Somers & Somers (No 2)

[2010] FamCA 1152

FAMILY COURT OF AUSTRALIA

SOMERS & SOMERS (NO. 2) [2010] FamCA 1152

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Best interests – Allegations of abuse

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336
R v B (1996) FLC 92-658
W and W (2001) FLC 93-085

APPLICANT: Mr Somers

RESPONDENT: Ms Somers

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: MLC 2109 of 2009

DATE DELIVERED: 17 December 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 29, 30, NOVEMBER 2010; 1, 2 DECEMBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS BENJAMIN

SOLICITOR FOR THE APPLICANT: KLIGER PARTNERS

COUNSEL FOR THE RESPONDENT: MS ATHANASOPOULOS

SOLICITOR FOR THE RESPONDENT: PERISIC & THOMAS LAWYERS

COUNSEL FOR THE RESPONDENT: MR WHITCHURCH

SOLICITOR FOR THE RESPONDENT: SAMANTHA WARD PTY

Orders

1. That all existing parenting orders are forthwith discharged.

2. That the father have sole parental responsibility for major long term decisions relating to the education and health of the child L born … March 2008.

3. That save for the responsibilities referred to in paragraph 2 hereof, the parents have equal shared parental responsibility for the child.

4. That the child live with the father.

5. That the child spend time with the mother as follows:

   (a)until the child commences kindergarten in the year immediately preceding her commencing school, from 9.00am on Thursday until 6.30pm on Friday in each week commencing 23 December 2010;

   (b)once the child commences kindergarten, for the same length of time in each week as that set out in paragraph 5(a) hereof but on days that, in so far as is practicable, do not clash with her kindergarten days, commencing in the first week of the kindergarten year.  To the extent that there is no agreement between the parents, the times set out in paragraph 5(a) hereof shall apply regardless of the kindergarten arrangements;

   (c)once the child commences primary school, from the conclusion of school on the Friday until 6.30pm on the Sunday of each alternate weekend commencing the first Friday in Term 1 of that first year;

   (d)once the child commences her third year at school and beginning with the holidays at the end of Term 1 of that year, for one half of all school holidays by agreement and failing agreement the first half;

   (e)from 12 noon on 25 December 2011 until 6.30pm on 26 December 2011;

   (f)from 9.00am on 24 December 2012 until 12 noon on 25 December 2012 and for a similar period in each alternate year thereafter; and

   (g)from 12 noon on 25 December 2013 until 6.30pm on 26 December 2013 and for a similar period in each alternate year thereafter.

6. That for the purposes of paragraph (5) hereof, the mother collect the child from the father’s residence at 9.00am on the Thursday and the father or his nominee collect the child from the mother or her nominee at the C Shopping Centre at 6.30pm on the Friday.

7. That for the purposes of all kindergarten and school holiday periods in paragraph (5)(b) hereof, the time between the child and the mother shall not be suspended and shall continue throughout those weeks.

8. That for the purposes of paragraph 5(c), the times allocated shall continue during school holidays until paragraph 5(d) commences.

9. That the mother is restrained by injunction from taking the child to any medical practitioner, hospital, maternal and child health centre, psychologist or any other health professional without first seeking the permission of the father except in a situation of an emergency.

10. Notwithstanding paragraph (2) of these orders, subject to the views of any health professional or teacher or principal, the mother shall have the right to attend any medical consultation or kindergarten or school event.

11. That the father authorise any school or kindergarten to provide to the mother at her expense, copies of all school reports, newsletters, photographs and any other information normally provided to parents.

12. That to avoid uncertainty, the mother is entitled to attend all school activities subject only to the views of the principal of the school.

13. That in exercising his parental responsibility in relation to major long term decisions concerning education and health of the child L, the father shall keep the mother informed in writing of all decisions made immediately after that decision.

14. That each parent inform the other as soon as practicable, of any major illness or accident suffered by the child whilst in his or her care. 

15. That pursuant to s 65L of the Family Law Act 1975 (Cth), shall as far as practicable, be supervised by a family consultant appointed by the Manager of Child Dispute Services for the Melbourne Registry of the Court and the appointed family consultant provide such assistance as is reasonably requested by a party in relation to the compliance with and carrying out of, these orders.

16. That the father and the Independent Children’s Lawyer have permission to provide a copy of these orders to:

    (a)       the R Medical Centre;

    (b)       the P Day Care Centre;

    (c)The Department of Human Services (and in respect of that Department, a copy of the reasons for judgment published this day); and

    (d)Any other health professional currently dealing with or in the future dealing with, the child.

17. That the Independent Children’s Lawyer be discharged from the proceedings.

18. That the mother and the father each attend a parenting course nominated by the Independent Children’s Lawyer.

19. That should any party desire to make any application for costs arising out of these orders, they do so by written submission to be filed no later that Friday 14 January 2011 such written submission to be served on all other parties and the original submission filed with the Court endorsed with such service.

20. That should any party receive any submission relating to an application for costs, they shall have 14 days thereafter to file and serve any response and any applications for costs shall be determined in chambers.

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2109  of 2009

MR SOMERS

Applicant

And

MS SOMERS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is a difficult parenting dispute involving L who was born in March 2008 to Mr Somers (“the father”) and Ms Somers (“the mother”).  The dispute is where the child will live in the future.

2. Since her birth, L has been the subject of the dispute between her parents.  The mother has periodically made accusations of sexual abuse of the child by the father.  I find there is no substance in those allegations.  More concerning is the fact that the allegations are ongoing.  The continuation of the child living with her mother places her in a position of unacceptable risk.  The risk is that she will be subjected to unnecessary medical examinations, ongoing interviews with welfare authorities and become involved in discussions with her mother that she has been abused by her father.  Unless a significant change occurs immediately, the child has little prospect of having a relationship with her father. 

