Taylor-Black and Vasser
[2008] FamCA 335
•15 May 2008
FAMILY COURT OF AUSTRALIA
| TAYLOR-BLACK & VASSER | [2008] FamCA 335 |
| FAMILY LAW – CHILDREN – With whom a child lives – sexual abuse allegations – best interests of child |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA |
| APPLICANT: | Mr Taylor-Black |
| RESPONDENT: | Ms Vasser |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Eva Karagiannis |
| FILE NUMBER: | SYC | 200 | of | 2007 |
| DATE DELIVERED: | 15 May 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 28 – 30 April 2008; 4 – 7 May 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Hausman |
| SOLICITOR FOR THE APPLICANT: | Ross A. Clarke & Associates |
| SOLICITOR FOR THE RESPONDENT: | Mother in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of NSW |
Orders
All previous orders herein be and are hereby discharged.
The father have sole parental responsibility for the child of the relationship … born … April 2001 (hereinafter referred to as “[the child]”).
The child live with the father.
Commencing on Saturday 9 August 2008, the child spend time with the mother as follows:-
4.1.on alternate weekends from 9.00am on Saturday until 6.00pm on Sundays; the mother to collect the child from the father on the Saturday, the father to collect the child from the mother on the Sunday;
4.2.on the weekend of Orthodox Easter at the times specified in paragraph 4.1 herein;
4.3.on occasions of the child’s and the mother’s birthday each year; in the event that the birthday falls on a school day, for a period of 3 hours after school; in the event that the birthday falls on a weekend when the child is not otherwise with the mother, for one day on that weekend;
4.4.in each even numbered year between 10.00am Christmas Eve and 10.00am Christmas Day and in each odd numbered year between 10.00am Christmas Day and 10.00am Boxing Day; ;
4.5.on Mother’s Day each year from 9.00am until the commencement of school the following day;
4.6.at other times as may be agreed in writing between the parties.
The Applicant Father be at liberty to suspend the time periods the Mother is entitled to have with the child, on two (2) occasions per year (although not on consecutive time periods pursuant to these orders), to be nominated by the Applicant Father, to enable the Applicant Father to take the child away during school holiday periods, conditional upon him advising the Respondent Mother not less than two (2) calendar months in advance of his intention to do so.
The Respondent Mother shall be entitled to make up weekends as nominated by the mother, in the event that the Applicant Father elects to suspend the child’s time with her mother pursuant to order 5.
The provisions of paragraph 4.1 are suspended on Father’s Day each year and on those occasions the mother’s time shall take place on the following weekend.
The mother shall ensure that the child sleeps in her own bed whenever the child spends time with her on an overnight basis.
The parties facilitate the child’s attendance upon any counsellor or therapist as may be nominated by the Independent Children's Lawyer including attending personally upon that therapist if so requested and for that purpose the Independent Children's Lawyer may provide to the counsellor or therapist a copy of Dr M’s report and a copy of my Reasons for Judgment.
The mother is otherwise restrained from presenting the child to any medical practitioner, therapist, counsellor, psychologist, DoCS caseworker, police officer or any social worker other than in the case of a genuine emergency.
The mother shall be at liberty to attend any major sporting event where parents ordinarily attend (this is not to include, without the father’s consent, such things as the child’s sporting lessons whilst she is living with her father).
The Respondent Mother is restrained from attending D school or any other school which the child shall attend, for the purpose of participating in class, or other extra curricular activities such as reading groups, without the written consent of the Applicant Father, and otherwise the Respondent Mother’s attendance shall be limited to school plays, concerts, presentation nights, speech nights, or parent/teacher interviews as arranged with the school from time to time.
The mother shall have telephone communication with the child on two occasions each week, such calls to be made by the mother between the hours of 6.00pm and 7.00pm.
The father shall provide the child with privacy at the time she has any telephone communication with the mother.
Both parties are restrained from recording in any fashion, or allowing third parties to do so on their behalf, conversations with the child.
The Respondent Mother is restrained from videoing or photographing the child, or allowing third parties to do so on her behalf, with the intention, or for the purpose of collecting evidence or information to use in anticipated proceedings or complaints against the Applicant Father.
The Respondent Mother is restrained from questioning the child, or discussing with the child, matters related to the subject of ‘abuse’, including ‘sexual abuse’, in relation to the Applicant Father.
Each party shall notify the other, as soon as practicable, of any medical or other emergency concerning the child.
The father shall forthwith execute the appropriate authority at the child’s school and at any school which the child may attend, to authorise the school to forward to the mother copies of the child’s school reports and any other document ordinarily provided to parents.
The mother be restrained from taking the child outside the Sydney metropolitan area without the written consent of the father or further court order.
The father be restrained from taking the child outside the Commonwealth of Australia without the written consent of the mother or further court order.
The Court requests that until further order the Australian Federal Police place the child’s name on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.
Each party is restrained from making application for the issue of a passport for the child without the written consent of the other party or an order of the Court.
Each party shall keep the other party informed of any change to his/her residential address and telephone contact number.
The Independent Children's Lawyer’s application for costs against the father be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Taylor-Black & Vasser is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 200 of 2007
| Mr Taylor-Black |
Applicant
And
| Ms Vasser |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This case is about what time the child born in April 2001 (aged 7) should spend with both of her parents. It is a difficult and sad case. The central feature of this matter is an allegation raised by the mother after a conversation with the child on 6 January 2007 that the father had digitally interfered with the child’s vagina, using also a dummy and mustard. The inquiry focused on whether there was any unacceptable risk that the allegations were true and if not, whether there was an unacceptable risk that the allegations were a product of the mother’s either conscious or unconscious behaviour.
The mother, in particular, has been highly distressed by this case.
There has already been considerable litigation between the parties about the child, including a previous fully defended hearing before Moore J which concluded in Her Honour making a determination in March 2004 and an interim application in the current proceedings which attracted an appeal to the Full Court.
Moore J made orders and delivered reasons for judgment on 26 March 2004.
A summary of Moore J’s findings are set out in Exhibit XX. Those findings have been numbered 1 to 41.
Given the history of the litigation, I decided on a preliminary basis whether or not any further evidence should be allowed in this hearing about matters in respect of which Moore J had made findings in 2004. As a result of that consideration I made findings that are set out in Reasons dated 26 October 2007.
AGREED FACTS
A number of matters were agreed facts and are set out in paragraphs 5 of my Reasons of 26 October 2007 in the following terms:-
1.The Mother was born in Sofia, Bulgaria in 1956[1].
[1] At [2004] FamCA 240 (Moore J) at [8].
2.After a holiday visit in 1995, the Mother returned to Australia in 1996 and has remained living here since[2].
[2] Ibedem at [8].
3.The Mother is now an Australian citizen[3].
[3] Ibedem at [8].
4.During her time in Australia the Mother has undertaken some part-time work and completed various courses[4].
[4] Ibedem at [8].
5.The Father was born in Australia in 1950[5].
[5] Ibedem at [9].
6.The Father has been married and divorced twice[6].
[6] Ibedem at [9].
7.The Father has no children from either marriage, but has a son from a much earlier relationship. This child was adopted out. The Father has since established contact with this child[7].
[7] Ibedem at [9].
8.The Father lives in a home he owns in T[8].
[8] Ibedem at [9].
9.The Father has a close relationship with all members of his family, especially his brother, with whom he spends much of his leisure time[9].
[9] Ibedem at [9].
10.The parties met in 1999[10].
[10] Ibedem at [10].
11.The Mother fell pregnant around August 2000[11].
[11] Ibedem at [10].
12.In March 2001 the Mother moved from her premises into the property at T[12].
[12] Ibedem at [10].
13.The child was born in April 2001[13].
[13] Ibedem at [1].
14.After the child’s birth, the Mother was primarily responsible for her day-to-day care whilst the Father worked.
15.The Mother, Father and the child continued to live in the T home until November 2002 when the Father moved to his mother’s residence[14].
16.In light of an unresolved dispute about the terms of the Mother’s occupation of the T home, she left there in January 2003 and has since lived with the child in rented premises[15].
17.The Father did not see the child between January 2003 and early March 2003[16].
18.The Mother made allegations that:
18.1.The Mother witnessed the Father dressed only in a towel, holding his penis and masturbating while standing beside the child’s cot[17];
18.2.When the Mother was away from the home the Father tampered with the child in some way as her nappy had been removed and couldn’t be found[18]. This allegation by the Mother had a culpable overtone given the Mother’s claim that the Father would not change the child’s nappy at all when the Mother was present[19];
18.3.The child behaved strangely on return from her Father which resulted in the Mother contacting DOCS and a paediatrician[20]. The Mother said she was told the child may have been given some type of sedative[21];
18.4.The Father masturbated in front of the Mother[22];
18.5.The Father had pornographic magazines[23].
[14] Ibedem at [10].
[15] Ibedem at [10].
[16] Ibedem at [11].
[17] Ibedem at [15]; [17].
[18] Ibedem at [17].
[19] Ibedem at [17].
[20] Ibedem at [17].
[21] Ibedem at [17].
[22] Ibedem at [17]. These specific allegations are evident from the Father’s denial of them at ibedem at [18].
[23] Ibedem at [17]. These specific allegations are evident from the Father’s denial of them at ibedem at [18].
FINDINGS OF MOORE J WHICH ARE NOT AGREED
At paragraph 6 of my Reasons of 26 October 2007 I set out areas of continuing contention arising from the Reasons of Moore J in 2004. The relevant paragraphs of Her Honour’s Reasons were as follows:-
19.Moore J found that the following allegations were “baseless”[24]:
[24] Ibedem at [56].
19.1.The Mother had inaccurately alleged that she had observed the Father, on 4 November 2002, dressed only in a towel, holding his penis and masturbating while standing beside their daughter’s cot[25];
[25] Thus accepting the Father’s evidence restated at ibedem [18].
19.2.The Mother had incorrectly alleged that the Father had tampered with the child’s nappy in a culpable way;
19.3.The Father had never masturbated in front of the Mother[26];
[26] Thus accepting the Father’s evidence restated at ibedem [18].
19.4.The Father had never had pornographic magazines[27].
[27] Thus accepting the Father’s evidence restated at ibedem [18].
20.Considerations which had a direct bearing on these findings, in addition to various other aspects of the Mother’s evidence, included:
20.1.The Mother changed her position, without satisfactory explanation or a retraction or modification of the claims made, about her concerns for the child were she to have unsupervised contact with her Father[28].
[28] Ibedem at [20].
20.2.The Mother gave different accounts of the detail of what she saw and what occurred beside the child’s cot in her affidavit and in her interview with Dr W[29]. There were also inconsistencies between these two sources about the occasions the Father changed the child’s nappy in her absence. Furthermore, her oral evidence continued to “reflect a confused picture”[30].
[29] Ibedem at [20].
[30] Ibedem at [20].
20.3.The Mother, without adequate explanation, failed to raise complaint on numerous appropriate occasions about the Father’s alleged conduct beside the child’s cot and concerning the child’s nappy, despite her ability in other instances to express her position and access appropriate agencies[31].
20.4.The evidence of the Father’s second wife about her intimate relationship with the Father failed to support the picture the Mother presented of the Father’s sexuality[32].
