Wentworth and Wentworth

[2019] FamCA 57

FAMILY COURT OF AUSTRALIA

WENTWORTH & WENTWORTH [2019] FamCA 57

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of a child – Where the mother seeks equal shared parental responsibility, that the child live with her and spend time with the father – Where the father seeks sole parental responsibility, that the child be removed from the mother’s care to live with him and spend time with the mother – Where the mother made allegations that the father sexually abused the child –Where the mother withdrew the allegations of sexual abuse against the father during the final hearing – Where the Court finds that the father did not sexually abuse the child – Where the mother presents an unacceptable risk of emotional or psychological harm to the child – Where the mother does not have the capacity to promote the child’s relationship with her father - Where the child will live with the father – Where the risk of harm by the mother can be ameliorated by supervision and psychological therapy –– Where the mother will spend time with the child on a basis graduating from supervised time in a contact centre to unsupervised time on alternate weekends after a six week no contact moratorium.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Johnson & Page (2007) FLC 93-344
M & M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655

APPLICANT: Mr Wentworth

RESPONDENT: Ms Wentworth

INDEPENDENT CHILDREN’S LAWYER: Ms Geysen

FILE NUMBER: PAC 4027 of 2016

DATE DELIVERED: 8 February 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 17 - 20 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms P. Kirkman-Scroope

SOLICITOR FOR THE APPLICANT: Smithson Lawyers Gold Coast

COUNSEL FOR THE RESPONDENT: Mr T. Jordan

SOLICITOR FOR THE RESPONDENT: DA Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms D. Firth

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: CNG Law

Orders

1. All previous orders and parenting plans be discharged.

2. The father have sole parental responsibility for the child X born … 2014 (“the child”).

3. In the exercise of the father’s sole parental responsibility the father shall:

   (a)       Inform the mother in writing (via email) about decisions to be made 21 days prior to making any decisions, except in the event of an emergency and then such notice to be provided as soon as practicable;

   (b)       Seek a response from the mother in writing about the decision to be made;

   (c)       Allow the mother seven days to respond to the father’s email correspondence;

   (d)       Consider the mother’s response and keep in mind the best interests of the child as his paramount consideration; and

   (e)       Inform the mother of any decision made in a timely manner.

4. The child live with the father.

5. The mother spend no time with or communicate with the child for a period of six weeks from the date of this Order except by telephone or FaceTime with such communication to take place each Wednesday between 6pm and 6.30pm with the mother to initiate the call with the child.

6. After the expiration of six weeks the mother spend time and communicate with the child at all times as may be agreed between the mother and father in writing and failing agreement as follows:

   (a)       For a period of three months or until such time as the mother has completed at least six sessions with a clinical psychologist, as provided for in paragraph (9) below, whichever is longer, each alternate Saturday supervised at B Town Contact Centre for a period of two hours at times as can be arranged by the contact centre, with the mother to meet the costs of the contact centre;

   (b)       Thereafter, each alternate weekend from after school Friday until 4pm Sunday extending to Monday 4pm in the event Monday is a public holiday in Queensland.

   (c)       After the commencement of alternate weekend time, for half the school holidays as follows:

   (i)The first half of all autumn, June/July and September/October school holidays in even numbered years and the second half of the school holidays in odd numbered years with the first half to commence on the first Saturday of the holidays at 10am until the second Saturday of the holidays at 10am and the second half to commence on the second Saturday at 10am until the last Saturday of the holidays at 10am.

   (ii)The first half of the Christmas school holidays in even numbered years and for the purpose of the Christmas holidays the first half commences the first Saturday at 10am until the 4^th Saturday at 10am and the second half commences the 4^th Saturday at 10am and concludes the last Saturday at 10am.

   (d)       By telephone or FaceTime with such communication to take place each Wednesday between 6pm and 6:30pm with the mother to initiate the call.

7. If the child is spending time with the mother on a Wednesday the mother make the child available to communicate with the father by telephone or FaceTime with such communication to take place between 6pm and 6:30pm with the father to initiate the call.

8. When the unsupervised visits commence and when the child is not at school then changeovers shall take place at a location midway between where the parties live (currently McDonalds Family Restaurant at C Town, Queensland).

9. Within 21 days of this Order the mother attend upon a registered clinical psychologist to assist her in understanding the nature of unremarkable sexualised behaviours of children and to assist the mother in understanding the importance of the father’s role in the child’s life and the importance of not subjecting the child to repeated questioning or ‘systems abuse’.

10. The mother shall inform the independent children’s lawyer of the name of the registered clinical psychologist she is attending within 21 days of the date of this Order and the independent children’s lawyer has leave to provide a copy of this Order and the Reasons for Judgement and the family reports of Ms D dated 4/12/2017 and 15/12/2018 and the psychiatric assessment of Dr E dated 23/7/2018 to the mother’s clinical psychologist.

11. The mother and father shall:

    (a)       Keep the other parent informed at all times of their residential address, email address, landline and mobile contact telephone number.

    (b)       Inform the other parent as soon as reasonably practicable of any serious medical conditions or serious injury suffered by the child and this Order authorises any treating medical practitioner to release the child’s medical information to the other parent.

    (c)       The parents authorise by this Order any day care/kindergarten/school attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at the requesting parent’s cost).

