Smoothe and Enmore

[2016] FamCA 275

FAMILY COURT OF AUSTRALIA

SMOOTHE & ENMORE [2016] FamCA 275

FAMILY LAW – CHILDREN – CHILD ABUSE – Whether the father has sexually abused the child – Where the mother’s allegations are unsubstantiated – Where there are issues as to the mother’s credit – Whether the child should live with the father – Where the mother subjected the child to numerous photographs, videos and medical examinations.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 61DAC
Evidence Act 1995 (Cth) s 140

Briginshaw v Briginshaw (1938) 60 CLR 336
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT: Mr Smoothe

RESPONDENT: Ms Enmore

INDEPENDENT CHILDREN’S LAWYER: Patrick Dooley

FILE NUMBER: BRC 4709 of 2012

DATE DELIVERED: 28 April 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 25, 26, 27 & 28 November and 1, 2, 3, 4 & 5 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele of Counsel

SOLICITOR FOR THE APPLICANT: Carroll Fairon Solicitors

COUNSEL FOR THE RESPONDENT: Ms Merkin of Counsel

SOLICITOR FOR THE RESPONDENT: Crana Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Frizelle of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Dooley Solicitors

Orders

1. That all previous parenting orders be discharged.

2. That the child, R born … 2009, (“the child”) live with the father commencing from after school this Friday.

3. That the father have sole parental responsibility for making all decisions about the “major long-term issues” (as that term is defined in the Family Law Act 1975 (Cth) (“the Act”)) in relation to the child.

4. That when the father is to make a decision about any of the “major long-term issues” (as that term is defined in the Act) in relation to the child:

   (a)       He shall inform the mother in writing of the decision to be made;

   (b)       He shall invite written input from the mother;

   (c)He shall take the mother’s input into account when making the decision; and

   (d)       He shall inform the mother in writing of the decision he makes.

5. That the child shall spend time with the mother as agreed between the mother and the father in writing, but failing agreement as follows:

   (a)Commencing on Thursday, 19 May 2016, each alternate weekend during school term from after school on Thursday to before school on the following Monday, (or before school on the following Tuesday if the Monday is a public holiday);

   (b)For the second half of her school holidays in (or that commence in) even numbered years and for the second half of her school holidays in (or that commence in) odd numbered years;

   (c)If the child is not otherwise spending any time with the mother on the following days, she shall spend time with the mother as follows:

   (i)On Mother’s Day – from 9.00 am until 5.00 pm;

   (ii)On the child’s birthday – from after school until 6.00 pm if it is a school day and from 1.00 pm to 5.00 pm if it is not a school day;

   (iii)On the mother’s birthday – from after school until 6.00 pm if it is a school day and from 1.00 pm to 5.00 pm if it is not a school day;

   (iv)On her sister, D’s birthday – from after school until 6.00 pm if it is a school day and from 1.00 pm to 5.00 pm if it is not a school day.

6. That notwithstanding paragraph (5) of this parenting Order, if the child is not otherwise spending any time in the father’s care on the following days, she shall spend time with the father as follows:

   (a)On Father’s Day – from 9.00 am until 5.00 pm;

   (b)On the child’s birthday – from after school until 6.00 pm if it is a school day and from 1.00 pm to 5.00 pm if it is not a school day; and

   (c)On the father’s birthday – from after school until 6.00 pm if it is a school day and from 1.00 pm to 5.00 pm if it is not a school day;

7. That for the purposes of paragraph (5) hereof, the child’s school holidays shall be considered as commencing immediately upon the conclusion of school on the last day of term before the holidays and shall be considered as concluding immediately before the commencement of school on the first day of term following the holidays with the child to transition between the parents at 5.00 pm on the day on which the exact half way point of those holidays is calculated to fall, such day to be agreed in writing between the parents prior to the commencement of each school holiday period.

8. That where the child is to transition to and from the mother’s care at the commencement or conclusion of a school day, the mother shall collect and/or deliver the child to or from the school without the father being around, but where the child is to transition to and from the mother’s care or the father’s care outside of the usual school commencement or conclusion, such as during school holidays, on weekends or after school hours, transitions shall take place at the home of the parent into whose care the child is transitioning, with the parent from whose care she is transitioning being responsible for delivering the child to the other parent’s home.

9. That the child shall communicate with the mother by telephone every Wednesday and Sunday on which she does not spend any time with the mother, between 6.00 pm and 7.00 pm, with the father to cause the child to make the telephone call to the mother and to give her privacy whilst she talks to her mother and her maternal family. That each party be restrained from denigrating the other parent, their partner, or a member of their family to or in the presence of or hearing of the child and ensure that no other person does so and in the event of some other person doing so, then that parent must immediately remove the child from the vicinity of the person so doing.

10. That the child shall communicate with the father by telephone every Wednesday and Sunday on which she does not spend any time with the father, between 6.00 pm and 7.00 pm, with the mother to cause the child to make the telephone call to the father and to give her privacy whilst she talks to her father and her paternal family.

11. That each of the mother and the father is restrained from denigrating the other parent, his or her partner, or a member of his or her family to, or in the presence of, or within the hearing of the child and each of the mother and the father shall use his and her best endeavours to ensure that no other person does so and in the event of some other person doing so, then that parent must immediately remove the child from the vicinity of the person so doing.

12. That each of the mother and the father is restrained from discussing these proceedings with, or in the presence of, or within the hearing of the child.

13. That the mother is restrained from subjecting the child to medical or physical examination of her genital area without the written consent of the father.

14. That the mother is restrained from taking the child to a counsellor or psychologist without the written consent of the father.

15. That the mother is restrained from photographing or video recording the child’s genitals, or permitting others to do so, without the written consent of the father.

16. That the mother is restrained from audio or video recording conversations or question and answer sessions between her and the child, or any other third person and the child, in which matters relating to issues of sexual abuse are discussed or canvassed, without the written consent of the father.

17. That notwithstanding the other provisions of this parenting Order, the mother and the father shall be entitled to attend at the school the child attends, or at any event the school hosts, in the same way as any parent of a child attending that school is welcome to attend at that school by the school’s administration, as long as the administration of that school so welcomes her and/or him to attend, and the fact that the other parent is also at, or wishes to attend the same event, shall not, in itself, disqualify either parent from so attending.

18. That the father shall be entitled to provide a copy of this parenting Order to any school the child attends, but each parent is restrained from discussing the details of this case with the administration of any such school, any teachers at that school or any other parents of children at that school, without a further order of the Court.

19. That each parent is entitled to obtain from, or be provided by, any school the child attends, with any and all information that the school is able, at law, to provide parents of any child who attends that school.

20. That if and when the father enrols the child at a new school, he shall ensure that the mother’s name and contact details are also listed on the child’s enrolment form as her other parent and as an emergency contact person, (not necessarily to the exclusion of his partner in respect of the provision of emergency contact details).

21. That each of the mother and the father shall keep the other parent informed of his and her residential address, telephone numbers (landline and mobile) and email address and shall inform the other parent within 24 hours of any change to any of those.

22. That if either parent takes the child to a doctor whilst ever she is in that parent’s care, that parent shall inform the other parent as soon as practicable after such attendance, in writing of the following:

    (a)The name of the doctor attended;

    (b)The business name, address and telephone contact details of the medical practice or hospital at which the doctor was working when seeing the child;

    (c)The reason why the parent took the child to see the doctor; and

    (d)The diagnosis the doctor gave as well as any medicine or further treatment prescribed or recommended.

23. That whenever the mother or the father takes the child to be seen by a doctor that parent shall also inform that doctor that he or she is authorised by that parent to speak with the other parent about the visit if that other parent contacts the doctor subsequent to the visit to seek information about the visit and to provide the other parent with any information that the doctor is, at law, able to provide to that other parent about the attendance upon the child.

24. In the event of any unresolved dispute as to the interpretation, implementation or enforcement of this parenting order including any claim by either parent that it should be varied the mother and the father shall first attend family dispute resolution (FDR) with a FDR practitioner appointed by agreement between them and they shall make a genuine attempt to resolve the dispute before making further application to a Court having jurisdiction under the Act

25. That the Independent Children's Lawyer be discharged on 27 May 2016.

26. That the mother shall pay the father’s costs of the attendance by his solicitor and counsel on the first day of the trial such costs to be agreed as between the mother and the father or, failing agreement, assessed on a party and party basis by a Registrar of this Court pursuant to the Family Law Rules 2004 (Cth).

27. That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smoothe & Enmore 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 4709 of 2012

Mr Smoothe

Applicant

And

Ms Enmore

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. For determination in this fiercely contested parenting orders dispute is a parenting order governing the future parenting of the child R, born in 2009, who is now nearly 7 years of age.

2. A hearing lasting nine days was conducted in late November and early December of 2014.  Clearly then, this judgment has been reserved for a long time. That is regrettable because of the uncertainty that length of time before delivery of judgment creates in the lives of the parents, their extended families and in the life of the subject child. I attribute the length of time it has taken me to write this judgment to the length of the trial, the length of time actually needed to sit down and consider all of the evidence and submissions and then to write these reasons, as well as the obligation to hear and determine so many other equally long and difficult matters in the period of time during which my judgment has been reserved.

3. Central to the determination of the proper parenting order to make in respect of the child, having regard to her best interests as the paramount consideration, is a need to consider the mother’s asserted belief that the child has been subjected to long-term, repeated sexual abuse by her father. The maternal grandmother and other persons around the mother support her in that belief.

4. The father denies that he has acted in a sexually abusive manner towards the child. Indeed, he contends that the mother’s assertions against him are but an overt manifestation of her overwhelming desire to prevent him having any relationship with their daughter; that her belief, even if genuine, is irrationally based; and that her behaviour with the child around these allegations has been, in itself, emotionally abusive of her.

5. Contending that, at the very least, the Court should find that the child would be placed at an unacceptable risk of sexual abuse if she was to spend time in the father’s unsupervised care, the mother seeks sole parental responsibility for the child and a parenting order that restricts the child’s time with the father to indefinite, supervised time at a children’s contact centre.

6. In contrast, the father who in 2012 first applied for a parenting order that conferred parental responsibility for the child equally upon him and the mother, and provided for the child to continue living with the mother but to spend from Saturday afternoon to Tuesday in his care, amended that position and asked the Court at trial to confer sole parental responsibility upon him and to order the child to live with him and spend more limited time with the mother.

7. The Court was assisted in this difficult matter, as it so often is in this sort of case, by the participation of an Independent Children’s Lawyer (“ICL”). At the conclusion of the long trial, counsel for the ICL submitted that the Court would find that the father had not sexually abused the child and that he does not present an unacceptable risk of sexual abuse to the child. It was submitted for the ICL that if the Court accepted that submission, and found in that way, that the parenting order should provide for the child to live with the father and to spend alternate weekends with the mother, with the father to have sole parental responsibility.