20.5.The findings of Dr W that:
20.5.1.The Mother’s attitude seemed to indicate more about her state of mind, than the Husband’s personality functioning[33];
20.5.2.Nothing in the assessment of the Father, nor in Dr W’s observations of the Father with the child, lent credence to the Mother’s assertions[34].
21.Moore J proceeded on the basis that the Mother’s version of events was a product more of her personality function than malice of forethought[35].
25.Despite her assertions to the contrary, the Mother had interfered with actions by the Father to see the child and attempted to stop him from seeing the child as the complaint and summons taken out 28 November 2002 included the child as a PINOP[36] (a person in need of protection).
32.In 2004 the child had a close bond with each of her parents but the quality of her relationship with each of her parents was markedly different, the connection the child had with her Father being the healthier for her[37].
[31] Ibedem at [20].
[32] Ibedem at [20].
[33] Ibedem at [20].
[34] Ibedem at [20].
[35] Ibedem at [21].
[36] Ibedem at [19].
[37] Ibedem at [41].
SOME MATTERS IN ISSUE AND FACTS IN DISPUTE
In an order made on 1 November 2007 I identified the following matters in issue and facts in dispute:
1.MATTERS IN ISSUE:
1.1. Whether the presumption of equal shared parental responsibility for [the child] should apply in this case or whether the father should have sole parental responsibility for [the child] (father’s proposal).
1.2. The amount of time [the child] should spend with each of her parents.
1.3. Whether [the child’s] telephone communication with the parent with whom she is not living should be:-
1.3.1.liberal, as per order 7 made 26 March 2004; or
1.3.2.limited (father’s proposal) to one occasion per week of no more than 15 minutes.
2.FACTS IN DISPUTE
2.1. Whether the father poses any unacceptable risk of sexual abuse and/or psychological abuse to [the child].
2.2. Whether the mother poses any unacceptable risk of psychological abuse to [the child] and in particular:
2.2.1.Whether [the child] made the disclosures alleged by the mother.
2.2.2.Whether the mother encouraged [the child] to say things about her father;
2.2.3.Whether the mother embarked upon a course of conduct where she has made false allegations against the father relating to inappropriate sexual conduct by the father involving [the child] and in particular, is there any basis for the mother’s allegations that, prior to the hearing before Moore J in 2004:-
2.2.3.1.The Mother witnessed the Father dressed only in a towel, holding his penis and masturbating while standing beside [the child’s] cot.
2.2.3.2.When the Mother was away from the home the Father tampered with [the child] in some way as her nappy had been removed and couldn’t be found. This allegation by the Mother had a culpable overtone given the Mother’s claim that the Father would not change [the child’s] nappy at all when the Mother was present.
2.2.3.3.[The child] behaved strangely on return from her Father which resulted in the Mother contacting DOCS (Department of Community Services (“DoCS”) and a paediatrician. The Mother said she was told [the child] may have been given some type of sedative.
2.2.3.4.The Father masturbated in front of the Mother.
2.2.3.5.The Father had pornographic magazines.
2.2.4.Whether in 2004, despite her assertions to the contrary, the Mother had interfered with actions by the Father to see [the child] and attempted to stop him from seeing [the child] as the complaint and summons taken out 28 November 2002 included [the child] as a PINOP.
2.3. Whether in 2004 [the child] had a close bond with each of her parents but the quality of her relationship with each of her parents was markedly different, the connection [the child] had with her Father being the healthier for her.
2.4. If either parent poses a unacceptable risk of abuse to [the child], how best to protect [the child] from abusive behaviour by her parents.
2.5. The nature of [the child’s] relationships with each of the parties and significant others.
2.6. [The child’s] views in relation to the parties’ respective proposals for her living arrangements and the weight to be placed on those views.
2.7. The parents’ respective parenting capacities and in particular:
2.7.1.Whether either party is affected by some form of personality disorder or other psychiatric condition which impacts on their ability to provide for [the child’s] needs, especially her emotional needs; and
2.7.2.The parties’ respective capacities to implement an arrangement whereby [the child] equally shares her time between her parents or spends substantial and significant time with the parent with whom she does not primarily reside.
2.8. The parties’ respective capacities to facilitate and encourage appropriate and continuing relationships between [the child] and the other parent and members of that parent’s extended family.
2.9. The effect on [the child] of the exposure to parental conflict.
2.10. The likely impact on [the child] of any reduction of her living time with the mother and in the event the court finds such a reduction in [the child’s] best interests, how best to facilitate that reduction.
2.11. Whether the Court should make an order which would be least likely to lead to the institution of further parenting proceedings in respect of [the child], and if so, what order(s) would achieve that outcome.
3.CREDIT
3.1. It is noted that the credit of each of the parties is in issue.
DOCUMENTS READ
The following evidence has been read by me in these proceedings:-
10.1.The mother’s affidavit sworn 18 February 2008;
10.2.The father’s affidavit sworn 5 February 2008;
10.3.Affidavit by the father’s brother sworn 31 January 2008;
10.4.Affidavit of the father’s sister sworn 29 January 2008;
10.5.My Reasons dated 26 October 2007;
10.6.Dr M’s report dated 31 August 2007;
10.7.The Independent Children's Lawyer’s list of documents and bundle of documents (Exhibit ICL 5);
10.8.Exhibits tendered during the hearing;
10.9.The mother’s written submissions filed 12 May 2008.
ORDERS MADE BY MOORE J ON 26 MARCH 2004
Moore J made orders in the previous proceedings on 26 March 2004 in the following terms:
1.All previous parenting orders relating to the care of [the child] born […] April 2001 are discharged.
2.As from the date of these orders, the child live with her father as follows:
(a)in the first week immediately following the making of the orders from 9am on Saturday to 6pm on Sunday;
(b)in the second week immediately following from 9am on Saturday to 6pm on Sunday;
(c)in the third week immediately following from 6pm on Friday to 6pm on Sunday;
(d)in the fourth week immediately following from 6pm on Friday to 6pm on Sunday;
(e)in the fifth week immediately following from 6pm on Friday to 6pm on Sunday;
(f)in the sixth week immediately following from 6pm on Thursday to 6pm on Sunday;
(g)in the seventh week immediately following from 6pm on Thursday to 6pm on Sunday;
(h)in the eighth week immediately following from 6pm on Thursday to 6pm on Sunday.
3.Thereafter, and until the child commences school, the child live with her father as follows:
(a)in the first week from 10am Sunday until 10am on Thursday; and
(b)in the second week from 10am on Sunday until 10am on Wednesday, and repeating that two (2) week cycle thereafter.
4.Upon the child commencing school,
(a)during school terms she live with her parents on a week about basis, the first week with her father and the second week with her mother and repeating that two week cycle thereafter, the changeover of her care to occur at the end of school each Friday; and
(b)during school holidays she live with each of her parents for one half of each school holiday period as agreed and, failing agreement, with the father in the first half in even numbered years and the mother in the first half in odd numbered years, changeover to occur either at the child’s school or the residence of a parent whichever shall apply.
5.The child live with the mother at all times except as provided in orders 2, 3 and 4 hereof.
6.Orders 2, 3, 4 and 5 are subject to any agreement by the parents to the contrary, including arrangements on special occasions such as Father’s Day, Mother’s Day, the child’s birthday, and Christmas or other religious festive occasion.
7.Each parent is at liberty to telephone the child in the home of the other parent on a landline number to be provided at all reasonable times but no later than 7pm.
8.Each parent have sole responsibility for making decisions with respect to the day to day care, welfare and development of the child during periods when the child lives with him/her.
9.Subject to the father taking responsibility for paying all fees and education costs, the father is permitted to enrol the child at [D School] to commence her schooling there and each parent is to do all acts and things and sign all documents necessary to complete that enrolment.
10.The parents are to seek a referral for the child to attend a paediatrician skilled in managing the interplay between physical symptoms and emotional disturbance and, for that purpose, they are at liberty to provide to the paediatrician a copy of the report of Dr [W].
It is noted:
The mother proposes to attend upon a counsellor and/or psychiatrist for the purposes of seeking treatment in an attempt to understand and contain her anxieties about [the child] when she is separated from her.
It is further noted:
The mother will seek advice as to age appropriate activities and age appropriate expectations in the maternal/child relationship.
11.Pursuant to S65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
12.The exhibits tendered in Court are to be returned at the expiration of one month from this day to the party tendering same on the condition they be returned to the Court if required.
13.In relation to documents produced to the Court on subpoena, the solicitor for the party who caused the subpoena to issue uplift those documents no later than seven days from this day and forthwith take all steps necessary to return the documents to the person or corporation entitled to them.
14.The matter is to be removed from the list of cases awaiting final hearing.
IT IS ORDERED by consent:
15.The party with whom the child is to commence her period of residence shall be responsible for the collection of the child from the other party and the changeover point shall be at a public place to be agreed between the parties from time to time.
16.The restraining orders dated 5 December 2002 and 20 December 2002 and made in the Family Court of Australia shall continue pending further orders of the Court.
17.Each party is restrained from making application for the issue of a passport for the child […], born […] April 2001, without the written consent of the other party or by order of the Court.
18.Each party shall keep the other party informed of any change to his/her residential address and telephone contact number.
RICE AND ASPLUND
From 26 March 2004 until early January 2007 the child spent time with her father for three days in one week and four days in the next week.
The father says that in the week commencing Sunday 31 December 2006 he had the child in his care for four days until 10am Thursday 4 January. Under the orders the mother was then due to have the child in her care from 10am on Thursday 4 January until 10am Sunday 7 January. On Sunday 7 January 2007 the mother did not deliver the child to the father.
The reason was that the mother said that the child had made disclosures which raised fresh allegations against the father that the father had sexually interfered with the child.
The circumstances in which these allegations were raised are central to this hearing.
It was agreed between all parties that the events of January 2007 in the circumstances of this case created a sufficient change of circumstances to warrant a reconsideration of the orders that had been made by Justice Moore in 2004.
APPLICATIONS OF THE PARTIES
Father
The orders sought by the applicant father are as follows:
1.That the Applicant Father have sole parental responsibility for both the long term and day to day care welfare and development for the child, […], born […] April 2001 and that the child live with him.
2.That the Respondent Mother spend time with the child as follows:
2.1on Saturday of each alternate weekend between the hours of 10am and 4pm;
2.2on Mother’s Day between the hours of 10am and 2pm;
2.3on the [child’s] birthday, if it falls on a school day, for a period of two (2) hours at the end of the school day, as agreed between the parties;
2.4on the [child’s] birthday, if it falls on a non-school day, between the hours of 10am and 2pm;
2.5on the Mother’s birthday, if it falls on a school day, for a period of two (2) hours at the end of the school day, as agreed between the parties;
2.6on the Mother’s birthday, if it falls on a non-school day, between the hours of 10am and 2pm;
2.7on Easter Sunday between the hours of 10am and 2pm;
2.8on Christmas Day in each even numbered year between the hours of 10am and 2pm and on Boxing Day in each odd numbered year between the hours of 10am and 2pm.
3.That the Applicant Father be at liberty to suspend the time periods the Mother is entitled to have with the child, on two (2) occasions per year (although not on consecutive time periods pursuant to these orders), to be nominated by the Applicant Father, to enable the Applicant Father to take the child […] away during school holiday periods, conditional upon him advising the Respondent Mother not less than two (2) calendar months in advance of his intention to do so.
