Washington and Washington

[2019] FamCA 994

FAMILY COURT OF AUSTRALIA

WASHINGTON & WASHINGTON [2019] FamCA 994

FAMILY LAW – CHILDREN – Interim Parenting – Where the mother maintained from the date of the parents’ separation up until the fourth day of hearing that the father had sexually abused the parties’ daughter – Where the father contended the children had been psychologically abused in the mother’s care as they have come to believe he poses a risk of harm to them – Where the mother dramatically changed her position after her case was complete and the expert had been cross-examined – Where the parties reached agreement about orders that would see the children resume a relationship with their father on an interim basis – Where it is concluded that the mother made an appropriate concession that the father does not pose an unacceptable risk of harm on the basis that he may sexually abuse the daughter – Where the only area of dispute between the parties relates to the children’s education – Where additional considerations considered – Where the children are Aboriginal and this is a significant matter in relation to one of the proposals for school – Where it is in the children’s best interests that they attend the school as proposed by the father.

Family Law Act 1975 (Cth) ss 4, 60CC, 65D

APPLICANT: Ms Washington

RESPONDENT: Mr Washington

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: PAC 6146 of 2017

DATE DELIVERED: 20 December 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 30 September 2019 - 3 October 2019, 17 October 2019 – 18 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lawson

SOLICITOR FOR THE APPLICANT: Campbell Paton & Taylor

COUNSEL FOR THE RESPONDENT: Ms Mahony

SOLICITOR FOR THE RESPONDENT: Coleman Greig Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Temelkovska

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

Orders

Pending further order

1. The parties must do everything necessary to enrol the children in C School School in Town D for the school year starting 2020.

2. All the costs of the children attending C School will be paid by the father.

3. Each of the parents is allowed to communicate with the children’s school as they need to and may attend all activities that the children take part in that parents are usually allowed to attend.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 6146 of 2017

Ms Washington

Applicant

And

Mr Washington

Respondent

REASONS FOR JUDGMENT

Introduction

1. On the fourth day of a parenting dispute in relation to two children (a girl aged nine (“the daughter”) and a boy aged five (“the son”)) the mother dramatically shifted her position.  Up until that day she had maintained from the date of the parents’ separation in about October 2016 and for the following three years that the father had sexually abused the parties’ daughter.

2. Up until the fourth day of the hearing the mother had at all times sought orders that she have sole parental responsibility for the children and that the children live with her.  In the event that the Court made findings in line with her contentions that the father had sexually abused the daughter then the mother sought orders that the children spend no time with or communicate with him.

3. Until the mother’s change in position the father had sought orders that he have sole parental responsibility for the children, that the children relocate to live with him a significant distance from their current home with their mother and that the children spend a gradually increasing amount of time with the mother starting with day time contact.  It was the father’s position that the children had been psychologically abused in the mother’s care as they had come to believe that he posed a risk of harm to them and to the daughter in particular on the basis that he had sexually abused that child, a matter which at all times he maintained was untrue.

4. Throughout the proceedings the stakes were very high for the children.  It was effectively a common position that each of the parent’s proposals involved dramatic consequences for the children.  If orders were made as the mother proposed the children would have no prospect of a relationship with their father in the future.  For the son who does currently spend some limited supervised time with the father this would involve an immediate loss of that relationship.  The daughter who has not seen the father for over two years would miss the opportunity for the relationship with him to be rekindled and developed in the future.  The father’s proposal would see significant disruption and likely trauma for the children in being separated from their mother who has been their primary carer throughout their lives.

5. The dramatic change in the mother’s position which occurred after her case was complete and the expert had been cross-examined formed the foundation for the parties to reach an agreement about orders that would see the children resume a relationship with their father which the expert considered would provide the best outcome for them.  The expert also felt that to succeed, this resumption in relationship needed to be supported by both parents and the whole maternal family and involve the children experiencing their father and mother act normally towards one another and learning that the world was a safe place and that conflict can be resolved respectfully without the need for ongoing fear.  It is also the expert’s view that this would be best achieved by the children living with their mother, the parents sharing parental responsibility and the children having regular time with their father which would move to overnight time on a reasonably regular basis with him.

6. The recommendation of the expert for the parenting arrangement that would provide the best outcome for the children required significant compromise on behalf of the mother.  By necessity it required her to concede that the father does not pose any unacceptable risk of sexual harm or other harm to the children.  These concessions were recorded in the interim orders that were made with the parties’ consent.

7. I also noted for the purposes of making the interim orders that my own views were as conceded by the mother that the father does not pose an unacceptable risk of sexual harm to the daughter, does not otherwise pose an unacceptable risk of harm to the children and that it is in the daughter’s best interests to be reintroduced to her father so that both children can have a meaningful relationship with their father.  When noting these matters I indicated that I would publish my reasons for doing so at a later stage.  These are those reasons.

8. The father had not been cross-examined at the stage the proceedings that had been reached when the interim orders for the children’s parenting arrangements were made with the consent of the parties.  He has at all times denied any wrongdoing in relation to the children, in particular of a sexual nature in relation to the daughter.  All of the other evidence in relation to the allegation, such as the various JIRT[1] interviews was at that stage before the Court and the cross-examination of the expert was complete.  In this sense I am considering the mother’s case at its highest in relation to the allegations of risk previously said to have been posed by the father.

   [1] JIRT - The Joint Investigation and Response Team, made up of officers from police and Community Services investigates allegations of serious child abuse.

9. The consent orders to which the parties agreed on 18 October 2019 are expressed to be interim orders.  The parties envisage as I understand it that if the goal of re-establishing the daughter’s relationship with the father and fostering his meaningful relationship with the children is achieved the parties will be able to agree to final orders which will govern the children’s parenting arrangements in the future. 

10. The expert opined that it should be known whether the interim orders have been effective within a period of about six months.  In the event the parties are then unable to reach agreement about final orders the proceedings will be listed in June 2020 for further case management and directions in relation to the resumption of the trial.  If this were to occur then it is accepted by the parties and the mother in particular that the hearing would resume on the basis that the Court had found that the mother’s concession that the father does not pose a risk of harm to the children was well founded.

11. The parties were able to reach agreement in relation to all interim matters except the particular school that the children are to attend.  Evidence in relation to this issue was adduced and submissions made on the final day.  My decision as to which of the competing proposals for the children’s schooling is proper having regard to their best interests being the paramount consideration was reserved.  This judgment is also concerned with that matter.

Background

1. The mother who is 35 and the father who is 42 met and began a relationship in around 2007 and were married in 2009. 

2. Many years before the parties’ marriage the paternal grandparents had become aware that when the father’s sister (“the paternal aunt”) was 11 to 12 years old the father who was then aged about 20 sent her a series of letters that were inappropriate in nature.  The letters were sent after the father found photographs of the paternal aunt in sexually explicit poses.  The first letter sent by the father who was inexperienced and naïve about sexual matters apparently contained questions seeking information about such matters, and was left with the photographs for the paternal aunt to find.  The paternal aunt then provided the information that the father sought in exchange for favours (not of a sexual nature) by the father.  Other letters were sent by the father and responded to by the paternal aunt in a similar vein.  The letters came to light when another paternal aunt found them and the photographs and informed the paternal grandparents as this sister was troubled by them.  The paternal grandparents spoke firmly with the father and the paternal aunt at the time about the inappropriate nature of these letters which have since been destroyed.

