THAM & ONG

FAMILY COURT OF AUSTRALIA

THAM & ONG

[2020] FamCA 1006

FAMILY LAW – CHILDREN – Best interests of the child – Where final orders made with the parties’ consent on the first day of hearing that the mother have sole parental responsibility for the child and the child live with her – Whether the child should spend any time with the father – Where allegations the child was sexually abused by a paternal uncle while spending time with the father – Where the mother contends that the father poses an unacceptable risk to the child as he is likely to bring the child into contact with the paternal uncle – Where the father has maintained throughout the proceedings that the paternal uncle did not sexually assault the child and therefore poses no risk of harm to her –Where the Court cannot be satisfied that the paternal uncle did not sexually abuse the child – Unacceptable risk that the paternal uncle may sexually abuse the child – Risk of the child being brought into contact with the paternal uncle by the father – Where significant concerns regarding the father’s capacity to provide for the child’s emotional needs is one of the most salient matters – Orders made as sought by the mother (and supported by the Independent Children’s Lawyer) that the child spend no time with the father.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D

Johnson & Page [2007] FamCA 1235
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235

APPLICANT:

Mr Tham

RESPONDENT:

Ms Ong

INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

FILE NUMBER:

PAC

4543

2014

DATE DELIVERED:

30 November 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

17, 18, 19 & 20 March 2020, 27 and 28 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Stewart Cuddy & Mockler

COUNSEL FOR THE RESPONDENT:

Ms Kaiti

SOLICITOR FOR THE RESPONDENT:

Peter Jurd Lawyer

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Moore

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

Orders

The child shall spend no time with or have any communication with the father.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tham & Ong has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4543 of 2014

Mr Tham

Applicant

And

Ms Ong

Respondent

REASONS FOR JUDGMENT

Introduction

The parents (“the mother” and “the father”) of nine year old Z (“the child”) cannot agree about the child’s future parenting arrangements, including whether the father should play any role in her upbringing.
When the father first commenced these proceedings in September 2014 the issues seemed relatively straightforward but complexities developed after it was alleged in September 2015 that in the course of spending time with the father the child was sexually abused by the father’s brother (“the paternal uncle”).
Since the sexual abuse allegations were made the mother has taken the position that the father poses an unacceptable risk to the child on the basis that he is likely to bring the child into contact with the paternal uncle. It is also the mother’s case that the father poses a risk of emotional harm to the child and lacks the capacity to care for and protect the child from harm.
On the first day of the final hearing orders were made with the consent of the parties that the mother have sole parental responsibility for the child and that the child to live with her. On the last day of hearing further orders were made with the parties’ consent that the mother have sole parental responsibility in relation to obtaining a passport for the child and that she be permitted to travel with the child without prior notice to or permission of the father. The only issue requiring determination by the end of the hearing was the question of what time, if any, the child should spend with the father.
The mother seeks orders that the child spend no time and have no communication with the father. The Independent Children’s Lawyer (“ICL”) appointed in the proceedings supports the position of the mother.
The father seeks orders that the child spend time with him on an increasing basis commencing with two hours each alternate weekend for a period of three months then increasing until the final arrangement after six months is that the child spends time with him for one full day each alternate weekend and on special days.

Background

The mother who is 51 and the father who is 54 were born and raised in a south-east Asian country. They met in their home country in June 2006 when the father who was already living in Australia was visiting his family. The father returned to Australia later that year and the parties commenced a long distance relationship. The parties married in their home country in mid-2007.
In 2009 the mother arrived in Australia on a spouse visa sponsored by the father and she is now a citizen of Australia.
The parties’ only child was born in early 2011.
The parties separated in June 2012 but reconciled and lived together again for about six months in 2013, finally separating in around October of that year. The child has lived with the mother at all times since separation.
Police were called to an incident between the parties on the day they separated though there is a dispute about this event. The police subsequently applied for a provisional Apprehended Domestic Violence Order (“ADVO”) for the mother’s protection from the father. In November 2013 a final ADVO was made for the mother’s protection from the father which remained in place for 12 months.
In September 2014 the father commenced proceedings in the Federal Circuit Court seeking orders that he and the mother have equal shared parental responsibility for the child and that the child live with the mother and spend significant defined time with him.
In December 2014 orders were made with the consent of the parties that the child spend time with the father twice a week for a period of two hours on a Thursday and three hours each Saturday.
In April 2015 the parties attended upon a family consultant for a Child Dispute Conference. During her interview the mother asserted that the father had been mentally abusive towards her during the relationship and the father claimed to have observed unexplained bruises on the child’s leg suggesting that the mother had harmed the child. The mother also raised a concern that the child was reticent to spend time with the father and that the father did not engage in activities with the child that she enjoyed. After discussing this with the father, the family consultant held some concern about the father’s understanding of his role and of activities he could do to make the time the child spent with him more enjoyable.
Two days after the meeting with the family consultant further interim parenting orders were made with the consent of the parties providing that child spend time with the father twice a week: each Monday afternoon for three hours and for a whole day ending at 6.00 each Saturday. At this court event the parties were ordered to attend upon a family consultant for the preparation of a Family Report.
The father asserts that in around August 2015 the child told him that the mother hit her on the leg. Although this appears to have been a matter of some significance for the father at the time (as he took photos of the child’s leg and confronted the mother about the allegation) that matter is no longer of any importance given that the father does not raise issues of risk in the mother’s care and both parties agree that the child should live with the mother.
On 7 September 2015 the father was driven by the paternal uncle to collect the child to spend time with him as the father was recovering from his surgery and was unable to drive. During his time with the child the father asserts he observed bruising to the child’s legs and says that she again disclosed that the mother had caused the bruising. Otherwise the father asserts that the child did not make any other complaints and that he was with her all the time she was at his home.
The mother observed redness in the child’s “private parts” while she was washing the child on 7 September 2015 after the child returned from spending the day with her father. She deposes also that the child complained of pain when her vagina was washed and when asked about it the child reported that during her time with the father the paternal uncle pressed his little finger into her “precious place” (vagina) and anus. This is the central matter in dispute between the parties and which will be considered in detail later in these Reasons.
The father has not seen the child since this date.
The next day the mother contacted her caseworker from a support program with which she was engaged through the Department then known as Family and Community Services (“the Department”) and reported her observations and the child’s disclosures. The mother was later contacted by a senior staff member at the support service who advised her to take the child to the hospital and contact police.
The mother took the child to her local hospital where the child was examined and police attended and spoke to the mother.
The Department received a Risk of Significant Harm report in relation to the child’s allegations. The matter was referred to the Joint Investigative Response Team[1] (“JIRT”) for investigation and assessment. In the course of that assessment the child was interviewed. The allegations were later substantiated by JIRT.
[1] The Joint Investigation and Response Team, made up of officers from police and Community Services, investigates allegations of serious child abuse.
On 9 September 2015 the paternal uncle was arrested, charged with two counts of sexual assault of a child under 10 years old and refused bail.
On 15 September 2015 a provisional ADVO was applied for by police for the protection of the child from the paternal uncle restraining him from approaching or having any contact with her.
On 2 October 2015 JIRT officers undertook a home visit at the father’s home for the purpose of assessing his protective abilities and determined that he was not protective.
In early November 2015 the parties were assessed by a family consultant.
The Family Report dated 11 November 2015 is a matter to which I will return in some detail. At this stage it suffices to say that the family consultant identified that the central issue in the proceedings appeared to be the child’s physical and emotional safety in spending time with the father and that the most pertinent issue appeared to be the allegation that the paternal uncle had sexually assaulted the child while in the care of the father. Of particular significance is that during the assessment interview the father expressed a strong belief that his brother was innocent of the allegations and the child was not at risk of harm from him and without hesitation said he would permit contact between the child and the paternal uncle when the uncle was released from custody. The family consultant recommended that the child live with the mother and spend no time with the father and that this recommendation may be reconsidered once the criminal proceedings were finalised and the father’s attitude could be reassessed.
On 11 November 2015 the paternal uncle was released on bail. JIRT officers contacted the mother to inform her of the paternal uncle’s impending release and to confirm her safety plan should the paternal uncle make contact with her or the child. On this day JIRT closed the investigation relating to the sexual abuse allegations having determined that the mother was a protective person for the child.
On 27 November 2015 the mother filed a Response in the proceedings seeking that the father’s time with the child be suspended in light of the allegations of sexual abuse perpetrated by the paternal uncle. On this date the matter was transferred to the Family Court and in this Court was allocated into the Magellan Program[2].
[2] The Magellan program is a fast-track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of the Department of Communities and Justice with the family.
On 16 February 2016 I made orders suspending the father’s time with the child and releasing the Magellan Report received from the Department to the parties. Of significance, it was recorded in the Magellan Report:
Community Services is of the view that there is significant risk of harm if [the child] is to have further contact with [the paternal uncle] and are concerned that [the father] does not believe [the child’s] disclosures. Given [the father’s] disbelief, there is potential for [the father] to act in a non-protective manner and allow contact between [the child] and [the paternal uncle].
In March 2017 the criminal charges against the paternal uncle were heard by way of jury trial. The child, mother and father gave evidence during the proceedings. The paternal uncle was acquitted of both charges.
The family were assessed by the family consultant again in January 2018 for the preparation of an updated Family Report (“the 2018 Family Report”), which is a matter to which I will return. By the time of the second assessment the father was seeking orders that the child incrementally spend time with him, leading to an arrangement in which the child would live with him.
On 20 March 2018 trial directions were made to prepare the matter for final hearing. There was then significant delay in the matter progressing to final hearing as a result of both parties failing to comply with the trial directions.

