Toset & Arthur
[2024] FedCFamC1F 385
•6 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Toset & Arthur [2024] FedCFamC1F 385
File number: CSC 60 of 2023 Judgment of: BRASCH J Date of judgment: 6 June 2024 Catchwords: FAMILY LAW – PARENTING – Whether the father has sexual abused the child and/or exposed her to the manufacture, supply and use of illicit substances – Whether the mother has coached the child to make those allegations – Where both parties allege the other poses an unacceptable risk of harm to the child – Where the mother and Independent Children’s Lawyer propose the child spend no time and have no communications with the father – Where the father seeks a change of residence, counselling and a short moratorium on the child’s time with the mother, or, that he have supervised time with the child and on either proposal, the child’s time culminate in a week about arrangement – Orders made for the child to spend no time and have no communication with the father. Legislation: Evidence Act1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 60CC(2A), 64B, 65AA, 65D
Cases cited: Bondelmonte & Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
G & C [2006] FamCA 994
Isles& Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
M v M (1988) 166 CLR 69; [1988] HCA 68
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Division: Division 1 First Instance Number of paragraphs: 123 Date of hearing: 2–5 April 2024 Place: Cairns, delivered in Sydney Counsel for the Applicant: Mr Taylor Solicitor for the Applicant: Millyard Family Lawyers Counsel for the Respondent: Mr Jacobs Solicitor for the Respondent: HCM Legal Counsel for the Independent Children's Lawyer: Mr Eylander Solicitor for the Independent Children's Lawyer: Collier Lawyers ORDERS
CSC 60 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TOSET
Applicant
AND: MS ARTHUR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
6 JUNE 2024
THE COURT ORDERS THAT:
Parental responsibility
1.The mother have sole parental responsibility for the child X born 2014 (“the child”) with respect to all major long-term decision making.
Living arrangements
2.The child shall live with the mother.
3.The child shall spend no time and have no communication with the father.
Information
4.The mother shall provide the father with a copy of the child’s end of year school reports each year, and if the mother obtains school photographs of the child, shall provide the father with at least one photo.
5.On a quarterly basis, the mother shall provide the father with a brief written summary about the child’s welfare.
6.Should the child require emergency medical treatment or is hospitalised the mother is to inform the father as soon as practically possible.
Restraints
7.The father is restrained and an injunction issues restraining the father from removing the child from the care of the mother or any other place, and from any third party or any educational facility, including extracurricular activities, where the child has been placed by the mother or causing other people to do so.
8.The father is restrained and an injunction issues restraining the father from contacting the child directly or indirectly, or causing other people to do so.
9.The mother is restrained and an injunction issues restraining the mother from denigrating or insulting the father to the child and/or in the presence or hearing of the child, and shall use her best efforts to prevent any other person denigrating or insulting the father to and/or in the presence or hearing of the child.
10.The mother is restrained and an injunction issues restraining the mother from discussing these court proceedings with the child, and/or in the presence or hearing of the child and shall use her best efforts to prevent any other person doing so, unless such discussion forms part of the child’s counselling, health care or as may be required by child protection or law enforcement authorities.
Counselling and authorities
11.The child shall continue counselling with a suitably qualified counsellor for such time as recommended by the counsellor and for that purpose the mother is granted leave of the Court to provide to the child’s counsellor:
(a)The Child Impact Report and Family Report authored by Ms B, Court Child Expert;
(b)A copy of these orders and reasons for Judgement; and
(c)The agreed transcripts of the child’s interviews with the Queensland Police Service dated January 2023 and March 2023.
12.The mother is granted leave of the Court to provide a copy of these Orders only to the child’s school.
Passport and travel
13.The mother is at liberty to obtain the child’s passport from the City N Registry of the Federal Circuit and Family Court of Australia, and the Registrar of the Court, City N Registry, is requested to release the child’s passport to the mother.
14.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), the mother is permitted and authorised by this Order to unilaterally apply for and obtain an Australian travel document (or a renewal of such a document) for the child, and the child is permitted to have an Australian travel document, without requiring the father’s consent to such a document issuing from the Australian Passport Office.
15.Pursuant to s 65Y of the Act, the mother is at liberty to travel outside of the Commonwealth of Australia with the child.
Independent Children’s Lawyer
16.The Independent Children’s Lawyer is to meet with the child and explain the outcome of the proceedings to her, and it being in the Independent Children’s Lawyer’s discretion how much detail of the reasons she gives the child, or not.
17.In the alternate to Order 16, the Independent Children’s Lawyer is at liberty to have the Family Report writer explain the outcome of the proceedings to the child, and it being in the Family Report writer’s discretion how much detail of the reasons she gives the child, or not.
18.Upon the completion of Order 16 or 17, the Independent Children’s Lawyer is discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth)
REASONS FOR JUDGMENT
BRASCH J:
X was born in 2014 (“the child”). Her parents started litigating about her in January 2017 just prior to her turning three years old. Obviously, she is now 10.
The parent’s first round of litigation concluded with the making of final consent orders on 7 November 2019 (“the final consent orders”). They provided for equal shared parental responsibility and ultimately landed on a week about regime. Thereafter, time progressed in a largely unremarkable way.
However, in January 2023, the mother held over X. She caused a letter to be sent to the father in January 2023 saying, “[X] made disclosures to our client and to the School Guidance Officer which has caused concern that she is at risk”. As matters transpired, the allegations concerned, in summary: the father sexually abusing the child by exposing his penis to her and forcing her to look at it; making her watch adult pornography and Child Exploitation Material; and, exposing her to the manufacture, use and supply of illicit substances.
X has not seen her father since that letter was sent. On 13 February 2023, interim consent orders were made for X to spend supervised time with the father. Subsequently, interim orders were made on 6 April 2023 for X to live with her mother and neither spend time nor communicate with her father.
The father says the mother has, essentially, brainwashed, rehearsed or otherwise caused the child to make numerous allegations. He has long held the view that the mother concocted the allegations and inculcated the child’s belief in them to advance a return to the United Kingdom with the child.
The father seeks orders to change the child’s residence to live with him and there be a one month moratorium on time between the child and mother. He then proposes the child spend supervised time with the mother for two months, then alternate weekends unsupervised. From 2 January 2025, he proposes a week about regime and sharing special occasions. He also proposes the father and child attend family therapy “to support parenting time/reunification therapy” or other agreed therapy for 36 months. He proposes to pay for the therapy, but in cross-examination had no idea what it might cost or how he might fund it.
In the alternate, he proposes the child live with the mother and spend 12 months of supervised time with him. But, in cross-examination he said he did not see the need for supervision. After the 12 months, he proposes the child spend different formulations of time on alternate weekends culminating in a week about arrangement. He also seeks orders for sharing special days.
On the last day of trial, the father made an oral application that if I was against him on either of his proposals for final orders, then I ought make his therapy orders and interim orders for supervised father-child time for six to 12 months, with liberty to relist the matter. This no doubt came as a response to something I raised with the Family Report writer the previous day, being that the father’s therapy orders were on a final basis and did not provide a process if things went poorly.
No one conducted their case or cross-examination with an exploration of interim orders.
The mother denies a desire to permanently return to the United Kingdom and said in cross‑examination she would agree to an injunction restraining her from doing so until the child attains 18 years of age. She firmly believes the child has been sexually abused by the father and has been exposed to the manufacture, supply and use of substances, which she infers to be illicit substances. She denies brainwashing, rehearsing or otherwise causing the child to make numerous allegations of the kind already summarised.
Accordingly, the mother proposes the child spend no time with the father and she have sole parental responsibility. She proposes a restraint on the father removing the child from her care, or third party or educational facility entrusted with the care of the child. She was strenuously opposed to any idea of interim orders.
The ICL supports the mother’s no time position, but helpfully provided a framework of orders if I were minded to make interim therapy orders – that was not the ICL’s position though.
Background
The applicant father, Mr Toset (“the father”), was born in 1978.
The respondent mother, Ms Arthur (“the mother”), was born in 1985 in the United Kingdom. The mother came to Australia on a holiday in 2008. After a short return to the United Kingdom the mother permanently moved to Australia. The mother has since become an Australian Citizen.
The parties commenced sharing a home as friends in 2010 and the relationship began shortly thereafter. X was born in 2014. The parties separated when the child was less than one year old in October 2014.
During 2015 to 2016, the child spent time with father in blocks of three to four days until the mother withheld the child in late 2016. She alleged the father exposed the child to drug use and drug paraphernalia and thought his parenting was impaired due to mental health challenges. She also made family violence allegations and applied for a protection order. A temporary protection order was made in the mother’s favour with the child named in the order.
In January 2017 the father commenced proceedings. Thereafter, the mother withdrew her application for final family violence orders. On 7 November 2019, final consent orders were made, concluding in a week about regime.