3. A few months before the parties were married the maternal and paternal grandparents and other family members met with one another for the purposes of mending the relationships between the two families that had become strained when the paternal aunt and a maternal uncle had been in a relationship.  In the context of that meeting the issue of the photographs and letters arose.  It appeared to the mother that there had been an allegation that the father had done something untoward of a sexual nature to the paternal aunt but when she asked him about it the father reassured her that he had done nothing more than write letters. 

4. Shortly after their marriage and at a time when the mother was pregnant with the daughter the parties decided to move from where they were living on the E Region near the paternal family to live with the maternal grandmother in a regional centre in the central west of the state.

5. The daughter who is now aged nine was born in 2010. 

6. The mother’s case was conducted on the basis that the maternal grandmother had raised a number of concerns she had with the mother about the father’s parenting capacity and suspicions about his misconduct of a sexual nature from around 2013.  These concerns partly arose from conversations the maternal grandmother claimed to have had with the paternal aunt about the father’s behaviour associated with the letters and photographs which had become embellished over time.  The mother’s case was also conducted on the basis that the maternal grandmother had alleged that in 2013 a person held a hand over her mouth and nose while she was sleeping on about four occasions and had tried to kill her.  The maternal grandmother had asserted in a conversation with the mother that it may have been the father who had been doing these things. 

7. The parties’ second child, a son now aged five (“the son”) was born in 2014.

8. The mother’s case was conducted on the basis that the maternal grandmother’s concerns about the father increased when she observed the father acting in a manner with the daughter that she regarded as inappropriate such as placing this child between his legs while watching television.  As a result of the maternal grandmother’s suspicions and concerns which the mother appeared to have accepted arrangements were made in the household for the father to play a limited role in the care of the children.  He was not permitted for example to be involved in their physical care such as changing nappies.

9. By about 2015 there was a serious rift between the parties and the paternal grandparents and the father effectively became estranged from them. 

The sexual abuse allegation

1. When considering the sexual abuse allegation the daughter is also referred to as “the child”.

2. On 24 August 2016 the daughter attended a movie night at her school.  The parties both dropped the daughter at school and the mother collected her afterwards.  After the movie the parents observed that the daughter was quieter than usual and seemed visibly upset.

3. The following day the mother claimed that the daughter who is normally very well behaved was misbehaving and complained that it “hurt to wee” and that she was sore in the genital region.  The mother claimed to have observed redness to the child’s pubic area on 25 August and expressed her alarm at this observation.  The child denied that anything had “happened” to her to cause the redness.  A few days later on 30 August 2016 the mother, who says the child was continuing to misbehave and complain of soreness, took the child to a doctor. 

4. The doctor performed a urine test and it was determined that the daughter did not have an infection. The mother asserts that the doctor told her that “there could be a 99 per cent chance she was interfered with and that you should report it to the school.”  The doctor’s notes and a letter written on the same day indicate that he examined the child and observed no abnormality and that her urine test was normal.

5. The father deposes to the mother telling him that after she attended the appointment with the doctor the child told her “that she was touched down there” [gesturing to her genital area] during the movie night at school.

6. The following day the parties met with the school principal and outlined their concerns.  The principal expressed the opinion that he did not think the daughter could have been abused at the movie night because of the arrangements in place for the supervision of the school children at this event. The parties then decided to change the daughter’s school as they felt that their concern had not been treated appropriately.

7. On the mother’s evidence on the same day after meeting with the school she reported that the child had been sexually abused at a school event to the Department then known as Family and Community Services (“the Department”) and police.

8. According to the mother’s affidavit the maternal grandmother reported to her that on 6 September 2016 she had the following conversation with the child:

   The daughter: he is going to kill you nanny, and me if I tell you

   Maternal grandmother: are they going to kill mummy, daddy, and [the son] too?

   The daughter: No nanny only you and me

   Maternal grandmother: Don’t worry darling nobody is going to kill you or me.

9. An affidavit from the maternal grandmother which had been filed was not read in the proceedings.

10. On 9 September 2016 the mother took the child to see another doctor in relation to the child’s behavioural change and school refusal following the movie night.  It is recorded in the doctor’s notes that the child had given a history to the mother that she was digitally interfered with by “other primary children”, who threatened retribution if disclosed. 

11. On 12 September 2016 a notification was made that the child disclosed in respect of the movie night incident “the older person who did this to me should have known better than to touch little girls below”, “there was an older boy and girl and they should have known better than to touch little girls down there” “the boy and girl put their hands down my pants and they hurt me.  They told me if I tell anyone they would hurt me and everyone else.”

12. On 21 September 2016 the mother made enquiries with a sexual assault counselling service in relation to counselling for the daughter on the basis that the child had been sexually assaulted at school.  Initially, it was arranged that the mother would obtain counselling herself and this counselling with the sexual assault counsellor began in late October 2016.  The mother reported at this session that the child told her that “some children had held her down at a school function” when it was dark and everyone was watching a movie and that somebody touched her vagina at the time. 

13. In circumstances and a timeframe which is in dispute the mother and/or maternal grandmother began to question the father about whether it was he who had inappropriately touched the daughter which he denied.  He then moved into a shed at the family home where he lived for about six to eight weeks.  According to the father, some weeks after he moved to the shed the mother asked him again whether he had touched the daughter which he again denied.  The mother considered his response and demeanour was not “defensive enough” to satisfy her that this was true.  At around the same time the father who was distressed about his family situation began attending counselling with a psychologist.

14. The mother subsequently told the father that he had to move out altogether and find his own premises.

15. Following separation and until January 2017 the father saw the children about once a week at the former family home supervised by the mother.

16. On 1 November 2016 departmental officers informed the mother that the Department would be closing any investigation into the allegations without interviewing the daughter as there had been no clear disclosure about who it was that may have assaulted her. 

17. Just over a week later on 9 November 2016 the mother was interviewed and asserted in relation to the incident at the movie night that the daughter disclosed that someone sneaked up behind her in the toilet, put their arms around her chest and put their hands up her dress. 

18. In about January 2017 the mother unilaterally decided that she would no longer permit the father to spend time with the children.

19. On 15 February 2017 the mother took the daughter to a paediatrician for further investigation in relation to the child’s behaviour.  A letter sent by the paediatrician to the general practitioner reports that the daughter’s behaviour was said to have changed “reasonably acutely” following a school movie night and it was thought that some incident had occurred there and that “mum tells me that it actually transpired that it was [the child]’s biological father touching her inappropriately”. 