The Hearing

The final hearing commenced on 17 March 2020. On the first day of hearing the parties were all in agreement that the child should live with the mother and she should have sole parental responsibility for the child and orders were made with the consent of the parties to this effect.
After three days hearing the proceedings were adjourned part heard due to an escalation of restrictions during the COVID-19 crisis.
The hearing resumed for a further two days towards the end of July 2020. Orders were made on the last day of hearing with the parties’ consent that the mother have sole parental responsibility in relation to obtaining a passport for the child and that she be permitted to travel with the child without prior notice to or permission of the father. As to the only remaining issue of whether any order should be made for the child to spend time with the father, judgment was reserved.

MATTERS IN DISPUTE

The sexual abuse allegation

Neither the mother nor the ICL seek a finding that the paternal uncle sexually abused the child.
The ICL submits that the Court could not be satisfied on the balance of probabilities that the paternal uncle did not sexually abuse the child, and on this basis there remains the possibility the paternal uncle did sexually assault the child.
The father seeks a positive finding that the paternal uncle did not sexually abuse the child and on this basis argues that the Court should also find that neither he nor the paternal uncle pose an unacceptable risk of harm to the child.
In M v M[3] the High Court said when discussing allegations of sexual abuse at [23] – [25]:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless….
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access….
In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[3] (1988) 166 CLR 69; [1988] HCA 68.
In M v M (supra), the High Court also said at [18]:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
In Johnson & Page[4] the Full Court agreed that reference to the Evidence Act1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.
[4] [2007] FamCA 1235 at [72].
I also have regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk. One of the cases reviewed in Johnson & Page (supra) at [65] is W & W (Abuse Allegations: Unacceptable Risk)[5], where the Full Court noted at [111]:
We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.
[5] (2005) FLC 93–235.
The evidence in relation to the alleged sexual abuse consists of the following:
·The child’s disclosures to the mother on the evening on 7 September 2015 after she had spent time with the father (in the presence of the paternal uncle) to the effect that the paternal uncle had pressed his finger into her vagina and anus and the mother’s observations of redness in those areas.
·The opinion evidence of the doctor who examined the child the day following the child’s disclosures.
·Answers given by the child when interviewed by JIRT on 9 September 2015.
·Substantiation of the allegation by JIRT and the institution of criminal proceedings against the paternal uncle.
The father relies on the following evidence in support of a finding that the uncle did not sexually assault the child:
·The sworn testimony of the maternal uncle in these proceedings denying the assault.
·The evidence of the father and paternal uncle concerning a lack of opportunity for the assault to have occurred.
·The acquittal of the paternal uncle in the criminal proceedings.

The child’s disclosures to the mother

The mother deposes that when the child returned to her care after spending time with the father on 7 September 2015 she observed “redness about [the child’s] private parts” while she was washing the child. The mother’s police statement (contained within Exhibit 1 and dated 19 October 2015) gives her account of the events upon which she relies in the proceedings:
…about 9.00pm, I prepared to wash [the child] in some warm water, as I thought it was too late to shower her. I let [the child] lay down on the bed, with her clothes off I started to clean her body, when I got close to her vagina and started to clean it.
I heard [the child] say: “ouch it hurts”. I asked her why does it hurt?
I heard [the child] say: “[The paternal uncle] took off my pants” I saw her raise her little finger.
I heard her say “[The paternal uncle] pressed his little finger into my precious place and [anus], it hurt but [the paternal uncle] say yes”
I said, “do you feel hurt anywhere else? How many time did [the paternal uncle] do it to you?”
I heard her say: “it hurt, he only has done it one time, he used his hand to stop me, I tried to run away but [the paternal uncle] stop me and I saw [Dad] come out from the toilet and went to the kitchen, I went and told [Dad]” “[Dad] said go home and don’t tell mum” (as written).
Under cross-examination by the father’s counsel the mother was not challenged on any of her account about the child’s disclosures.
The mother deposes that she tried to contact the father the night the child made the disclosure but the father did not answer her call. She says that she sent him a text message explaining what the child had disclosed to her and reported the redness she had observed to the child’s vagina. She was not challenged under cross examination about this evidence concerning her attempts to contact the father after the disclosure was made.
The mother told police that on 9 September 2015 she received a response from the father in relation to the text message sent to him two days earlier.