Between the making of the final consent orders in November 2019 and January 2023, the child spent time with her mother and father pursuant to the final consent orders.
Material
The parties relied on the material set out in their Case Outlines, although the mother did not read a number of paragraphs in her evidence in chief; see Exhibit 1. Thirty-one Exhibits came into evidence. Both parents were cross-examined.
The applicant father’s witnesses, Ms C and Mr D, were not required for cross-examination. Both witnesses along with his other witnesses, Mr E and Ms F, were predictably supportive of the father and between them said the father could not have driven past the school as alleged by the child on two occasions, nor did he consume alcohol or leave the child unattended at festivals.
The father also relied on an affidavit of a social worker, Ms G. It is unhelpful and simply confirms “I am able to provide child consultancy services as requested”. I do not know what that means, even when reading the solicitor’s letter asking her if she would conduct therapy. For example, I do not know if the therapy plan would see: the child to be disabused of her beliefs, or, the father required to support the child’s beliefs; what sort of therapy approaches might be employed; will the therapy be one-on-one therapy and/or joint sessions; will the child be brought into contact with the father, or not; and, what happens if it all fails and by whose measure? I accept many of those decisions would be within the clinician’s expert decision making at the time, but all I have is the barest affirmation that she is able to “provide child consultancy services as requested”.
I also do not know why the father proposed 36 months of therapy when Ms G was requested “the child consultancy process extend for 18 months”. Like the father, I also have no idea what the therapy might cost and whether it is even a realistic, financial option.
Unsurprisingly, the social worker was not required for cross-examination.
The mother’s witness, Ms H was not required for cross-examination. She said, expectedly, that the mother was an attentive and caring mother and spoke of her friendship with the mother and the child. The mother’s witness Ms J was cross-examined; she was not terribly helpful in her recollection of events surrounding the mother calling her in January 2023 asking what to do about the child’s allegations.
The ICL relied upon the Child Impact Report and Family Report of Ms B. She was cross‑examined and maintained her recommendation that the child live with the mother and spend no time with the father.
The ICL also relied upon Dr K, psychiatrist, who conducted a risk assessment on the father. He was not required for cross-examination. Unsurprisingly, he said it was not for him to determine whether the father had done what was alleged. In an equally obvious conclusion, he opined that if I found the father had done as alleged, then he posed an unacceptable risk to the child. Conversely, if I concluded the father had not done as alleged, then unacceptable risk did not arise, at least from the allegations he was asked about. I am not critical of Dr K’s conclusions – he did what was asked and did not, appropriately, swerve outside the lanes of expertise into fact finding.
At an earlier mention, the parties agreed to not revisit matters that occurred, or allegations made prior to the 2019 final consent orders. That said, the father maintained his view that in 2016 the mother received legal advice to the effect that the mother should not try to relocate with the child to the United Kingdom until X was eight or nine years of age. He points out the child was nine when the mother held her over and the allegations began.
Legal principles
Orders with respect to children are made under Pt VII of the Family Law Act 1975 (Cth) (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
In Masson v Parsons (2019) 266 CLR 554, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted at [8] that the focus of the objects was on “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”.
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA). The Act sets out the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
In Tibb & Sheean (2018) 58 Fam LR 351 at [74]–[78], the Full Court made clear that while the Court must consider each of the primary and additional considerations in s 60CC, express discussion is not necessary. Instead, the relevant considerations are determined by the way in which the parties presented their cases.
Section 60CC(2) contains two primary considerations – in short, the benefit to the child of having a meaningful relationship with both parents, and, the need to protect the child from the harm of being subjected to or exposed to abuse, neglect or family violence. In balancing these considerations, s 60CC(2A) requires the Court give greater weight to s 60CC(2)(b), being protection from harm.
In McCall & Clark (2009) FLC 93-405 (“McCall”) at [117], the Full Court referred to the observations of Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”. In other words, the focus is whether the child having a meaningful relationship with a particular parent will be of advantage to the child going into the future.
Meaningful relationship
The child has not spent time with the father since January 2023, being almost 18 months.
The father said that apart from the holding over in 2016, the child’s relationship with him from separation in 2014 to January 2023 was meaningful. From at least 2017 to the end of 2022, the mother accepted that to be so too.
The father proposes orders which he says will allow the child to resume a meaningful relationship with him. That is notwithstanding, on one hand, the allegations of vile conduct made about the father by the mother and child, and, on the other hand, his counter-allegations that the child is a repeated and accomplished liar and has been brainwashed by the mother to say horrible things about him and to repeat those allegations to the child’s school guidance officer, the child’s psychologist and the police.
When asked about rebuilding the relationship going forward in the context of the allegations made by the child, the father said he would tell X the importance of being honest. He proposes a one month moratorium on physical time between the mother and child, some supervised time for mother and child, and, family therapy to assist with reunification. On his primary proposal, the child will move to week about in just over six months’ time. The father’s alternate proposal sees the child having supervised time with him and ultimately concluding in a week about arrangement.
It is not clear to me how the father actually proposes to re-kindle the child having a meaningful relationship with him, given all the child now says about him. It is also not clear how he proposes to manage the immediate change of residence he sought and I have already set out the deficiencies in the affidavit provided by his proposed social worker (under the heading “Material”). Further, the father has not taken up with any experts on how he may manage the vast chasm between the child’s strident views and serious allegations she makes against him (other than to say “be honest”), and his view that the child is an accomplished and repeated liar. It also gives me little practical comfort that the father did not know the cost of his proposed re-unification therapy or how he would fund it.
Nevertheless, with both of the father’s proposals ending in week about, he must contend that either proposal promotes the child’s meaningful relationship with both parents – even though he says the mother is an unacceptable risk of harm to the child through her brainwashing of the child.
Conversely, the mother proposes the child have no time with the father and from that, I infer she does not consider an ongoing relationship to be healthy or advantageous for the child and relies upon what the child has said to her, the police, the school guidance officer and the child’s psychologist in that regard. The ICL supports the mother’s position.
Protection from harm
Each parent says the other poses an unacceptable risk of harm to the child. The ICL supports the mother’s position. In submissions, the parties did not demur from the following umbrella of four themes (“the four themes”) for the asserted risks:
(a)Whether or not the mother has caused the child to say all the child has alleged – or as was said in the father’s Minute of Findings at Exhibit 31: “that the child has suffered/is suffering emotional harm by being exposed to the mother’s overwhelmingly negative view of the father ...” or in the alternate, “there is an unacceptable risk that the child will suffer emotional harm by being exposed to the mother’s overwhelmingly negative view of the father”;
(b)Whether or not the father came into the child’s bedroom on at least three mornings, waved his penis in front of her, forced her to look at it, and once tried to force her to touch it, along with other naked presentations by the father in the child’s presence;
(c)Whether or not the father exposed or otherwise did not quarantine the child from seeing Child Exploitation Material and/or adult pornography; and
(d)Whether or not the child was exposed to the father manufacturing and/or using and/or supplying a substance, said by the mother to be illicit drugs.
The particulars within these four themes (set out later) are matters where s 140 of the Evidence Act1995 (Cth) (“the Evidence Act”) guides my fact finding. Then, a separate future looking and predictive consideration - not governed by findings on the balance of probabilities - is whether the mother and/or father pose an unacceptable risk of harm to the child. Or as neatly said in Isles& Nelissen (2022) FLC 94-092 (“Isles”) at [47]:
47....The civil standard of proof is reserved for the proof of facts, the positive or negative findings in relation to which could well feed into any alternate finding about the existence of an unacceptable risk of harm.
At [51] the Isles Full Court adopted what Austin J said in Fitzwater & Fitzwater (2019) 60 Fam LR 212 (“Fitzwater”) at [139] including this useful elucidation of the concept of unacceptable risk:
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
It is now useful to set out the chronology of allegations and surrounding context. I also do so to consider the father’s case that the child’s allegations “ramped up” over time and the mother’s case that the child made the various allegations in an age-appropriate way consistent with a child remembering different traumas at different times.
April 2020
The mother attended her doctor and said of the child:Since end of January – “really violent”
Punching, kicking, biting, throwing.