The outcome

1. Ultimately, I have concluded that the father did not sexually abuse his daughter and that he does not pose an unacceptable risk to his daughter. Furthermore, I am satisfied that the mother has become irrationally determined to limit and restrict the child’s relationship with her father and that this determination has driven her behaviour and the allegations that she has made to the point where the child is being emotionally abused by her as a consequence. I am satisfied that the child’s best interests will be served by making a parenting order that provides for her to live with her father, that gives the father sole parental responsibility for her, but that has her spending alternate weekends and half of her school holidays with the mother.

The parents

1. The mother is now 31 years of age. She said in evidence that she is of Indigenous descent and identifies herself as an Aboriginal person, descended from the original inhabitants of the coastal regions of northern New South Wales. The mother has two children, D, a 13 year old girl, born when the mother was 18 years of age, and the subject child, R. D is the mother’s child of a relationship that the mother was in before she met the father of the child. According to the evidence of the father, relations between the mother and D’s father have not been good since they separated and D has only ever spent minimal time with him. The mother’s evidence at trial certainly reflected poor relations with D’s father at that time, with D spending little, if any, time with him. The mother has had employment in administrative roles during her adult life, and was working part-time, as well as parenting, at the time of the hearing in this matter. At the time of the trial, she was living in a rental property at Eagleby with her new partner and the two girls.

2. The father is now 33 years of age. He works in the service industry and was doing that same sort of work, working for his father’s business, when he met the mother. He lives in a house he owns at E Town and at the time of the trial he was living in that place with his new partner and her two sons who live on a week about basis with their mother and their father. 

The parents’ relationship

1. The mother and the father met in late 2004, when the father was 21 years of age and the mother was 20 years of age. They commenced dating and began their relationship soon thereafter. In the early stages of their relationship, the mother was living in her own apartment with her young child, D, and the father would spend a lot of time with them there. In 2006, the mother moved to a house located at F Town which she shared with her mother. Her evidence is that the father moved in with her at that place for a time, although she says he did that without discussion and, seemingly, without her approval, such that she asked him to move out. The father and the maternal grandmother apparently did not get on with each other from an early stage in their relationship.

2. There was little evidence given by either party about their relationship up until the time when the child was born in 2009, after the mother and the father had been together for four years. The mother complains in her trial affidavit about the way the father treated her during their relationship and says “I didn’t want to live with him”. Nevertheless, the mother, D (then 6 years of age) and the child all moved in to live in the father’s E Town home with him soon after the child was born.

3. Separation occurred less than 2 years later, on 25 February 2011, when the mother left, taking the two girls without warning in a hurried departure whilst the father was at work.  The mother describes a lot of unhappy differences between them in her affidavit evidence. She asserts that the father subjected her to family violence through control, verbal and financial abuse. Apart from asserting that he would pin her down and tickle her until it hurt her and she became angry with him, I do not understand her evidence to include assertions of pre-separation physical violence. Indeed, quite frankly, I consider that the mother has exaggerated the claims of control and abuse, somehow believing that would assist her in this case. The assertions of financial abuse seemed to focus on his complaining about what she spent money on and, on one occasion not long before she left him, of his transferring funds out of an account they had joint access to without telling her, so that she could not access it when she went shopping later that day to buy D some new school shoes. At the trial, the father admitted that he did do that to prevent the mother spending the money.  The evidence established that she had her own bank account that she could access, into which Centrelink parenting payments and child support from D’s father was deposited, in any event.

1. Tellingly, given that the mother complained in her evidence of what she perceived were the father’s poor parenting capacities as per her observations when they were living together, from very soon after separation the mother was facilitating the child spending time with the father every weekend, including overnight, from 4.00 pm Saturday to 4.00 pm or 5.00 pm on Sunday.  The parents were facilitating changeovers at their respective homes for several months. The mother complains that the father would question her about her private life at these changeovers and that such questioning made her uncomfortable. The father was, on his own admission, hoping for a reconciliation and admits he asked the mother to give him another chance in their relationship.

The first real signs of trouble

1. In the mother’s trial affidavit, she gives quite particular evidence about matters referenced to particular dates commencing from 18 September 2011. Each such date referenced at around that time was a day when the child spent time with her father by agreement between the mother and the father. At the trial, in late 2014, it became apparent that the dates and events were referenced by the mother by diary notes said to have been contemporaneously kept by her. Her diary, in which those notes appear, was adduced into evidence.

2. In her trial affidavit (filed 2 September 2014), the mother said that on 18 September 2011, the child, who was 2 years and 4 months of age at the time,  was wearing a nappy when she was returned to her mother by her father. She asserted this was unusual as she was “already toilet trained by July 2011” and only usually wearing a nappy at night time at the time. (This did not appear to be correct when all of the rest of the evidence about the child and nappies and toilet training was considered). The mother said that when she took the nappy off the child she saw that the area around her vagina looked “red raw”. She said:

   However, it was not like [my emphasis] the redness that I have seen when she wore a nappy and had nappy rash. This redness was not on the outer labia where a nappy would rub; it was present in the inner labia of the vagina. The child also returned home from [Mr Smoothe] with marks on both her thighs that looked like a hand shape. I could clearly see the finger marks on both of her thighs. The red marks on her left thigh matched with the red marks on her right thigh and it looked like a full hand grip mark wrapped around her thighs. I could see clearly imprints of all fingers and thumbs.”

3. In contrast, the diary entry for that day says:

   [R] came home with hand marks on her thighs. Scared to ask [Mr Smoothe] cos he doesn’t react well when I question his parenting. the child moody & red raw in privates.

4. That is the limit of the mother’s diary note about that day. She certainly made no written complaint in that note about the child being returned in a nappy or a written expression of an opinion she might have held at the time that the redness around the child’s genitals was not like nappy rash.

5. In her trial affidavit, the mother said that on 24 September, 2011 she asked the father about the marks on the child’s legs that she noticed the week before. She records that he said he did not know anything about them. She said that when she said “they looked like hand marks” he got angry and said loudly and angrily “you think I’m a bad parent”, so she did not say anything more about it. That asserted exchange is not noted in her diary, nor does she say in her affidavit that she asked him anything about the red rash.

6. In her trial affidavit, the mother goes on to say that on 25 September, 2011, the child had a rash “which did not look like nappy rash” and that the father had again put her in a nappy. She said that the “rash was not the same as nappy rash as it was red and inflamed and seemed to be weeping. It did not look like nappy rash because it was not on the outer vagina”.

7. Significantly, in my judgment, the entry in the mother’s diary for 25 September, 2011, says, “[R] has nappy rash, angry, moody, hitting. Been to [the father’s]” [my emphasis].  

8. The mother’s trial affidavit goes on particularising things she says she saw on particular dates from September 2011 onwards. She continually says that she was observing rash in the child’s vaginal region that did not look like nappy rash. Repeatedly though, in the entries in the diary, she simply describes the rash as “nappy rash”. There is no note in the diary about her discussing concerns about the rash with the father, nor does she say in her affidavit that she discussed concerns about the rash with the father.

9. At the trial, under cross-examination, the mother could give no rational explanation for why she was describing the rash in her diary simply as “nappy rash” but then in her affidavit written nearly two years later saying that the rash was not like nappy rash.

10. The mother’s complaints in the diary about the child’s appearance on return to her continue through the summer of 2011/2012. She references these issues in her trial affidavit, too. She also asserts, in the diary and in the trial affidavit, that the father was becoming more and more aggressive with her at handovers.

11. The mother then sets out in her trial affidavit, apparently believing it to be evidence of his aggression, transcripts of a number of text message exchanges between her and the father in mid-February 2012 that demonstrate the father asking for some more time with the child, including a second overnight stay with her on the weekends, on either the Friday or Sunday nights. The transcripts of the messages show the father’s requests being met with resistance and refusal by the mother. Indeed, in one of them, the mother threatens that she will call the police if he does not have the child back to her at 4.00 pm on the Sunday.  The father quickly agrees to that requirement.

12. The father’s requests, in those transcribed exchanges, do not, in my judgment, demonstrate abusive, rude or even unreasonable requests, yet the mother’s responses are far from conciliatory. The last of those messages between them was said by the mother to be on the Saturday 26 February, 2012. The 26^th February that year was, in fact, a Sunday. The mother’s diary evidences that.

13. I am satisfied that last text exchange actually occurred on Sunday 26 February, 2012.

14. In her trial affidavit the mother, referring to the handover of the child that happened that day, describes an incident as she says it unfolded at that handover.  The mother said:

    …Once [Mr Smoothe] arrived I went to his car and opened the door where [the child] was and started to unbuckle her.  [Mr Smoothe] yelled at me “Let me do it!” I then turned around and [Mr Smoothe] was standing directly behind me with his arms spread wide so as to not let [the child] or me get past him.  I was scared for my daughter and myself as we were alone in the large car park and his aggressive behaviour felt like it was escalating.  I tried to step around [Mr Smoothe] and he puffed his chest out and pushed his large body into me while [the child] was in my arms.  It made me step back 3 or 4 steps and I almost fell with [the child] in my arms.  I balanced myself and said to [Mr Smoothe] sternly “Don’t ever touch me or come near me again!”  [Mr Smoothe] said, “What?! I didn’t do anything…” with a smirk on his face and laughing while shaking his head “I didn’t touch you.”  As I continued to put [the child] in the car, he stood hovering behind me laughing.

15. It happened that the father actually surreptitiously recorded that handover on his mobile telephone. The recording was played and adduced into evidence at the trial (Exhibit 30). The verbal exchange actually went like this:

    Mother:         Come on baby.

    Father:  Hey, let me get her out [not yelled as the mother said].

    Mother:         No, you are an absolute headcase, you know that [Mr Smoothe].

    Father:  I’m not a head case thank you very much, I think you are.

    Mother:         You think this is real mature, the way you are carrying on.

    Father:You think it is, it’s alright for you.  I’d like to say goodbye to my daughter thank you, you can’t stop me.

    Mother:Come on baby (talking to the child).  You can go and jump off a cliff [Mr Smoothe], get lost.

    Father:  That’s not very nice

    Mother:         Get away from me.

    Father:  Let me say goodbye.

    Mother:         Do not touch me.

    Father:  I’m not touching her.

    [Door slams]

    Don’t slam my door.  I’d just like to …

    Mother:Stay away from me. You’re crazy.  Look at how all over the shop you are and you think it’s funny. You’re a drop kick.

