WARSOW & WARSOW

[2010] FamCA 591

FAMILY COURT OF AUSTRALIA

WARSOW & WARSOW [2010] FamCA 591

FAMILY LAW – CHILDREN – Where allegations made father sexually abused child – Where positive finding of abuse sought then abandoned
FAMILY LAW – EVIDENCE – Where father sought s 69ZT(3) ruling – s 69ZT(3) ruling refused – Where child of pre-school age – Expert evidence established the importance of timely open-ended questions for children this age in order to achieve reliable recollection – Disclosure process contaminated and flawed – Where the degree of medical certainty the child had been sexually abused was low – Assessment of risk – No unacceptable risk of abuse – where father sought positive finding abuse had not occurred – Inappropriate to make the positive finding of non-abuse

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 60CA, 61B, 61C(1), 61DA(2), 61DB, 64A, 65AA, 65DAA, 69ZT, Pt VII

Evidence Act 1995 (Cth) s 140

A v A (1998) FLC 92-800
Day v Perisher Blue Pty Ltd [2005] NSWCA 110
Goode and Goode (2006) FLC 93-286
Johnson and Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
Mazorski v Albright (2007) FamLR 516
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT: Mr Warsow

RESPONDENT: Ms Warsow

FILE NUMBER: (P)NCC 1857 of 2007

DATE DELIVERED: 14 July 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATES: 11- 13, 17-21 May 2010 and written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge SC with
Mr Kelly

SOLICITOR FOR THE APPLICANT: Emery Partners

COUNSEL FOR THE RESPONDENT: Mr Duane

SOLICITOR FOR THE RESPONDENT: Mullane & Lindsay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke
Legal Aid NSW

Orders

1. All previous parenting orders for “the child” J born … December 2004 are discharged.

2. The parties have equal shared parental responsibility for the child.

3. The child shall live with the mother.

4. The child shall spend time with the father as agreed between the parties but failing agreement as follows:

   (a)from the date of these orders for a period of three months each Saturday from 10.00 am to 4.00 pm in the presence of the paternal grandmother;

   (b)thereafter and until the end of Term 4 in 2010 each alternate weekend from 9.00 am Saturday to 4.00 pm Sunday upon condition the child stays overnight at the paternal grandmother’s home with the paternal grandmother being present;

   (c)thereafter during the 2010/2011 Christmas School holidays from the second Thursday after the preceding period of time pursuant to the above order until the following Tuesday each alternate week and each alternate week thereafter;

   (d)from the start of Term 1 2011 during school term, if the child has spent time with the father for the first half of the school holidays (or in 2011 if she has not been in his care during the two weeks prior to the commencement of term), from the first Thursday of the next school term from after school until the commencement of school the following Tuesday each alternate week; and in the event the child has spent the second half of the school holidays with the father from after school on the second Thursday of term until before school the following Tuesday and each alternate week thereafter;

   (e)from the commencement of the end of Term 1 2011 school holidays for one half of all school holidays being the first half in even numbered years and the second half in odd numbered years;

   (f)in 2010 from 10.00 am to 4.00 pm on Father’s Day;

   (g)in the event the child would not otherwise spend time with the father on Christmas Day 2010 from 12.00 noon 24 December 2010 until 2.00 pm Christmas Day;

   (h)commencing 2011 from 5.00 pm on the day immediately before  Father’s Day until 5.00 pm on Father’s Day;

   (i)for three hours on the child’s birthday being from the conclusion of school until 6.00 pm if on a school day and from midday until 3.00 pm if not a school day;

   (j)at such other times as the parties agree.

5. In the event the child is to spend time with the father on the weekend which includes Mother’s Day the child’s time with the father is suspended from 5.00 pm on the day immediately before Mother’s Day until the end of that period.

6. Notwithstanding any order to the contrary at Christmas time the child will spend from 2.00 pm Christmas Day to 6.00 pm Boxing Day with the parent in whose care she would not otherwise be on Christmas Day.

7. To implement Order 4(a) the mother or her nominee shall deliver the child to the father at his home at the commencement of the period and the father or his nominee shall return the child to the mother at her home at the conclusion of the period.

8. Other than is provided for in the above order change-over shall occur at the child’s school if change-over is scheduled to occur on a school day and at McDonalds at W if not a school day. 

9. In relation to the child’s birthday the parent with whom the child shall spend the nominated three hours shall collect the child from and return the child to the other parent’s home.

10. In relation to Christmas Day the parent who is to have the child from 2.00 pm Christmas Day shall collect her from the other parent’s home and that other parent shall collect her at 6.00 pm Boxing Day from the other parent’s home.

11. In the event the child is to spend time with the father during a period which includes the child’s birthday the child’s time with the father is suspended for three hours on the child’s birthday being from the conclusion of school until 6.00 pm if on a school day and from midday until 3.00 pm if not a school day.

12. As soon as possible, the parties must attend and complete a parenting after separation course (with Relationships Australia, Interrelate or Centacare).

13. The parties must not denigrate the other party or members of the other party’s family or friends to or in the presence of the child and must not permit other persons to do so.

14. The mother is restrained from questioning or permitting any other layperson to question the child before or after she spends time with the father with a view to assessing whether the child is at risk in his care. 

15. The parties must:

    (a)keep each other informed of their current address and contact telephone number; and

    (b)in the event of the child being hospitalised or receiving medical attention for a serious medical condition when in their care, notify the other as soon as practicable after the first contact with the hospital or medical practitioner.

16. The  parties shall forthwith authorise:

    (a)any health professional treating the child to provide to a party upon a request from a party (and at that party’s cost) information in relation to the child’s health; and

    (b)the principal(s) of the child’s school to provide to a party upon a request from a party (and at that party’s cost) information in relation to the child’s academic progress, copies of the child’s school reports, copies of school newsletters and copies of the child’s school photographs.

17. Subject to any direction from a relevant school, each party is at liberty to attend the child’s school and all school and sporting functions.

18. If any party intends to make any notification to any person in authority in person that the child has been the subject of abuse by any person and makes that allegation they shall, at the time of making the notification to such person to whom they are making the complaint provide them with the following:

    (a)       a copy of these orders; and

    (b)       a copy of the reasons for judgment.

19. If any party intends to make any notification by telephone, or by any means of electronic communication, to any person in authority that the child has been the subject of abuse by any person, then the complainant is to provide to the person in authority at the time of the communication a copy by electronic means:

    (a)       a copy of these orders; and

    (b)a copy of the reasons for judgment.

20. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

21. Subject to any application for costs all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC1857 of 2007

MR WARSOW

Applicant

And

MS WARSOW

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings which concern the parties’ daughter J (the child).  She is five and a half years old.  The child lives with her mother Ms Warsow (the mother) and spends time with her father Mr Warsow (the father) at a supervised contact centre.  The child’s time with her father is supervised because it is alleged that unsupervised contact would expose her to an unacceptable risk of sexual abuse.  Whether or not the father poses an unacceptable risk of sexual abuse was the central factual issue in this hearing.  Resolution of this issue has not been without difficulty.  This is because while there is no dispute that on a number of occasions the child has described behaviour by the father which, if it occurred, would be accepted as sexually abusive, there were serious issues about the reliability of the child’s statements.  It is clear the disclosure process was contaminated through leading and suggestive questioning. Unfortunately, for reasons discussed later, the circumstances under which the child was interviewed by the New South Wales Police Service and the Department of Human Services (JIRT team) in which she denied sexual abuse was such that little weight could be attached to her denials.  Two leading experts in the investigation of child sexual abuse were very troubled about the extent to which the child had been subjected to leading questions and, in effect, ideas implanted in her memory.  

2. The mother proposed that the child would have no direct contact with her father and that their relationship would be limited to contact by card and gift on special occasions.  The father contended that the mother’s approach would destroy his relationship with his daughter.  It was submitted on his behalf that the Court would be concerned about the mother’s role in the sexual abuse allegations and her attitude to his relationship with their daughter.  Nonetheless, he conceded that the Court would be unable to make the type of findings that would be required to remove the child from the mother.  Thus, at the end of the hearing, the father abandoned his application that the child live with him in favour of a graduated program which would result in her having substantial and significant time in his care.  It was his submission that this would be the only way the Court could be satisfied the child would have meaningful relationships with each of her parents.

3. Because of the complex issues raised an Independent Children’s Lawyer was appointed to represent the child’s interests. In closing addresses, the Independent Children’s Lawyer submitted it was more unlikely than likely the father had sexually abused the child.

Background facts

1. Unless I have stated differently throughout these reasons, the balance of probabilities will determine findings of fact. Section 140 Evidence Act 1995 (Cth).

2. Mr Warsow (the father) was born in 1970.

3. Ms Warsow (the mother) was born in 1972.

4. The parties met in early 1993 and commenced a romantic relationship in March 1993.

5. In October/November 1995, the parties commenced cohabitation.  At the commencement of cohabitation, they moved into a home the father owned at F.

6. In 1999 the parties married.

7. J, who is the subject child, was born in December 2004.  She is the parties’ only child.  For two weeks after the child’s birth, both parties took leave from employment during which each was involved in her care. 