If doesn’t get own way or mum can’t give her what she wants
At least once per day, sometimes 2-3 times
Usually is sent to room or she is good at taking herself away
…
Not really able to verbalise why it's happening
…
Really out of character, has never been physically violent before
…
Not scared or hesistant [sic] to visit dad
(Exhibit 12, p.1)The start of 2022
In the child’s second s 93A interview (Exhibits 6 and 26) she said, in part, “[i]t first started at the start of 2022” and then described the father “forcing” her to look at his penis. She said it “made me feel disgusted, it was disgusting”.December 2022
On unspecified dates, the mother deposed the child told her (Mother’s affidavit filed 5 March 2024, paragraphs 74–77):· Random people turn up at the father’s house and she is told to go to her room
· She sees people give the father money in exchange for “fluffy stuff” in a small plastic bag
· His cigarettes are longer than usual cigarettes and smell “funny”
· When she was six she saw the father make a cigarette and sprinkle leafy looking stuff into it. He smoked half at one stage and the other half later in the day
6 December 2022
X completed some school forms and was recorded as saying:I feel so mad inside when Dad yells at me (Kombucha brew)
I’d really like it if my Dad stopped yelling at me
Sometimes I get scared when thunder storms come
Dad is mean
I am worried that my dad will kill my mum
Dad makes feel like I’ve done everything wrong
Scared dad will come to our house + steal me
Dad will snatch from school
Dad has said he will take me + not bring back
Because dad has called me fat so many times, that’s what my brain says too
Dad killing me + my mum
(Exhibit 9)December 2022 – January 2023
This was the child’s week with the father. The mother said the child told her the following although it is not clear when she told the mother nor when the child said she saw this (Mother’s affidavit filed 5 March 2024, paragraphs 78–79):· She saw the father in the shed smoking something from a jar
· It looked like a jam jar with a screw lid and he heated the jar with a lighter
· He has brown butter in the fridge which she cannot touch
Date unknown
The mother said the child told her the father has a knife and another item in his car; if the police drive by the father slices lemon or lime and sucks on it (Mother’s affidavit filed 5 March 2024, paragraph 80).January 2023
The mother made an appointment for the child to see the school Guidance Officer for the following week (Exhibits 14 and 27). In cross-examination, the mother said this was for the school to check in with the child about bullying she had experienced in the previous school year.January 2023
The Guidance Officer called the mother; the child was in the car. Whilst saying (entry above) the appointment was about bullying, the mother told the Guidance Officer, in the child’s hearing, “[X] has some things to share about her time with her father that is upsetting her” (Exhibit 27).January 2023
The mother said the child told her (Mother’s affidavit filed 5 March 2024, paragraphs 81–83):· The father wakes her up every morning walking into her room naked and sometimes gets into bed with her
· Other times he wiggles his hips in front of her face. Sometimes he straddles her and dangles his private parts in her face saying, “look here”, “look up” and forces her head to look
The mother called Ms J, a Family Support Worker from when X was born. Ms J told the mother to call child protection. In cross-examination, Ms J could not recall when the call was received nor what she told the mother.
The mother said Ms J told her to report the allegations to child protection. Instead, the mother went to the school where she already had an appointment booked for the child (booked early 2023, Exhibit 14).January 2023
The child told things to the school Guidance Officer, but there are no direct records of this in evidence before me. Exhibit 27 is a telephone record of the school calling the mother after the Guidance Officer saw X, but the actual notes of the session were not tendered.January 2023
The first s 93A interview with the child took place (Exhibits 5 and 25). In summary, X complained the father:· Comes “into my room and wakes me up around 7”, “he sort of forces me to see his private parts” and “he lays down on my bed ... and I um get really scared”
· Smokes “weird smelly stuff”, “it’s like weird flowers, garlic, ginger, flower, and he has a butter machine that he puts all the flowers in the magical butter machine” and “he just puts like everything in the machine and mixes it all up and it turns into powder, stinky powder. And he puts that always in his cigarettes and stuff”
· “Is always naked”, “sleeps naked”
· “Always is in the shed heating, heating up this glass jar with all the mouldy stuff in it with a lighter, and then he uses a lighter to um light the cigarette and pours that mouldy stuff onto the cigarette too”
· Has “random” people visiting and paying him “$300 to $100” and gives the “thing” he mixes up to them
· Yells at her about chores and the like. She has fewer or no chores at her mother’s
· Slept in her bed “twice naked” but she never sleeps in his because it “stinks”
· Says she is “horrible”, “not worth it”, “Dad just makes me feel like, that I’m, like, mean child that doesn’t deserve to be in this world” and the like
· “Always leaves me home alone”
· “Used to be nice, normal person”
X said she did not feel safe at her father’s place. She described “weird tablets” in the father’s bedside draw.
The interview was conducted by two male police officers. The police did not charge the father.
An ICARE was completed by the police (Exhibit 7) concluding no offences were detected, but drug use was likely occurring in the father’s house. The Magellan Response is Exhibit 4 and summarised the above. The mother’s actions of withholding the child were seen as mitigating the risk of harm. Thus, the matter was not recorded as a notification.January 2023
The mother’s solicitors wrote to the father advising she was withholding the child (Annexure MA2 to the mother’s affidavit filed 5 March 2024, p.39).30 January 2023
The father commenced these proceedings.31 January 2023
The mother filed a Response.February 2023
Police attended the mother’s home at her request; she said she was being stalked by the father, she and X “feel unsafe”, and “she no longer felt it safe for her daughter to go to her father’s place as agreed in the Family Court order”.
I pause to observe the mother had already determined to stop time.
The record goes on, “[Ms Arthur] was getting frustrated because she felt the police were doing nothing. …”. The police said there could be “multiple reasons” why the father was travelling on a specific main road “that runs adjacent to the street that she happens to live in. ... No criminal offence was determined with the allegation of stalking” (Exhibit 13).6 February 2023
Magellan Response (Exhibit 4) - Child concern report recorded 6 February 2023:· The father smoked substances in front of X
· He had places to take X so she would never be found
· The father left the child alone at festivals and came back intoxicated
· He would wake X up naked and would either get into bed with her or gyrate in front of her face or pin her to the bed and dangle his private parts in her face
The matter was not listed as a notification as the mother’s withholding was deemed protective.
February 2023
The child attended the school Guidance Officer (Exhibit 15). The form asks about feelings the child has identified or the Guidance Officer has noticed. There are ticks beside: worried, stressed, poor sleep, distress, tearfulness, lack of concentration, changes in mood, helplessness. It is not clear what was self-reporting by the child, or the Guidance Officer’s observations.
The Guidance Officer summarised X’s concerns as including that she had “some anxiety” with the “50/50 custody” and has difficulty with and is sad about the “very different” parenting styles. Sleep disturbances were described.February 2023
The child reported to the school that the father was in a car at the back of the school:· In cross-examination the mother agreed X apparently told her teacher she had seen her father at school before the first bell, had seen his car and had seen him in the school grounds
· In cross-examination the mother accepted that she did not report this to the police
· In cross-examination the mother accepted the child may have been mistaken
· See also the unchallenged evidence of Mr D (for the father) that he was working with the father from 6.00 am until 4.00 pm and he was within five metres of the father all day
20 February 2023
The child was interviewed for the Child Impact Report (Report released 13 March 2023; Exhibit 2). X told the Child Impact Report writer:· “About feeling unsafe and scared when she spends time with her father particularly when he makes her look at his genitals when he is naked; when he enters her room naked and lays on her bed in the morning; and when his genitals have touched her on her leg and stomach area. She claims the inappropriate sexual behaviours began when she was 8 years old and said she ‘feels yuck’”
· “She does not want to see her father, and if she has to, she wants it to be supervised. She said her tummy tells her ‘I’m not safe here’ and stated ‘my belly rumbles’ when she spends time with her father”
· “[X] also talked about being exposed to items at her father’s home that appear to be drugs and drug paraphernalia, and people attending the house and exchanging money for ‘bags of white stuff’ and ‘green leafy stuff’
· The father calls her “fat” and “the worst child ever”
· The father was intoxicated when he took her to a festival and she felt unsafe
· "[X] claimed her father has pushed her against the wall and threatened to hurt her while holding a [weapon]; made threats to kill her mother"
· "She reported feeling scared two years ago and how she always felt as though "something was off" when she spent time with her father but has never felt as unsafe as she does now. She said she has only recently told her mother of her concerns"
· "She believes her father attended the school in the morning the week before her interview, and said she hid from him so he did not see her"
The mother told the Child Impact Report writer “[X] has been exposed to drug use, drug dealing, and alleges the father has been sexually inappropriate towards the child”.
The circumscribed nature of a Child Impact Report was noted in the report and by Ms B in cross‑examination.21 February 2023
Magellan Response (Exhibit 4) - Child concern report recorded 21 February 2023:· X felt unsafe around the father and was fearful at the thought of seeing him
· She did not want to spend time with him
· The father had threatened X with a weapon and made threats that he would kill Ms Arthur if she took X away from him
· The father slept naked in his bed and in the morning would come into X’s room naked and made her look at his penis by grabbing her head and telling her to look up
· The father and his friends were watching X and taking secret pictures of her
· The father forced the child to eat raw chicken
· The father went to X’s school despite not being allowed to contact her
The report did not result in a notification as court orders were in place.
