Summerby and Cadogen

[2010] FMCAfam 109

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SUMMERBY & CADOGEN [2010] FMCAfam 109

FAMILY LAW – Parenting orders – allegations of sexual abuse by both father and mother’s partner – finding of emotional abuse by mother, father and mother’s partner – which of the primary considerations in s.60CC(2) should prevail – child to live with mother no time with father.

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 69ZK, 70NAC, 70NAE, 70NAF, 70NDC, 70NFB
Evidence Act1995 (Cth), s.140
Evidence Act 1977 (Q), s.93A

CDJ v VAJ (1998) 197 CLR 172
Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247
Briginshaw v Briginshaw (1938) 60 CLR 336
WK & SR (1997) FLC 92-787
M & M (1988) 166 CLR 69; FLC 91-979
B & B (1988) FLC 91-957
W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129
Re W (Sex Abuse: Standard of Proof) [2004] FLC 93-192
Irish & Michelle [2009] FamCA 66
Russell & Close, Appeal SA 45 of 1992, 25 June 1993
S & P (1990) FLC 92-159
Rice & Asplund (1979) FLC 90-725
Dobbs and Brayson [2007] Fam CA 1261
Childers & Leslie [2008] FamCAFC 5
Elspeth & Peter [2007] Fam CA 655
Stevenson & Hughes (1993) FLC 92-363
TVT & TLM [2006] FMCAfam 20
Fooks & Clark [2004] FamCA 212

Applicant: MR SUMMERBY

Respondent: MS CADOGEN

File Number: BRC 3171 of 2007

Judgment of: Wilson FM

Hearing dates: 17 September 2007, 2 April 2008, 6 & 7 August 2008, 3 September 2008, 7, 8, 9, 10, 11, 18 & 21 December 2009, 28 January 2010 and 4 February 2010

Date of Last Submission: 4 February 2010

Delivered at: Brisbane

Delivered on: 12 February 2010

REPRESENTATION

Counsel for the Applicant:

Ms Zande (up to and including 3 September 2008)

Ms McDiarmid (7 to 11 December 2009, 18 & 21 December 2009, 28 January 2010 and 4 February 2010)

Solicitors for the Applicant: Corporate & Property Lawyers

Counsel for the Respondent:

Mr Leotta (up to and including 3 September 2008)

Mr Cameron and Ms Kirkman-Scroope (7 to 11 December 2009)
Mr Cameron (18 & 21 December 2009, 28 January 2010)
Ms Kirkman-Scroope (4 February 2010)

Solicitors for the Respondent: Smith & Associates
Attwood Marshall (from 3 September 2008)

Counsel for the Independent Children’s Lawyer:

Mr Selfridge (up to and including 3 September 2008)

Mr George (7 to 11 December 2009, 18 & 21 December 2009, 28 January 2010 and 4 February 2010)

Solicitors for the Independent Children’s Lawyer: Legal Aid Queensland

ORDERS

THAT UPON the Court finding that the respondent mother has, without reasonable excuse, contravened the orders made under the Family Law Act 1975 in the Federal Magistrates Court of Australia at Brisbane on 17 December 2007, in respect of allegations detailed in the application for contravention filed on 6 February 2008:

(a)On 21 December 2007, without reasonable excuse, the mother contravened para.6;

(b)On 3 January 2008, without reasonable excuse, the mother contravened para.6;

(c)On 17 January 2008, without reasonable excuse, the mother contravened para.6;

AND UPON the Court finding that the respondent mother has, without reasonable excuse, contravened the orders made under the Family Law Act 1975 in the Federal Magistrates Court of Australia at Brisbane on 29 January 2008, in respect of allegations detailed in the application for contravention filed on 26 March 2008:

(a)On 6 February 2008, without reasonable excuse, the mother contravened para.1(d);

(b)On 13 February 2008, without reasonable excuse, the mother contravened para.1(d);

(c)On 20 February 2008, without reasonable excuse, the mother contravened para.1(d);

(d)On 27 February 2008, without reasonable excuse, the mother contravened para.1(d);

(e)On 5 March 2008, without reasonable excuse, the mother contravened para.1(d);

(f)On 12 March 2008, without reasonable excuse, the mother contravened para.1(d);

(g)On 19 March 2008, without reasonable excuse, the mother contravened para.1(d).

THE COURT ORDERS:

1. That all existing parenting orders are discharged.

2. That the child [X] born [in] 2004 live with the mother.

3. That the mother have sole parental responsibility for the child.

4. That the contravention application filed 5 November 2007 be dismissed.

5. That the child’s name be removed from the Airport Watch List.

6. That the respondent mother pay the applicant father’s costs of and incidental to the application for contravention filed 6 February 2008, to be taxed on Federal Magistrates Court Scale of Costs, unless otherwise agreed.

7. That the respondent mother pay the applicant father’s costs of and incidental to the application for contravention filed 26 March 2008, to be taxed on Federal Magistrates Court Scale of Costs, unless otherwise agreed.

8. That the Independent Children’s Lawyer be discharged.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 3171 of 2007

MR SUMMERBY

Applicant

And

MS CADOGEN

Respondent

REASONS FOR JUDGMENT

1. The applicant father and the respondent mother are the parents of [X] born [in] 2004.  [X]’s parents are unable to agree on what parenting orders should be made in her best interests, and ask the court to make that decision for them. 

2. As s.60CA Family Law Act 1975 (“the Act”) makes clear, in deciding what parenting orders to make, [X]’s ‘best interests’ are the court’s paramount consideration.

3. As the majority High Court justices observed in CDJ v VAJ (1998) 197 CLR 172 at 219 best interests are values, not facts. The best interests of the child must be judged according to the facts and circumstances of each individual case. The court must be careful not to judge a party’s behaviour against some artificial or ideal standards. Often the choice confronting the court in parenting cases is between alternatives, both of which are less than optimal.

4. If it is kept uppermost in the consideration of what parenting orders to make, that [X]’s best interests are the paramount consideration, it is immediately apparent that parenting orders ought not be made to assuage concern about injustice to one parent or the other, nor to redress what may be perceived to be some unfairness in the outcome.  Nor should parenting orders be made as a form of retribution or penalty against one parent for what might be regarded as unacceptable behaviour on that parent’s part, if otherwise the best interests of the child warrant that parent having the primary or sole care for the child.

5. Before dealing with the current dispute in more detail, it is appropriate to record some initial observations. 

6. What was initially asserted to be a straightforward one day matter has occupied some 14 hearing days spread over the course of 28 months.  The evidence has been re-opened on three occasions.  Whilst not conducive to an expeditious resolution of the parties’ dispute, the way in which the proceedings have unfolded has allowed the court the opportunity to observe the parties on more than one occasion in the witness box, and take account of how they have behaved between the various hearing days.  It has also allowed the court to gain more than a passing impression of the parties. 

7. In addition to the taking of evidence in the final hearing of this matter a number of interlocutory hearings were interspersed between the final hearing days.  A brief chronology of the course of these proceedings is as follows:

14 March 2007	Father’s Initiating Application filed
28 March 2007	Interim parenting orders made (before mother had filed any evidence)
17 May 2007	Further interim parenting orders made (after filing of mother’s Response and affidavit evidence) and matter listed for final hearing
17 September 2007	First day of final hearing
5 November 2007	Father’s first contravention application filed returnable 17 December 2007. Father files Notice of Child Abuse
13 December 2007	Mother’s files application seeking to re-open evidence at final hearing and for interim parenting orders
17 December 2007	Further interim parenting orders made and mother’s application to re-open granted. Contravention application stood over
29 January 2008	Further interim orders made; orders for hearing of contravention application and further evidence in week commencing 31 March 2008
6 February 2008	Father files second contravention application
26 March 2008	Father files third contravention application
2 April 2008	Second day of final hearing and trial adjourned part heard to 6 & 7 August 2008
14 July 2008	Father files fourth contravention application
6 & 7 August 2008	Third and fourth days of final hearing and father’s fourth contravention application dismissed on procedural grounds
3 September 2008	Fifth day of final hearing and judgment reserved
19 December 2008	Father files application seeking injunctive relief to restrain mother taking child out of Australia
16 February 2009	Father’s interim application dismissed: see [2009] FMCAfam 211
8 July 2009	Father applies to re-open evidence
9 July 2009	Mother applies to re-open evidence
10 July 2009	Chief Executive Department of Communities (Child Safety) invited to intervene in proceedings, but declines to do so
1 September 2009	Father applies for injunctive relief and for child’s name to be placed on Airport Watch list
8 September 2009	Orders made restraining the respondent from removing the child from Australia and the child’s name be placed on Airport Watch list
10 September 2009	Mother applies to transfer proceedings to Family Court of Australia, and for further interim parenting orders; mother files Notice of Child Abuse or Family Violence
18 September 2009	Further interim parenting orders and matter listed for further final hearing 7 – 11 December 2009
1 October 2009	Parties ordered to attend counselling, and further interim parenting orders made
9 November 2009	Further interlocutory orders made
7 – 11 December 2009	Sixth to eleventh days of final hearing
18 December 2009	Twelfth day of final hearing
21 December 2009	Thirteenth day of final hearing and interim parenting orders made pending judgment
28 January 2010	Application by Independent Children’s Lawyer to re-open evidence, application granted
4 February 2010	Fourteenth day of final hearing

1. The court has, as the matter has progressed, intermittently published reasons for various interim decisions made.  It is not intended to traverse those matters again.