4.That the Respondent Mother shall be entitled to make up time periods as agreed between the parties, in the event that the Applicant Father elects to suspend pursuant to order 3 above.
5.That the Respondent Mother is restrained from taking the child to any medical practitioner without the written prior consent of the Applicant Father, excepting in the event of an emergency. In such circumstances the Respondent Mother is to provide the Applicant Father with all details of any such urgent attendance as soon as practicable following the said attendance upon that medical practitioner.
6.The Respondent Mother is restrained from taking the child to any psychiatrist, psychologist, counsellor, or other health professional without the prior written consent of the Applicant Father, or Order of the Court.
7.The Respondent Mother is restrained from recording in any fashion, or allowing third parties to do so on her behalf, conversations with the child […].
8.The Respondent Mother is restrained from videoing or photographing the child […], or allowing third parties to do so on her behalf, with the intention, or for the purpose of collecting evidence or information to use in anticipated proceedings or complaints against the Applicant Father.
9.The Respondent Mother is restrained from questioning the child […], or discussing with [the child], matters related to the subject of ‘abuse’, including ‘sexual abuse’, in relation to the Applicant Father.
10.The Respondent Mother is restrained from attending [D] school or any such other school which [the child] shall attend, for the purpose of participating in class, or other extra curricular activities such as reading groups, without the written consent of the Applicant Father, and the Respondent Mother’s attendance shall be limited to school plays, concerts, presentation nights, speech nights, or parent/teacher interviews as arranged with the school from time to time.
11.That for the purposes of all time periods the Respondent Mother spends with the child the Respondent Mother shall be responsible for collecting the child from the Applicant Father’s residence a the commencement and the Applicant father shall be responsible for collecting the child from the Respondent Mother’s residence at the conclusion.
Mother
On 18 October 2007 the mother’s then legal representative indicated that the mother’s position was that she sought that the child spend equal time with both her parents on a week about basis without any supervision being required for the child’s time with her father.
During the final phase of the hearing on 28 April 2008 the mother, who was now unrepresented, confirmed that that was still her position.
In her submissions about holidays, the mother at page 23 of her submissions stated:
“I am not prepared to say how the school holidays, public holidays, special days, birthdays, mother’s and father’s day, religious holidays could be arranged. In my view, it is always very easy to arrange such time when the parties are prepared to negotiate.”
It is difficult to understand that submission given that one would think it is clear to the mother that she and the father find it extremely difficult to negotiate about anything.
Independent Children's Lawyer
On 1 November 2007 the Independent Children's Lawyer informed me that when Dr M recommended that the child spend limited weekend time with her mother, she was referring to Saturday morning through to Sunday evenings.
During final submissions the Independent Children's Lawyer handed up a written document seeking the following orders:-
26.That all previous orders herein be and are hereby discharged.
27.That the father have sole parental responsibility for the child of the relationship […] born […] April 2001 (hereinafter “[the child]”).
28.Order that [the child] live with the father.
29.That [the child] spend time with the mother as follows:-
(a)on alternate weekends from 9.00am on Saturday until 6.00pm on Sundays; the mother to collect [the child] from the father on the Saturday, the father to collect [the child] from the mother on the Sunday;
(b)on the weekend of Orthodox Easter at the times specified in para 4(a) herein;
(c)on occasion of [the child’s] and the mother’s birthday each year; in the event that the birthday falls on a school day, for a period of 3 hours after school; in the event that the birthday falls on a weekend when [the child] is not otherwise with the mother, for one day on that weekend;
(d)at Christmas on an alternating basis;
(e)on Mother’s Day each year from 9.00am until the commencement of school the following day;
(f)at other times as may be agreed between the parties.
30.The provisions of paragraph 4(a) are suspended on Father’s Day each year and on those occasions the mother’s time shall take place on the following weekend.
31.The mother shall ensure that [the child] sleeps in her own bed whenever [the child] spends time with her on an overnight basis.
32.That the parties facilitate [the child’s] attendance upon any counsellor or therapist as may be nominated by the Independent Children's Lawyer including attending personally upon that therapist if so requested.
33.The mother is otherwise restrained from presenting [the child] to any medical practitioner, therapist, counsellor, psychologist, DoCS caseworker, police officer or any social worker other than in the case of a genuine emergency.
34.The mother shall be at liberty to attend any school or sporting event where parents ordinarily attend.
35.The mother shall have telephone communication with [the child] on two occasions each week, such calls to be made by the mother between the hours of 6.00pm and 7.00pm.
36.The father shall provide [the child] with privacy at the time she has any telephone communication with the mother.
37.Each of the parties is restrained from recording in any way, any conversations the child may have or any statement which the child makes.
38.Each party shall notify the other, as soon as practicable, of any medical or other emergency concerning the child.
39.The father shall forthwith execute the appropriate authority at [the child’s] school and at any school which [the child] may attend, to authorise the school to forward to the mother copies of [the child’s] school reports and any other document ordinarily provided to parents.
40.That the parties contribute to the costs of the Legal Aid Commission herein in equal shares.
CREDIT
Mother
The following matters effect my assessment of the mother’s credit.
She made a statement at paragraph 132 of her sworn affidavit 11 September 2003 saying that the father had never made any financial contribution towards the cost of the child. She also informed Mr C of this. This is not correct. Exhibit 1 shows that he had made some contributions. However, I do accept the mother’s overall point that she has received very little by way of financial assistance in respect of the child so far from the father.
The mother, in her early evidence, conveyed a picture of being left alone without any emotional support during her pregnancy. I am satisfied that the evidence does not support such an absolute position and in fact the father offered her considerable support during the pregnancy.
The mother did present a picture of the father begrudgingly going to Bulgaria at the commencement of their relationship (paragraph 6 of her affidavit “like that he begrudgingly went there and stayed five days”). His passport shows that he stayed for a longer period than that.
The mother asserted that she never tried to stop the child seeing her father in 2002/2003. However the AVO that she prosecuted had such an effect.
I refer later to the inconsistencies in the mother’s evidence about whether or not the mother had tape recorded any of the child’s conversations for the purposes of attempting to gather evidence prior to the tape recording made by her on 6 January 2007.
The mother in her earlier affidavit material said that she didn’t stop the father from seeing the child. That was not actually true given that once the father left the house she instituted her AVO proceedings and an order was made on 12 December 2002 which effectively stopped the father from seeing the child. The father did not see the child except for occasions when the parties had to go to one court or another, until Registrar Henderson made interim orders at the Family Court on 28 February 2003. So there was effectively a period of in excess of two and a half months when the child did not see her father.
The mother said things to Dr R that she did not report to any other person notwithstanding the nature of the assertions she made to Dr R.
I do not accept the mother’s assertion that she did not want the child to go to D School given what Dr M records at page 11 of her report.
Father
The mother makes a number of submissions about the father’s credibility. The father admitted in cross examination that there were things in respect of which he had mental blanks. The mother suggests that one of these things is whether or not he masturbated in front of the child in 2002. The father was emphatic that he remembered that he did not do what the mother alleged that he did. It is the type of event, which in my view, a person would not fail to remember. I do not accept the mother’s hypothesis that one explanation of the difference between her version of the incident involving masturbation and the father’s was that the father had simply forgotten that it had happened.
The mother points to the fact that in the Joint Investigation Response Team (“JIRT”) interview the father gave evidence that he had never touched the child’s vagina. The mother refers to Exhibit 11 (the communication book) and the father’s entry of 26-29 June 2005 in which he says:
“[The child] is fine, cream on her wrist. I brought more cream and bandage which is in this bag. I also put amolin cream on [the child’s] bottom”.
There are a number of possible explanations for the inconsistency. The first of which there is a distinction between the word bottom and vagina. The second is that the father simply did not, in the context of the JIRT interview, make a mental connection between touching the child’s vagina and putting cream upon it.
The mother complained that the father did not respond to her communications in the communications book in a fulsome way. I accept the father’s explanation that, because of the history of conflict with the mother, he simply kept his entries down to the minimum of informing the mother as to matters of a medical nature that had transpired during the time the child was with him.
There is an issue between the parties in relation to the incident that took place at Randwick Hospital. I prefer the version given by the father in relation to that incident.
At page 8 of her submissions the mother asserts that the father gave inconsistent evidence about the timing of reading in the child’s school. I do not think that is so. The father came under a cloud in relation to sexual abuse from early January 2007. The child started school on 31 January 2007. The effect of the father’s evidence is that when he had to fill a form out he had to disclose the substance of the allegations made against him and that disqualified him from being able to read at school.
The mother, in her submissions, refers to the fact that the father kept a diary and those diaries were not in evidence. During the hearing I ruled that those diaries were subject to legal professional privilege and the father was not obliged to produce those documents.
The father was questioned about him attending the mother’s church on 7 January 2007. I accept the father’s evidence that he took a video camera to the church because he was unsure as to what reaction he would get when he went there looking for the child.
The father asserts that the child has been exposed to watching movies in the mother’s household at an inappropriate level. The mother denied that the child ever saw “Pirates of the Caribbean” and I am unable to make any finding as to whether or not that happened. The lack of a finding does not affect the decision that I otherwise make in this matter.
There was one occasion during his evidence where the applicant father showed a flash of anger. It was in the context of the father reflecting upon the difficulty that had been caused, particularly to his family, as a result of what he viewed to be totally unfounded sexual abuse allegations by the mother.
Conclusion as to credit
Having regard to the above matters, but more particularly having observed the parties over the six days at the final stage of this trial, I find that I prefer the evidence of the father rather than the evidence of the mother where their evidence is in conflict.
Mother’s use of an interpreter
On the last days of the final stage of the hearing, the mother had an interpreter available to her. Over the days the interpreter was in the court room he only was asked to interpret a word or two on no more than six occasions. The mother, in my view, competently presented her case in the English language.
Dr M makes some comments about the mother’s use of the interpreter during the interviews for the report. At page 8 she says the interpreter was used by the mother from time to time. At page 12 she says the interpreter was used frequently.
At page 20 Dr M records:
“...she was a slim woman who spoke with a strong accent and whose command of English was generally good although she did seek assistance from the interpreter, which for some of the time I felt was for support rather than assistance with language.”
At page 10 Dr M records that the child only speaks English and the mother speaks English to the child at home (page 12).
I acknowledge that the mother felt pressure and tension from the concentration and stress created by her role as her own representative. However the mother, in my view, ran her case in an extremely competent way. She is an intelligent woman. Her mental status however is such that she is unable to view what has happened in an objective manner.
The mother’s mental status
The state of the mother’s mental health seems relatively clear on the expert evidence. Dr W diagnosed that the mother had a personality disorder in 2004. Dr W at that time put the mother’s personality disorder in the cluster of personality disorders known as histrionic. The mother tendered a letter from Dr K (Exhibit 5), the mother’s current GP, who says that having known the mother for some time she disputed Dr W’s ability to make a diagnosis of the nature that he made. Both Dr W’s evidence and Dr K’s evidence are before me in written form. Neither of them were called to give evidence. Dr W is of course a psychiatrist, whilst Dr K is a general practitioner.