February 2023
(The mother accepted this was mistakenly dated 15 February 2023 in her affidavit)
The mother accepted in cross-examination that X told her she and two friends saw the father in the passenger seat of a car driven by a woman, and he waived a weapon and made a motion with the weapon. The mother went to the police.
In cross-examination the mother accepted:· The child was mistaken but did not accept the child could have made it up
· The father had never previously threatened X
· See also the unchallenged evidence of Ms C (for the father) that she did not drive to the child’s school with the father as a passenger in her car and had not loaned the father her car
March 2023
The mother told police the child told her that “for the last 3-4 years, [the father] had been jumping in bed with her whilst he was naked. He used his […] phone […] to play videos of child pornography”. The mother described some details the child told her about the pornography, which do not need to be included in these reasons but are set out in Exhibit 7, p.7.March 2023
Magellan Response (Exhibit 4) - Child concern report recorded 7 March 2023 that the father had shown X pornographic material and was naked in the bed with her when doing so.
A notification was not recorded as the police were involved, the mother had withheld the child and was meeting X’s needs.9 March 2023
In the second s 93A interview (Exhibits 6 and 26), the child explained how she came to tell her mother some of the critical allegations in this matter – relevantly, one of the father’s arguments in this case is X made the allegations against him to try and get more time with the mother. X said she asked her mother:‘why can’t I be with you for two weeks and Dad for 1 week’ and I started crying about that and she was like ‘are you ok, is Dad doing something to you’ and I was like ‘yes’ and um, that’s when I started talking about him and then Mum reported it to the Police about, like, six weeks after I always would like talk about it and I, and then it got too serious one day and I, it got to the point where I was just like grabbing on to the bed not wanting to go, and she would like she was like, yelling, not yelling at me but like saying ‘come on, you need to go there’ and I was screaming at her saying ‘no, I’m not going to Dads, he’s a horrible person’ and she was like ‘ok, calm down its fine’. So on Friday, the week after, um, I um, Mum’ got enough time to talk to the police about it and court about it and then um, she, she is, um, she works at […] and um, she, has um, she got the um, she talked to [someone at work] cause she’s a lawyer and [that person] um, said, said sent, er um, a message, an email to Dad saying um, ‘you are not all um, you are not to attend this child anymore because ...’
X said her mother told her about the email.
In addition, X described Child Exploitation Material and adult pornography with alarming and graphic detail. I will not set out the particulars in these Reasons save to say the parties heard what the child said when the s 93A interview was played in court. The specifics are also set out in Exhibit 26 being the agreed transcript.
The child described having access to the father’s phone.
In addition, the child also said that the father:· Has white powder and brown that “smells” and “stinks”. He has “a magic butter machine”. “I looked at it and there was like garlic powder, ginger powder, and stuff but like there was this one word that was just so long […] ... he would put that in with the coconut oil, the white stuff, and um, one and the pill, and then blend it up and it would all like he would leave it overnight and then he would put it in the fridge and then it would look like mouldy hair sort of thing”
· Told her “how babies are made” in response to her question, but in a way she thought was “eww, gross” and that “I said ‘you could have told me a better way, like, a more appropriate way’”. X said the father told her “’Mum’s really good at having sex’ and stuff and I was like ‘eww’”
· Has “random” people coming over
· “Had a lighter once, once he had a lighter and he was um, he had the lighter under a jar with like, the mouldy stuff in it and he was tipping it in his mouth, he was pouring the um, the mouldy stuff into his mouth”
· Was naked when they shared a swag camping and at festivals and would have “his bits like that close to me”. “He was like shuffling up to me so I shuffled away from him and every time I shuffled away from him, he shuffled closer so then I just stayed and did not move until I fell asleep”. X later added, “his bits would get really close to my leg area and stuff, around my thigh area, so…”
· The child described the father intoxicated at the last festival they attended and he brought “a random girl” back to their camp. I observe when X said “girl”, she must mean an adult female because she added “I woke up because of another big bang, and dad said “don’t go, don’t go, honey.” I was like who is this person. And she was like “I have to go, I have to see my child.” And um, he’s like “okay”.”
· “Always is in my room when I get dressed.” ... “he is always standing there watching me get dressed and I change my nickers and stuff, and he will like be on his phone like that, just looking, pressing continuous buttons, and putting it in a file or something like that”
· “Calls me fat all the time” and other derogatory taunts likes “you’re the baddest kid”
· “Mum said the first time you ever saw your grandparents, um, we got, dad um called the airport and um they stopped the plane for us and like made us wait for like half an hour and I was only like 1 or 2 and he made us wait because he called the airport in every stop but [the United Kingdom]”
The child described three particulars with respect to the father waving his penis at the child and forcing her to look. Below is in the order given by the child in the s 93A interview and a representative sample of all she said:
· The Friday the last time she saw her father (prior to the mother stopping time in late January 2023): “he sleeps naked and Dad um, Dad um, ss, when he came, he always comes into my room or like almost like every morning and he will force me to see his bits so like, he’ll stand on me, he’ll like, stand over me or something and I, I say like ‘get off me’ and he’ll like, push my head so um, I also told Mum that and she was like eww””. “And he was waving his doodle around first and he would like, touch it and stuff and then he would like, get onto my bed and like, he would kneel over my, my head and he would like, do the same as, um, he was (inaudible [34:23])”. “Um, so he moves his hips and like, he like, for, he picks up my head and like, moves it to where his bits are. ... He says like ‘[X], [X], look here, look here’. ... And like, he’s like, he points at it and stuff.” ... “He like, picks it up like, like, he does that [gestures to face] like, and he just goes [grunts and pushes face] and like, really forcefully, and he just goes ‘mmm’, cause I try and keep my head looking away, and he’ll grab it so tight that it gives me a headache. ... And um, I do that and I was like ‘eww’ and I look away again and I just do that [covers eyes] and then he’s he holds my hands and like, he just goes ‘hmm’ and pins me down. ... Like I’m being tortured or whatever its called”.
· “It first started at the start of 2022. And I thought it was just something temporary until um, 2023. ... it might not be exactly the start but it was around like March, um, March, January and March and February, around then. ... I was falling asleep and he woke me up like, he smacked me in the face like [gestures] really hard, and he shook me and I woke up and he um, had his he was butt naked and um, he was just, um, holding his doodle like, just, like, pushing me to see it and like forcing me to see his um, doodle, and I was like ‘I don’t wanna see it’ . ... It made me feel disgusted, it was disgusting. ... He just said ‘wake up [X], wake up’ and he swore, he said the F bomb. He said ‘wake up [X] F bomb, bomb’. (Question: And how was he on your bed?) Kneeling down on his 2 knees. ... Like, just like, shaking me, forcing me to see his bits. ... And like, I thought that something was wrong, I thought my dog died, I was like, ‘whats the matter’. ... Um, he kneeled over my face and like, grabbed my head and made me look at his bits. ... Um, he was just waving it in my face and like, like grabbing it and um, like just just pointing it his doodle at me. (Child asked to portray movement). He was doing like, that [gestures] and then he grabbed it and like, just like, that and stuff.
· “Around Christmas time” 2022, “Um, he, when he was dangling it, he grabbed my hand and I, um he was like just getting my hand near his doodle and me trying to touch it, um, he was forcing me to touch his doodle and I said ‘no no no’ and I um, I bit his arm and pulled my hand back”. ... “around Christmas time because that’s when I started telling Mum and she was like ‘ok’ and um, it was like, I said, um, like Mum, I said to Mum, like, ‘Dads doing um like, dangling his bits in front of me’ and I said like ‘I don’t like it can you just get me away from him’ for a couple of days she was like ‘no, sorry’ and I was like ‘mmm come on’ that’s when I started crying and like, yelling, I just screamed at her, Mum because I wanted, I didn’t want to see Dad anymore.” ... “Dad just came in, running into my room like ‘Oh [X] you’re awake, ooooo’ and he just started dangling, he started dangling his doodle in front of me so I just pushed him away and he was like, he got back up immediately and started just dangling it over my face and he grabbed my hand and I almost touched it, so, but I bit his arm and he let go of my hand and I just, yeah. (Question: So where on your, how did he grab your hand.) Um, by the wrist ... He was like really , like that [gestures] on my wrist. (Question about where he tried to move her hand). Um, his doodle. ... Like maybe, 10 met, 10 centimetres away. (Question: about biting). Um yeah, I bit his arm like, there [gestures] (Question: follow up leaving a mark). Yeah. (Question what happened then). Um, he let go of my wrist and um, I turned around and um, got, I got out of my room. ... He said ‘[X] come back here’ I ran outside and locked myself in the car. (Question if he said anything to her when trying to het [X] to touch his penis). He said ‘[X X X X]’ and grabbed my wrist and I was like, I said ‘why are you grabbing my wrist’ and he said ‘oh don’t you wanna touch my penis’ and I was like ‘no’ and so I bit him and ran into, ran out of my room and went into the car and locked myself in the car. (Question: if that is what he said). That’s what he said.