2. On 17 December 2007 an order was made for the appointment of an Independent Children’s Lawyer.  The court acknowledges the valuable assistance provided by the Independent Children’s Lawyer and the evidence adduced by her has greatly assisted in the determination of this matter.  The court understands that, from time to time, the Independent Children’s Lawyer’s task has been made more difficult by the refusal of the Legal Aid Office to extend funding. Those difficulties in part underpinned an application on behalf of the Independent Children’s Lawyer to have these proceedings transferred to the Family Court of Australia, where such funding considerations are apparently less stringent.  It is regretted that the Legal Aid Office takes that attitude.  The allocation of funding should not depend on the Court in which the proceedings are conducted.  If that were to continue, serious consideration would have to be given to transferring all parenting cases, in which an Independent Children’s Lawyer was involved, and where funding might be a concern, to the Family Court. An Independent Children’s Lawyer plays a very important role in parenting proceedings and the quality of the investigations that can be carried out and representation that can be offered ought not be of lesser standard according to the jurisdiction in which the proceedings are conducted.

3. What the above chronology does not reveal is that on 22 April 2009 the Department of Communities (Child Safety) became involved, and on 5 May 2009 the Department applied to the [omitted] Magistrates Court for a child protection order in relation to [X]. Between 26 June 2009 and 16 September 2009 [X] was subject to such an order. That had ramifications under s.69ZK(1) of the Act.

4. By the time the proceedings were finally completed, the court was required to deal with competing applications that [X] live with one parent or the other.  Although not formally abandoning his application to be the residential parent, the father, in his counsel’s final written submissions sought orders that he spend substantial and significant time with [X], essentially for extended weekends.  At the conclusion of the final hearing, the Independent Children’s Lawyer submitted that the court should make interim orders only.  The genesis of that submission, and why it should be rejected, are dealt with later in these reasons.

5. There are very many allegations and counter allegations made by the parties against each other.  In order to make a decision in this case, not every conflict has to be discussed, and resolved.  It is quite apparent, when one has regard to all of the evidence, that [X]’s parents detest each other and simply cannot co-parent [X].  The father’s persistent application that there be equal shared parental responsibility (although his position on that has vacillated, as will subsequently be seen) to my mind demonstrates a serious lack of insight on his part as to the state of relations between himself and the mother.  I will say more about that later. 

6. Two events in particular have had a cataclysmic effect on the parents’ attitude to each other and on their conduct of these proceedings.

7. First, on 6 October 2007 (shortly after the first day of the final hearing) the father took [X] to the [omitted] Hospital and alleged that she had been sexually abused by Mr M, the mother’s partner. The circumstance in which that allegation was made, and how it was investigated, was the subject of much evidence. It had the effect that the mother withheld [X] from spending any time with her father.  This, in turn, caused the father to file the first contravention application.  The mother applied to re-open the evidence alleging that the father was emotionally abusing [X], by coercing her into making false allegations against Mr M; although the contention that the father was emotionally abusive of [X] was not a new one, because it had been raised in the proceedings on 17 September 2007, albeit in a different context. 

8. Ultimately, by the conclusion of the third and fourth days of final hearing an interim parenting regime had been put in place that saw [X] spending extended weekends with her father in three weeks out of four.  That regime was initially put in place by interim orders of 28 January 2008.  [X] spent in the order of 10 nights out of 28 in her father’s care.

9. Not without some reluctance on the mother’s part, the parties adhered to that interim arrangement until April 2009.  On 22 April 2009 the second cataclysmic event occurred.  During the course of an interview conducted by Senior Constable B, [X] disclosed that she had been sexually abused by her father.  The circumstances in which that disclosure was made will be elaborated upon in due course.  That disclosure set in train a series of investigations by the Department of Communities (Child Safety).  It caused the mother to again withhold the child from spending time with the father.  The Department applied to the State Magistrates Court for a child protection order.  It arranged for the father to spend time with [X], supervised by a departmental officer.  The mother objected to this and for a period of time went into hiding with [X].  A warrant for the apprehension of the mother was threatened.  The father returned to spending time with [X].

10. When the matter returned to this court, in July 2009, the Court could not immediately make interim parenting orders because of the currency of the child protection order.  However, eventually the proceedings in the State court were terminated, and arrangements were again put in place for interim orders that the father spend time with [X] under supervision.  The requirement for supervision was made out of an abundance of caution, serious allegations having been made against the father, although they were denied.  As matters have transpired, the reports of the supervisors have provided valuable evidence to the court.

11. At the conclusion of the final hearing on 21 December 2009 the court made orders for [X] to spend time with her father under the supervision of Ms M, an experienced family consultant, in the court precincts, until the court was in a position to deliver judgment, foreshadowed as being at the end of January 2010.

12. Again, for reasons that will be elaborated upon in due course, both parents (but more particularly the mother and Mr M) behaved such that Ms M felt compelled to lodge a further Notification with the Department of Communities (Child Safety).  Further time between [X] and her father was suspended.  Ms M gave evidence, and was cross examined, as to the reasons for acting as she did. 

13. On 28 January 2010 a representative appeared on behalf of the Department, but was unable to assist the court as to whether the Department would be taking any further action on Ms M’s notification. Apparently, because of workload pressures on the Department at its Gold Coast office, no decision was expected for a period of eight weeks. Importantly, because the Department had not decided to take action at that stage, no order had been made under State legislation as would preclude this court from exercising its jurisdiction by reason of s.69ZK(1) of the Act, as was the case between May and November 2009.

14. The court has before it not only the competing applications of the parties for parenting orders, but also the contravention applications filed by the father on 5 November 2007, 6 February 2008 and 26 March 2008.  Those latter applications still need to be determined, notwithstanding the fact that their significance has diminished, having regard to the way in which events have subsequently unfolded. 

15. I am mindful of the observations of McHugh JA in Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 280 regarding the obligations of a trial judge to state the reasons for his decision. The reasons for my decision in this matter can be expressed very briefly, and I will do so shortly. However, because I am bound by authority to follow the statutory pathway prescribed in Part VII of the Act, and justify findings on the matters there required to be considered, so that my discretion ought be seen to have been exercised by reference to relevant considerations, these reasons are longer than I would have liked them to be. In this matter there were very many conflicts in the evidence between the parties not all of which it is necessary to resolve in order to reach a decision. I should add, however, for the sake of completeness, that I have read (in some cases on more than one occasion) an entire transcript of the evidence, and the voluminous affidavit evidence and exhibits relied upon by the parties. Simply because I may fail to mention a particular reference to evidence ought not to be taken as my having overlooked it. If every dispute between the parties were addressed these reasons would be very much longer than they are. Whilst reference to particular evidence or events is necessary, the disposition of this case depends, in my view, as to conclusions reached on the totality of the evidence, and having regard to the way in which the parties’ cases have been presented over an extended period of time.

16. My essential reasons for the orders that I make are as follows:

    a)[X] has a close and loving relationship with her mother, who is and has been her primary carer;

    b)[X] has a good and loving relationship with her father;

    c)[X] has a good and loving relationship with the mother’s partner Mr M;

    d)Neither the father nor Mr M has sexually abused nor inappropriately touched [X], nor do either of those gentlemen constitute an unacceptable risk of physical harm to [X];

    e)There was family violence in the relationship between the mother and the father that rebuts the presumption in s.61DA(1) of the Act;

    f)Each of the father, the mother and Mr M have emotionally abused [X];

    g)The parents cannot co-parent [X] without exposing her to further emotional abuse;

    h)It is not in [X]’s best interests to continue to expose her to emotional abuse;

    i)The expert evidence that I accept does not support a change in residence to the father’s primary care;

    j)The mother will not facilitate or support any relationship between [X] and the father;

    k)On balance, the loss of the relationship with her father will be less harmful to [X] than would be the loss of her relationship with her mother, or being regularly exposed to emotional abuse by both parents;

    l)In those circumstances, [X] should live with her mother and not spend time nor communicate with her father.

1. I am cognisant that the termination of a child’s relationship with one of her parents is a course of last resort.  This outcome is neither satisfying to the court nor edifying of either party.  However, when [X]’s best interests are the focus, rather than the expectations or hopes of either parent, the conclusion reached is inevitable.

2. It may be thought that the result arrived at demonstrates either an acceptance of the mother’s position, or a surrender to her unreasonable refusal to permit a relationship between the child and her father.  Neither of those conclusions is correct.  Once it is accepted, as I do, that it is not in [X]’s best interests to live primarily with her father; and that because of the antipathy between the parents any form of shared parenting would expose [X] to further emotional abuse, the court is really left with no alternative but to make the orders that I propose.  The orders should not be seen as any vindication of the mother’s actions.