3. In circumstances where there has been a very limited role for the father in L’s life, a radical change in moving her away from the daily care of her mother has significant consequences but I am satisfied on the evidence that she will adjust.  What follows are my reasons.

4. On 29 July 2010, after the proceedings were part-heard, I made a variety of orders which altered the father’s time with the child.  Until that point, any time he spent with the child had been supervised.  From the end of July 2010 and specifically commencing on 31 July, I ordered the father have time with the child on each weekend initially for daytime and then in September, overnight.  The evidence indicates that the child has adjusted well.

5. The July 2010 orders were based upon findings I then made after the hearing of several days of evidence.  The matter resumed in November 2010 and I heard further evidence from the parties and some of their witnesses including those that I had previously heard earlier in 2010.  Some of the evidence I then heard relates to events after July 2010.  That evidence highlights the fact that the mother’s capacity to care for the child’s emotional welfare is seriously compromised. 

6. In making the orders in July 2010, I gave published reasons. I intend to incorporate some of my earlier findings in these reasons to complete the picture. 

Background

1. The father is a 36 years old photographer who conducts his own photographic business.

2. The mother is a 35 year old woman who has been occupied in the full-time care of the child since her birth.  Prior to the child’s birth, the mother assisted the father in their photographic business.

3. The parties, although bearing the same surname, have never married.  They knew each other at school and began living together in 1995.  Each had a history of significant drug usage which I find stopped in 1999.

G

1. In December 2006, the mother was delivered of a stillborn child G who was subsequently cremated.  The deceased child had a tragic impact on the parties’ relationship but also gave rise to unnecessary and bitter accusations of sexual impropriety by the mother against the father. 

L

1. In March 2008, L was born.  L is a very happy and healthy child.

The separation

1. In February 2009, the mother left the parties’ residence with the child and immediately issued an application for an intervention order in which no allegations were made of any sexual impropriety against the father.  The allegation was that whilst the father was taking photographs of the child, she would not sit still and the father blamed the mother telling her that she was arrogant.  She said that the following day, she left the father and telephoned him.  She said he told her that she could not take the child away and that she had “better be careful and watch out”. 

2. On 11 February 2009 in the State Magistrates Court, an intervention order was made in the absence of the father and without service upon him.  It prohibited him from contacting or communicating with the mother other than to make arrangements for time with the child in accordance with court orders or through a lawyer or to arrange and participate in counselling or mediation by agreement with the mother.  The order included a prohibition on the father being within 100 metres of any place where the mother lived.

3. On 26 February 2009, with the father present, the Magistrates Court extended the earlier order for one month.  At that hearing, the parties signed a handwritten agreement that the father would spend time with the child on each Sunday from 1.00pm to 4.00pm and otherwise as agreed.  However, that time was to be supervised by the maternal grandfather. 

4. The agreement reached in February 2009 was noted as being without admission for the necessity as to its basis.  When asked why there was to have been supervision, the father said that he was given no reason for the mother’s insistence.  He was not cross-examined about that.

5. Despite the agreement, there were almost immediate problems which in turn precipitated the father making an application to the Federal Magistrates Court of Australia for parenting orders.

The first part of the parenting proceedings

1. On 7 March 2009, the father was advised by the mother that he was not to have contact with the child and that she had contacted the Department of Human Services.

2. On 12 March 2009, notwithstanding that the mother had left the residence of the parties some one month before, the police advised the father that he had to leave the premises so that the mother could return.

3. On 9 April 2009, the mother filed a Notice of Risk of Child Abuse.  In that document, the mother for the first time alleged that the father had inappropriately touched the child’s genitals and behaved inappropriately with her.  She alleged that the father viewed pornography and had child pornography in his possession.  Apart from the fact that the Notice filed with the Court activated a notification to the Department of Human Services, the mother had attended upon the Victorian police and made complaints along similar lines to those set out in her notification referred to.  Essentially, the complaint to the police related to the father having possession of child pornography.

4. On 15 April 2009, the matter came before Federal Magistrate Connolly who fixed a final hearing in August 2009.  His Honour made interim parenting orders by consent of the parties which included supervision of the father the necessity for which he denied.  The orders noted that the father intended to pursue his application that the child live with him.

5. On 4 May 2009, in the State Magistrates Court, the earlier intervention order was made final.  The father consented to that order without admission of its necessity or its basis.

6. On 15 July 2009, the mother filed an amended response in the Federal Magistrates Court in which she sought:

   (a)      sole parental responsibility for the child;

   (b)      that the child live with her;

   (c)that she be solely responsible for the day to day care, welfare and development of the child;

   (d)that she be permitted to relocate to Perth with the child; and

   (e)that the father maintain contact with the child by way of cards, letters and gifts.

Orders

1. Notwithstanding the precise nature of the orders of Connolly FM and the requirements of the involvement of two supervisors, there were problems about compliance culminating in contravention proceedings returnable on 5 October 2009.

2. The contravention proceedings were heard by me on 19 October 2009.  I was not satisfied about the conduct of the mother and made findings against her and then altered the orders of Connolly FM.  I made an order that the father spend time with the child on each Sunday from 10.00am to 1.00pm or as may otherwise have been agreed in writing between the parties but that the father’s time be supervised by the father’s nominee Ms W.  I directed that the mother deliver the child to Ms W.

The parenting proceedings in this Court

1. The parenting hearing came before me on 5 November 2009 and the full hearing began in earnest on Monday 29 March 2010. 