The child said the above actions happened “every morning” but particularised three instances.
The child also relayed that the father was not at hospital when she (the child) was born.
This interview was conducted by two different officers, one of whom was female. No charges were brought against the father arising from this (or the earlier) interview.13 March 2023
The Child Impact Report was released.
The mother met with the school Guidance Officer (Exhibit 16). The school shared their safety plan for the child with the mother. The mother was recorded as saying:[Ms Arthur] shared that last week she subpoened [sic] QPS and Child Safety records. QPS in 2005 [Mr Toset] and a housemate were suspected of attempting to kidnap two primary aged children. Not enough evidence to proceed.
In cross-examination the mother accepted:
· The attempted kidnapping constituted no more than “a flatmate of [Mr Toset’s], while driving his car, had spoken to some school children”
· She told the school because she wanted the school to form the view the father was a risk to children
March 2023
Police executed a search warrant on the father’s house and found a note he made from subpoenaed documents in these proceedings and concluded, “[t]herefore, he was aware of the allegations and that police would be attending” (Exhibit 7, p.8).
I accept the father’s submissions that the relevant note (Exhibit 11) contains no reference to Child Exploitation Material. However, it does refer to serious allegations of sexual and emotional abuse, along with drug use, from which the father could well have expected the police to attend his residence. The father denied deleting Child Exploitation Material from his mobile phone.
Police took his electronic devices. After inspection on the following day, the police found no Child Exploitation Material and no albums/folders of the kind the child mentioned but concluded:There was significant amounts of adult pornography, some of which matches the descriptions provided by the victim child. However, no folders matching titles that she tried to describe and no children depicted in the images.
(Exhibit 7, p.8)March 2023
The mother told the school that the father was tipped off about the police search warrant and was being investigated for having child pornography, drugs and mistreatment of the child (Exhibit 7, p.13)· In cross-examination, the mother said “[…]” from the police told her the father had been tipped off about the search warrant as they found a message from an unidentified number on the phone – there is no evidence to support this
· The mother accepted in cross-examination that she exaggerated the tip off idea to the school
March 2023
The child attended upon Ms L, school psychologist, (Exhibit 18) and said she was 10/10 angry over the weekend and reported her mood as “scared and calm”.
The child was referred to M Family Services (Exhibit 24, p.1). The referral said:…child safety involvement and Police involvement due to alleged drug charges and child pornography. … [Ms Arthur] advised her and [X] are not safe from [X’s] father. [X’s] father has been spotted at the school multiple times. Police have advised to have a safety plan and to make herself scarce. … [X] and [Ms Arthur] are both currently very vulnerable due to history of domestic violence and sexual trauma perpetrated by [X’s] father.
March 2023
The mother attended her doctor and advised (Exhibit 20, p.1): “Emerged that father has been abusing [X]”; “Police and CPS involved”; “[X] has appt with [M Family Services] next week – SAS”; “Plans to go home if gets full custody”.March 2023
The child told the school psychologist (Exhibit 19) she would be 10/10 scared “when I see dad” and “if he were to grab me”. Said she wanted to go to the UK and was stressed she cannot. X talked about “dad killing me and mum”. She said she was scared she may have to see the father on the upcoming school holidays.March 2023
The mother completed an Intake Form for the child to attend M Family Services. She recorded:CSA Information
- [X] disclosed […] of CSA [child sexual abuse] by NF [natural father] on 27/01/2023
- CSA includes: pinning [X] in her bed when dad was naked, making [X] touch his penis etc – during the time [X] was in Dad’s care
- NM [natural mother] suspects the CSA had started a long time ago, suspicion raised when Dad asked [X’s] hymen to be examined when she was 2 yo, at the start of covid in 2020 [X] presented with emotional/behavioural difficulties that decreased towards the end of covid lockdown.
- During ICARE interview [X] indicated the CSA since January 2022.
Behavioural / Emotional concerns:
- Since 6 weeks ago [X] has been aggressive towards mum, yelling, screaming, kicking, hitting. Punching (mum sprained her wrist)
- Very clingy…
- Nightmares every night since beginning of February (disclosure time) ...
- Decline in academic performance from A and B to C and D-…
- …threatening suicide every few days
- Very scared (NF was sighted at school 2x with one of these he made gestures swinging a [weapon] 4 weeks ago)… ...
- Attempts to smash TV
- Friendship diminished…
- Inconsolable crying
- Coincided with frustration related to [injury]…
(Exhibit 21, p.3)
April 2023
The mother attended her doctor and advised (Exhibit 20 p.2): “Ex partner on no contact order until [late 2023]”; “[Ms Arthur] [the mother] considering going back to UK”.June 2023
The child and counsellor discussed the child “hearing voices” (Exhibit 8, p. 1) and:[X] [the child] stated her hopes were, to go to the UK, never see her NF again and for NF to be in Jail
Asked what it would mean for NF to be in jail, stated would mean he can never get to her and he gets what he deserves to be in a horrible place
[X] stateed [sic] she has nightmares that NF is trying to get her
...
NM stated [X] has disclosed that her NF used to hit her in the face, put her under the hose if was doing the wrong thing or crying
(Exhibit 8, p.2)July 2023
X told the M Family Services counsellor that:She needed to tell someone about the things that NF has done
... NF would come into her bedroom in the mornings when she was staying 50/50 with NF and NM. She stated that NF would touch her with his mouth and hands but not his penis. She stated that this happened often over this period of time
Counsellor notifies child safety (Exhibit 23).4-5 September 2023
The child and parents were interviewed for the Family Report. Report released 6 November 2023; Exhibit 3. X told the Report writer:· Her father is mean to her and she does not feel safe with him
· She cried when he called her fat so then the father smacked her hard “on the bottom, thigh, or her back all the time”
· The father made tablets out of “white stuff”. He told her it was milk powder but her father “can't have dairy […]”
The mother said that since the Child Impact Report, X had told her:
· “He had a photo of [Ms Arthur] and he allegedly repeatedly stabbed [Ms Arthur’s] throat on the photo with a knife and said, “‘If I ever see your Mum in the street, this is what I’ll do to her’”
· “The father carries a knife in his car and ‘He wouldn’t think twice about stabbing you’” and abducting her (the child)
· “More and more” and told her “He’s also done this”
· The father “has ‘done worse things’ to her than she has said”
· Random people turn up and she (X) sees them share “long cigarettes” and exchange money for “fluffy stuff in a plastic bag”. X told the mother she had seen the father smoke something from a jam jar
· He left her alone when at a music festival and came back stumbling and slurring his words
I have not included the report writer’s recitation of documents produced under subpoena but referred to those documents in this chronology where in evidence before me.
September 2023
This is recorded in the M Family Services Client Referral form (Exhibit 24, p.2):[X] shared that she also heard a voice whisper her name in a menacing tone one night ago and felt really scared.
October 2023
X attended the M Family Services counsellor and said she was being bullied at school and called fat. That made her think of her father calling her fat (Exhibit 22).November 2023
X told her M Family Services counsellor (Exhibit 28): she has not heard voices “since she last shared”. X said she did not want to see father again “unless he is not going to be mean to her”. X was described as uncomfortable in her body language. She mentioned her father would encourage his friend Mr E to smack her as he (the father) found it amusing whereas she found it humiliating.
Mr E denied this in cross-examination.3 November 2023
Family Report released (Exhibit 3).November 2023
The child relevantly told her counsellor (Exhibit 7, p.15):· NF did not feed X regularly and X either had to make food for herself, or go hungry
· NF caused pain to X’s private parts (X put her hands around her crotch when referring to her private parts)
· X would lock herself in the shower when she was hurting and shower to feel better
· X also recalled asking to go on bike rides when spending time at her NF’s place to get out of the house and would ride fast home to create space between herself and her NF
November 2023
The child told her M Family Services counsellor (Exhibit 28, p.1):· X shared her concerns about seeing dad again through her soft toy
· Concerns were around her being alone and hurt for the week X anticipates being at dads
The ICL’s Outline had other entries on other dates, but those matters were not the subject of document tender or cross-examination. I will ignore those parts of the ICL’s chronology, which are not in evidence before me.
I do not consider yelling at a child about chores or different chore regimes in different households constitute abuse or represent an unacceptable risk of harm to a child. However, the derogatory things the child said the father said of her (see table above) may give rise to emotional abuse. The father denied saying anything of the kind to her but did admit telling X a particular dress made her look fat. It was a foolish and hurtful thing for the father to say to anyone, much less his pre-teen daughter. It is certainly something that has registered with X in a negative way. I accept the father’s evidence that the fat comment was only made once, as opposed to X saying it happened all the time. But that one utterance of, frankly, fat shaming has left an indelible, negative mark on the child. I consider the father’s admitted words and its enduring impact on the child constitutes emotional abuse.