3. Generally speaking, I found both the mother and the father to be unreliable witnesses.  I have reached the conclusion that each would say or do anything to cast the other parent in a negative light.  I also think it is fair to conclude that the parties’ attitudes, the mother’s more so than the father’s, hardened as the proceedings progressed.  I do not consider that either parent has demonstrated that their dislike for the other parent, or, in the father’s case, of Mr M is a view reasonably held.

4. Mr M, the mother’s partner, has also changed his attitude as these proceedings have progressed.  Whilst his earlier evidence had a flavour of independence about it, he is now, as one might expect, firmly aligned with the mother’s case and cannot be regarded as in anyway impartial. 

5. I would be reluctant to act and rely upon any evidence given by either the mother or the father, unless it was agreed between them, or there was some independent verification for such evidence.  In some cases it is necessary to choose between the evidence of the mother and the father, because theirs is the only evidence touching upon an issue.  I do not always prefer the evidence of one as against the other, but rather deal with each conflict seriatim.

6. The court must decide:

   a)The nature of the relationship that [X] has with each of her parents, and with other persons significant to her care;

   b)Whether [X] is at an unacceptable risk of harm in either household;

   c)Whether any form of parenting orders can be devised so that [X] can continue to spend time with both of her parents, without being exposed to emotional harm.

7. In considering each of those matters there are of course subsidiary issues that need to be considered, including:

   a)The nature of the relationship between the mother and the father, including whether that relationship involved family violence;

   b)The ability of the father to properly care for [X];

   c)The involvement of investigative authorities;

   d)Whether the expert evidence adduced, particularly by the Independent Children’s Lawyer, should be accepted in its entirety, or at all.

8. Each of these matters must, of course, be considered under the rubric of [X]’s best interests. In determining those best interests the court is required to consider the matters set out in s.60CC(2) and (3) of the Act informed by the principles and objects underlying Part VII of the Act set out in s.60B.

9. Although not raised until the first day of hearing was concluded, I think it is appropriate and necessary to deal first with the two allegations that have polarised the parties’ positions, namely the allegation made by the father that [X] has been sexually abused by Mr M; and the allegation maintained by the mother that [X] has been sexually abused by her father.

10. Before turning to the evidence, it will assist if I set out the relevant law to be applied, in these difficult and highly emotional cases.

11. A finding that sexual abuse has occurred can only be reached by strict application of the onus of proof as set out in Briginshaw v Briginshaw (1938) 60 CLR 336. In children’s matters under Part VII of the Act where the issue is a child’s residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. That includes situations where an allegation is made against a person with whom the child lives. Before trial judges find themselves compelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s.140 Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony or indirect references are insufficient to ground a finding of abuse: WK & SR (1997) FLC 92-787 at [47].

12. In M & M (1988) 166 CLR 69; FLC 91-979 (at 77,081), the High Court said:

    “…the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk ...

    To achieve a proper balance the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”

13. The possible findings in matters in which abuse is alleged are in accordance with the formulations proposed by the Full Court of the Family Court in B & B (1988) FLC 91-957 at 76,923 and the High Court in M v M.  In the former case the Full Court said:

    “In the course of the hearing of a custody or access application the Court may make one of the following findings in relation to an allegation of child abuse:  (a) the allegation is proved or (b) the allegation is not proved or (c) there is insufficient evidence to determine either (a) or (b). 

    Any such finding, however, may not necessarily be the determinate factor in the ultimate decision.

    The issue for the Court, in our view, is not whether a parent has sexually abused a child, but whether in all of the circumstances of the case access should or should not take place, following a consideration and evaluation of the various matters referred to in s. 64(1) [now s.68F(2)], including any findings in relation to child sexual abuse, with the overriding principle being paramountcy of the welfare of the child.”

14. It is well settled that the Court:

    “should refrain from making a positive finding that an allegation of sexual abuse is true unless impelled by the particular circumstances to do so and it is satisfied according to the civil standard of proof with due regard to the factors in Briginshaw …”: see B v B (1993) FLC 92-357 at 79,777 citing the High Court in M v M).

15. A comprehensive statement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what the relevant law is:

    “92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.

    Unacceptable risk test

    (a) What is meant by “unacceptable risk”?

    93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.

    94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:

    “(i) The reality of sexual abuse

    The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.

    ...

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

    95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:

    “courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”

    96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:

    “In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

    But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.

    Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

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

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

    His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.

    No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

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

    Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. [1976] V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B (1986) FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”

    97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.

    98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:

    “The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-

    ‘that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ (at page 77,081)

    The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

    ...

    It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”

    99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.

    100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.

    101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.

    102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:

    “With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”

    103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:

    “Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”

    104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:

    “Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”

    105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:

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

    This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”

    106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:

    “There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”

    107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph [48] reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:

    “...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”

    108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:

    “Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”

    109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.

    110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:

    “Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”

    111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.

    (b) The contact issue

    112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph [53] the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.

    113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph [74] of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.

    114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.

    115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.”

1. In re W (Sex Abuse: Standard of Proof) [2004] FLC 93-192 (at 79,217) the Full Court of the Family Court re-emphasised the “very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred”. Kay J. said:

   “The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort.  The Court should not shy away from reaching such a result in an appropriate case but at all times Judges should be conscientious that the adversarial or inquisitorial systems often reach results that are artificial.  The truth does not always come out.  A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent/child relationship.  A Court needs to remain conscientious of this imperfection at all times.”

2. The resolution of whether or not [X] has been sexually abused by either the father or Mr M is not determinative of the outcome of these proceedings.  A finding that there is no unacceptable risk in one or other household is also not determinative of the outcome of these proceedings.

3. I am unable to find, to the requisite standard, that sexual abuse has been perpetrated by either Mr M or by the father.

4. In each case, neither party adduced any direct evidence to implicate the alleged perpetrator.  That is not surprising, given that if such acts occur, they are unlikely to be committed whilst others are present.  However, it is significant that there is no objective or independent evidence supporting a finding of abuse.  No medical evidence was tendered showing that there was a likelihood of abuse having been perpetrated.  No evidence was adduced that [X]’s behaviour is consistent with sexual abuse having been perpetrated.  Conversely, in each case, the evidence as it was suggested that there had not been sexual abuse.  Counsel for the mother spent a good deal of time trying to establish that the father had engaged in so-called ‘grooming’ behaviour with [X].  However, as Dr H eloquently explained behaviour can only be properly described as grooming in hindsight, after a finding of sexual abuse has been made.  Otherwise, the behaviour complained of is at best equivocal.  The fact that the father engaged in what was undoubtedly inappropriate behaviour at times (an example of which was to bring a vibrating massager to a contact visit after being accused of sexual abuse) does not permit an inference of abuse to be made.  Much more is required to persuade the Court, on the Briginshaw standard, that abuse has been perpetrated.  Rather, such incidents confirm in my mind the egotistical and insight less nature of the father’s behaviour.

5. In each case, one parent relied on disclosures made by [X].  In the case of the father, he relied on disclosures made to him by [X], he says, on three occasions initially, and again subsequently.  He also relies on a disclosure made by [X] to Ms B of [B].  In the case of the mother, she relied on a disclosure made by [X] first to a police officer and later to officers of the Department of Communities (Child Safety).

6. It must be remembered that [X] is a child still not six years of age.  She was only three and a half years of age when she made the first disclosures that the father relies upon, and only five years of age when she made the disclosures that the mother relies upon.  It must also be remembered that [X] has been embroiled in the parents’ conflict for most of her life.

7. I deal first with the allegation that has been made against Mr M.  Not surprisingly, Mr M denied on oath that he had inappropriately touched [X] or sexually abused her.

8. The circumstances in which the allegations against Mr M arose cause considerable disquiet. 

9. In his affidavit filed on 5 November 2007, the father alleges that on 5 October 2007, at the handover at a McDonalds Restaurant, he was confronted by Mr M who called on him not to continue to abuse [X].  It was clarified in subsequent evidence that Mr M was there referring to emotional abuse. It is common ground that this confrontation took place.

10. The father took [X] to the [omitted] Hospital the next day, 6 October, to make the allegation of sexual abuse against Mr M.  Perhaps to overcome the cynicism that arises because of the contemporaneous making of the allegation following on from the confrontation, the father claimed that he only took action on the third occasion that [X] made a disclosure to him.  That, in itself, raises questions that were not satisfactorily answered, namely why no action was taken by the father on the first and second occasions.

11. At paragraph 17(e) of the affidavit just referred to, the father alleges that on 9 September 2007 [X] disclosed to him that she had been inappropriately touched by Mr M.  Inappropriately, but perhaps naively, the father questioned [X] about this disclosure.  At paragraph 3(i) of his affidavit the father says:

    “At about 3.30pm on 9 September 2007 I put [X] into my car and proceeded to the [omitted] Hospital but she fell asleep on the way so I turned around and returned home and put her in bed; thereafter I tried to telephone [the mother] to discuss the matter with her but her phone was turned off.  I tried texting [the mother] and asked her to call me urgently to discuss the matter but her reply was ‘put it in writing’”

12. Two intriguing matters immediately arise.  First, if the father genuinely believed that his daughter had been sexually abused, why would he turn around and drive home when she fell asleep in the car.  Secondly, the first day of the final hearing of this matter was on 17 September 2007.  The father made no mention at that time of what had occurred on 9 September 2007.  It must have been fresh in his mind if what he subsequently deposed to is to be accepted.

