SULLIVAN & CUNEZ

[2016] FamCA 359

FAMILY COURT OF AUSTRALIA

SULLIVAN & CUNEZ [2016] FamCA 359

FAMILY LAW – CHILDREN – Where the mother alleges that the paternal grandfather, the father and others had engaged in sexual misconduct against their daughter – Where the mother’s belief pertaining to the alleged abuse is driven by various statements made by the child – Where the child made inconsistent statements to police, family members and others - Where the mother is the primary carer of the children – Where the evidence is insufficient to establish the risk as unacceptable in terms of the father. Consideration of risks in terms of the paternal grandfather and risks in moving the primary residence of the daughter to the full time care of the father.
Family Law Act 1975 (Cth) ss 60CC(2) and (3)
APPLICANT:	Mr Sullivan

RESPONDENT: Ms Cunez

INDEPENDENT CHILDREN’S LAWYER: Ms Anna Grant

FILE NUMBER: HBC 681 of 2013

DATE DELIVERED: 13 May 2016

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 29 September 2015;
16, 17 & 18 November 2015;
9, 10, 11 February 2016; and
1 & 2 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dixon S.C.

SOLICITOR FOR THE APPLICANT: PWB Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Butler McIntyre & Butler

PARENTING ORDERS – B AND C

IT IS ORDERED BY CONSENT

1. All extant parenting Orders in relation to B born … 2003 (‘B’) and C born … 2006 (‘C’) are discharged.

2. Mr Sullivan (‘the father’) and Ms Cunez (‘the mother’) shall have equal shared parental responsibility for B and C.

3. Should the father or mother arrange an appointment for either B or C with a health care professional, other than in the case of an emergency, that parent will provide the other parent notice by email or SMS text message only with the date and time of that appointment, the person the child is seeing and the reason for that appointment.

4. In the event of a medical emergency the parent arranging medical treatment shall, as soon as practicable after the medical treatment is arranged, advise the other parent by SMS text message of the reason for the treatment and the identity of the health care professional providing the treatment.

5. Each of the parents shall authorise all health care professionals, that either B or C see, to provide the other parent with full details of the reason for the attendance and treatment provided as is reasonably required by the enquiring parent.

6. The mother and father shall keep each other advised of their mobile telephone number, email address and residential address and of any change to the same as soon as practicable after the change occurs.

7. Each parent when caring for B and C shall ensure B and C’s reasonable attendance at all extra-curricular activities that the parents have agreed in writing each child shall engage in and in which the children participate.

8. Subject to any orders herein for special occasions, B shall spend time with the mother between such dates and at such times as agreed from time to time between the mother and the father via email or SMS text message only.

9. IT IS NOTED

   a.The mother and the father intend to listen to B’s views and take them substantially into account when arranging B’s living arrangements; and

   b.The mother and the father each anticipate that B will spend roughly equal time with each parent in school holidays;

   c.The mother’s time with B can extend up to 50 per cent of the time in school term;

   d.The mother and the father agree that B requires consistent parental rules and boundaries where at all possible and will communicate with each other in a prompt and respectful manner and use their best endeavours to establish reasonably consistent rules and boundaries.

   e.Should B come into the care of a parent at a time that has not been agreed by the parents the parent receiving B will notify the other parent via SMS text message or email only within 15 minutes of B coming into their care.

   f.Subject to any orders herein for special occasions, B shall live with the father at all other times.

10. C will live in an equal time arrangement with both parents in school holiday and term time in alternating weeks as follows:

    a.With the father from Monday 19 October 2015 and each alternate week thereafter;

    b.With the mother from Monday 26 October 2016 and each alternate week thereafter;

    c.with changeover to occur on a Monday after school (or 3pm if a non-school day);

    d.For clarity, the weekly rotation is not disrupted by school holidays meaning it will continue throughout term and summer school holidays (unless specifically provided for in this Order) and is not disrupted if the parents otherwise agree in SMS text message or email for C to spend time with the other parent at times outside that provided for in this Order;

    e.Both parties have the option of C living with them for up to 14 consecutive days during a school holiday (not incorporating Christmas Eve and Boxing Day) subject to the following conditions:

    i.This option can only be exercised once every calendar year;

    ii.If the option is exercised during a term school break (i.e. not summer school holiday) it is limited to 10 days (not 14) unless otherwise agreed;

    iii.The parent exercising such option gives 30 days notice via SMS text message or email to the other parent of the intended dates;

    iv.The other parent’s time will be suspended for the duration of the time exercised pursuant to this paragraph.

11. IT IS NOTED

    a.That should C express a strong wish to spend more time with either parent, the parties will seek to accommodate that when reasonably practicable for that parent and his or her family arrangements.

    b.Should C come into the care of a parent at a time not provided for in this Order the parent receiving C will notify the other parent via SMS text message or email within 15 minutes of C coming into their care and unless both parties agreed in SMS text message or email the receiving parent will do all acts and things necessary to return C.

12. The parent with whom B and C is not living or staying from time may initiate a telephone call to the children’s mobile telephones, if they have one or the other parent’s mobile if they do not, at 6pm on Mondays, Wednesdays and Fridays and the other parent will make all reasonable endeavours to ensure that the children’s mobile telephones are charged, in working order and the children are encouraged and permitted to take such calls.

13. B and C shall spend time with each parent on special occasions as set out in sub-paragraphs (a) – (g) below and during such periods each parent’s live with periods pursuant to paragraphs 8, 9 and 10 herein will be suspended:-

    a.In 2015 and in each alternate year thereafter B and C shall be with the mother from 3:00 pm Christmas Eve until 3:00 pm Christmas Day and shall be with the father from 3:00 pm Christmas Day until 3:00 pm Boxing Day;

    b.In 2016 and in each alternate year thereafter B and C shall be with the father from 3:00 pm Christmas Eve until 3:00 pm Christmas Day and shall be with the mother from 3:00 pm Christmas Day until 3:00 pm Boxing Day;

    c.In 2017 and in each alternate year thereafter B and C shall be with the mother from 3:00 pm Easter Saturday until 3:00 pm Easter Sunday and shall be with the father from 3:00 pm Easter Sunday until 3:00 pm Easter Monday.

    d.In 2016 and in each alternate year thereafter B and C shall be with the father from 3:00 pm Easter Saturday until 3:00 pm Easter Sunday and shall be with the mother from 3:00 pm Easter Sunday until 3:00 pm Easter Monday;

    e.B and C shall be with the mother from 3:00 pm on the evening prior to Mother’s Day until the commencement of school Monday or 9.00am if a non-school day;

    f.B and C shall be with the father from 3:00 pm on the evening prior to Father’s Day until the commencement of school Monday or 9.00am if a non-school day;

    g.On B and C’s birthdays and on each of the parent’s birthdays the children will be with the father on those particular days in odd numbered  years from the conclusion of school (3.00 pm if a non-school day)  until the commencement of school the following day (9.00 am if a non-school day) and in even-numbered years the children will be with the mother on those particular days from the conclusion of school (3.00 pm if a non-school day) until the commencement of school the following day (9.00 am if a non-school day).

14. Unless otherwise agreed between the parents via SMS text message or email only changeover shall occur:

    a.At school as a result of the children’s attendance there when applicable; or

    b.Otherwise at the D Street in Suburb E.

15. In the event either parent proposes to take B and/or C on an interstate or international trip, the parent proposing the trip shall give the other parent written notice of the trip (3 months in the case of an international trip, 14 days in the case of an interstate trip) together with an itinerary of the trip including telephone contact and address contact details for the duration of the trip.

16. Unless otherwise agreed between the parties or provided for in this Order the trip referred to in in paragraph 14 above shall only be undertaken when B and C are living pursuant to these Orders with the parent who is taking the trip.

17. If requested by one of the parents then both parents will do all acts and things necessary to procure a passport for the children and the passport(s) will be retained by the parent making the request.

18. Each parent will make the children’s passports available to the travelling parent at least 30 days before the intended overseas travel.

19. The father shall not intentionally permit the Paternal Grandfather (Mr F Sullivan) to show his firearms to either C or B.

20. Neither parent shall denigrate the other parent or a member of the other parent’s family to either B or C or in the presence or within the hearing of either child or allow any third party to do so.

21. Neither parent shall physically discipline B and/or C save that they may physically restrain B and use reasonable force to do so where reasonably necessary to protect his physical safety or that of others.

22. The Independent Children’s Lawyer shall provide a sealed copy of these Orders to:-

    a.Dr G; and

    b.H School.

PARENTING ORDERS – J

ORDERS BY DETERMINATION

1. All extant parenting Orders in relation to J born … 2008 (‘J’) are discharged.

2. The father’) and the mother shall have equal shared parental responsibility for J, provided that:-

   a.Should the father or mother arrange an appointment for J with a health care professional, other than in the case of an emergency, that parent will provide the other parent with notice by email or SMS text message with the date and time of that appointment, the person the child is seeing and the reason for that appointment.

   b.In the event of a medical emergency the parent arranging medical treatment shall, as soon as practicable after the medical treatment is arranged, advise the other parent by email or SMS text message of the reason for the treatment and the identity of the health care professional providing the treatment.

   c.Each of the parents shall authorise all health care professionals, that J sees, to provide the other parent with full details of the reason for the attendance and treatment provided as is reasonably required by the enquiring parent.

3. J shall live with the mother.

4. J shall spend time and communicate with the father as agreed in writing between the parents; and if there is no agreement as follows:-

   a.J shall spend time with the father each Sunday from 12 noon to 3.00pm from the second Sunday after the date of these orders to Sunday 19 June 2016, with such time to occur in the presence of the paternal aunt, Ms I (‘the paternal aunt’);     

   b.J shall spend time with the father each Sunday from 9.00 am to 5.00 pm between the periods Monday 20 June 2016 to Sunday 17 July 2016;

   c.J shall spend time with the father each alternate weekend from 5.00 pm Saturday to 12 noon the following Sunday commencing 30 July 2016 and until Sunday 9 October 2016;  

   d.J shall spend time with the father each alternate weekend from 9.00 am Saturday to 5.00 pm the following Sunday for the period from Saturday 22 October 2016 to Sunday 29 January 2017 (noting this is intended to exclude the Christmas weekend subject to the following order); and          

   e.J shall spend time with the father from 4.00 pm on Saturday 24 December 2016 to 12 noon on Sunday 25 December 2016.

5. Subject to these orders J shall spend time with the father from commencement of school term 2017:-

   a.In term time each alternate week from Friday after school until Monday prior to school (to extend to Thursdays or Tuesdays if Fridays or Mondays are student-free days around such weekends);

   b.for one half of the mid-year school holiday periods, being the first half in even numbered years and the second half in odd numbered years. If the first half; then commencing after school on the Friday (or Thursday if the Easter break is included in the holiday) and concluding at 6.00 pm on the Saturday in the middle of that holiday. If the second half; then commencing 6.00 pm on the Saturday in the middle of that two week holiday period and concluding 6.00 pm Sunday before the commencement of term or the Monday if the first day of school is a student free day or a public holiday.

   c.Notwithstanding the orders above, if Easter falls in the first mid-year school holiday the parents shall arrange to have J spend equal time with each parent in such first mid-year school holiday with J spending from Easter Friday to Easter Sunday with each parent on a year about basis.

   d.In the event that the Easter period does not fall in a mid-year end of first term school holiday period then;

   i.in the first of such particular events and each alternate event thereafter; J shall live with the father from after school on Thursday before Easter until 9.00 am Easter Sunday and if J would otherwise spend time with the father on the Tuesday following Easter, such time shall be suspended; and

   ii.in the second of such particular events and each alternate event thereafter; J shall live with the father in from 9.00 am Easter Sunday to the start of school Wednesday.  

   e.As to the Christmas/New Year holiday period:-

   iii.from December 2017 and each alternate year thereafter for three weeks from the following 1 January, plus J to spend time with the father from 10.00 am on 25 December to 6.00 pm on 26 December. 

   iv.from December 2018 and each alternate year thereafter; from after school on the last day of term for a period of three weeks (excluding the period from 10.00 am on 25 December to 6.00 pm on 26 December when J will live with the mother); and

   f.In the event that the operation of these orders would mean that children are not to otherwise spend time with the father on Father’s Day, then J is to spend time with the father from 6.00 pm on the Saturday preceding Father’s Day to the commencement of school the following Monday.

   g.In the event that the operation of these orders would mean that J is not to otherwise live with the mother on Mother’s Day, then J is to spend time with the mother from 6.00 pm on the Saturday preceding Mother’s Day and the normal arrangements resume the following week.