I am not persuaded the father said the other negative/derogatory things to the child as set out in the table above, because it is impossible to distinguish what is reality from what is just part of the child’s overt negativity towards the father.
I now turn to the four themes.
Whether or not the mother has caused the child to say all the child has alleged
The father’s case is that the mother has brainwashed, rehearsed or otherwise caused the child to make the numerous allegations she has; he told the Family Report writer the mother has been “training [X] for this sort of performance for many years”. However, how the mother did this is unclear. For example, it was not put to the mother that she conveyed graphic accounts of Child Exploitation Material or adult pornography to the child and coached or rehearsed X to repeat that to others.
In his Minute of Findings handed up in submissions, the father sought findings that the child “has suffered/is suffering emotional harm by being exposed to the mother’s overwhelmingly negative view of the father ...” or in the alternate, “there is an unacceptable risk that the child will suffer emotional harm by being exposed to the mother’s overwhelmingly negative view of the father.”
Undoubtedly, the mother has told the child information she should not have. For example, I find: the mother told the child her father was not present at her birth; told her about the cessation of time email in January 2023; and, that the father tried to stop them going to the United Kingdom when X was “one or two”. I consider it more probable than not that the mother was the source of the child’s information just listed; indeed, the child said “mum said” with respect to the plane incident (that did not actually happen) and that her mother told her about the January 2023 email. None of these things said by the mother to the child cast the father in a positive light and none were child focussed. Yet it is of little wonder the mother has an overwhelmingly negative view of the father given she fervently believes the father has exposed the child to pornography and his penis, along with the manufacture, supply and use of illicit substances. However, she should not have shared those things just listed with the child.
I can deal with the mother’s negativity towards the father and her discussions of adult issues with the child by way of restraints upon the mother from doing so. I say more about this later.
But, even though the mother has inappropriately involved the child in these adult issues, that does not lead me to automatically conclude the mother was the source of the child’s graphic descriptions of pornography, Child Exploitation Material and her saying the father forced her to look at his penis and was making, supplying and using illicit substances. For example, the child was quick to identify the mother as the source of some information set out just above, but not once did she say anything like “Mum said” in relation to the allegations of sexual abuse and drug dealing.
Separately, questions were asked of the Family Report writer and submissions made that the child’s allegations “ramped up” when the child did not get her way in wanting more time with the mother; much emphasis was placed on the child’s second s 93A interview as set out in the table above at the 9 March 2023 entry. I understood the concept of ramping up to mean the child’s allegations became bigger and more horrendous as time went on. But that submission focused on the child trying to achieve a goal as opposed to the mother coaching her.
It was also submitted that the child “ramped up” the allegations because the mother was frustrated that the police were doing nothing. I accept the mother was getting frustrated – the police record of February 2023 says as much. However, it is unclear to me how the mother’s frustration manifested in the child “ramping up” the allegations.
I also prefer the evidence of the Family Report writer that a child cannot be expected to tell all at the first relevant moment in a coherent, chronological, and complete way. I accept the Family Report writer’s evidence that “sometimes children might report some information and then they’ll, from nowhere, in the middle of an event or something and then you’ll have to try and help them, you will try to gain an understanding of what they are trying to say”.
It was also submitted that the mother “loaded the gun for others to pull the trigger” in meeting with the school when the child told her things in January 2023 instead of going to the police or child safety as her first ports of call. I accept the mother’s priorities were odd, but that does not explain how the mother was the cause of all that subsequently fell from the child’s mouth.
The father’s submissions then moved to the effect that the child had a loyalty conflict between the mother and father and she kept saying vile things about her father as a form of cognitive dissonance to help her understand, within herself, her divided loyalties. These submissions are about the child’s reasoning processes and sit at odds with the father’s other idea that the mother had actively brainwashed the child.
Nothing I have recounted under this heading permits a finding, on the balance of probabilities, that the mother brainwashed, rehearsed, or otherwise caused the child to make the numerous allegations she has. How the mother apparently did this was not articulated with any clarity. More so, the submissions focused on the child saying things to achieve her own goal of more time with the mother, or, the child trying to make sense of her own apparent loyalty conflict. These submissions are about the child’s processing and motivations and do not sheet home the child’s utterances to the mother as the cause.
That said, even though I cannot find the mother is the source of the child’s allegations, that does not mean I automatically find the father has done any or all of the things alleged against him.
Whether or not the father came into the child’s bedroom on at least three mornings, waved his penis in front of her, forced her to look at it, and once tried to force her to touch it, along with other naked presentations by the father in the child’s presence
I accept the Family Report writer’s evidence that children will not necessarily tell ‘the whole story’ in one go. Accordingly, I reject the father’s submissions to the contrary effect.
However, mindful of s 140 of the Evidence Act and the gravity of what is alleged, I cannot positively find the father acted as alleged under this theme for the following reasons. First, in the initial s 93A interview the child said, “he sort of forces me to see his private parts”. In the second s 93A interview, the child was far more definitive, “he will force me to see his bits...”. Second, the child said several times that the father waved his penis at her and forced her to look which happened “every” or “almost every morning”, but after painstaking questioning from the police, X identified three examples. Third, of the Christmas time 2022 allegations, the child said in her second s 93A interview conducted on 9 March 2023:
[THE CHILD]: …around Christmas time because that’s when I started telling Mum and she was like ‘ok’ and um, it was like, I said, um, like Mum, I said to Mum, like, ‘Dads doing um like, dangling his bits in front of me’ and I said like ‘I don’t like it can you just get me away from him’ for a couple of days she was like ‘no, sorry’…
(Emphasis added)
(Exhibit 26, p.18)
It beggars belief that if the child told the mother this “around Christmas time” 2022, the mother then did nothing about it at the time. Fourth, on 20 February 2023, X told the Child Impact Report writer that “his genitals have touched her on her leg and stomach area” (Exhibit 2, paragraph 21). However, on 25 July 2023, she told her M Family Services counsellor, “that NF [natural father] would touch her with his mouth and hands but not his penis” (Exhibit 23). Having watched the s 93A interviews, I am satisfied the child understood the concepts of penis and genitals.
Taken together these four factors give rise to “inexact proofs and indefinite testimony” to use language from the precursor to s 140 of the Evidence Act, namely Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. These four factors mean I cannot confidently find that sexual abuse has taken place as described by the child under this theme.
Whether or not the father exposed or otherwise did not quarantine the child from seeing Child Exploitation Material and/or adult pornography
In the second s 93A interview, the child described graphic and horrendous details of Child Exploitation Material. I will not set out what she said here, suffice to say Exhibits 5, 6, 25 and 26 are part of the record in this matter. Exhibits 5 and 6 were played in court. Exhibits 25 and 26 are agreed transcripts. X also described graphic adult pornography with an equal measure of detail and specificity.
The father’s counsel, appropriately, conceded the child’s descriptions were such that she must have seen the material somewhere, but denied the child’s exposure to either the Child Exploitation Material or adult pornography came from the father. It was not put to the mother that she was the source.
I also accept the father's evidence and submissions that the child's description of Child Exploitation Material and adult pornography were not images that should be in the mind's eye of a then eight/nine year old child. I also accept the ICL’s position that the child’s detailed description of Child Exploitation Material and adult pornography, means, on the balance of probabilities, that the images or descriptions have in some way been conveyed to or seen by the child. But that does not mean I simply find the father caused that to occur.
Importantly though, during the police search conducted pursuant to a warrant in early 2023, the police seized the father’s electronic devices and ran them through an extraction software. The police concluded:
A thorough review was conducted and no CEM related material was identified. There was significant amounts of adult pornography, some of which matches the descriptions provided by the victim child. However, no folders matching titles that she tried to describe and no children depicted in the images.
(Emphasis added)
(Exhibit 7, p.8)
There is no suggestion that the mother infiltrated or hacked the father’s phone to cause the material to be accessible by the police. What I am left with is the child’s graphic descriptions of Child Exploitation Material and adult pornography, with some of the latter matching the descriptions provided by the child.
Conscious of s 140 of the Evidence Act, I cannot find the father had either Child Exploitation Material on his phone or that he showed it to the child. However, given the match between the some of the child’s graphic descriptions of adult pornography and some of what the police found on the father’s phone, I conclude, again having regard to s 140 of the Evidence Act that he had both adult pornography on his phone and more critically, that he either allowed the child to see it or did not quarantine or protect her from same. Either way, X has been exposed to adult pornography advertently or inadvertently by the father and that constitutes sexual abuse of the child.