    Father:That’s not very nice. Don’t say that in front of the kids.  So I can’t even say goodbye to my daughter, can’t give her a cuddle or nothing … See ya darling, bye, love you, love you.

16. When it was played to the mother in Court, it was plainly obvious that the voices were hers and the father’s, but when counsel for the father asked her to formally confirm that the female voice was hers, the mother initially refused to concede that it was. After I asked her whether she was serious, she then quickly said “it could be.”

17. It seems that as soon as the father stopped the car, the mother took it upon herself to get the child out of the father’s car and was not minded to let the father and child say their goodbyes. I do not accept that the father was yelling or shouting. Indeed, the mother was the first to use derogatory language directed at the father.  I did not hear the father laughing. I formed no impression that the mother’s language suggested she was scared of the interaction with the father. Indeed, I am satisfied that the mother was embarrassed by the production of the audio recording, realising that it significantly diminished the quality and credibility of the evidence she gave in her trial affidavit about what happened that day and the picture she was portraying of the father’s behaviour that day.

18. In or around February, 2012, keen to arrange more time with the child, though getting little satisfaction dealing directly with the mother, the father approached Relationships Australia (“RA”) about arranging family dispute resolution mediation. The mother deposed to receiving a letter from RA around this time.

19. RA’s letter of 7 March, 2012 to the mother is exhibited to her trial affidavit. It referred to a telephone conversation someone at RA had with the mother on 1 March, 2012. I am satisfied that the mother was more likely than not aware on 1 March, 2012 that the father had contacted RA and was looking to engage in family dispute resolution mediation with the mother at RA.

20. The mother said in her trial affidavit that on 4 March, 2012 she observed the child with red marks on both her arms when she changed back to her care that day. She said that she asked the father “what happened to her arms?” and that he quickly responded “it was the way she was sleeping in her car seat”. The mother said in her affidavit that they did not look to her like they were the result of the way she was sleeping in her car seat. In the mother’s diary, the entry for that day also goes on to say “[R] said “[G] did it””. (G is the father’s dog). The mother said that the father “was quick to protect his dog & deny it.”   That was not included by the mother in the affidavit evidence she gave about that issue that day. When asked about that at trial, the mother could not reasonably explain why she had left that out of her affidavit evidence. The mother attached coloured copies of photos to her trial affidavit. She said they were photos of the marks on the child’s arms. All four pictures were actually of the child’s right arm. They depict a red mark on the child’s upper right arm. I cannot determine how that mark was made. I cannot say it looks to me like a hand print or finger prints.

21. The RA letter of 7 March, 2012 to the mother informed her that if RA had not heard from her by 21 March that RA would presume that she did not wish to engage with RA.

22. The mother said in her trial affidavit that whilst the father “was frightening” her on handovers she thought “there was nothing to be concerned about with his daughter”. She mentioned the rashes she kept seeing but thought that it was that the father was just not caring properly for the child’s hygiene when she was with him. She said she welcomed the opportunity to have mediation. She said in her trial affidavit that she soon contacted RA again to tell them she wanted to go ahead with the mediation. There is an entry in her diary that she contacted RA on 27 March, 2012. That was a week after the date by which they had asked the mother to contact them and three weeks after the date of their letter to her. That does not depict any desire for a speedy resolution on the mother’s behalf.

23. In contrast, the father said in his trial affidavit that the mother “never cooperated in regards to attending mediation and it could not be arranged”. He said the mediation issued dragged on. He also said he understood that the mother told RA she had no availability to attend mediation until the end of June. He said he then engaged a solicitor to advise him and represent him in trying to achieve more time with the child in the meantime.

24. The mother said in her trial affidavit that when the child was returned to her on 1 April, 2012 she was again red around her vaginal area. The mother again said the rash, “was not as though it was caused from a nappy as the rash was on the inner labia and not the outer labia”. In her diary, she noted that the child was “very red in her privates” and “smelly”. Again, nothing was said in the diary about an opinion that the redness was not like nappy rash. She said in the affidavit that she was afraid because the child was demonstrating angry behaviour and she believed there was a correlation between that and spending time with the father. Nevertheless, the mother did say in her affidavit “I thought if I talked with him we could resolve whatever it was that was making her upset”.

25. In stark contrast, the father said in his trial affidavit that the mother was never willing to discuss with him the topic of the child spending more time with him. Significantly, in my judgment, there is nothing in the mother’s diary that supports a finding that she was trying to talk with the father about any of these issues at around this time. I do not accept that she was.

26. The father said that he received a text message from the mother on Good Friday, 6 April, 2012 informing him that she was keeping the child for the Easter weekend. He says nothing about an explanation being provided.

27. Of interesting note, the mother said absolutely nothing about this in her trial affidavit. In her diary, there is a note on that date saying “text [Mr Smoothe], “his not having the child!” Left for [H Town]”. It then has a smiley face motif drawn in. That suggests to me the mother was expressing her own happiness about that.

28. Clearly, the mother went away from the Region B to H Town for that Easter long weekend. She made a unilateral decision to not make the child available to spend any time with the father. In her diary, she wrote on 5 April, 2012 that she received a Facebook message from the father’s solicitor. She did not say anything in her diary or in her trial affidavit about the content of that message. She did not adduce a copy of the message into evidence.

29. The father said in his trial affidavit that the mother refused to allow the child to spend time with him the following weekend after Easter as well. He also said that he had tried to contact her about his time with the child and that she had simply not responded to his messages.

30. The mother next deposed in her affidavit to receiving a telephone call from the father’s solicitor on Friday 20 April, 2012. That was the day before the third weekend since the child had spent time with the father. The father said that his solicitor (who was acting for him at that time) attempted to communicate with the mother but that she refused to talk to him.

31. The mother’s diary note said that the call from the solicitor was “harassing, intimidating, threatening”. She said in her affidavit that the solicitor said to her that if she did not hand the child over to the father the next day that he (the solicitor) would “make sure [she] never saw the child again.” Of course, there was no evidence from that solicitor on the point.

32. Although it is possible that a solicitor said that, it would be an extremely unprofessional, inappropriate thing for a solicitor to say. Later, though, in August 2012, the mother exhibited to the first affidavit that she swore and filed in Court on 1 August 2012, some written communications received from that solicitor. That included an email he sent to the mother at just after 5.00 pm on that day, 20 April 2012.

33. The solicitor wrote:

    You informed me this afternoon that you would not allow [Ms Enmore] (sic) to spend time with her father this coming weekend by way of interim reinstatement of prior arrangements.

    This was explained by you suggesting that you feel intimidated by your height (5’2” you said) compared to my client and planned to be “too busy” anyway. You could not point to any reason why the child should not enjoy her right to spend time with her father on Saturday-Sunday as has been the case for many months.

    Please reconsider in the child’s favour your decision because I will take instructions otherwise to obtain urgent Federal Magistrates Court orders for [Ms Enmore’s] (sic) benefit to enforce her right to spend substantial and significant time (if not equal) with her Dad. [Mr Smoothe] will also apply for costs if he has to file proceedings.

    Please contact [Mr Smoothe] today to confirm that the child will spend 24 hours in his care this weekend. You know his number to be ...

34. The content of that email is completely inconsistent with the solicitor having said that he would make sure the mother never saw the child again. On the balance of probabilities, I do not accept that the father’s solicitor threatened the mother in the way that the mother alleged.

35. The mother said nothing more about why she did not let the child spend time with the father that weekend, but she clearly did not let it happen. She has said in her trial affidavit that she rang RA on Monday 23 April 2012 and told them about the call she had received from the father’s solicitor. She said that she continued to receive calls from the father’s solicitor after that time but that she simply refused to answer them.

36. Included in the communications from that solicitor that the mother exhibited to her 1 August, 2012 affidavit, is a letter the solicitor sent by email to her on 2 May, 2012. The email attaches and refers to a copy of the Initiating Application that the father was going to file in the Court if the mother would not permit him to have the child in his care from Saturday afternoon to Tuesday morning each week. In that letter, the solicitor said the father would apply to the Court for parenting orders that the child live with him and only spend time with the mother as the Court thinks fit, if she did not permit the child that time with him.

37. These letters did not generate a positive response from the mother.

38. The next matter of significance occurred on Tuesday 8 May, 2012. Although it was over a month after the mother had unilaterally stopped the child from spending any time with the father, the mother rang the Department of Communities, Child Safety and Disability Services (“the Department”) on that day, Tuesday 8 May, 2012. She said in her trial affidavit that she told the Department about the child returning from time with her father with redness in her vagina, the state of neglect at the father’s home, the marks on the child’s arms and the father’s aggressive behaviour at changeovers. Her diary note says she spoke of safety concerns for her children and herself, harassment by the father and her cessation of the child’s visits with her father until mediation.

39. The Department’s records note that the mother reported that she and father were going through mediation, and that he sees the child for 24 hours per week but is seeking to increase that time to three nights per week. The notes record that the mother reported concerns about the father’s home being a mess with dog faeces in the house and also that the child returns from visits with him with “nappy rash” (my emphasis) and is tired and aggressive.

1. The mother said that she had an intake session at RA on 7 June, 2012 and that mediation was scheduled for 23 August, 2012.

2. Apparently frustrated by the mother’s refusal to let the child spend any time with him, the father changed solicitors and filed an Initiating Application in the Federal Circuit Court (“FCC”) seeking parenting orders that included the child spending time with him from Saturday to Tuesday each week.

3. There were apparent difficulties causing the mother to be served with the document. Indeed, on or around 29 June, 2012 the father drove to the mother’s home and stayed in his car, whilst an acquaintance of his, an off duty policeman from another state, went to the door of the mother’s house to serve the documents on the mother. The mother said in her trial affidavit that the man “banged loudly on the front door for about 45 seconds. The longer he stayed there, the louder this man banged on the door.”  She said that she and the two girls were scared. Though she did not say it, she clearly did not answer the door to see who it was.

4. The father’s acquaintance made an audio recording of his approach to the door and the knocking on the door. That recording was played at the trial and admitted into evidence. The first knock is normal sounding, lasting a second or more. There is a pause of almost 30 seconds before the next knock on the door. It was a similar, normal knocking, lasting a second or more. There is a pause of about 30 seconds before he knocked again. The third knock was a little louder and lasted a second or more. There is another pause of about 30 seconds before he knocked again. This time he knocked on what sounds like a metal, fly screen outer door. The knock is a normal sounding knock lasting a second or more. Then it sounds as if he turns around and heads back to the car. He said nothing during the time he was at the door and no sound came from inside the house.

5. I am satisfied that the mother’s evidence about that incident was misleading and untrue. It was a dramatic exaggeration of what actually happened again, I am satisfied, given to portray a completely different picture to what actually occurred.