6. Unless otherwise agreed between the parents via SMS text message or email only changeover shall occur:

   a.At school as a result of the children’s attendance there when applicable; or

   b.Otherwise at D Street, Suburb E.

7. Leave be given to the father to apply to the Court within 28 days from the date of these orders for an alternative person to be present during the father’s time with J as set out in order 26 herein in the event of the paternal aunt is not available to be present.

8. The mother and father shall keep each other advised of their mobile telephone number, email address and residential address and of any change to the same as soon as practicable after the change occurs.

9. Each parent when caring for J shall ensure J’s reasonable attendance at all extra-curricular activities that the parents have agreed in writing J shall engage in and in which the child participates.

10. In the event either parent proposes to take J on an interstate or international trip (in the case of the father after commencement of term 2017), the parent proposing the trip shall give the other parent written notice of the trip (3 months in the case of an international trip, 14 days in the case of an interstate trip) together with an itinerary of the trip including telephone contact and address contact details for the duration of the trip.

11. Unless otherwise agreed in writing between the parties or provided for in this Order the trip referred to above shall only be undertaken when J is living pursuant to these Orders with the parent who is taking the trip.

12. If requested by one of the parents both parents will do all acts and things necessary to procure a passport for the J and the passport will be retained by the mother.

13. The mother will make J’s passport available to the father at least 30 days before the agreed overseas travel and the father shall return within 7 days of the end of each such trip.

14. The father shall not intentionally permit J’s paternal grandfather to:-

    a.show his firearms to J, or

    b.spend face to face time with J or if there is to be time by agreement he shall not spend unsupervised time with her.

15. Neither parent shall physically discipline J.

16. The parents will do all acts and things to ensure that:-

    a.J continues to have therapy with Dr K at a frequency reasonably determined by Dr K;

    b.the mother and the father shall be responsible for payment of Dr K’s expenses, if any, on an alternating basis commencing with the mother;

    c.Dr K is provided with a copy of these Orders and the supporting reasons; and

    d.Dr K is advised that the Court requests that any feedback by her be made in writing and sent to both parents, and for that purpose the parties shall each provide Dr K with that party’s email address.

17. The parties are directed that as and from the commencement of term 2017 they will harmonise the spend time with arrangements so that the B, C and J spend time with one and other.

18. Neither parent will denigrate the other parent or members of that parent’s family in the presence or hearing of the J nor will they allow a third party to do so.

19. After the commencement of school term both parents have the option of J living with him/her for up to 14 consecutive days during any school holiday (not incorporating Christmas Eve or Boxing Day) on one occasion each year provided that the parent exercising the option gives at least 30 days’ notice via SMS text message or email to the other parents of the intended dates, such time to align with any such option exercised with respect to C.

20. 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.

21. Leave is given to the father to apply for further final orders for J to live primarily with him in the event that the mother is found to have contravened these orders in respect of J spending time with the father.

1. All outstanding parenting applications be dismissed, except as to costs.

2. Any costs applications to be made in accordance with the Family Law Rules 2004 (Cth).

3. At the expiry of the appeal period all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

4. The Independent Children’s Lawyer is requested:-

   a.to explain these Orders to J as soon as practicable after they have been made;

   b.the method and content of that event being in her discretion;

   c.the appointment of the Independent Children's Lawyer is extended for 35 days from the date of these Orders for that purpose; and

   d.the parties will do any acts and things reasonably necessary to facilitate J meeting with the Independent Children's Lawyer.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage senior counsel and counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Cunez 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 HOBART

FILE NUMBER: HBC 681 of 2013

Mr Sullivan

Applicant

And

Ms Cunez

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. B, C and J[1] are the long suffering children of Mr Sullivan (‘the father’) and Ms Cunez (‘the mother’).  This proceeding primarily relates to J.

   [1]Aged 13, 10 and 8 respectively.

2. The parents’ marriage had been unhappy for a number of years prior to their separation in 2013.  When that relationship ended the parties were angry and hostile to each other.  Instead of healing and reducing this hostility and anger the parties have allowed it to fester and intensify in the years that followed.

3. This conflict is both reckless and self-centred.  It is more overt in terms of the mother, but has afflicted both parents.  At various times they have been manipulative and have displayed vindictiveness, anger, disrespect, distrust and dislike to the other parent and his/her family.

4. These parents have sought to explain their actions as:-

   being protective of the children;

   acting in the best interests of the children; and

   giving voice to the wishes of the children.

5. Like the apocryphal Emperor in Hans Christian Anderson’s short tale ‘The Emperor’s New Clothes’, each parent sees himself or herself clothed in the righteousness of their respective causes and attitudes, but in actuality, each parent has inflicted the raw nakedness of their bitter conflict upon the children. 

6. The underlying factors included their mutual desire to establish that the other parent as the ‘bad parent’ of the children and that he/she as the ‘good parent’.  In visiting their conflict upon their children these parents have allied and polarised their families and friends to their causes.

7. The parents are not committed to truth as a concept.  Their thinking is based on emotion.  At times they are untroubled by those stubborn things such as facts where those facts do not fit well into their preconceived narratives about themselves and the other parent.  They accept that which supports their views or their stories. When the other side points out the apparent holes in their arguments and approaches, they attack the messenger and his or her witnesses. 

8. I genuinely wonder if these parties believe in the truth.  They are both probably well intentioned, at least as to their children.  However, those intentions are ill conceived and are pointless in the context of their conflict and hate of each other. 

9. For the last three years these parents have been standing at a fork in the road.  They could choose to recommit themselves to the joint constructive parenting of their children, at times with the unhappy truth of their own failings as parents or where they are just wrong.  They can make choices based on how things are, not how they wish they would be, and get on with their responsibility to parent.

10. Alternatively, this couple can continue to fight and hate each other and cause harm to their children and when their children end up in a mess, they can keep on blaming each other.

11. It is well past the time when both or one or other of these parents should stand up and actually be responsible adults.

12. Two parents truthfully committed to their children is better than one, but one parent is better than none.

13. This polarisation by the parties has impacted profoundly upon the children.  At the times of this hearing J was living with the mother, and the father had not seen her for well over a year.  C was living with the father and saw his mother only occasionally, despite consent parenting orders made in late 2015. B was living between the parents’ households and was using each parent as an escape from the other, in recent times, but has gone for a period of time when he spent little time with the mother.

14. There are no signs that this conflict will abate and it is more likely that it will continue into the adulthood of these children; thus the parents are not just stealing their childhood, but they are likely to impose the burdens from the conflict on these children when they become adults.

15. To add to the complexity J has made disclosures of being sexually abused.  The mother says she believes J was sexually abused by the father and her paternal grandfather and others.  The mother’s beliefs as to this alleged abuse are supported by her mother Ms L (‘the maternal grandmother’), her sister Ms M (‘the maternal aunt’) and the mother’s friend (‘Ms N’).

16. At the conclusion of the hearing the mother reiterated that she believed J was at unacceptable risk in the unsupervised care of the father and in the care of the paternal grandfather.  The mother asserted that she did not know precisely who abused the J, but she accepted that the child was abused.  Notwithstanding this asserted belief the mother sought orders that the parents have equal shared parental responsibility for J and she reside with the mother and, tellingly, the mother proposed that J spend unsupervised time with the father.  I struggled to make sense of that submission.  I considered that it may have been simply because the mother was at that time unrepresented and was not conscious of the impact of that approach.  However, the mother had had legal representation by a competent family lawyer up to the time shortly before the hearing and the maternal grandmother was, at least at one time, a qualified legal practitioner. 

17. The father and paternal grandfather each deny the various abuse allegations.  They do not seriously accept that J was abused at all.  They believe that the mother has maliciously interpreted and amplified otherwise innocuous statements made by J and/or has coached, encouraged and facilitated J to make false allegations of sexual abuse. 

18. From March 2014 J, when she was aged about 6, has made disclosures about sexual abuse being perpetrated upon her by an unknown boy outside of school, a man and a boy outside of school, a man and a boy outside the paternal grandfather’s home, then later the paternal grandfather, and later still the father, paternal grandfather and a sibling.

19. My assessment of the mother, from all of the evidence, is that she intensely dislikes the father.  I am satisfied that she has and will likely prevent J having a relationship with the father.

20. My assessment of the father, from all of the evidence, is that he is an angry man and who dislikes and hates the mother.  He is a dominant person who seeks to be in control.  At times he displays little insight into how his self-focused behaviour impacts detrimentally upon the children.  The mother believes that the father is a bully and is a risk to J.  Given the evidence there is some basis to that belief.  She is of the view that the father will do whatever it takes to leave her destitute and without any meaningful contact with the children.  I accept that the father has little respect or regard for the mother, and whilst he does not directly articulate that view, his actions, to which I refer in the following discussions, make that view clear.

21. From the expert evidence, it is clear that J now believes that she was sexually abused.

22. It is from this level of acrimony, hate, allegation and counter allegation that this Court is asked to make orders to meet the best interest of this child.  This is no easy task. 

23. Unsurprisingly, an Independent Children’s Lawyer was appointed and it is her unenviable task to make some sense out of the highly agitated and highly emotionally aroused state of the parties and to find some safe passage for these children, in particular J.  In these reasons I have not followed her submissions, and I did not do so lightly.  The Independent Children's Lawyer correctly identified the malice of the mother in terms of enabling a relationship between J and the father and I accept her underlying concerns about the mother.  It was in her assessment of the father where my views differed from hers. The Independent Children's Lawyer took a somewhat benign view of the father and his approach to parenting whereas my assessment of him has been much harsher.  

24. A solicitor and senior counsel represented the father.  As to the father himself, he is the Chief Executive Officer of a complex organisation, he is confident, articulate and urbane.

25. The mother had been represented by competent legal practitioners, however, shortly before the trial she became unrepresented.  In coming to the findings, determinations and orders in these proceedings, including the assessment of the evidence in terms of the legislation, I have endeavoured to take into account that the mother was self-represented.  She was exposed to the Court far more than the father in that she was without the filter of legal representation.  

26. The parties reached agreement as to final orders with respect to C and B.  Those orders were made on 17 November 2015 and for the sake of a single document, I have re-engrossed and re-made those orders in terms of those final orders by consent.  This was done with the knowledge and consent of the parties so that the parenting orders are contained in one document.  I have had regard to those consent orders and the support for them by each parent and the Independent Children's Lawyer.  On the information before me at the time the orders were made in November 2015, I was satisfied that they met the best interest of C and B at that time.  The evidence that came before me relating to J’s parenting orders did not impeach the view I had in terms of the November 2015 consent orders. 

27. The only matter outstanding was in relation to an agreement between the parties that each of them may, from time to time, request to spend longer periods of time with B and C during school holidays.