Medical examination

The child was examined by a medical practitioner on 8 September 2015, the day after the alleged incident. An expert certificate from this doctor who is attached to the hospital’s sexual assault centre formed part of the documents produced on subpoena by police and tendered in the proceedings[6]. The doctor’s expert certificate (under section 177 of the Evidence Act 1995 (Cth)) sets out the doctor’s qualifications which include eight years’ experience in the sexual assault unit with the relevant Local Health District.
[6] Exhibit 1
In his expert certificate the doctor sets out the history of the assault taken from the mother through an interpreter which includes the following:
[After the child arrived home from time with her father] [the child] passed urine.
[The child] did not have as much dinner as usual that night. [The mother] did not shower or bath [the child] that night, but cleaned her with a cloth. When [the mother] wiped [the child]’s genital area with the cloth [the child] said that her genital area was painful. [The mother] noticed that [the child]’s genital area appeared reddened. [The mother] asked her why it was painful. [The child] told [the mother] that whilst the child’s father had been in the toilet, [the paternal uncle] had poked his finger into her [vagina]. [The child] said that [the paternal uncle] had pulled her pants down and used his finger to poke her [vagina]. [The child] told [the mother] that it had been painful when this happened, and [the child] had said “No!” but the [the paternal uncle] said “Yes”. [The child] ran away, but [the paternal Uncle] had chased her. [The child] told [the mother] that she had told [the father] what [the paternal uncle] had done and [the father] told her not to tell [the mother] about what had happened. [The mother] rang [the child]’s father to ask him about what had happened but he did not answer his phone.
The next day [the child] was sitting on a chair, [the mother] said that [the child] jumped off the chair and said that she had pain in her bottom. [The mother] asked her why she had pain, and [the child] said that the paternal uncle had also put his finger into her [bottom]. [The mother] called the case worker at C Services to ask advice on what to do. She was told to present to [the hospital] Emergency Department with [the child] and police would be there to speak to her.
In response to my specific questions, [the mother] said that [the child] had not had any genital bleeding. [The mother] told me that [the child] had told her that her genital area was sore on the 7 and 8 September and that she had complained of pain on wiping the genital area after urination, as well as pain on passing urine. [The mother] also told me that [the child] had had an increased frequency of urination on 7 September 2015.
In his expert certificate the doctor reports the following in relation to his history and examination of the child:
[The child] was shy and did not want to converse with me. She did not respond to my question “is anything sore?”
…Genital examination was within normal limits. The anal and peri-anal regions were examined with the child in the left lateral position. [The child] said that her “bottom” was sore on gentle separation of the buttocks. Apart from this, the anal and peri-anal areas were within normal limits.
The expert certificate also includes the following:
Information and discussion re causation of the significant findings:
I examined [the child] and collected samples for DNA analysis approximately 20 hours after last contact with the alleged offender. This was prior to any JIRT interview. I received the history and information about the allegation from [the child]’s mother. This information was that [the child] had said that her uncle had placed his finger in her genitals and in her bottom. I did not question [the child] to clarify the meaning of the word “bottom” or for further details.
[The child] was reported to have genital pain and passing urine more frequently than usual in the few hours after this event. When pain on passing urine follows genital touching, this may indicate that the touching occurred inside the genitals and may have caused minor injury inside the genital area. When I examined [he child] some hours later, there was no visible injury on general and ano-genital examination.
A normal genital examination after sexual contact could be explained by the following:
·Digital fondling can cause no injury, transient redness, or abrasions from fingernails in a pre-pubertal child. Injury may be minor and not visible, or heal very quickly within 24 hours.
·Similarly, digital touching and penetration of the anus can occur easily without causing any visible injury on medical examination.
Summary and Opinion:
According to her mother, this four year old girl had told her that her paternal uncle had touched her genital area and “bottom” within 24 hours of my examination. The general and ano-genital examinations were within normal limits, as would be expected. The most important factor is the history given by the child. Therefore, a normal genital examination does not negate the allegations of sexual contact as described by [the child].

The JIRT Interview

In the course of the JIRT investigation the child was interviewed with the assistance of an interpreter. The following are extracts from the interview:
Q: O.K. Now yesterday she went to the doctor, what did she tell the doctor?
A: She said to the doctor, [the paternal uncle] take off her pant and hit her in the bottom and then he put to his nose to smell it.
Q: Hit her in the bottom and put to his nose and smelt it.
A: Yes
Q: What did he smell? His hand or fingers or something else?
A: He smell his hand.
Q: His hand. O.K. When [the paternal uncle] took her pants off where was she, at her dad’s house or somewhere else?
A: I was at my dad home.
Q: My dad’s home. Was there anyone else home besides dad and [the paternal uncle]?
A: No.
…
Q: When [the paternal uncle] hit her bottom and then smelt his hand what else did he do?
A: [The paternal uncle] hit me with the stick and then he smelt on his nose.
Q: O.K. Besides her bottom did any other part hurt?
A: Feel, feel pain at the bottom….
Q: …bottom. Did he put anything inside her bottom?
A: No.
Q: O.K. Did he put anything inside any other parts?
A: No.
Q: O.K. I’m gunna show her a picture and I want her to point to me where [the paternal uncle] put his hand.
…
A: She says she see, she see red around here (demonstrates).
Q: Yeah. Is that what uncle did or is it normally red?
A: Uncle did.
Q: O.K. I want her to use this pencil…I want her to draw and circle around where uncle hurt her. Only around where uncle hurt her.
A: Yeah (demonstrates).
Q: O.K. Is this between her legs?
A: Yeah.
Q: Yeah. Ask her to tell me what do they, what does she call this?
A: She speaks in [foreign language], that’s mean it’s a very precious place.
…
A: Yeah, her mum tell her that this is the precious place.
Q: Precious place. O.K. For the purpose of the recording, the precious place, is she referring to the vagina?
A: Yeah.
A: Yes, that’s ---
Q: O.K.
A: She, she, I ask her twice, and she say, Yes.
Q: O.K. What did he hurt her precious place with, was it his fingers or his hand?
A: Finger.
Q: O.K Did he put his finger inside her precious place?
A: Yes he does.
Q: Does she know which one, which, which finger?
A: (demonstrates)
Q: O.K. For the purpose of the recording she’s just pointed out my pinkie finger, my little finger. O.K. …
…
Q: Ok can you ask her to put a circle whereabouts uncle hurt her at the back
…
Q: O.K. What does she call that.
A: She said that he hurt in the front. The arse hole.
Q: She calls it arse hole? O.K. So what did uncle do to her arse hole?
A: [The paternal uncle] used the stick to put in the arse hole and then his mouth on his nose.
…
Q: ...What’s the arse hole used for, ask her?
A: She, said to me before she said go to, go to poo..
Q: And what’s her front precious area used for?
A: She said that the precious place…
Q: Yeah
A: Go to use for wee wee.
…
Q: …So just ask her, when uncle hurt her in the precious place and her arse hole what happened next?
A: At that time dad was in the bathroom and when dad come out go to the kitchen I told dad that [the uncle] did like that to me and then dad told me that, don’t tell mummy.
Q: How, why did dad say don’t tell mum?
A: Not very clear, but she said, she said to me, like you ask, why dad tell her, told her, didn’t tell mum
Q: Yeah
A: Because, she said that because dad said that if she told mum, mum will call somebody to arrest him.
…
Q: Could you ask her, how, sorry, or when did she tell mum?
A: Because when mum wipe my, my, bottom I said to her that I feel sore and then mum ask me, why. I told her that, because [the uncle] did to me like that.
Q: Ok was this when she was having a bath
A: Before I went to bed, mum washed my bottom.
During cross examination the family consultant who has professional experience in interviewing children was asked whether there were any factors relating to the interview that the Court should take into account in determining the veracity of the child’s account. The family consultant opined that the child maintained good focus and attention during the interview, as much as could be expected from a child of that age. The family consultant observed that the child also provided spontaneous information throughout the interview. She also indicated that throughout the interview the child maintained the same story and was consistent in her evidence. While there were some occasions where the child’s answers were unclear, it was the family consultant’s view that it seemed that the interpreter was asking questions rather than the detective during the interview. The family consultant indicated that the child some years later gave similar details when interviewed by her for the purpose of the Family Report.