8. Two weeks after the child’s birth the father returned to work.  Thereafter, and for the following 12 months, in each seven day period he worked three 12 hour shifts.  The effect of this was that he was at home from Monday to Thursday each week, during which periods he was involved in the child’s care. 

9. When the child was six months old the mother returned to paid employment, initially two, then three days a week.  On those days when both parties were at work one or other of their parents cared for the child.  The pattern that developed usually saw the child cared for by the father’s parents on Mondays and Tuesdays and the mother’s mother on Thursdays and Fridays. 

10. In November 2005 the parties sold their F home and moved into a rented home in the same suburb.

11. In February 2006 the mother commenced a relationship with Mr K, to whom she is now married.  The mother and Mr K kept their relationship a secret from their spouses.  As well as other places, the mother and Mr K conducted their sexual liaison at the parties’ home.  The approach was that after the father left for work the mother would telephone Mr K and inform him the father had departed.  

12. The parties separated on 17 April 2007.  The night before they separated the father discovered a telephone message on the mother’s telephone from Mr K from which he correctly deduced that she and Mr K were having an affair.  The father telephoned the Ks home following which Mr and Mrs K separated.  At about the same time the mother and Mr K briefly terminated their relationship.

13. Upon their separation, the mother moved to the home of her mother (the maternal grandmother) and her stepfather at C. The father moved in with his parents (the paternal grandparents) at their home in C, which is where he has since resided.

14. The child was two years and four months old when the parties separated.  Without any real difficulty, the parties quickly agreed to divide the child’s time equally between them.  On an ongoing basis the child lived two days with the mother followed by two days with the father. At that time, the mother had no concern about the father’s behaviour towards the child and, like her mother, considered him to be a competent and devoted father. 

15. In late April 2007 the mother rented a home at C where she resided until October 2007. 

16. On 14 June 2007 the parties filed an application for consent property settlement orders in the Family Court at Newcastle.  Excluding superannuation, they had assets worth approximately $1.7 million and no liabilities.  Summarised, the effect of the parties’ agreement was that the father would pay the mother $500,000 and she would retain a motor vehicle, a share of the household contents and her superannuation.  Thus, the father received a significantly greater share of the matrimonial assets, which distribution particularly acknowledged his greater initial contribution.  Orders were made in accordance with the parties’ consent application on 15 June 2007.

17. By June 2007 the parties agreed that, from the child’s perspective, the rotating two day living arrangement was not working.  That the child had not coped came as no surprise to the Single Expert, his point being, in effect, that the arrangement was developmentally inappropriate and inconsistent with the child’s need for reasonable stability.   The parents agreed to continue an equal division of her time and explored options which they thought would dovetail with their work commitments and, I infer, the child’s developmental needs.  They agreed the child’s living arrangements would be as follows:

    ·    Week 1:    With the father from 11.00 am Saturday until 5.00 pm   Wednesday then from 5.00 pm Wednesday until 11.00 am   Sunday with the mother.

    ·    Week 2:    From 11.00 am Sunday until 9.00 am Wednesday with the   father then from 9.00 am Wednesday until 11.00 am   Saturday with the mother.

18. At that time, the mother worked each Monday to Wednesday.  During those periods when the child was in her care while she was at work, the maternal grandmother cared for the child.  The father worked shift work but was able to vary his hours of work during those periods the child was in his care.  When he needed to work his parents cared for the child.

19. For between two and four weeks in June 2007, the mother and her mother observed the child to be distressed about showering or bathing.  When at her maternal grandmother’s home, she became distressed when being undressed.  While troubled by the child’s distress, at that time, neither of them considered this was indicative of sexual abuse.  There were no similar problems in the father’s home.  The parties spoke about these matters and agreed she was merely going through a phase.  As they had anticipated these behaviours quickly resolved. 

20. In July 2007 the mother and Mr K resumed their relationship. When the father learned of this he was angry.  Until relatively recently the father remained angry with the mother and Mr K for their earlier sexual dishonesty.  

21. In August 2007 the mother introduced Mr K to the child as her partner. 

22. In late August 2007, the child had diarrhoea and became dehydrated.  She was ill when the mother delivered her to the father. When the child’s illness continued the father took her to hospital about which he kept the mother informed.  The child’s diarrhoea resolved but not before her bottom became chaffed. Because of the child’s discomfort the paternal grandmother applied Vaseline to her bottom.    

23. In October 2007 the mother purchased a home at E.

24. The father’s brother D committed suicide in October 2007.

25. During November 2007 the mother moved into her home at E.  This is where she and the child reside.  Mr K moved in at the same time.  His son Z has spent significant time with them.  By this time tensions between the parties were on the rise, which situation continued to deteriorate over the following months.

26. On 20 March 2008 the child was in the mother’s care and with Mr K outside playing with him and Z.  During a game in a situation that made the following remarks unremarkable, the child said she and the father had “lots of secrets that we don’t tell mummy.”  Mr K said he regarded secrets as being inconsistent with his notion of the importance of familial openness and honesty and thus reported the child’s remarks to the mother. The mother thought the child’s reference to secrets was “a bit odd” and decided she would speak to her about it.  

27. On 22 March 2008 the mother initiated a discussion with the child designed to discover the “lots of secrets” she kept from her mother “with her daddy”.  As will be discussed later, the mother’s conversation did not refer to secrets but using a series of false propositions and leading questions introduced concerns about nudity and the father’s “noodle.”  From this discussion the mother understood the child to convey her father had touched her with his penis on her vagina and bottom.  The following morning the mother initiated a further conversation with the child from which, amongst other things, the mother understood the child to tell her the father put his penis on her vagina.  Notwithstanding her concerns about the information conveyed by the child, in accordance with the parenting arrangements, at 11.00 am that day the mother delivered the child to the father.  When she returned home her partner was present. They discussed the mother’s conversations with the child then contacted the Department of Community Services (DoCS) and informed them of their concerns. 

28. Because the mother was too upset to talk to DoCS Mr K spoke for her. Having received generic advice they decided to think about what steps should be taken.  After the mother spoke with her mother, they recontacted DoCS and formally notified the child as being at risk.  Between them, the mother and Mr K advised DoCS the father was a “flight risk” and he would not voluntarily make the child available for interview.  They were both concerned to ensure she was removed that day.  Armed with this information DoCS abandoned the notion that they would arrange for the father to make the child available in favour of having police remove the child without notice.  In accordance with the investigating officer’s instructions, the mother went to her mother’s home so that she would be available when the child was removed. 

1. At about 8.20 pm that day, that is, Easter Sunday, 23 March 2008, Detective A and two DoCS officers arrived at the father’s home.  The father was informed that serious allegations had been made against him and that the child would be removed so that she could be interviewed.  At that time, the child was ready for bed and a book was being read to her.  She became very distressed, and cried saying:  “Daddy, nanna, don’t let them take me.”  When the child was unable to be consoled, the mother entered the home and removed her. 

2. Between 10.00 pm and 10.18 pm that evening, Detective A interviewed the child at the JIRT office located at the local Police Station.  The child did not disclose conduct by the father which would cause concern.  She denied that she had been touched inappropriately.

3. On 24 March 2008, police issued a provisional Apprehended Violence Order for the protection of the child from the father.  The provisional orders were as follows:

   1(a)The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.

   1(b)The defendant must not engage in any other conduct that intimates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.

   1(c)The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.

   3.The defendant must not enter the premises at which the protected person(s) may from time to time reside or work, or other specified premises.

   5.The defendant must not approach or contact the protected person(s) by any means whatsoever, except through the defendant’s legal representative or as agreed in writing or as permitted by an order or directions under the Family Law Act 1975, for the purpose of counselling, conciliation or mediation.

4. The provisional Apprehended Violence Order was served on the father the day it issued.  The order remained in force until 21 April 2008 and was subsequently extended until a final hearing. 

5. Police interviewed the father on 27 March 2008.  In short, he denied he had behaved in a sexually inappropriate manner with the child.  Police informed the mother of the outcome of their interview with the father later the same day.

6. On 30 March 2008, police interviewed the mother again.  She gave them a copy of the notes she had made of her various conversations with the child.

7. On 2 April 2008, on referral by JIRT, the mother took the child to the Sexual Assault Service at the local Hospital where the child underwent a medical examination and genital examination.  The child was quite distressed during the examination.  The medical practitioners concluded that the child’s labia majora, minora and vestibule all appeared normal.  Her anus appeared normal.  Her hymen was folded but because of the child’s distress, it was not possible for the medical practitioner to obtain a clear view of its edges.  In her report of the examination, Dr R concluded:  “The normal genital examination findings are not unexpected with the given history of contact between the penis and vagina.…The medical examination should not be relied upon to diagnose or confirm a diagnosis of sexual abuse.” Dr R’s report was received as uncontested evidence. I accept the evidence and opinion contained in Dr R’s report.