28. The parties had agreed that upon giving 30 days notice to the other, once every year, each party could request to spend 10 consecutive days in a row with C and B.  The father sought an arrangement where, over the summer school break, if an application was made, that period could be extended to 14 days.  Given the discussion contained in these reasons and the conflict these children endure I have determined that 14 days is the better approach.

29. Given the material provided below and focusing on the needs of these children, and in particular having regard to their age and maturity, I am satisfied, in all of the circumstances that the order ought to be made and I have made it.

30. The father’s case in terms of J is that if I am satisfied that the mother can encourage and promote a continuing relationship between her and the father then there ought to be an order for equal time and equal shared parental responsibility.

31. If on the other hand I am satisfied that the mother does not have the capacity and willingness to promote a relationship between J and the father then there should be a change of residence which would involve moving J into the full time care of the father.

32. The mother’s case was that J was at unacceptable risk of sexual abuse in the unsupervised care of the father.  She proposed that there would need to be a slow arrangement of supervised time with an appropriate supervisor leading to unsupervised time.  The orders she sought were:-

    (a)for a period of six (6) weeks from the date of the order, one Sunday from 9.00am until 5.00pm to be supervised by someone to support the child;

    (b)following that six week period for a period of six (6) weeks each alternate weekend from 9.00am to 5.00pm each Saturday and Sunday to be supervised as before;

    (c)after that period of three months, then to spend each alternate weekend with the father, overnight, unsupervised.

33. The mother sought that there be a non-denigration order. 

34. At the conclusion of the hearing senior counsel for the father submitted that the father be granted orders as set out in Exhibit F18, which relevantly provided:-

    1.      The father have sole parental responsibility for [J], save;

    a.Each parent entitled to have school information

    b.The father to inform the mother of any significant exercise of such power, including change of school, significant medical issue, overseas travel (which must be implication mean the father can remove the child from Australia for travel at any time).

    2.      [J] live with the father.

    3.      [J] not spend time or communicate with the mother for three months from the date of this order.

    4. Pursuant to section 68B of the Family Law Act the mother is restrained from discussing or raising any allegations about the father or paternal grandfather’s alleged sexual abuse of [J], with [J] not suffer and third party to do so (whatever this later part means) and for that period of three months shall not enter upon the premises of [J’s] school.

    5.      The father and mother will do all acts and things to ensure that:

    a.[J] continues to have therapy with [Dr K] at a frequency determined by [Dr K],

    b.The mother and father shall be responsible for payment of [Dr K’s] expenses, if any, on an alternating basis commencing with the mother,

    c.[Dr K] is provided with a copy of these Orders these reasons,

    d.[Dr K] is advised that the Court requests that any feedback by her be made in writing and sent to both parents, and for that purpose the parties shall each provide [Dr K] with that party’s email address

    6.      The mother shall;

    a.forthwith engaging in counselling with a psychologist to address her hostility towards the father and her obstructionist attitude towards him playing a role in [J's] life, including providing to the counsellor a copy of [Mr O's] affidavit filed in these proceedings and a copy of these reasons,

    b.Within 2.5 months of the date of this order, filing and serving an affidavit from such psychologist evidencing her compliance with this provision of the order,

    c.not denigrate the father or any member of his family to [J] or in her presence nor suffer or permit any third party to do so.

    7.      Upon the expiration of the three month prohibition period and conditional upon the mother’s compliance with orders 4, 5, and 6 above, [J] shall spend time with the mother;

    a.In term time and holiday time, each alternate week from Friday after school until Monday prior to school (to extend to Thursdays or Tuesdays if Fridays or Mondays are student-free days);

    b.The first weekend period in each mid-term holiday from after school Friday until [presumably] 3.30pm the following Wednesday;

    c.Each alternate weekend occurring in the summer school holidays from after school or 3.30pm Friday until [presumably] 3.30pm the following Wednesday.

    d.Upon the expiration of three months from the date of these Orders both parents have the option of J living with them for up to 14 consecutive days during any school holiday (not incorporating Christmas Eve or Boxing Day) on one occasion each year provided that the parent exercising the option gives at least 30 days’ notice via SMS text message or email to the other parents of the intended dates, such time to align with any such option exercised with respect to [C].

    e.Upon the expiration of three months from the date of these Orders the special occasion arrangements, telephone communication, travel, changeover and “other orders” arrangements as ordered by consent for [C] and [B] shall also apply to [J].

    8.The Independent Children’s Lawyer explain these Orders to [J] as soon as practicable, the method and content of that event being in her sole discretion and whose appointment is hereby extended for 14 days from the date of these Orders for that purpose, and the parties will do any acts and things reasonably necessary to facilitate this.

35. At the conclusion of the hearing the Independent Children’s Lawyer expressed the view that if I was satisfied that the mother would facilitate time between J and the father, then J should remain in the primary care of the mother, there ought to be equal shared parental responsibly and, provided I was satisfied that J was not at unacceptable risk in the care of the father, then she should spend significant and substantial time with the father.

36. If on the other hand I determine that the mother would not facilitate time, the Independent Children's Lawyer submitted that there ought to be a change of primary carer from the mother to the father with a three-month moratorium of time and communication between the child and the mother.  At the expiry of that period then orders for escalating regular contact time and communication between the mother and J.

37. The Independent Children's Lawyer submitted that on the evidence this Court should find that the mother cannot facilitate a relationship between the father and J and/or that the mother has inculcated J with, or promoted with J, a belief the she has been sexually abused by the father.  Accordingly, there ought to be that change of residence order, notwithstanding that the mother had been J’s primary carer for the whole of her life so far. Consequently she supported orders that:-

    a)that the father ought to have sole parental responsibility for J.

    b)Upon the expiration of three months from the date of these Orders the special occasion arrangements, telephone communication, travel, changeover and “other orders” arrangements as ordered by consent for C and B shall also apply to J.

    c)The mother shall not denigrate the father or any member of his family to J or in her presence nor suffer or permit any third party to do so.

    d)An injunction that the mother be restrained from discussing or raising any allegations about the father’s alleged sexual abuse of J, or allow others to do so,

    e)A three month moratorium of time and communication between the mother and the child to enable the change of residence.

    f)Continuation of the child’s therapy with Dr K.

    g)That the Independent Children’s Lawyer explains these Orders to J.

38. As to J’s interaction with Dr K, I intend to make that order.  Dr K is an impressive witness and I find that she provides good therapeutic assistance to J and that it should continue. As such I will make the orders suggested by the Independent Children's Lawyer.

39. Similarly, I will make the order that the Independent Children's Lawyer inform J of the orders made by me.

THE ISSUES

1. The issues are:-

   a)The conflict between these parents;

   b)The allegations of sexual abuse and the consequences that flow from that, such as the risk of abuse, the consequences and the outcome;

   c)The allegations that the mother has concocted or amplified allegations of abuse and is endeavouring to exclude the child from the father’s life;

   d)Upon the determination of those issues what time and communication, if any, should occur between J and each of her parents; and

   e)The risk to J from the father’s discipline of B shortly before separation. Consequently, what parenting arrangements as to parental responsibility, live with arrangements, time with arrangements and communication should be put in place.  This will include whether there should there be a change in J’s primary residence.

BACKGROUND

1. The mother is aged 45 and describes her occupation as student.  The father is aged 42 and is employed in senior management.  These parents began living together in 1997, and married in 2005.

2. As I indicated earlier, these parents have three children, namely, B (born 2003), C (born 2006) and J (born 2008).

3. In 2010 B began to manifest particular needs including some behavioural issues, and in August 2011 he was referred to Dr P, a paediatrician.  I have had regard to that evidence.

4. The parties separated under the same roof on 26 July 2013 and the father left the matrimonial home on 2 August 2013.  The parties agreed that the mother would continue as primary carer of the children and that the father would spend regular time with the children.

5. The mother was angry and upset at the time of separation and sent abusive messages to the father and made abusive telephone calls to him.  On about 9 August 2013 the mother called the children’s paternal grandfather a paedophile.

6. By mid to late August the children’s time with the father had stopped or was reduced.  In late August the mother reported to police a pre-separation incident between where she alleges that the father assaulted B. 

7. In very later August 2013 there was an incident at a sports ground.  In early September 2013 B’s time with the father recommenced.  On 30 August 2014 the police interviewed B and C about an alleged assault by the father on B.

8. The father commenced these proceedings in the Federal Circuit Court on 19 September 2013 and on 15 November 2013 interim orders were made that the children spend time with the father every second weekend from Friday to Saturday and every second Thursday night.  Those orders were made by consent.  There were a number of conditions attaching to those orders including:-

   (a)     the children live at the home of the paternal grandfather;

   (b)    the paternal grandfather be present for overnight periods;

   (c)     the father will at all times insure that the children are supervised by an adult; and

   (d)    the children will not go to the father if the father has to travel for work during his ordered time.

9. In late 2013 psychologist Dr Q became involved with the family as Single Expert to assist in determining parenting capacity of the parties and the best interests of the children in terms of future parenting arrangements.  In her April 2014 report she observed:-[2]

   [2] At page 40.

   Based on information provided in background documents, at interview, and via observation, it is the opinion of this writer that both [parents] show generally sound parenting capacity (no major concerns were raised in this regard). Healthy attachment was observed between the children and both parents.
   In summary, both parents have behaved at varying times in a less than admirable fashion during the fallout of the marriage breakdown [emphasis added]. It is the opinion of the undersigned that these behaviours were uncharacteristic and unlikely to be repeated into the future as family court matters are settled and a sustainable routine is established. In particular, both parties have at times demonstrated a tendency to let these family court matters override parenting priorities, most notably [the father’s] response to the alleged sexual assault of [J] (see more information on this below). But as stated, it is likely that both parents will parent their children competently and sensitively once the stress and distraction of family court matters is finalised. 

   Living Arrangements

   It is understood that the current orders require [the father] to be supervised when the children are in his care. As a consequence, [the father’s] living arrangements with his father are less than ideal for the children. While staying with [the father], the children do not have beds or bedrooms, they sleep either behind couches in a second living room ([B] and [C]) or in [the father’s] bed ([J]). It is the opinion of this writer that this is not suitable for the children’s wellbeing. Indeed [J] has stated more recently (March 2014) that she does not sleep well at her father’s. It is strongly recommended that [the father] find suitable accommodation inclusive of appropriate bedrooms for the children, similar to their arrangements at [the mother’s] home.

   Wishes and Best Interests of the Children

   It is [B’s] clearly stated and repeated wish that he should spend equal time with both parents. He has fixated on this quite strongly, reflecting on the ‘unfairness’ of the current arrangements. His reported behaviours have often reflected anger, frustration, and intolerance of the current arrangements (although this does seem to have settled in more recent times). It is the opinion of the undersigned that it is in [B’s] best interests that his wishes be taken into consideration when determining parenting orders.

   [C] has stated that he is happy with the current arrangements, reflecting increasing contentedness with his new routine. It is the opinion of the undersigned that major changes to the current arrangement may not necessarily be in [C’s] best interests at this time. With increasing age and maturity, that may of course change. [J] has fluctuated between saying initially that she was happy with current arrangements and more recently that she would like more time with her father. Given her young age and immaturity with regards understanding time frames and consequences, it is recommended that [J’s] wishes be reviewed over time. In the interim, it is recommended that she share similar care arrangements to [C]. It is recommended that parenting arrangements for [C] and [J] remain as they currently are, or at most include a slight increase in time with [the father]. A 50/50 parenting arrangement would not be in their best interests at this time.

   It is recommended that the impact of the above recommendations on the relationships between [B], [C] and [J] be reviewed over time. However, it may well be that they will each be happier with their respective wishes taken into account and a consequent reduction in overall stress levels (particularly with regards [B]).