The father’s evidence

The entirety of the father’s evidence in relation to the sexual abuse allegations in his affidavit is as follows:
In early September 2015 I was advised that the changeover place had been changed to [location]. As I was recovering from my hernia operation I asked by brother to drive me there to collect [the child]. When we arrived at my home I noticed that [the child] had a number of bruises on both of her lower legs. When I asked how did she get bruises she said: “my mother hit me”
A copy of the photo which I took is annexed hereto and marked with the letter “A”.
To best of my knowledge nothing untoward happened between my brother and [the child] and I was with her all the time she was at my home.
Certainly [the child] did not make any complaint about anything occurring between her and my brother. Both [the paternal uncle] and I drove [the child] home and she seemed quite happy.
I was unaware that it was alleged that [the paternal uncle] had sexually abuse [the child] until I was advised that he had been arrested and charged by the police.
In an earlier affidavit dated 4 May 2016 also relied upon in the proceedings the father deposed to the child having contact with the paternal uncle on only one occasion in September 2015, and that on that occasion to not ever leaving the child unsupervised. In that affidavit he deposed to first hearing of the sexual abuse allegations through relatives on about 10 September after the paternal uncle’s arrest and to not having any contact with the paternal uncle since the date of the alleged incident.
Under cross-examination the father agreed that he had visited the paternal uncle in custody prior to him being released on bail in November 2015. The father also agreed that police searched his home and questioned him in relation to his contact with the child on 7 September 2015. The father further agreed that he did not provide a statement to police in the criminal proceedings and that the evidence he gave at the criminal proceedings was in the paternal uncle’s case. Although the father appeared to have some difficulty in this regard, he ultimately conceded that his affidavit was not correct in relation to his lack of contact with the paternal uncle after the alleged incident. The father also said that following the acquittal of the paternal uncle he had seen him on three occasions at the paternal uncle’s home but subsequently agreed that he had had regular contact with the paternal uncle on weekends.
The father was also cross-examined about evidence given in the paternal uncle’s criminal trial. He confirmed that in these proceedings he deposed that on the day of the alleged assault he was in the child’s company at all times and that he had taken the child to the toilet on two occasions.
When asked under cross-examination about the child’s version of events related in her JIRT interview the father gave many unresponsive answers which indicated that he had doubts about the truth of the child’s account. Although there was some lack of clarity in later answers concerning this matter the father subsequently unambiguously confirmed that he did not believe that the paternal uncle had harmed the child.
Under cross-examination by the ICL the father denied having heard about the allegations that the paternal uncle sexually abused the child until it was raised in the family law proceedings. He initially denied that the mother ever told him about the allegation, that he had spoken to the paternal uncle or that he or any other family members had told him about the matter. The father subsequently agreed that he had received a text message from the mother at about 10.22 pm on the evening of 7 September 2015 and that in that message she had told him of the child’s allegation. He agreed that he had sent a text message to the mother and confirmed that it was as follows:
Father in law and daughter in law, when seeing daughter was red, suspect father in law, hurt your daughter. After realise that I make the mistake for the father in law. I and our child was inside the room. [The paternal uncle] is outside. You dare to prosecute wrongly, are you afraid of karma, … have eyes. I love our child, then I ask [the paternal uncle], [the paternal uncle] also love niece, seeing father and daughter loving each other, [the paternal uncle] save this time, driving her dad for dad to go to pick up daughter to her father’s house.
The father explained under cross-examination that the words “I and our child was inside the room” and “uncle [name] is outside” meant that he and the child were in the bathroom when the paternal uncle was in the living room. The father confirmed that on the day in question he took the child to the toilet and also took her with him when he went to the toilet. He said that he took the child with him as he was afraid that she would fall over if she was out of his sight. He denied that the reason he took the child with him was because he was scared that the paternal uncle may do something to her. Although he said that the words he had written related to a past event concerning a grandfather who had looked after a grandchild, this explanation was not further explored under cross-examination.
For reasons which were not fully explained but appeared to be associated with the paternal uncle’s reluctance to become involved in family law proceedings, the father did not adduce any evidence from the paternal uncle in relation to the sexual abuse allegations but the paternal uncle was issued with a subpoena filed by the ICL to give oral evidence in the proceedings.
The paternal uncle denied ever having seen or met the child prior to the incident on 7 September 2015. He then confirmed that on that date he and the father collected the child and took her to the father’s home and that he drove on that occasion at his brother’s request as his brother was recovering from an operation.
After persistently giving other answers to the same effect, that he had never previously seen the child prior to 7 September 2015 the paternal uncle then conceded that he had seen the child at family gatherings and that the father had “quite often…brought her over”. The paternal uncle said that on the day in question he sat on the couch, at one stage had a little nap and that the child was watching television with her father in the bedroom with the bedroom door open. He denied ever seeing the child leave the room at any time and said he could not remember whether the father left the room. He denied ever seeing the father go to the toilet or taking the child to the toilet and also denied that the child or the father went to the kitchen. He also denied ever putting his finger into the child’s vagina adding “I never touched her since she was a baby”. He denied all matters relating to the child’s complaint including that the child told the father what happened after he came out of the bathroom and that he told the child not to tell anyone.
The paternal uncle also denied speaking to the child at all on 7 September 2015 at the father’s home, denied any knowledge of the father’s position in these proceedings and did not give a direct answer when asked about his conduct in the future in the event that the father were to bring the child to a family function. Ultimately, he confirmed that if this were to occur he would leave the premises and when asked why he would do this said “I don’t want to come close to her anymore because too much trouble, so I don’t need it too”.
The paternal uncle also confirmed under cross-examination that the father came to visit him in gaol on one occasion prior to being granted bail.

Discussion and Findings

As previously noted no party seeks a positive finding that the child was sexually abused by the paternal uncle. The father seeks a finding that the paternal uncle did not sexually abuse the child. In my view such a finding is not open on the evidence for the following reasons.
First, the mother was not challenged in relation to her observations of redness in the child’s genital area and the child’s complaints of pain followed by her disclosure that the paternal uncle had touched her vagina and anus a few hours earlier.

The child’s complaints about pain in the genital area the following day are corroborated by the examining doctor’s expert certificate. Further, although the doctor observed no visible injury on examination he deposes that digital fondling of the type alleged may cause no injury in a pre-pubertal child or any such injury may be minor, not visible or have healed within the time frame.
There has been no other evidence adduced to explain these observations and the child’s complaints.
I approach the evidence of the father and paternal uncle to the effect that the child was never alone with the paternal uncle on 7 September 2015 with caution. There are significant inconsistencies within and between the two witnesses’ versions about matters such as the location of each person at relevant times on that day. A particularly weighty matter in this regard, as submitted by the ICL, is that while the father has always maintained that he was present at all times with the child (such that the child was never out of his sight when the abuse was said to have occurred), the paternal uncle when interviewed by police reported that there was “one occasion” where the father left the room to get the child some food leaving the child unsupervised during this period.
Some matters in the father’s affidavit were later revealed to be incorrect, such as that he had no contact with the paternal uncle following the allegation and was unaware of the allegation until hearing about it in the family law proceedings. The paternal uncle also deposed to matters in his evidence in chief that he later contradicted under cross-examination, such as that he had had never met the child prior to the day of the alleged assault. Further, the father has at all times including up until the present been clearly aligned with the paternal uncle and does not accept the child’s account. Each of the foregoing matters in my view affect both the father’s credibility and accuracy of his account.
In assessing the paternal uncle’s evidence I also consider it unlikely that he would not have a clear recollection of the events in question as he claimed in answer to many of the questions, given the serious consequences that those events had for him. He also seemed to have no difficulty with his memory as to exculpatory matters.
Further, I attach significant weight to the child’s disclosures to police in her JIRT interview. I agree with the observations made by the family consultant concerning the child’s presentation during the interview, which was viewed in the proceedings. The child who was only four at the time made clear and consistent disclosures of abuse, and the interview was not compromised in any way such as by the use of leading questions. I consider it weighty that the information given by the child was spontaneous and was relatively consistent (though not identical) to the complaints she had made to her mother, including in relation to some quite minor details such as the exact circumstances in which she made that disclosure.
I also consider it to be of significance that the family consultant gave evidence that some years later the child gave similar details of abuse when interviewed for the purpose of the Family Report.
In my view weight must also be attached the assessment by trained JIRT officers following their investigation in 2015 that there was sufficient evidence to substantiate the allegation and that the paternal uncle was subsequently charged. In my view the paternal uncle’s acquittal following trial is not particularly weighty given the standard of proof for conviction in criminal proceedings and thus no inferences may be drawn from that acquittal.
Having regard to all of the foregoing matters I am not satisfied that the paternal uncle did not sexually abuse the child. It remains a possibility on the evidence that he did.