Whether or not the child was exposed to the father manufacturing and/or using and/or supplying a substance, said by the mother to be illicit drugs.
I accept the father’s submission that the mother thought the father must have been manufacturing and/or using illicit substances because the police told her as much. But I also accept the father’s submission that a police investigation process is different to the fact finding process with which I must engage.
Undoubtedly the child has seen the father mix flowers, ginger, garlic, white powder and used a “magic butter machine” to make a substance. However, I am unable to conclude, on the balance of probabilities, that the father was manufacturing, using and/or supplying illicit substances. For example, the mother agreed the father lived a largely self-sufficient life. She also agreed the father made kombucha, and agreed it was a fermented substance. X is also reported on a school form saying, “I feel so mad inside when Dad yells at me (Kombucha brew)” (Exhibit 9). He also takes medicinal cannabis in some prescribed form. I accept the father manufactures something and gives it to friends for cash, but cannot, on the evidence before me, conclude on the balance of probabilities that it was an illicit substance/s.
X also said she saw the father roll and smoke long, funny smelling cigarettes and saw him heat a glass jar with a lighter, but I cannot safely infer and conclude either description involved illicit substances.
I am also not prepared to infer – as the mother submitted I ought – that the father’s past use of drugs, including his candid admission of illicit drug addiction over nine years ending in 2004 and past use of other drugs meant he must be using some form of illicit drugs now.
The predictive exercise of assessing risk into the future
Whilst I have only made a positive finding about the child’s exposure to adult pornography by the father’s advertence or inadvertence, that is not the end of the matter. I turn now to the question of unacceptable risk, which looks to future possibilities, or as said in Isles at [50] citing Fitzwater at [135] and [140]:
135.…In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”)).
...
140.…Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis & Nikolakis[2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington & Cade (No.2)[2009] FamCAFC 230; (2009) FLC 93-422 at [56]- [61]; Johnson and Page at [68], [71], [76], [77]).
(Emphasis added)
Here, X has described:
·Adult pornography and Child Exploitation Material in lurid and disturbing detail, with the child able to access the father’s phone and knows his passcode;
·The father exposing himself to X with considerable detail;
·Sharing a swag with her naked father at festivals/camping and again with detail as to the placement of the swag, how they would sleep and how she would shuffle away from him;
·“Weird tablets” in the father’s bedroom draw. Relevantly, during the police raid in early 2023, the police took photos of the father’s bedside table drawers (Exhibit 10). The contents accessible to the child included tablets, condoms, lubricant and a book on how to give oral sex. Whilst the father is at liberty to engage in whatever adult, consensual sexual activities he likes, leaving these items accessible to the child, especially the how-to book is a considerably lax attitude to appropriate adult-child boundaries. There is no evidence the child saw the sex related material (although she did know there were tablets), but the point is the child could access the drawers due to the father’s failure to quarantine the child from intimate adult materials;
·The father smoking “weird smelly stuff”;
·The father making a substance on the “magic butter machine” which “was like brown sort of colour thing”, and “he would put it in the fridge”.
Next, the Family Report writer agreed the following may well be indicia of a child who has suffered sexual abuse: suicidality, regressed academic grades, nightmares, anxiety, hypervigilance and aggression. These factors were reported by the mother in the Intake Form for the M Family Services counsellor (Exhibit 21). At trial, Counsel all agreed those presentations do not prove abuse. But I have moved beyond the issue of proof and am now looking at the predictive assessment of risk going forward.
All of these factors in the preceding two paragraphs lead me to conclude that the possibility of past sexual abuse of the child by the father is of itself sufficient to establish the chance of future sexual abuse. Similarly, the possibility of the father’s past exposure of the child to the manufacture, use and supply of illicit substances is sufficient to establish the chance of her exposure to same in the future.
As to magnitude of the risk, the Family Report writer said that “[i]f the court finds these allegations are accurate then the level of risk to [X] would be high and therefore outweigh the potential benefits of her spending time with her father” (Exhibit 3, paragraph 68). In cross‑examination the Family Report writer gave evidence that “there are some short term and long term risks” referring to paragraph 68 of her Report. She said the child “may have difficulties regulating those emotions”, “may have outbursts” and “there could be instances where she may have recurring images”. The Family Report writer went on to say “in the long term that can have an impact on her emotional wellbeing in forming relationships as she gets older” and that the child may “have difficulties with sense of identity as well”.
It was Dr K’s unchallenged evidence that:
If the allegations are true, then there would be a risk of sexual, psychological, and potentially physical harm to [X], as then there would be evidence of jealousy and domestic abuse towards [Ms Arthur], sexual abuse of [X], [X] witnessing his aggressive behaviour, [X] fearing him, drug taking on his part, and potentially stalking behaviour, towards both [Ms Arthur] and [X].
(Annexure B to the affidavit of Dr K filed 11 September 2023, p.19)
I discount what the doctor said about the historical allegations of family violence, as those matters predated the 2019 final consent order, which the parties agreed to not go behind. I am also not persuaded the father engaged in stalking the mother (see Exhibit 13); there many reasons he could have been driving on what the police described as a main road near the mother’s house.
Putting those two matters aside (historical family violence and stalking), it might be thought both experts were using “proof” as the basis for the predictive process, which is not actually required (Isles). Nevertheless, my conclusion about the possibility of future sexual abuse and illicit drug exposure still come with the harms identified particularly by the Family Report writer. Accordingly, the magnitude of the risks to X is high.
With the father’s: (a) denials of the child being able to access his phone and see the admitted adult pornography on it even though she clearly knew his passcode and described accessing the phone; (b) failure to place his phone, with the adult pornography on it, out of the child’s reach; (c) placement of adult sex material in a draw accessible to the child; (d) denial in cross‑examination that there was any need for X’s time with him to be supervised; and, (e) the lack of information about the re-unification therapy; then, I do not consider I can impose any ameliorating conditions around that high risk to the child. True, the father proposed supervision of X’s time with him for 12 months in his alternate orders, but there is no evidence before me that the unacceptable risks to X would then cease after that. I also do not consider placing the child in the position of self-protecting after those 12 months is an appropriate burden to be placed upon the child’s shoulders.
The father’s counsel also said in submissions I could make injunctions restraining the father’s use of and the child’s access to devices, but that is something he should have done in the first place. His failure to do so gives me no confidence about vigilance going forward. Further, my assessment of unacceptable risk goes beyond just access to devices and goes to the other matters set out at paragraph 76 above. In other words, I do not consider such a restraint ameliorates the unacceptable risks to which X may be exposed going forward.
Finally, I have found the mother was the source of some of the child’s negative comments. I consider her conduct in that regard lacked child focus and was inappropriate, but I do not consider it a risk that is intolerable going forward, because I can (and will) regulate what she may discuss with the child.
Balancing the primary considerations
As s 60CC(2A) highlights, if there is conflict between the two primary considerations then protection from harm triumphs. Given the finding I made of exposure to adult pornography and my separate assessment of unacceptable risk going forward, the balance squarely favours X’s protection from harm.
The additional considerations
Child’s views
A goodly sample of the child’s views of the father are set out in the table under paragraph 44 above.
Under the first of the four themes above, I have not found the mother brainwashed, rehearsed or otherwise caused the child to make the numerous allegations she has. However, I have found the mother is the source of the child’s knowledge of adult matters, including, the email ceasing time in January 2023, the idea the father stopped a plane when the child was little, and, that the father was not present at the child’s birth.
In the Child Impact Report dated 3 March 2023, X said, “she does not want to see her father, and if she has to, she wants it to be supervised. She said her tummy tells her ‘I’m not safe here’ and stated ‘my belly rumbles’ when she spends time with her father” (Exhibit 2, paragraph 11).
In the subsequent Family Report dated 3 November 2023, X was recorded as being:
76.…clear with respect to her views about time spending with her father, and she was adamant she did not want to maintain a relationship with him. She expressly stated she did not feel safe with her father and appeared fearful by shaking her head profusely when asked about spending time with him, even in the presence of the report writer or in a supervised context.
(Exhibit 3, paragraph 76)
However, it is plain a child’s views are not determinative (Bondelmonte & Bondelmonte (2017) 259 CLR 662).
The father was at pains to portray the “child’s reality” in cross-examination and submissions as being negative of the father, including X’s belief that he has sexually abused her, and exposed her to drug manufacture, supply and use. The father’s emphasis on the child’s reality was from the perspective that X needs to have her reality and views corrected. As said, how that is proposed to occur is not set out with any specificity. Further, there is no evidence before me whether such a process of correcting the “child’s reality” would be as traumatic for the child, as if she had been abused. But, that is in the context where I have found the father emotionally harmed the child when he told her she looked fat in a particular dress and more so allowed her, advertently or inadvertently, to access adult pornography on his phone. Equally, I have also determined he poses an unacceptable risk of harm to the child.