   [B] has stated he would like to be able to flexibly see the opposite parent if in the other’s care, at his discretion. While there is the risk that this could be a ‘get out of jail free card’ where parental discipline from one parent versus the other is concerned, the benefit would be that [B] may gain a sense of agency and choice. This might have further benefits to [B’s] self-esteem later, as he continues to adapt to his family circumstances.

   It is recommended that [the parents] seek professional support either separately or together in order to put aside their conflict in favour of prioritising their children’s emotional needs. At present their incapacity to communicate with each other without relying on lawyers is not in the best interests of their children. They are both of a level of intelligence and professionalism to be capable of developing some form of working relationship for their children’s sake. Given time and support, it is the opinion of the undersigned that this can be achieved.

10. Shortly before this report was released there was an allegation made by J that she had been sexually abuse by a stranger; her father and paternal grandfather initially ignored her initial disclosures.  Dr Q went ahead with a planned interview on 12 March 2014.  Dr Q reported that as to the parents’ responses to allegations of sexual assault of J:-  [3]

    [3] Ibid at pages 49 and 50.

    Information was provided to the undersigned by the ICL providing a chronology of events following [J’s] disclosure of sexual assault (reported to have been made on 10 March 2014). Review of this chronology revealed the following:

    i.In the opinion of the undersigned, [the mother] acted appropriately by seeking medical opinion (11 March 2014) with regards [J’s] disclosure (10 March 2014). Given [J]’s report that her father had also been advised of the incident, it would seem that [the mother’s] anger towards [the father] (email dated 11 March 2014) is understandable.

    ii.[The father’s] response to [the mother’s] email was to immediately seek legal advice, which included:

    1.    Criticism from [the father] of [the mother] for not notifying appropriate authorities, and;

    2.    Instructions that she not involve any medical or other authority (including police) without [the father’s] knowledge

    iii.It is noted that [the father] is reported to have informed the school principal of [J’s] disclosure, when an agreement had been reached to wait until after police interviews.

    iv.It is the opinion of the undersigned that [the mother’s] first priority in responding to [J’s] disclosure was [J’s] welfare.

    v.It is the opinion of the undersigned that [the father’s] response to [J’s] disclosure was to:

    1.    Disbelieve [the mother] (and therefore J);

    2.    Assume malice on the part of [the mother];

    3.    Attempt to control and contain the situation within a legal framework;

    4.    Defend against potential accusation of being in breach of the Interim Orders – Point 10 (c) “The father will at all times ensure that the children are supervised by an adult”. 

    vi.The above opinions are formed in conjunction with having interviewed [J] on 12 March 2014, during which she spoke of the alleged sexual assault, and in the absence of [the mother] making any effort to influence that interview on 12 March 2014 (when she had opportunity to do so, if she was so motivated).

11. This occurred in the context of the child allegedly making disclosures commencing on 10 March 2014.  The mother claims that at bedtime that night J disclosed that she had been sexually assaulted by a stranger.  The following day the mother sent an email to the father stating:- [4]

    [J] brought to my attention last night when she was complaining again of a stinging vagina, that she had been sexually interfered with by someone outside the gate at the grandfather’s house, when she was sent out by you, unsupervised, on her own to throw water balloons last weekend.  She has also come home complaining of a stinging sore red vagina after other visits.  [J] said she told you about this incident, why was I not informed of this immediately?  And when she told the grandfather, why did he respond by saying “don’t tell anyone about what happened, especially mum.

    [4] Exhibit F3.

12. On 11 March 2014 the father’s solicitor sent a copy of the mother’s email to the Independent Children's Lawyer and sent a letter to the mother expressing the father’s concern about the allegation and its timing.

13. On the same day Dr R saw J and was told by the child that: she had been touched in the front and back by a man and an eight year old; that they stuck a finger in both areas; that at the time she was wearing her school uniform, and that she was wearing shorts and a t-shirt.  The child also said she was alone in the street and that the man had a beard.

14. On 28 March 2014 the mother recorded in her diary that J said the man had a beard to the ground that was longer than his arms.  The beard was “longer than Rapunzel’s hair and he wrapped it round me”.[5] 

    [5] Exhibit F16.

15. Then followed a series of disclosures and reported disclosures that were at times different but related to the abuse alleged against a stranger, sometimes a boy, sometimes a man, sometimes both.  It was alleged that this happened at school on some occasions, and at other times outside the home of the paternal grandfather.  The story was at times confused.

16. The was no recorded complaint made by the mother or father to the principal of the school which the child was attending.

17. The child was interviewed by police on 12 March 2014 and was examined at the S Hospital.

18. The mother alleges sexualised behaviour of J and provides evidence of further disclosures.

19. The order requiring the father to live in the paternal grandfather’s home was discharged by an order made in the Federal Circuit Court on 8 April 2014.

20. The mother claims that on 22 April J disclosed that her paternal grandfather had inappropriately touched her and further that the paternal grandfather had made derogatory comments about the mother.  The mother gave evidence in this regard during these proceedings on 12 May 2014.

21. In her affidavit the maternal grandmother asserted that J had said to her that the man in the drawing with the beard was the paternal grandfather.  There was no initial report of this to police by the maternal grandmother.

22. The mother asserts that on 4 May 2014 when J returned from her father’s care she said:- [6]

    [6] Exhibit F3.

    [J]:Grandpa said “you don’t have to cuddle me if you don’t want to”.  I took one step and he poked me in both bottoms.

    Mother: Where did this happen?

    [J]: In the kitchen.

    Mother: Were you clothes on or off?

    [J]: On

    Mother: Was that the time he picked you up and cuddled when daddy was in the kitchen and he turned his back on daddy and poked you in the bottom?

    [J]: No.

    Mother: So granddad’s done it two times?

    [J]: Lots.

    Mother:Oh lots (in a surprised, possible shocked tone).

    [J]:No, two times”

23. This was not reported to the police at that time and the father was informed on 12 May 2014.  The child allegedly refused to spend time with the father on 8 May 2014.

24. On 13 May 2014 the parties reached an agreement that B have week about time with each parent and that C and J live with the father from Friday after school until the commencement of school on Monday each alternate week.

25. Following a conference, father suggested a psychologist for J but mother did not respond until end of May 2014.

26. Dr R referred J to see Ms T and on 16 June 2014 J commenced therapy with Ms T.  On 25 June 2014 J made a disclosure to Ms T, allegedly saying she became scared when her grandfather touched her on her privates.  In subsequent session the mother informed Ms T that J had changed the disclosure and was now reporting to the mother that the child was touched under her clothes[7].

    [7] Exhibit ICL 4 - Ms T letter dated 29 October 2014 – page 2.

27. On the 26 June 2014 the Mother took B to Dr P and reported that she had concerns about B allegedly exhibiting sexualised behaviour at school.

28. It was alleged by the father on 29 August 2014 that C expressed a desire to spend more time with him and his return to the mother was problematic.  Later that month the father was served with a summons in the State criminal justice system alleging he assaulted B more than a year before and prior to separation.

29. In August 2014 regular time between J and the father faltered and on either 2 or 4 October 2014 when J spent time with the father, the time was cut short.  J has not spent any time with the father since that time.

30. At a session with Ms T on 14 October 2014 J disclosed, when the mother was present, an allegation that the paternal grandfather and the father inappropriately touched her at an undisclosed time and date.  The mother claims that J made this disclosure to her about three weeks previously. There is no objective evidence that the mother promptly informed Child Protection or the Independent Children's Lawyer.

31. The father claims that he informed Senior Constable U of the alleged disclosure on about 14 October 2014.  

32. At about the same time the mother claims her car tyres were slashed and sent a text to the father accusing him of behaviour.  There is no evidence that the father was in any way implicated in this alleged event.

33. On the 29 October 2014 Ms T provided a written report to mother’s solicitor.  Ms T reported that the father was not dismissive of what J has said to him.

34. The father endeavoured to organise a family catch up at a park before Christmas.  The mother declined to engage in this process.

35. On 17 December 2014 J was further interviewed by Tasmania Police.

36. On 16 January 2015 these proceedings were listed for hearing in the Federal Circuit Court on 8, 9 and 10 April 2015.  However, given the complexity of the issues and the likely length of the hearing the proceedings were transferred to the Family Court by an order made 13 March 2015.

37. On 22 May 2015 orders were made by the Family Court including:- .

    14.    Neither party will denigrate or belittle the other party in the presence or hearing of J or permit any other party to do so.  Neither party will discuss these proceedings or the allegations made in these proceedings with or in the presence of J, save that it is acknowledged that neither party has control over what may be said to or by [J].

    15.    Should [J] make any disclosure of abuse of any kind to the mother or anyone associated with the mother, the mother shall:

    (a)Listen to [J] but not ask her any questions about dates, times or further details;

    (b)Immediately advise the father through his solicitors and the Independent Children’s Lawyer what was reported to her by J.

38. Following these orders, in June 2015 endeavours were made for J to see the father for the purpose of starting telephone communication. J spoke to the father on the telephone.  On 9 July 2015 J declined to speak to the father in one of these telephone communication attempts.  

39. In July 2015 J made further disclosures about the father and paternal grandfather to Ms V from the Sexual Assault Support Service (‘SASS’).  On 6 August 2015 Ms V reported that J does not recall the alleged abuses and does not indicate distress in relation to her father.

40. Senior Constable U informed the father on 17 July 2015 that following review of the office of the Director of Public Prosecutions, there were to be no charges arising from J’s disclosures.            

41. On 22 July 2015 Dr G provided an email report to the Independent Children's Lawyer in which it was asserted that C claimed that the mother was critical of the father and she wanted C to lie about the father.

42. On 2 August 2015 the mother sent an email to the father saying she will tell the board of his employer that he had been stealing from the company which they control and which he operates as Chief Executive Officer.  Following this the father obtained an interim family violence order against the mother.  The mother appeared at court and opposed the order.

43. On12 August 2015 further interim parenting orders were made in which the parents agreed that B would live with the father and spend with the time with the mother when he chose.  Further, it was ordered by consent that C live with the father and spend time with the mother each alternate week, Friday to Monday, and gradually increasing over several months.  Dr K was appointed as therapist for J and trial directions were made.

44. November 2015 final parenting orders were made by consent in respect of B and C.

45. In these reasons any statement of fact is to be regarded as a finding of fact unless it is clear from the contrary that that is not the case.

Statutory Framework

1. Part VII of the Family Law Act 1975 (Cth) (‘the Act’) sets out the framework in which the Court exercises its power to make parenting orders in ss 60A to 70Q.

2. Section 60B of the Act sets out that the objects and principles in parenting determinations. As to the objects, Section 60B(1) provides:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

1. Section 60CC of the Act sets out a series of factors in determining how a Court determines what is in a child’s best interest. These include the “primary considerations” (s 60CC(2) and (2A)) and the “additional considerations” (s 60CC(3)).

2. Section 65D of the Act empowers a Court to make a “parenting order”. This power is subject to s 61DA of the Act which in turn requires the Court to apply a (rebuttable) presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This statutory presumption does not apply in circumstances of there being reasonable grounds to believe that a parent of a child or a person who lives with a parent of a child has engaged in abuse or family violence of the kind referred to in subsection (2). The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility (s 61DA(4)).

3. If the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child then it must go on to consider whether it is in the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the Court must consider an order for substantial and significant time with each of the parents (s 65DAA).

EVIDENCE

1. I invited senior counsel for the father and counsel for the Independent Children’s Lawyer to tender their case outlines, which they did.[8]  The mother did not have a case outline, although she set out the relevant matters in her trial affidavit.

   [8] Exhibit F1 and ICL1.

2. A legal practitioner for the father had prepared an exhibit tender bundle of documents for the father in his case.  This bundle was tendered and admitted into evidence without controversy,[9] but subject to weight.

   [9] Exhibit F2.