The Family Consultant’s Evidence

As indicated the family consultant interviewed the family on two occasions and prepared two reports. She was also cross examined at the final hearing.
The interview for the first Family Report took place in November 2015, two months after the alleged sexual assault at a time when the paternal uncle was in custody prior to his release on bail. The family consultant interviewed both parties and observed the mother with the child. The family consultant did not consider it proper to observe the child with the father at that time due to the nature of the ongoing criminal proceedings against the paternal uncle and as the child may have been required to give evidence in those proceedings.
The father reported at that time that he did not believe that his brother had sexually assaulted the child and believed the allegations were made up by the mother because she was “selfish” and wanted to destroy his family. The father reported that he was with the child and his brother on the occasion that the sexual assault was alleged to have occurred and did not consider it possible that she was sexually assaulted. He is recorded as having told the family consultant without hesitation that if the paternal uncle was released from gaol, he would allow him to have contact with the child because “nothing happened”. He considered that his brother had done nothing wrong and it was a selfish accusation by the mother.
The mother told the family consultant that she was not sure if the child should spend time with the father, independent of whether his brother was found guilty of sexually assaulting the child. She reported that in telling the child not to tell her of the assault, the father had “tried to hide the crime” and was not acting protectively of the child. The mother reported that the child considered the father to be a “bad person” because he did not protect her from her uncle.
The mother reported that she had been engaging with a support program through the Department as well as her social worker from a “Staying Home Leaving Violence” program and had previously been involved in counselling. She told the family consultant that during her relationship she was “beaten” by the father and police had attended her house as a result. She also reported that she had previously experienced injuries from the father, including to her neck and arm.
The family consultant opined that the father appeared unwilling or unable to consider the prospect that his brother may have perpetrated abuse towards the child and presented a strong belief that his brother was innocent. She opined that even if the paternal uncle was found not guilty of the offences, this does not necessarily mean they did not occur.
The family consultant wrote in her first report that there were other concerns raised regarding the child’s safety and well-being in the father’s care, including his level of attentiveness and supervision, of which the veracity was unknown.
The family consultant was of the view that the father appeared highly focused on the mother’s alleged selfishness and destructive attitude, and concerns about the mother’s care of the child, rather than his care of the child. In comparison the mother appeared generally distressed when discussing the alleged sexual assault of the child and alleged family violence, and appeared to have serious concerns regarding the father’s protectiveness and doubted she would be able to trust him with the child’s care again.
The family consultant was of the view that the mother presented as highly supportive of the child, and unless the Court found that she had made malicious allegations against the father and his brother, it would appear that she is appropriately protective of the child. She also opined that there appeared to be no significant risk concerns for the child’s safety or well-being in the mother’s care, or any significant concerns about her parenting.
The family consultant was of the view that if the child had been sexually assaulted, then it is the mother’s attitude and supportive nature that will most assist the child’s emotional recovery from the assault and that it is in the child’s best interests that she has a trustworthy and protective parent to assist and support her with the recovery. If the child feels disbelieved or unsafe, it is likely to cause her significant emotional harm and negatively impact on her recovery. If it is the case that the father told the child not to tell the mother of the assault as the child reported, this action is likely to have significantly undermined the child’s sense of security and trust in the father and may in turn negatively affect their relationship.
The family consultant also recommended that the child engage in counselling to assist her process her experience.
The family consultant further opined that although the criminal proceedings may take some time to finalise which may have an impact on the child’s relationship with the father, protection from the risks must take precedence over the preservation of the child’s relationship with her father. She was of the view that in the event the paternal uncle is found not guilty in the criminal proceedings, and the father has not spent time with the child in the interim, there may need to be some therapeutic assistance to help repair and rebuild the relationship if it is found that it is in the child’s best interests to spend time with him.
The family consultant expressed the view that if the Court accepted the mother’s account regarding family violence, it would likely be challenging to the mother to communicate with the father about the child, particularly in light of the sexual assault allegations in the father’s attitude in this regard. Further, the family consultant opined:
…if [the child] has witnessed or had knowledge of family violence, it is likely to have negatively impacted her and could affect her development, mental health and relationships in the future. If [the father] did perpetrate family violence against [the mother], he has also caused [the child] emotional harm. If the Court accepts [the mother’s] account of the family violence, then it is likely to have negatively impacted her mental health. This, in turn, could compromise her parenting capacity and ability to continue to be a supportive parent to [the child] and meet [the child’s] needs, including her needs related to the alleged sexual assault.
On the basis of the foregoing the family consultant opined that the child should live with the mother and spend no time with the father, which could be reconsidered once the criminal proceedings were finalised and the father’s attitude could be reassessed.
In January 2018 the parties attended upon a family consultant for the preparation of an updated Family Report. Since the first report the paternal uncle had been acquitted of the sexual abuse charges. The mother told the family consultant that it was her proposal that the child live with her and spend no time with the father until the child turned 10 years old. After the child turned 10 it was the mother’s proposal that the child spend time with the father twice a week with no overnight time. The mother reported that her proposal for no time up until 10 was because she did not think the father was able to take care of the child, but thought that after the age of 10 the child would be sufficiently independent such that time with the father could resume. She maintained her concern that the father would take the child to see the paternal uncle.
When assessed on the second occasion it was the father’s proposal that the child spend incremental time with him for a period of one month and then live with him and spend no time with the mother for a period of three years after which she spend time with the mother twice per month.
The father presented to the family consultant as having a need for the mother to experience pain by not allowing her to spend time with the child for three years while the child lived with him. The father reported that he had been unhappy for three years in not being able to spend time with the child, so the mother should suffer in the same way for the same amount of time, which he considered to be “fair”. When asked how the child may experience this, the father responded “I did nothing wrong and I have been suffering [for] three years, it’s not democratic and it’s not fair for [the mother] to be seeing [the child]”.
It is recorded that the father told the family consultant that he would permit the child to have contact with the paternal uncle. When asked about what he would do if the Court expressly ordered him not to permit such contact the father said he would follow the Court’s rules but believed this to be unfair. The father also reported that if he spent time with the child he would talk to her about the allegations and explain to her that “the reason why Daddy was not able to see you… [was] because your mother did something to try and damage our relationship”. He said that he would speak to the child about the allegations of sexual assault and planned to ask her “did it really happen or [was it] because your mother hit you and forced you to lie, tell Daddy the truth”.
The father reported that he strongly believed that the child had lied and that he was able to tell when a person was lying which he said was based on his adherence to religious principles.
As he had done when assessed in November 2015, the father reported concern that the mother hits the child. In relation to the concerns regarding bruising to the child’s legs, the father reported that he had a recording of the child saying that the mother hits her and does not love her. He reported that he had told the child that he would take her to the police station to tell them about the mother hitting her once he had recovered from his hernia surgery. He further stated that living with the mother would cause the child to suffer because the mother was a “bad person”. The mother denied ever hitting the child on the legs and reported that the child bruises herself from jumping on things.
When interviewed for the update Family Report the mother reported that the child did not know that the paternal uncle had been found not guilty of sexually assaulting her, but that the child was angry with the paternal uncle’s lawyers for suggesting that she was not telling the truth during the trial. The mother also told the family consultant that the child had changed after the alleged sexual assault. She reported that the child wet her pants and had to be changed numerous times during the day and night, did not play with her friends at school as much, and that her teacher had commented on a change in her behaviour. The mother also reported that the child’s appetite had decreased and she sometimes missed meals, and seemed withdrawn.
The mother maintained that she continued to believe the child’s allegations against the paternal uncle, despite him being found not guilty and did not want the child have any contact with the paternal uncle.
The child was almost eight when interviewed for the purposes of the updated Family Report. The family consultant observed the child to be generally cheerful during her interview with the exception of when she spoke about the father and her paternal uncle. When asked whether she knew why she had ceased spending time with the father, the child responded that the father had done “something mean” to the mother and later reported remembering going to court because of her paternal uncle. The child stated that the father did not believe her about what the paternal uncle did to her, and then stated she did not wish to speak about that further. The child said that the father used to take photos of “every sore” that she had on her legs, and that he told her the mother had caused the sores and that he did not want the child to see the mother any more. The child explained that her sores were caused by jumping on furniture.
The father was also not observed with the child for the purposes of the update Family Report as the family consultant was concerned that he would inform the child of his views about the sexual assault allegations and the mother, which she considered would be distressing and difficult for the child to manage.
The family consultant expressed similar views as she had expressed in the first report in the event that the Court determined the mother had been malicious in promoting the child to believe that she was sexually assaulted when she was not. The family consultant expanded that it is a matter for the Court to determine whether or not the mother is malicious in continuing to hold her beliefs about the alleged sexual assault, or whether she generally holds concerns for valid reasons.
The family consultant held serious concern about the father’s ability to differentiate his beliefs from the child’s and he also appeared to have a very limited ability to empathise with the child. She opined:
[The father] presented as generally self-focused and unable to even imagine that the child’s views and experiences may be different to his. He was unable to consider how [the child] may experience his seemingly strong desire to tell her what he considers to be the truth about the alleged sexual assault, and about [the mother]. It is considered that, if [the father] did speak to [the child] in the way he said he would, this would be highly damaging to [the child’s] emotional well-being and to her relationship with [the mother]...
As she had done in the first Family Report, the family consultant expressed concern about whether the father would in fact comply with court orders preventing him from bringing the child into contact with the paternal uncle given his seemingly rigid and strongly held statements, views and attitudes.
The family consultant was of the view that the father was unable to consider how his actions may have contributed to him not spending time with the child. She opined that he could not consider the situation from the mother’s perspective and did not waver in his belief that she had coached the child to lie about the sexual assault. The family consultant was of the view that if the father had believed the child and/or acted protectively of her at the time of the sexual assault, his time with the child may not have been interrupted. She also opined that it was possible for the father to have acted protectively of the child even if he did not believe the sexual assault occurred, by not exposing her to the paternal uncle.
In the second report the family consultant maintained her recommendation that the child live with the mother and spend no time with the father. The family consultant opined that the child could not safely spend time with the father in light of the risk that he would bring child into contact with the paternal uncle and based on his stated intention to discuss his views with the child and actively undermine her relationship with the mother. She was also of the view that supervised time between the child and the father was not an option unless the Court was satisfied that a supervisor who spoke the parties’ language could be obtained in the long-term and that the father would not share his beliefs about the sexual assault allegations and the mother with the child. For the same reasons it did not appear that the father could have telephone contact or similar contact with the child.
The family consultant did not consider that it would be the child’s best interests to live with the father, even if the Court found that the mother had fabricated the allegations. She considered that (if the Court found that the mother had maliciously caused the child to believe falsely she had been sexually abused) then neither parent may be a suitable carer for the child.
It was also suggested by the family consultant that if the child continues to experience behavioural issues as the mother contends arising from the sexual assault, then the mother should follow up on the child’s previous referral to the child protection counselling unit or in the alternative a referral to a local practitioner with experience in child sexual assault counselling.