6. The mother said that she then sent the father a text message and provided him with the number of a children’s contact centre and told him if he rang and registered, he could make arrangements to visit the child there at the centre.

7. The mother said in her affidavit that on Monday 2 July, 2012 she went to see the police at I Town and complained about the father’s behaviour. She said that the police “were unable to help” but referred her to a domestic violence service. She went there and with their help the mother completed an application for a protection order that she filed in the I Town Magistrates Court.

8. The application filed by the mother was exhibited to the father’s trial affidavit. The mother referred to the incident that had taken place the previous Friday when the father and the other man had gone to the mother’s home and the other man had knocked on the front door. She said that she did not answer the knocks on the door that day as she was scared and unaware of who the other man was. She said he continued to knock around 5 times (it was actually 4 times) “with each knock escalating to hard bangs” (I have already described what I heard from the tape and it was not like that). She said that the person was banging on the front door so hard “he would have broken the glass panels”. I consider that was an exaggeration, too.

9. I understand the mother obtained an ex parte temporary protection order relying on the claims she made that day, including the exaggerated claims about the knocking at the door, and the matter was listed for mention again on 8 August, 2012.

10. The Department’s records include notes of a notification received on 2 July, 2012 that the father had perpetrated domestic violence against the mother, and has been “emotionally and physically abusive”. The note records concerns reported that the father is stalking the mother and that he attended her home and frightened the mother’s older daughter and that he has threatened to take the children away from the mother. The note also records that it was reported that the child has returned from the father’s home with “welts and bruises”.

11. The mother was eventually served with the father’s FCC documents on 11 July 2012. The first return date of the father’s application was 7 August, 2012.

The parents now before the Court

1. On 2 August, 2012, a Form 4 Notice of Child Abuse, Family Violence, or Risk of Family Violence, signed on 1 August, 2012, was filed in the Brisbane Registry of the FCC. It was prepared by a solicitor from the Aboriginal and Torres Strait Islander Legal Service (“ATSIL”) at I Town.

2. Where the form asks for descriptions of any acts or omissions alleged to constitute abuse it says:

   I have witnessed [Mr Smoothe] grasping the child very tight in order to scare or to discipline her and on one occasion the child came home with marks on her arms.

   Nothing else is written in that part.

3. There is nothing included in the part where the form asks for a description of the facts alleged to constitute any risk of abuse.

4. Where the form asks for descriptions of the acts or omissions alleged to constitute family violence it says:-

   [Mr Smoothe] has been stalking, assaulting and has unreasonably withheld financial support from me.

   Nothing else is written in that part.

5. In her trial affidavit, the mother said that she met with her solicitor from ATSIL on 24 July, 2012 to prepare for the first return date of the father’s application. The mother said that she showed the solicitor photos of the child “where she had been injured in the care of the father” and “of the dirty state of the house [the father] resided in”. She said she explained to the solicitor her concerns for the child whilst in the father’s care including his neglect of her, the unexplained marks on the child, and the redness in her inner vagina after returning from the father’s care. She said that she also told the solicitor of the father’s behaviour at changeovers. She said the solicitor told her a Form 4 would need to be prepared and that the solicitor would do that.

6. All of that, if conveyed to the solicitor by the mother as she said it was, was not included in the Form 4. The mother said in her trial affidavit that she was very upset when she saw “the minimal extent of the evidence” the solicitor had written in the Form 4. She clearly blames the solicitor for its omission.

7. The mother filed an affidavit of 40 paragraphs (over 8 pages) on 1 August 2012. Exhibited to the affidavit were photographs of the child showing the marks on her right upper arm which I have already referred to in these reasons. There were photographs of the house the father resided in and some much older photographs of the child with some marks on her face.

8. The mother also attached the email letters she had received from the father’s solicitors in late April and early May 2012. In that affidavit, the mother had said that threats from the father and his solicitor that the child would be taken permanently and that the mother would “never see her ever again” led her “to cease contact”. As I have already observed, the content of those emails was not supportive of that evidence. Indeed, the first of the email letters from the father’s solicitor that the mother exhibited to that affidavit was dated 20 April, 2012, after the mother had already unilaterally determined not to let the child spend time with the father over the Easter festive weekend and the weekend after that.

9. In that affidavit filed 1 August, 2012, the mother refers to the fact that the child had been coming home from time with her father with “unexplained marks on her, nappy rash, her bottom not wiped properly, sunburnt, dirty from not being bathed, so tired she couldn’t stand up and coming home in the same clothes she left in.”  Quite significantly, in my judgment, in that affidavit the mother did not say that the redness she had observed around the child’s genitals was not nappy rash or could not have been nappy rash. That is significant as, pointed out already, in her much later trial affidavit, she deposed to a belief allegedly held at the time of seeing the redness in 2011 and 2012 that it was not like nappy rash.

10. The mother’s position advanced to the Court was that the father should only have supervised time with the child because he had “failed to protect the child from abuse” with reference to the marks on her arms and because of his alleged neglect of her physical care. The mother did not make any allegation that the father had sexually abused the child or that she was worried that he might have.

11. On 7 August, 2012, Federal Magistrate Demack (as her Honour then was) made an interim parenting order that the child live with the mother and spend time with the father each week, initially for short periods of a couple of hours at a time, increasing over 4 weeks to again be for 24 hours overnight from 4.00 pm Saturday to 4.00 pm Sunday. Her Honour ordered for changeovers to take place at a children’s contact centre or at the police station until the centre could accommodate the parties, and also for the father and child to be able to communicate by telephone each week. Her Honour also ordered the parties to attend a Parenting Orders Programme and any other programmes considered appropriate by the Co-ordinator of the Parenting Orders Programme. Her Honour also adjourned the matter to be heard again on 14 December, 2012.

12. The next day, 8 August, 2012, the mother’s application for a protection order was mentioned in the I Town Magistrates Court. The father and his solicitor appeared and told the Court that the application was opposed. The mother was unrepresented. A temporary protection order was made and the matter listed for hearing in December that year.

13. The mother says nothing about it in her trial affidavit but a note in her diary on 15 August, 2012, says:

    Appoint Citizens Advice Bureau. I was advised best to not contact Shawn (sic) directly & wait for solicitor to do so. Child abuse to be filed with evidence, urgent order to stop current order. All evidence not submitted.

14. Of note, though, that diary note has had some amendments made to it without any indication as to when they were made.

15. The father said in his trial affidavit that although the arrangements for the child to spend time with him again then commenced, difficulties began occurring.  

16. In her trial affidavit, the mother has continued to describe events by the dates that the child was coming back from spending time with the father. The mother has provided detail about the child continuing to return to her care in a nappy, when she had sent her in underpants. She observes that she noticed faecal matter around her bottom on occasion and red marks around her bottom. She also observes that she repeatedly noticed the child having red rash in her vaginal area as well. On these days, the mother took photographs of the child’s anus and genital area on her mobile telephone. A bundle of close-up photographs was adduced into evidence by the mother at the trial. To my untrained, non-expert eye, the redness in the pictures around the child’s anus and genital area and on her inner upper legs looks like nappy rash.

17. In her diary, the mother has some notes about these matters attributing the child’s condition on return to “[Mr Smoothe] not caring for her properly”. She does not say before 29 October, 2012, in her diary that the redness was unlike nappy rash. The mother also has diary notes saying that the child “begged” her not to take her to her father.

18. The mother said in her trial affidavit that on 28 October, 2012, the child would not talk to her sister after she was picked up from time at her father’s place. She had a bad rash again in her vaginal area and on her upper legs. A photo said to have been taken that day supports that assertion. The mother said she treated it with cream after the child had a bath as it was causing the child some discomfort.

19. In her trial affidavit, the mother then said that she took the child to see a doctor on Monday 29 October, 2012, because the rash she came back with the day before after spending time with the father was “unlike nappy rash”. She said that the child did have a bit of nappy rash on her legs but that “it didn’t look like the same redness that was in her vagina.”  The mother said she had to wait to take her to the doctor as they were not open on the Sunday. She conceded at trial that it was the first time she had taken the child to the doctor about the redness, ever, even though she says she had been seeing it for over a year. Importantly, and inconsistently with what was said earlier in her trial affidavit when referencing seeing rashes on the child in 2011, in her oral evidence at trial, the mother agreed that she had not taken the child to the doctor in 2011 as “[she] thought it was just nappy rash”.

20. She said the doctor examined the child for about five seconds and then prescribed a cream for the mother to buy at the chemist to apply to the rash. She said he prescribed Canestan or Hydozole (meant to be Hydrozole) cream. She said that he did not tell her that it was “just nappy rash”. She said he described the rashes by their location and their size. The mother said that she “genuinely believe[s] the rash around her legs was like the nappy rash that I have seen before as normal nappy rash, but I genuinely thought that the redness in her vagina did not look like just nappy rash”. The mother, however, exhibits information she has obtained about Canestan and Hydrozole showing them both to be creams for the treatment of nappy rash.

21. The mother’s diary has no note about this visit to the doctor.

22. The medical practice’s notes are in evidence. The note of Dr C of that consultation that day is in those notes. Relevantly, the note records:

    Mother say on Sun/when return from Father nappy rash, emotional (angry, sad, low mood), medial upper both thigh 7 cm diameter area red skin swelling. Also anal area now wipped (sic) properly at times/stool present.  [that should read “not wiped properly at times, I accept]

    On exam today/29/10/12

    Medial upper both thigh 7 cm diameter red skin swelling

    Minor nappy rash - pink 5 x 3 cm

    Treatment

    Canestan cream or hydrozole cream to try.

    review anytime advised Mother for any concerns

23. At the trial, the mother was asserting that the rash on the child’s upper thighs that day was nappy rash but that the rash on her genitals was not nappy rash. She was asserting that the Doctor’s opinion confirmed that, or at least supported that. When I pointed out to her that the doctor’s notes that she had exhibited to her affidavit, were not consistent with that assertion, she ultimately agreed that she was wrong about that.

24. The Department’s records show a notification made on 29 October 2012. It mentions the child returning from time with her father “with faeces on her clothes”, that she is tired and aggressive, angry and irritable. It mentions that she returns with an untreated rash and that the mother is seeking counselling for the child to address her exposure to domestic violence perpetrated by the father during his relationship with the mother.

The first alleged disclosure

1. In her trial affidavit, the mother then said that on Wednesday 31 October, 2012, she had bathed the child and dried her and had put her on the bed to grab her clothes. She said that when she sat in front of the child the child was “rubbing up and down her vaginal area”. She said she was using her right hand with the first two fingers held together. The mother said she asked the child what she was doing and the child said “that’s what my dad does”. The mother then said that in the week prior to this she had seen the child holding her crotch when going to the toilet and when she asked her then why she was doing that she said “Dad does that”. The mother said that her thoughts then were that the father must have been allowing the child to watch him as he went to the toilet and that the child might have been copying his actions.