12. During the time the child is with either parent that parent shall:

    (a)       Not question the child about the personal life of the other parent;

    (b)       Speak of the other parent respectfully; and

    (c)       Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

13. The mother be restrained and an injunction hereby issues restraining her from recording any video footage or audio recording of the child in which the child is alleged to be either making allegations of sexual abuse or displaying sexualised behaviour and after the expiration of 30 days from the date of this Order the mother shall destroy any video footage or audio recordings and/or photographs taken by her or with her knowledge relating to the allegations of sexual abuse.

14. The mother be restrained and an injunction hereby issues restraining her from making any further complaint to police or to Child Safety, however described, in relation to any of the allegations made by the mother up to and including the date of this Order.

15. The mother be restrained this day and an injunction hereby issues restraining her from removing the child from Child Dispute Services on Level 3 of the Commonwealth Courts Building, Brisbane. 

16. The independent children’s lawyer be discharged after 30 days.

17. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order 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 this Order.

NOTATION

A.All times referred to in this Order are a reference to Queensland time.

B.The reference in this Order to ‘systems abuse’ means repeated interviews of the child by police or child safety officers or other persons associated with the investigation of allegations of harm against the child.

C.It is noted that the mother supported a positive finding being made by the Court that the father has not sexually abused the child in any way and that the child is not at risk of harm from the father.  

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wentworth & Wentworth 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 BRISBANE

FILE NUMBER: PAC 4027 of 2016

Mr Wentworth

Applicant

And

Ms Wentworth

Respondent

REASONS FOR JUDGMENT

1. Mr and Ms Wentworth are the parents of a little girl named X, who will turn five in 2019. The parents separated on 21 July 2016 when the child was just two years old. The child has always lived with her mother. She has spent very limited time with her father due, at least in part, to the mother’s allegations that the child was at risk of sexual abuse by the father.   

2. By the end of the trial the mother withdrew her allegations and now supports a finding (sought by the father and the independent children’s lawyer (“ICL”)) that the father has not sexually abused the child in any way.

3. Despite the concessions made by the mother, both the father and ICL contend that the child should live with the father and spend time with the mother but only after a moratorium to enable the mother to come to terms with the change in the child’s living arrangements and to gain an understanding of the reasons for it. It is argued that the mother’s concessions are not genuine and that if the child remains in the mother’s care, she will be subjected to ongoing emotional and psychological harm as further allegations of sexual abuse will inevitably be made against the father.

4. For the reasons which follow, I have determined that the best interests of the child require her removal from the mother to live with the father.

issues

1. As already noted, the mother’s position changed at the end of the trial (but before submissions) and as a consequence, some issues originally agitated by her are no longer matters requiring specific determination.[1] The significant issues identified by the parties and the Court are as follows:

   a)Should a positive finding be made that the father has not sexually abused the child?

   b)Is there an unacceptable risk of emotional or psychological harm to the child if she continues to live with the mother by reason of the mother’s false allegations against the father and the likelihood of allegations continuing?

   c)Will the mother promote the child’s relationship with the father if the child continues to live with her?

   d)How will a change in living arrangements impact on the child?

   e)If there is a change to the child’s living arrangements, how can any unacceptable risk from the mother be ameliorated?

   f)Should an interim order be made?

   [1] At the commencement of the trial the mother sought a finding that the father posed an unacceptable risk of sexual abuse to the child and that the paternal grandparents had failed to properly supervise the father’s time with the child.

Proposals

1. The father adopts the order recommended by the ICL.[2]

   [2] See exhibit 16.

2. The mother proposes that the parents have equal shared parental responsibility; that the child continue to live with her and that she spend unsupervised alternate weekends (after four occasions of Saturday only time) and holidays (from term 3 in 2019) with the father, or, as a last resort, that an interim order be made to that effect.[3]  

   [3] See exhibit 6 (amended during submissions by mother’s counsel).

3. The ICL recommends that the child live with the father and spend alternate weekend time with the mother but only after a moratorium of six weeks and at least three months of supervised time only.  The ICL also recommends that the father have sole parental responsibility.[4]  

   [4] See exhibit 16 which sets out a comprehensive minute of the order.

Applicable legal principles

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[5]

   [5]Family Law Act 1975 (Cth), s 65D.

2. A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:

   a)The person or persons with whom a child is to live;

   b)The time a child is to spend with another person or other persons; and

   c)The allocation of parental responsibility for a child.

3. The objects and principles of Part VII of the Act are set out in s 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s rights to be cared for by both parents when it is safe for that to occur.

4. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).

5. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).

6. In considering the primary considerations the Court must give greater weight to 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(2A)). Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.

7. In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the ‘inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’ and proof to the reasonable satisfaction of the court ‘should not be produced by inexact proofs, indefinite testimony or indirect inferences’.[6] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[7] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.”[8]

   [6] M & M (1988) 166 CLR 69 citing Briginshaw v. Briginshaw (1938) 60 CLR 336, 362 (Dixon J).

   [7] M & M (supra); N and S and the Separate Representative (1996) FLC 92-655.

   [8] ‘Unacceptable risk – A return to basics’ by the Hon. John Fogarty AM quoted with approval in Johnson & Page (2007) FLC 93-344, [68], [71].

8. The Court is not required to make findings of fact on every factual dispute raised by the parties.[9] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[10]

   [9]Baghti & Baghti [2015] FamCAFC 71.