8. In April 2008, the father began a relationship with his current partner, Ms T.

9. On 11 April 2008, the mother’s solicitors wrote to the father in which they informed him that the mother proposed that he and the child spend time together at a supervised contact centre, namely A Contact Centre.  The father contacted A Contact Centre and was advised it would be about seven months before he would be at the head of the queue of families waiting to utilise its supervision services.  Before the father responded, he retained solicitors who, on 8 May 2008, wrote to the mother’s solicitors.  In this letter, the mother was informed of the Centre’s waiting list and the father’s distress at the cessation of his time with the child.  After the requirements of the AVO were mentioned the father proposed that he spend time with the child each week, at times and in public places agreed between the parties which would be supervised by his counsellor, Ms H. Because the mother was unlikely to have previously heard of Ms H by a separate letter that was also dated 8 May 2008, the father’s solicitor provided the mother’s solicitors with her contact details and otherwise the sort of information the mother would reasonably need in order to assess the father’s proposal.

10. The mother did not contact Ms H.  This is because it was the mother’s stance that the father could not spend time with the child at any place other than at the Contact Centre.  Thus, on 13 June 2008, the mother’s solicitors wrote to the father’s solicitors and suggested he place his name on the Centre’s waiting list.  The mother knew that the effect of her approach was that the child was unlikely to see her father for another seven months.  

11. In mid June 2008, the mother arranged for the paternal grandparents to have a meal with the child at McDonalds.  The child enjoyed her time with them.

12. In June 2008, the mother gave birth to a son by Mr K.  The child’s name is Y. 

13. In early July 2008, police served the mother with two subpoenas, one which was addressed to her and the other to the child, which required them to give evidence in the forthcoming AVO proceedings against the father. 

14. On 22 August 2008, in circumstances where the child was not called to give evidence, the police application for an Apprehended Violence Order against the father was dismissed. 

15. After the AVO application was dismissed the father again contacted A Contact Centre.  He was informed that because the mother had not been in contact with them the family was not on its waiting list. 

16. On 27 August 2008, the mother and her mother met with the father’s parents.  Although the father’s parents understood that the purpose of the meeting was for them to spend time with the child, the mother and her mother demanded that they listen to their allegations about the father.  Amongst other reasons, because of the way in which the child was treated during this incident, I shall return to this matter.

17. On 8 September 2008, the father’s solicitors wrote to the mother’s solicitors in which he advised that he sought to re-establish the arrangements for the child to live with him along the lines which existed prior to 23 March 2008.  Absent the mother’s agreement, it was his suggestion that the parties attend mediation.

18. By letter dated 16 September 2008, the mother’s solicitors advised the father’s solicitors that she rejected his 8 September 2008 proposal.  The mother reiterated her earlier proposal that the father spend time with the child at the A Contact Centre and said she agreed to attend mediation.

19. In response to the mother’s 16 September 2008 proposal, the father’s solicitor wrote to her solicitors on 19 September 2008 in which they reminded the mother of the long wait which her proposal involved.  As an alternative, the father proposed that he spend time with the child one day each weekend supervised by his parents. 

20. By her solicitor’s letter dated 24 September 2008, the mother refused the father’s alternate proposal.  By then it was clear to the parties they were at an impasse.  Each was resigned to the inevitability of family law litigation.  Fortunately, the parties were able to agree that, provided the father was not present, the paternal grandparents would be able to spend time with the child from time to time.

21. On 16 October 2008, the father filed an application in this Court in which he sought interim and final orders.  The orders sought by the father are set out below:

    1.Parental Responsibility

    1.1That during school terms the child [J] born […] December 2004 (“the child”) live with the mother on a rotating fortnightly basis commencing on the first Saturday after the date of this Order as follows:

    1.1.1From 5.00 pm Wednesday to 11.00 am Sunday;

    1.1.2From 9.00 am Wednesday to 11.00 am Saturday.

    1.2That the child live with the mother for one half of the school holidays being the first half in even years and the second half in odd years and for the purpose of this Order, school holidays are deemed to commence from the conclusion of school on the last day of school term until the commencement of school on the first day of the next school term and the expiry of the first half and commencement of the second half is deemed to occur at 10.00 am on the day mid-point between the time of commencement and the time of conclusion of the school holiday.

    1.3That the child live with the father at all other times.

    1.4That the father and mother have the equal shared parental responsibility for making decisions about the long term care, welfare and development of the child.

    1.5That the party with whom the child is with from time to time be responsible for making decisions about the day to day care, welfare and development of the child.

    1.6That notwithstanding any other provision of this Order:

    1.6.1In even years, the child shall spend time with the father between 8.00 pm Christmas Eve and 3.00 pm Christmas Day and in odd years with the mother between 8.00 pm Christmas Eve and 3.00 pm Christmas Day.

    1.6.2The child shall spend time with the father on the Father’s Day weekend from 5.00 pm on the day before Father’s Day to 5.00 pm on Father’s Day.

    1.6.3The child shall spend time with the mother on the Mother’s Day weekend from 5.00 pm on the day before Mother’s Day to 5.00 pm on Mother’s Day.

    1.6.4In even years, the child shall spend time with the father on her birthday between 12.00 noon and 6.00 pm and in odd years the child will spend time on her birthday with the mother between 12.00 noon and 6.00 pm.

    1.7That for the purpose of collecting and delivering the child at the commencement and conclusion of the periods the child is to live with the parties, the parties or their respective nominees shall meet at [W] McDonalds except on Wednesdays when the parties shall meet at the father’s residence.

    1.8That each party authorise the school authorities, teachers or any other person having responsibility for the child’s school or pre-school education or other curricula activity to communicate directly with each parent as if the parties had not separated and to record each parent as a person to be notified in cases of emergency and provide to each parent copies of school reports and other reports relevant to the child’s education and the provision of a certified copy of this Order is sufficient authority for the purpose of this Order.

    1.9That each party keep the other informed as to any illness or injury suffered by the child which requires treatment by a medical practitioner or other suitably qualified health professional.

    1.10That each party is restrained from denigrating the other party or a member of the other party’s family either in the presence or hearing of the child.

    1.11That within seven (7) days after the date of this order that the mother notify the father in writing of her current place of residence and her current landline and mobile contact telephone numbers.

    1.12That the parties provide each other no less than 48 hours notice of any change of address and/or phone number.

    1.13That the mother pay the father’s costs and incidental to these proceedings.

22. On 17 November 2008, the mother filed a response to the father’s application.  The orders sought by the mother are set out below:

    Final orders sought:

    1.That the child, [J] born […] December 2004, live with the mother.

    2.That the child spend time with the father on a supervised basis at the [A Contact Centre] at such times and on such occasions as the centre can arrange and the cost of all such supervision to be paid by the father.

    3.That for the purpose of collecting and delivering the child from the spending time periods, the mother and / or her nominee will deliver the child to the [A] Contact Service at the commencement of the time the father is to spend with the child and collect the child from the [A] Contact Service at the conclusion of the period of time.

    Interim orders sought:

    4.That the child, [J] born […] December 2004, be separately represented.

    5.That the child, [J] born […] December 2004, live with the mother.

    6.That the child spend time with the father on a supervised basis at the [A Contact Centre] at such times and on such occasions as the centre can arrange and the cost of all such supervision to be paid by the father.

    7.That for the purpose of collecting and delivering the child from the spending time periods, the mother and / or her nominee will deliver the child to the [A] Contact Service at the commencement of the time the father is to spend with the child and collect the child from the [A] Contact Service at the conclusion of the period of time.

23. The father’s interim application was listed for hearing before a Judicial Registrar on 26 November 2008.  On that day, by consent, the Court made interim orders which are set out below:

    IT IS ORDERED:

    1.That by consent orders are made in accordance with the Interim Interim (sic) Order filed in Court today and signed by the parties and by Judicial Registrar Johnston and placed with the Court papers as attached hereto.

    2.That these proceedings are adjourned to the Judicial Registrar’s Duty List at 10 am on 11 February 2008.

    3.That the Court requests the Director of the Legal Aid Commission of New South Wales make the appropriate arrangements for the appointment of an Independent Children’s Lawyer.

    4.That the solicitors for each party respectively forward forthwith to the said Director a copy of all documents filed by them in these proceedings.

    By Consent and without Admissions by the Father That the Child Is at Risk of Harm in His Care and Without Prejudice to His Application It Is Ordered:

    1.That the child, [J] born […] December 2004 be separately represented.

    2.That the child live with the mother.

    3.That the child spend time with the father each week at a time nominated by the manager of the [A Contact Centre] with such time supervised by the [A Contact Centre].

    4.Within 24 hours of the date of these orders each party is to contact the manager of the [A] Contact Centre to make arrangements for the child to spend time with a (sic) father and as soon as possible and comply with all reasonable requests of the manager of that service.

    5.That the time the child spends with a (sic) father pursuant to these orders is suspended from 30 December 2008 until 6 January 2009.

    6.Each parties to keep the other information of any illness or injury suffered by the child while in their care which requires treatment by medical practitioner or hospitalization.

    7.Each party is restrained from denigrating the other party or a member of the other party’s family or allowing any other to do so in the presence or hearing of the child.