20. According to the Magellan Report[2] allegations linking the father with the sexual abuse of the child were not made to the Department until 10 March 2017.  On that day the mother took the daughter to a further medical appointment and asserted that the father had been “touching” the child.  The doctor provided a letter to the mother recording that he had examined the child and that there was no abnormality seen.  On the same day a report was made to the Department that the child had disclosed that her father had come into the room and hurt her, had “put his hands down there” and threatened if she said anything he would kill her. 

    [2] A Magellan report sets out the involvement of the Department with the family.

1. The notification was assessed and allocated for investigation by JIRT. 

2. In March 2017 the daughter was interviewed for the first time by a detective from the Child Abuse Squad and a case worker from JIRT.  According to the Magellan Report the daughter did not make any disclosure of being indecently assaulted by her father or any other person.  It is reported that she did disclose that the father had touched her on the stomach above her clothes and under her clothes when she was in bed at night and her mother and brother were asleep.  The daughter also disclosed that she kept her eyes closed because she was afraid her father would kill her but couldn’t remember when this was said and was unable to provide the location or context in which it was said.

3. The father was also interviewed in the course of this investigation and disclosed that he had possibly gone into the child’s room and rubbed her on her stomach if she was sick or something of that nature.  The father was not found to be a person causing harm to the child and there was no further action taken in relation to the notification by police or the Department.

4. From around this time the child started expressing fears that she felt unsafe at school and that her father may be able to come to the school and “get her”.  The mother told the child that there was a “special paper” to protect her at school which the mother explained (in oral evidence) was a reference to an Apprehended Violence Order (“AVO”) even though she conceded no AVO had been made for the protection of the child. 

5. Although departmental officers did not find the complaint of sexual abuse substantiated against the father, JIRT notified the sexual assault counsellor who had previously seen the mother about a possible referral for the daughter.  Once again it was the mother who attended another appointment with the sexual assault counsellor on 22 May 2017.  In that appointment the mother told the counsellor that an AVO was in place by JIRT as the daughter disclosed that her father had made threats to kill her and was living nearby even though no such order had been made or sought.  The mother also reported that the child disclosed to her that “the abuse took place from the age of four”. 

6. From June 2017 the daughter also began attending appointments with the sexual abuse counsellor. 

7. In about January 2018 the mother moved to another regional town and the children were enrolled in a new school.  The following month the mother made a claim to Victim’s Services on the daughter’s behalf to compensate her in relation to the sexual abuse and compensation was awarded on this basis despite the father not having been interviewed.

8. In the first few months of counselling with the sexual abuse counsellor the daughter did not make any disclosure about sexual harm perpetrated by the father or any other person.

9. At a court event on 20 March 2018 in these proceedings the party’s respective applications for interim orders were listed for hearing before a Senior Registrar on 9 May 2018.  The mother was aware by this stage that the father had made an application to spend supervised time with the child and says she understood that she would not be able to prevent this occurring if there had been no disclosure made by the child that her father had sexually harmed her.  The child apparently also became aware of these matters which caused her to become distressed.  On the same day, 20 March 2018, the mother contacted the sexual abuse counsellor and asked for an appointment for the daughter. 

10. At her next appointment with the sexual assault counsellor on 3 April 2018 the daughter apparently made a disclosure of sexual harm said to have been perpetrated by the father which was then reported to the Department. 

11. Following assessment there was a further JIRT investigation by another team located near the mother’s new home.  In the course of that investigation on 24 April 2018 the daughter participated in a second recorded interview.  The recording of this interview was played in the proceedings. 

12. Observations concerning the daughter’s interview with JIRT in April 2018 will be a matter to which I will return.  It suffices to say at this stage that when the child was asked what she liked about her father she said “nothing” and when asked what she didn’t like about him said “he hurt me”.  When asked to tell the interviewer more about that answer and what the father did the child stood up and pointed to a location under the table and said “he touched me there”.  The child was unable to nominate the body part where she was touched but did place a cross on a diagram of a girl shown to her by the interviewer.  Although that drawing was not in evidence I understand that the cross was placed on the groin.  The child subsequently said that the father “touched me there” when she was “in bed” at the family home in the town where they previously lived.  She described this as a bedroom without a door and said that “it started when I was four”.  The child subsequently gave more details including that her father touched her in the car when they were driving to a location where her grandfather had a car accident and on another occasion when she was playing in the sand pit in the backyard.  The child also said that her father touched her at the school movie night in the hallway before he left when her mother was waiting outside the door before the movie started.  The child said that on each occasion her father touched her on the outside of her clothes.  The child further stated there was another occasion where her father touched her cousins when they were staying at her home in the town they had previously lived in. 

13. The allegation of sexual harm was not substantiated by JIRT and a decision was made that no legal or protective action was required. 

14. On 9 May 2018 an expert was appointed in the proceedings and orders were made for each child individually to spend supervised time with the father at a contact centre for a minimum of two hours per child each alternate weekend.

15. The father first began spending time at the contact centre with the son in late June 2018.  The daughter was not presented on any occasion to spend time with the father apparently on the basis that the child herself was not willing to attend.

16. The parents and children were interviewed by the expert in August 2018 and although the maternal grandmother was in the vicinity she was not interviewed.

17. The expert’s report was released to the parties on 2 October 2018.

18. It was the opinion of the expert that the son’s relationship with his father should be supported and strengthened and that the supervision of their time together should cease so that he could spend substantial overnight time with his father at the earliest opportunity.  The expert opined that the daughter had a genuine and deep seated fear of the father and recommended that a psychologist or social worker commence working with the father and daughter in a therapeutic process initially separately then working towards joint sessions and leading to supervised contact.  He recommended that this therapist would need a copy of his report “as allegations of sexual abuse are highly emotive and balance will be required in the treating clinician”.  The expert also felt that in the meantime the mother and maternal grandmother would be likely to need to see someone to allay their fears and to discuss the issues raised in his report in more detail. 

19. Pursuant to these recommendations on 29 October 2018 orders were made with the consent of the parties that they attend upon a counsellor or psychologist nominated by the ICL (“the therapist”) and comply with all treatment recommendations including making the children available for therapy and that the therapist be provided with a copy of the expert’s report.  The parties were not permitted to issue a subpoena to the therapist and it was anticipated at the final hearing the expert would have spoken to the therapist about the progress of this therapy and would give evidence in relation to those matters.

20. In the ensuing months the father continued to spend time with the son at the contact centre but the daughter apparently steadfastly refused to spend time with him.

21. In December 2018 the father had his first appointment with the therapist engaged pursuant to the 29 October 2018 orders and a few weeks later the daughter began her weekly sessions with this therapist while the son attended fortnightly.  The mother and maternal grandmother also began sessions with the therapist from 8 January 2019.