2. The father impressed me as forthright.  He was knowledgeable about his daughter and her development.  He took offence at the suggestion he would act inappropriately towards the child.  His reaction and demeanour were plausible.  He was cross-examined by both counsel for the mother and counsel for the Independent Children’s Lawyer.  He responded appropriately.  He had also been scrutinised by independent witnesses such as Ms W and experts such as Ms A and Dr E.  He had been investigated and interviewed by Victorian police.  He was under the watchful eye of his parents. Nothing in his evidence suggested to me that the observations of his witnesses were wrong. 

3. The mother was not a good witness.  She initially presented as unaware of what her case was about despite the fact that the proposed orders had been very recently prepared by her solicitor.  Quite disconcertingly, she said she had not discussed the matters about her proposals with her own counsel.  When pressed, she said that these were all matters for “discussion”.  This was at the end of the third full day of the final hearing where there had been a “lay day” in between. When pressed about evidence that might have supported her statements, she could not explain why that evidence was not being called to corroborate her version of things.  This was to become a regular theme of the mother’s case.

4. The father’s first position was set out in a minute filed on 10 December 2009.  He sought sole responsibility for the decisions about the child and that she live with him.  He initially proposed that the mother have contact with the child each week from 10.00am on Thursday to 5.00pm on the following Saturday and then various special occasions.  A variety of other orders was also sought.

5. The mother’s position was eventually set out in a minute filed on 30 March 2010, that is, the day after the final part of the hearing began in earnest.  She sought that the parties have equal shared parental responsibility for the child and that the child live with her.  Importantly, she sought orders that the child spend time with the father at Y Centre for two hours per fortnight and a variety of other orders including:

   (a)that the father obtain assistance from the maternal health nurse to be shown the correct way to bath and shower the child;

   (b)that the child attend upon a paediatrician for a period of six months and that both parties meet with the paediatrician; and

   (c)that the parties keep a communication book.

   The mother also sought a variety of other orders including that the parties attend counselling and that the father undergo a parenting and anger management program.

6. The Independent Children’s Lawyer’s position only became apparent after the close of evidence.  He said that the child should live with the father and the mother’s time should be severely restricted.

7. Despite orders I made on 5 November 2009 that the parties were to confine their affidavit material to the issues in dispute and hence that they file one affidavit of the evidence in chief of each principal witness, each relied on virtually every affidavit they had filed in the preceding 12 months.  The difficulty that created ought to be obvious.  I have however, read all of that material. 

8. The father relied upon and called as witnesses, the supervisor Ms W, his step-father, his mother, two police officers, two Department of Human Services workers, a child care worker and the lawyer who had previously represented the mother.  I was impressed with each of these witnesses and I accept their evidence.  There was also evidence upon which no cross-examination was sought.

9. The mother called only her mother but also relied on affidavit evidence that was not challenged.  I shall refer to the maternal grandmother’s evidence later.

10. The Independent Children’s Lawyer called psychiatrist Dr E and otherwise relied upon evidence from a family consultant.

The standard of proof

1. The parties put their respective versions of facts as truthful. Allegations were made by each about the other. The standard of proof is the balance of probabilities and I have applied that standard save that in respect of serious allegations of impropriety, I have carefully considered s 140(2) of the Evidence Act 1995 (Cth) and in particular, have borne in mind what Dixon J (as he then was) said in Briginshaw v Briginshaw (1938) 60 CLR 336. His Honour there said:

   The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.  It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.

   Dixon J went on to say:

   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.

1. The standard of proof is still the balance of probabilities but in respect of the serious allegations, I have approached that standard with much caution.

The general evidence of the parties

1. The father said that in the two months prior to separation, the mother had said she was proposing to leave and take the child with her.  He said that both of them had expressed frustration out of the breakdown of the relationship.  The mother however denied saying that she was leaving and said that she would not have made those comments because she was too scared of what he might do if she were to leave. 

2. The mother’s evidence was that the father was “frequently violent” towards her as well as “verbally violent”.  She said he would yell and be abusive and that this would occur on average at least two occasions per week if things were not done to his liking or exactly as he directed.  Apart from one incident about which no date was provided, there was little in the mother’s evidence in chief of relevance.  She said on a number of occasions he had thrown things at her but gave no further details.  She said he was “very unpredictable” and his moods fluctuated.  She said she felt uneasy for most of the relationship never knowing when he was going to get angry or verbally aggressive with her.  A variety of paragraphs in her affidavit were vague and unparticularised and hence, unhelpful.

3. The mother said that the father had a history of drug-taking using heroin until the year 2000 and that he attended a number of detox programs.  She then went on to detail his other drug usage but failed to mention anything about her own.

4. In her evidence filed on 22 February 2010, the mother said that at separation, the father spoke of the man who threw his daughter from the Westgate Bridge.  The father was cross-examined about that statement and he conceded that he did make reference to that incident.  He said that his remark was that he could not understand why a man would do that.  In his affidavit evidence he denied using the words attributed to him by the mother.  When cross-examined about it, he said that he had said to her that the man should have thrown himself off the bridge.  He was asked why he even said that and he expressed the opinion that he could not understand why someone would involve children in that way.  I accept the father’s version of what occurred there.

5. Family violence is defined in s 4 of the Family Law Act 1975 (Cth) (“the Act”). It is described as follows:

   "family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

   Note:  A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.

6. Even if I was to accept the incidents described by the mother, the highest the evidence could be said to reach was that the impact upon her was to make her “uneasy”.  She said the father “scared” her when he was in a rage and yelled abuse but on the evidence, I do not accept what she said.