2. There are notes in the mother’s diary about these things.

3. In her trial affidavit, the mother said that on Friday 9 November 2012 when she bathed the child, the child “was playing with her vagina with her fingers”. The mother said when she asked the child what she was doing she again said “That’s what dad does.” The mother said that she was not sure what to think or how to react. There is no note in her diary of this on that date. There is a reference on that date to the child’s toilet training going backwards at this time as she had been soiling herself since she came back from her father’s the previous weekend.

4. The mother said nothing in her affidavit of it, but on Saturday 10 November, 2012, she did not allow the child to go to her father’s for time with him pursuant to the Court order. In her diary, she noted that the child was sick that day and that she had a medical certificate for her. The mother exhibited to an affidavit she filed on 12 December, 2012 a copy of a letter from a Region B After Hours Medical Service signed by a doctor on 10 November, 2012. It simply said that the child had been examined on 10 November and in the doctor’s opinion she was “unfit to attend” the contact centre from 10 November to 11 November. The mother’s diary note for 11 November, 2012 simply says “Dreamworld”. The inference I draw from that is that she probably took the child to Dreamworld that day.

The first family report

1. On 14 November 2012, the mother and the child attended upon the family report writer, Mr M, a social worker with many years of experience assessing families and writing family reports for use in parenting proceedings in the courts. They saw him so that he could prepare a family report to assist her Honour, Judge Demack.

2. Mr M’s report of November 2012 was adduced in evidence.

3. Mr M reported that the mother had told him that she had stopped the child seeing the father in April that year because of “an alleged altercation with [the father] during a handover.”

4. Mr M began his reported opinions about the mother as follows:

   [The mother] presented in a terse fashion. She had difficulty explaining her views to any great extent and the views she did express were not indicative of any real insight.

5. He reports that the mother complained of the child returning from time with the father with “nappy rashes” (my emphasis) and “faeces on her” and that the father neglects her nutrition. She complained about the way he feeds her. Significantly, Mr M makes no report at all of any complaint about sexual abuse or touching of the child’s vagina or genitals. This is particularly significant as the mother said in her trial affidavit that the child had made relevant disclosures and touched herself in the genital area just days before the mother was interviewed by Mr M.

6. He reports that the mother could see no positives about the relationship between the child and the father. Mr M reports that he actually asked the mother if she believed it was better that the father did not see the child at all. He records her response in quotation marks as “yes I think so and another reason I left is the state of the yard and hazards around the property”. She is reported as thinking that the father does not actually care about the child but was, in bringing the Court proceedings, acting out of spite against the mother.

7. Mr M reports that the mother was negative about the father’s bond with the child. She is quoted as having said “when she talks about him she tells me that daddy is naughty and she doesn’t talk about him much”. She is quoted as saying that “she has commented to me on numerous occasions she doesn’t want to see him.” He reports that the mother attributed similar sentiments expressed by the child about her paternal grandmother as well, noting that the paternal grandmother was a woman with whom the mother also had her problems. The mother described the paternal grandmother as “controlling” and is reported to have said that she “lied about things”.

1. Mr M finished that part of his report about the mother by observing that when he asked the mother why she ever let the father have time with the child in the period after their separation, she responded with reference to an understanding that “the Courts would not allow there to be no visits at all”. He observes that the mother’s hope is that the father eventually gives up or that the times between which he sees the child eventually decline to the point that contact ceases altogether.

2. When reporting on his interview with the father, Mr M noted that the father said he was at a loss to understand why the mother had ceased his time with the child. His understanding that the mother has a good relationship with the child was recorded. He had no criticisms of the mother’s care of the child or of D from what he had seen.

3. Mr M reports that the father expressed the hope for a shared time parenting arrangement but had observed that the mother “doesn’t seem to want [him] to have any part in her life”.

4. The father is reported to have said of the telephone calls with the child that he could hear the mother in the background telling the child to hang up. I will return to this subject later.

5. Mr M reports a little further in the report that the father had told him that he thought that the informal arrangements for the child to spend time with him after separation had been working without too much difficulty until the mother just kept the child at Easter and gave him no reason. Mr M reports the father did recall an occasion at a changeover where he said that the mother “fired up” when he was asking for a bit more time with the child.

6. Mr M reports the mother telling him of the handover that I consider is the one that has been recorded and transcribed earlier in these reasons – the one about which I am satisfied the mother exaggerated her story about the father’s conduct.

7. Mr M observed the child leaving the mother and meeting her father. He said the child reacted “very happily” to the news that her father would be coming to play with her, being told by her mother at the same time that she would be leaving whilst the father was coming in. The child repeated that her daddy was coming in and showed no anxiety as her mother left and he came in. She was observed to run to his arms. Mr M reports:

   There was no doubt of the bond between them and no anxiety expressed in [the child’s] behaviour. [The child] played happily with her father under all observations over the course of the assessment. She was equally relaxed and comfortable with her mother.

8. In his conclusions and recommendations, Mr M clearly expressed concerns about the mother’s perceptions that the child had no bond with her father and about the nature of her own relationship with the father. He was clearly quite troubled by the view that the mother “would prefer [the father] had no relationship with [the child] with the hope that he will eventually lose interest”.  He concluded with the view that the father is a committed father and that there was an established bond between the child and him that had survived a “major breach in time in their relationship”. He recommended that the child spending two nights per week, coinciding with some of the time that she attends kindergarten, would be in her interests in order to establish a more secure bond with her father. That is what the father was asking for.

9. In his trial affidavit, the father said that again on Saturday 1 December, 2012 he was informed by the contact centre that the mother had told the centre that the child was so sick with an ear and/or throat infection that she was considering taking her to the hospital and that she would not be bringing her to spend time with the father. The father said the mother had told the centre that she had a medical certificate but that the centre had not sighted it. He then said that on Sunday 2 December he went to a Christmas Carol event at Movie World and saw the mother and the child, who he said “looked happy and healthy” and “didn’t look sick,” there enjoying the carols.

10. The mother exhibited to an affidavit filed on 12 December, 2012 a copy of what was described as a medical certificate signed by a doctor from a Region B after hours medical service. It says that the child “is receiving medical treatment for the period  30/11/2012 to 02/12/2012 inclusive” and “she will be unfit to continue her usual occupation”. It was signed on 30 November, 2012.

11. Such a medical certificate is of very little assistance to the Court in a matter such as this. To say that a three year old child “will be unfit to continue her usual occupation” is of no relevance in determining whether it is reasonable, having regard to the health and safety of that child, for a parent to withhold her from her other parent where a parenting order provides for that child to be spending time with the other parent. Parents should realise that and medical practitioners need to be particularly careful not to be inappropriately used as tools in parenting disputes.

12. In her affidavit filed 12 December, 2012, the mother said that although the child was happy to be at the event she was still sick and that they were only there because D was performing at the event. If the child was able to be there at all, then I am not satisfied that she could not have spent time with the father over that weekend, even for part of the time the Court ordered her to be spending with the father.

13. In her trial affidavit the mother said that on Monday 3 December, 2012 (when she had not been with her father on the weekend) the child looked sad when the mother was putting her to bed. The mother said when she asked her what was wrong, the child said that her dad is naughty and had hurt her and threw water in her face. There is a diary note in the diary for that date. It says nothing about the assertion that the child said that the father had thrown water in her face.

14. The mother said in her trial affidavit that on 9 December, 2012 the child again had a rash on her inner labia. A photograph was taken of the child’s genitals by the mother. It was part of the bundle tendered at trial.

15. On 12 December, 2012, the mother filed an affidavit in these proceedings in the FCC. She was unrepresented at that time and apparently drew her own affidavit.

16. In that affidavit, the mother was highly critical of Mr M’s report and the way she asserted that he had treated her. She said that she was treated in “an unprofessional manner” and that he did not seem particularly interested in what she had to say. She said the report “is a gross misrepresentation of what [the mother] have said” at the interview. In her trial affidavit, the mother goes into a lot more detail in respect of her criticism of her interaction with Mr M. She does this over two whole pages in that trial affidavit. In particular, she rejects his reporting that she asserted a belief that it was better that the father not see the child at all, saying that Mr M had said to her, “so you would prefer that [the father] not have anything to do with the child?” and that she had replied “If that is in the best interests of the child?” She denied ever saying that she would prefer the father to have no relationship with the child.

17. The mother went on in her trial affidavit to assert that she had actually tried to raise concerns about the child and sexual abuse with Mr M at the interview with him. In a very significant piece of affidavit evidence, the mother said that he asked her “Do you have any other concerns?” to which she replied “Yes, sexualised behaviour.” She said that Mr M “closed his eyes, swayed his hand from side to side and said “… other than that.”” She said in her trial affidavit that she could not believe that he just brushed this aside like that, and that as a consequence she did not get to tell him about the recent occasions that she said she had seen the child rubbing herself on her vaginal area and playing with her vagina with her fingers. I shall return to this when I come to Mr M’s oral evidence at the trial.

18. On this same issue, nowhere in the affidavit that she filed on 12 December, 2012 did the mother mention that the child had recently disclosed to her that her father had touched her in the vagina or in the genital area. Nowhere in that affidavit did she say she was concerned that the child had red rashes or redness around her genital and anal regions that the mother did not consider were nappy rash.  Given that the mother drew this affidavit herself, these are critical omissions, in my view.

19. The mother also filed an affidavit on 12 December, 2012 that had been sworn by her mother. It is eight pages long and contains evidence corroborative and supportive of the mother’s position in all respects. It, too, says nothing about any alleged disclosures or reporting of such disclosures made by the child to the mother of the father touching her vagina or genitals. It says nothing about concerns that the red rashes the child had been experiencing in the recent months or the year before were anything other than nappy rash. These, too, are critical omissions.

20. In her trial affidavit, the mother said that she made a notification to the Department on 13 December, 2012, and the Department’s records reflect the receipt of a notification about the child on 13 December, 2012. The information reported included that the child had been observed to rub her private parts and state “that’s what Daddy does”. However, the mother does not say that she made notifications to the police around this time, but Queensland Police Service (“QPS”) records reflect that the mother called the J Town Child Protection and Investigation Unit at around midday on 8 December, 2012 and reported that a few days after the child spent time with her father she began to “rub and hold” her private parts and that when the mother questioned the child about it the child said “that’s what daddy does”. In the mother’s diary, the only note on 8 December, 2012 says, “seen police officer at [I Town] in regards photos taken”.