22. The proceedings were listed for final hearing to commence on 30 September 2019.

23. On 21 May 2019 a notification was made to the Department in relation to allegations that the father had sexually abused the daughter.  Although the records of the Department are redacted it became apparent in the proceedings that this notification was made by the therapist as a result of a disclosure made by the child in the course of therapy. 

24. This notification resulted in a further JIRT investigation including a third interview with the child on 26 June 2019.  This recorded interview was also viewed in the proceedings though a transcript had not been prepared. 

25. The contents and some observations about the third JIRT interview are a matter to which I will return.  At this stage it suffices to observe that in the course of this interview the daughter made various disclosures including that she was touched “down below” by her father but was unable to nominate the name of the area in which she was touched.  When asked what she does with that part of her body the child said “go to the toilet”.  The daughter said that this occurred in her bed when she was four and living in the previous town and that it happened more than once.  She said that her mother was asleep in the room next to hers and that her brother was “just a baby” when it occurred.  When asked whether her father said or did anything else the child said that the father “brang the knife into my room” and said he was going to kill her.  The child also said in answer to a question that the father touched her on the inside of her body.  She also said that she told her “nan” [maternal grandmother] and mother the next day that the father had touched her “down there” and that he said he would kill her if she told.

26. The third JIRT investigation was substantiated largely on the basis of the child’s answers to questions in the recorded interview.  It was considered that she may not have been able to provide details of the abuse in earlier assessments because of the trauma she had experienced and that could have recalled information on this occasion because she is engaged in trauma therapy. 

Discussion and findings

1. The evidence upon which the JIRT investigators substantiated the allegation of sexual abuse against the father is constituted by the answers given in the course of the most recent interview with the child in June 2019.  Although this may be the most weighty evidence, consideration must be given to the context in which that interview occurred including that at that stage the mother had maintained a belief for about two and half years that the father had sexually abused the child. It is also necessary to consider the basis upon which the mother herself formed that belief because although she apparently disavowed this belief in the course of the hearing it seems beyond dispute that the child herself continues to believe that she has been the victim of sexual abuse at the hands of her father.  Further, the mother’s concession (that the father does not pose an unacceptable risk of harm to the child) must be made on the basis that the child’s belief in this regard is false. If it were real there would be no benefit to the child in developing a meaningful relationship with the perpetrator who must as a matter of logic pose an unacceptable risk of harm to her. 

2. In my view, the context in which the child came to hold the belief that the father sexually abused her indicates that there is no reasonable foundation for that belief for the following reasons.

3. First, the evidence suggests that it is the mother who came to the conclusion at an early stage that the child had been sexually abused at the movie night event on 24 August 2016 even though there was little or no evidence to support such a conclusion including an absence of complaint from the child herself. According to the mother’s account her conclusion that the child had been sexually abused was based on observations that the child was quiet, and seemed visibly upset on the night of the movie and was misbehaving in the days that followed, together with the child’s complaints about pain when urinating and soreness and redness in the pubic region as well as information given to her by the doctor who examined the child on 30 August 2016. 

4. There is no evidence of a link between the child’s behaviour and allegations of sexual abuse and the child was not observed to be red in the pubic or genital region or to have an infection when examined by the doctor.  The child also denied that anything had happened at this stage.  I also consider it highly unlikely that the doctor who examined the child on 30 August 2016 did advise the mother that there could be “a 99 per cent chance” that the child was interfered with as the mother persistently claims.  Not only is this statement in its terms extremely unusual coming from a medical practitioner, it is inconsistent with the doctor’s observations and notes that there were no indicators of any abnormality nor is there any reference in the doctor’s records to him holding this opinion.

5. Notwithstanding the lack of evidence and misunderstanding or misinterpretation of the doctor’s advice, by the following day, 31 August 2016, the mother appears to have made up her mind that the child had been sexually abused at the school event as she reported to the Department that this had occurred, and she and the father met with the school principal to make complaint about this matter.

6. The mother’s evidence about the child’s subsequent disclosures to her in the ensuing days, weeks and months are rife with inconsistencies though it generally can be said that with each telling the version of events became more embellished.

7. Further, one of the many difficulties with the mother’s version of information said to have been given to her by the child about the alleged sexual abuse which suggests that the mother’s evidence is unreliable is that the mother does not depose in her affidavit to the child making the disclosures to her that she reported to others as having been made by the child.  For example on 9 September 2016 the mother reported to a second doctor in relation to the movie night that the child had given a history to her that she was digitally interfered with by other primary school aged children who threatened retribution against her if that were disclosed whereas the child giving this history is not recorded in her affidavit.  Further, the notifications made to the Department a few days later on 12 September 2016 include that the child had made various disclosures about the involvement of “the older person” and/or “an older boy and girl” who “touch little girls down there” and/or “put their hands down my pants and hurt me” and “told me if I tell anyone they would hurt me and everyone else”.  Although the mother appears to have agreed under cross-examination that she was the source of these notifications her affidavit does not refer to the child disclosing anything along these lines to her at any time.

8. Another matter that causes me concern about the reliability of the mother’s evidence and the circumstances in which she came to conclude that the father had been responsible for the sexual abuse relates to the role of the maternal grandmother.  The mother did not resile in the proceedings from having an awareness and at some level acceptance of the maternal grandmother’s opinion about the father’s inappropriate conduct as a young man when he wrote the letters to the paternal aunt.  The mother also seems to have endorsed the maternal grandmother’s fears about the father’s inappropriate and allegedly sexually deviant conduct with respect to the children when they were young and the maternal grandmother’s beliefs about the father’s role in sexually abusing the daughter. 

9. Although the mother includes some of these matters in her affidavit the primary source of these contentions is the maternal grandmother.  I have no confidence in the reliability or accuracy of the matters upon which the maternal grandmother bases her suspicions about the father in circumstances where the maternal grandmother’s affidavit was not read and she was reluctant to give evidence in the proceedings.  Further, the basis upon which the maternal grandmother apparently formed her views about the father and his conduct are extremely spurious.  She appears to have accepted an elaborated version of the concerns about the letters written by the father as a younger man which is inconsistent with the evidence of the paternal aunt to whom they were written. Some of her other suspicions about the father generally are bizarre in nature such as that the father was responsible for placing his hand over her mouth on a number of occasions at night in her bed in an alleged attempt to harm or even kill her. 

10. Another weighty matter is that the mother does not identify when and on what basis she first formed the view that it was the father who may have sexually interfered with the daughter.  The best evidence of her coming to this belief is that she does not dispute that she made allegations of this type in around October 2016 to the father himself even though at that stage the child had not disclosed to her that the perpetrator had been the father even on the mother’s own case. 

11. It is also curious and unexplained that the mother deposes to reporting to police the child’s first direct complaint in January 2017 that the father “did it to me” and “hurt me” but there is no record by police in the documents produced on subpoena in support of this claim. 