13. To my mind there has been no satisfactory explanation given by the father for these two matters.  His explanation during the second tranche of the trial that he didn’t raise the matters on 17 September because he didn’t want to believe that it had happened was fatuous. That conclusion was reinforced when the father, for the first time in the witness box, claimed that an earlier disclosure had been made in July.  The father would have the court believe that his daughter had made two separate disclosures to him of being sexually abused, and he did not raise it before the Court because he did not want to believe it.

14. There are also other concerning matters about the way in which the father went about reporting the matter.  He tape recorded [X] making the disclosure.  He did so by a series of leading questions.  A transcript of the tape recording of [X] making the disclosure is exhibit NRS4 to the father’s affidavit dealing with those events.  When the father eventually took [X] to the hospital he spoke to a social worker ([first name omitted]) and two police officers (Sergeant P and Sergeant T).  Both police officers gave evidence.  They were critical of the father’s behaviour.  The father refused to allow them to listen to the tape.  The father refused to allow [X] to be medically examined on 6 October.  The father behaved strangely.  He kept telling [X] to tell the police officers about the allegations, in a leading way.  The police officers asked him to desist.

15. When it became evident that the police were insisting on a medical examination being carried out, the father was heard telling [X] to tell the police that nothing had happened, so that they could go home.

16. [X] was eventually examined on 8 October by Dr S who concluded that there was no evidence of [X] having been sexually abused.  Her report is part of exhibit 5. Somewhat extraordinarily following the tumultuous events of 6 to 9 October 2007 the father said that [X] appeared to be well and emotionally stable so he returned her to the mother’s care.  That defies credulity.

17. In my view it is more than coincidental that the father took [X] to the hospital on 6 October 2007 following an altercation with Mr M at a changeover on 5 October 2007.  The father alleges that on this occasion Mr M said to him “that if you abuse [X] again I will have you arrested”.  Mr M accepted (T111/32 fourth day of final hearing) that he said this.  In my view this gave the father sufficient reason to make a false allegation against Mr M.

18. The police conducted an interview with [X] on 9 October 2007.  [X] told the investigating police officer that her father had told her to say the Mr M had touched her, and that nothing had in fact happened.  The police concluded their investigation and notified the Department of Child Safety (as it then was).  The police officers thought that the father’s allegation was vexatious.  The records of the police officers and the department have been put into evidence as exhibits 3 and 4 respectively.

19. Sergeant P, who only gave evidence towards the end of the final hearing, recalled a telephone conversation with the father after the interview was conducted during which the father played the tape, but still would not let the police have a copy of it.  His occurrence log was admitted into evidence.

20. Sergeant T gave evidence during the second tranche of the final hearing.  He concluded that the father’s allegations concerning abuse by Mr M were vexatious.  He gave evidence, which I accept, that following the events at the hospital the father telephoned police asking if he had given the impression that he was alleging sexual abuse of his child.  There was no explanation for this bizarre behaviour.  Sergeant T gave evidence that he reached the conclusion that the father’s allegations were vexatious because of a number of factors:

    a)The father mentioned a previous incident in July that he hadn’t told them about;

    b)The timing of the allegation following the altercation on 5 October;

    c)The fact that the father refused to have [X] medically examined;

    d)The fact that the father appeared to be coaching the child in the presence of the police and “forcing her” onto the police;

    e)The fact that once a medical examination was said to be necessary the father said to [X] “just tell them that nothing happened so we can go home”;

    f)An interview of the mother and Mr M persuaded him that nothing had occurred.

21. In his evidence at T196/4 on the fourth day of the final hearing the father denied telling [X] at the hospital to say that nothing had happened so that they could go home.  I reject the father’s denial.  Counsel for the father did not put such a contention to Sergeant T in cross examination.  Sergeant T kept contemporaneous notes. 

22. The father also disputed that he telephoned Sergeant T and asked if he given the impression that his daughter had been sexually abused.  I accept that such conversation again occurred, for the same reasons just articulated. 

23. In her interview with a child safety officer (contained in exhibit 3) the following is recorded:

    “[X] stated that daddy is mean because he is mean to mummy.  [X] stated that her mother said that daddy is a bad guy.  [X] stated that the police came and put her father in gaol.  [X] stated that this made her go ‘crazy’

    …

    [X] stated that Mr M does not do anything that is yucky.  [X] stated that Mr M puts her on the naughty chair sometimes “when I am naughty”.  [X] stated that her mother bathes her, and that Mr M doesn’t …

    [X] stated that daddy tells me fibs.  [X] stated that her father told her that “Mr M touched this” and pointed to her vagina.  CSO V asked [X] about this again and she confirmed that her father told her a fib about how Mr M had touched her vagina.  [X] stated that Mr M does not touch her there.

    [X] again stated that Mr M has never touched her.  [X] stated that Mr M only cuddles me.  [X] stated that “I told Mr M that daddy was telling me fibs”

    [X] stated that if Mr M does something wrong when she will tell the police and he will go to gaol.

    …

    [X] stated that ‘Mr M never touched me anywhere there’.”

24. Ms V, the author of the Department of Child Safety report dated 9 January 2008 into the allegations made against Mr M, concluded that the father appears to have coached the child to make the allegations of sexual abuse by Mr M, which placed the child at risk of emotional harm.  The officers decided to record the notification as substantiated for risk of emotional harm by the father given the child’s ongoing exposure to her father’s destructive parenting practices.  Ms V gave evidence and explained why she thought [X] was being truthful when she explained how and why her father had instructed her to lie about being touched by Mr M.  I accept Ms V’s evidence.

25. The only evidence that Mr M has acted inappropriately towards [X] comes from the father’s evidence that [X] made certain disclosures to him.  However, when [X] was interviewed by the police and by child safety officers she made no disclosures and in fact asserted that the father had coached her to make false allegations.  I reject the father’s evidence that [X] disclosed to him that Mr M had sexually abused her. 

26. It follows that I find as a fact that no such abuse has been perpetrated.  I find that Mr M does not constitute an unacceptable risk of harm to [X], in terms of the risk of sexual abuse.

27. Unfortunately, however, the matter does not rest there.  In submissions made on 3 September 2008 counsel who then appeared for the father accepted that there was no cogent evidence that supported the allegation that Mr M had acted inappropriately towards [X].  At paragraph 95 of the father’s written submissions delivered after the second tranche of the final hearing it was said:

    “It is certainly not the case that the father has continued to stand by his concerns about his daughter being interfered with by Mr M.  He has taken advice from an [sic] appropriate practitioners and he has not relentlessly pursued this area of thinking to the detriment of his daughter.”

28. During oral submissions when asked if the father still sought a finding that Mr M had acted inappropriately towards the child, counsel stated (T7/25 3 September 2008):

    “… he continues to have concerns and that is what I have stated, but he can’t prove it to beyond a reasonable doubt in my submission.  He has these concerns so, yes, your Honour would have difficulty to make a positive finding, but he has his concerns if I can say that …”

29. As matters have come to pass it is obvious that the father remains concerned that Mr M has abused his daughter.  This is despite the fact there is no objective evidence supporting that concern.  Nevertheless the father took [X] to [B] for counselling in April 2009.  There was some confusion as to why it took the father so long to take [X] for such counselling.  He explained that there was a lengthy waiting list.  The father also claimed that [X] made another disclosure to him in January 2009 that Mr M had again inappropriately touched her.

30. [X] made a disclosure to Ms B, the counsellor to whom she spoke at [B].  Ms B provided an affidavit and gave evidence.  Ms B recorded the disclosures made by [X].  She said that the father seemed genuinely concerned for the safety of his child.  Ms B said that there was nothing in [X]’s demeanour to suggest that she was being abused.  She also said that there was nothing in [X]’s demeanour that she had been coached. 

31. The disclosures allegedly made by [X] were recorded verbatim by

    
    

    Ms B on a sheet of paper.  They are not in the same terms as are recorded in her formal report. 

32. As a result of what she was told Ms B made a report to the Department of Communities (Child Safety).  That led to the interview on 22 April 2009 during which [X] allegedly disclosed that she had been sexually abused by her father. I will return to that in due course. In that interview she did not say that she had been touched inappropriately by Mr M.

33. The father told Dr H during his interview for the purpose of Dr H’s second report that he took [X] to [B] because he was convinced that

    
    

    Mr M was sexually abusing her.  However during that same interview with Dr H, Dr H reports that the father appears to have shifted his position from previous interviews and stated that he did not know if the child had been abused by Mr M, and stated that he would no longer talk to the child about that.  The father maintained his denial that he ever coached the child.  This led Dr H to remark that, in comparison to previous interviews the father appeared much more child focused and more flexible in his views.  During his oral evidence Dr H remarked that it would concern him greatly that if the father gave evidence that he still wanted the allegations against Mr M to be investigated. 