    8.The paternal grandmother and paternal grandfather are at liberty to attend the time the child spends with the father.

    9.Any agreement between the mother and the paternal grandparents for the grandparents to spend time with the child are made outside of these orders and can be in addition to any time the child spends with the father pursuant to these orders.

24. NSW Legal Aid appointed an Independent Children’s Lawyer.

25. After the interim orders were made the parties approached the A Contact Centre. 

26. Following completion of intake and orientation procedures at the Centre the child had her first supervised visit with her father on 14 December 2008.  This was the first time she had seen him since Easter Sunday 2008.  Since then, the father has spent time with the child each fortnight.  From time to time his parents have also attended.  The A Contact Centre were unable to facilitate supervised time every week.  As the interim orders provided for weekly visits the father sought the mother’s agreement for there to be fortnightly visits at another contact centre.  Had she agreed the intended weekly visits would have occurred.  For no good reason the mother refused the father’s request.

27. In February 2009 Ms C, who was the family consultant allocated to this case, completed interviews with the parties and child for an issues assessment.  In her assessment, the family consultant conducted a disclosure interview in relation to which she noted the child informed her “that she had been sexually assaulted by the father and confirmed that she had disclosed such information to the mother previously.”  Amongst other matters, the family consultant recommended that consideration be given to a more substantial report and pending a final hearing the child continue to spend time with the father in a supervised setting.

28. On 11 February 2009, by consent, a Judicial Registrar made orders for the appointment of Dr M as a single expert.  Dr M was requested to address the following matters:

    2.1A psychiatric assessment of the parties, with consideration to any mental health issues that may impinge on the parents’ ability to care for the child;

    2.2The allegations of sexual abuse of the child;

    2.3The benefit to the child having a meaningful relationship with both parties;

    2.4Any child protection issues, including the need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence and the parties’ ability to so protect the child;

    2.5Any views expressed by the child and any factors relevant to the weight to be given to those views;

    2.6The nature of the relationship (including an assessment of bonding and attachment) of the child with the parties and, if applicable, other persons (including any partners of the parties and relatives of the children);

    2.7The willingness and ability of the parties to facilitate and encourage a relationship between the child and the other party, together with the willingness and ability of the parties to protect the child from any parental conflict;

    2.8The likely effect on the child of any changes to her living arrangements;

    2.9The parenting capacity of the parties, including their capacity to provide for the needs (physical, emotional and intellectual) of the child, together with the capacity of the parties to prioritise the needs of the child above their own;

    2.10The maturity, sex, lifestyle and background (including lifestyle culture and traditions) of the parties;

    2.11Any other matter the single expert witness considers relevant.

29. Between 2 and 5 March 2009, Dr M conducted interviews for his report.  During the child’s interview, she disclosed sexually abusive conduct by her father, which, according to Dr M, was consistent with her statements to the family consultant and the mother.  Concerning the issue of the veracity of the child’s disclosures and behaviours, in his report, Dr M expressed the opinion that if the Court was satisfied that the mother’s evidence regarding these matters was reliable it was probable the child had been sexually abused by her father.  It was his opinion the degree of medical certainty that her father had sexually abused the child was low.

30. On 10 June 2009, the mother filed an Amended Response.  The orders sought by the mother in her Amended Response are set out below:

    1.That the child, [J] born […] December 2004 (“the child”) live with the mother.

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

    3.That the father not spend any time with the child.

    4.That the father communicate in writing with the child on her birthday, at Christmas and on the father’s birthday in each year on the basis that:

    4.1The content of the letter or card:

    4.1.1Sets out factual matters about what has been happening in the father’s life;

    4.1.2Does not contain statements to the effect that the father wishes to have face to face time with the child;

    4.1.3Does not contain statements about how the child not spending time with the father is affecting him;

    4.1.4Does not use language that lays blame on the mother for any act or circumstance;

    4.1.5Any terms of endearment be age appropriate;

    4.2The mother may read any document from the father before passing it on to the child and that she not pass it on to the child if it is her view that the father has not fulfilled the conditions of this order.

    5.The father is restrained from approaching within 100 metres of the residence of the mother, the child’s pre-school or school, and of the child’s sporting or cultural venues.

    6.That the mother notify the father within 7 days of a postal address for communication with the child in accordance with orders 4 herein and provide written notification within 14 days of any new postal address in which the father can send written communication.

1. In December 2009 the mother and Mr K married.

2. This hearing concluded on 20 May 2010.  Because there are insufficient chambers and court rooms in the Commonwealth’s Court facility in Newcastle, it had been necessary for parts of this hearing to take place in a court made available by the NSW State courts.  During those parts of the hearing relocated to State facilities, it was necessary to use portable recording equipment.  On 20 May 2010, the father tripped over a cord connected to the recording equipment.  Although we were unaware of it at the time the portable recording equipment failed to record the lengthy submissions which followed.  The following day it became apparent that although the Court had a complete record of the evidence, there was no record taken of submissions.  Accordingly, the matter was relisted that afternoon.  By agreement, the following orders and notations were entered:

   1.The mother and Independent Children’s Lawyer shall file and serve written submissions no later than close of business 11 June 2010.

   2.The written submissions referred to in the above order shall address those made orally on 20 May 2010 and shall not move into areas beyond that other than with the Court’s leave.

   3.In the event the Father considers the submissions which have been filed pursuant to the above directions exceed the limitations therein contained, he may by arrangement with my Associate, request that the matter be relisted before me within 7 days.

   4.The Court Notes that, subject to compliance with the above directions, the parties are content that the matter shall be concluded and determined.

   5.Each of the parties and the Independent Children’s Lawyer have been informed that the recording of submissions given on 20 May 2010 failed. 

   6.Subject to compliance with the directions made above the parties and the Independent Children’s Lawyer agree they have been afforded procedural fairness and that the failure of recording of the transcription of submissions does not amount to a denial or miscarriage of justice.

3. Written submissions were received from counsel for the mother and the Independent Children’s Lawyer.

Credit

1. I accept the evidence of those witnesses who were not cross-examined. 

2. Strong submissions were made by counsel for the parties about credit.  In general terms, it was contended on behalf of the father that the Court would find him and his witnesses to be witnesses of truth.  On the other hand, it was submitted the mother and her witnesses were unreliable either because they had been less than frank with the Court or for other reasons their evidence lacked credibility.  For the mother it was conceded that she and Mr K had given inaccurate evidence about when their relationship commenced, which inaccuracy was repeated to Dr M.  Notwithstanding these matters, counsel for the mother submitted the Court would find that the mother tried to be a reliable witness and provide all relevant evidence.  That is, evidence which supported her case as well as evidence, which could support an alternative explanation to the child’s statements; in other words, an explanation other than there being an unacceptable risk from the father.  In his submissions designed to persuade the Court to prefer the mother and her witnesses where their evidence conflicted, particularly with the father’s evidence, counsel for the mother submitted that the Court would find the father presented poorly as a witness, particularly when questioned about Ms G’s evidence, a sex toy known as “buzzy bunny” and photographs of his penis stored on his computer.

3. It is commonplace that in family law litigation contentious events frequently occur in private.  The Court is required to adjudicate evidentiary matters where the two participants are in conflict and there are no witnesses.  In child cases, for reasons that would be obvious, the child does not give evidence.  Evidence of events which involve the child are given by others; both as to the child’s actions and statements.  In such a case, the reliability of those witnesses who recount the child’s disclosures and actions is logically a significant issue.  In a similar vein, so too is the reliability of an alleged perpetrator of abuse, particularly where there is no doubt the alleged perpetrator has been alone with the child and an opportunity to abuse existed.

4. The mother swore three affidavits.  Between the parties there was a serious issue about when the mother and Mr K commenced their relationship. Although an extramarital affair would commonly be considered irrelevant, it became an issue of some moment.  That is, because the mother gave evidence, said to be supportive of there being an unacceptable risk, that the father had lost interest in her sexually and that for at least 12 months prior to separation they did not have sexual intercourse.  As to the latter, there was no issue.  However, the father explained that he alone was not responsible for the parties’ lack of sexual intimacy.  As the mother ultimately agreed, she had an active sexual life with Mr K and was disinterested in sexual contact with the father. 

5. The mother in her written evidence swore, “I commenced my relationship with [Mr K] in July 2007.  We had previously been friends as we had worked together.  I initially spent time with [Mr K] during the times that [the child] was living with [the father]. [J] was introduced to [Mr K] as my partner in 2007.  She has met him previously, as when we were friends we socialised with [Mr K] and his family.  Since August 2007, [Mr K] and [the child] have formed a close relationship”.  In his affidavit, Mr K said, “I commenced a relationship with [the mother]…in these proceedings in July 2007.  [The mother] and I were friends prior to the commencement of our relationship and I had met her daughter [the child] on approximately six occasions prior to July 2007”.  When Dr M took background history from the mother she told him she commenced an intimate relationship with Mr K in June 2007.  Dr M did not second guess this information with Mr M.  Consequently, he concluded the mother and Mr K, “had established a relationship in June 2007”.