3. In 2014, J had been seeing a psychologist, Ms V, in relation to her treatment in the context of the alleged sexual abuse.  As part of that treatment, J had prepared a ‘work-book’ which, with the consent of the parties and at the request of the Independent Children’s Lawyer, was tendered into evidence.[10]

   [10] Exhibit ICL2.

4. The Independent Children’s Lawyer tendered into evidence the single expert report of Mr O dated 11 November 2015.[11]

   [11] Exhibit ICL3.

The father

1. I reiterate the comments I made about the veracity of the parents evidence at the commencement of these reasons.

2. The father gave evidence in terms of seven affidavits.  Those affidavits contained voluminous exhibits.  The father’s affidavits were read into evidence, subject to weight, and the annexures to the affidavits were separately exhibited.  The affidavits and respective annexure exhibits are:-

   -    affidavit filed 19 September 2013 (Exhibit F8);

   -    affidavit filed11 November 2013 (Exhibit F7);

   -    affidavit filed 3 December 2014 (Exhibit F6);

   -    affidavit filed 1 May 2015 (Exhibit F5);

   -    affidavit filed 12 August 2015 (Exhibit F9);

   -    affidavit filed 16 September 2015 (Exhibit F4); and

   -    affidavit filed 23 October 2015 (Exhibit F3).

3. In evidence in chief and in his affidavits, the father denied allegations that he was a heavy drinker or had a drinking problem as asserted by the mother in the report of the expert Mr O.[12]  This concern was not a feature of this hearing.

   [12] Paragraph 49 of the report.

4. Further it was asserted by the mother, to Mr O, that the father had been demoted and had faced difficulties in relation to money and his employment.  The father said this was not the case. No objective evidence was provided about this and the mother vacillated when she gave evidence in this respect.

5. The father said on 30 October 2015 the mother endeavoured to deliver B to him when he was interstate and left the child about 100 metres from the paternal grandfather’s address. I accept that evidence.

6. The father was cross-examined by the mother.  Unfortunately, the mother, being self-represented, had understandably difficulties in relation to the process of cross-examination.  Often she did not have her reference to the material to enable accurate questioning. As such part way through the mother’s cross-examination the Independent Children’s Lawyer stepped in and commenced his cross examination. The mother was given leave to complete her questions later.

7. The mother cross-examined the father in relation to some minor issues in regard to accuracy.  Some of the cross-examination seemed to be in the context of points scoring.

8. When the father was informed of the first allegation of sexual abuse by J on about 10 March 2014, via text or email from the mother, he sent a number of letters requesting that the interviews await his return.

9. The first of these letters was one from the father’s solicitor on 11 March 2014[13] requesting any notifications and requesting that the mother not engage counselling assistance or support without advising the father and his lawyer. He also asked that the parties not discuss the allegations with J or the other children.[14]  A detailed response was provided by the mother’s then solicitor to the Independent Children’s Lawyer and the father’s solicitor.[15]  This was sent on 11 March 2014.  A further letter was sent by the mother’s solicitor on 12 March 2014.[16]  The father’s solicitor wrote to the mother’s then solicitor explicitly requiring an assurance that J would not be interviewed by Tasmania Police without the consent of the father.[17]

   [13] Exhibit F3 page 4.

   [14] Ibid page 7.

   [15] Exhibit F3 pages 8 and 9.

   [16] Exhibit F3 pages 11, 12 and 13.

   [17] Exhibit F3 page 12.

10. On the same day, 12 March 2014, the Independent Children’s Lawyer wrote to Constable X asking that both parents be present for the interview and physical examination.[18]

    [18] Exhibit F3 page 13.

11. Letters were then sent by the mother’s then lawyer, Mr W, to the father’s solicitor and the Independent Children’s Lawyer setting out more details of the allegation.[19]

    [19] Exhibit F3 pages 16 to 18.

12. When cross-examining the father, the mother asked him to concede that the child B had a week off school as a result of a black eye he sustained around that time, which the mother asserted arose from an assault upon him by the father.  The father did not know why the child was off school and said B had a tendency to run away.  It appears not to be an issue that sometimes B, when under pressure, will run away.

13. The father was asked by the mother about a conversation which the mother alleged was on 6 November 2013, where she asserted the father had asked B what he had said to the police about the circumstances surrounding his black eye.  The father denied any such conversation.

14. Similarly, the mother asserted that the father showed a letter to B in respect of the withdrawal of a prosecution against the father in respect of the black eye of B where the father had allegedly said he had been ‘exonerated’. 

15. The evidence appears to be that B was taken to the Magistrates Court for orientation before the hearing of the criminal proceeding in that court against the father, and B and ran away.  There is no evidence as to the circumstance of the withdrawing of the prosecution, however, I infer that one of the factors is likely to have been B running away from the Magistrates Court at the time of orientation.

16. In any event the circumstances of B’s black eye are to be determined by me on a different basis to that which would be determined in a Magistrates Court.

17. The father, in his affidavit of 19 September 2013, asserted that he would drop the children to school about 80 per cent of the time before separation.[20]  The mother produced a list of holidays around that period which showed that it was unlikely that this occurred over that period of time.

    [20] Affidavit of father 19 September 2013 paragraph 18(a).

18. The father was cross-examined by the mother in relation to J sleeping in the father’s bed.  His initial evidence was of a somewhat unsatisfactory sleeping arrangement for the children, but one which was forced upon him by the orders to which he agreed in November 2013.  However, when pressed about the amount of time J had slept in his bed, the father conceded that it was three quarters of the time.

19. Given this evidence and other evidence, including that referred to later, I am satisfied that the father sometimes exaggerates matters to his advantage or minimises matters which are not to his advantage.

20. Another example of this was his evidence about moving into his own home.  The father endeavoured to say it was because of the order that was in place in the Federal Circuit Court, however, there was a period of some six weeks or so between when the order was discharged and when the father moved out.  When pressed in respect of that the father said it was for financial reasons.

21. At times, the father is more concerned about himself than the children.  An example was his evidence that there were Christmas presents for J at the end of her bed in his home.  When questioned by the Court as to why they were not given to J, he said he wanted to see the excitement of the child when she received the presents.  That was more about him than about the child.

22. In his trial affidavit[21] the father asserted:-

    At my father’s residence, I had my own bedroom and the children shared a bedroom, each having their own beds.

    [21] Ibid paragraph 33.

23. Given the evidence of the father and the broader evidence, this was a plan exaggeration which, at some levels, undermines the reliability of his evidence.

24. In respect of the events on the weekend of 8 March 2014, which was the time before J allegedly made her first disclosure, the father asserted that he noticed no change in the children’s behaviour and went on to say that over that weekend the children attended a sporting event where they socialised with children involved in that event.

25. During cross-examination by counsel for the Independent Children’s Lawyer the father denied spitting on the mother and asserted he did not throw things.   He conceded that he raised his voice but did not get close to the mother’s face.  He said he may have used demeaning and offensive language, but said this was ‘muttering’ as he left.  Given my assessment of him I do not believe that.  I am satisfied that the father is a forceful, determined man and, given the evidence I am satisfied that at times he was loud and abusive to the mother.

26. An example of that was the issue regarding an event in April 2002 where the mother alleged that the father came upstairs, pulled her by the upper arms and yanked her out of the bed demanding that she talk to him ‘you bitch’.[22]  The father’s evidence in relation to this was that an event similar to this occurred in that the mother had accused him of infidelity and then had gone to bed.  The father said he wanted the matter brought to an end.  He did not wish any further debate on it.

    [22] Mother’s trial affidavit paragraph 9 page 2.

27. It was in those circumstances that the father went up to the mother’s room and demanded that she get up.  He denied manhandling her.  He admitted he yelled at her but could not recall whether he called her a ‘bitch’.  C was in the mother’s bed at that time.  The father said that when C woke up the argument stopped. I do not believe him.  I prefer the mother’s version of this event. I have had regard to this finding in the broader context of this determination.

28. The father is somewhat self-serving in his evidence.  He was asked by the Independent Children’s Lawyer whether he believed the arguments prior to separation would have affected the children.  Initially the father prevaricated in respect of this evidence and then subsequently said he did not believe it would have affected the children.  I do not believe him.

29. The father says that he will avoid personal attacks, moderate his language, not be ‘holier than thou’ and avoid using sarcasm.  Given the history of these parents I am sceptical of the reliability of this evidence.

30. There was an issue about holes in the wall and whether the father had punched holes in the wall, but the father denied that.  However, he admitted that he may have, in anger when returning from work, hit a bag into a wall and damaged it.  I am satisfied that this is an example of his understatement of events.

31. Similarly the mother complained that the father pushed her against the fridge in January 2013 and called her a ‘bitch’.  The father remembered that argument and said that as he moved past the mother simply moved back towards the fridge.  I do not believe him I prefer the evidence of the mother.  I have had regard to this finding in the broader context of this determination.

32. The mother said in her affidavit that three witnesses assisting her had letters sent to their employers by the father, namely the maternal grandmother, the maternal aunt and Ms N.  The father explained that he had indeed sent letters to each of the employers.  From the discussion later in these reasons these letters were sent by him maliciously to undermine the mother’s case, and could have had the effect of intimidating her witnesses.

33. I accept that they were sent with the attempt to interfere and frighten those witnesses, as asserted by the mother.

34. In paragraph 21 of her affidavit the mother asserted that the father was stalking her.  She set out details of that allegation.  The father denied that was the case and offered an explanation.  Those explanations, each as a single event, may have been plausible but in the overall regularity of the circumstances his explanations were implausible.  I am satisfied that the father used his presence to upset and intimidate the mother, using the veneer or pretext of excuses to do so.  An example of this was taking B to the mother’s house and leaving him outside for the mother in the rain waiting for the mother to come and get him.  Whilst the mother’s behaviour was appalling, so was that of the father.

35. Despite the concerns raised in the orders made in the Federal Circuit Court in November 2015 the father allowed B to stay at a friend’s house and believed it was not unreasonable for the boys to go to the beach unaccompanied for periods of time.

36. The father conceded that he retained B and C for the weeks before an appointment with Dr G.

37. The mother says and believes:-[23]

    26.He [the father] will not stop until I have nothing – no children and no money.  He believes he is entitled to them one hundred per cent.

    [23] Mother’s trial affidavit paragraph 26.

38. Whilst that is an exaggeration by the mother, the father’s drive by behaviours is at times intimidatory by him of the mother.

39. The father gave evidence that J had not made any allegations in his presence.  I accept that evidence.

40. In his evidence the father conceded that the children may have heard bad things said about the mother in his home and the paternal grandfather’s home given the intensity of the litigation, although he has no particularly recollection. It is clear that B has some knowledge of something going on, although the source of that information is not clear.

41. After the various allegations made by J in 2013 it was arranged that she see Ms T in the middle of that year.  She saw her on about ten occasions.  The father conceded that he initially consented to the child seeing this person, but he later complained that he was not informed of those appointments.  This is again indicative of the high levels of conflict between the parties.

42. The father gave evidence of his employment as a senior manager.  Given that employment the father needs to travel on regular occasions, and I am satisfied that during the relationship the mother was the primary carer of the children and that the father provided significant help when he was at home.  This was particularly in terms of B with the challenges which he presented his parents.  I am satisfied that his assistance was somewhat less than is asserted by the father and was somewhat more than was asserted by the mother in her various affidavits.

43. In terms of the arrangements with J, if this Court accommodates the father’s application, the father says that there would need to be a block period where J did not see her mother, and then time would build up from once a month to fortnightly over a period of time.

44. I am not satisfied that the father has given any serious consideration to the impact this will have on J by removing her from her primary care giver or by removing her to the care of the father where, J believes, whether rightly or wrongly, that she was the victim of sexual abuse by the father or the paternal grandfather.