12. The mother also agreed under cross-examination that she effectively jumped to the conclusion in January 2017 when the child disclosed to her “it was daddy that did it to me” and “daddy hurt me” that the father had sexually assaulted and threatened to kill the child.  In these statements the child also does not make any connection with the events on movie night in particular but the mother appears to have accepted that the father did sexually abuse the child on this occasion.  In February 2017 she reported to the paediatrician that the change in the child’s behaviour following the school movie night turned out to be related to the father touching the child inappropriately.

13. The child’s disclosures then developed and became more embellished after January 2017 in circumstances where she had no contact with her father and lived in the maternal household being raised by two people who appear to have had a fixed belief that she had been sexually assaulted by the father. 

14. It is a matter of significance in my view that although the mother alone (and possibly the maternal grandmother but her evidence is not clear given that her affidavit was not read) say they heard the child’s allegations about the father’s inappropriate touching, when interviewed by the JIRT investigators the child did not make any disclosure of being indecently assaulted by her father or any reference to the movie night.  Although the child asserts she was afraid her father would kill her she could not provide the context for this allegation.

15. It is also significant in my view that despite not having substantiated the allegation of abuse JIRT made arrangements for the child to be referred to the sexual abuse counsellor with whom the mother had made some enquiries a number of months previously and in June 2017 the daughter began attending appointments with the sexual abuse counsellor.  She did not however make any disclosure of sexual abuse by her father during the ensuing ten months of counselling. 

1. In my view the context of the first specific disclosures of sexual abuse made by the child to any person other than her mother or grandmother must also be closely scrutinised.  By this stage, in April 2018, the child and her family had moved to another regional town apparently on the basis that this was necessary for the child’s protection against the father, a claim for compensation on the basis that the child had been sexually abused had also been made and at some time awarded and the child had become aware of the father’s application to spend time with her and the mother’s understanding that this would be difficult to resist if the child had made no disclosure of sexual abuse.  I am of the view that these are highly relevant matters to consider when assessing whether the child’s allegation that the father had sexually abused her was true as opposed to the child feeling a need in the circumstances to make such a complaint or because she had begun to form a false belief. 

2. In the second interview although the complaints of sexual abuse by the father were not found to be substantiated the child did make some specific disclosures that the father touched her in the pubic or genital area.  However, even the mother agreed that some of the child’s other allegations in that interview were incorrect such as that the father touched her on an occasion when the family were driving to a location where the grandfather had a car accident as the mother herself was present in the car. 

3. The child also made an allegation in the April 2018 interview about the father having touched her in the sandpit in the backyard.  Although I do not make any specific finding about when there was a sandpit in the backyard at the child’s home it is the father’s case that it was not present until after he left the home.  After separation the father did return to the home to spend time with the children but both he and the mother agree that during this period he was never left alone with the child.  As observed by the expert if the father’s evidence concerning the sandpit is correct then the allegation about the sandpit appears hard to believe, and more importantly suggests some conflation of the claim. 

4. There are also some features of the April 2018 interview itself that in my view affect the likelihood that the child’s answers are not a reliable and accurate account of real events.  The expert who had also been shown the recording of the interview has a sound and extensive knowledge of the conduct of forensic interviews with children having received training from a professor of psychology who pioneered and provides certification and training in forensic interviews in Australia and overseas.  The expert observed some features of the interview which he considered as problematic including that there were a number of questions that were “double choice questions” requiring a child to choose between two propositions contained in the question [neither of which may have been correct].  The expert also noted in this interview that there was an absence of “source monitoring questions”, that is questions asked to illicit where the child obtained the information given in the answers.

5. The expert also expressed concerns about the inadequacy of the questions asked to test the child’s understanding of truth and lies and raised concerns about the overall confusing nature of some of the questions.  In relation to each of the foregoing matters the expert said in oral evidence:

   …the difficulty is that what you’re trying to find out, is this something that the child knows because the child has experienced it, or is this something the child knows because someone has told the child that it happened.  And so that’s why you have source monitoring.

   …So the point of source monitoring to get an idea of how does the actual information the child have come to the child.

   …So in the first interview, the concerns that I have about that were that – firstly, there was an issue about – do you know the truth and lies and what we get down to is truth is good and lies are bad, but no real understanding of what a truth and a lie is. Then there are some really quite confusing questions, sometime – and in particular, what concerned me was the issue about – they seemed to be focusing very much on, did this thing happen outside the clothes or inside the clothes, and they were raising a – a possibility of the child to answer one way or the other.  Instead of saying, tell me how the touch happened?  What happened next: What happened then?…

6. Although the expert observed that this interview had “some good bits to it” he had other criticisms and in particular the forced choice questions and that some of the questions were in his view were leading.  He explained that forced choice and leading questions are problematic especially for a young child who “is going to be compliant with adults” and “may well respond in a way that they think the adult wants to know if the information is in the question”.

7. In this interview the child also first made the allegation to an independent person that the father brought a knife into her bedroom and threatened to kill her.  In explaining his view about the unlikelihood of the father having engaged in the conduct alleged the expert said that it was “a very long stretch” to believe that the father had done these things.  He explained:

   …you’re working on modus operandi kind of stuff here.  You’re asking me to believe that a guy who is going to come into his child’s room with a knife, threaten to kill her and – and touch her, and, for me to do that, I have to make some assumptions about the degree of hostility and anger and psychopathy and nastiness generally in a person to do that because that’s a pretty severe kind of behaviour, and I can’t see any of that.

8. When interviewed by the expert in August 2018 the child told the expert that the father had “hurt me down there” and pointed to her genital region.  She reported that he did it at night time, in the sandpit when they went outside and at other times during the day when there were other people at home but they were inside.  The child reported that when he was doing it the father threatened that he would kill her but only made this comment once which was allegedly the first incident that took place at night time.  The expert does not report that the child made any allegation about the father hurting her at the movie night. 

9. In formulating his overall opinion in his report the expert regarded the allegations about sexual abuse of the daughter as “extremely confusing”.  He concluded that it does appear that the daughter believes that at some point she was sexually abused and that there has been at least some elaboration of the child’s complaints.  Although the expert opined that it is not atypical for children to delay complaint, in this case the complaint was proximal but the child delayed identifying the alleged perpetrator for a year. The expert also expressed concern that the maternal family is one in which there has been long-standing prejudice towards the father particularly from the maternal grandmother.  The expert opined that “a genuine risk remains in this family that [the father] has been inappropriately accused of an act that he did not engage in”.  He explained that this has had significant consequences for the children “particularly [the] daughter who is now growing up vicariously traumatised with that trauma impacting on her behaviour and psychological state”.  The expert considered it a central question as to whether or not the maternal family had acted in a way that has given rise to a false memory in the child. 

10. At the time the family were assessed the mother told the expert that she was about to start a parenting program for assisting children who have been abused.  The expert expressed concern about that having read the notes of a family support service with whom the mother had been engaged (and presumably were to deliver this parenting program). He was of the view that this service had a very distorted picture of what is going on and needed to have a more objective view of the situation if they were to work with the family.  He expressed being “extremely concerned that it is very likely that the allegations of abuse are unfounded and that the mother needs to disconnect from involving herself and the child in programs that position her daughter as a victim which is likely creating a vicarious victimisation experience for [the daughter]”.