I place heavy reliance however on the evidence given by Dr M as to the mother’s current mental state. Dr M at page 12 of her report opined that there was no evidence of psychotic process or of a depressive illness and at page 26 says the following:-
“Dr [W] has diagnosed [the child’s] mother with a histrionic personality disorder. I would place her personality disorder within the cluster B narcissistic/borderline, characterised by emotional instability and the inability to put the needs of others first. This is particularly evident when the mothers [sic] colludes or falsifies allegations the father, which she knows could result in [the child] seeing less of the father and perhaps the father going to jail, without regard for how this would affect [the child’s] immediate and long term emotional needs.”
Hence Dr M does not agree that the mother has a histrionic personality disorder today. She places the mother’s mental health in a different cluster of personality disorders, describing it as narcissistic/borderline and she gave some more precise evidence that within that cluster she would call the mother’s mental state narcissistic personality disorder.
The mother denied at paragraph 20 of her submissions that she has any disorders. She says she has never been tested, assessed or treated for any personality disorder. This flies in the face of the assessments which the mother knows Dr W and Dr M have made. The mother simply does not accept those assessments.
Dr R
No evidence was filed by Dr R notwithstanding the fact that she had seen the mother as her treating psychiatrist for a few years. The mother was legally represented during the period when appropriate witnesses were discussed and a timetable for the filing of affidavits were set. They still represented the mother at the time that timetable had expired. No application was made at any time for Dr R to give any evidence as to whether or not she had a view about the mother’s mental status.
Dr R’s notes include a written document. These were notes that the mother prepared for Dr R’s eyes only. They contain allegations that the mother has made no where else. An example is an assertion that the child was doing “very strange body movements and sounds”. The fact that the mother said these things to Dr R but to no other person is a matter which goes to the mother’s credit. Given the extensive reporting of other matters to a wide range of professionals and authorities, it is disturbing that the mother would make these types of assertions in a private session with Dr R and no one else.
The Independent Children's Lawyer commented on the fact that the mother refused to give Dr R a copy of Dr W’s report during her therapeutic consultations with Dr R.
SEXUAL ABUSE ALLEGATIONS
There are two different sets of suggestions of improper sexual conduct by the father in this case. The first was when the child was too young to speak. The only witnesses in relation to those allegations are the mother and the father. The second lot of allegations stem from events in January 2007.
The mother’s position in relation to those allegations is that she didn’t make the allegations. She says that the allegations came from the child and she simply repeated them.
The incident of 4 November 2002 – the masturbation incident
The mother says she witnessed the father masturbating in front of the child’s cot on 4 November 2002.
The mother in her evidence left no room for any alternate explanation. She gave clear evidence that she saw the father masturbating. The father says it never happened.
There are inconsistencies in relation to the mother’s story in relation to what happened in 2002. In her first interim affidavit sworn 10 December 2002, at paragraph 2(d) the mother says that the child was lying naked on the bed. However in Dr W’s report at page 7 the mother says that the child was dressed in a T-shirt but was not wearing a nappy.
During her evidence and in submissions the mother explained that from her point of view there was no difference between the child being naked and the child not wearing a nappy.
At paragraph 15 of the mother’s written submissions the mother says:-
“Inconsistency in my evidence comes only from that sometimes I said that [the child] was lying naked and sometimes with t-shirt. What I meant always, in my view, is that [the child] was naked. I meant [the child] was without her nappy. When [the child] is without nappy, I view her as naked, as she is not covered, or left or private parts uncovered. When he [sic] private parts are uncovered, in my language and expression, this means she is naked. What took my attention was not what [the child] had on her shoulders but what the applicant was doing.”
The event that the mother is describing is a serious and important one in the context of this hearing. I find the detail is an important one and I find there is an inconsistency in the evidence that was given by the mother in the two statements which is not adequately explained by the statements contained in the mother’s submissions.
There is a further inconsistency about the mother’s reaction to the incident. In the mother’s affidavit sworn 11 September 2003 she says the following at paragraph 136.19:-
“I was shocked and following the incident I did not leave [the child] alone with [the father].”
In the second affidavit sworn 20 February 2003 at paragraph 20, she says:-
“I have witnessed [the father] acting out inappropriate conduct in front of [the child] and I will always have concerns about her safety if he had unsupervised contact with her.”
In Dr R’s notes relating to a consultation with the mother that seems to have taken place around 25 July 2005, it is recorded that the mother told Dr R:-
“I will always be concerned about [the child’s] contact with [the father].”
The three statements referred to immediately above have to be contrasted with the statement made in Exhibit 12 (the mother’s statement handed up in court on 5 May 2008), where the mother says at page 5.1:-
“At that time, I did not raise complaints regarding the applicant’s masturbating in [the child’s] room and [the child’s] nappy because according to me, it isn’t a substantial issue. I said that I did not see the Applicant Father interfere with [the child] physically. He did not have direct physical contact towards [the child] which could have consequences as a result. I said that I did not see the applicant interfere with any act of a sexual nature with [the child]. I saw the Applicant masturbating in [the child’s] room. I was not surprised for him to do that. In my opinion, that was silly and inappropriate behaviour from him. This disgusts me because he did that in [the child’s] room.”
There is a fundamental shift in the mother’s position in relation to the allegation that the father masturbated in front of the child. In her two earlier affidavits and to Dr R she was sufficiently concerned about the incident to the extent that she was weary about the child’s contact with the father. The incident now is one that she calls “silly”.
There are a number of opportunities that the mother had prior to 10 December 2002 to mention or report the incident that the mother now said took place on 4 November 2002. After the father moved out of the home in November 2002 he filed an application in the Family Court with which the mother was served. Moore J’s judgment indicates that service took place on 27 November 2002.
On the following day, 28 November 2002, the mother swore a Complaint and Summons (Exhibit F) for the purposes of having the father excluded from the home. The complainant was the mother herself. She named the child as a person in need of protection. There is no mention of masturbation in the alleged incident on 4 November 2002 in the complaint and summons.
The mother saw Dr S on 3 December 2002. Dr S had been the child’s long term GP. The notes disclose that no mention of this incident was made to Dr S.
The matter came before Loughnan JR on 5 December 2002 when the parties were before the Family Court. The incident was not raised by her then solicitor Mr Golden.
On 7 December 2002 the mother gave a statement to the police. That statement is annexure B to the mother’s affidavit sworn 18 February 2008. It is quite a lengthy statement and there are lots of things the mother complains about in relation to the father, including his possession of a firearm. There is no mention in any of those documents of the alleged masturbation incident.
It took the mother until 10 December 2002 before the allegation is made by the mother.
I accept that the father was never in a room with the mother with a towel on. The father concedes that there was one occasion when the mother was asleep, the child awoke and he went to the child to put a dummy in the child’s mouth and on the way put a towel around his waist.
On the balance of probabilities I accept the father’s evidence that nothing untoward happened on 4 November 2002 or any other time involving him masturbating in the child’s room.
Nappies
Apart from the assertion of what happened on 4 November 2002 the mother made other allegations against the father arising out of his alleged conduct whilst they were together in 2002. The mother’s evidence was to the effect that there were many occasions when the mother was suspicious about the father’s behaviour with the child. These allegations go to assertions that the father stared at the child’s vagina when he took the nappy off. The mother would go out on shopping expeditions and leave the child alone with her father and when she came back nappies would be missing and the child would be in a dishevelled state (see Dr W’s report at page 6.5 and 7.3; the mother’s affidavit sworn 11 September 2003 at paragraphs 136.17 and 136.18).
I am comfortably satisfied that the father did nothing untoward with the child when she was a baby whilst changing her nappy.
The mother’s cross examination of the father about him being a sperm donor gave some insight into the mother’s perception of the father’s sexuality and potential for doing harm to the child whilst she was a baby. The thrust of the cross examination was that the father’s sexual appetite was increased by the fact that he regularly visited a clinic to donate sperm. I accept the father’s rejection of that assertion. This is linked with the mother’s further assertion that the father often accessed pornographic magazines. The father denied that he did so and I accept his evidence in that regard.
I note that when the matter came before Justice Moore the mother abandoned most of her concerns referred to above. She certainly didn’t seek any supervision order before Moore J.
The history of the mother’s dissatisfaction with the current orders in 2004
The mother told Dr R in notes of a consultation that appears to have taken place on 20 January 2005:
“I will apply for a review of the orders in 2005”.
The mother said to Dr R in 2006:-
“I am going to start court proceedings. I have got no choice.”
On 30 September 2005 the mother said to Dr A:-
“I am unhappy about the shared custody order of the Court.”
The mother wrote a letter to the father dated 28 March 2006 and followed it with a further letter dated 19 August 2006 (annexures F and G to the father’s substantive affidavit sworn 5 February 2008). In those letters the mother foreshadows her intention to take court proceedings. The mother says that all she was trying to do was get the father to go to mediation. The letters however have to be read in light of the entries that I have just referred to in Dr R’s and Dr A’s notes.
Two issues concern the mother. The first was the amount of time that the child would be away from her at the commencement of the 2007 school term. For the first time the child would be regularly away from her mother for a week at a time.
The mother actually suggested a reduction from what was effectively a shared care arrangement (three days/four days; four days/three days on a fortnightly cycle) to the child being with the father on weekends from Friday afternoon to Sunday afternoon (and elsewhere Monday morning). The mother suggests that this did not significantly alter the child’s time with the father but it would mean that he had four days and six nights with her a fortnight as opposed to seven days and seven nights a week.
The second issue that concerned the mother was the school that the child had been ordered to attend by Moore J. The mother clearly wanted the child to go to a public school. In Dr R’s notes there are a number of references to this. She also makes it clear in the letters written to the father. I do not accept the mother’s submission (on page 18 of her submissions) that she did not wish to stop the child going to D School.
Dr M records that when she asked the mother if she was worried about anything in particular that had happened, the mother said “[the father] wants to have [the child] full time and thinks this is best for her, [the father] chose the school, a Christian school, which I would not have chosen” (page 11). The mother now says that she has no problem whatsoever with the child going to D School. The child of course has been going to D School since the beginning of 2007 in accordance with the orders that Justice Moore made in 2004.
In the report of Mr C dated 23 October 2006 (Exhibit B), the mother reports to Mr C that the “shared parenting” arrangement is placing increased physical and social-emotional strain on the child, who has lived in two separate households from week to week over the past two and a half years. The report notes that the mother is concerned that the child’s enrolment at D School will place additional stresses on the child.
I conclude that in 2005 and 2006 the mother is becoming more and more dissatisfied with the arrangements that have been made for the child pursuant to Moore J’s orders which were to become operational once the child commenced school.
Throughout this period the mother is attempting to gather evidence for the purposes of being able to change the orders which were then current.
Complaints about the father
On or about 26 or 28 September 2005 (see DoCS’ records Exhibit ICL 5), the mother telephoned DoCS. She complained about a number of things which included:-
92.1.The child suffering a tick bite;
92.2.The child talking about being disgusted at her father’s home and in some way being pushed by her father to do something she did not want to do;
92.3.Displaying with her face and behaviours and gestures, mimicking feeling that she is expressing which is disgust;
92.4.The child telling her mother that her father had locked her in a dark room when he lost his temper.