6. On 30 July 2009, there was filed in the father’s case an affidavit sworn by Mr E. Mr E had worked with Mr K and the mother.  During at least the period when Mr K and the mother maintained their extramarital affair, he was good friends with Mr K.  The subject matter upon which he gave evidence concerned conversations between he and Mr K about Mr K’s sexual relationship with the mother prior to the parties’ separation.  Mr E gave evidence before the mother and Mr K.  He impressed the Court as having given his evidence in a straightforward manner and was unshaken as to its veracity.  When the time came for the mother to give oral evidence, in chief, she said that she and Mr K actually began a sexual relationship in February 2006.  She explained that the reason why there was reference to having commenced a relationship with Mr K in July 2007 was that this was when she considered they commenced a committed relationship.  Mr K gave evidence in chief to similar effect.  It was revealing that the mother did not make this correction in her later filed affidavits, that is, those filed on 5 February 2009 and 7 May 2010.  Although the mother’s evidence on this topic had the appearance of a flimsy foundation that she had deliberately misled the Court became clear when Dr M gave evidence.  He had been particular about the nature of the mother’s relationship with Mr K.  The relationship question he put to her specifically referred to the commencement of an intimate relationship.  When the mother told him July 2007 she misled him in the same way she misled the Court.

7. It was submitted on behalf of the father that the Court would be troubled by the similarity between the evidence that the mother and Mr K withheld from the Court and the reasons given by each of them for so doing.  In effect it was said to have the appearance of collusion rather than coincidence.  On the mother’s behalf, it was submitted that the Court would accept that it could be difficult for people to acknowledge an extramarital affair.  Reasons such as embarrassment or a desire not to distress others can be accepted as factors that would motivate a disinclination to reveal the truth.  Was this a relatively inconsequential matter, notwithstanding that the misrepresentation was made on oath; it may have been assessed as insignificant and not spilt over into the Court’s assessment of the mother and Mr K’s veracity as witnesses.  However, it was not inconsequential and did undermine their credit.

8. The mother and Mr K each gave Dr M the same misinformation about the JIRT interview.  Each incorrectly told him the child was interviewed by a burly policeman and two DoCS officers.  Later I discuss the situation and why I am satisfied that their evidence was knowingly wrong.  That both gave the same misinformation strongly supports the suggestion they contaminated each other’s memory or for other perhaps less generous reasons their credit was appropriately brought into question.

9. At paragraph 107 of the mother’s affidavit filed 17 November 2008, she gave evidence about a conversation she had with the child on 27 March 2008.  The mother said, “You know [J] how you were talking to me about Daddy’s noodle?  Is that the pool noodle that you use while you are swimming or is it Daddy’s noodle that he touches you with?”  The next piece of evidence she gave is at paragraph 108 where the mother said, “[the child] became withdrawn and did not answer the question and changed the subject.  I did not press [the child] for an answer”.  The mother produced under subpoena her diary notes which she kept to record, amongst other things, the child’s disclosures and the process of their investigation.  In answer to a subpoena issued by the father the mother’s notes were produced to the Court and became an exhibit.[1]

   [1] Exhibit “P”

10. From the mother’s notes it was clear the child had responded.  In her diary the mother wrote, “She said she rides around on the pool noodle when they are swimming in [BA’s] pool”.  On behalf of the father it was submitted the Court would be concerned that the mother had given a selective account of her discussion with the child and withheld from the Court evidence which was potentially exculpatory of the father.  With these submissions I agree.

11. Strong submissions were made by counsel for the father that the Court would find the maternal grandmother to be an untruthful witness who had been prepared to support the mother’s case at all costs.  At paragraph 31 of the maternal grandmother’s affidavit, she gave evidence about a conversation she had with the mother on 23 March 2008.  At paragraph 80 of the mother’s affidavit filed 17 November 2008, she gave evidence on the same topic.  Other than for one word in the fifteen line conversation their evidence was identical.  The mother did not record this conversation in her diary.  Thus she relied upon her memory of a conversation had eight months earlier. 

12. When the maternal grandmother was asked about the level of detail of conversations contained in her affidavit she revealed she had made contemporaneous notes.  On 17 July 2009 the father had caused a subpoena for the production of documents to be served upon the maternal grandmother which required her to produce, amongst other things, notes of this type. By letter dated 29 July 2009,[2] the maternal grandmother informed the Court, “…I do not possess any such documents and therefore have nothing to produce”.  The maternal grandmother said she used her notes for preparation of her affidavit which, once it had been sworn, she decided the notes were of no further use and she destroyed them.  For the father, it was submitted the Court would find the maternal grandmother’s evidence in relation to the destruction of her notes untruthful.  Thus, it was submitted, the Court would draw an inference that the non-production by her of her notes was deliberate and designed to mask that the conversations recited in her affidavit were at least inaccurate.  Although the Court was troubled by the maternal grandmother’s evidence she had destroyed her contemporaneous notes, her reasons for doing this were not so far fetched that it was appropriate to reject her evidence why she had done so or draw the inference contended by the father. 

    [2] Exhibit “CC”

13. I was more troubled about the extent to which the mother and maternal grandmother may have colluded to ensure that as far as possible they would speak with one voice about events to which both were privy.  The maternal grandmother said there had been considerable discussion in her family as to whether the child had been sexually abused by the father.  Of itself, this would not be troubling and given the gravity of the issue, would be more remarkable had it not occurred.  The nature of discussions however, lends support for the father’s submission that the value of the maternal grandmother’s evidence, perhaps on this issue also the mother’s, was diminished.  Counsel for the father cited remarks made by Sheller J, with whom McColl JA and Windeyer J agreed, in Day v Perisher Blue Pty Ltd [2005] NSWCA 110. Sheller J said,

    It has long been regarded as proper practice for legal practitioners to take proofs of evidence from lay witnesses separately and to encourage such witnesses not to discuss their evidence with others and particularly not with other potential witnesses.  For various reasons, witnesses do not always abide by those instructions and their credibility suffers accordingly.  In the present case, it is hard to see that the intention of the teleconference with witnesses discussing amongst themselves the evidence that they would give was for any other reason other than to ensure, so far as possible, that in giving evidence the defendant’s witnesses would all speak with one voice about the events that occurred.  Thus, the evidence of one about a particular matter which was in fact true might be overborne by what that witness heard several others say which, as it happened, was not true.  This seriously undermines the process by which evidence is taken.  What was done was improper.  The process adopted was more concerned with ensuring that all the witnesses gave evidence which would best serve their employer’s case.  This realisation makes particularly sinister the precept in the Witness Protocols for Court Cases and Arbitration Hearings, “Not about facts about credibility”.

14. I do not accept that eight months after a reasonably lengthy conversation, the mother was able to recall in identical terms the words they used.  While the gist of the conversation may have reasonably been to hand, a word for word reproduction of it would be improbable.  That it was identical indicated that it was highly likely they refreshed each other’s memories, in relation to the mother quite possibly from the maternal grandmother’s notes.

15. I was troubled by the mother’s unorthodox approach to the distribution of Dr M’s report.  On the front page of this report there is written “NOTICE TO PERSONS RECEIVING COPIES OF THIS REPORT”.  These words are in capital letters, bold text and underlined.  The importance of the notice is self-evident.  At paragraph 1 the notice records, “This report is distributed by the Registry Manager of the Court under Part 15.5 of the Family Law Rules.  It must be treated as confidential and must not be shown to any person other than the parties, their lawyers and any other person the lawyer concludes necessarily needs to see the report for the purposes of the case”.  The day before the maternal grandmother was due to be cross-examined; the mother gave her Dr M’s report.  According to the maternal grandmother, this was so that she could be reminded about what she had said in April 2009 to Dr M.  It showed that the maternal grandmother and mother believed the maternal grandmother’s memory after such a period was not so reliable that she could recall the details of this important meeting, a concern which cast doubt on other matters the maternal grandmother claimed to accurately recall after more than a few months.  Of particular concern was that the mother and maternal grandmother were content to ignore the Court’s notification and direction against its disclosure and, of even greater concern, the extent to which they were together willing to work on their evidence.  Although it may be said that the mother and maternal grandmother were unaware how their actions were likely to taint their recollections and evidence, their shared willingness to ignore the notice reveals they were content to breach clear instructions.  Not only do these matters undermine their credit in relation to their evidence on the sexual abuse matter but shows that Dr M’s tentative acceptance of the mother as an accurate historian was somewhat misplaced.  

16. I will discuss later other aspects of the credit challenges made on behalf of the father.  I turn now to consideration of the submissions made as to credit on behalf of the mother.  Central to this issue is consideration of the conflict between the evidence adduced about an incident in which the father was involved at a Beach on 1 October 1993.  The mother called Ms G as a witness in her case.  Ms G does not know either party.  There was nothing presented in evidence or in the way Ms G gave evidence which suggested that she was motivated by anything other than a desire to tell the truth as best she could.  So that it is clear, I am satisfied that Ms G gave a frank account of events and was genuinely independent of the parties.    