In other words, the positive finding I made about exposure to adult pornography and my assessment of unacceptable risk give some authenticity to the child’s reality. Given that finding and assessment, I give weight to X’s views in so far as she wants to be protected from the father. Accordingly, that finding and assessment also leads me to reject the submission that the child “ramped up” the allegations she made against the father to try and get more time with the mother.
The concept of the child “ramping up” the allegations to secure more time with the mother also does not make chronological sense given the child’s time with the father stopped in January 2023 and she has spent all of her time thereafter with the mother.
Nature of relationships
The Family Report writer described the child having an “aligned” relationship with the mother. X also wants to see her maternal grandparents in the United Kingdom. On the orders I will make, she will have that opportunity.
The child has not had an experiential relationship with the father since January 2023. Given my positive finding about the adult pornography and my assessment of unacceptable risk, I do not consider the child’s relationship with the father is one that is healthy or advantageous to her going forward.
Taking opportunities
The father’s orders demonstrate a desire to take opportunities with the child. The mother’s and ICL’s proposals demonstrate the opposite stance.
Maintaining the child
This matter did not arise in any substance, if at all.
Effect of change
The mother’s and ICL’s proposals see no change for the child.
The father’s two proposals however do present a significant change for the child. When asked what the impact of a change of residence would be on the child the Family Report writer said:
It would seem that that would be a difficult transition for her if that were to occur, however I guess she has lived with her mother for some time now it’s been over 12 months, so it would seem she would have difficulty transitioning through that and she would need quite a bit of support.
The Family Report writer said this support could be in the form of individual counselling or family therapy if it was one-on-one. It was the Family Report writer’s evidence that a moratorium on the child’s time with the mother “would be difficult but as long as she is supported in terms of having that ongoing communication, some form of contact in that way, telephone or video calls with the other parent”. The father proposes weekly communication between mother and child during the moratorium and thereafter.
It is not clear to me when the father’s proposed reunification therapy would commence, but the father seeks an immediate change of residence. As already observed, the father has not sought expert advice on how he would manage the change of residence and had no idea how he might fund the reunification therapy/counselling to support time. On the evidence before me, I am not satisfied the father has the wherewithal to deal with an immediate change of residence for a child who has firm views that he has abused her. Telling her “to be honest” is simply naive in the context of all the child has said and the father’s submissions highlighting the child’s reality.
The practical difficulty and expense of a child spending time with and communicating with a parent
Although the mother was of the view the distance between the father’s home and X’s school was too far, this consideration did not really arise with any force. It is not unusual for children in rural, regional or remote areas to travel a distance to and from school.
Capacity to parent, parental responsibility
The mother has exposed X to too much information about adult issues, for example: the gist of the contents of the email stopping time in January 2023; that her father was not present at her birth; and, that the father tried to stop them going to the United Kingdom when she was “one or two”. None of this was responsible parenting and on the strength of this, I will make injunctions restraining the mother from denigrating the father and discussing the proceedings with the child as proposed by the ICL.
However, the critical parental incapacity and irresponsibility lies with the father for all the reasons I have set out when finding he has advertently or inadvertently exposed X to adult pornography and my assessment of unacceptable risk.
Maturity, sex, lifestyle and background
The child shares a link to the mother’s United Kingdom culture, as well as her Australian experiences. Both are understandings the mother will be able to promote. That said, nothing really turns on this.
If the child is an Aboriginal child or a Torres Strait Islander child
Not applicable.
Family Violence
The mother’s allegations predating the 2019 final consent orders were appropriately not pursued by the parties. I have already concluded that I am not persuaded the father engaged in stalking the mother after she stopped time.
Further proceedings
X needs finality, but whether that occurs is a matter entirely within the parents’ hands.
I am otherwise not persuaded to make interim orders as the father sought in his oral application on the final day of trial. First, the child needs finality. Second, the trial was not conducted on this basis. Third, the evidence of his proposed social worker is lacking for the reasons already articulated.
DISPOSITION
I have found the father exposed the child to or failed to quarantine the child from seeing adult pornography. I have assessed he poses an unacceptable risk of harm to the child, constituted by the possibility of sexual abuse and exposure to drug manufacture, use and supply use going forward. I have also concluded fat shaming the child was an act of emotional harm. Those conclusions, whilst important, are however “subservient” to the child’s best interests (M v M (1988) 166 CLR 69 (“M v M”) at 76). Yet, as the High Court also recognised in M v M at 77 “[i]n all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access”.
Taking account of my positive finding of the child’s exposure to adult pornography and my conclusions about unacceptable risk going forward, along with the child’s implacably negative views about the father (including but not limited to the fat issue), the limited information about therapy as proposed by the father, the lack of evidence about its financial practicality, and the father’s parental incapacity and irresponsibility, I conclude this is a matter where a no time and no communication order is in the child’s best interests.
I have already considered and ruled out supervision of the child’s time with the father for 12 months as a potential mitigating factor; see [83]. I have also rejected the father’s belated oral application for interim orders; see [110]. I have also set out my reasons for rejecting the proposed reunification therapy/support of parenting time; see [21]-[22], [37]-[38] and [102].
The father sought an order for equal shared parental responsibility. The mother and ICL propose the mother have sole parental responsibility. Both parents allege the other poses an unacceptable risk to the child, which indicates neither trusts the other’s parenting (yet the father’s proposals culminate in week about). Further, given the findings of abuse and assessment of unacceptable risk, the idea that the parents could engage in equal shared major long term decision making only needs to be stated to reveal its folly. Similarly, the father’s evidence that the parents could work together again, despite the vile allegations and counter‑allegations, is naïve. Accordingly, I do not consider an order for equal shared parental responsibility to be in X’s best interests. I am therefore not required to consider equal time orders or significant and substantial time. I will make an order the mother have sole parental responsibility because X will be living with her.
However, I will make the orders proposed by the ICL, whereby the mother is to give certain information to the father; Exhibit 29 proposed orders 7-9. I do so because even though X will be protected from him, the father does not need to be placed in a complete absence of information about his daughter.
I will also make the injunctions sought by the mother and ICL, essentially restraining the father from taking the child from the mother or any entity entrusted with X’s care, nor allow or cause others to do so. I do so as the child has said, “Scared dad will come to our house + steal me”, “Dad will snatch from school”, “Dad has said he will take me + not bring back”; see Exhibit 9. I accept the father’s witnesses that the father could not have been at the child’s school as she twice alleged. However, I also accept the Family Report writer’s opinion that the child thought she saw the father at her school due to the child’s hypervigilance with respect to the father. I ask the ICL and/or Report writer to explain to X in an age-appropriate way that the father is not allowed to collect her or cause others to do so; that should give X some comfort and peace of mind.
I will also make orders proposed by the ICL restraining the father from contacting X directly or indirectly, but I will add he is not permitted to cause others to do so – getting others to contact X on his behalf would likely be just as distressing as contact from the father. X needs peace.
I have already indicated that I will make the ICL’s orders restraining the mother from denigrating the father to the child or allowing others to do so, and from discussing these proceedings with the child. X already knows too much. She needs to be quarantined from adult issues.
As proposed by the ICL, I will give the mother liberty to provide a copy of the orders arising from this matter to the child’s school, but not my Reasons. The school does not need these details.
I will make the order proposed by the ICL with respect to X continuing counselling and the mother be at liberty to provide the counsellor with the documents specified in the ICL’s Minute (Exhibit 29 proposed order 12(a)-(c)). Given my findings, X is likely to continue to need therapeutic support. The professional counsellor may gain some further assistance in their support of X if at liberty to read the experts report, my Reasons, and the agreed transcript of the child’s two s 93A interviews.
The father sought an order that the ICL and Family Report writer explain the orders to the child. I will make an order of this variety as it is important the child understands the outcome of the parents’ dispute over her and that be explained to her by a non-partisan, independent person.
Given my findings and conclusion about no time, I will not make the orders sought by the father with respect to domestic and international travel, nor permissions to attend school activities. The father’s changeover orders are also redundant. I am also not satisfied I have the power to make a standalone counselling order for the mother (as sought by the father), but assuming I did, in the circumstances of the case, the mother is free to take up with any professionals she requires at her own election – as opposed to mandating something she may not want or may not need.
Finally, the mother agreed to a restraint about not permanently relocating with the child to the United Kingdom. In submissions the father’s counsel candidly and appropriately accepted that if I made a no time order, then such a restraint would be pointless. I agree. I will however make an order that the mother obtain the child’s passport from the court, be at liberty to remove the child from the Commonwealth of Australia and apply for a passport for the child (or renewal). I do so because the child clearly wants to spend time with her maternal grandparents in the United Kingdom and ought be allowed to do so.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 6 June 2024
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