After these matters were noted by DoCS, the mother is noted as telling DoCS that the child has been talking about seeing her father “leaking from the bottom” and being “nudy”, “that he talks about only him leaking from the bottom”. The note also says that the mother informed DoCS that when the child was picked up from the father her vagina was red and was sore to do wee.
The mother was advised to take the child to hospital for examination and to make an appointment at the Child Protection Unit at Sydney Children’s Hospital to have her examined and also seek legal advice about changing the court orders.
The note goes on to record that the mother also made other complaints and notes that the mother had stated that she had been documenting the child’s behaviour on return from staying with the father. She was concerned about the child being burnt, being left unsupervised, changes in her behaviours, seeing a counsellor, concerns about behaviours, language and signs of physical abuse/verbal abuse occurring at the father’s. She told DoCS that the child was frightened and that the mother did not believe the father provided a safe place for the child and that the child was not in good hands with the father. She said the child was now behaving in an aggressive way and acting like the father and his brother, copying their language and behaviour. The mother asserted to DoCS that the child was picking up racist language and ideas from the father and was making racist comments.
In the mother’s oral evidence she was more expansive and graphic when she gave the court a description of the child’s disclosure to her that the father was leaking from the bottom whilst he was lying on a floor.
The graphic description given to me by the mother clearly indicated that the leaking only came from the anal area.
That evidence by the mother has to be contrasted with what is in Dr R’s notes (Exhibit ICL 5, tab 6, sub-tag 11 (pink tag)). Those notes clearly indicate the mother reporting to Dr R on or about 20 October 2006 that the mother had concerns for the child because the father was walking naked and still “leaking from bottom”. There is an arrow from the word bottom to the words leaks from front and back. I am comfortably satisfied that the mother told Dr R that the discharge from the father was happening both from his anal area and from his front.
This, in my view, is an important inconsistency in the mother’s evidence.
Counsel for the father put to the mother that what she was describing to Dr R and to DoCS in relation to the leaking bottom was that the father was ejaculating.
The mother in cross examination, seemed to absolutely refuse to agree with the proposition that that was perhaps what she was suggesting by the reports that she made. Again she simply responded by saying that she didn’t know, it was just what the child said to her.
I do not accept the mother’s statement that the child said that her father was leaking from the bottom. It is such a serious allegation that, had it been said, it is unlikely the mother would not have actioned it immediately.
During 2005 and 2006 the mother made numerous reports to DoCS. In ICL 5, tag 7, sub-tag 2, between January 2003 and May 2006 there are fourteen entries on different days of notifications to DoCS in relation to the child, including:-
103.1.smacking the child;
103.2.when the child was burnt on the arm;
103.3.inappropriate sexual behaviour;
103.4.red sore vagina;
103.5.tick bite;
103.6.mother refusing to take the chld to hospital;
103.7.Dr R and paediatrician Dr H expressing concerns that the child was at risk of psychological abuse because of the conflict between the parents;
103.8.Dr R expressing concern that the mother was failing to provide her with a copy of Dr W’s report;
103.9.the arguments between the parents are noted as to involve wearing and not wearing nappies; going to preschool; the father going away on trips without telling the mother; the father not properly engaging in the use of the communication book and the father allegedly giving the child a dummy;
103.10.Dr H expressed concerns about the mother being erratic and anxious when separating from the child;
103.11.Concerns were raised about the father’s parenting style and disrespect to the mother;
103.12.mother not knowing where the chld was in the father’s care and contacting the police (24.11.05);
103.13.allegations of emotional and psychological abuse by the father with the child experiencing some nightmares, crying and screaming (24.4.06).
On 16 September 2005 the mother took the child to see Dr V. Dr V’s notes states that the mother is anxious because she has suspicions about inappropriate behaviour from the father when the child was with him “Re: stuff coming out of private area, & being smelly”.
On 26 September 2006 Dr S wrote a letter which appears more than once in the evidence, a copy of which is at tab 3 in ICL 5. Dr S confirmed to the mother in that letter that he had given advice to the father in July 2006 that because of the child’s continuing problem with minor vaginal irritation it would benefit the child to sleep as lightly dressed as possible, including not wearing more than pyjama pants to bed. The mother had apparently been to Dr S and got his written advice that there was no need for his advice to continue and that it would be reasonable now for the child to wear underpants to bed underneath her pyjamas or nightie. He went on to say:=
“I should state that there is no medical reason for [the child] to wear or not wear underpants. The decision as to what she does is a decision for the parents. As reasonable people, I am sure that the two of you can arrive at a sensible decision as to what should be done. If I may offer my own opinion, it appears to be prudent for [the chld] to wear underpants as this is the action that most appears to preserve [the child’s] modesty, which you [the mother] appear to feel very strongly about. Conversely, I see nothing to be gained by insisting on the opposite action”.
On 30 September 2005 the mother saw Dr A. Dr A’s note is, in part, as follows:-
“Purpose of her visit is to report her suspicion of child being sexually abused by her child father – susp. Abuse for about one year since girl is old enough to talk about her father/walks always naked, his bottom leaking, he stinks in bed/physical suspicion. Shows some bruising in the past on her legs, genital area always red.”
Another entry in Dr A’s notes of 21 November 2005 records that the mother still has concerns about the child arising from her suspicions of abuse and the lack of interest by DoCS.
In the period up to January 2007 the mother initially gave evidence that she took the child to the doctors almost every week. Later in the hearing she changed that evidence to say that it was less frequent.
The child’s disclosures in January 2007
Counsel for the father provided seven references that all relate to the child’s disclosure in January 2007. Those references are as follows:-
109.1.paragraph 10 of the mother’s interim affidavit sworn 18 January 2007;
109.2.paragraph 28 of the mother’s substantive affidavit sworn 18 February 2008;
109.3.the mother’s statement to police dated 9 January 2007;
109.4.the JIRT interview with the child;
109.5.the transcription of the micro cassette recording and the recording itself;
109.6.Dr M’s report;
109.7.Dr R’s emergency appointment with the mother in January 2007 and a further appointment in February 2007.
The micro-cassette – the recording of the child’s conversation on 6 January 2007
On a number of occasions, and including Saturday 6 January 2007 the mother taped conversations she had with the child. There are in evidence two CDs and a transcript of what is supposedly on the CDs (part of Exhibit ICL 5). The CDs are from the enhanced micro-cassette. I have listened to the tapes. I have compared them with the transcript. There are some variations. The word “dupa” is the word the mother and child used for vagina at the time the tapes were made. That word is used on a number of occasions in the mother’s questioning of the child. The person doing the transcription was not aware of what “dupa” meant.
I do not accept the mother’s explanation that the tape recorder is old and stops by itself. An objective listening to the tape would indicate that the tape has been turned on and off manually.
The transcript of the CDs are illuminating. They give an insight into the types of conversations the mother is having with the child leading up to 6 January 2008. On 6 January 2008 part of the conversation the mother has with the child is in the following terms:
Q75Yes?
AI got a trick(?) up my sleeve. I know what I can do and the (indistinct) put the pants on very quick (indistinct) and up it go and I put the T shirt on and go to bed.
Q76Lovely.
AI think plan B will work.
Q77right, that’s good but why always happen this with your (instinct) every day?
A(indistinct)
Q78Oh right. Okay then you tell me he touch your (indistinct).
ANo.
Q79Your say, “don’t’ touch my bottom, don’t touch.”
AYes, because he touches my bottom.
Q80I know.
AAnd goes up.
Q81Sorry?
AGoes up there.
Q82Show me – there, show me?
AHe goes like that always.
Q83Touch you there, which one you doing wee wee, yes? With what, with the fingers?
AHis hands, dirty hands.
Q84Why and what?
AHe keeps touching it and I don’t allow him to do that but he does it. I don’t want him to do it.
Q85And?
ABut he does it.
Q86When he does that?
AHe does that all the time in the night, making it feel comfortable, but it doesn’t feel comfortable at all.
Q87He tells you that it is comfortable?
AHe thought that was my dummy, his finger.
Q88Dummy?
AActually wrong part I don’t have a dummy. Wrong part but I do have dummies there, I have six.
Q89Six dummies?
AYes, I got (indistinct) school.
Q90How you can touch his (indistinct) with his dummy.
A(indistinct) dummy and goes like that.
Q91Show me, yes?
AThat.
Q92And what does he say?
AHe says “Do you feel comfortable” and I don’t, it hurts. Then he twists my foot.
Q93Yes?
ALike this.
Q94And?
AAnd crack my little foot, it swell (indistinct) and he trod on my foot. He trod on my foot very hard with two feet going stomp, stomp, stomp.
Q95But you know that nobody has to touch your (indistinct) private parts of the body?
ANow I feel I really got a crack in my toe. What if he’s listening now?
Q96No one is listening now, it’s only me and you.
AWhat if he came here?
Q97So what? You are afraid?
AM’mm, I am afraid.
Q98From what afraid?
AI am afraid as in scared.
Q99No, nobody comes here right now, you don’t have to be afraid (indistinct). You tell me it hurt when he touch your bottom?
Ayes.
Q100Why it hurt, what he hurt? How it hurt you?
Ahe takes off my pants inside the bed.
Q101Yes?
AHe just (indistinct) like that and that (indistinct)
Q102Yes?
AIt goes smack smack smack.
Q103Smack where?
AHere and here.
Q104Here where you doing wee?
AWee and poo.
Q105And what?
AThen it really hurts and I go to my bedroom and lock it and I (indistinct) and lock it so I can (indistinct).
Q106How long is this, like it is like a play, “Let’s play now” sometimes he thinks?
ANo.
Q107What?
A(indistinct)
Q108What is important now? What (indistinct) now?
ABecause the right thing are not – when I’m not with you. If you were there you could stay with me all night and protect me.
Q109Yes, protect you yes.
AIf you were there with me.
Q110But now you tell me something that [the father] touch you with his fingers when you’re doing wee?
AHe put some mustard on him.
Q111What?
AHe eats mustard.
Q112Mustard?
AM’mm
Q113And?
AAnd actually touches mustard with his fingers and then he pokes in here.
Q114And?
AThen I go wipe my (indistinct) that’s mustard in there so I go and have a bath or have a shower and keep getting a bucket and I splash and then wipe wipe wipe because he coats with lots of mustard.
Q115Mustard?
AMustard.
Q116Who told you it is mustard?
AWell I know mustard is really not good in your (indistinct) so that’s why I cleaned it up.
Q117Where you clean out?
AI clean it out when he puts mustard on it. First he puts mustard then I go to have a shower and wash it off.
Q118What colour is this mustard?
AThe mustard is grey and it’s sort of grey yellow brown.
Q119Where take his him?
AAnd a little pit pink with orange and yellow.
Q120(indistinct) feeling has to be (indistinct)
AIt has to be yuck and it feels yuck, if you have my feeling it being so worse.
Q121Really, what is your feeling?
AMy feelings was just when people make me jealous and I feel feelings and I really feel yucky. People always makes me feel jealous and I don’t hurt them. I done my tricks, I’m just jealous.
Q112Do you know what jealous means?
ANo.
Q123So why you say this word?
ABecause I feel like someone’s going to kick me and my feeling it came true, someone was going to kick me.
Q124Kick you?
AM’mm.
Q125You get cranky and upset?