34. That is exactly what the father said in his evidence.  At T100/35 on

    
    

    8 December 2009 the father gave evidence that he still believed that [X] was abused by Mr M.  He said that on 17 January 2009 [X] made another disclosure to him that Mr M had inappropriately touched her.  I could have no confidence that if he spends further time with [X] the father will not attempt to perpetuate the allegations that Mr M has acted inappropriately towards her.  I find that the father will continue to involve [X] in his belief that Mr M has acted inappropriately.  That will cause [X] emotional abuse.  It has the potential to undermine her relationship with Mr M.

35. Although in 2007 there was evidence that [X] appeared to be unaffected by what had occurred, I think the more that [X] is exposed to allegations that she has been abused by either the father or Mr M the more likely it will be that this will cause [X] serious emotional harm. 

36. The mother was interviewed by Dr S, a child protection officer on 8 October 2007 and said at paragraph 6 of her statement:

    “Mother has noted little change in [X]’s behaviour during this time apart from about 30 mins of grumpiness after each visit.  She is eating well, her language is good and has not regressed.  She sleeps in her own bed and settles well with no night disturbances.  She is toilet trained and has not regressed in those skills.  She has no recent onset of any fears or phobias, she separates easily when she goes to kindergarten and she copes well with the fact that she attends two different kindergartens.”

37. At T53/45 on the third day of the final hearing the mother said that this passage was accurate.  Subsequently, the mother has asserted that [X]’s behaviour has in fact changed, and on one occasion gave evidence that she had wet herself.  However, in the absence of corroborative evidence, I would not be prepared to rely on the mother’s evidence alone.

38. Following the events of October 2007 the departmental officers of the Department of Child Safety reached the conclusion that [X] was then at risk of suffering emotional harm.  They were then unable to identify specific indicia of this. 

39. I will return more fully to the decision of Russell & Close when I deal with the mother’s evidence.  I do not accept that the father has a reasonable basis for believing that Mr M has inappropriately dealt with [X].  The allegations made by the father became more elaborate as the hearing progressed.  During his oral evidence during the last tranche of the final hearing the father made reference to a diary entry purportedly made by him on 17 March 2008, when [X] allegedly made a disclosure.  The diary entry was:

    “[X] told me [Mr M] wants [X] to take his pee pee in her mouth.  [X] tells me she tells her mother and she ([Ms Cadogen]) only says ‘Mr M don’’t put your pee pee in [X]’s mouth’.”

40. For the father to genuinely believe that this was an accurate disclosure defies belief.  When this was put to him the father’s response was “Bizarre isn’t it”.  This particular diary entry was not referred to by the father during the evidence in April and September 2008.  The father said that he did not do so because he was afraid he would lose his daughter again. 

1. I conclude:

   a)Mr M did not sexually abuse [X] at any time;

   b)The father had no reasonable grounds for believing that Mr M sexually abused [X];

   c)The father will continue to assert that Mr M has sexually abused [X];

   d)That [X] will be involved in the making of these allegations and that will cause her emotional harm;

   e)The father will also attempt to undermine [X]’s relationship with Mr M.

2. I turn then to the second allegation of sexual abuse made in the proceedings, namely that against the father.  The allegation arose in unexpected circumstances. 

3. As I have said, the father took [X] to [B], and she made a disclosure to Ms B that Mr M has inappropriately touched her.  Ms B reported that disclosure to the Department of Communities (Child Safety), as she was required by law to do.  As a consequence, an interview was arranged on 22 April 2009 at [X]’s school.  The interview was conducted in the Principal’s office.  The principal, Mr H was present as was Senior Constable B, an investigator with the Child Protection and Investigation Unit on the Gold Coast, and Ms C, from the department.

4. The interview needs to be put into context.  It took place at around 10:00 am.  As I have said, it was conducted in the principal’s office.  It was conducted with each of the participants sitting on a chair in a circular formation.  Constable B sat next to [X].  Constable B is a large man and has a loud voice.  It was the first time that [X] had been to the principal’s office.  I accept, notwithstanding the evidence of Mr H and Senior Constable B, that the meeting would have been intimidating to [X].  Further, [X]’s step-siblings and maternal grandmother had been visiting from Taiwan and had departed Australia that morning.  [X] had risen early and had accompanied Mr M in driving those relatives to Brisbane airport.  She was seen by a teacher, Ms G, rubbing her eyes earlier that morning.  I accept that [X] was tired when the interview was conducted. 

5. The interview commenced, and it was taped as a s.93A Evidence Act 1977 (Q) interview. The tape of the interview was put into evidence as exhibit 7. [X]’s voice is hardly audible, and the only way in which it is known what she said is because Senior Constable B repeated her answers himself before asking the next question. At other times witnesses have referred to [X] as having a soft voice and speaking quietly. To do so on this occasion was not out of character for her. There is no video of the interview so [X]’s demeanour cannot be seen. During the free narrative when non leading questions were asked, [X] volunteered that her father was mean to her. She said that he smacked her. No other disclosure was made.

6. Senior Constable B then committed an egregious error.  He said “I have been told that daddy touched you on the pee pee.  Do you want to talk about that?”

7. [X]’s initial response was “No”.  She said that she had not told anyone that before. 

8. It transpired that Senior Constable B asked the very leading question to which I have referred under the mistaken belief that the notification made by [B] was in respect of the father mistreating [X].  He did not know that the father was somebody different to Mr M. 

9. It is plain from the Queensland Police Service Occurrence Summary (exhibit 13) that the matter that was suppose to be investigated was [X]’s disclosure that Mr M was dealing inappropriately with her. 

10. I find that Senior Constable B lead [X] into making a disclosure about the father.  During the same interview Ms C also made a quite inappropriate statement.  Towards the end of the interview she asked whether [X] was tired of answering questions. She received an affirmative response.  She then said:

    “And I am going to try and manage it so that you don’t have to see daddy anymore and that daddy is not going to do meanie things to you. …”

11. I will in due course refer in more detail to the evidence of Dr H and

    
    

    Ms Q, two experts called to give evidence in these proceedings. I accept their evidence that [X] is of an age that she is easily suggestible, and I accept that that is what occurred during the unfortunate interview with Senior Constable B. Senior Constable B’s blunder was unfortunately reinforced by Ms C. 

12. That was, however, not the end of the matter. Later the same day Ms Y, an acting team leader with the department conducted a further interview with [X].  Ms Y accepted that although Ms C attended at the police interview she was not appropriately trained and was not supposed to ask questions.  It was not satisfactorily explained why she asked the question and made the statement to which I have just referred.  Unfortunately Ms C was not called to give evidence in these proceedings.

13. Ms Y’s interview with [X] was conducted at 4.45pm.  What was not known by Ms Y either at the time she conducted her interview, or at the time she gave her oral evidence, was that [X] has spoken to her mother and Mr M before attending the interview at the Department.  The mother was aware that [X] had been interviewed at the school earlier in the day.  She knew that the allegation was that the father had sexually assaulted [X].  The mother and Mr M took [X] to the interview with the Department, after they were informed of the allegations (T212 9 December 2009).

14. I reject the mother’s denial that she and/or Mr M did not discuss the matter with [X] in the car on the way to the interview with the department.  Having regard to all of the other evidence in this matter that demonstrates the mother’s anxiousness about [X] having anything to do with the father, the mother would not have been able to restrain herself from speaking to [X] about the allegation. 

15. Counsel for the mother sought to retrieve the position by submitting that [X] gave clear and direct answers during the interview with Ms Y.  However, it was apparent that Ms Y was heavily reliant on what she had been told by Ms C.  As I have said, Ms C did not give evidence.  There was no explanation as to why Ms C’s notes were not in the departmental file subpoenaed to the court.  Counsel also sought to support the veracity of what [X] told Senior Constable B by reference to matters such as her accurate description of the premises of where the father lived, and her knowledge that the father’s full name was [Mr Summerby].  It should also be pointed out that counsel for the mother expressly conceded that he did not rely upon the findings made by the Department, but only on the disclosures made by [X].

16. Counsel for the father in her written submissions pointed out the shortcomings of the interview process conducted by the Department.  I accept those criticisms

17. In my view, the well was poisoned beyond redemption.  No reliance could be placed upon the disclosure made by [X] on 22 April 2009, either in the interview by Senior Constable B, nor in the interview with Ms Y. 

18. Counsel for the mother then points to the further disclosure allegedly made by [X] to her mother on 26 April 2009.  The mother says that [X] told her that the father had abused her 23 times.  The mother accepted this without question.

19. I have formed the view that sadly [X] is a little girl who has been embroiled in a highly conflictual dispute between her parents for over two years at the time she made the disclosure concerning her father.  The disclosure was suggested to her quite inappropriately by Senior Constable B.  [X] adopted it, the assertion having been made to her by a person in apparent authority.  She has then been reinforced in her behaviour by the mother and Mr M subsequently questioning her further about the matter.  [X] has told her mother what her mother wanted to hear.