11. Despite the recommendations of the expert (albeit that they had not been tested) the circumstances in which the child had come to believe she was sexually abused by the father remained unchanged after the release of his report.  The daughter remained disconnected from the father and the opinions held by the mother and most likely maternal grandmother about the risk posed by the father were unchanged.  The mother also continued to make arrangements to receive support from the family support service on the basis that the children had been abused. 

12. Although the expert had recommended that a therapist be engaged as soon as possible to assist in supporting the reconnection between the daughter and the father with a view to leading to supervised contact the chosen therapist was engaged in trauma reduction therapy with the daughter rather than dealing with a rekindling of this child’s relationship with her father.  The expert also explained that the therapist was relatively inexperienced but was availing herself of supervision from others because this was quite a difficult case.  The expert agreed that it seems the therapist was placed in a position where she felt as a mandatory reporter that she was required to report the child’s allegations in relation to the abuse which led to the further JIRT investigation and interview shortly before the final hearing.  The expert expressed the view that as a result of the therapy and further investigation to the Department the circumstances for the daughter had worsened especially as the allegation of sexual abuse by the father investigated for the third time in June 2019 resulted in that allegation being substantiated.

13. I was provided with very limited information in relation to the substantiation or the identification of the father as a person causing harm by the Department.  The recording of the third interview was however very belatedly and after great difficulty produced by police and some further documentation from the Department was also produced on subpoena. Doing the best I can on the available information it appears to have been significant to the relevant officers at the Department in substantiating the allegation in the third investigation that the child provided further details of the abuse and in particular had acknowledged internal touch. She also as she was repeating matters over time and at an older age.

14. The expert had a number of concerns about the third interview which he considered contained “a lot of departures from good forensic interviewing”.  In particular at times he found the interviewer “quite authoritarian” to the child which he thought was “quite disturbing” especially as the child appeared to him to be genuinely anxious in the interview. 

15. The expert opined that the new information the investigators appeared to consider as highly relevant was the claim that the father had touched the child internally which he considered as a “very problematic statement” in the context of the interview as a whole.  Although the expert observed that the June 2019 interview started off much better than the second interview he went on and noted the following:

    …as the child was quite non-verbal the questioner became a bit frustrated a bit too quickly and moved from saying something, tell me everything from the beginning to the end, which is exactly what you are supposed to say, to almost immediately asking her question and answer questions, not giving her a chance to build a narrative. 

16. The expert noted that the third interview then slips back into the same kind of approach of the second interview where information is given (which has a rehearsed element in the view of the expert) and by question and answer the interviewer tries to establish particulars and especially focus on the question of whether the child was touched on “the inside” or “the outside”.  In these circumstances the child says that the touch was on the inside which the expert noted was “a major shift” from everything she had said to date although he understood that this was consistent with what she had said to the therapist.

17. When asked about why he described the statement of touching on the inside as “very problematic” the expert expressed concern about the child having been asked the same questions over a long period of time and gradually shifting in her answers as a result of being asked the same questions.  He said that in the most recent interview there was “a long demonstration of inside/outside” and the child shifted her answer.  He was concerned that the pattern of questioning had led to the shift as only a year before the child was definite that there had been only touching on the outside.  Although the witness agreed that children can form better memories and give more detailed narratives over time he opined that it also could have been the influence of the accretion of being asked the same questions so that they become incorporated into the narrative.

18. In my view significant weight should be attached to the opinion of the expert about concerns he has about the third JIRT interview and the treatment of the child’s answers as an account of actual events she has experienced. Further, I cannot regard as weighty the opinion of a person with unknown qualifications at the Department that the child’s engagement in trauma therapy may have led to an improved recollection of events. In my view there appears to be a real risk that the child’s account given in June 2019 is not an authentic recollection but an embellished false belief having regard to all the events and circumstances in the child’s life since August 2016.

19. There are other features about the JIRT interview that cause me concern about its authenticity.  Although the child told the interviewers that she told her “nan” (maternal grandmother) and mother about the father touching her “down there” and his threat to kill her the following day the mother does not depose to the child making these complaints to her. The mother gives no evidence in her affidavit of the child ever telling her that the father had touched her in this manner or that he had threatened to kill her and as noted the mother did not rely upon the affidavit that had been filed by the maternal grandmother. 

20. In summary in the opinion of the expert which accords with my view there are real doubts about whether the child was ever sexually abused by the father but it appears that the child has not only come to form a false belief that this has occurred but has been traumatised by that false belief.  My doubts about the veracity of the child’s complaint when interviewed for a third time in June 2016 arise because the child’s version has become embellished over time and in a context where the most influential people in her life (her mother and maternal grandmother) appear to have firmly believed that the father abused her but have failed to check the reality of that belief.  During the same period the child ceased spending time with her father and could not herself check the reality of her father’s care.  In an atmosphere in which fear about the father flourished, there is a real risk the child was in effect encouraged to believe that she was the victim of sexual abuse through the making of a victim’s compensation claim on this basis on her behalf, her engagement in sexual abuse counselling and support being provided by a family support service on the same basis.  The only people other than the mother and maternal grandmother to whom the child made complaints are sexual abuse counsellors or therapists and the context of those complaints must be considered.  In particular I am of the view that there are concerns that the child felt a need or there was an expectation that she would make these disclosures to those counsellors.  Each of these disclosures led to JIRT interviews and having regard to the circumstances in which they were made and the opinion of the expert I consider the answers given in those interviews unreliable. 

21. The only other evidence upon which the mother and maternal grandmother in particular appear to have relied in coming to the belief that the father was a perpetrator of sexual abuse are the letters written by him to his sister many years previously. 

22. The mother’s understanding of these events appears to have been embellished over time and is inconsistent with the affidavits filed by the paternal aunt (albeit that her evidence is untested). 

23. The expert also expressed a view in relation to these matters and whether they should be afforded any weight in determining whether the father poses an unacceptable risk of harm on the basis that he may sexually abuse the children. He was cross-examined extensively in relation to this opinion. 

24. In his report the expert considered the father’s psychosexual history and concluded that as far as he could tell the exchange of letters with the paternal aunt were not evidence of any paraphilic interest. He considered that the writing of the letters do not appear to have been done with any sexual deviance but were rather the behaviour of “a naïve, low functioning and immature person who simply failed to understand the gravity of his behaviour at the time”.  Overall in relation to this matter and the greater question of any risk of harm posed by the father the expert said:

    There does not appear to be any sexual deviance associated with that nor does there appear to have been any concerns in regards to his sexually appropriate behaviour.  Assessment of psychosexual history does not suggest any deviance in his sexual preoccupation or indeed any high sex drive.  He does not appear to present as a person who likely represents a risk of harm to others.