7. The vagueness and lack of particularity were matters that I raised with the mother’s legal representative on 15 March 2010 in a telephone pretrial hearing.  No leave to lead further evidence was sought in the hearing and no further evidence was tendered to rectify the vague and unparticularised statements.

8. Accordingly, I find that there was no basis in the mother’s assertion in her outline of case that the father had been abusive towards her and the child if that was intended to be an assertion of family violence.

Family violence orders

1. On 8 May 2009, the intervention order was made for six months.  That final order was still made upon the basis of the assertion set out by the mother on 11 February 2009.  It was vague but having regard to the subsequent assertions that things of that nature occurred on average twice a week, I would have expected a lot more detail to justify the sort of order that was pursued by the mother.

2. In the context of this case and the impact of family violence and family violence orders as an indicator of inappropriate parenting, I find that the order made on 8 May 2009 has little relevance. 

3. On 4 January 2010, the mother took out another complaint arising out of a contact visit on 3 January 2010.  It seems that the father indicated to the Magistrates Court that the application was to be opposed as a consequence of which, the mother was ordered to provide particulars.  A time was set for that to occur.  For some inexplicable reason, the mother withdrew the complaint prior to the time that the particulars were to be provided.  Whether that was on advice or not, I am unable to say but the inference I draw is that she was not prepared to run the risk of being found wanting only weeks out from a final parenting hearing.

4. In her evidence, the mother said that in November 2007, she found a tool case “hidden on top of a cupboard” in which she found copies of photographs belonging to customers of young girls of various ages.  She said the photographs were sexual in nature.  In her evidence, she made reference to only one customer who she named as “John”.  In respect of the November 2007 incident, she referred to “customers”.  The father denied the allegation and called upon the mother to produce the photographs.  That did not happen.  The father was cross-examined about the issue and confirmed that there was a tool box and there were three photographs in it but all of the females were over 18 years of age.  He said two of the photographs were of “models” who had been on a show called “Deal or No Deal” and the third was a photograph of the wife of an acquaintance who posed nude.  This evidence was also mentioned for the first time by the father but he was not seriously challenged about recent invention.  He was asked why he kept them and he indicated that there was no reason.  He was asked why he had not thrown them out.  He said that they were “test prints” and they ended up in the tool box.

5. It was not suggested by counsel for the mother that he was lying.  His candour impressed me to the extent that I have no reason to doubt what he said was true.

6. The mother also said in her affidavit and in a statement to the police about a customer “John” who photographed “street children” in some form of sexually inappropriate pose and which the mother thought amounted to child pornography.  The father denied the assertion.  Notwithstanding it was not in the mother’s evidence in any previous affidavit, counsel for her put to the father that the pictures depicted “children touching each other’s breasts or genitals”.  The father denied having the images let alone anything of that graphic nature.  When it was put to the father that there was a customer who requested the services to print the film, the father’s response was that the character was “fictitious”.  The evidence of the father was plausible.  I accept his evidence on that subject.

7. I have already mentioned the tragic stillborn child G.  Both parents were aware that the child was to be stillborn.  The father was present at the delivery of G and took a large number of photographs.  The mother’s only objections to the photographs appeared to have been the obsessive nature and the detail undertaken by the father. 

8. Counsel for the Independent Children’s Lawyer cross-examined the father about what he had done about maintaining a bedroom that had been set up in anticipation of G’s birth.  The father agreed that both he and the mother sat in the child’s room subsequent to G being stillborn.  I have no reason to doubt that the father was grief stricken and approached the grieving process appropriately. 

The serious allegations against the father

1. In some of the paragraphs that follow, I shall set out and repeat some of the reasons for the July 2010 orders.

2. Up until the July 2010 findings, there were serious allegations by the mother against the father which could be distilled into five issues.  They were:

   a)The father worked on designs on his computer and used graphic pictures of young girls.

   b)The father developed photographs of female children aged between 10 years and 16 years for a customer who photographed “street kids”, and the father retained copies of these photographs for himself.

   c)Upon the delivery of the deceased child G the father inappropriately took photographs of the deceased child’s genitalia.

   d)During the 10 months after L’s birth but at an unspecified time, the father inserted his finger into L’s vagina inappropriately and pulled her labia apart.

   e)The father quite forcefully wiped L’s genitals when he was changing her nappy.

3. In July 2010, I found there was no substance to any of the allegations for the following reasons. 

4. In respect of the first allegation, the mother did not assert that this was child pornography.  The father acknowledged to having access to what might be described as “pornography” but never anything to do with children.  On the balance of probabilities, I accept the father’s evidence. 

5. The second allegation was reported by the mother to the police who undertook a very thorough investigation of the mother’s allegations and found nothing. 

6. The investigating officer said that if material had been deleted from any of the father’s computers their expert would have seen it.  The father raised no concerns for the police.  I find therefore, on the balance of probabilities, there is no substance to that allegation. 

7. The third allegation was distressingly sad. The mother produced two photographs from an album of the parties’ deceased child, G, and relied upon those as evidence of some obsessive and inappropriate behaviour on the part of the father.  She had those photographs in the album for the entire time after the child was delivered stillborn.  In evidence, the father produced an album of many photographs.  He was not cross-examined about its details but he was clear that the photograph had been available to both parties after G’s delivery and up until separation.

8. He said the mother did not take the album but rather, a disc with photographs on it.  When the subject of the album was put to the mother in cross-examination she denied it was the album that had been in the house.  It was not suggested to the father that he had concocted the album.  Certainly, the two photographs that the mother relied upon are clearly seen in the father’s album.  The mother was cross-examined about photographs of the child’s hands and feet but she said she took some of those herself.  Many photographs were taken of this deceased child.  The father was questioned about why he had done that and his explanation was plausible.  He said he did not want G to simply be an historical fact but rather, to have been a child recognised for what she was.