20. What was not satisfactorily explained is why no earlier disclosure had been made by [X].  It was not suggested that the father’s behaviour had started only on the day or two before 22 April 2009.  The mother herself was surprised that the father was accused of sexually abusing his daughter (see paragraph 1310 of her most recent affidavit).  She was worried that he would physically harm her because of his temper but not inappropriately touch her. 

21. Notwithstanding these obvious question marks hanging over the disclosure made by [X] the mother remained “100% certain” that the father had sexually abused her.  In my view the mother has no reasonable basis for that belief. 

22. The mother was very difficult to pin down in cross examination as to why she believed that [X] had been abused by her father.  Eventually I asked her directly at T281.  She gave ten reasons:

    (1)What was said at the interview with the police officer on 22 April 2009;

    (2)The interview of the same day by Ms Y;

    (3)The direct answer to a question asked of her by Ms C, the child safety officer;

    (4)The disclosure by [X] to her mother on 26 April 2009;

    (5)The disclosure by [X] to a nanny Ms S;

    (6)[X] masturbating;

    (7)[X] wetting her pants after a visit to her father’s;

    (8)The father purchasing a vibrating massager and taking it to a contact visit;

    (9)The language that [X] used such as “get out you bitchy” on return from her father.  In her affidavit sworn 11 December 2007 the mother says that this statement was made on 23 September 2007;

    (10)Comments that the father had made many years previously about children sitting on lap in a classroom.

23. I have already explained why the questions and answers asked of [X] on 22 April 2009 should be given no weight. 

24. [X] noticed a big reaction from her mother when she made the disclosure to her on 26 April. Because of her involvement in the conflict between the parties and in an effort to please her mother, I conclude that [X]’s disclosures to her mother cannot be accepted as reliable.

25. Ms S was a nanny who looked after [X] on a regular basis.  She kept some notes of her interactions with [X].  She does this for the other children in her care as well.  Unfortunately not all of her notes were photocopied by the Department of Child Safety or were available for the court.  Ms S gave evidence concerning three matters.  First, that whilst [X] was in her care she observed her masturbating in October/November 2009.  She gave no evidence of any similar behaviour prior to this.  I observe that since April 2009 [X] has not spent unsupervised time with her father.  In particular Ms S gave no evidence to support any claim that [X] was displaying sexualised behaviours before 22 April 2009.

26. Secondly, Ms S gave evidence that [X] made a disclosure to her one Saturday morning that she had been sexually abused by her father.

    
    

    Ms S gave inconsistent evidence about when this disclosure was made.  Initially she said that it was before Easter 2009 but after counsel for the Independent Children’s Lawyer referred her to the date of notification to the Department she accepted that it was on 21 May 2009.  Of course, by 21 May 2009 a month had passed since the disclosure was first made and [X] had been spoken to not only by child safety officers but also her mother and Mr M in the intervening period.  I do not accept that the disclosure made to Ms S was either a “fresh” disclosure nor one in respect of which any weight can be attached. 

27. Thirdly, Ms S’s evidence is relevant in another respect. She was approached by Mr M one morning, when he was dropping [X] at her place for care, and told that [X] had given inconsistent accounts of an incident that allegedly occurred at the father’s.  (This was the alleged reporting of an incident by [X] where she was thrown through a door and cut her head).  I accept that Mr M said to Ms S, in front of [X], that [X] was telling lies to either him and the mother, or to police.  Mr M accepted in his evidence that that was highly inappropriate.  He asked Ms S to see if she could ascertain what had happened.  Ms S commenced her discussion with [X] with the phrase “Now [X] what is this I hear about you telling fibs”.  [X] then repeated the disclosure about her father throwing her through two doors, which I will refer to shortly.

28. In the case of both the disclosure of sexual abuse and the reiteration of the alleged throwing incident, I accept that by the time [X] came to speak to Ms S she had been interrogated by the mother and Mr M such that no weight can be placed on what she said to Ms S.

29. Ms Q whose evidence I will refer to shortly said that nothing sinister can be read into [X]’s masturbation, given her age and the normality of that behaviour.  In any event, there is no independent evidence that this behaviour occurred prior to 22 April 2009.

30. The father, somewhat foolishly, purchased a massager that vibrated.  He brought it with him to a contact visit.  Given that allegations had been made that he had sexually interfered with his daughter that was a most unwise decision.  Ms B, Ms Q and others thought it quite inappropriate.  The father couldn’t see a problem; another indication of his lack of insight into what was appropriate parenting behaviour.  However I do not consider that that of itself is supportive of the father having interfered with [X].  Under cross examination the mother alleged that [X] had used the device and hit herself between the legs.  I do not accept the mother’s evidence.  It is another example of her embellishing her evidence with a view to discrediting the father.

31. The language to which the mother referred and relied upon first occurred much earlier than 22 April 2009.  It was referred to in the second tranche of evidence.  Yet [X] made no disclosure at that time of having been interfered with by her father. 

32. The mother had never before referred to the father’s statement about children sitting on his lap in Taiwan.  This is another example of the mother gilding the lily.  She had given evidence at great length on an earlier occasion about the father’s behaviour in Taiwan and never once was this mentioned.  I do not accept that the father made the statement attributed to him. 

33. Although it is not determinative of the matter, the interaction between [X] and her father at those visits supervised by employees of [C] Family Services Pty Ltd to which reference will be made in due course, was that of a close relationship and of [X] having no fear of her father.  That is contrary to what the mother asserts. In the same vein, the records of the contact centre where [X] spent time with her father on 2 November 2009 show that they had a good interaction, notwithstanding the contention of the start of the visit that [X] did not wish to spend time with her father. 

34. I cannot be satisfied, to the requisite standard, that the father has sexually abused his daughter.  In case that conclusion is couched in language that may carry the connotation that the father may have sexually abused his daughter but the court is not able to be satisfied to a legal standard, I find that on the evidence before this court the father has not sexually abused [X].  I find that the father does not constitute an unacceptable risk to [X], of sexually abusing her.

35. As the cases to which I referred earlier make clear, the conclusion that neither Mr M nor the father has sexually abused [X] is not determinative of what parenting orders ought be made.  Rather, in this case, the real concern is that both parents by their actions both towards each other and involving [X], have inflicted emotional abuse on her. 

36. As I stated earlier the court has derived considerable assistance from the evidence of the expert witnesses called by the Independent Children’s Lawyer.  Dr H, a psychiatrist, gave evidence both at the second tranche of the hearing and more recently. 

37. At the time of his first interview with the mother, Dr H reported that the mother’s affect was somewhat anxious.  Her thoughts revolved around concerns for her child.  She did not, however, demonstrate any anxious or depressive cognitive patterns.  Dr H felt that mother had a good understanding of her child’s needs and feelings and an emotional bond to her.  She then saw the father’s role as needing to be supervised because she was concerned about his potential for aggression.  The mother had relayed her version of the parties’ life together and the domestic violence that was involved.  I will return to that in due course.  At that time the mother told Dr H that she would like the father to have a meaningful relationship with [X].  The father reported that he found it hard to communicate with the mother.  Dr H said that the father stated that his thoughts revolved around his child’s welfare and anxiety for the child.  In Dr H’s opinion there was no evidence of any clinical disorder of thought and the father certainly appeared to have a genuine emotional bond to this child. 

38. Dr H interviewed [X].  She said that she liked her mother and father, but her mother did not like her father anymore.  She spontaneously said: “My daddy told me I don’t like living with Mr M”.  Dr H said that [X] denied that anything “bad” ever happened with Mr M. This statement provides further support for my conclusion that the father, by attempting to undermine [X]’s relationship with Mr M, is inflicting emotional abuse on [X].

39. Dr H observed that the mother and [X] enjoyed a warm and relaxed interaction.  Further, [X] clearly liked going to see her father and spoke animatedly with him.  It was clear to Dr H that there was quite an attachment between the father and [X] although there was an anxious quality to it.  The child seemed very relaxed with the father.  She was also observed to have a warm interaction with Mr M.

40. At the time of his first report Dr H considered that Mr M could support the father in developing a relationship with [X].  Of course, that is no longer possible. [X] had a significant attachment to Mr M and probably had a significant emotional relationship with him. At that time Dr H reported that it seems likely that the mother could support the father in having a relationship with [X], although she feels the father may present some emotional risk to her. Dr H reported that the father meet diagnostic criteria for a “personality disorder not otherwise specified” with probable narcissistic and anti-social features. He said that the father obviously had strong feelings for his daughter. Dr H opined:

    “It seemed to me that [the father] was quite anxious about his daughter and had difficulty at time relating to other adults in a mature and controlled manner particularly around emotional issues.  It is possible that he can support the mother in having a relationship with the daughter but his insecurity and need for control may interfere with this at times.  It is also not clear to me that he understands the more subtle but important issues surrounding the possible vexatious allegations of sexual abuse and the emotional stress placed on children when their parents act in a negative way make negative statements about the other parent who the child also loves.  In other words it is not clear to me that he has a clear understanding regarding the potential emotional abuse of the child and the significance of this.”