25. As indicated the expert was cross-examined extensively about his opinions related to these matters.  He remained firm in his opinion that there was no basis for the maternal family’s suspicion that the father is sexually deviant.  The expert remained of the view that the paternal grandparents had appropriately dealt with the issue involving their children at the time. Although the expert agreed that the father did not understand the gravity of his behaviour at the time he did not agree that the father did not still understand the gravity of his actions.  The expert remained of the view that the father did not pose a risk to the children in this regard.

26. In my view all of the foregoing matters support the concession as appropriately made by the mother that the father does not pose an unacceptable risk of harm on the basis that he may sexually abuse the daughter.

27. Although it had been suggested earlier in the proceedings that the mother also contended that the father’s parenting capacity was so inadequate that he posed a risk of harm on this basis as well, that was not pursued.  Accordingly, there is no basis upon which the mother could continue to maintain that the father posed any risk of harm to the children or that they would not receive a benefit from having a meaningful relationship with him in the future.

The Interim Orders

1. As previously discussed the only area of dispute between the parties in relation to the interim parenting arrangements concerns the parent’s respective proposals for the children’s education.

2. Pursuant to the interim orders made with the consent of the parties the parents have equal shared parental responsibility for the children and as soon as practicable and not later than commencement of the 2020 school year the mother is to relocate with the children to the E Region.  It is also the intention of the father to move back to the E Region area for the purpose of receiving support from his extended family who live in that location. 

1. The parties also agreed to orders for the son immediately to increase his time with the father, for supervision of that time to cease and for the time to occur initially in the presence of the paternal grandmother or grandfather or some other suitable person as agreed between the parties.  The mother, father and daughter are to commence family therapy with a suitably qualified therapist identified in the interim orders no later than January 2020 with the purpose of that therapy to specifically focus on the introduction of the daughter and father spending time together.  The daughter is also immediately to commence spending time with the paternal grandmother for block periods of two hours in the presence of the mother and when the mother and children move the daughter’s time with the paternal grandmother is to increase.

2. The orders also provide for the daughter to spend time with the father from February 2020 initially for one hour per week during family therapy and at such other times as agreed.

The competing proposals in relation to school

1. In relation to education the father proposes that the children attend C School in a town on the E Region.  It is the mother’s proposal that the children be enrolled at the local public school for the catchment area in which she and the children are to live on the E Region  The particular school has not yet been identified by the mother. The ICL supports the position of the father that the children attend C School.

2. The school at which the father proposes the children attend is a school for Aboriginal children.  A “Frequently Asked Questions” brochure and Annual Report for 2018 for the school were admitted into evidence.  These documents explain that a Memorandum of Understanding was signed between the B People Aboriginal Land Council and the Council of G School (a school located in Suburb F) to establish jointly a small primary school for Aboriginal children living in the relevant Aboriginal Land Council area.  The school campus which is located on the site of a former public school provides primary school education for up to 30 children “in a culturally sensitive and affirming setting”. 

3. The children are Aboriginal on both the paternal and maternal sides of their family.  In the course of the proceedings it was not disputed that they belong to the B People community on their father’s side.  The mother also informed the Court through her counsel in the course of submissions that she also has an Aboriginal ancestor.  There is no other evidence in the proceedings from either party about B People or Aboriginal culture except that the father says some of his family members have knowledge and an appreciation of their Aboriginal heritage.  He also deposes to his sister’s membership of the relevant Land Council as well as his own interest in gaining more knowledge as to these matters and passing on the benefit of that knowledge to his children.

4. It is the mother’s case that as the children’s Aboriginality has not been a “forefront issue” in these proceedings it should not be given significant weight in determining the dispute in relation to the children’s school attendance. She further submits that attending a school which “intensively promotes” the children’s Aboriginal heritage in circumstances where they have not attended such schools in the past will be “adding to the mix of changes” for the children who will already be making a massive transition in moving to the E Region and starting a new school.

5. It is submitted on behalf of the mother that the children will receive other benefits from attending the local primary school and for these reasons it is in their best interests to attend such a school. She submits that the children will derive a real benefit from attending a school that is proximate to where they reside, including living in the same community/ area as potential friends of the children at the school.

The Law and Discussion

1. Although the parameters of this dispute are very limited I am required to make such orders in relation to the children’s schooling, as I think proper (section 65D) having regard to the best interests of the children being the paramount consideration. 

2. Most of the matters that must be considered in determining what is in the children’s best interests are not relevant to a determination of this limited dispute.  For example the application of the two primary considerations does not have any bearing upon the advantages of one school over the other.  However, some of the additional considerations are relevant and to that extent must be applied in determining this issue. 

3. The decision about the school the children are to attend is a major long term issue.  The mother has been solely responsible for making such decisions in relation to the children since at least the time of separation and the proposal by the father that the children attend a particular school is the only example of him participating in making a decisions about major long term issues in relation to the children. 

4. Further, in proposing that he pay all costs associated with enrolment at his proposed school the father is taking steps to fulfil his obligation to maintain the children and provide for their educational needs.  In submission made on her behalf the mother is critical of the father’s shortcomings in this regard in the past. She submits in relation to this dispute that the father has not paid any child support since May 2017 and effectively now offers to pay for school expenses only if he is able to achieve his desired outcome. 

5. I am not critical of the father’s lack of input in long-term decision making after separation to date when the context in which he came to become uninvolved in such decision making is considered.  It is not in dispute that it was the mother who unilaterally decided to stop the children’s time with the father from around January 2017 and subsequently ceased all contact with him as well until he sought orders for that to occur.  The mother then unilaterally made all decisions in relation to the children including moving their home to another town, changing schools and attending upon a large number of medical practitioners and counsellors of her own choosing during this period and this decision making has not always been beneficial to them.

6. Although the father had sought in these proceedings to reinstate his role in the children’s life by having them live with him, he (and the mother) came to a sensible and child focused compromise which the expert feels will deliver the best outcome for the children in agreeing to orders that they continue to live with their mother and that she move to live near the father and the paternal family.  After the interim orders were made the father presumably will have been participating in making decisions about major long term issues through the shared exercise of parental responsibility and will spend time with and communicate with the children pursuant to those orders. 

7. In my view, rather than criticise the father for his belated involvement in major decision making for the children he should be commended for not only intending or desiring to play a role in their lives but also acting upon that intention in investigating and proposing a particular school.  It is also in my view to his credit that under his proposal he will be responsible for the payment of the children’s school fees. 

8. It is submitted by the mother, presumably in relation to the likely effect of changes in the child’s circumstances (arising from each of the parent’s proposals) that her proposal in some way provides for greater stability and less change than the father’s proposal. 

9. I am not satisfied that this is the case as each proposal will bring about a necessary change in school that arises from a change in residence.  Rather, in my view some of the features inherent in the father’s proposal will promote the children’s stability and enhance their prospects of settling in a new school community.  In particular the school proposed by the father is small and the children who attend are from a close knit school community.  Twenty seven children currently attend and the overall total enrolment is 30.  Six of the children’s paternal cousins attend the school and all children are transported daily to and from school by bus. 