9. The photographs were all collated and placed in an album which was produced in court.  That album showed G both dressed and undressed, as well as being bathed and held by extended family members.  When the photographs were taken, the nursing staff were present.  Photographs of family members holding G were also taken.  Accordingly, on the balance of probabilities, I reject the mother’s allegation. 

10. The fourth and fifth allegations are connected in time by virtue of the limited period that the parties were together after L’s birth.  They are serious allegations.  The unusual feature is that the mother was present.  The father was subjected to considerable cross-examination about what he did to the child and I accept him as a truthful witness.  When the mother made her complaint seeking an intervention order immediately after separation, she made no mention of any sexual abuse or similar inappropriate behaviour.  That came when she made the statements to the police.  At the Magistrates Court, the mother sought that the father’s time with the child be supervised but there is no evidence before me to suggest that the request for supervision was on the basis of any inappropriate behaviour on the part of the father.  Applying the Briginshaw standard, I therefore reject the mother’s allegations.

The other category of serious allegations

1. The mother told both Dr E and family consultant Ms A that the child was being poisoned.  This arose out of her assertion that the food provided by her was not being used by the father during contact but his own and that consequently, the child was becoming ill.  She pointed to constant diarrhoea.  The statement using the word “poisoning” could have an innocent connotation but I find the mother used that in its proper context.  There was no evidence of poisoning.  The mother gave evidence that she had taken the child to a paediatrician and that “stools” had been examined.  She said that one had come back negative and another positive for whatever it was that was being investigated.  No evidence was presented as to what the investigation that turned out to be positive meant.  This is another example of the lack of any supportive medical or scientific evidence.

2. In her affidavit filed on 19 October 2009 drawn by a solicitor, the mother set out significant allegations.  These were a mixture of events that apparently occurred both before separation and after.  They ran to four pages.  They included allegations of digital penetration of L and inappropriate touching of her genitals.  I have dealt with those issues above.

3. The mother claimed that the father was “obsessed” with the child’s looks and was “controlling” of her.  Apart from the fact that the father asked questions upon the child’s birth, I do not understand what evidence if any, supports the allegation.  I have found nothing in the father’s behaviour that would justify that sort of complaint.

4. The mother asserted that the father bent back the child’s fingers and toes whilst dressing her to the extent that the child cried.  She said he showed “violent and vulgar language” in front of the child.  These undated allegations must be seen to have occurred during the period prior to separation. 

5. Some months prior to the parties separating, the mother attended upon counsellor Ms S.  Somewhat reluctantly, Ms S produced her notes under a subpoena. Those notes appear to have recorded the various consultations with the mother during five attendances prior to February 2009.  Whilst the mother detailed her concerns about her own emotional wellbeing, there was no suggestion in the notes of any violence or impropriety on the part of the father.  One would have expected complaint by the mother to her confidante if there was a real concern for the welfare of the child during the final months prior to separation which the mother said was to occur because of her fear.  When asked why there were no such criticisms of the father in Ms S’s notes, the mother replied that she was “in denial”.  I do not accept that evidence.  This is another example of the mother’s evidence which is unsupported by any corroboration.

6. Ms S saw the mother again after separation but the mother said in evidence that she only told Ms S “small amounts” of what had gone on.  To Dr E she said that there was no physical abuse and the psychiatrist recorded that she was not frightened.  When asked about that, the mother said that she understood Dr E to be referring to her being frightened for her life.  That too was an implausible response.  It is another example of a professional misinterpreting what she was saying.  I do not accept that to be the case.

7. Issues such as the allegation of the father bending the fingers and toes of L did not appear in her early affidavit material.  When asked why, the mother said that she told her solicitors but none of it appeared in the affidavit material.  She said she told the maternal and child health nurse but no notes were produced of such statement and certainly no such witness was called.  Importantly, none of that sort of allegation was put to the father in cross-examination.  I can only presume the mother did consider it a serious issue.

8. In what could only be described as a brutal piece of cross-examination, the mother was asked by counsel for the father just what her views were about him.  She described him as a paedophile and sadistic.  I reject all of those allegations.

9. The mother made much in her affidavit about the rough handling by the father of the child’s genitals when wiping her at the time of the changes of her nappy.  She was able to describe in court how the father’s “rough handling” during nappy changes became penetration of the child’s genitals.  She referred to the child periodically having red genitals and signs of blood.  I questioned her as to what inference I was to draw and she said she did not know.  I asked her whether she was accusing the father of doing something wrong and she said she was not.  It was put to her by counsel for the father that the inference to be drawn was that the father had inappropriately touched the child and the mother’s response that that was her “gut instinct”.  She also said he was malicious in trying to sabotage her breastfeeding of the child.  This evidence was vague and no evidence was led to explain what she meant or what impact whatever it was that occurred, had on the child.  These statements were almost “throw away lines”.

10. The changing of the child’s nappy along with her being bathed gave rise to a number of allegations by the mother.  Vague though they were, it was quite clear to me that she was asserting that the father was acting abusively and inappropriately towards the child.  She gave evidence of the fact that this occurred on a number of occasions but she was unable to say when.  She said she did keep dates in computer record form but they were “deleted”.  When pushed to set out a time when some of the events could be identified, she said there was one occasion she went to the supermarket and whilst she was inside, the father changed the child’s nappy in the back of the car and inserted his finger into her genitals.  No such precision had been set out in the documents previously filed.  The mother said she saw this as she was putting the groceries into the car.  She would have me accept that he did it in the back of the vehicle which was a station wagon type motor car and hence not only in full view of the mother but of the world at large.  The father was not cross-examined about it.  When questioned whether she had told someone about it, she felt confident that she had told her counsellor Ms S.  Counsel for the father pointed out to her that it was not in any of Ms S’s notes and Ms S was not called.