21. The QPS records reflect that the child, the child, was interviewed by police from the J Town CPIU on Thursday 13 December, 2012. The mother’s diary mentions the J Town Police Station on that day. The records reflect that the child, the child, was interviewed by way of a recorded interview pursuant to s 93A of the Evidence Act 1977 (Qld) (“Qld Evidence Act”). No copy of the interview was adduced into evidence at the trial before me and I have not seen it. However, police records note that the child “was very restless and easily distracted” during the interview. Those records reflect that no disclosures were made, even on direct questioning. The same police notes say:

    Following the 9A (sic) reporting officer had a conversation with the informant who provided a slightly differing version of what had occurred to the version she had originally provided over the phone. During this conversation the informant stated that the child had been pretending to hold herself and wee and stated words to the effect of “that’s how Daddy does it”. The informant agreed that it is possible that the victim child may have seen her father go to the toilet at some stage and learnt this behaviour.

22. That interview that day and that conversation with the police officer was not mentioned in the mother’s trial affidavit.

23. The matter was before Judge Demack in the FCC again on 14 December 2012. The mother said in her trial affidavit that she had someone from ATSILS attend Court with her as her “friend of the court” who spoke to the Court on the mother’s behalf. She said that the person told the Court of notifications having been made to the Department but there is absolutely no evidence that the Judge was informed by affidavit or otherwise that the child had been interviewed the day before by Police after allegedly disclosing possible sexual abuse to the mother.

24. In her trial affidavit, the mother specifically referred to her December 12 2012 affidavit and the fact that she had not raised her “concerns and fears regarding the child and her father”. I understand her to mean her “concerns and fears” that he was sexually abusing the child. She attributed that critical omission to going to the Southport Community Legal Centre and being told by a solicitor that she should have a solicitor raise “these allegations” and being warned that if she raised “these allegations” she could lose custody of the child. She said that she was “too afraid” to raise the concerns in that December affidavit because of that. The mother did not adduce any evidence from that Legal Centre or the solicitor who had allegedly given her that advice to corroborate that evidence. The mother was waiving client legal privilege. There is no reason she could not have sought to adduce that evidence from the person alleged to have said that to her.

25. It appears the FCC Judge reserved her decision on 14 December 2012 as the orders that she made bear the date 18 December 2012.

26. In her trial affidavit, the mother said that on 15 December 2012, her eldest daughter, D, was spending time with her maternal grandmother. The mother said that she received a call from her mother who said she needed to talk to the mother about something D had said. The mother said that when she arrived at her mother’s home, her mother told her that the father had touched D inappropriately. The mother said that she then sat down privately with D and spoke to her. She said she asked D “Did you tell Grandma [the father] use (sic) to do things to you that you didn’t like?” She said “D said “Yes””. She said she asked her what he did and the child replied “when he would pin me down he would tickle me in my private part”. The mother said that she then notified the Department of this.

27. QPS records reflect that the Department then passed on this notification to the police on 18 December, 2012.

28. The mother said in her trial affidavit that on 16 December 2012 the child came back from time with her father with “a bad rash on her inner labia area of her vagina”. A photograph she said she took of the child’s genitals that day was part of the bundle of such photographs that was adduced into evidence at the trial. The photograph shows red rash, which again looks like nappy rash to my untrained eye, around the child’s anus, across her perineum and all around her vulva, including her vaginal orifice and her outer and inner labia. I consider it incorrect and misleading to assert that the rash was only on her inner labia.

29. The mother’s application for a final protection order was back in the I Town Magistrate’s Court on 17 December 2012. The mother’s diary has a simple note that she was in the I Town Court for mention only at 2 pm. In her trial affidavit, the mother said that on 17 December 2012, a solicitor from the Legal Aid Office who was representing her on that matter told her that there was no point continuing with the application because she would not win. The mother said that she said to the solicitor “please fight this”, but that the solicitor replied “I’m not going to. There’s no point doing it because you wouldn’t win.” The mother said she begged the solicitor to do something as the father had committed acts of domestic violence. The mother then said in her trial affidavit that she then felt that she could not pursue the application for a protection order on 21 January 2013, the date the matter was set down for a hearing. The mother said that she felt that she had to withdraw the application then even though she was still afraid of the father.

Increased time to the father

1. On 18 December, 2012, Judge Demack of the FCC made another interim parenting order that increased the child’s time with the father such that she could spend from Friday afternoon until Sunday afternoon with him on up to three weekends each month and from Friday afternoon until Saturday afternoon on two weekends each month, as well as some time on Christmas Day 2012 and the following Easter. The matter was further adjourned to 19 June, 2013.

2. The mother said in her trial affidavit that on Christmas Eve 2012, the child, the child, told her that her father had “choked me like this” whilst demonstrating with her hands around her neck. She said the child also told her “Dad touched my butt”.

3. The mother said that she then sought out support from Bravehearts and from an indigenous organisation called KALWUN.

4. In her trial affidavit, the mother then said that on 6 January, 2013, after her bath, the child was on her bed waiting for the mother to get her clothes out to put on her. The mother said that as she approached the child she witnessed her “inserting her fingers into her vagina”. The mother said that she asked her what she was doing and she said “That’s what dad does, then I go ouch ouch ouch”. The mother said she notified the Department of this. The Department’s records reflect that she did.  

The child, D’s, interview with police

1. The mother said in her trial affidavit that on 11 January 2013, that she took D and the child to the K Town Police station as she had been requested by police so that D could be interviewed by police about the disclosures she was reported to have made in December.

2. D was interviewed that day by a police officer and the interview was recorded pursuant to s 93A of the Qld Evidence Act. A copy of the recorded interview was played at the trial and became an exhibit. The child answered the police officer when asked what she had come to talk about with “about how [the father] used to play with me and hurt me”. She went on to say that “he used to pin me down and he pretended to tickle me but he tickled me in the private parts like this and around it and he also pinned me down until I cried”. She demonstrated a motion with her right hand that was like a waving motion, with the palm of the hand facing forwards and the fingers all bending forwards up and down at the same time. She reported that one time the father had tied her hands up and left them tied for a time before undoing them. She then said she could not remember anything else.

3. She said that the tickling used to happen in the lounge room at the father’s house. She said it happened “around when I was 6 or 7 or 8, I think”. When she was asked if she knew when it was she then said “not really, I think 7 or 8, I don’t know”. She said it happened after his work. She was asked where her mother and her sister were when this happened and she said she could not remember.

4. The child was asked to pick one time when it happened and to tell the police officer about it. She said “well, he pinned me down like he would hold my arms and then tickle me like around here (holding both her hands near her stomach) and around here (holding both her hands near her lap/groin area) and I started getting really uncomfortable and screaming and yelling, but he wouldn’t stop and then I said “stop” and screamed and then he walked off”. She said she was scared of him and did not want to go anywhere with him because he pinned her down until she cried. She could not recall any specifics such as what she was wearing at the time he did it, what was on the TV at the time, where her mother was, what time of day it was, or what season of the year it was. She was asked what happened after he walked away and she said she thought she sat back on the couch. She said that she thought mum got dinner ready then. She could not remember what happened then.

5. She was then asked again how he would pin her down and she said “like, he would put me down, he would hold my arms, he would tickle me everywhere, and he wouldn’t let me up”. The police officer then asked “when you say he would tickle you everywhere, where would he tickle you?” The child then said “well around here (showing around her stomach area with her hands) and then sometimes around here (showing around the top of her chest and just below her neckline from shoulder to shoulder) and I didn’t like it”. The officer said then “well, so pretty much you just didn’t like him tickling you?” to which the child says “yeah and pinning me down”.

1. Counsel for the mother did not positively assert to Mr M that he was not telling the truth about that or that he was recounting those matters inaccurately, but the inference that he was being dishonest about it was clear in counsel’s repeated questions of him as to why he did not tape record his interviews with the mother so that there could be no dispute about these types of things.

2. I was completely satisfied with the honesty of Mr M’s evidence. I accept his assertions as to what the mother said to him during both of the interviews she had with him in the preparation of the two family reports. As I have already said, I consider she dishonestly withheld from Mr M the fact that her partner was in prison at the time of the second interview when asked why he was not with her. I do not accept as truthful the mother’s denials that she said the things attributed to her by Mr M. I most certainly do not accept as true the mother’s evidence that Mr M was not interested in hearing her concerns about alleged sexualised behaviour and I am satisfied that the mother’s evidence about that was false and even malicious in its intent in respect of Mr M. 

3. The mother’s credibility suffered across so many evidentiary issues in this matter. Indeed, in respect of the alleged sexualised behaviour and disclosures of the child, the evidence appears to be that the first of such behaviour said to have been observed by the mother was the child holding her hands at the front and to the sides of her groin area, pushing her pelvis forward, saying something like “this is what daddy does”. Even the mother herself is reported to have conceded to investigating police who she made reports to soon thereafter that the child could well have been mimicking the actions of her father, having seen him urinating whilst standing. From there, according to the mother, the behaviour of the child and the disclosures she made, escalated.

4. The difficulty for the mother, given the damage to her credibility across so many evidentiary aspects of this case, is that such damage makes giving any credence to the evidence she has given about the child’s ongoing disclosures impossible in my judgment.

5. The child did not make disclosures to the police in the two recorded interviews that are in evidence; indeed, she plainly exculpated the father in the second of those. Then, within days of that occurring and the police and the Department again determining not to proceed any further with the investigation, the child, in an apparent distressed state, tells a parent helper at her school (the first time that she has allegedly disclosed to a third, unrelated party) that she “didn’t want to go to Dad’s … because he hits [her] and plays with [her]” then rubbed her “private area” when the parent asked her what she meant by “play”. 

6. Within a couple of weeks of the school receiving that information from that parent helper, where the mother’s friend’s mother is the senior clerical employee in the administration of that school, the mother asks the school can the teacher’s notes kept on the school’s file be subpoenaed to Court. As I have already said, I am satisfied that it is more likely than not that the mother knew the information about the disclosure to the parent helper would be in the material produced by the school pursuant to the subpoena.

7. Given the mother’s apparent questioning and re-questioning of the child evidenced by the “stage-managed” video recorded “disclosures”, and her apparent inability to persuade the Court that the father’s time with the child should be supervised, the likelihood that the mother prepared the child to behave as she did at school that day of 7 March, 2014, and for the disclosure at the school to the parent helper, cannot be ruled out, in my judgment. Even if the mother was given the benefit of the doubt about coaching the child that day, particularly as the child’s behaviour exhibited distress which I accept would be very difficult to “coach” in a child, it is more likely, I consider, that the child was acting out of distress at being made the object of such conflict between the parents and acutely conscious of the mother’s feelings towards and beliefs about the father.