10. The next relevant considerations are the lifestyle and background (including lifestyle, culture and traditions) of the children and parents, other characteristics of the children (60CC(3)(g)), the children’s Aboriginality (60CC(3)(h)) and the capacity of the parents and other family members to provide for the needs of the children (60CC(f)). 

11. It is contended on behalf of the mother that the children’s paternal grandparents have capacity to provide for their need to be educated about their Aboriginal heritage and for this reason the children do not need the added support for that aspect of their identity that will flow from attending a school exclusively for Aboriginal children. 

12. The mother accepts that the children are Aboriginal children as defined in section 4 of the Act.[3] She submits however that the children’s Aboriginality has not previously been such a feature of their identity that their interests are best met by them being immersed so completely in this aspect of their identity or heritage as will occur if they attend a school which caters exclusively for Aboriginal children. 

    [3] Section 4 (1) Aboriginal Child – means a child who is a descendant of the Aboriginal people of Australia

13. Section 60CC(3)(h) provides that an additional matter to be considered in determining an Aboriginal child’s best interests is the child’s right to enjoy his or her Aboriginal culture including the right to enjoy that culture with other people who share that culture.  Section 60CC(6) defines an Aboriginal child’s right to enjoy his or her Aboriginal culture as including the right to maintain connection with that culture and have the support, opportunity and encouragement necessary to explore the full extent of that culture consistent with the child’s age and developmental level and views and to develop a positive appreciation of that culture.

14. In these proceedings the evidence indicates that the father although being aware of his Aboriginal heritage does not pursue a particular lifestyle or follow traditions of the B People community to which he and the children belong.[4].  He deposes to an intention with the assistance of his family to teach the children about their indigenous heritage.  The child’s right to enjoy his or her Aboriginal culture is however not limited to receiving information about the child’s heritage but having the support opportunity and encouragement necessary to explore the full extent of that culture and develop a positive appreciation of it. 

    [4] Section 4 of the Act defines Aboriginal .. .culture in relation to a child as “the culture of the Aboriginal community or communities to which the child belongs and includes Aboriginal lifestyle and traditions of that community or communities.

15. Although the mother belatedly provided instructions to her counsel that she is also of Aboriginal heritage she adduces no evidence of any knowledge or appreciation of that heritage or any Aboriginal culture or traditions, nor does she nominate the particular community to which she belongs.

16. There is an absence of evidence in the proceedings about the paternal grandmother’s connection with B People culture.  The impression I gained from the father’s evidence and his presentation to the expert is that the paternal family have only relatively recently begun to gain an understanding of their Aboriginal heritage.  In these circumstances it cannot be expected that the paternal grandparents are in the position to teach the children about their culture and it does not appear that the paternal grandfather is himself Aboriginal. 

17. Having regard to the foregoing matters it appears that the school proposed by the father may provide the best opportunity and encouragement for the children to explore the full extent of their Aboriginal culture and develop a positive appreciation of it.

18. While the focus of the Frequently Asked Questions document and 2018 Annual Report for the school is on academic and educational standards of excellence, the Memorandum of Understanding that governs the establishment of the school states that it is to be “culturally sensitive and affirming”.  Aboriginal culture and identity for the school is cited as being “at the heart of the educational experience [which] leads to strong academic and social outcomes”.  Although the accredited Australian primary school curriculum is taught at the school all of the documentation makes clear that the celebration of Aboriginal identity and culture and specifically B People culture imbues all aspects of the educational experience. 

19. Although many or most schools in Australia offer opportunities for all children to gain an understanding of Aboriginal culture and participate to the extent possible in some of the traditions associated with that culture I am of the view that the school proposed by the father provides a greater opportunity for the children to be supported and encouraged to develop to their culture consistent with their age and developmental level to the fullest extent possible in contemporary society.

20. It is essentially the mother’s case that the children’s Aboriginality has not historically been central to their identity.  For this reason she submits that a school which caters exclusively for Aboriginal students is not as beneficial for the children as a local public school where the children will mix with children from all backgrounds and cultures.  

21. While it is likely to be correct that the children will mix with children from a more diverse range of backgrounds at a local school it is also the case that these children have connection with the broader Australian community and other traditions through other family members.  So far as I understand it other members of the maternal and paternal family come from non-Aboriginal cultural backgrounds. 

22. Further, according to the documentation from the school proposed by the father, as the children advance through the school and from years three to six in particular they will participate in activities with the junior school counterpart in Suburb F such as by attending outdoor education camps, the year six Canberra excursion and through participation in cross country and athletic carnivals.  There are also regular visits from the parent school campus which is non-Aboriginal to the primary school and from the primary school to the parent school and a pathway to transition to the high school campus of the parent school is available and has been followed by some of the past students of this school.

23. There is also another aspect of the school proposed by the father that provides a greater specific connection to the children’s background and traditions in that the school is within the Anglican faith tradition in which the children have been baptised. 

24. When regard is had to other characteristics of the children and the daughter in particular there also appears to be a number of benefits associated with the father’s proposed school.

25. There is considerable evidence in the proceedings that the daughter has exhibited high levels of anxiety. I accept the submission advanced by the father that this small school is likely to provide comfort for her and reduce her anxiety.  Second, it is contended on behalf of the father that as six of the children’s paternal cousins attend the school this will maintain an important link between the children and the extended paternal family.  The expert was of the view which I accept that even if the children do not spend time with their father but particularly if they do a knowledge of their culture and link with the wider paternal family will be necessary and he recommended steps be taken in the immediate period to engage the children with their paternal family. 

26. A further advantage of the school proposed by the father is that all books, educational materials, school uniforms, daily transport by bus, excursion and camp costs and access to specialist support is included in school fees.  The daughter has been identified as having a number of difficulties at school, her performance is below average and she has struggled with the academic demands of school.  She has also been noted in the past to have had many days absent from school.  The 2018 Annual Report of the school proposed by the father specifically addresses the issue of school attendance.  It is recorded in that document that the school has processes to ensure that it is aware of the daily attendance of each student and that all students travel to and from school by buses provided by the school.  The school attendance rates at this school according to data in the Annual Report are well above the national indigenous attendance rate.

Conclusion

1. I am not of the view that a local primary school will provide the children with an education experience which is in anyway inferior. However, there are a number of matters that must be considered which in my view indicate the children’s best interests will be better served and the proper order to make in these circumstances is that they attend the school as proposed by the father. 

2. Although there are some advantages for the children in attending a local school especially its proximity to the mother’s home which will also mean that she has greater choice in where she lives, these matters are outweighed by those which upon consideration favour the father’s proposal. 

3. Accordingly, the orders I make are set out at the forefront of this Judgment.

I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 20 December 2019.

Associate: 

Date: 20 December 2019