11. The mother also said that the father was stalking her subsequent to the orders that I made in October 2009.  She said he handed the child back through the agency of Ms W and then later that night attended and stalked outside her house.  There was nothing objective to confirm what she said to be true.  There might have been some basis for me to conclude that she was being truthful had she convinced me in relation to the same allegation against the father’s step-father Mr B.  I deal with Mr B’s evidence elsewhere but the mother said she had video footage of the grandfather at a shopping centre.  This was said to be on the shopping centre’s technical equipment and it had been drawn to the attention of the police.  This would have been the perfect evidence to establish some credibility but no such evidence was called.  It again highlights the lack of corroboration.

12. In her trial affidavit, the mother said the following:

    [The father] also often walk (sic) in to bathrooms at friend’s (sic) and family members’ homes when their babies were having baths and would take photographs of them.

1. When challenged about this particular sentence, she said she was describing her brother’s child and the twin children of the father’s sister.  She was asked what was wrong in the father photographing these children and she said she did not know.  She was asked whether there was something “untoward” about it and she said that there was.  When asked who the “friends” were, she responded by saying it was just family.  Again, the affidavit drafting left a lot to be desired but also created the only inference I could draw namely that the mother was content to smear the father’s name at every opportunity.  Whilst I could understand her reluctance to call upon the father’s sister to give evidence, I could not understand her not calling her brother if she was seriously concerned about the father’s conduct.  I shall refer below to the allegations after the July orders but in respect of one such time period, the Department of Human Services interviewed the mother’s brother as part of their routine investigation.  The brother was therefore around and presumably available to give evidence. It was of considerable significance also that the father was not challenged about this issue in cross-examination. 

2. It was the mother’s evidence that after contact, the child was often upset and suffered from diarrhoea.  She was asked whether it was constant and she replied that it was.  To ensure that the issue was clear, counsel for the father asked whether it was weekly and again she replied that it was.  It was put to the mother that after the majority of contact visits, she had visited her medical practitioner who recorded that there were occasional diarrhoea episodes.  The mother was unable to explain that.  The same must be said of the tests undertaken on the “stools” because there was no record of such a result in the doctor’s notes.  No explanation was given for that either in re-examination or more importantly, during the long break after July when a variety of inconsistencies, vague explanation or glaring gaps could have been covered.

3. Nothing in the maternal and child health centre records indicated physiological problems.  On 30 November 2009, the mother visited the health centre where the main issue for her about the child was recorded as “behaviour”.  The mother also attended the CAMHS organisation who described the situation as one of “family dysfunction”.  In the notes of that organisation, the mother was reported to have said that there was “occasional diarrhoea”.  When asked whether the recorder had got that wrong, she said that was the case. 

4. When challenged about medical matters which were referred to in her affidavit in extensive but vague detail, the mother responded by saying that the doctors had just omitted them.  It is just not plausible that every health professional failed to accurately record salient facts in a situation where the mother was well-known to the professional and many had mandatory reporting obligations.  Those obligations, if taken seriously, would have required considerable care and accuracy.

5. Before turning to the events after July 2010, it is helpful to look at how the Department of Human Services viewed all of these allegations up until their involvement ceased in 2010.

The evidence of Ms V

1. Ms V was a social worker employed by the Department of Human Services.  She was the intake worker who dealt with the mother in 2009.  She was able to tell me about reports in February 2009 and November 2009 in which the mother raised concerns about the child in the care of the father.  Reference had been made by the mother to G having been stillborn and about the father’s contact at the hospital as well as complaints by the mother of the father excessively bathing G and having her genitalia photographed.

2. Ms V raised the subject with the Victorian police and thereafter saw no ongoing role.  She certainly did not recommend to the mother that she not allow the father have contact with L.  That was odd because it was the mother’s position that she was acting upon the advice of the Department.  Ms V said that the Department’s approach was to say that the mother should seek advice from her lawyer.  She said the Department had a protocol in which they did not tell parents to withhold contact other than for obvious protection if there was a risk.

3. Ms V said that the mother told her that the father was a controlling person who was emotionally violent and threw things around.  Ms V more or less repeated the mother’s evidence.

4. The Department saw no problems in early 2009 and therefore closed its file.  In November 2009, Ms V was contacted by police about an injury reported as having occurred when the child had been “bouncing” on the father’s knee.  Nothing arose of concern from the Department’s point of view. 

5. Ms V said that the Department was unaware that the mother had attended numerous doctors and a specialist medical practitioner in relation to the child’s diarrhoea.  Ms V thought the mother may have mentioned the investigation into the child’s faeces although she could not recall.

6. Ms V told the court that she had spoken to the police as well as the maternal and child health centre and saw no reason to be concerned because the child was meeting her milestones.

7. The Department’s involvement in this case was limited because it did not have cause to make a home visit but simply recorded the details of what it was told.  I find there was no basis for any intervention on the part of the Department.

The events subsequent to July 2010

1. 29 July 2010 was a Thursday and that morning, I pronounced the orders earlier mentioned and delivered extempore reasons.  The mother was not present at the Court but her counsel was.

2. The father’s time under the orders was to commence on the following Saturday.  On 29 July 2010 at 4.00pm, the mother contacted the Department of Human Services.  She expressed concerns about the child.  On being cross-examined about why that call was made, the mother said she had previously been told by the Department that as the father was having all of his time supervised, it had had no protective concerns.  She said that the Department’s position was that if that situation changed, she was to notify workers.  That response in cross-examination did not sit comfortably with the evidence of the maternal grandmother to which I shall refer in a moment. 