8. There was some other very relevant evidence about this, in my judgment. Firstly, it is to be remembered that the mother’s case is that the sexual abuse of the child by her father has been systematic and that it continued on from probably around 2011 through to 2014, the year of the trial, the child’s first year in school. The mother’s case is that the child constantly and repeatedly reported it to the mother in 2013 and then again after her time with the father recommenced in 2014 and that along with the constant reporting she constantly expressed opposition to the idea of going to spend time with her father.

9. The child’s teacher gave evidence at the trial. Although she gave evidence by telephone, she impressed me as genuine, honest and particularly candid. She told the Court that the child, like others in the class (with a large majority of children from separated parental relationships), demonstrated some separation anxiety from her mother. The teacher said drop offs at school from her mother’s place were a little bit of a problem, but that she, the teacher, was able to manage that reasonably successfully and get the child to settle down. The teacher said the child had never become so distressed during the day at school that she had to be sent home.

10. About the day of 7 March, 2014, the day of the reported disclosure to the parent helper, the teacher noted that the child “cried multiple times during the morning session” and said “I just want my mum” as well as “I have to go to Dad’s”. The disclosure to the parent helper came after the morning tea bell when the child was seen crying again and the parent helper volunteered to take her to get a drink of water and then to the toilet. The teacher’s notes also reflect that the parent helper brought the disclosure to the teacher’s attention upon return to class and, finally for that day, that the child wet her pants at 2:45pm just before the afternoon bell and that her father was told of this when he collected her.

11. In her oral evidence, the teacher went on to say that the child did seem happy to go to Dad when he arrived there to pick her up that day. She said she was not upset or distressed as she went to him. She was not backing away in fear. She was not saying “no, no, I don’t want to go”. She was not saying “no, no, he’s going to hurt me again”. She said the father has never been other than respectful to the teacher and that she has seen the child hug her father at times when he has collected her from the class, though she could not remember whether she did hug him on 7 March, 2014.

12. In his cross-examination at the trial, Mr M was asked to express an opinion about the congruency or otherwise of the child’s observed and reported behaviour when going to her father and in his company and the allegations being made by the mother about the child’s alleged opposition. In respect of the first time he saw the child for the first report, Mr M said that the child was quite happy to see her father and acted consistently with what she had said about being happy to see him. As to the second interview, Mr M said as a general assertion that most children who are having difficulties with handovers between their parents (ie not wanting to go to the other parent) replicate that in the assessment process. In this case, he said he did not see that in the child. He went on to say that if the child was being sexually abused on a repeated and systematic basis by her father as the mother alleges that “one might expect it to be exhibited in her behaviour”. He did not see any such indication exhibited in the behaviour that he saw. Her apparent happiness to go with her father from school, witnessed by the teacher when the father was regularly collecting her from the school in 2014, is not congruent with fearful opposition to spending time with the father.

13. The teacher also asserted in her oral evidence that she had never seen any evidence of overt sexualised behaviour in the child in the time that she had the child in her class that year. Sexualised behaviour has only been observed and reported upon by the mother.

14. I do not accept the reliability of the child’s reported disclosure of 7 March, 2014. I do not accept that the child was truthfully disclosing to the parent helper something that had actually happened to her. By that point in time, she had a number of conversations with her mother where her mother had her say that Daddy had touched her on the fanny and she had heard at least one conversation between her mother and her sister, D, where D had said that she had told police that the father had tickled her “in the fanny”. There can be no doubt that the child knew the things that her mother was expecting her to say about this issue. She is even reported to have said to the parent helper that she lived with her dad “until he did something to her sister”. That idea could only have come from people within the mother’s household.

15. As for the disclosure made by D, I also do not accept its reliability. The maternal grandmother gave evidence in her trial affidavit filed 23 September, 2014 of the occasion on or about 15 December, 2012 when D is said to have disclosed to her about the father tickling her “down there” and pointed to her “vagina”. In her oral evidence, the maternal grandmother, who agreed that she considers the father is a paedophile who should go to prison and that she already believed as at 15 December, 2012 that he had sexually abused the child, tried desperately to advance her daughter’s case, in my judgment.

16. She asserted in her affidavit that D had said, when she asked her that day what was wrong with her “I’m worried for the child”. The grandmother said she asked her why and the child responded that when they lived together with the father he was nasty to them and that “even when he was playing, he was only pretending”. The grandmother then said that D said the father would “hold us down and would not let us up until we started to cry or scream. He would get angry with us and say we were no fun at all”. She allegedly went on to say “Once when [the father] held me down he was pretending to tickle me, but his hand was down there.” When asked “where?” the child is reported to have pointed “with her finger to her vagina” The grandmother went on to say she called the mother and told her and she reported it to the Department.

17. The Department’s record of the notification reflects the notifier (presumably the grandmother) telling them that D reported “following questioning”.

18. As were the police after they interviewed D, I, too, am not persuaded that what D disclosed was not just innocent playful tickling by the father in the presence of her mother, who was sometimes also involved in such tickling by the father. I am also not satisfied that the concept that the father “tickled” D on the outside of her clothes and around her genital area with inappropriate sexual intent, is not one put into the mind of that child by her mother and/or her maternal grandmother who were determined to build a case of sexual abuse against the father.

19. The mother’s case against the father was quite unrelenting, it evolved even during the trial. The father had always maintained that on Sunday 23, February 2014 he had taken the child to a sandy “beach” by the side of a river close to where they lived for a play in the sand and the water. His evidence was that others had accompanied them and that he had left to deliver the child back to her mother, first stopping by home to quickly put her in the shower to wash her off.

20. The father’s friend who went with them that day, provided an affidavit of evidence that was filed on 11 April, 2014, soon after the date. He said the child was there with her father and a few others and playing in the sand and the water and with G, the father’s dog. He said that the father left reasonably quickly when he noticed that it was almost 4.00pm to get the child home, showered, changed and back to her mother.

21. At first during the trial, the mother, through her counsel, maintained the case that she did not believe the father and his witness that they had been to the beach that day. She maintained that they were lying about that to cover up sexual abuse of the child, perpetrated that day. As the trial proceeded, and the father’s evidence about the afternoon at the “beach” was tested, the mother, through her counsel, informed the Court that she now accepted that the father and the child had been to the beach. Indeed, the mother’s counsel ended up challenging the father with the incredible proposition that if he had not sexually abused the child that day, he had somehow deliberately caused her to have reddened skin around her genitals so as to provoke the mother into making another allegation that he had sexually abused the child, so that she would look bad in these proceedings. Not unsurprisingly, the father flatly rejected that assertion.

By what legal principles does the Court deal with these allegations of sexual abuse in this case?

1. Sadly, it is a fact that this Court hears a lot of parenting orders cases where allegations of sexual abuse are levelled by one parent against another. As I have observed in numerous other judgments, the High Court has determined that parenting orders cases are not about enforcing a parental right to have a child live with or spend time with a parent but rather, the Court’s duty in such cases is to determine and make such orders as, in the opinion of the Court, will best promote and protect the interests of the child. In doing that, the High Court acknowledged, the Court will:

   give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access [as were the terms used at the time of that judgment], but because it is prima facie in the child’s interests to maintain the filial relationship with both parents.[1]

   [1]M v M (1988) 166 CLR 69 at page 76.

2. In the course of its judgment in that same case, the High Court also relevantly observed that:

   …the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child.  The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.[2]

   [2]           At page 76.

3. The Judges of the High Court also said:

   …the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.  The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.[3]

   [3]           At page 75.

4. It needs to be said that the High Court’s reference to “the paramount issue which [this Court] is enjoined to decide” is reference to the statutory requirement that the Court’s task in determining the proper parenting orders to make in respect of any child is to be undertaken with mandatory regard to that child’s best interests being the paramount consideration (see s 60CA of the Family Law Act 1975 (Cth) (“the Act”)). In that respect, the Act also sets out a list of matters that must be considered by the Court in determining what is in a child’s best interests (see them set out in s 60CC).

5. Just as the High Court acknowledged in that decision 27 years ago that disputed allegations of sexual abuse will naturally have an “important, perhaps decisive, impact” on the decision, it is clear that one of the central issues in the determination of the parenting orders in this case is the alleged sexual abuse of the child by her father. Findings in respect of those allegations will be, in my judgment, centrally important, though not necessarily decisive, in determining the proper parenting orders to make in this case.

6. Notwithstanding the number of cases involving allegations of sexual abuse heard each year by this Court, in deciding each individual case such as this one, it is again worth reflecting upon the seriousness of the issue. Fogarty J, a former Judge of this Court, said in his judgment in the Full Court decision of N and S and the Separate Representative (1996) FLC 92-655 at 82,709:

   It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.

7. That statement remains “as poignant and relevant” today as the Full Court said it was ten years ago in W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235. That said though, significantly, the High Court went on in M v M to expressly say (at pp 76-77):

   In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p 362. There Dixon J said:

   The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

8. That test, known as the “Briginshaw test”, is now given legislative force in s 140 of the Evidence Act 1995 (Cth), which provides:

   s 140(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)    the nature of the cause of action or defence; and

   (b)    the nature of the subject matter of the proceeding; and

   (c)    the gravity of the matters alleged.

9. The High Court in M and M continued, (at page 77) to say:

   In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.  After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare.  The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.  In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.

   ….

   The test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse (my emphasis).

10. In W and W (Abuse allegations: unacceptable risk) the Full Court discussed what it called ‘the unacceptable risk test’ and said (at para 111):

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

1. At paragraph 105 of that case, their Honours of the Full Court, referring to that judgment of Fogarty J in N and S and the Separate Representative, said:

   Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:

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

2. Accordingly, pursuant to statute and authority, all of the evidence in this case must be considered and weighed in the light of the “primary” and “additional” considerations mandated by s 60CC of the Act in determining the parenting orders that are in the best interests of the child, with particular focus being on determining whether she will be exposed to an unacceptable risk of harm by way of sexual abuse, or otherwise, in her father’s care.

3. Of course, if I accepted as credible all that the mother said of the child’s alleged disclosures and if I accepted as reliable that which the parent helper reported the child said to her on 7 March, 2014, the determination of unacceptable risk would not be too difficult in this case. However, plainly stated, I do not accept the mother’s evidence about the child’s alleged disclosures and behaviours to be credible, nor do I accept that they reliably depict the circumstances in which the child is said to have made disclosures to her mother. Similarly, I do not accept the evidence of the child’s report to the parent helper to reliably reflect actual events remembered by the child being reported by the child.