45. The father’s lack of insight in terms of this is also indicative of his lack of concern at the paternal grandfather continuing to cuddle J when she came to his house.

46. The father seems more concerned about the well-being of the paternal grandfather and the preservation of the paternal grandfather’s rights to the child rather than the feelings of J.

47. It is clear that J will have a very difficult time if she is removed from the mother’s care.

48. The father’s approach is in some ways superficial given the expressed views of J.  In his affidavit of 19 September 2013 the father said:-[24]

    During one of the phone calls [the mother] screamed hysterically at me and alleged that my father was a paedophile and that I had sexually abused [J]. …

    [24] Paragraph 32.

49. The mother admitted in a later affidavit that she had said this.  In his evidence the father changed his language to say:-

    Now I know why [the child] is so obsessed with bottoms because you suggested that I poked him there.

50. The father had adopted the language that the mother, from his perspective, had used against him and had expanded the meaning of those words. 

51. B had some difficulties in terms of his interaction with other students.  His paediatrician, Dr P, made some comments about B’s behaviour in June 2013.[25]  The father’s endeavour to sheet home to the mother the behavioural difficulties presented by B does not work.  The parties struggled with B’s behaviour and in the context of that they were unable to have a parenting alliance to provide consistent approaches.

    [25] Exhibit M3.

52. For example, I find that immediately prior to separation the father had adopted the use of corporal punishment from time to time and the mother did not.   

53. This was supported by and supported to father’s less than child focused response in terms of his response to disclosures made by J, when the father did not ask the paternal grandfather to moderate his cuddling of the child.  That approach was not child focused.  The father had Dr Q’s 10 April 2014 report where at page 30 she says:-

    … Asked if she had ever gone outside the gate, [J] said

    “Yes Daddy said we could but the boys didn’t want to, so I got a water balloon and filled it up and took it outside the gate and threw it onto the road, then two people ran up and poked me in both bottoms”

    Asked if this was a scary experience for her, [J] said

    “it was just strange”.

    She said it did not hurt.  Asked if they poked her with her clothes on or off, [J] said

    “With my clothes off … they pulled my undies down”.

    Asked if she told anyone what happened, she said

    “I told Grandpa and Daddy, but they didn’t listen; Mum did”. Asked by what she meant by saying ‘they didn’t listen’. [J] said “they didn’t care”.

54. This was a clear warning to the father that the child may have felt unheard and yet I am satisfied that the father was so sure that this was manipulated that he did not take even basic protective steps.

55. The father presents as an urbane, sensible and well balanced witness.  However, when the surface is scratched a little, such as his behaviour with regard to the mother’s witnesses and his, at times, bullying behaviour, I am careful about his evidence.  I do not reject it entirely, however parts of it were designed to persuade and were focused on the father’s desire for a particular outcome.

Mr F Sullivan

1. Mr F Sullivan is the children’s paternal grandfather (‘the paternal grandfather’) and he provided evidence contained in his affidavit filed and sworn 15 May 2015.  This was read into evidence without objection, subject to weight.

1. J has made complaints about sexual abuse to which I have alluded earlier.  It started with a man and a boy at school and then a man and a boy outside her grandfather’s home, then later the father, paternal grandfather and a brother.

2. I have had regard to the evidence of Dr Q, to which I have alluded earlier, and the evidence of Ms T in particular her report of 21 July 2014 where she observed:-[84]

   Young children rarely lie, imagine, or make up stories about sexual abuse.  In 98 per cent of cases children’s statements about sexual assault are found to be true (Child Sexual Assault Facts and Statistics published by Bravehearts, updated 2012).

   [84] Exhibit ICL4 page 2.

3. There was no real challenge to that research in the evidence given by Ms T.  There was a challenge in terms of this child given the changing nature of her disclosures and in the context of the, at best, ambivalence of the mother to the father and or, at worst, the hatred of the mother towards the father.

4. As such, I am satisfied that it is more likely than not that J was the subject of sexual abuse of some kind.  I make no particular finding of the circumstances of that sexual abuse and by any particular person.  I am satisfied that it is unlikely to be the father.

5. Given the evidence, which I have discussed earlier, I do not find that the mother fabricated this evidence or consciously induced the child to make these disclosures and I accept the evidence of Dr Q in this respect.  It is of course possible that the child recognised the mother’s views towards the father and has seen making disclosures to her as a way of pleasing the mother.

6. I am equally satisfied that the mother and the maternal grandmother have made enquiries of and had discussion with the child in relation to the alleged events involving the father.  Particularly, given their negative attitudes of him.  In evidence the maternal grandmother said that she had asked questions of the child.

7. Neither the father nor the paternal grandfather provided formal statements to Tasmania Police.  Each of them exercised their legitimate rights in a civil society to decline to do so.  I cannot, and do not, criticise them for adopting that approach given that this approach was made on legal advice.  The father and paternal grandfather each gave evidence denying any inappropriate behaviour towards J.  Evidence was given by Senior Constable U that when the paternal grandfather found out that there had been disclosure about him he was angry and upset.

8. The father and paternal grandfather have exposed themselves to cross examination during this hearing.

9. Much was made by senior counsel for the father that there was no prosecution in relation to the allegations.  As I said earlier, this must be seen as an entirely different context, this is a risk assessment and not a criminal prosecution.  The evidence of the sexual assaults comes by way of disclosures by J at a time when she was very young.

10. The Director of Public Prosecutions concluded that on the evidence available there was no basis upon which to commence a criminal prosecution against named or unnamed parties.

11. Given the evidence in relation to the disclosures I cannot and will not make a positive finding that those events occurred.  However, as is often the case, it is not possible for me to determine that such abuse did not occur through the father, paternal grandfather or brother.

12. On the mother’s case and on the submissions of the Independent Children's Lawyer J is not at risk of abuse in the unsupervised care of the father.  Further on the case of the Independent Children's Lawyer the paternal grandfather does not pose a risk of abuse to the child.

13. The father has made it clear that he has no doubts or concerns that the paternal grandfather did not, in any way, abuse J nor could he in any way have abused J.  The father, from the very beginning, has concluded that J was not the subject of abuse and that this whole process was driven by the mother through her pathological hate of him.  Given that state of mind I am troubled that he may not provide the level of protection necessary for this child if allegations are made by her in the future.  He is likely to believe that it came, not from J, but from the mother.

14. On the other hand I find that any disclosure made by J to the mother is likely to be the subject of discussion and at times amplification.  Alternative explanations have not been given any serious consideration.

Section 60CC (3) Factors

Section 60CC (3) (a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

1. In her report of February 2015 Dr Q said:-[85]

   It was stated in this writer’s report of 2014 that:

   “[J] is a bright and bubbly little girl who takes time to get to know people before opening up to them. She presented as happy in her current circumstances (at most recent interview), with a stated desire most recently to see more of her father. She appears to be not overly affected by the recently alleged sexual assault, but did find it challenging to discuss this. In general she appears to be recovering well from the grief and shock of her parents’ separation.”

   In contrast, [J] was more subdued throughout the current interview (16 January 2015). She chose at times to communicate via her teddy bear …, which seemed to be something of a revelation to her, to be able to talk about confronting issues in a non-confronting way. Despite being more subdued than in 2013/14, it was apparent that [J] was willing to participate in the interview. She displayed appropriate emotional range congruent with the content of her conversation as she moved from light to heavier topics. She did not appear pressured to disclose particular information, nor did she seem rehearsed/coached in her disclosures, although “poke me up the bum” seems to be a catch-all phrase that she has become accustomed to using to describe what she is alleging has occurred to her.

   It is noted that following [J’s] first disclosure in March 2014, she was seeking additional time with her father. In contrast, following subsequent disclosures [J] seems afraid or at least reluctant to spend any time at all with him and the paternal grandfather. It has been documented elsewhere [in CPS records] that [the father] has reportedly accused [J] of lying and has pressured her to hug her grandfather. These actions may have contributed to the difference in her wishes with regards spending time with [the father] (in addition to her belief that [the father] has also engaged in the alleged sexual abuse).

   [85]Pages 21 and 22.

2. Later in the report Dr Q observed:-[86]

   [J] stated she does not want to visit her father, due to fear of sexual abuse. She said she does however miss him. It is the opinion of the undersigned that ultimately [J] desires a positive relationship with her father, but until the sexual assault allegations are resolved and [J] feels confident in her safety (SASS involvement will aid this), it is not deemed to be in [J’s] best interests to force contact. Naturally if [J] requests contact, this should be supported and encouraged, with safeguards for her actual and perceived safety in place.

   [86]Page 53.

3. Initially J’s views were of missing her father and wanting to spend more time with him.  By January 2015 J said to Dr Q that she missed her father but did not want to see him.

4. Attempts to make telephone contact through the contact service have failed with the Children’s Contact Service reporting that J did not want to speak to her father.

5. The father reports J is happy to see him when they have had accidental meetings[87].

   [87] Father’s affidavit 30 April 2015, paragraph 53. 

6. The father’s position is that the mother does not encourage any relationship between him and J and actively discourages such relationship. As J is strongly attached to her mother, J will take on board that view to please the mother - the father suggests this is supported by SASS on page 3 of their report where it is stated:-

   when asked to reflect upon her own thoughts and emotions, J would often describe those of others, especially those of her mother.

7. I am satisfied that given the right circumstances and the mother’s support, J would communicate and spend time with the father. 

Section 60CC 3(b) the nature of the relationship of the child with:

(i)     each of the child’s parents; and

(ii)    other persons (including any grandparent or other relative of the child);

1. The mother has been the primary carer of J for all of her life and has a close and loving relationship with her. J is close to her maternal grandmother, aunt and cousins.

2. The father had an attached, close and loving relationship with J until October 2014. That relationship has diminished since that time. Intervening events through Dr Q, Dr G, Dr K and the Children’s Contact Service have not succeeded in enabling even supervised time or modest communication.  In that regard I particularly note the evidence of Dr K.

3. I repeat that the mother is unlikely to promote a relationship between the father and J.  She submits that it should occur but deposes that it needs to be supervised and a decision of J.  The mother has obstructed the recommencement of time between the father and J.  The mother says she believes J is at risk of sexual abuse and emotional abuse in the father’s care.  As I indicated earlier, I do not believe her.

4. J is or has been exposed to the conflict between the parties in both households and has had each parent demean and or belittle the other in J’s presence.

5. J had a close relationship with her paternal grandfather but now she believes he had abused her.  J has a good relationship with her paternal aunt.

Section 60CC (3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)     to participate in making decisions about major long-term issues in relation to the child; and

(ii)    to spend time with the child; and

(iii)   to communicate with the child;

1. Prior to separation both parents participated in major long term decisions in relation to the children. Since separation, the father has endeavoured to take part in such decisions with regard to J, but this has been frustrated by the parental conflict, mutual hatred and lack of trust and the cessation of time following the series of disclosures by J.

2. The father has endeavoured to spend time with and communicate with J since separation.  The mother has not promoted time since at least October 2015.  She has undermined the suggested telephone time through the Children’s Contact Service and has belittled the father’s sensible suggestion of the park meetings at Christmas 2014 and 2015.

Section 60CC3(ca) the extent to which the child’s parents have filled or failed to fill their obligations to maintain the child;

1. This was not seriously argued.  The father contended that he continued paying the mortgage after separation and pays assessed child support.  

Section 60CC 3(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)     either of his or her parents; or

(ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. The maintenance of the present situation in terms of no time between J and the father will cause harm to the child as I have briefly referred to earlier in these reasons, in terms of the evidence of the expert.  She will continue to believe that he has abused her and possibly develop or have a fear of him. 