Under cross-examination the family consultant was asked about whether her opinion and recommendations would be different if the father’s evidence in his most recent affidavit were accepted by the Court. The particular evidence relied upon is that the father now proposes that if he were to spend time with the child that he will not discuss the events involving the paternal uncle, will not blame the child for the false allegations made, and that the paternal uncle will not visit his home when the child is spending time with the father “unless [the child] makes such a request”. Further the father now acknowledges that the child may need to obtain assistance from a psychologist or another health professional to assist her in re-establishing a relationship with him. The family consultant responded that the father’s most recent statements in his affidavit were an improvement on what he said to her during his interview. She expressed concern however about the father’s statement to the effect that he will not allow the paternal uncle to attend his home unless the child made such a request, indicating that it should not be up to the child whether she wants to see the paternal uncle if a restraint against such contact were ordered.
The family consultant was also asked under cross-examination about the ways in which the father could demonstrate he had authentically changed his position in relation to how he would engage with the child. The family consultant was of the view that the father would need to be able to explain how he will interact with the child without focussing on the mother and his perception of the wrongdoings done to him by the mother and without telling the child about what the mother had done. It is the family consultant’s view that the father needs to depart from the idea of achieving revenge against the mother based on how his relationship with the child had suffered. On the whole it is the family consultant’s position that the father would need to demonstrate that he is able to put his feelings aside and focus solely on the child’s needs emotionally and psychologically and acknowledge the feelings she may hold independent of his views.
The family consultant was asked about her opinions regarding the possibility of the paternal uncle having groomed the child, which she had briefly touched upon in her second report. The family consultant stated her view that if the paternal uncle did sexually abuse the child as was alleged, it would be highly likely that he would have spent time grooming her to accept the sexual abuse and grooming other adults prior to the alleged assault.
The family consultant also opined under cross-examination that she was not concerned about the father’s belief about the paternal uncle’s innocence and disbelief of the child’s allegations so long as is be able to put those views aside and not focus on whether the abuse had occurred in the future. However she is of the view that the father himself will pose a risk to the child if he continues to share with her the belief that she was not abused, and about the mother’s role in forming that belief when the child continues to maintain that belief.
The family consultant was asked whether there could be other innocent explanations to explain the way in which the child may have come to make the allegations other than the mother’s active influence. The family consultant considered that in some instances, innocent incidents such as cleaning or bathing by a caregiver can be misinterpreted or misunderstood. The family consultant gave evidence that she tried to approach this issue in different ways with the father and challenge his attitude to the complaint but said that the father was very attached to his views, appeared stressed and didn’t seem able to turn his mind to entertaining other possibilities that weren’t within his frame of mind at that particular time. The family consultant said that even after a lengthy passage of time the father seemed unable to consider other alternatives.
Under cross-examination the family consultant opined that if the Court considered there was some benefit to the child in resuming spending time with the father it would need to be within a therapeutic setting. She explained that a therapeutic framework was required so that the father could answer any questions the child may have in a child focussed manner, including explaining why the child stopped spending time with him in a way which would not be harmful for the child to hear and process.
The family consultant was asked about the impact on the child of the mother’s anxiety about the child spending time with the father given the mother’s anxious presentation when she was interviewed by the family consultant. The family consultant expressed the view that it would be difficult for mother to support time between the child and father. She opined that if the mother was anxious whenever time between the child and father were to occur this may have an impact on the child’s emotional wellbeing as she may perceive that there is reason she should also should be anxious about spending time with the father. The family consultant continued that if it was determined that the child would benefit from spending time with the father, the mother’s attitude will be important as will the way in which she will go about supporting the child with any emotional regulation she may need.
The family consultant was asked as a general proposition whether it would be too burdensome on the child to be questioned by the mother each time she returned home from spending time with the father about her activities and interactions while in the father’s care. The family consultant expressed the view that it would be dependent on how the questions were asked, and contrasted questions undertaken in an interrogatory way compared to casual and conversational questions.
The family consultant was asked about her assessment of the nature of the child’s relationship with the father given that the child was not observed with the father during the interviews, the child’s age and the period of time that has elapsed since she last saw the father. The family consultant opined that the child would have a memory of the father and would remember certain positive experiences and negative experiences but said it would not be an established relationship, meaning she wouldn’t remember the nature of their relationship. The family consultant was of the view that the child’s lack of desire to resume spending time with the father and absence of talking about the father, reinforces the lack of an established relationship between the child and father.
The family consultant agreed that in recommending no time she took into account the negative impact on the child on not spending time with the father.
The family consultant in these proceedings has tertiary qualifications in psychology and forensic psychology. She has 17 years’ experience in child protection and family law sectors including as a psychologist with the Department and as a sexual assault counsellor for children. She has been family consultant for over eight years. The family consultant was extensively cross examined by counsel for the father, mother and ICL and no significant challenge was made to the facts upon which her opinion was based or her expertise. The family consultant maintained her views and conclusions in most respects and was able to justify her opinions. In these circumstances I accept the opinion of the family consultant and attach significant weight to it.