   [10]M & M (1988) 166 CLR 69.

9. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

10. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).

11. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

12. Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).

13. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

14. Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[11]

    [11]Banks & Banks (2015) FLC 93-637.

Background

1. Before turning to consider the issues identified above, I note by way of background that the father and mother commenced cohabitation in August 2012 and married in 2013. They separated on 21 July 2016 and are now divorced. At the time of separation the parties lived at F Town.

2. The parents have one child, X born in 2014.

3. The father is 30 years old and works full time as a tradesman. He is not currently in a relationship and lives with his parents at G Town.

4. The mother is 33 years old and engaged full time in home duties. She cohabits with Mr H whom she commenced to live with in January 2018 although he has been a significant part of her life and the child’s life since November 2016. The child refers to Mr H as “doddy”.  Mr H is a technician. He has one child, Y who lives in J Town, New South Wales with his mother and he spends time with Y during some school holidays. The mother and Mr H live at K Town, New South Wales, where the mother relocated in October 2016 after her separation from the father.

1. The child, X, has always been primarily cared for by the mother and has spent limited time with the father since separation. Prior to separation the mother left the matrimonial home with the child and travelled to Sydney in June 2016 for a number of weeks before informing the father on 21 July 2016 that the marriage was over. The mother did not disclose her whereabouts to the father after separation for quite some time. On 26 August 2016 the mother filed an application in the Sydney registry of the Federal Circuit Court seeking an order for sole parental responsibility and for the child to live with her. There was no provision in her application for the child to spend any time with the father but the mother contends that it was her intention for the child to spend time with the father if supervised.

2. In October 2016 the mother relocated to live in K Town. Prior to her move the mother had no connection with K Town and the mother did not seek the father’s consent to relocate the child to K Town. K Town is 166 kilometres from F Town where the parties had been living together up until separation.

3. Two weeks after the mother relocated to K Town, and for the first time since July 2016, the father spent a brief time with the child at a park in L Town in the presence of his parents. The mother contends that the visit went well and the child had a good time.

4. On 23 November 2016 an Order was made by consent for the child to spend every Sunday with the father supervised by a member of his family. The first visit occurred on 27 November 2016.

5. On 7 February 2017 a final Order was made by consent providing for the child to live with the mother and spend time with the father. Prior to the first visit contemplated by the Order, the mother made a complaint to police because she “felt threatened by [Mr Wentworth] and the paternal grandparent’s behaviour” and sought a protection order against the father. The mother withdrew her request days later after acknowledging to police that she was not afraid of the father.    

6. Shortly prior to the commencement of the father’s scheduled overnight time in July 2017 the mother made further allegations against the father and a temporary protection order was made for the protection of the child. The application was later withdrawn by police in November 2017.

7. The father recommenced proceedings on 4 July 2017 and the father’s time was suspended on 26 July 2017 pending investigation of the mother’s allegations. The father spent no time with the child until he saw her at the family report interviews on 11 November 2017. A further Order for supervised fortnightly time was made on 18 December 2017 and the first visit occurred at the B Town contact centre on 10 February 2018.

8. On 8 March 2018 the Department of Child Safety (Qld) informed the mother that her allegations against the father were not substantiated.

9. On 20 July 2018 the father sought the mother’s agreement to spending time with the child weekly rather than fortnightly at the B Town contact centre. The mother declined the request.

10. On 13 and 27 October 2018 the child spent time with the father at the K Town contact centre. It was intended that the time spent between the father and child would thereby be increased to weekly i.e. one week in B Town and the other in K Town. The paternal grandparents also attended the visit on 27 October 2018. The mother alleged that the time on 27 October 2018 had not been adequately supervised based on statements allegedly made to her by the child.  The contact centre ultimately withdrew their services. The centre denied that anything untoward had occurred during the supervised visits.

11. Thereafter, the father continued to spend time with the child on a fortnightly basis only, at the B Town contract centre.

Should a positive finding be made that the father has not sexually abused the child?

1. The father contends that such a finding should be made and both the mother and the ICL support the Court making such a finding. It must be remembered that the Court’s primary task is to make a parenting order that is in the best interests of the child and the Court cannot be diverted from that task by being pressed to make findings of fact that are not necessary to that broader determination. That said, in circumstances where the mother withdraws serious allegations of sexual impropriety against the father and where I am satisfied that the evidence would not support a finding of abuse or an unacceptable risk of abuse I propose to accede to the joint request, supported by the ICL, and  make a positive finding that the father has not sexually abused the child or exposed her to sexually inappropriate or indecent acts.

The allegations of sexual abuse

1. In undertaking the broader task of determining what parenting order is in the child’s best interests it is nevertheless necessary to consider the evidence upon which the mother relied in making her allegations because it is submitted, on her behalf, that she acted reasonably. Support for that submission is said to be found in a number of matters including that:

   a)The mother consented to supervised time commencing in November 2016;

   b)In February 2017 the mother consented to a final Order that the child spend time with the father unsupervised after a period;

   c)The mother took her concerns to police and was supported in those concerns e.g. one police officer concluded that the child had been exposed by the father to an indecent act;

   d)The mother’s concerns were informed by the father’s treatment of her during the marriage;

   e)The child has not been alienated from the father and enjoys a positive relationship with him;

   f)The mother only wanted to find an explanation for the child’s statements and behaviours;

   g)The mother withdrew her allegations; and

   h)The mother says she will comply with any order for the father to spend time with the child, unsupervised.