4. In this case, I am not satisfied that the child, the child, faces an unacceptable risk of being sexually abused by the father whilst in his care. Indeed, though I am conscious of the fact that the authority I have referred to above permits me not to have to go any further in respect to findings about the alleged sexual abuse, I am quite prepared to say in this case that I am satisfied that the father has not sexually abused the child at all.

5. My principal responsibility now in determining what parental responsibility orders and what orders governing the child’s living arrangements are in her best interests will be discharged against these findings and my satisfaction that the mother’s conduct since 2011 has been founded upon a complete absence of any commitment to, or belief in, the idea of it being in her children’s best interests to maintain meaningful relationships with their fathers. In particular, in the child’s case, the mother has, since the time she learned that the father was seeking to have the child spend more time with him than the 24 hours each week that the mother was then prepared to let him have, conducted herself in a way calculated to try and get him out of the child’s life completely. She brought a spurious family violence application against him when he was merely trying to have her served with his initiating proceedings. She then blamed her then lawyer’s alleged lack of courage for the fact that she eventually withdrew the application just prior to it being heard at a defended trial.  She brazenly expressed the desire that the father would give up and go away to Mr M when first interviewed by him for the family report, later accusing Mr M of unprofessional conduct, a lack of expertise and, by inference, dishonesty after becoming represented by a barrister who Mr M pointed out has made the same complaints about him in other matters.

6. I am satisfied that when the mother’s arguments that the child’s time with the father needed to be supervised gained no traction with the Court, the mother escalated the level of her complaint about the father’s parenting capacities to include the asserted belief that he was and had been repeatedly and systematically sexually abusing their little girl. A more serious allegation against a father could scarcely be made. To make such allegations falsely, or, at least, without any rational substance, to serve the desired end of permanently restricting your child’s relationship with her father is reprehensible and demonstrative of your own attitude and capacity as a parent in respect to the critical responsibilities of parenthood – the physical and emotional nurturing of your child until they reach their own independence.

7. I could hardly find, against this factual background, that the child’s right to a meaningful relationship with both of her parents will be respected, facilitated and encouraged by the mother if I was to put orders in place that the child continue to principally live with the mother but spend substantial and significant time with her father around that. That is why I will not be doing that.

8. Mr M was asked some questions about the father’s capacities. He reported that the father had been complimentary of the mother and the quality of the care she gave the child when he interviewed him. Mr M said that he had not been alerted to any idea that the father was motivated by “payback” for the mother. Mr M said he was not sure that the father was a very emotionally supportive person but he was confident the father would support orders that the Court makes. Indeed, Mr M agreed with the proposition put to him that if the Court finds that sexual abuse has not occurred and that the mother has been emotionally harmful to the child in the way that she has acted throughout this matter that it would be best to change the principal care arrangements for the child because it would be very detrimental to her relationship with her father to leave her living in the current arrangement. Mr M said, in considering that question of moving the child to the father’s principal care, he was not aware of any specific concerns that the father cannot care for the child. He said that whilst the father apparently lacked the capacity to talk in detail about his emotions, that he did not think the father was necessarily unable to address emotional issues the child might have as she grows. Mr M said that he thought that whilst the father might need assistance in understanding what might be difficult for the child in coping with such a transition, he would understand her problems. Mr M expressed the opinion that the father does have the capacity to turn his mind to the issues and to what assistance he might need.

9. The father’s new partner gave evidence and was cross-examined. She and the father began their relationship in early 2014 and she and her two boys moved in with the father in early November 2014, not long before the trial. When her boys are in her care on the week about basis, they sleep in bunk beds in one room of the father’s house. The child otherwise has her own room.

10. The father’s partner runs her own small cleaning business which has a couple of contracts to regularly clean some offices. She does cleaning for real estate agents in property management as well. She has two staff who work for the business. When she has her boys in her care, after she takes them to school she works for four hours and then finishes. When they are not with her she starts earlier in the morning and still finishes after four hours.

11. The father gave evidence that he mostly manages his business and has employees doing the work on the tools. He starts work most days at around 9.00 am and finishes around 2.00pm or 3.00pm in the afternoon.

12. The father’s partner knew about the allegations of sexual abuse levelled at the father in this case. She made it clear to the Court that she had no issues about the father’s behaviour with her or her boys. She said that she had absolutely no cause to believe that he had sexually abused his daughter and did not believe that he had. Nevertheless, she expressed the clear position that she would feel very comfortable taking a stand against any behaviour he demonstrated that might be abusive.

13. I considered the father’s partner to be a very honest, thoughtful person who was likely very capable of observing and picking out any worrying signs that she saw in the father’s behaviour. She had seen none, she said. She was aware that a change in the child’s living arrangements would be a big step for her, for the father and for their blended family unit but she expressed complete support for the father in his determination to have the child live in his principal care.

14. The paternal grandmother also gave evidence for the father. She was cross-examined by counsel for the mother. I considered her to be a thoughtful, responsive witness. She and the paternal grandfather live not far from the father on the northern end of the Region B. She has been helping her son care for the child, as he has needed her assistance, over the last few years, including by taking her to swimming lessons for a time at one point. She expresses happiness with the idea of continuing to support the father in caring for the child if he needs her help in the future. I am satisfied that the relationships that the child has with her and the paternal grandfather are indeed appropriate grandparent-grandchild relationships.

15. I am also satisfied that the father’s new partner and his mother have a good relationship and that will assist the father in ensuring the child is appropriately cared for at all times when she is in the father’s principal care.

16. I am satisfied that the father will receive useful and relevant assistance from his parents and from his partner in caring for the child. I am satisfied that the father, assisted by his partner and his parents will be able to sensitively handle the child’s transition to his principal care, where the move is likely to be difficult for the child in the first instance.

17. R’s relationships with her mother and her older half-sister are, I am satisfied, strong ones. Moving her from her mother’s principal care to her father’s principal care and from living principally with her sister will have its impacts upon her. I have considered those likely impacts and have determined, on the evidence, that the father will, with assistance, be able to manage those sensitively. The orders I will make will provide for the child’s relationships with her mother, her sister and her maternal grandmother to continue. I am satisfied, as Mr M was, that the father will respect the Court’s orders and will facilitate those relationships without seeking to undermine and discourage them.

18. Mr M did say that he thought it might be a good idea to keep the child at the same school that she was attending. He was not, however, aware of all of the matters pertaining to the school, the mother’s relationship with the school, and the father’s relationship with the school that I was, after seeing and hearing all of the evidence. I was satisfied that despite the best of objective intentions, the fact that the mother of one of the mother’s best friends was the senior clerical officer working in the administration of the school below the academic staff, made it difficult for the father to interact with the school without facing direct and indirect prejudice. I do not consider that it would be in the child’s best interests to continue attending that school in the future, living in the principal care of her father.

19. The father, without any apparent malice towards the existing school in my view, did express a desire to enrol the child in another State School somewhat closer to where the family will continue to live if she is moved into his principal care. I understand the father’s feelings about that in the circumstances. The child will now be in grade two. I consider that she will be able to cope with a transition from her current school to a new school and will leave that to the father to decide as part of the sole parental responsibility that I have also determined he should have.

Parental Responsibility

1. Despite the presumption in favour of equal shared parental responsibility being in the best interests of the child (s 61DA of the Act), I am satisfied that it is displaced in this case. First, the evidence satisfies me that the mother has emotionally abused the child by her behaviour with the child surrounding the allegations that the father sexually abused her. Second, I do not consider that requiring them to equally share parental responsibility for the child pursuant to a parenting order would be in the child’s best interests in the foreseeable future having particular regard to the requirements of s 65DAC of the Act. I do not accept that the parents could genuinely work together in jointly making decisions about the “major long-term issues” in the child’s life (as that term is defined in s 4 of the Act).

2. The parenting order I will make will confer sole parental responsibility on the father subject to him having to consult with the mother and having to take her views into account when he makes such decisions.

Live with and spend time with

1. The parenting order I will make will provide for the child to live with the father. It will provide for the child to start spending time with the mother every other weekend during school term (after a short period of a few weeks where she does not spend time with the mother, just to provide for a period of adjustment into the father’s household) and for half of the school holidays.

2. The order will provide for the child to spend time with the mother from Thursday after school to the next Monday morning before school. That way the mother will continue to be involved in the child’s daily routine, including on school days. She will be able to attend the child’s school as any parent of a child attending that school is welcome to.

Trial – Costs Applications

1. As I have already observed, on the first day of the trial the mother’s application seeking an adjournment of the trial that had been filed a few working days before the trial was due to commence was heard.  The mother sought an adjournment on the basis that she had made applications to the High Court for special leave to appeal against orders of the Full Court and for leave to file those applications out of time. Her adjournment application was dismissed by me at the time.

2. On the second day of trial the mother made another application. This application was made pursuant to s 69ZT(3) of the Act for the provisions of the Evidence Act 1995 (Cth) to be applied in this case. That application was also dismissed by me at the time.

3. The father sought an order that the mother pay his costs of and incidental to those two applications I dismissed.  I informed the parties that I would deal with those in my judgment.

4. Of course, the general position, contained in s 117 (1) of the Act is for each party to proceedings under the Act to bear his or her own costs. That is subject to a discretion to make such order as to costs as the court considers just where the Court is of the opinion that there are circumstances that justify it in making a costs order.

5. In the circumstances, I consider the adjournment application at the start of the trial to have been misconceived, ill thought out and frivolously made. As I said at the time, I was satisfied that the three applications to the High Court were doomed to fail and were no basis for adjourning the trial. That adjournment application caused the trial to go for one whole day longer than it would otherwise have gone for.

6. Importantly, the father and the mother were both paying for the legal representation themselves without assistance from the Legal Aid Office Queensland. The father opposed the adjournment application and was wholly successful in doing so. I know not much of the financial circumstances of each of the mother and the father, save enough to say that I am satisfied that neither of them has a lot of assets.

7. I am, nevertheless, quite satisfied that a costs order should be made in respect of the adjournment application that was dismissed and I will order that the mother pay the father’s costs of the attendance of his counsel and solicitor for that first day of the trial, agreed by them or assessed on a party and party basis pursuant to the Rules.

8. I am satisfied that is a just order in the circumstances. I will not order the mother to pay the father’s costs of and incidental to the oral application made on the second day of the trial. I am prepared to say, though, that such applications should be made when they are going to be made in a parenting orders trial as part of the preparation for trial and well before the trial commences. I consider that an order for the mother to pay the father for his costs of one day of the trial is sufficiently just, particularly having regard to her financial circumstances and the fact that she is going to be having still to care for the child and provide financial support for her into the future.

9. I make the parenting orders set out at the commencement of these reasons.

I certify that the preceding three-hundred and fifty (350) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 28 April 2016.

Associate: 

Date:  28 April 2016