2. If I do as submitted by the father and the Independent Children's Lawyer, that is change the primary residence of this child in circumstances of her beliefs, it will deprive her of her primary carer, who on the evidence of others (including experts) is otherwise a good and caring mother. 

3. The father contends that there is no professional evidence that J will not cope with this change of residence.

4. Dr Q is not so sanguine, she says:-

   [J] reports being fearful of her father and paternal grandfather being “mean” to her if she visits them (she defines ‘mean’ as being that they will “poke me up the bum”, i.e., subject her to sexual abuse). Her anxiety in this regard is likely to increase the more time is spent with no contact (because her fears can’t be refuted, relationships can’t be repaired). However, given that the issue of the alleged sexual abuse is unresolved, it cannot at this stage be said that [J] should be pressured into having contact with her father.[88]

   [J] stated she does not want to visit her father, due to fear of sexual abuse. She said she does however miss him. It is the opinion of the undersigned that ultimately J desires a positive relationship with her father, but until the sexual assault allegations are resolved and J feels confident in her safety (SASS involvement will aid this), it is not deemed to be in [J’s] best interests to force contact. Naturally if [J] requests contact, this should be supported and encouraged, with safeguards for her actual and perceived safety in place.[89]

   It should be appreciated that if the court is unable to determine whether or not [J] was assaulted, the fact remains she believes she was. This raises significant questions about the potential harm of forcing contact with [the father] and [the paternal grandfather]. Guidance from SASS should be sought before contact is encouraged (i.e., [J’s] fears will need to be addressed first, and confidence built in her capacity to be safe in their company – regardless of whether or not abuse actually occurred).[90]

   [88] Dr Q’s second report 20 February 2015, page 52.

   [89] Ibid page 53.

   [90] Ibid page 61.

5. On this evidence I am concerned that there will be more than ‘teething problems which can be overcome’.  This also must be considered in the light of my findings and concerns about the veracity of the father’s claims that he would be able to actually listen to J if she makes further disclosures, particularly in respect of the paternal grandfather.  Dr Q noted the following, although I am not so confident that the father would be as protective as Dr Q hopes:-[91]   

   [The father] is firmly of the belief that his father did not sexually abuse [J]. However, he has stated that he is open to reconsidering his position if evidence to the contrary was presented. It is the opinion of this writer that [the father] would comply with any orders restricting access between [J] and [the paternal grandfather] despite appearing less than protective to date (prior to [J’s] refusal to return to visit him) by reportedly accusing her of lying, reportedly forcing [J] to hug [the paternal grandfather], and allowing incidental contact between [J] and [the paternal grandfather] at school by way of his collecting [B] and [C].

   [91] Ibid page 62.

6. If the Court does not change J’s residence it is possible that the father will have no time with J.

7. The parties entered into orders in respect of B and C, the effect of those orders is that J will have contact and communication with her brothers irrespective of which household is or becomes her primary place of residence. or orders no time with the father.

Section 60CC 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. This is not a major factor.  The parties live relatively close to each other and but for their personal ‘War of the Roses’ this factor would not be a problem.

2. The only concern I have is that the father is employed full-time in a senior role requiring interstate travel.  That will make the full time care of J difficult but not impossible.  It will mean leaving her in the care of others, from time to time.  Given the gulf between the parents and their families it is unlikely that he would look to the mother or her family to assist.  

Section 60CC 3(f) the capacity of:

(i)each of the child's parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

1. The mother has always been the primary care and I repeat that which I set out above in respect of her parenting but for the father.

2. The father was in a more limited way involved in the day-to-day care of the children, including their school and extracurricular activities.

3. I repeat and reiterate that which I have earlier set out in these reasons.

Section 60CC 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

and

Section 60CC 3 (h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

1. No relevant submissions were made in respect of these factors.

Section 60CC 3(i) the attitude to the children, and the responsibility of parenthood, demonstrated by each of the children’s parents;

1. I repeat and reiterate that which I have earlier set out in these reasons.

Section 60CC 3(j) any family violence involving the children or a member of the children’s family; and

Section 60CC 3(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)the nature of the order;

(ii)the circumstances in which the order was made;

(iii)any evidence admitted in proceedings for the order;

(iv)any findings made by the court in, or in proceedings for, the order;

1. The father denies any family violence.  The only issue was the interaction with B, which I have discussed above and to which I have had regard in the overall determination.

2. I have had regard to the family violence proceedings referred to by the parties in their affidavits.

Section 60CC 3(l) whether it would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the children;

1. The father’s case is that the change of residence would enable a relationship between the child and both parents.  Whatever decision I come to, unless and until these parties end their conflict, orders are the least of their concerns in terms of further proceedings.  

Section 60CC 3(m) Any other relevant facts or circumstances the Court thinks is relevant;

1. No relevant submissions were made in respect of this factor.

DISCUSSION

1. I identified four major areas of risk earlier in these reasons.  Two I have dealt with earlier in these reasons.

2. First, the risk that J may be exposed to sexual abuse by the father or in his unsupervised care including the risk of sexual abuse by the paternal grandfather father or in his unsupervised care.  Second the risk that J may be exposed to psychological harm because the mother promotes a false belief in the child that she was sexually abused by the father and/or the paternal grandfather and he mother preventing J from having a relationship with the father and his family. 

3. The history of the allegations of sexual abuse have been set out in the second report of Dr Q, this provides a generally accurate outline of the disclosures:-[92]           

   [92] Paragraph 13.

   13.Based on examination of documentation provided by the Independent Children’s Lawyer, review of subpoenaed material, discussions with authorised professionals including Tasmania Police, [Ms T] and Principal of [H School] and interviews of parents and children, what has [J] disclosed, to whom, when and how often?

   e.Initial disclosure from J to [the mother] contained within an email from [Mr W] to [the Independent Children’s Lawyer] (11 March 2014)

   i.On 10 March 2014, J reported to [the mother] that a boy at school stole her hat;

   ii.[J] said the same boy put a finger in her “front bottom” and then in her “other bottom”;

   iii.[The mother] stated she would speak with the school;

   iv.[J] did not want [the mother] to speak with the school, and then said it was not the boy at school but a man outside “Grandad’s house”;

   v.[J] reportedly provided a detailed account of playing outside [the father’s] gate with water balloons when she was approached by a man who said “I have a beard but I am really a boy not a man”;

   vi.The man reportedly then pulled down [J’s] underpants and put a finger in her front bottom and then in her other bottom;

   vii.The man was reportedly accompanied by a boy aged approximately 8 to 10;

   viii.The boy reportedly also put his finger in one bottom and the man put his finger in [J’s] other bottom, and one of them had poo on his finger;

   ix.[J] said to [the mother] “I tricked them. I said I was going to do a wee and I would come back, but I didn’t go back. I went and told Daddy”;

   x.[The father] reportedly accompanied [J] to the front of the property to look for the perpetrators, but there was no-one there;

   xi.[The paternal grandfather] reportedly told [J] not to tell anyone “including your mother”.

   xii.[The mother] stated that this disclosure followed [J’s] complaint of a sore vagina, which she had complained of on other occasions upon return from the paternal grandfather’s (and at that time the father’s) home.

   f.[J’s] disclosure to the undersigned at interview on 12 March 2014

   i.During a discussion about stranger danger, [J] said she was not allowed outside the gate at either her mother’s or father’s homes, as “someone might steal us”;

   ii.Asked if she had ever gone outside the gate, J said “yes, Daddy said we could but the boys didn’t want to, so I got a water balloon and filled it up and took it outside the gate and threw it onto the road, then two people ran up and poked me in both bottoms”;

   iii.Asked if this was a frightening experience, [J] said “it was just strange”. She said it did not hurt, and that the assault took place “with my clothes off … they pulled my undies down”;

   iv.Asked if she had told anyone, [J] said “I told Grandpa and Daddy, but they didn’t listen; Mum did”. She added that her father and grandfather “didn’t care”.

   v.[J] stated she was not worried about this incident and had not had any nightmares about same.

   g.[J’s] disclosure to [agency unknown, possibly Tasmania Police or [S Hospital]] as documented in CPS case files, 13 March 2014

   i.Disclosure consistent with the above content;

   ii.Notes include details about the 8 year old boy and the old man described as the perpetrators of the above assault, including that the old man wore a work uniform with purple strips;

   h.15^th April 2014 – Notes contained within CPS file

   i.[The mother] reported that she found [J] on the floor of her room on all fours, gyrating her pelvis in a rhythmic fashion and breathing heavily making panting noises. Asked what she was doing, J reportedly told [the mother] words to the effect of “this is what the man was doing, and he was breathing heavily”. She also reportedly told her mother that when the man took his finger out of her bottom it had poo on it and he put it in there 50 times. She reportedly then told her mother it had only been one time.

   i.22^nd April 2014 – Notes contained within CPS file

   i.[J] had told [the mother] following the weekend visit to her father’s (and grandfather’s) home, that the grandfather said “Mummy has a cold heart” and threatened to punch [J] in the face if she didn’t agree;

   ii.During the same visit, the grandfather reportedly insisted on [J] giving him a cuddle when she didn’t want to, then turned her around so [the father] couldn’t see and poked her in the bottom;

   j.4^th May 2014 – Notes contained within CPS file

   i.After an overnight stay at the father’s (and grandfather’s) home, [J] is reported to have disclosed to [the mother] that this time the grandfather “didn’t make me give him a cuddle if I didn’t want to”, and that she took one step toward the grandfather and he then poked her in both bottoms;

   k.25 June 2014 – [J’s] disclosure to [Ms T] (clinical psychologist)

   i.During a session with [Ms T], [J] said that on her father’s birthday, [the father], [B] and [C] were inside the house when her grandfather touched her “on her private parts”. She stated this took place on top of her clothes [although [the mother] later advised [Ms T] that [J] later changed this to be under her clothes]. She said this occurred “at the back door when I came in”.

   ii.[Ms T] also documented that [J] appeared anxious when shown a drawing claimed to have been drawn by [J] of the sexual assault that took place outside [the father’s] home in March 2014. [J] reportedly did not recognise the drawing as one she had done.

   l.1 July 2014 – [the mother’s] statement to [Ms T] (clinical psychologist)

   i.[Ms T] notes that [the mother] reported that [J] has said she feels worried when she has to see her father and her grandfather;

   m.8 July 2014 – [the mother’s] statement to [Ms T] (clinical psychologist)

   i.[Ms T notes] that [the mother] reported that [J] wet her bed at [the father’s] home in the preceding week;

   n.15 July 2014 – [the mother’s] statement to [Ms T] (clinical psychologist)

   i.[Ms T] notes that [the mother] stated that [J] had been clingy at a children’s gathering they had attended together, but once she was more settled J then puller down her pants and underpants and ran around on the trampoline;

   o.9 September 2014 – Email from [the mother] to [Ms T] (clinical psychologist)

   i.[the mother] stated that [J] had made the following statements to her:

   1.      On 9 August 2014 [J] is reported to have said of the paternal grandfather “I was worried he would do it again”;

   2.      On 18 August 2014 [J] reported that [the father] forced [J] to hug the paternal grandfather against her will. [J] said to [the mother] “I hugged him but he didn’t do it then, I was worried he would do it”.

   p.14 October 2014 – [J’s] second disclosure to [Ms T] (clinical psychologist)

   i.[The mother] accompanied [J] to her final session with [Ms T] so that [Ms T] could review skills/strategies covered during their therapeutic work together;

   ii.[J] was reportedly seated on [the mother’s] lap;

   iii.[The mother] reportedly said “[J] wants to tell you something”;

   iv.[J] reportedly hid her face, so [Ms T] asked “[J] what do you want to tell me?”

   v.[J] is then reported to have said “Grandpa held his hand over my mouth and asked Daddy to poke me in the front bottom and [B] to poke me in the back bottom”. [Ms T] notes that [J] then immediately went on to say “one day when I was playing in the garden grandpa pulled my pants down and poked me in the front and back bottom”.