41. In his first report Dr H reported that [X] did not appear to have suffered any significant negative sequelae as a result of her parents’ rather tumultuous relationship and the events following this.  This would suggest that she is somewhat resilient but this could not be taken for granted.  Dr H recommended that all three adults involved in [X]’s life have psychological therapy and that both parents attend a parenting course.  None of them have done this.

42. Dr H thought that the father was more likely to do well with a highly structured parenting situation.  He considered that equal time was not necessarily the best outcome for [X] at that point in time. He suggested that the majority of [X]’s time be spent in the mother’s household. 

43. Therefore, at the time of Dr H’s first report he had concerns about the emotional abuse being inflicted upon the child, at that time by the father.  Even then he did not consider that the father was a candidate for being the residential parent.  In fact at T120/30 on the fourth day of the hearing Dr H said that he had concerns about the father’s understanding of the effect of his behaviour on the child emotionally and said that he would have concerns about the child residing primarily with the father. 

1. The mother made no attempt to take [X] to changeover to spend time with her father.  I find that she contravened the parenting order on each of the four occasions alleged. 

2. Section 70NAE of the Act sets out a number of circumstances in the court may find that a party who contravenes a parenting order has a reasonable excuse for doing so. At T42/1 (third day of final hearing) the mother claimed that she “had no choice but the disobey orders.” At T46/1 she said that she had concerns about [X].

3. Section70NAE(5) of the Act provides:

   (5)  A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

   (a)  the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)  the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

4. Section 70NAE(6) of the Act is in the same terms, but deals with communication rather than spending time.

5. The admitted refusal of the mother to provide [X] to the father to spend time on the dates alleged in the first application for contravention resulted from the aftermath of the false allegations made by the father that Mr M had sexually abused [X]. It will be recalled that an altercation had taken place at a handover on 5 October 2007, and that the father had taken [X] to the hospital on 6 October. On 8 October [X] underwent a medical examination, and on 9 October she was interviewed by the police. By 12 October 2007, the date of the first alleged contravention I accept that the mother was understandably upset that the allegations were made. The mother was entitled to believe that the allegations were made maliciously by the father. The father’s allegations were investigated by the Department, and the father’s allegations were found to be vexatious. In those circumstances, I conclude that the mother reasonably believed that the father was emotionally abusing the child by coercing her into making false allegations.

6. Against that background, I accept that the mother reasonably believed that not allowing [X] to spend time with her father was necessary to protect [X]’s health or safety, particularly her emotional state of health. The requirements in s.70NAE(5)(a) is satisfied. The period of time alleged in the first application for contravention was for in the order of three weeks. In my view that was not an unreasonable length of time to withhold the child from the father given the serious allegations that were made, the involvement of [X] in the investigation process, and the emotional harm that was being inflicted upon her.

7. Proof that there was a reasonable excuse lies on the respondent: s.70NAF(2), on the balance of probabilities. I am satisfied that the mother has made out the reasonable excuse in s.70NAE(5) of the Act in respect of the matters alleged in the first application for contravention. That application should be dismissed.

8. Section 70NDC(1) of the Act authorises the making of an order for costs in the case of an unsuccessful application for contravention. I will make such an order in this case. Given that the first day of the final hearing concluded on 17 September 2007, and the events of 5 – 9 October, and the investigation by the Department, in my view it was overly precipitous for the father to file the first contravention application. A better course would have been to apply to re-open the evidence, as eventually occurred on 13 December 2007 when the mother brought such an application.

9. The second application for contravention, filed on 6 February 2008, alleges that the mother failed to make [X] available to spend time with her father on three occasions, in contravention of parenting orders made on 17 December 2007.  On that date, by order 6, it was ordered:

   That the child spend time and communicate with the father as follows:

   a) From 4.00pm on 21 December 2007 to 4.00pm on 26 December 2007;

   b) From 4.00pm on 3 January 2008 to 4.00pm on 7 January 2008;

   c) From 4.00pm on 17 January 2008 to 4.00pm on 21 January 2008.

10. Those orders were made after the events of October 2007 were brought to the court’s attention on the mother’s application to reopen the evidence, and after argument as to what were appropriate interim parenting orders. 

11. Again, the mother admits not providing the child to spend time with the father.  I find that the mother contravened the parenting orders particularized, on each occasion.

12. In respect of these three alleged contraventions, I am not persuaded, on the balance of probabilities, that the mother had a reasonable excuse for contravening the orders.  The orders were made following a successful application to reopen the evidence at the final hearing.  The orders were made to facilitate the father spending time with [X] pending the reopened final hearing.  The father was to spend time with his daughter on three specific occasions and changeover was to be effected at a police station to minimise the risk of conflict between the parties at that time. 

13. In my view, although a reasonable excuse existed in the immediate aftermath of the events of early October 2007, that excuse did not continue to subsist into December 2008 and January 2009. Section 70NAE(5)(b) of the Act specifically requires that the length of time that a party can withhold a child from spending time with the other parent is dependant upon what is necessary to protect the health or safety of the child. The mother acted as she did in contravening the parenting orders of 17 December 2007 before she became aware of the incident on 22 April 2009. She cannot rely on that incident as justifying her actions. The mother has not persuaded me to the requisite standard that a reasonable excuse exists for her actions. I find that the contraventions are established and that no reasonable excuse has been proven.

14. Given that the orders were made in the context of a hearing part-heard the mother’s conduct was particularly serious.  In Dobbs and Brayson [2007] Fam CA 1261 the Full Court held that all elements of the contravention had to be proved beyond reasonable doubt if one of the punishments referred to in s.70NAF(3) of the Act is to be imposed.

15. In the absence of binding Full Court authority to the contrary, I interpret Dobbs and Brayson as holding that proof of all elements beyond reasonable doubt is only required where one of the punishments referred to in s.70NAF(3) is to be imposed. Otherwise, in my view, s.70NAF(1) makes it clear that proof of all elements is on the balance of probabilities, even where a more serious contravention is involved.

16. In my view the three contraventions alleged, and proven, are more serious contraventions. The mother acted wilfully in defiance of specific orders of the court, whilst a hearing was part heard. The powers of the court in those circumstances are set out in s.70NFB of the Act.

17. It is not appropriate to make the orders referred to in ss.70NFB(2)(a), (d) or (e) of the Act. They will achieve nothing in terms of the ongoing maintenance of a relationship between [X] and her father.

18. An order for compensatory time is, having regard to the overall context of these proceedings, quite inappropriate.  As Warnick JA made clear in Childers & Leslie [2008] FamCAFC 5 at [53] compensatory time is not an order to be made by way of retribution without regard to the child’s best interests.

19. Nor is a bond appropriate.  I would have contemplated ordering that the mother enter into bond if orders that the child spent time with the father were otherwise to continue.  However, the parenting orders made in these proceedings make the requirement that the mother enter into a bond of no practical utility. 

20. Section 70NFB(1) of the Act provides:

    (1)  If this Subdivision applies, the court must, in relation to the person who committed the current contravention:

    (a)  make an order under paragraph (2)(g), unless the court is satisfied that it would not be in the best interests of the child concerned to make that order; and

    (b)  if the court makes an order under paragraph (2)(g)--consider making another order (or other orders) under subsection (2) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances; and

    (c)  if the court does not make an order under paragraph (2)(g)--make at least one order under subsection (2), being the order (or orders) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances.

21. Section 70NFB(2)(g) of the Act provides:

    (2)  The orders that are available to be made by the court are:

    (g)  to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or

22. In my view there is no evidence before the court that would persuade me that it is not in the best interests of [X] to make an adverse order for costs against the mother.  Both the mother and Mr M (albeit to a lesser extent) work.  Mr M is also in receipt of a pension for [medical condition omitted] that he suffers.  The mother was not in receipt of legal aid in these proceedings. 

23. I will order that the mother pay the father’s costs of and incidental to the second contravention application.

24. The third contravention application was that which was most seriously contested.  The father alleges that on the following occasions the mother failed to make the child available to speak with him on the telephone:

    a)6 February 2008;

    b)13 February 2008;

    c)20 February 2008;

    d)27 February 2008;

    e)5 March 2008;

    f)12 March 2008; and

    g)19 March 2008.

25. Order 1(d) made on 29 January 2008 specifically provided for such telephone communication to take place.

26. The mother denied contravening the order. 

27. In his affidavit filed 26 March 2008 the father gave evidence that he had called a particular mobile telephone number to speak to [X].  The mother confirmed in her evidence that there was a designated mobile phone that the father was to ring to speak with his daughter.  The father gave evidence that on each of the dates particularised the phone rang six to eight times and then went to voice mail.  He did not speak with [X] on each of those occasions.  The father exhibited to his affidavit records of the telephone calls showing that he made calls to the number on the particularised occasions.  The father did not leave a message asking that [X] call him back.  In my view, there was no need for him to do so.  It would have been obvious that the father had attempted to telephone [X], by a missed call symbol appearing on the mobile phone.