3. Ms Y is a protective worker with the Department of Human Services.  She became involved in late September 2010 with this family but was also able to assist with events before that by reference to the file. 

4. Ms Y said on 29 July 2010, the mother told her that there was no new information to report but was not happy about the court orders.  The Department’s response was to advise the mother to contact medical professionals.  Similar conversations occurred on 30 July and 31 July between the Department, the mother and the maternal grandmother.  This was the calm before the storm.

5. Ms Y did not become involved until the end of September 2010 but in the preceding two months, the parties struggled to make the orders work.

6. On 31 July 2010, the mother delivered the child to the father with a comprehensive set of instructions but also a printed form of questions.  The mother described this as a form of communication book in which large gaps were left under headings for the father to complete details.  It must be remembered that the father had been spending time with the child before this. 

7. Counsel for the mother put to the father that he had never asked the mother about foods and by implication, that he should have.  This was an unusual approach because there had been a consistent complaint by the mother that her provided food had not been used and there were regular problems of diarrhoea after contact.  The line of cross-examination proceeded that the father was not communicating with the mother.  It was suggested that the mother was an extrovert and he an introvert.  He largely agreed with that.  He was questioned about why he did not ask about the child’s problems.  His response was simply that he had no difficulties with the child and therefore there was no need to have these conversations.

8. On the assumption that the cross-examination of the father was based on instructions, it was clear that the mother had little insight into the role that the father could play with the child.  At no stage in either the mother’s evidence or cross-examination of the father was it suggested that the child was not fed, bathed or clothed anything other than appropriately.  Serious allegations of impropriety were made but otherwise, the mother seemed unconcerned about the father’s care of the child.  He was certainly not tested on any issues such as routines, sleeping patterns, games played or discipline.  Whilst he was cross-examined about things that the child said, at no time was it put to him that he had acted inappropriately with the child.  The inference may have been obvious but there was no searching cross-examination of him to that effect.

9. On Sunday 1 August 2010, the second day of the new orders, the mother sent a long letter saying that after collecting the child the previous evening, the child’s anal and genital areas were “red, raw and swollen”.  The father said that the child did not return to the mother in that condition.  That was corroborated by Ms W who never saw the child injured or distressed.  The mother’s evidence was that the rash was so obvious and had had a very distressing impact upon the child.  At no time was it suggested by counsel for the mother that Ms W was covering up for the father. 

10. On 3 August 2010, the mother reported to her psychologist Ms S about the genital redness.

11. On 5 August 2010, the mother reported to the Department the same message but this time linking it with the father’s contact with the child.

12. Early in August 2010, disputes arose over the changeover point because the contact centre could not assist with the precise times that were ordered.  The mother’s solicitor proposed a police station.  Why that was so is a mystery as the intervention order had expired and at all times, the father had been accompanied by a responsible adult.  There had been no suggestion of violence to that point in time.  Contact had previously occurred under the orders without incident.

13. Overnight time was to begin at the end of August 2010 and the mother began to seek details from the father as to where the child would be sleeping.  Had it been a genuine inquiry, I might not have been concerned but the mother wrote to the father saying that he had an obligation to tell her.  She used the words “legal responsibility”. When the father appropriately responded, the mother suggested he should stay with his parents because that was only minutes away from her and she would be able to attend if the child became distressed.

14. Correspondence ensued about the place of the handover but demands were also made by the mother about where the child was sleeping and “who with”.  If these questions were raised because the mother was having difficulty separating herself from the child from the first time, that was certainly not apparent.  No evidence was given along these lines by the mother nor was it suggested by counsel for the mother that that was her case.  Dr E gave evidence but no suggestion was put to him about the mother’s stance.  The father was clearly frustrated by the mother’s dogmatic behaviour but still proceeded with the contact. 

15. On the weekend of 26 September 2009, the father spent time with the child.  At the conclusion, he delivered her back to the mother at the Y Contact Centre.  This meant a drive of 20 minutes for the mother back to her home.  The mother’s evidence was that only a couple of minutes into the drive, she stopped in a car park for the purposes of buying the child an ice-cream.  She said that when she had collected the child, she felt the child’s nappy was wet.  When she arrived at the car park, she went to change the child and noticed two spots of blood in the nappy.  Despite that, she did not contact the father.

16. Later that afternoon and for the first time that day, when changing the child’s nappy, she noticed that her genitals were irritated.  She said she could then see the full extent of how red the child was.  The child was slapping her genitals.  Later that afternoon, she telephoned her doctor.  She also said that when she changed the child’s nappy, she wiped the genital area with a face washer and there was a slight amount of blood on the face washer.  She kept the face washer but subsequently cleaned it the next day.  That was an important piece of evidence because when the mother spoke to the Department of Human Services, no reference was made to blood on a face washer according to the Department’s records.  When questioned about that, the mother’s response was that she would have mentioned it to one of them.  This again highlights the concern about inconsistencies.

17. According to the mother, the child became distressed and would not sleep.  At 1.23am the following morning, the mother arrived at the Hospital.  The child was tired but not distressed unlike what she had been late in the afternoon. 

18. The mother’s version of what happened at the hospital and that of the records is markedly different.  There are a number of possible explanations for that.  According to the hospital, the mother brought the child in because of possible sexual abuse.  The mother said that she told the hospital that the child had been in her father’s care but she said there was a lengthy discussion.  She denied saying that there was a possibility of sexual abuse.  It is implausible that a triage doctor asked to examine a child in those circumstances would simply make up or misunderstand a statement about the mother’s reason for bringing the child to the hospital. 