   1.     It is noted from [Ms T’s] case notes that [the mother] said [J] made this disclosure to her three weeks previously, following a session with [Ms T] where [J] and [Ms T] discussed “good vs bad secrets” and when to speak up;

   q.16 January 2015 – [J’s] disclosures to this writer (as detailed in the interview section above)

   i.[J] said [the father] and [paternal grandfather] “poked me up the bum”;

   ii.She said her “underpants and trousers were on” and that it happened on multiple occasions with “underpants and trousers and shorts and jarmies” on;

   iii.She felt “angry and sad” about what had happened;

   iv.She added “and Grandad did it in his garden”.

   v.She said she worried about “going back to Dad’s and Grandad’s and seeing them … because they’d be mean to me”. She clarified ‘mean’ to be that they would “poke me up the bum”.

   This writer is aware that additional disclosures may have been made Tasmania Police, documentation of which has not been provided to this writer.

1. A fundamental consideration in this proceeding is the alleged sexual abuse of J.  The mother genuinely believes that the child has been abused by either a stranger or the paternal grandfather, and perhaps the father.  She deposes, but I do not accept, that the father may have been the abuser.

2. From that which I have discussed earlier and the orders sought by the mother, she does not believe the father abused the child and accepts that it is inherently unlikely.

3. The father believes that the mother has made false allegations in relation to the alleged abuse of J and that the mother is promoting those ‘false allegations’ and encourages the making of false allegations.  It is on that basis, amongst other things, that the father says the primary care of J should be moved from the mother to him.

4. I am satisfied of the following:-

   a)Issues of allegation of sexual abuse allegations arose when, on 12 March 2015, J complained to the mother that she had been sexually abused either in the street outside the paternal grandfather’s home or at the school.  The second part of that complaint was that J raised it with the father and the paternal grandfather who both dismissed her concerns;

   b)The first complaint was directed against a stranger, and that circumstance is contrary to the fundamental precept of the father that it was a conspiracy against him;

   c)I accept Dr Q’s conclusion that it was more likely than not, that this child has been sexually abused; and

   d)Given that evidence, I have reasonably concluded that in early March 2015, J was sexually abused by someone.

5. Given the conflict between these parents what followed was almost inevitable.  The mother overreacted and connected the abuse to the father and interpreted the father’s reaction to the abuse in the context of her hate for him.  On the other hand the father immediately assumed that this was a device to adversely impact on his relationship with the child.

6. Having concluded that it is likely the child was abused, the next question must be who was the abuser:-

   a)Was it the stranger outside the school or the paternal grandfather’s house; or

   b)Was it the paternal grandfather?

7. Either premise is possible.  It could have been a random attack of which a young child struggled to make sense or, alternatively, an inappropriate touching by a family member of which the child struggles to make sense and initially deflects the complaint to the apocryphal stranger.

8. My task is prospective in that I need to protect this child from the risk of further abuse into the future.  I am entitled to consider possibilities reasonably based on the evidence.  If I accept that it was more likely than not that the child was sexually abused in March 2015 (as I do) then, without some form of intervention, the child remains at risk into the future.

9. My task is not to make a finding of guilt or to necessarily determine what happened in the past.  It is to put in place those protective measures.  If it is either the stranger or the paternal grandfather the prevention or mitigation of the risk is the task, and in this case it does not mean the child should be isolated from one parent or the other.  Unless of course a parent is not protective of the child.

10. As to the risk that in the future J may be sexually abused by the father, I find that it is unlikely given all of the material before me.  This in essence accords with my findings of the mother’s beliefs of abuse by him and accords with the submissions of the Independent Children's Lawyer.

11. Given the evidence, I am not so sanguine in terms of the father being wholly protective of the child if the abuser was the paternal grandfather.  The father does not see any risk from the paternal grandfather.

12. Given the evidence of the experts, the detrimental consequences of ongoing sexual abuse of the child are extreme and any assessment must be made in that light.

13. In relation to the possibility of abuse by a stranger, the recognition by this Court (and hopefully the parents) that the child has been abused, should mean and must mean that the risk to the child is minimised by the parents’ acknowledgment of that circumstance, the greater vigilance by the parents and by the continuing provision of health treatment and support for the child.

14. In relation to the paternal grandfather it is more difficult.  I repeat that this proceeding is not a criminal trial, there are no findings of guilt.  It is a mechanism to provide future protection for the child against the possibility of further abuse given the extreme consequence of any such abuse.  I have determined that the better course for J is to exclude the paternal grandfather from her until the trauma of the abuse, from whatever source, is such that it is safe for her to see the paternal grandfather.  If contact is to resume orders need to be in place to ensure they J is never left alone with the grandfather.  This will provide protection for both J and the grandfather.

15. Accordingly, I will make an order that the child is not left in the unsupervised care of the paternal grandfather, accept as is agreed by both parents and is otherwise reasonably recommended by Dr K or whoever is the child’s treating psychologist.  This means I am not delegating the responsibility to Dr K, but I am requiring the parties act on her reasonable recommendations.  This has the clear point that if the recommendations are, in the view of one or other party, not reasonable, then it will become a matter for the Court.  

16. It may be that, in reflecting on possibilities and adopting this course, the court could cause injustice to the paternal grandfather.  However, my task is to protect J and I have determined that she should not see him, particularly given her beliefs. However, if she feels safe and comfortable to do so (with the assistance of Dr K) then she may eventually do so, but with supervision

17. The Independent Children’s Lawyer should inform the J of these orders.

18. Through these orders I believe this Court has significantly reduced that risk of sexual abuse of the child.  Consequently there is no reason why J, with the help of Dr K, cannot be permitted to restore her relationship with the father.  It is in this environment that I must consider whether J may be exposed to psychological harm if the mother is or has promoted a false belief in the child that she was sexually abused by the father and/or the paternal grandfather and if the mother is now likely to prevent J from having a relationship with the father.

19. The risk that the mother will continue to prevent, deflect and inhibit this relationship is high.  The impact of excluding J from her father is grave.  Given the evidence of the experts to whom I have referred earlier, it will have a significant detrimental impact upon the child.   

20. I am satisfied that the mother has not intentionally turned J against the father or has not intentionally coached or inculcated in J a false belief that the father sexually abused her.  However, I am confident that the mother did not disabuse J of any such notion as it fitted within the mother’s dislike of the father and his family.  Further, I am satisfied that the mother uses terms like paedophile and the like lightly as was displayed soon after separation.  I find that the mother is unlikely to encourage a relationship between J and the father.

21. J is progressing well at school and the mother seems otherwise a good parent.  This is not a young child where a changeover of residence would be easy on her and the expert evidence is that it would have a profound impact on J.  It would also mean J would have a sense of not being heard in terms of her disclosures.

22. Given my concerns about the mother possibly interfering or blocking J’s paternal relationship, as she has done in the past, I am offered the extreme approach pressed by the father and the Independent Children's Lawyer, that is, a change of primary residence.  I seriously considered doing just that, but for all of the reasons set out in this judgment I have decided not to do so.  It was a fine decision and if the mother continues to adopt that course it is likely to lead to further proceedings, including contravention proceedings, which in turn may lead to a change of J’s place of primary residence.  To reduce that possibility I intend to give leave to the father to apply for a change of residence in the event that there is contravention of the spend time with orders.

23. It is my view that such an order would reduce the possibility of the mother contravening the time and communication orders.

24. The mother should treat this part of the reasons as a warning.

25. In coming to this final decision I had regard to the submission by senior counsel for the father that the only way J can have a relationship with both parents is through the father.  Of that I am not sure, particularly since the father showed himself to be vindictive at times, in the complaints against the mother’s witnesses, and his approach regarding the boys spending time with the mother.  It was clear to me that the father did not promote the mother’s relationship with the boys.  He was content for them not to see the mother.

26. However, in recent times, he has facilitated orders for equal time.   

27. I carefully considered the submissions of the Independent Children’s Lawyer, for they are not to be taken lightly.  It was her view that the mother presented in an awful way and would likely undermine any arrangements.  I accept those submissions and have structured my orders to minimise that possibility.

28. Where my assessment differs from that of the Independent Children’s Lawyer’s submission in terms of the father is her somewhat benign characterisation of him and her submission that he was likely to promote a relationship. I do not accept that his anger and hate as so benign nor do I accept that he will promote the child’s relationship with her mother.

29. The outcome in this proceeding is the least worst option.

30. Given the allegations of violence and sexual abuse the presumption contained in s 61DA of the Act does not apply. Further, given the conflict and history to which I have referred to earlier in these reasons it would not normally be the case that I would seriously consider equal shared parental responsibility.

31. However, at the commencement of these proceedings, the parties entered into consent orders with regard to C and B and those consent orders provided that the parents have equal shared parental responsibility.  The Independent Children’s Lawyer, senior counsel for the father and the mother assured me that this process should work and no submissions were made to the contrary during the hearing of this matter over a significant period of time.

32. It would be a bizarre outcome if the parties were to be trusted with equal shared parental responsibility for B and C and that I then adopted a different course with regard to J, notwithstanding the conflict and notwithstanding the outcome.

33. Further, if there is to be some change from the existing conflict regarding J, and there certainly needs to be significant change, the obligation of these parents to communicate with each other in a civil and adult way in terms of the boys should be the same as with J.

34. I have considered the question of equal shared parental responsibility in the light of all of the relevant facts, circumstances, findings and factors and I determine that, in that case, there ought to be an order for equal shared parental responsibility.

35. J believes that the paternal grandfather has abused her and it is possible that in the context of his hate of the mother, the father will not be fully protective of J in terms of his father. As I indicated earlier, this makes the change of residence, at this stage, problematic. 

36. Having carefully considered all of the facts and findings in the context of the relevant factors I have, at this time, determined that J should continue to live with the mother.  As such I will make orders that provide that J live primarily with the mother.

37. As to time with the father, this is important to the child.  In terms of the commencement of time I am concerned that it will be a significant matter for J given the 18 months or so since she has seen the father.  The paternal aunt gave evidence and impressed in doing so.  As such, I will request that the paternal aunt attend at the first five Sundays when the father spends time with J.  This, at a much more moderate level, adopts the generality of the course submitted by the mother. 

38. The effect of this order will mean that the paternal aunt, if she is willing, will be there for the first five short periods of time on a Sunday.  Given that it is not clear to me that the paternal aunt will be available for each of those days I give leave for the father to apply, within 28 days of the date of this order, for an alternative person to be present in the event of the paternal aunt not being available.

39. This is not supervision as such, but someone needs to be present to soften the reunion between the father and J, given the history over the last 18 months to two years.

40. I will make orders that J spends time with the father and that such time is built up over the next seven to eight months to equal time over the school holiday periods and alternate weekends during school term.  To enable that to occur I shall make provision for Dr K to assist the child in this change.  

41. I shall also exclude the paternal grandfather from seeing the child until she is ready for such contact with him, if at all, from time to time in a safe environment  

42. Given my earlier comments and the parties’ submissions, I determine that there ought to be a mutual non-denigration order. 

43. I will order changeovers occur at school so that these parents should rarely meet, except in the middle of school holidays. In those rare times, the father shall collect and return the J.

44. I will direct that the parties harmonise the arrangements between the times so that the children spend time with one another and each parent. 

45. Given those circumstances, I propose to make orders for equal shared parental responsibility and to order unsupervised time between the child and her father. 

46. As such I will make order in terms outlined in these reasons.

I certify that the preceding five hundred and fifteen (515) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 13 May 2016.

Associate:     

Date:  13 May 2016