2. I propose to consider each of the matters raised above, but before doing so, I stress that I am very conscious of the difficulty in proving or disproving allegations of sexual abuse of a very young child. Sexual abuse of a child is the most heinous of crimes and quite rightly deserves the utmost condemnation.

3. Unfortunately, allegations of this type are not infrequently made by litigants in this Court in the context of bitter relationship breakdown. It is all the more important therefore to examine closely the evidence said to support the allegations and not be too ready to dismiss the evidence as the baseless claims of a disgruntled wife or husband or partner. Context is very important as is motivation.

4. In this case it is apparent that the mother regarded the marriage as an unhappy one. She regards the father as crass and overbearing. The mother objected to the father walking around the house naked or sitting in just his boxer shorts. She contends that he was in the habit of grabbing her crotch despite her telling him not to and contends that he frequently yelled at her. On one occasion she became so exasperated by his behaviour that she punched him three times in the mouth in the presence of the child. Her actions caused the father injury and he was bleeding. Not surprisingly, given the mother’s allegations, there were occasions when she yelled at the father. The mother contends there was an occasion when the father pushed her to the ground after he pushed open the bedroom door that she was standing behind. I am not satisfied that this incident occurred as described by the mother or that it was an incident of family violence. On one occasion the mother contends that the father aggressively brushed the child’s teeth when she could not get the child to do so. The child fell and bumped her head but the mother accepts that this was accidental. I find it curious that this incident finds its way into the mother’s affidavit as an example of family violence. The mother contends that it was the father’s “heightened tone” that made the incident a family violence incident. The mother does not contend that the child is at risk of harm from family violence from the father.  

5. Unfortunately, it seems the mother’s dislike of the father and abhorrence for his allegedly crass behaviour towards her has influenced her interpretation of inconsequential behaviour on his part and others towards the child. A particularly troubling example of this propensity to view innocent behaviour as sinister was demonstrated by the mother’s insistence that an entirely innocuous encounter between the child and the paternal aunt was inappropriate and suggestive of the aunt having been a victim of sexual abuse as a child. The incident was recorded by the paternal aunt and depicts her tickling the child as the child lies on her back and squeals with laughter. The mother maintained her concern about the video recording after it was played during her evidence.   

6. A further matter I wish to comment upon before considering the reasonableness or otherwise of the mother’s past conduct, is that even on the mother’s case there seems to have been virtually no opportunity for the father to have sexually abused the child.  The mother’s contention is that there were only three times prior to separation when the father spent time alone with the child. Many of her allegations about his inappropriate sexual conduct towards the child are said to have occurred in her presence. Since separation the father’s time with the child has been supervised by family members or agencies. On the one occasion that the paternal grandfather supervised the father’s time with the child in June 2017, the father videoed the child going into a study and collecting animal skin rugs. This video was provided to the mother. The father says that he videoed the child as he thought her activities were cute. It seems that on this occasion there may have been a minute when the paternal grandfather did not have the child or father in his sight. The mother contended that the father took this opportunity to do something to the child of a sexual nature and she said her suspicions were confirmed when she observed the child clinging to the father at changeover and the father’s tearful expression.

7. Despite the father’s limited opportunity to engage in conduct of a sexual nature with the child, the mother maintains that the child’s behaviour since separation, which the mother describes as sexualised, “quite possibly” relates to what the father has done to the child during the supervised visits. The behaviour described by the mother has not been observed by anyone other than the mother and her partner despite the child attending day care; the father’s time with the child being supervised; the child being interviewed by authorities on four occasions and the child being observed during interviews by family report writers on three occasions. The behaviour of the child, said to be observed by the mother and Mr H, also arises in carefully staged circumstances where the child is naked or semi-naked.

Has the mother acted reasonably?

1. Turning then to consider the particular matters raised by the mother’s counsel: while it is correct that the mother consented to the father spending supervised time with the child in November 2016, her conduct prior to that is of relevance as it demonstrates her disregard for the child’s rights to spend time with and be cared for by both parents. The mother removed the child from her home in F Town and relocated firstly to Sydney and then to K Town. The mother did not, initially at least, tell the father where she had taken the child. She did not seek the father’s consent to relocating the child to K Town and as a consequence of the mother’s unilateral actions, the child did not see the father for four months.

2. Then in February 2017, while the mother did consent to a final Order that provided for a gradual increase in the father’s time and supervision being removed eventually, the mother made unjustified allegations of stalking and harassment within days of consenting to the Order. The mother also hinted to police that she was at risk of being stabbed by the father because he was a butcher and good with knives and had fantasied about stabbing customers during the marriage. No such allegations were contained in her August 2016 affidavit. Having made these extraordinary allegations to police on 13 February 2017, by 4 March 2017 the mother told police she did not fear her husband and was happy to continue to attend changeovers.

3. Then, shortly before the father’s time with the child was to move to overnights pursuant to the Order, the mother made another complaint to police claiming the child had made disclosures of sexual abuse by the father. A temporary protection order was granted naming the child as the protected person. It is common ground that police withdrew the application in November 2017. As a result of the mother’s allegations, the child did not spend time with the father from about mid-June 2017 until February 2018.