19. The hospital records also show that the child was not distressed.  The mother’s explanation for that was that she had just given her daughter Panadol.  If the child was earlier distressed but given Panadol whereupon she settled, there could be little other plausible explanation for attending at a hospital at that hour of the night other than as the hospital record showed. 

20. The child was examined and the doctor observed the genital area was irritated and swollen.  In her evidence, the mother said that the doctor noted “bruising”.  No such reference was made in the doctor’s notes.  In evidence, the mother was adamant that not only had the doctor left that statement out of his notes but it was the doctor who pointed out the bruising to her.  The doctor’s notes also showed no abnormality and no inflammation.  The mother on the other hand said that the doctor told her that there was slight inflammation.

21. In the events that occurred thereafter, the hospital notes were brought to the mother’s attention by her own general practitioner.  In a vague statement in affidavit form, the mother indicated that she then contacted the hospital doctor again.  According to the mother, the doctor refused to alter his notes and was more interested in other issues.  No mention was made of the attendance of other staff but it would seem that a nurse was present during the examination of the child.  It was the mother who volunteered that when a male doctor examined a female patient, a female nurse was to be present.  She said that happened.  No such evidence was called.  No record was produced of the nurse’s notes of any such attendance if they existed but no indication was given about any injuries made by the mother. 

22. Having regard to the time that had elapsed after this event until the resumed hearing, and bearing in mind the serious allegations that were now being made, I find it perplexing that this evidence was not called.

23. The mother had possession of the blood stained nappy and did not produce it to the doctor on the basis that he was dismissive of it but needless to say, other people may have not been so disinterested.

24. The child was discharged from the hospital at 3.10am and arrived home just as the sun was coming up, not having slept for about 21 hours.

25. The mother then took the child to a Dr H at the R Clinic.  It would seem that Dr J also undertook an examination of the child and recommended that if the mother was concerned, she should go to the Royal Children’s Hospital.  In cross-examination, the mother conceded that that was part of the conversation.  She was asked why she did not go the Royal Children’s Hospital.  No responsive answer was given. 

26. Importantly, Dr H’s notes recorded that the mother expressed concern about sexual abuse.

27. Before attending upon Dr H, the mother contacted the Department of Human Services.  The detailed complaint was made which was investigated.  The Department’s own inquiries of the hospital noted that the vaginal examination had been undertaken but did not find inflammation, blood or bruising.  That of course was consistent with the hospital’s records which the mother said were inaccurate.

28. Having seen Dr H on 27 September 2010, the mother went back to the same medical clinic on the following day and saw her usual general practitioner Dr T.  The mother’s description of what Dr T did was to have a “quick look” at the vaginal area.

29. With Dr T, the mother said that the child had possibly been sexually abused.  She made reference to a “spot” of blood but the mother’s view was that Dr T recorded that wrongly because she said she told her there were two spots.   Dr T was not called to give evidence.

30. When the mother was interviewed by Ms Y from the Department of Human Services, she told her that someone had been touching the child and that there was zinc all over her vagina, blood in the nappy and that the hospital had told her that the child had been penetrated.  When cross-examined about her discussion with Ms Y, the mother denied using the word “penetrated”.  She said she was unaware of how the injury had happened.  Ms Y was not challenged by counsel for the mother about any of those conversations. 

31. Counsel for the mother was at pains to point out that on 1 October 2010, Ms Y assessed that there were no protective concerns but Ms Y saw it differently.  She said that there was no immediate safety risk but the Department’s investigation was ongoing.  The inference was clear that the Department were beginning to be troubled about the mother.

32. When Ms Y interviewed the mother, she had the opportunity to observe the child.  Ms Y was accompanied by another Departmental worker who asked the child about various body parts and when asked to identify her vagina, the child replied “gina” and spontaneously said “Daddy hurt by gina”.  Ms Y’s reaction was that they were just words and there was no reaction from the child when they were said. 

33. When the father was interviewed by Ms Y in response to these matters, he simply said that the mother was over-dramatising. 

34. Ms Y said that she also spoke to Dr T who told her that she had spoken to the child alone and when she asked who touched her, the child nominated her father.  Dr T apparently asked where and the child pointed to her vaginal area.

35. On the following day 5 October 2010, Ms Y spoke again to the mother.  This time the mother telephoned her.  The mother said to Ms Y that there were lots of questions not fully answered at their previous discussion and that there was “so much more” that she could tell Ms Y.  In this discussion, the mother told of an incident after bathing the child where the child took a toy hammer from a toy box, sat on the arm of the couch and tried to put the handle of the hammer inside her vagina.  The mother said that the child told her that her father had done that.  On the following day, the mother spoke to the Department to explain all of that.  By this stage, the child was making statements such as “I’m a virgin” and that her father had hurt her in the bath.

36. To her psychologist Ms S, the mother said that the child was being abused by the father and made reference to a “rubbing action”. 

1. I consider it unworkable to order the mother not to talk to the child about the reasons why she is not seeing her as she was. Similarly, I consider it pointless to make an order that would preclude the mother from talking about sexualised behaviour. However, if it became apparent that there was a repetition of the matters mentioned above, the court would have to consider allowing any contact to take place under supervision at a contact centre. I do not think that the situation is at that point at the moment.

2. I consider the mother will find the restrictions difficult and so will the child but I see no other way of getting the child through a transition period without more trauma.

3. Issues of costs were canvassed but I will make provision in the orders for submissions.

I certify that the preceding Two Hundred and Seventy Four (274) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 17 December 2010

Associate: 

Date:  17 December 2010