AI get upset and I go to you and tell (indistinct) and that’s what I do.
Q126[Child], when [the father] take your pants off did you tell him that you have to tell your mum and a doctor because this is not right – did you?
AI couldn’t. He had the big (indistinct).
Q127What he has?
AHe has this big (indistinct)
Q128Doing what?
AHe was going to smack me with it.
Q129Smack you?
ASmack me if I said that.
Q130No he will not.
That was my conversation with [the child], she took a book and a sleep later. We read the book, she (indistinct) with one book, she would like to read before to sleep and it is 17th of January, night time, actually about 9 o’clock in the evening. My long conversation with [the child].
The actual tape says 7 January not 17 January. It is clear from other evidence that the taping took place on Saturday 6 January 2007.
In question 78 the mother uses the word “dupa” where the transcript says “(indistinct)”.
In question 90, again the mother uses the word “dupa” where the transcript says “(indistinct)”.
The child has not told her mother on the tape that her father touched her dupa prior to the mother suggesting that to the child in question 78. So far as I am aware the mother gave no evidence of the child having said that to her prior to 7 January 2007.
It is of some significance that the initial suggestion to the child that her father touched her on her dupa was answered “no”. In question 79 the mother says “you say, don’t touch my bottom, don’t touch”, the child then agrees with her mother and says “yes, because he touches my bottom”.
Question 83 seems to be suggesting to the child that her father touched her dupa while she was doing wee wee and that suggestion is reinforced by question 110.
Dr M comments (at paragraph 20.9) on the seductive tone of the questioning, leading questions and the child not being distressed when talking of the father touching her dupa with mustard.
I agree with Dr M’s assessment of the seductive tone and leading nature of the questioning and the fact that the child does not appear to be distressed when talking of her father touching her dupa with mustard.
In the JIRT interviews the child makes it clear that her reference to mustard was a joke (see Exhibit C which is subpoenaed material from DoCS, file notes of 27 February 2007 and 17 January 2007).
In paragraph 15 of the mother’s statement to the police dated 9 January 2007 the mother says:-
“I talk to [the child] about [the father] taking her pants off. I turned on a tape recorder. I have been tape-recording conversations for a while because a friend of mine told me it would be a good idea.”
In oral evidence the mother denied that she had ever on prior occasions used the tape recorder to tape conversations with the child because “it would be a good idea”. She had said that on previous occasions she would record and tape things with the child such as singing or reading a book. I find that the mother’s oral evidence in this regard is inconsistent with the statement she made to police at paragraph 15 and it is inconsistent with what is on the CDs, which are enhanced versions of the micro cassette tape.
I find that the mother had been taping the child’s conversations for some time in an attempt to obtain a “disclosure” from the child. The statements made by the child on 6 January 2007 need to be seen in this context.
The JIRT interview with the child
There is no issue that the child made disclosures alleged by the mother to DoCS.
On 8 January 2007 the child underwent a lengthy interview (572 questions and answers) with JIRT. The record of interview was video taped. The child was aged 5 years and 8 months at the time.
I think it is useful to quote extensively from some parts of the JIRT interview in order to give a flavour of how it went:-
Q41
Okay. What if I ask you a question that you know the answer to but you don’t want to say?
A I don’t really know. Q42 What if I asked you a question that you know the answer to but you don’t want to say or don’t --- A Really know? Q43 Yes? A Well, actually, when my dad takes off really things off my body here, it’s just here. Q44 Mm? A And just because my dad tells me off my pants. Q45 Mm? A That’s not very good. Q46 Mm? A On the night. Q47 Well, that’s important and we’ll get to that, but I just want to make sure that if I ask you a question, [child’s name] --- A Yes Q48 --- and you know the answer but you don’t want to say, if you just let me know and we can go back to that question later on? A Yes ..... Q57 Okay. Now [child], can you tell me what you’ve come here to talk to me about today? A Just my mum says that you have to come here to tell my bottom stuff because my bottom because my dad takes off my pants in the night. Q58 Where are you when your dad takes off your pants at night? A Just in my bedroom and he tells me to take off my pants, that I don’t do. Q59 Why does he tell you to take off your pants? A When I don’t want to do, I don’t want to take off my pants that he tells me to. Q60 Yes. Why does he tell you to take off your pants that you don’t want to do? A I don’t know. I don’t know actually. Q61 What happens when you take off your pants that you don’t want to do? A I don’t want to take off my pants actually, really I don’t want to take off my pants, but I’m really a little bit thirsty, I just might get a drink. Q62 Do you want a drink now? A Yes. ..... Q65 Are you all right? So before the water you were talking about that your dad takes your pants off at night in your bedroom? A Yes. Q66 And I asked you what happens when your dad takes off your pants? A Just when my dad takes off my pants and I don’t want to, that really – I don’t want to take off my pants, that really I don’t, but my dad takes me to take off my pants. It’s just he takes off my pants that I don’t want to. That’s what I tell my mum. Q67 Yes? A That I don’t want to take off my pants because I don’t want to take off my pants, that I really don’t know what my dad is doing. Q68 Can you tell me why you don’t want to take off your pants? A Yes, because I don’t want to take off my pants because that’s what my mum says, you can’t take off your pants because you’re a lady.” That’s what my mum says. Q69 So your mum says you can’t take off your pants because you’re a lady? A Mm’hm (indistinct) Q70 You said that your dad takes your pants off at night? A These colouring things Q71 [Child’s name]? A Yes Q72 You said your dad takes your pants off at night? A Yes Q73 Can you tell me why he would want to take your pants off at night? A Yes, I don’t know, actually, but I know he wanted to take off my pants. Q74 What happened when he takes your pants off? A Because he really wants to take off my pants. I don’t know why, but he really wants to take off my pants. ..... Q101 Tell me something that you dislike about your mum, something that you don’t like so much? A I don’t like so much when she always screams when I do something. That’s what I don’t like. Q102 Yes, she always screams? A She always makes these funny things, but I know what’s the baddest thing she does, screams. Screams always. Q103 So that’s the thing that you dislike the most about your mum? A Yes, I like --- Q104 Okay? A She hugs me, that’s what the most I like from her. Q105 That’s good? A That’s what I love from her. That’s why I love her. Q106 All right. What’s the thing that you most dislike about dad? A The most thing that he – it’s the same as my mum. He always hugs me. Q107 Is that a dislike or the thing that you like the most about your dad? A The most Q108 The most? A And he always says, “I love you, I love you, I love you, I love you.” Q109 Where will I put that? In something that you like about your dad or something you don’t like about your dad? A That’s what I like about my dad. Q110 So you like that your dad hugs you? A
Yes.
Q111
Yes?
A
Actually ---
Q112
What did you say, that he says ---
A
“Oh, I love you, [child],” because really when I have to be with my mum because I’m a woman. Well actually I have to be with my mum.
Q113
What’s something that you dislike the most about dad?
A
But, the most thing I like about my dad is going to school at [D School].
Q114
Yes?
A
Yes. The second thing is my mum wants me to go to a public school. That’s I don’t like; public school.
Q115
You don’t like public school?
A
My dad thinks they’re not very good.
Q116
Okay?
A
The children are naughty – my dad went to a public school and he wanted to go to a private school, men’s private school.
Q117
You said a few things that you like about your dad, you said that you the most when he hugs you? [sic]
A
Yes.
Q118
You said he liked the most with your mum when she hugs you and you like with your dad when he says that I love you? [sic]
A
Yes.
Q119
Can you tell me what you most dislike about your dad?
A
Well, it’s like – its like changeovers and most – what did you just say?
Q120
Can you tell me?
A
Mm
Q121
What you most don’t like about your dad?
A
Oh, that one. Well, let’s see; I like about my dad is about going – just playing around. I don’t like about my dad is just doing all these yucky things that I don’t like. All these yucky things.
Q122
When you say “yucky things”, what do you mean by that?
A
Well, it’s like always that I – sometimes like I, like, it’s a funeral. When I go with my dad, that means’ I’m really going with my mother, and when it was time to – in Christmas time, it was a long time ago, and this was when I was having, with my dad, time, in the Christmas one I was with my dad and all the friends came to my house and my mum rang up.
Q123
Mm?
A
And she said, “Can I please have [the child] now,” when it was my time with my dad that I liked, and I didn’t want to go with my mum because I had happy times and she wanted to ruin my happy times.
Q124
So when you say that the thing you most dislike with that is yucky things?
A
Yes
Q125
You said funerals and changeover. Is there anything else?