The Law & Discussion

The Objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The Objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The Principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Court is to make such parenting orders that are considered proper (section 65D). According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

Best Interests Considerations

Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
The primary considerations (under s 60CC(2)) are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
Although the phrase “meaningful relationship” is not defined in the Act the Full Court in McCall & Clark[7] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[8] as a relationship that is “significant”, “important” or “of consequence”.
[7] (2009) FLC 93-405, 41 Fam LR 483; [2009] FamCafc 92
[8] (2007) Fam LR 518
This primary consideration has not been interpreted as creating a presumption that a child receives a benefit from having a meaningful relationship with both parents.
The Full Court in McCall & Clark (supra) said at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The orders proposed by the mother and supported by the ICL would bring about an arrangement whereby the child’s relationship with the father will effectively end. The mother’s case is not based on the proposition that the child will not receive some benefit from having a meaningful relationship with her father. Rather it is contended on her behalf that the need to protect the child from psychological harm outweighs this benefit and that there are no protective arrangements that may be implemented to mitigate the risks posed by the father in this regard.
For reasons that will be explained I am of the view that it is not in the child’s best interests that orders be made to foster her relationship with her father.
The second of the primary considerations is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The need to protect the child from harm of the type contemplated in this consideration obviously arises from the allegations of sexual abuse by the paternal uncle when spending time with the father and the risk that this may occur in the future.
I did not find, as sought by the father, that the paternal uncle did not sexually abuse the child and as explained earlier in these Reasons there is evidence consistent with that abuse having occurred.
I have regard to the severity of the impact caused to children who experience sexual abuse and to the particular evidence given by the mother about the child’s behaviour following the alleged assault (and the family consultant’s opinion in relation to that matter). I am satisfied there is an unacceptable risk that the paternal uncle may sexually abuse the child and that the child will be seriously harmed by that abuse were the child to be brought into contact with him.
The father has maintained throughout the proceedings that the paternal uncle did not sexually assault the child and therefore poses no risk of harm to her. He indicated to the family consultant during the first interview before the conclusion of the criminal proceedings that he would allow the child to have contact with the paternal uncle and restated this position when assessed by the family consultant for the second time after the conclusion of the criminal proceedings. Even at the time of hearing when asked during cross examination whether it would be his wish for the child to have contact with the paternal uncle, the father responded that it would be good for the child and paternal uncle to see each other.
The family consultant maintained in both her reports and under cross examination that she did not form the impression that the father would comply with an order were one made restraining him from bringing the child into contact with the paternal uncle given his strong statements in relation to the paternal uncle’s innocence. There was some ambiguity revealed under cross-examination in the family consultant’s record about the information given to her by the father about his intention to comply with any such restraint but the family consultant confirmed that she understood that the father would not follow such a court ordered restraint.
The father subsequently indicated to the family consultant during his assessment for the updated Family Report that he would not bring the child into contact with the paternal uncle if the Court expressly ordered this, but made it clear to her that he would consider such orders to be “unfair”.
The family consultant agreed under cross-examination that her concerns about the father bringing the child into contact with the uncle wold be alleviated if the father himself had proposed that the Court make an order restraining this contact.
In assessing the risk that the father will bring the child into contact with the paternal uncle I consider it weighty that the father does not propose such a restraint nor does he indicate that he would consent to an order in these terms if it were sought by another party. Rather, the father proposes at the final hearing that a notation be made that “the [paternal uncle] is not permitted by the father to have contact with the child”.
In his most recent affidavit of 26 August 2019 the father deposes that he accepts that “[the paternal uncle] should not visit my home when [the child] is spending time with me unless [the child] makes such a request”. He confirmed when cross examined about this matter that if the Court allowed him to bring the child into contact with the paternal uncle he would permit that to occur but he would not facilitate time between the child and paternal uncle if he was restrained by the Court from doing so.
In final submissions the ICL contended that the father’s oral evidence regarding his time with the child if that were ordered was an area of concern. The father gave evidence during cross examination that if the child were to spend time with him he would take her to the temple and to visit family members if allowed by the Court to do so. The effect of his evidence appeared to be that contact with his extended family members would occur as it had done in the past at the home of the paternal uncle and another sibling. This is consistent with the oral evidence of the paternal uncle that prior to the sexual assault allegation he would see the child “quite often” when the father brought her to family gatherings. The father also gave evidence that the paternal uncle attends the same temple as him.
The father’s contention that he will comply with any order restraining him from bringing the child into contact with the paternal uncle is based entirely upon the submission made on his behalf that he is a “witness of credit” and his statements about future intention should be accepted.
Despite the father’s statement about his intentions to comply with a restraint, I attach weight to his unwavering belief about the paternal uncle’s innocence, his lack of insight about the risks posed by the paternal uncle, the fact that he does not himself propose such a restraint and the risk of contact when visiting family members such that I remain concerned about the risk of the child being brought into contact with the paternal uncle.
As the father has not ever proposed orders for any alternative arrangement to spend time with the child, such as a supervised or therapeutic setting, there are unacceptable risks of harm inherent in the only orders under contemplation that will see the child spend time with the father.
There are also risks of harm posed by the father himself quite separate from the risk of sexual abuse posed by the paternal uncle.
Submissions made on behalf of the mother in this regard were framed as relating to this consideration, which, it is contended outweighs the other primary consideration of the benefit to the child from having a meaningful relationship with both parents. In my view however, the risk of psychological or emotional harm identified as being posed by the father does not arise from abuse, neglect or family violence as contemplated by the second of the primary considerations but rather arises from inadequacies or shortcomings in his capacity to meet the child’s needs, a matter which will be considered later in these Reasons.

Additional considerations: s 60CC(3)

Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the child

The child who was almost seven when last interviewed by the Family Consultant was observed to be generally cheerful during her interview except when she spoke about the father and her paternal uncle. I do not attach significant weight her views which were expressed almost three years ago and in proceedings where the need to protect the child from harm arising in certain ways is so significant. Having said that it is noted that the child’s views are consistent with the recommendations of the family consultant.

Nature of the child’s relationship with each parent and other significant persons

The child is clearly closely attached to the mother who has been her primary care giver and attachment figure throughout her life.
Sadly there is little left of the child’s relationship with her father which undoubtedly is a loss for the child and as opined by the family consultant may cause difficulties for the child in terms of her identity as she matures.
As was explained by the family consultant, the father may have been able to behave in a protective capacity towards the child even if he did not believe the sexual abuse allegations and thus have preserved his relationship with the child for her benefit but seemed unable to take this approach at the time.

The father’s focus on supporting the paternal uncle and blaming the mother for the child’s disclosures rather than seeking to understand the child’s perspective has done real harm to the child’s relationship with him which could only possibly be restored in a therapeutic setting. It is noted however, that while the father deposes that the child “may well need to obtain assistance” from a psychologist or other health professional to assist her to re-establish her relationship with him, he takes this no further and does not propose for example orders or any arrangement that would see the relationship rekindled in a therapeutic setting.
There is no dispute that the child has also lost her relationships with all paternal family members following the sexual abuse allegations. Curiously, although it seems at odds with some evidence by the father, he maintains that the child previously had a close relationship with the paternal uncle and seems to suggest that the loss of this relationship is in some way significant for the child.
The family consultant expressed the view that not having relationships with any of her paternal family may cause difficulties for the child in terms of her identity, particularly as she reaches primary school. However she also opined that the question of whether relationships with the paternal family or any paternal family member would benefit the child would involve assessment of the family member’s view of the sexual assault allegations.
The family consultant is of the view that such family members must demonstrate to the Court that they will not discuss the sexual abuse allegations with the child or seek to undermine the child’s relationship with the mother and would comply with court orders prohibiting the child’s exposure to other family members before the Court could consider orders that would foster the child developing such relationships with other family members. There is no evidence of these matters before the Court.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

There is little evidence concerning these matters though it may be assumed that each of the parents participated in long term decision making regarding the child prior to separation. The father diligently took steps to seek orders in relation to his time with the child following separation.
Since the sexual abuse allegations were made just over five years ago the father has spent no time with or communicated with the child and the mother clearly has made all the decisions regarding the child. It would appear that the mother has also assumed financial responsibility for the child. In the circumstances the mother’s actions in assuming all responsibility for the child and disallowing contact with the father were appropriate and protective especially given the father’s attitudes towards the allegations and alignment with the paternal uncle at the time. As the father has already agreed to orders that the mother have sole parental responsibility for the child and the dispute is limited to the question of the child’s time with the father, these are not weighty considerations.