28. I reject the evidence of the mother and Mr M that the father allowed the phone to ring only once and then hung up so as to amass evidence of contraventions of court orders.  The phone records show that the father’s called connected with the mother’s mobile phone which would have required more than one ring to occur. 

29. It transpired for the first time on 2 April 2008 that the father had in fact tape regarded his attempts of telephoning the mobile phone.  There was much heat generated during submissions as to whether these tapes should have been disclosed.  I directed that the father not be permitted to adduce evidence in chief of the records, but they could be used in cross examination of the mother.

30. Counsel for the mother submitted that, having regard to the father taping [X] to make a false accusation of sexual abuse against Mr M, the legitimacy of the tape recordings was seriously called into question.  I accept that the recordings made by the father were genuine attempts by him to speak with his daughter.  There was no evidence that the tape recording of [X]’s alleged disclosure was faked.  Rather, the criticism is of the father’s behaviour in recording the disclosure and prompting it by a series of leading questions.  No evidence was adduced that the recording of the attempted telephone calls was other than genuine.  I accept that the father attempted to contact [X] on each of the occasions particularised.

31. The mother gave evidence that she knew that if that mobile telephone rang it would be the father calling to speak to [X].  The mother took the view that it was not part of her obligation to answer the phone (T43/39 second day).  The mother said that [X] had refused to answer the phone. 

32. Before dealing with the evidence in any further detail it is helpful to understand what is required of a parent when orders are made that there be communication with the other parent.

33. In Elspeth & Peter [2007] Fam CA 655 at [24] the Full Court adopted what had earlier been said in Stevenson & Hughes (1993) FLC 92-363 as to a parent’s obligations to enforce compliance with the orders. A very helpful summary is set out by Riethmuller FM in TVT & TLM [2006] FMCAfam 20 at [32] – [34] as follows:

    “32.  In many contravention cases involving contact orders, consideration must be given to what is necessary to make a ‘reasonable attempt to comply with the order.’  The extent of the obligation has been discussed in a number of cases.  The starting point is that a contact order is not a mere declaration – it is implicit in the order that reasonable steps must be taken to ensure that the contact as ordered takes place: Stavros and Stavros (1984) FLC 91-562.  The absence of detailed orders providing for the mechanics of hand-over does not make the orders inoperative or incapable of enforcement.

    33.    Whether steps taken are a ‘reasonable attempt to comply’ with a children’s contact order will ultimately depend upon the facts and circumstances of each case.  However, it is accepted that the residence parent has a duty to ensure that the child not only attends, but does so in a positive manner. The way that the obligation has been expressed in different cases throws further light on the extent of the obligation:

    a) The residence parent must actively encourage the chid to attend contact as ordered.

    b) ‘The courts have been careful to consider whether in reality, not just on the face of things, the [residence] person has taken reasonable steps to deliver the child for [contact]’: see O'Brien & O’Brien (1993) FLC 92-396 at [13].

    c)  ‘It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it’: Stevenson v Hughes (1993) FLC 92-363 ([1993] FamCA unrep527) at [25].

    d) Similarly, a mere request that the child telephone, or come to the telephone is insufficient.

    e)  Once an order for contact has been made, it is ‘no longer a case of saying to the child: you go if you want to, if you wish to go you go, or you make up your own mind’: see O'Brien & O’Brien (1993) FLC 92-396 at [11].

    f)  A residence parent ought to make ‘the child understand that it was the [residence parent’s] attitude that the child had to go on [contact]’: see O'Brien & O’Brien (1993) FLC 92-396 at [8].

    g) The residence parent is expected to bring to bear all the authority that they have over a child, just as they would to ensure the child attends school: See P & P [2002] FMCAfam 315 (Unrep.) at [14].

    h) It must be noted that ‘an invitation can be made designed to persuade the child that this is something which the mother encourages or approves of, or it can be stated in a tone or in a manner which of its own suggests that this is your obligation under the order but mummy really does not mind if you say no.’ Such an invitation is insufficient: see Stevenson v Hughes (1993) FLC 92-363 ([1993] FamCA unrep527) at [26].

    i)  ‘[I]t is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation’: see Stevenson v Hughes (1993) FLC 92-363 ([1993] FamCA unrep527) at [6].

    j)  ‘It is not a sufficient discharge of custodian's obligations, express or implied, to point to words and actions and to say, in effect: 'You see I tried. But the child does not want to go,' and thereafter to figuratively fold their arms as if that were an end of the matter’: Stevenson v Hughes (1993) FLC 92-363 ([1993] FamCA unrep527) at [6].

    k)  The residence parent is ‘not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance’: Stevenson v Hughes (1993) FLC 92-363 ([1993] FamCA unrep527) at [8].

    34.    If satisfied that the mother contravened an order, either intentionally or by making no reasonable attempt to comply, the court must then consider whether the mother has a reasonable excuse for the contravention.”

34. To his Honour’s summary I would simply add that a parent is not obliged to forcibly put a child in a position that they are resisting for good reason: Fooks & Clark [2004] FamCA 212 at [44] – [45].

35. Thus, it is not good enough for the mother to let the phone ring, and leave it up to [X] to decide whether to answer it.  That is particularly so where, as in this case, the child knows that the parents she is then with does not want her to have contact with the other parent.

36. It was apparent from the evidence given at T40/48 on the second day of the hearing that the mother well understood order 1(d) made on 29 January 2008. 

37. When it was put to the mother that the father rang at 6.02pm on

    
    

    6 February 2008 the mother said that the telephone rang but she did not receive the call.  She said that the phone didn’t connect (T54/24).  When it was put to her that the father again rang at 6.18pm on

    
    

    6 February 2008 the mother said that she could not remember whether a call had been made.  She accepted that she did not return the father’s call on that day.  The mother accepted that the phone rang at 6.32pm on 6 February 2008.  She says that the phone was close to [X] and [X] did not want to answer it.  A the authorities referred to above make clear, the mother was required to do more than simply let the phone ring and leave it up to the child whether to answer it.  I accept that the mother contravened the order on 6 February 2008. 

38. On 13 February 2008 the mother’s evidence was that [X] refused to answer the phone (T33/30). The mother did not dispute that the father called her at 6.01pm on 13 February 2008 (T11/45). Indeed the mother accepted the father’s telephone records for what they showed (T14/8 third day). This is not good enough and I accept that a contravention occurred on that date. The mother said that on 5 March 2008 the phone only rang once or twice. I accept that the phone rang more than this, as evidenced by the father’s taped recording. When asked why she didn’t answer the phone when the father called the mother simply said that she encouraged [X] to answer the phone but sometimes she would not do so. When asked if she sent a text message to the father asking him to try again the mother said “Actually its up to him, if he really want to talk to [X], he will try; and now he’s trying to generate evidence” (T12/25 third day). At T13/14 the mother didn’t dispute that the father again attempted to ring on 20 February 2008. At T15/5 the mother accepted that the call connected on 27 February 2008. She accepted that the father made a telephone call on 5 March 2008 (T15/15), and at T15/35 accepted that he attempted to make a call on 12 March 2008. At T15/40 the mother accepted that the father made a call on 19 March 2008. The mother accepted that on each of the dates she made no attempt to telephone the father back.

1. At T25/23 the mother accepted that on each of the dates particularised the telephone rang and connected to her voice mail.  At T26/27 the mother admitted to having a voice mail recording that said “Hi there, this is [Ms Cadogen] …”.  That is the recording on the father’s tape of his attempts to contact the mobile phone to speak to his daughter. 

2. I accept that the father has proved, on the balance of probabilities, that he telephoned the designated mobile telephone number on each of the dates particularised.  I find that the mother failed to answer the phone on each of those occasions. The mother disputed that the contraventions had occurred, and therefore did not rely on any reasonable excuse for [X] not speaking to her father on the telephone. 

3. Having found that the contraventions are proved, and there being no reasonable excuse for them, it is a matter of determining what penalty should be imposed. Again, I do not consider it is appropriate to make an order under s.70NFB(2)(a), (d) or (e). For the reasons already discussed I consider that the only order that is appropriate in the circumstances of this case is an order for costs pursuant to s.70NFB(2)(g). I propose to make such an order.

4. Two other matters remain to be determined.  During the course of the hearing there was debate as to whether evidence that was ruled inadmissible in the mother’s most recent affidavit should be readmitted having regard to the cross examination by the father’s counsel of the mother (T455/6). I am not persuaded that my earlier ruling requires revision.

5. Finally, I am required to decide whether the mother’s statement made to the Children’s Court ought be tendered by counsel for the father as a result of her cross examination of the mother about it (T459/60).  Counsel for the mother insisted on its tender.  In my view the nature of the cross examination was not such as would compel the tender of the statement.  I decline to receive the statement made in the Children’s Court proceedings.

6. There will be orders as set out prior to the commencement of these reasons.

I certify that the preceding two hundred and ninety-five (295) paragraphs are a true copy of the reasons for judgment of Wilson FM

Date:  15 February 2010