A No, not actually, no. ..... Q203 Okay. All right. And --- A The neck, it’s all right to touch there, but no-one can touch there. Q204 No-one can touch here? A But my dad does. Q205 Does he? A He always goes like that all the time. Ouchies. Q206 When you say he does that, can you tell me what he does? A Yes, no – he doesn’t put any mustard – that was a joke actually. That was a joke. Q207 So you said here, you call this is your bottom? A Yes. Q208 And you said that your dad touches you here? A Yes Q209 Okay. Can anyone else touch you here? A No, no-one. Q210 No? A No-one can. ..... Q218 Yes? A So, no-one ever – well, they can touch here, but not here. Q219 And no-one can touch here? Why can’t anyone touch here? A Well, because it might be very private and here is private and here is private. Q220 Do you want to draw circles where you’ve said it’s private? A Yes. There, and here. ..... Q233 All right. You said here that dad touches you here, but you said with mustard and that was a joke? A That was a joke. Q234 What do you mean? A Mustard is – I don’t mean mustard, but I know that (indistinct) said mustard and dad touches mustard with his fingers, and the mustard was just a made up thing that he was making up. That’s what he did. Q235 When you said here that your dad touches you? A Yes. Q236 Yes? Do you know, like, why does he touch you there? A No, I don’t know. Q237 Can you remember the last time that he touched you there? A Yes. Q238 Yes? A Yes. Q239 Can you tell me about that time? A He was actually pulling my pants down, touching with me. That’s what he actually did. Q240 So the last time? A Mm. Q241 That dad touched you here? A Yes. Q242 He was pulling your pants down? A Yes Q243 Then what happened? A Well, I don’t think he’ll be really mean about this and I don’t think he might tell so much about this, that I might tell. ..... Q286 [Child], when we first came in here? A Yes. Q287 You said that --- A Yes Q288 That you’d come to talk to me about your dad taking your pants off at night? A Yes Q289 Yes? A Yes Q290 And that he pulled your pants down? A Yes Q291 Can you tell me some more about that? A Yes. Q292 Yes? A Yes. Well, it’s like in the night, when he – you have to brush your teeth, it’s the sneakiest thing that I have ever done. Q293 So it’s at night when you have to brush your teeth? A Yes. Q294 Yes? A Yes, and my dad was brushing his teeth, I did the sneakiest thing ever. Q295 What did you do? A I was putting my pants on. Q296 Yes? A Quickly putting this on, my big trousers at night, and then put my pants on, kept them on. Q297 Yes? A And I put my pants on quickly, then my T shirt. That was the sneakiest thing I ever done. Q298 Why was that sneaky? A Because I don’t want to take off my pants Q299 You keep saying that, that you don’t want to take off your pants. Can you tell me why you don’t want to take off your pants? A Well, well, it’s like my mother. ..... Q347 Where are you when daddy touches you on your bottom? A Well, it’s like you just said before, I was in my bedroom and he came up to my bedroom, my bedroom is downstairs and his is upstairs. Q348 Whereabouts in your bedroom are you? A Well, I am downstairs in another bedroom and part of the house where [the father’s sister] used to live, down on the bottom of our house. ..... Q369 Who else was there when he was touching you on your bottom? A Let’s see. I can’t even think of it. Q370 I can’t event think of it? A Okay. Q371 Do you know what time during the day? Was it light or dark? A I think it was day. Q372 Why do you think it was day? A Because it was day Q373 It was day? A (indistinct) day. Q374 Do you know what day it was? A No, but it was a day. It was a day, not night, not afternoon, it was just day. Q375 What did he touch you with? A Just his fingers Q376 His fingers. When you say this fingers, like do you know how many fingers? A Five. Q377 Can you show me? A High five, just five. Q378 Can you show me? A Going like that. Q379 Five fingers going like that? A Yes, and like that. I didn’t even feel it, but I know he was touching me like that. Q380 How do you --- A I looked down and he was going like that, and I said, “Dad, stop it,” and he did. Q381 Has he done this before? A Well, he only just once and he did this twice and five times, I think, five. Q382 You said something about mustard? A Mustard. Q383 What is mustard? A It’s some stuff like mixed up with jam and toast, and it’s really yucky, mustard. Q384 What do you do with mustard? A Well, you put it on bread. It’s like fish paste. It’s like fish past, you know, fish paste. (indistinct) like fish paste. You put it on toast and you eat it. Q385 Right? A It’s yuck, I don’t like fish paste and I don’t like mustard. And I looked at him and he was eating mustard, and he said, “do you want some mustard?” And I said, “No, it’s made out of fish jam.” I don’t like fish jam. ..... Q426 So when you said that your dad touched you on your bottom on this day? A Yes Q427 When you were at the picnic with your mum and your dad? A Yes Q428 What did he touch you with? A Well, --- Q429 You said his five fingers? A You have five fingers and there is something that has to be very, very serious. Q430 What’s that? A Kind of like this (indistinct). Everyone was actually here, move that. There we are. That’s the gate. ..... Q433 Where you were at the picnic with your mum and your dad, and this is your dad you’ve drawn, with his five fingers? A Yes. Q434 Were his fingers? A Mm. Q435 Whereabouts were his fingers? Were they on your clothes or under your clothes? A It was – when I was wearing my trousers it was in there, going sideways in there. Q436 Okay. So was he – was his fingers touching your clothing or something else? A Well, he was touching me on something that was important. ..... Q444 But I’m just trying to understand, was it on the outside of your clothing or the inside or something else? A Well, it was the outside going like that. Q445 Okay? A The outside ..... Q455 Before we had a break, you were saying that at the picnic, with your mum, your dad,. You were wearing a dress, trousers, and that your dad touched you on the bottom on the outside of your clothing; yes? A Yes. Q456 Is there anything more that you’d like to tell me about that day? A No. Q457 No? A That’s all. ..... Q529 On this day here when you’re at the picnic with your mum, and you dad? A Yes. Q530 And he touched you on your bottom? A Yes. Q531 And he pushed hard? A And do you know what, I felt something. Q532 What did you feel? A It was pushing me here, something was going like that on my back. Q533 Do you know what that was? A That was my dad. Q534 Your dad’s what? A My dad’s hand going like that. Q535 Why was he doing that? A I don’t know. I knew that was him and he touching my bottom. Q536 Whereabouts were you sitting when your dad was touching your bottom? A [Name], I’ll show you on here. I was sitting here. Q537 Yes? A And mum was sitting here. Q538 Yes? A My dad was sitting there. Q539
Okay. He went walking around to there and he went push, push in the back of my back.
Section 60CC(4A) FLA requires me in particular to focus upon events that have happened, and circumstances that have existed, since the separation occurred.
There was a disagreement between the mother and father during the evidence about the father’s involvement with the mother during her pregnancy. I prefer the evidence given by the father over the evidence given by the mother in that regard.
Since the fairly traumatic events (where Federal Magistrate Altobelli removed the child from her mother for a period of time in January and February 2007) and whilst this case has been waiting for final determination there has not been any significant incident that would demonstrate an unwillingness by one party to foster the child’s relationship with the other parent. I am however not convinced, as Dr M is not convinced, that the mother would not collude with the child to make further accusations against the father’s behaviour towards her in the future. As Dr M observes there are many instances which could be blown out of control and misinterpreted in a similar way to what has happened in the past. I share Dr M’s concern about the mother’s propensity to do that in the future. The genesis of this concern is the mother’s inability to put the child’s needs ahead of her own and her tendency to see things in her own way. Quite clearly the mother has interpreted the child taking her pants off in bed in the father’s home in a similar way as she would see that as an adult. Dr M sees this as a product of the mother’s personality pathology in which she is unable to see the child as separate to herself. I agree with Dr M that that could be particularly damaging for the child as she gets older and requires appropriate differentiation and separation from her parents.
Obligation to maintain the child
The mother complains that the father didn’t provide proper financial support for the child immediately after the separation. There is probably some substance to that complaint. The parties however have been sharing the child’s care equally since the judgment of Moore J and although it might have been the father could have done more to financially assist the mother in caring for the child, it is not a matter that is of any significant weight in respect of the decisions I have to make in this case.
Effect of Change
There is no doubt, what I propose for the child, will be a significant change for her. There is no doubt that she will suffer some distress from not being with her mother as much as she has been up until this point in her life. The short term distress the child will experience, however, is something I have to weigh against the real risk of the child suffering long term psychological damage to her if the current situation is allowed to continue.
Practical difficulty and expense of being with and in touch with other parent
There are no issues raised about any practical difficulty or expense in the child sharing time with both of her parents.
The capacity of parents and others to provide for needs of the children (including emotional and intellectual needs)
There are some concerns about the father fostering a positive relationship with the mother. Those concerns arise from the fact that:-
185.1.The father initially had difficulty referring to any positive qualities of the mother;
185.2.The father had difficulty saying positive things about the mother.
185.3.The father conceded that he taped conversations between the child and her mother and that the child was aware that those conversations were being taped, and in fact participated in turning the tape recording machine off. This would be quite a damming piece of evidence in some cases but in the overall dynamics of this case it is not a matter in respect of which I place great weight. It is, of course, however not an activity that should be encouraged and I accept that the orders sought by the Independent Children's Lawyer that the father provide the child with privacy at the time that she has telephone communication with her mother is an appropriate one.
I am satisfied with the father’s evidence in relation to how the child came by her burns. Dr M gave evidence that she had viewed hospital records which indicated that the event was an accident that could have happened in any household.
I am satisfied on the evidence that although the father has not provided the mother with any significant funds for the child’s upkeep in the past, his recent inheritance means that he will be able to repay the monies that he has borrowed and will have a significant capital amount which will underpin his ability to financially support the child in the future.
The mother asserts that a lot of accidents and events happened with the child while she was with the father. On the evidence I have I do not accept that generalisation as accurate.
I agree with Dr M that the father impresses as a responsible parent who is willing to spend time and care for the child and who has arranged a suitable school which will provide her with suitable friends. The father recognises problems of the anxious attachment that the child has now transferred to the child and himself, and he is attempting to remedy that. I intend to make an order that the child be given the assistance of professional help.
The father said to Dr M, and in oral evidence, that one result of the allegations made was that some voluntary reading he was doing at school could no longer continue because the school was not prepared to allow him to read to the children whilst the allegations were outstanding.
The mother submits that the child has adapted herself to the current situation and is now her normal way of life; that the child is well developed in all aspects of her life and is above average at school and is active socially and fully involved in school activities and is cheerful and energetic. The mother produced a number of testimonials which spoke favourably of her attitude and responsibility to the duties of parenthood. Nobody has seriously questioned the mother’s ability to look after the child’s physical and educational needs. The central feature of this case however is the difficulties the mother faces in meeting the child’s emotional and psychological needs into the future. At page 24 of the submissions the mother reiterates that she will have concerns about the child’s safety when the child is with her father, until the child is old enough to look after herself.
Dr M agreed with Dr W in his previous report that the mother had difficulty putting her own needs ahead of the child’s and tends to see things in her own way. As an example, Dr M said that the mother saw the child taking her pants off in bed in a similar way to which the mother would see it if the mother took her pants off in bed. Dr M said this was an example of the mother’s personality pathology in which she was unable to see her child as separate from herself. Dr M opined that this could be particularly damaging for the child if she gets older and requires appropriate differentiation and separation from her parents.
Family violence
I agree with Dr M’s opinion that there is no evidence at all that the father poses any threat of sexual or psychological abuse to the child. I agree that what was originally a disagreement about wearing underpants under the child’s pyjamas has been misconstrued and totally distorted by the mother to produce allegations of abuse against the father which have not had any foundation. The mother’s propensity, in my view, to behaviour in a similar manner in the future places the child at psychological risk. I reject the submission made by the mother (at page 22) that she has never done anything to hurt or damage the child psychologically.
At page 22 the mother makes the submission that if she had really set out to coach the child she would have done a far better job of it. She would have got the child to say that the father had done something really physically inappropriate to her with his penis. This is an unusual submission. I have agreed with Dr M’s assessment that the mother did ask a number of leading questions that led the child to make the assertion that she did. The fundamental assertion was that the father was using his hand to sexually interfere with the child’s vagina. The mother has shown no insight at all into the fact that that is what she did do.
Any family violence order
The mother obtained an interim AVO in 2002. From what I know of this matter there was little, if any, basis upon which she could assert that she had a reasonable fear of family violence by the father. There hasn’t been an family violence order in existence since 2003.
The order that would be least likely to lead to the institution of further proceedings
The mother makes a somewhat ominous prediction on page 23 of her submission by saying “after two or three years [the child] will be able to express her wishes more conscientiously and responsibly”. It seems that the mother is already laying the ground work for another application in two or three years to change whatever arrangements are put in place now.
In my view, the orders that I make mean it less likely that the mother would be successful if she sought to institute further proceedings involving the child (which would in effect be a third full final hearing in relation to the child’s parenting) in the future.
Any other fact or circumstance
In relation to specific matters in issue and facts and dispute that were highlighted before the final state of the hearing I shortly respond (as set out in bold):-
1.MATTERS IN ISSUE:
1.1. Whether the presumption of equal shared parental responsibility for the child should apply in this case or whether the father should have sole parental responsibility for the child (father’s proposal).
No
1.2. The amount of time the child should spend with each of her parents.
This is set out in the orders made for the reasons otherwise given
1.3. Whether the child’s telephone communication with the parent with whom she is not living should be:-
1.3.1.liberal, as per order 7 made 26 March 2004; or
1.3.2.limited (father’s proposal) to one occasion per week of no more than 15 minutes.
I accept the recommendation of the Independent Children's Lawyer that telephone communication with the child should take place on two occasions each week between the hours of 6pm and 7pm.
2.FACTS IN DISPUTE
2.1. Whether the father poses any unacceptable risk of sexual abuse and/or psychological abuse to the child.
No
2.2. Whether the mother poses any unacceptable risk of psychological abuse to the child and in particular:
2.2.1.Whether the child made the disclosures alleged by the mother
The child did make disclosures but in circumstances which I elaborate elsewhere in these reasons.