Likely effect of change in the child’s circumstances

The mother’s proposal will not bring about any change in the child’s circumstances. It is unlikely that the child will experience any immediate sense of loss from the ongoing separation from her father, given that her relationship with him is so attenuated and her disinclination to have contact with him.
The father’s proposal for time with the child is modest and does not involve the child spending extended or overnight time with him. However, in circumstances where the family consultant’s recommendation is that any reintroduction of the child to her father must be in a therapeutic setting (which is not part of the father’s proposal) and the increase from a couple of hours to a whole day is proposed to take place relatively quickly, it is in my view likely that the child will struggle emotionally with the change in circumstances proposed by the father.

Capacity of each parent and any other person to provide for the child’s needs

Although the father had raised matters in relation to the mother’s parental capacity when the proceedings commenced, any such concerns have fallen away as orders have been made (as consented to by the parties) that the mother have sole parental responsibility for the child and that she live with her.
Significant concerns arise in relation to the father’s capacity to provide for the child’s needs, particularly her emotional needs. Ultimately, I consider this to be one of the most salient matters in this parenting dispute.
As previously discussed much of the focus about the risks of harm posed to the child in the father’s care relate to the risk that she may be sexually abused by the paternal uncle. However, the question of the harm to the child arising from the father’s incapacity to provide for her emotional needs looms large in the proceedings.
When interviewed on both occasions the father appeared to the family consultant as being focused on the mother’s behaviour and his belief that the mother was responsible for the allegations made by the child of sexual abuse, rather than concerning himself about the child’s welfare. Of particular concern were his statements when interviewed the second time for the updated Family Report that the mother should be made to “suffer” in the same way that he had suffered in not spending time with the child. It was his proposal at that time that the child move to live with him and spend no time with the mother for three years on the basis that he had been deprived of such time with the child following the abuse allegations. Of particular significance is that even when asked about how such an arrangement might be experienced by the child, the father continued to focus on achieving fairness for the suffering he had experienced rather than consider the child’s experience.
Of great concern are the comments made by the father to the family consultant that he planned to discuss the sexual abuse allegations with the child and question the child about whether they were true or whether the child had been pressured into making them by the mother. The father also expressed to the family consultant that he intended to explain to the child that the mother was responsible for him not spending time with the child and that she had tried to “damage” the father-child relationship. The family consultant was concerned that the father presented as unable to consider how the child may experience this information, and considered that if the father spoke to the child in the way he said he would, it would be “highly damaging” to the child’s emotional wellbeing and her relationship with the mother.
The father deposes in his affidavit filed 26 August 2019 that after having had the opportunity to read the Family Report he had gained a better understanding of the child’s feelings. The father then goes on to depose to the following:
I accept that;
c)I should not discuss the events involving my brother, even though I know in my heart that he did not do what was allaged (sic) for which he has been acquitted
d)I also should not discuss with [the child] that I blame her for the false allegations that were made
e)That my brother should not visit my home when [the child] is spending time with me unless [the child] makes such a request.
f)That [the child] may well need to obtain assistance from a psychologist or other health professional to assist her to re-establish our relationship (sic)
The family consultant was asked under cross examination about these more recent statements in the father’s affidavit. The family consultant stated that if the Court was satisfied that these statements reflected a true change in the father’s position this would be an improvement on what she was told during the interview, but she took it no further than that. The family consultant also indicated that she held some concerns relating to these statements specifically the suggestion that the possibility of spending time with the paternal uncle may occur following the request of the child. It was the family consultant’s view that the question of contact between the paternal uncle and child should be a matter for the Court alone.
As discussed earlier when considering the family consultant’s evidence as a whole she set out a number of matters which the Court could take into account as demonstrative of the father’s authentically changed position. In particular she said that the father would need to explain how he proposed to interact with the child without focusing on his perception of the harm done to him by the mother and addressing his desire to achieve revenge against the mother for the harm he perceived she had caused to his relationship with the child which included his desire to tell the child about what the mother had done. On the whole it was the family consultant’s position that the father would need to be able to demonstrate that he is able to put his feelings aside and focus solely on the child’s needs emotionally and psychologically and acknowledge the feelings she may hold independent of his views.
I am not satisfied that the father has authentically changed his position as to his future interaction with the child. He relies almost exclusively on his affidavit but the particular relevant paragraphs are qualified in such a way that it is clear that he does not believe the paternal uncle engaged in anything untoward and that such allegations made by the child are false. This is consistent with his statements to the family consultant and some parts of his oral evidence in relation to these matters. The question of the child’s contact with the paternal uncle has been discussed at length though I observe at this stage that the father’s position as deposed to in his trial affidavit demonstrates his poor insight when even considering the question of such contact that he considered it may be determined by a request from the child.

Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent

Both of the child’s parents have the same cultural and ethnic heritage and are of a particular religious faith.
The father appears to attach particular weight to the child having an appropriate opportunity to explore the faith in the mother’s care both in interviews with the family consultant and at the final hearing. The family consultant opined that it may be a matter for the Court as to whether the mother is providing the child with adequate information and exposure to the religious faith and her cultural heritage.
The mother gave evidence of religious practises within the home and that she and the child primarily speak in the language of the parents’ birthplace in her home. It seems beyond dispute that the child will receive the benefits of exposure and participation in her culture and traditions in the mother’s care. In any event, the father must be satisfied through his consent to the child living with the mother and the mother having sole parental responsibility for her that these matters are given appropriate attention in the mother’s care.

Attitude to the child and responsibilities of parenthood demonstrated by each parent

The family consultant had opined, particularly in the first Family Report about concerns that would arise in the event that the Court found she had had some involvement in maliciously causing the child to make the sexual abuse allegations. The father had also previously raised concerns about the mother’s actions in damaging his relationship with the child and had brought into question her responsibilities as a parent in this regard. However, these issues fell away in the course of the proceedings and I was not asked to make any findings along these lines.
Further, as is clear from these Reasons, I am satisfied that the paternal uncle does pose a risk of harm to the child, that the father has not acted responsibly to protect the child from such risks and that the mother (in ceasing the child’s contact with the father at a time he was actively supporting the paternal uncle) and then seeking to have court orders for this time suspended has acted protectively and responsibly.
Although I accept that the father authentically cares for and loves the child and wants a relationship with her, he has prioritised other matters including his relationship with the paternal uncle and his desire to exact revenge upon the mother over such a relationship.

Family violence

Although each of the parties raised matters in relation to family violence said to have been perpetrated by the other, this issue was ultimately not of any great significance in the proceedings. The circumstances surrounding the only relevant AVO are now historical and not weighty in determining the limited parameters of this dispute.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child

The orders sought by the father that he spend unsupervised time with the child may lead to the institution of further proceedings in relation to the child given the mother’s high level of anxiety in relation to the child’s time with the father which may lead to her non-compliance in making the child available. However, this is not a weighty matter in my view in these proceedings which will be determined by a consideration of the foregoing matters as discussed in relation to the child’s best interests.

Conclusion

As indicated orders have previously been made in relation to parental responsibility and that the child is to live with the mother. This dispute is only concerned with the father’s time, if any, with the child. As can be seen from the foregoing discussion I attach particular weight to the need to protect the child from harm from being subjected to sexual abuse and from the harms arising from the shortcomings in the father’s capacity to meet the child’s needs, especially her emotional needs. I also attach weight to the attitude towards the responsibilities of parenthood and the nature of the child’s relationships and the context in which the relationship between the child and her father has become so attenuated that it is now effectively non-existent.
I am also satisfied that there will be no positive benefit to be derived by the child by this Court attempting to craft orders to foster her relationship with the father as fostering such a relationship would not be in the child’s best interests.
For all of the foregoing reasons I make the order as set out at the forefront of this judgment.

I certify that the preceding one hundred and eighty one (181) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 30 November 2020.

Associate:

Date: 30 November 2020

[2020] FamCA 1006

30 November 2020

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Consent

Remedies

Procedural Fairness