4. Between 2016 and 2018 the mother made a number of complaints to police and the Departments of Child Safety in Queensland and New South Wales about the father’s behaviour towards the child and suggested the child was at risk of sexual abuse from him. Despite the child’s age she was interviewed on four separate occasions in relation to allegations of sexual harm. At least one of those interviews occurred at the mother’s insistence and after the child had already been subjected to two previous interviews.

5. The conclusion reached by the Department in March 2018 was:

   [The child] has not disclosed any information throughout any of these interviews that have resulted in charges being laid against [Mr Wentworth] [the father], or Child Safety being worried that the child is at risk of sexual harm by being in the care of [Mr Wentworth].

   [Mr Wentworth] is assessed as a parent willing and able to meet the care and protection needs of [the child].

   …

   STL [M] has talked to [Ms Wentworth] [the mother] to advise that Child Safety is worried that [Ms Wentworth] may not have an awareness that the child’s behaviours might be resulting from the separation of her parents, [Mr Wentworth] and [Ms Wentworth]; that Child Safety is worried [Ms Wentworth] may not have an understanding of what is typical “sexual behaviour” for a child of the child’s age; and that Child Safety is worried that [Ms Wentworth] may not be aware that recording the child’s comments about time spent with her Father is confusing for the child and as a result she does not want to tell [Ms Wentworth] about her visits with [Mr Wentworth].

6. In a telephone interview between the mother and child safety officers (recorded by the mother without the knowledge of the officers) the mother was informed that a decision had been made that the child is not at risk of sexual harm from the father and one of the child safety officers tried to explain that the child’s behaviour may be completely unrelated to any abuse from the father. This is what the mother was told:

   And just because she’s acting a bit weird or strange after contact doesn’t mean something bad’s (sic) happened, it just means maybe something’s on her mind, she might be missing dad, she might be missing you when she’s with dad, there’s lots of explanations for those kinds of behaviours and it doesn’t always mean it’s a bad thing.

   …

   I think [Ms Wentworth] you just maybe need to do some education around what’s normal behaviour for her age group, I’m worried that you’re confusing normal behaviours … that we would see in a three year old with sexualised behaviours that maybe you’re seeing that, you know, is actually what you would expect from that age group … and I think you need to do some education yourself and there’s lots of agencies even in New South Wales … who can do that course with you.

7. In a family report dated 22 December 2016 the father was assessed by Dr N as a “low risk” of sexual offending.

8. Ms D prepared two family reports in this matter which I have found of great assistance. The first is dated 4 December 2017 and the most recent one 15 December 2018. She opined that the child “did not exhibit any signs or indicators that would be consistent with her having experienced sexual harm during either of the family report sessions”. Further she stated that “the child was very comfortable with her father and exhibited a close father-daughter relationship and bond”. I am conscious, of course, that a close relationship does not, of itself, disprove sexual abuse.

9. Importantly, in my view, Ms D said:

   209. The disclosures that [Ms Wentworth] refers to are [Ms Wentworth] and Mr Mr (sic) [H’s] interpretation of the child’s behaviour and their translation of the conversations with [the child]. The report writer has previously listened to the recordings and they are very difficult to understand. As previously stated it is not possible to assess from [Ms Wentworth’s] recordings with the child that the child’s reported behaviour is the result of sexual abuse, or any other form of abuse or neglect.

   210. … [Ms Wentworth] continues to remain adamant that [the child] is at risk of sexual abuse if she is to spend time in [the] father’s unsupervised care or if the paternal grandparents supervise her. …

   … [the child’s] alleged sexualised behaviours have only been observed when the child is in her mother’s care.

   211. …

   (i) There has not been a differentiation made between sex play and sexual abuse. For example, sex play for children does not mean the same as it does for adults. For children it is about being curious about their bodies and about sexual difference. Masturbating or touching her genital area is a normal part of a child exploring their body and may give a feeling of comfort when she is worried and not necessarily about sexual abuse.

   (a) (sic) Most often, when young children complain of having a sore vagina it is due to vulvovaginitis. This irritation can be caused from a variety of reasons including skin infection, bacteria from the anus, clothing that has irritated the genital area, dampness, or possibly sexual abuse. Clothing, strong soaps, bubble baths can also irritate children’s skin.

10. I have listened to the recordings made by the mother of the child allegedly making disclosures and I share Ms D’s views. Like so many litigants who are intent on gathering evidence, the mother’s actions are more damning of herself than anyone else. It was really quite challenging listening to this poor child becoming more and more hysterical as questions are fired at her. When the mother does not achieve an answer she is so clearly looking for e.g. when the child is asked who showed her the ‘grocery game’ and she says ‘mummy’, the child is sternly admonished by the mother.

11. Ms D reiterated her view in her most recent report that the child is at a low risk of future harm from the father.

12. I accept Ms D’s opinion that the mother:

    220. … appears to be continuing to approach the situation with the intention of seeking to validate her position in her ongoing pursuit of evidence gathering to support her allegations that the child has been and continues to be at risk of sexual abuse by [Mr Wentworth]. This was evident by her dismissal of the professional assessments and investigations conducted to date. [Ms Wentworth] appears unable to process that the authorities charged with a mandate to assess and investigate child protection notifications have finalised their investigations as unfounded.