2.2.2.Whether the mother encouraged the chld to say things about her father
Yes, but given the mother’s mental status I make no explicit findings as to whether or not this was deliberate or a function of her personality disorder.
2.2.3.Whether the mother embarked upon a course of conduct where she has made false allegations against the father relating to inappropriate sexual conduct by the father involving the child and in particular, is there any basis for the mother’s allegations that, prior to the hearing before Moore J in 2004:-
2.2.3.1.The Mother witnessed the Father dressed only in a towel, holding his penis and masturbating while standing beside the child’s cot.
No.
2.2.3.2.When the Mother was away from the home the Father tampered with the child in some way as her nappy had been removed and couldn’t be found. This allegation by the Mother had a culpable overtone given the Mother’s claim that the Father would not change the child’s nappy at all when the Mother was present.
No.
2.2.3.3.The child behaved strangely on return from her Father which resulted in the Mother contacting DoCS and a paediatrician. The Mother said she was told the child may have been given some type of sedative.
No
2.2.3.4.The Father masturbated in front of the Mother.
No.
2.2.3.5.The Father had pornographic magazines.
No
2.2.4.Whether in 2004, despite her assertions to the contrary, the Mother had interfered with actions by the Father to see the child and attempted to stop him from seeing the child as the complaint and summons taken out 28 November 2002 included the child as a PINOP.
Yes.
2.3. Whether in 2004 the child had a close bond with each of her parents but the quality of her relationship with each of her parents was markedly different, the connection the child had with her Father being the healthier for her.
I do not need to answer that question for the purpose of these proceedings, but observe that it is my view that today the quality of the child’s connection with her father is healthier for her than her connection with her mother.
2.4. If either parent poses a unacceptable risk of abuse to the child, how best to protect the child from abusive behaviour by her parents.
The child is at unacceptable risk of future psychological abuse by her mother. The orders that I have made are designed to be protective of the child from abusive behaviour by her mother.
2.5. The nature of the child’s relationships with each of the parties and significant others.
This is dealt with elsewhere.
2.6. The child’s views in relation to the parties’ respective proposals for her living arrangements and the weight to be placed on those views.
This is dealt with elsewhere
2.7. The parents’ respective parenting capacities and in particular:
2.7.1.Whether either party is affected by some form of personality disorder or other psychiatric condition which impacts on their ability to provide for the child’s needs, especially her emotional needs; and
2.7.2.The parties’ respective capacities to implement an arrangement whereby the child equally shares her time between her parents or spends substantial and significant time with the parent with whom she does not primarily reside.
This is dealt with elsewhere
2.8. The parties’ respective capacities to facilitate and encourage appropriate and continuing relationships between the child and the other parent and members of that parent’s extended family.
This is dealt with elsewhere
2.9. The effect on the child of the exposure to parental conflict.
I agree with Dr M where she concludes that the child’s exposure to the parental conflict is confusing for the child. A repetition of parental conflict in the future is likely to lead to the child having difficulty with her own judgment which is detrimental for her developmentally.
2.10. The likely impact on the child of any reduction of her living time with the mother and in the event the court finds such a reduction in the child’s best interests, how best to facilitate that reduction.
Dr M, having read Exhibit O, gave evidence that the child’s time with her mother should be terminated for a period so that she can relax into the new arrangements with her father. She changed her opinion in relation to a gradual introduction of the new regime. I accept her revised opinion in that regard.
2.11. Whether the Court should make an order which would be least likely to lead to the institution of further parenting proceedings in respect of the child, and if so, what order(s) would achieve that outcome.
This is dealt with elsewhere
3.CREDIT
3.1. It is noted that the credit of each of the parties is in issue.
This is dealt with elsewhere
PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY
Section 61DA provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Section 61DA(2) provides that the presumption does not apply in circumstances where a parent has engaged in abuse of a child or family violence.
Abuse is narrowly defined in the Act as assault or sexual activity. I have found in this case that there is no unacceptable risk that the father has been involved in any untoward sexual activity so far as the child is concerned. There is no allegation the mother has been physically abusive to the child.
Family violence means conduct, whether actual or threatened, by a person towards a member of the person’s family that caused that member of the person’s family reasonably to fear for their personal wellbeing or safety. The expression “personal wellbeing or safety” is wide enough to cover the type of danger, posed by the mother to the child, that I have described in these reasons. The child’s wellbeing is threatened in the long term by the risk of the mother repeating behaviours that she has displayed in the past as described in these reasons.
I am satisfied that in the circumstances of this case, the presumption in s.61DA(1) does not apply because of the threat of the mother’s conduct in the future that would cause the child to be reasonably apprehensive about her personal wellbeing.
If I am wrong about the application of s.61DA(2) FLA then I find that the provisions of s.61DA(4) apply. That is, the presumption in the circumstances of this case is rebutted by evidence that satisfies me that it would not be in the child’s best interest for the child’s parents to have equal and shared parental responsibility.
The psychological abuse that I otherwise detail in these reasons and the inability of the parties to communicate (as evidenced, for example, in the two communication books in evidence) is sufficient reason for me to conclude that it would be inappropriate to create a regime for the child which would rely upon the parties agreeing in the future in relation to major decisions in respect of the chld. Consequently, any presumption of equal shared parental responsibility is rebutted. I find that it is not appropriate in the circumstances of this case to make an order for equal shared parental responsibility.
Notwithstanding the fact that legislation doesn’t require me to consider whether or not it is in the child’s best interests to spend equal time or substantial or significant time with both her parents I will consider that matter and whether or not the arrangement proposed by the mother for the continuation of equal co-parenting should continue. In that regard I will have regard to the matters set out in s.65DAA(5).
Section 65DAA FLA
Section 65DAA(5) FLA provides that in determining whether it is reasonably practical for the child to spend equal time, or substantial and significant time, with each of her parents, I must have regard to:-
206.1.how far apart the parents live from each other;
206.2.the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents;
206.3.the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;
206.4.the impact that an arrangement of that kind would have on the child;
206.5.such other matters as the court considers relevant.
It is the mother’s case that since at least January 2007 there hasn’t been any significant conflict or disagreement between the father and the mother in relation to making the week about arrangement happen.
As Dr M comments at page 24:-
“The mother proposes now that they return to the previously agreed week and week about contact arrangement. I am concerned about this as, in my experience, this is an arrangement that only works if the parents are able to come to a working agreement themselves, which these parents have not done. In particular, I think the mother is likely to distort actions of the father which could be held against him and used in further court cases. I would therefore not support the week and week about arrangement, which currently takes place.”
The mother at page 11 of her submissions says “I don’t believe that the applicant is a fit, honest, emotional, stable and realistic person”.
The mother at page 17 of her submissions says that it is impossible to communicate on the phone with the father. The father has indicated why he hasn’t been prepared to go to mediation with the mother and I accept his explanation. I accept that that was the basic reason why the communication book was started.
The mother at page 22 of her submissions comments on the fact that the child currently lives in a shared care arrangement between both parents and she says:
“I cannot say that this has been best for her. As her mother, I love her dearly and I would like for her to live with me all the time. I provide more than necessary to fulfil her needs.”
The parties have for some time been speaking to one another via a communication book (the two books are in evidence). This is in my view not a basis upon which a co-parenting arrangement can proceed in the circumstances of this case, in the longer term.
I find that in the circumstances of this case it is not appropriate to contemplate the child spending significant and substantial time with the mother, particularly having regard to the matters set out in s.65DAA FLA.
PROPOSED ORDERS
On 1 November 2007 I noted that at the end of the hearing orders 16, 17 and 18 made 26 March 2004 would be confirmed, given that they were not an issue between the parties.
The Independent Children's Lawyer indicated that she supported the suspension of order 4 as sought by the Independent Children's Lawyer for some period of time but not for the period that was recommended by the single expert, Dr M. The Independent Children's Lawyer suggested because of the mother’s distress and the child’s likely reaction to that distress, the period should be limited to six to eight weeks. The Independent Children's Lawyer conceded however that there was no expert evidence to support her submission. The Independent Children's Lawyer also wanted an order that any therapist engaged pursuant to order 7 be provided with a copy of Dr M’s report.
In final submissions Counsel for the father asked me to consider a staggered reintroduction of the child to her mother after a three month period which has been suggested by Dr M. Counsel for the father made an application that the re-introduction be daily (Saturday and Sunday) and then gradually increased to overnight. Counsel for the father however conceded that that was not Dr M’s recommendation.
In relation to the period of time that the child’s face to face time with the mother should be suspended following these orders, Dr M gave evidence that having read the 52 page document which was a critic on Dr M’s report provided by the mother on the sixth morning of the hearing, that Dr M had changed her view as expressed in the last paragraph of her report. In that last paragraph she suggested a gradual winding back of the child time with the mother to a circumstance where she would only see her mother two days a fortnight (one overnight) on alternate weekends. She indicated in oral evidence that she was now of the view that there should be a three month period where the child did not have face to face time with her mother. The doctor was not tested in relation to that opinion by the Independent Children's Lawyer or by anybody else. It is the only expert evidence that I have. Counsel for the father rightly submitted that had Dr M been tested about her opinion as to the three month period she might have in fact said it was an absolute minimum. The Independent Children's Lawyer submitted that I could look at the evidence on an overall basis and take into account the level of distress that the mother would feel as a result of a three month order and the effect that that distress might have on the child. Looking at the whole of the evidence however I on balance don’t see that I can ignore the unchallenged recommendation of Dr M as being the primary evidence on the issue. Given that that is the unchallenged expert opinion that I have, I will rely upon it.
The father has requested some flexibility in relation to being able to swap weekends so that he take the child away for extended periods during school holidays. I accept that that proposal is in the child’s best interests. I also accept Dr M’s opinion which recommends against the child spending extended periods of time with her mother. For that reason I have not ordered that the child spend extended periods of time with her mother.
The mother gave evidence that the child is continuing to wake up in the mother’s bed on a significant proportion of the nights that the child is with her. It is in the child’s best interests that this should cease and I intend to make an order that it does.
As I have mentioned, it is inappropriate that the father record the child’s telephone conversations with the mother. I have made an order directed against the father for that purpose. I have made similar orders, as sought by the father, in relation to the mother video taping or questioning the child with the purpose or intent of gathering information to make further complaints to the authorities against the father in relation to the father’s parenting or abuse perpetrated by the father.
I also think it is appropriate to make orders which would put some boundaries on the mother’s attendance at the child’s school and attendance at the child’s sporting events.
Dr M flagged the mother as a flight risk and for those reasons I will continue to make the orders that have been in place for some time now placing the child on the watch list and injuncting the parties from removing the child from the jurisdiction without the written consent of the other parent or further court order.
The Independent Children's Lawyer made an application for costs against the father of $6,560.25. It was not strongly pressed. The father has paid a large sum of money for his own legal costs arising out of both the 2004 litigation and the current proceedings. In the circumstances, and having in mind the matters set out in s.117(2A) FLA I find that it is not just that the father should pay any costs for the Independent Children's Lawyer.
I certify that the preceding two hundred and twenty-three (223) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts
Associate:
Date: 15 May 2008
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Costs
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Injunction
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Procedural Fairness
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