17. On 2 October 1993, Ms G, who was then 14 years old, gave a statement to police.  There is no dispute that she and two other teenagers were at the Beach the day before.  So was the father.  Ms G saw him lying down about 15 metres away.  He was naked and “had his legs open and his knees pulled up”.  There is no dispute that this Beach is not a designated nudist beach.  About one minute later, when Ms G again turned around, she saw him “touching his penis and he was masturbating”.  Three times she looked back and on each occasion she said, “He would look at us and he would masturbate”.  The teenagers went for a swim.  The father also entered the water, albeit, in underpants and about 10 metres away. From what Ms G could see she thought he seemed to be masturbating again but was not certain.  About one minute after Ms G and her girlfriend left the water, so did the father.  Ms G said she was becoming worried about the father’s behaviour and wanted to go home.  She said she saw the father lie down whereupon he “then pulled his penis out of the side of his underpants and started to play with it”.  On her way home she ran into her older brother and told him what had happened.  Her brother found her father, who it seems went looking for the then unidentified male.  About 45 minutes later the father was, in effect, apprehended. 

18. Ms G was cross-examined for over an hour.  I agree with counsel for the mother’s submission that she was an impressive witness.  In relation to whether or not the father had been masturbating, which was a particular controversy, her evidence was unshaken. The father’s evidence, which on this topic was reasonably extensive, was argumentative and unimpressive.  It will be discussed more completely later.  Dr M sought to explore this issue with the father.  He had no clearer a response from the father than did I.  In relation to this incident, the father told Dr M no more than he had been 23 years of age at the time and “had possibly been under the influence of marijuana”.  It was established the father was willing to lie about the Beach incident to the mother and his parents.  He told the mother he had been sunbaking naked and, following upon a complaint, there would be a court matter.  He did not tell the mother he had been questioned about masturbation.  In relation to his parents, he told the mother that if they saw mail from a solicitor he would falsely say this related to him having witnessed a car accident.  As events transpired the father’s parents did not learn about the incident and the lie remained unspoken.

1. While there is no doubt the father misled the mother and, by omission, his parents it is easy to understand why, at the age of 23 years he behaved this way. He did not then lie under oath.   I perceive no significance in the determination of these proceedings about whether or not the father lied all those years ago about the incident.  This must be distinguished from the manner in which the father gave evidence about this issue.  In relation to this matter, he deliberately misled Dr M and the Court.

2. The mother said she discovered on the father’s computer approximately 50 photographs of his erect penis.  In his affidavit, the father did not challenge the number of photographs the mother said she saw of his penis or that his penis had been erect.  The father initially told Dr M there had been “a few” penis photographs and said there had not been as many as 50.  It was his final estimate there were “20 or so” photographs.  To Dr M and in his oral evidence, he denied he had an erect penis.  The father’s evidence on this issue was argumentative and in relation to the number of photographs unclear.  As to the number of photographs, the father had the opportunity to address this issue when he answered the mother’s evidence in his affidavit filed 31 July 2009. The father’s denial that his penis had been erect was made for the first time to Dr M then repeated in his oral testimony.  In relation to both matters and probably for perceived forensic advantage, the father sought to deny matters he had, in effect already conceded.  I am satisfied the number of photographs is likely to be much closer to the number the mother alleged and I am persuaded his penis had been erect. 

3. So that it is clear, at paragraph 152 of his affidavit, the father summarised the mother’s evidence in relation to these matters.  His evidence in paragraph 152 made it clear that he was cognisant of both the number and nature of the photographs described by the mother.  His failure to deny these matters in paragraph 154 of his affidavit was thus, not an oversight on his part.

4. On Sunday 9 March 2008, the maternal grandmother delivered the child to the father.  When the paternal grandmother undressed the child for a swim she observed abrasions across the child’s bottom and a bruise in the small of her back.  In his oral testimony, the father gave a long and detailed account of how, in the lounge room, he immediately applied cream to the welts and photographed the injury.  On his initial version, he did this before they went swimming.  The photographs were annexed to his affidavit.  From these it was clear the child was naked from at least the waist down, her body was wet and she was standing in a tub or bath.  Having given his elaborate description the father agreed in cross-examination his evidence was wrong and that the photography and application of cream occurred later in the day after the child had been bathed.  The father’s mother corroborated his second version of events.  The father’s evidence on this issue suggested, in this regard at least, his memory was unreliable.

5. According to the father, on 5 February 2008 he walked into the lounge room and saw the mother lying on the floor with her underpants down and the child standing beside her.  Because he thought the situation to be most peculiar he reached for a digital camera and photographed the scene.  He said he asked the mother what she was doing and then removed the child and dressed her for bed.

6. The following day he said he asked the child what she and the mother had been doing, in response to which the child replied “looking for buzzy bunny daddy”. The father asked the child where buzzy bunny was and she led him to her bedroom where she showed him a vibrator which looked like a bunny. 

7. The mother denied aspects of the father’s evidence.  According to her the photograph was taken after she had her shower.  Whilst scantily clad she asked the father to inspect her skin.  He obliged, then pulled her underpants halfway down her bottom and suggested she might consider hair removal.  When the mother was unable to see what he referred to the father took some photographs of her bottom and showed her. 

8. The photograph which the father took was attached to his affidavit.  From this it is clear the mother’s hair is wet and she appears to be turned towards somebody, probably the father.  The mother’s presentation in the photograph is consistent with her evidence in relation to which on this matter where it conflicts with the father’s evidence, I prefer that given by her.

9. I accept the mother’s evidence that in their rental home she stored her clothes and shoes in a separate tallboy in the child’s bedroom.  Buzzy bunny was stored in the top draw of her tallboy and was inaccessible to the child.  It is unnecessary to fully describe the nature of the sex toy, a photograph of which was tendered, and sufficient to observe it does not appear to be mechanised and is designed to be placed over a penis.  Whether the father located the vibrator in January, as was alleged by the mother or early February, as was alleged by him, was of no moment.  Even on the father’s evidence, there was no evidence the child had seen “buzzy bunny” other than idle.  Her reference, as asserted by the father, to it being “buzzy” was inconsistent with the nature of the item and the mother’s evidence.  I am satisfied the father fabricated his discussion with the child about buzzy bunny.

10. The mother and her counsel asked a rhetorical question, which was, why would the father lie about this and other aspects of his sexual behaviour?  The point being he would only lie if he had something to hide, namely that he sexually abused the child.  In addition, if he lied about those matters the Court would be concerned he had lied when he denied he sexually abused their child.

11. I agree with counsel for the mother’s submission “The father presented as a ‘clever’ combative and non-responsive witness”.  However, in the context of a discussion about extra marital affairs, counsel for the mother said, “for good or bad it is not an uncommon scenario for fibs to be told”.  I have accepted that this is so but because the fib here related to a material matter, the significance of which the mother and her partner were aware their credit was tarnished.  Counsel also submitted that the Court would, even if it made findings adverse to them on these matters, nonetheless accept the mother and Mr K as sincere witness and, where their evidence conflicted with the father’s on other matters prefer their evidence.  The point being, a witness may be accepted on some matters yet not others.

12. The differential approach contended for by counsel for the mother is also available to the father.  It is not difficult to understand why a person accused of child sexual abuse might determine they would not admit sexual behaviour which could be accepted in some quarters as aberrant.  It is not uncommon for people to find it difficult to admit what they fear may be misinterpreted as indicative of behaviour which they know has not occurred. Clearly the father gave no such explanation for his untruthful answers about his sexual behaviour.  His dishonesty in this regard protracts from his credit.  As does his deliberate attempt to mislead the Court about “buzzy bunny”.  However, the credit issues which I have discussed, even when combined with matters to which I will later make reference, do not persuade me that the father’s evidence should be rejected entirely.

13. On balance, and for the reasons discussed above and elsewhere, I am not satisfied the mother, maternal grandmother and Mr K have accurately and completely recorded matters in relation to the child’s statements and the risk the father may sexually abuse her.  While they may believe they did their best to ensure the Court received accurate evidence about the child’s disclosures, in some instances, I am satisfied their evidence was intentionally misleading while in others unintentionally they appear to have corrupted each other’s testimony.

14. I do not accept the father’s evidence in relation to his behaviour at the Beach, buzzy bunny and various masturbatory and exhibitionist behaviour observed by the mother.

15. Counsel for the mother submitted Dr B was a poor witness in that he failed to answer questions directly and often volunteered unresponsive material.  In essence, it was submitted he was partisan which bias in favour of the father compromised his evidence.  I do not accept this characterisation of Dr B’s evidence. As counsel for the father pointed out, Dr B did not adopt the child’s denials in the JIRT interview as evidence of the fact and explained how the process had been compromised.  Had Dr B been partisan in the manner submitted by counsel for the mother this is where that would have become particularly apparent.

16. Later in these reasons I explain why I rejected counsel for the mother’s submission that the paternal grandmother’s evidence was unreliable.  Although it was a matter of surprise, given the paternal grandparents’ ages and the circumstances under which prior to Easter 2008 the child spent time with them, I am not satisfied I should reject as inherently incredible her evidence that while the child was with them she never went shopping.

General Law in parenting cases

1. Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.

2. Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.

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

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

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

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

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

   2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;  and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);  and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture; and

   (b)      to have the support, opportunity and encouragement   necessary:

   (i)         to explore the full extent of that culture, consistent                   with the child’s age and developmental level and the   child’s views; and

   (ii)      to develop a positive appreciation of that culture.

3. In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.

4. Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its subsections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately, the weight attached to each factor is a matter for the Court’s discretion.

5. The sequence of determining parenting orders is important. If the Court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA ‘consider’ means a consideration tending to a result, or to consider positively the making of an order. Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:

   (1)The time the child spends with the parent includes both:
   
   (i)       days that fall on weekends and holidays;  and
   (ii)      days that do not fall on weekends or holidays; and

   (2)the time the child spends with the parent allows the parent to be involved in:

   (i)       the child’s daily routine; and
   (ii)      occasions and events that are of particular significance to the   child; and

   (3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

6. The child’s best interests remain the overriding consideration.

7. Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly, where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.

General principles to be applied in determining abuse allegations

1. The legal principles to be applied in a case involving allegations of sexual abuse are laid down by the High Court in M v M (1988) 166 CLR 69. The oft quoted passages are found at pp 76-77 where the High Court held:

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

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

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

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

   In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

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

1. The mother’s and Mr K’s view were strengthened by the family consultant’s opinion and Dr M’s report.  During the hearing, I observed them attentively listen to the evidence.  Each of them gave evidence they would cooperate with orders for the child to spend unsupervised time with the father.  Although each of them made it plain they believed the father sexually abused the child and there was an unacceptable risk he may in the future again do so, I formed the view that with time both were capable of accepting that others more experienced than they independent of the family, were better equipped to assess the risk.  The effect of this is that although they would each find it difficult to encourage a close relationship between the child and the father other than in a supervised setting, each of them was willing and persuaded me has the ability to do so.

2. Had the father not participated in reasonably extensive counselling after the sexual assault allegations were made I would have been concerned that he may have sought to undermine the child’s relationship with the mother and Mr K.  With therapeutic intervention he has abandoned his strongly felt antipathy towards Mr K for, as the father saw it, ruining his relationship with the mother.  The father appeared genuine when he gave evidence he accepted the mother’s relationship with Mr K.  While he clearly had been angry and jealous these feelings no longer colour his attitude.

3. During his oral evidence the father expressed remorse he had dismissed the mother’s request on Easter Sunday for information about the bike riding incident.  He also expressed regret for the unpleasant names he called her and the increasingly hostile situation in late 2007 and early 2008 during contact change-over.  Although it has required considerable therapeutic support and introspection on his part the father was able to recognise and accept his actions contributed to the suspicious climate which was the genesis of these child sexual assault allegations.

4. During his visits with the child at the Contact Centre, the father has not denigrated the mother or Mr K.  True it is he may have anticipated the Court may receive the centre’s notes and thus was on his best behaviour, the notes demonstrate the father is able to suppress any antipathy he harboured towards the mother and/or Mr K when in the child’s presence.

5. Prior to Easter 2008 the father regularly collected and ensured the child’s return to the mother.  Although the mother allowed Mr K to inform DoCS the father was a flight risk with the child, as I have earlier found, there was no basis for this suggestion.  My point is I am strongly satisfied the father would not retain the child in an attempt to disrupt her relationship with her mother. On balance, I am satisfied that while the child is with the father he is unlikely to undermine her relationships with her mother and other members of the mother’s family. 

6. Section 60CC(3)(d) concerns the likely effect of any change in the child’s circumstances, including separation from parents or any other person with whom the child had been living. This too is an important matter. On the mother’s application, the child’s circumstances would change through the cessation of face to face contact with her father. As I have earlier found, this would destroy their relationship. Almost certainly, it would have adverse short and long term effects. Not only would the child grieve for her father but long term she would need to grapple with the loss of one of her founding relationships which is an important aspect of her identity.

7. On the father’s application the child would transition from supervised to unsupervised time with him and, reasonably soon, she would divide school holiday time equally between her parents and term time five nights with the father in each fourteen with the balance to the mother. 

8. Until Easter 2008, the period following separation, the child’s time was divided equally between her parents. While the frequency of the moves were concerning and inconsistent with the child’s reasonable need for stability, the child understood and accepted that she lived in two homes and was cared for separately by her parents.  Since then she has adapted to her mother’s primary care and, for the moment putting to one side her belief her father has hurt her, this fact alone militates against too dramatic a change to the child’s living arrangements.

9. Counsel for the father confirmed that the father’s decision to abandon his application that the child live with him was, in part, influenced by his appreciation the child would be distressed and confused if she was removed from her mother’s primary care or their relationship dramatically diminished.  The final orders submitted by the father struck a more appropriate balance between the importance of re-establishing her relationship with him but not at the expense that changes to the child’s living arrangements, if too dramatic, would cause the child.  History has demonstrated the child has maintained a loving relationship with the mother in circumstances where her time was divided equally between her parents.  This relationship has a strong foundation and its quality is unlikely to diminish if orders are made as sought by the father.

10. Although Z does not live with the mother full time, he spends five nights each fortnight during school term in her home.  Because these children enjoy each other’s company it would be desirable for the child’s time with the father to coincide with periods Z is in his mother’s care.  Although I have the details of how his time is divided I do not have a clear timetable about precisely when he would be with his father. 

11. The child has never lived away from Y.  This sibling relationship may change if the children do not live together all of the time.  However, the change would reflect of their lives, namely their different parentage.  Living apart for the periods proposed in the father’s suite of orders would still have the children living together most of the time.  Thus, their sibling relationship would remain strong.  As a consequence and although I accept that the child may initially miss her younger brother if she was with her father, she would be likely to adjust to this change and come to accept it as part of the routine of her life.

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

13. This was not considered to be an important matter.  For the foreseeable future the mother and child will reside at E and, if the child spends time with the father, with him at C.  The parties each have motor vehicles and are able to either personally deliver and collect the child or arrange for close family members to help out.

14. If orders were made which ultimately would have the child travelling between school and her father’s home each fortnight, it would be likely to require about a one hour drive.  This would be unlikely to impact upon her educationally or in any other adverse manner.

15. Section 60CC(3)(f) concerns the parties’ capacity to provide for the child’s needs, including her emotional and intellectual needs. To an extent, this factor is connected to the nature of the child’s relationship with the parties. My findings about these matters do not require repeating.

16. It is appropriate to observe both parties are genuinely interested in being the best parent to their daughter each is capable to being.  Provided the parties are able to avoid repeating history whereby the child was exposed to their negative views about aspects of each other’s parenting capacity or generally, each has the capacity to provide for her needs. 

17. In relation to the mother, her greatest challenge will be to desist with ongoing questioning and reinforcement with the child of the idea that the father sexually abused the child.  I have accepted her evidence she would be willing and able to promote the child’s relationship with her father and thus, the type of emotional havoc which would otherwise embroil the child whilst in the mother’s care is highly likely to be avoided.

18. If the father had maintained his angry and jealous stance towards the mother and Mr K and behaved towards the mother at change-over as he did in late 2007 and early 2008, his capacity to meet the child’s emotional needs would have been compromised.  It is well accepted that this style of hostile behaviour between parents is both upsetting and emotionally destabilizing for children.  However, his views have changed and I am confident that event if the father privately holds unflattering opinions about the mother and/or Mr K, the child will not be exposed to them.  He impressed me as intellectually quick and demonstrably able to promote the child’s educational and intellectual needs.  Irrespective of whether or not he has his parents’ able assistance the father is more than capable of meeting the child’s various needs.

19. There are no further s 60CC(3)(g) factors which require consideration.

20. Aboriginal and Torres Strait Islander issues do not arise.

21. Section 60CC(3)(i) concerns the parents’ attitudes to the child and parental responsibility.

22. Until Easter 2008 the parents were able to cooperate in relation to major matters for the child.  They agreed upon where she should live, change-over arrangements, medical care, day care arrangements and the like.  Although agreement on all matters was not always available by and large by keeping their focus upon the child the parents cooperatively exercised their parental responsibility.  Although it would have been preferable for the father to cooperate more fully with the mother in relation to the process upon which the child was withdrawn from bottle feeding, this was not a matter about which it would be appropriate to make strong adverse findings in relation to his exercise of parental responsibility.

23. Both parties are committed to appropriately meeting their obligations as parents into the future.  The issue which will require consideration is whether they would be able to communicate sufficiently well to jointly make long term parenting decisions.

24. Section 60CC(3)(j) and (k) concern family violence and whether there is a family violence order. There is no family violence order or risk of family violence in either home.

25. Section 60CC(3)(l) requires that the Court consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. This litigation has taken a heavy toll, financially and personally upon the parties. Further litigation would be likely to exacerbate the tensions which might otherwise ebb and flow between the parties and as far as possible this should be avoided. Whichever suite of orders the Court makes would involve at least a theoretical risk of further litigation. Ultimately, there is little to distinguish the probability of future proceedings.