    221. It is the report writer’s continuing assessment that if [Ms Wentworth] is unable to make changes in her behaviour and attitude towards [Mr Wentworth], [the child] could emerge from this conflict with psychological problems, which will extend into her ability to form meaningful relationships in the future. [Ms Wentworth] appears to be undermining [the child’s] love, attachment and relationship with [Mr Wentworth] and the paternal grandparents.

    …

    223. … The report writer (sic) continued view is that if [Ms Wentworth] is not able to allow [the child] to develop a (sic) important and meaningful relationship with her father while in her care then the Court may need to consider a change of the child’s care arrangements.

1. The mother sought to justify her allegations that the father was a risk to the child, because of his allegedly sexually inappropriate behaviour with the child prior to separation. In this context, I do not accept the mother’s evidence that she raised any concerns with the father about his behaviour with the child prior to separation. Specifically, I reject the mother’s allegation that in 2014 (when the child was not yet one year old) she told the father to stop looking at the child’s “vagina”. The mother said during cross-examination that she had observed a “look” on the father’s face when he was fixated on the child’s “vagina”. Despite the mother’s stated concerns about the father’s behaviour during the relationship she contends in a statement provided to police on or about 18 June 2016:

   One weekend morning I begged [Mr Wentworth] to care for the child (something he mostly refuses to do and gets annoyed whenever I ask for his help even on the little things) I really really wanted to just sleep in a little longer that day …

2. I find this piece of evidence curious for two reasons. Firstly, if the mother really had suspicions that the father was sexually aroused by his baby daughter why would she beg him to care for her so she could sleep in? Secondly, the father’s alleged lack of interest in his daughter seems inconsistent with the allegation that he was fixated upon her.

3. The mother also claimed that prior to separation she had observed the father “adjusting himself as if to hide an erection.” This allegation seems to relate somehow to the child i.e. that the father was sexually aroused by the child. The mother says that she did not say anything to the father because she was scared. I do not believe her. Her history of communication with the father during the relationship was forthright. She frequently took him to task and set the rules. I also reject her evidence that she did not say anything for fear he would be charged with a criminal offence. The mother also said that the father used to sit around in boxer shorts and made no attempt to hide his erection when the child was walking around naked or upon waking up in the morning. It beggars belief that the mother would permit her toddler to wander around naked if she thought the father was sexually aroused by the child.

4. The mother also placed considerable weight on the child allegedly sucking on the father’s nipple. The father agrees that the child would go to suck on his nipple and he said something like “there’s no milk in there”. This occurred at a time when the child was still being breast fed. I reject the suggestion by the mother that the father’s conduct is suggestive of an inappropriate sexual act.

5. The mother has repeatedly alleged that the father asked the child to dry his penis with a towel. The mother included that allegation in a statement provided to police on or about 18 June 2016. The mother also told a friend, Ms O on 20 June 2016 that the father asked the child to dry his penis with a towel.

6. In the mother’s affidavit filed 26 August 2016 the mother said:

   25. Another incident occurred on or around early 2015 when, after [Mr Wentworth] had showered, [Mr Wentworth] asked the child to dry his penis with a towel. …

7. In the mother’s affidavit filed 14 May 2018 she said:

   46. In or around early 2015 when, after [Mr Wentworth] had showered, [Mr Wentworth] asked [the child] to dry his penis with a towel. …

   47. … [Mr Wentworth] often asked the child to dry his legs when he got out of the shower and praised her when she did. I had no issue with this at the time and still don’t. I agreed it was cute. On the occasion in question, however, I was present and clearly heard [Mr Wentworth] ask [the child] to dry his penis after his shower. I do not remember his exact words and whether he said the word penis or this bit, but he asked her to dry that area. …

   [emphasis added]

8. During an interview with Ms D, family report writer, on 15 November 2018 the mother reported that while she and the father were still together, the father asked the child to dry his penis. The mother told Ms D that she was present when the father asked the child to do this.

9. During cross-examination of the father it was put to him that he had asked the child to dry his penis with a towel. The father denied the allegation.

10. When cross-examined about this allegation the mother initially maintained that the father had asked the child to dry his penis with a towel. She then conceded that the father may not have asked the child to dry his penis at all. The mother then suggested that the father made a “gesture” consistent with such a request. There is no mention of a gesture in any affidavit or statement. I reject her allegation that the father asked the child to dry his penis or made a gesture to the child (who was not yet one year old) consistent with a request for the child to dry his penis.

11. The mother’s evidence relating to this allegation does her little credit. She repeatedly made an untrue allegation, namely that the father asked the child to dry his penis. Her evidence relating to this allegation demonstrates the mother’s preparedness to fabricate evidence to support her allegations.

12. Another very worrying aspect of the case is the mother’s propensity to leave out crucial context when recounting the child’s behaviour to police e.g. the mother told police about the child playing what became known in the proceedings as the ‘grocery game’ i.e. that the child would open her legs and say something purporting to implicate the father in requiring the child to open her legs as part of a ‘grocery game’. What the mother did not reveal to police was that she herself had planted this idea in the child’s mind. The mother informed Ms D on 11 November 2017 that when she observed the child masturbating she would distract her by suggesting that they go to the supermarket. The mother made no mention of this in her affidavit either.

13. To the extent that the mother garnered support for her allegations against the father from police, it was forthcoming, at least in part, because of false information provided by her as already noted.

