provide that person with a copy of the family reports prepared by Ms G, Dr H’s psychiatric report, the Orders and these Reasons if provision of the same is thought to assist the supportive intervention in which they will engage.
Additionally, it is, I think, appropriate to restrain the parties from engaging with the child in discussion about issues in dispute between them and which have been the subject of this proceeding other than in the course of the supportive intervention. It is not in her best interests to be embroiled in any such disputes.
I intend to make an order discharging the Independent Children’s Lawyer after a period of six months from the date on which the orders are made so as to enable that person to facilitate the parties’ participation in the supportive intervention.
For the reasons outlined above, I consider that orders in terms of those appearing at the beginning of these Reasons are in the child’s best interests and proper.
I certify that the preceding two hundred and ninety-two (292) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 8 July 2015.
Associate:
Date: 8 July 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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