26. If, however, the mother in the face of orders for the father to spend unsupervised time with the child, were to fail to cooperate and/or undermine the child’s relationship with him through further questioning and reinforcement of the notion he sexually abused her, the risk of litigation would increase.  If the mother were to adopt such an approach she could reasonably anticipate that the father may be on strong ground to argue that this was contrary to the evidence she gave in this hearing and a sufficient change in circumstances to warrant the Court considering the matter afresh.  While I take these factors into account they warrant relatively modest weight.

27. There is considerable overlap in s 60CC(4) and (4A) with s 60CC(3). I have already considered the matters which existed prior to and close to separation. A minor issue arose in relation to the father’s contribution towards dance fees. However, it is clear he pays and has always paid significant child support and I am satisfied he is likely to do so.

Conclusion and structure of the orders

1. When making a parenting order the Court must apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility. The presumption does not apply in the circumstances specified in s 61DA(2) and may be rebutted if the Court is satisfied application of the presumption would not be in the child’s best interests.

2. The mother and Independent Children’s Lawyer proposed that the mother have sole parental responsibility. The father submitted he and the mother should jointly make major decisions for their daughter’s long term care and welfare.  Prior to Easter Sunday 2008, as I have already found, the parties adopted the approach which the father said should continue.  During submissions, I expressed concern about the manner in which the parties arranged the child’s post separation living arrangements and observed these were examples of poor major decisions.  Counsel for the father pointed out that although other parents more cognisant, for example, with social science literature about patterns of parenting post separation, might have realised that constant movement between the parents’ homes was undesirable these parents were not so informed.  He was correct when he submitted this was a joint decision made with good intentions as far as the child’s interests were concerned. 

3. The point which flows from this is that although the parties’ ability to communicate prior to Easter Sunday 2008 was not without difficulty, by and large they were able to agree on matters in relation to their daughter and where they disagreed each was genuinely motivated by their individual view of what was best for her.  These are important matters.

4. The particular difficulty for the future is the extent to which the parties would be able to communicate and problem-solve potential disagreements involving the child.  The parties have not spoken since Easter Sunday 2008 and it is difficult to perceive when civil face-to-face discussion might occur.  Both of them say they are willing to try.  Although in the short to medium term, it is probable that at best, face to face communication would involve an uneasy truce with little more than essential and cursory discussion likely, there is reason to be more optimistic about the long term situation.  This is because both are able to benefit from therapeutic intervention and both are strongly motivated to be good parents.  Amongst other reasons, this is a sound reason to make the order proposed by the Independent Children’s Lawyer, that the parties attend a post separation parenting program.

5. Face to face discussion is not, however, essential for the effective exercise of joint parental responsibility.  Alternate means of communication, such as email and by telephone, are reasonable alternatives.  Each of the parties has the technical and emotional ability to manage this style of communication.  This would be a useful adjunct when face to face discussion may be difficult.

6. As I have already found, I am not persuaded the father presents an unacceptable risk of abuse to the child.  The child has enjoyed a wonderful relationship with him which, according to Dr M, should resume in a real way if a no unacceptable risk finding was made.  It is my view this is the only way the child would have the benefit of a meaningful relationship with the father and move beyond her current erroneous belief he hurt her.  She needs again to experience him carrying out his parenting role to the fullest appropriate extent.  Thus, and notwithstanding the difficulties with the parties’ ability to communicate and their different views upon whether the father presents an unacceptable risk of sexual abuse to the child, it is in her interests that the parties have equal shared parental responsibility.

7. Neither party sought an equal time order.  The orders proposed by the father satisfy the definition of substantial and significant time referred to in s 65DA(3). 

8. The Independent Children’s Lawyer provided a suite of orders.  One addressed the situation if the Court found an unacceptable risk and the other if the Court found there to be no unacceptable risk.  In the latter scenario the Independent Children’s Lawyer proposed a graduated program which would culminate in the child spending each alternate weekend from Friday, 5.00 pm to Sunday, 5.00 pm and for half of each school holidays with the father. In these circumstances, Dr M supported a graduated program, with his approach being supportive of the notion the child would a little time to adjust to the idea she was safe with her father.

9. I am confident the child would manage the transition from supervised to daily unsupervised visits followed by continual increments to longer periods without adverse long term consequences.  In the short term, her paternal grandmother’s presence would help her feel safe and may provide the mother and her family members with a modicum of comfort.  The paternal grandmother is willing to be present.  The strength of the child’s relationship with the father is such that quite quickly she is likely to abandon any concern he may hurt her.  The most likely scenario is that she would be excited to be back in his care, the home she shared with him and her grandparents.  While there may be moments of fleeting anxiety these will be moderated by presence of the paternal grandmother and disappear with the passage of time.  There is no great difference between the duration and frequency of the initial period between the orders submitted by the Independent Children’s Lawyer and the father.  I have adopted the Independent Children’s Lawyer’s initially more cautious approach so as not to put the child under undue pressure.  Minor adjustments have been made to suggested hours thereafter to suit the season and to not have the child home too late in her kindergarten year. 

10. I have not accepted that the father abused the child and am satisfied her belief he has is based on ideas constructed from circumstances unrelated to abuse.  Provided she is given an opportunity to spend happy times with the father and his family and to not have these ideas reinforced, her erroneous belief will fade and constructed memories disappear.  It will thus be important and appropriate for the child to again enjoy a full and happy life with the father and her paternal family.

11. With respect to the orders proposed by the Independent Children’s Lawyer, the arrangements during school term which it was submitted would commence in 2011 do not find favour.  In the context of this case, the suggested arrangement would be an inadequate response to the quality of the father’s relationship with the child and the benefits she would derive from his more fulsome involvement in her care. While the amount of time the father proposed during school term was more appropriate, he would have the child moving every week between her parents’ homes.  It was a proposal which would see this child with a long term chaotic living arrangement.  A superior and, in the long term, more sustainable approach would be for the father to have block periods each fortnight. 

12. I agree that during school term an outcome which has the child eight days in each 14 days with the mother and the balance with the father is appropriate.  Because of the events which have occurred since Easter Sunday 2008 this child is used to her mother being her primary carer.  She would be likely to struggle if she was separated from her for longer periods during school term or the primacy of her mother’s care was substantially reduced.  So that both parties spend time with the child on weekends, commencing 2011, during school term the child will live with the father from Thursday until Tuesday each alternate week.

13. I agree with the approach adopted by the Independent Children’s Lawyer that block periods of school holiday contact would not commence until the end of Term 1 in 2011.  Periods longer than the five days a fortnight approach discussed above are likely to be too ambitious for the child and the mother before then.  Rather, it is preferable to maintain momentum and rhythm in the child’s parenting arrangements and not place her under undue pressure.  By the time the end of Term 1 2011 arrives the child will be well settled in regular and longer periods with the father and should transition really easily into the longer periods involved in half school holiday periods.

1. Arrangements will be made for the child to enjoy special days with both parties and, as far as possible, for change-over to take place at school or other agreed venues.  Because I have not commenced holiday orders as early as proposed by the father there was a chance he may again miss the joy of Christmas Day.  Thus, there will be a stand alone order for Christmas Day 2010.  Thereafter the child will spend Christmas with the party with whom she will be during the holidays.  

2. There are a series of injunctions, the terms of which are self-explanatory.  Some are designed to ensure the child is protected from the type of questioning about her time with the father to which she has been subjected.  There are orders which are designed to ensure the passage of relevant information between the parties and that in the event a third party is called upon to investigate further allegations about the father’s conduct, that person or agency is provided with a copy of these reasons and orders.  I do not consider it necessary for an order that Dr B’s report is also provided.  Affidavits are not generally circulated and provided an investigator has a copy of these reasons, the matters referred to in Dr B’s reports are adequately encapsulated.

3. I have not made an order for telephone contact because this may result in disputes between the parties and unplanned contact between them.  The child will spend a sufficient amount of time with the father that the absence of telephone contact would not have a material impact upon their relationship.

4. The Independent Children’s Lawyer proposed, at Order 7, a series of injunctions which would restrain the father from sleeping in the same bed or bedroom with the child, being naked in her presence or from taking photographs of her naked.  Following the context of this case, the father would be wise to adopt these practices.  However, it would be undesirable for orders to be made which would restrain him from so doing.  This is because I accept the father is highly unlikely to behave in this manner and I do not consider that in the past he has behaved in an inappropriate manner towards the child or that in the future he is likely to.  The father will not be ordered to resume therapy. If however he perceives some benefit in doing so he is likely, without order, do so. 

5. Before I entered the draft orders I invited the parties to review them and make further submissions if they wished about some of the more intricate details of change-over, special days and the like.  The matter was then stood down and upon resumption the orders were slightly tweaked to reflect the minor agreed variations.  I have made the draft orders an exhibit.

6. The orders identified at the beginning of this judgment are the orders as originally drafted but with the minor variations incorporated.

7. For these reasons I am satisfied that the orders identified at the beginning of this judgment are in the child’s best interests.

I certify that the preceding three hundred and seventy six (376) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

A/g Associate:          

Date:    14 July 2010