14. On 1 September 2017 Detective Sergeant P conducted a s 93A interview with the child. Based on information provided to DS P by the mother in a pre-interview telephone conversation and the s 93A interview itself, DS P informed the mother that she was of the view that the father had exposed the child to an indecent act in the toilet.

15. I have grave concerns about the conduct of the interview and DS P’s preparedness to engage in baseless speculation.

16. It was sensibly conceded by counsel for the mother that the s93A interview was of no forensic significance to the allegations of sexual abuse made by the mother.

17. DS P maintained that the disjointed, garbled, inconsistent, sometimes unintelligible chatter by the child was of some significance. She opined that it was perfectly justifiable to ask leading questions of this suggestible 3 year old if the focus was on protection, irrespective of the consequences of her speculation on the child’s rights to spend time with both parents when it is safe to do so.

18. The conclusion reached by DS P occurred despite her acknowledgement that the child did not want to be interviewed; that she was suggestible; that she was distractible; that she said some “crazy” things and that her language was difficult to understand.

19. DS P conceded that despite this very young child not wanting to be interviewed she was subjected to approximately thirty-seven minutes of repeated questioning based on conclusions reached by the mother and conveyed to DS P. The child became quite hysterical at times, squealing and hiding under furniture yet DS P continued undeterred. 

20. I find it extraordinary that alarm bells were not ringing for DS P on listening to the recording provided to her by the mother. To the contrary, DS P said she had no concerns at all about the mode and circumstances of questioning engaged in by the mother and her partner. I certainly have many concerns about it and I am alarmed that an apparently experienced police officer did not.

21. DS P speculated that the reference by the child to glue and the toilet indicated that the father ejaculated in the toilet in front of the child. The reference to ‘glue’ and ‘daddy’ were introduced by DS P to the child when she asked:

    I heard about a game when Daddy had some glue on his pants. Did daddy have glue on his pants? 

22. It seems DS P paid no regard to the child’s responses to direct questions. The child was asked whether the father had touched her private parts and she said “No” and she was asked if the father had “weed on her fanny” which elicited an emphatic “NO” from the child. She was also asked whether the father had done anything naughty and she again responded with an emphatic “NO”. When the child was asked if she wanted to visit the father again she said she does but her mother will not take her.

23. DS P came to the conclusion that the father posed a risk without even interviewing the father and despite his willingness to co-operate in any way possible.

24. DS P did not approach her investigation with an open mind. Unfortunately, she appears to have been taken in by the mother’s story. 

25. The mother also alleged that during the relationship, the father repeatedly grabbed her “vagina” contrary to her strongly expressed objections. During cross-examination she corrected her evidence to state that it was her crotch that he grabbed and that it was through her clothing. The father contends that he would playfully pinch the mother on the bottom and that the mother did not object until the latter part of their relationship. Whatever the precise nature of the unsolicited behaviour by the father I am not persuaded that it can explain or justify the mother’s allegations of sexual impropriety with the child.

26. I find it concerning that the mother repeatedly misused terminology relating to female genitalia and conceded that when she uses the word ‘vagina’ she is in fact referring to the outer part of the genitalia and not internal. Another example of her propensity to misuse descriptive terminology occurred where she alleged in her affidavit that the father had touched the child’s vagina. The mother admitted that what she was referring to was the father brushing his hand across the outside of the child’s nappy and tights in the general area of her vulva when she was a baby. The mother suggests that she was horrified by what she observed. If the mother was horrified it demonstrates her propensity to overreact. I certainly reject her suggestion that the act she describes was sexual in nature.

27. The child does appear to have a very positive relationship with the father but I consider that has more to do with the strength of the initial relationship the child had with the father and his interactions with her during the time he has spent with her and also her very young age. She is not yet at an age where the mother’s influence overrides her own feelings and affection although there is some evidence that may be changing e.g. the child has expressed some reluctance to spend time with the father according to Mr H’s mother. The child also said to the father on a number of occasions during a supervised visit at the B Town contact centre on 17 November 2018 – “you should not come to [B Town]”.

28. I do not accept that the mother has only been trying to find an explanation for the child’s statements and behaviours. There have been numerous occasions when the mother has been provided with alternative explanations e.g. by child safety officers and Ms D. The mother rejected any explanation contrary to her stated belief that the father sexually abused the child and set about gathering evidence to prove it.

29. Disturbingly, the mother  staged situations involving the child being left naked and then questioned her and suggested answers. In one of the recordings the mother can be heard whispering to the child. When the child gave answers that did not assist the mother’s story, the child was admonished in stern terms. The child was being coached to give certain responses.

30. The mother  gave priority to gathering evidence rather than protecting her child from injury e.g. the mother ran to retrieve her phone so she could film the child putting a straw into her vagina rather than removing the straw.

31. On one occasion when Mr H involved himself in one of these staged events, he conceded that he had the child straddling his legs while she had no pants on.

32. The behaviour of the mother and Mr H deserves condemnation.

33. Another reason why I reject the submission as to the reasonableness of the mother’s position was her dismissal of the suggestion that, if something sinister had occurred, it might have been someone other than the father, despite her admission that the child implicated “doddy” (her name for Mr H) which on any view of it is very similar to “daddy”.

34. It is true that the mother withdrew her allegations at the end of the evidence but nothing that she said during her evidence leads me to accept that there has been any change in her determination to interfere with the child’s relationship with the father.

35. Given the timing of the mother’s concession, she was not cross-examined about her change of position and no application was made to re-open her case. The reasons for her change of heart provided by her counsel were unconvincing given that the mother made no such concession during cross-examination. The mother was afforded every opportunity to express a view that she was mistaken but steadfastly maintained that that the behaviours and statements attributed by her to the child “quite possibly” related to the mother’s allegations of sexual abuse and in particular related to the child’s time with the father.

36. While the mother contends that she will comply with a Court order for the child to spend unsupervised time with the father I note that the mother deposes in her affidavit:

    31. …If orders are made for unsupervised time between the child and [Mr Wentworth] this will be incredibly traumatic for me and I will worry constantly that the child is being harmed.

37. The mother said to Dr E in May 2018 that it did not matter what findings were made, she would maintain her belief that the father had sexually abused the child. In her most recent report, Ms D opines that the mother “continues to remain adamant that the child is at risk of sexual abuse if she is to spend time” with the father. The mother is fervently supported in her belief by Mr H.

38. I have no confidence that the mother will desist in her evidence gathering behaviour if the child continues to live with her.

39. In conclusion, I do not regard the mother’s actions or stated beliefs to be warranted or reasonable and I find that her capitulation is more likely to be related to her perception that the child would be removed from her if she maintained her allegations.

Is there an unacceptable risk of emotional or psychological harm to the child if she continues to live with the mother by reason of the mother’s false allegations against the father and the likelihood of allegations continuing?

1. I have set out in detail above the many concerning features about the mother’s conduct and I conclude that if the child remains with the mother, the evidence gathering behaviour of the mother is likely to continue as she seeks to validate her position. The child will be subjected to continual scrutiny. Such conduct is emotionally damaging for the child and the long term impact on this child is likely to be severe. I accept Ms D’s views to this effect. Another considerable risk is that the more the child is exposed to the mother’s views, the greater the risk of her coming to believe that the father has abused her or is a risk of abusing her in the future.

2. Such risks to the child of emotional and psychological harm are unacceptable.

Will the mother promote the child’s relationship with the father if the child continues to live with her?

1. The mother has a long history of interfering with the child’s relationship with the father. I have no reason to believe her behaviour will change if the child remains in her care.

How will a change in living arrangements impact on the child?

1. The child has a “significant secure primary attachment to her mother” and was observed to have an affectionate and loving relationship with both the mother and Mr H. The father, his parents and his sister all agree that the mother is a good mother to the child. The only caveat is her continued allegations against the father and her interference in the paternal family’s relationship with the child.

2. I have no doubt that a change in the child’s living arrangements will involve a significant adjustment for the child. She has not spent any significant time with her father since July 2016.  

3. However, Ms D has assessed the child’s relationship with her father as “loving” and opined that “their interactions were indicative of their close and secure attachment”.

4. In the most recent interviews on 15 November 2018 the following observation was made by Ms D:

   176. … When [the child] sighted her father she ran to him leapt into his arms and affectionately hugged him. Lots of kisses were exchanged.

   …

   182. During the session [the child] and [Mr Wentworth’s] conversation flowed effortlessly. [The child] located a number of books in her father’s bag and asked him to read her the “fairy” story. [Mr Wentworth] read the story to [the child]. [The child] lent on her father’s lap and was very interested in the story. She smiled spontaneously. …

   …

   186. During the session it was observed that [the child] sat in close proximity to her father. They (sic) interactions were relaxed and comfortable.

5. The father demonstrated that he had given considerable thought to the difficulties the child may face in a change of living arrangements and while his parenting responsibilities have been limited I find that he will capably meet whatever challenges come his way. He will accept support and guidance from family and professionals should the need arise.

6. One particular piece of his evidence that was impressive was his statement as to the importance of the child speaking to the mother on FaceTime or telephone during the moratorium period. That was not something initially proposed by the ICL.

7. While I have no doubt that the child will miss her mother greatly I have confidence that the father and extended paternal family will provide the love and care and peace that this child deserves.

If there is a change to the child’s living arrangements, how can any unacceptable risk from the mother be ameliorated?

1. The ICL recommends a moratorium of six weeks to enable the child to settle with the father and develop her relationship with him and the paternal family. A moratorium will also protect the child from what one might expect will be an extreme reaction from the mother.

2. The mother will need time to adjust, as will the child, and in my view the transition is more likely to be successful if there is a moratorium as suggested.

3. Thereafter, supervision for a period of at least three months will provide protection for the child from interrogation or other inappropriate conduct from the mother. It is hoped that the mother will be supported by a very experienced clinical psychologist who can assist her adjustment and understanding.

4. By the end of at least four and a half months the child is likely to be more strongly attached to the father so as to withstand any undermining that the mother might still engage in. It is impossible to predict with absolute certainty that the mother will change her ways but with the implementation of these proposals I consider the risk to be ameliorated.

Should an interim order be made?

1. Given the enormity of the decision to remove a young child from her primary carer I have given serious consideration to making an interim order and reviewing the matter in say six months. An interim order could be made that the child live with the father for that period and then return to the mother or, as submitted by the mother, the child could remain with her on an interim basis and the situation could be reviewed.

1. An interim order, it is argued, would provide the mother with an opportunity to demonstrate her ability to refrain from questioning the child, making complaints to authorities about the father and facilitating the child’s ongoing relationship with the child.

2. I have come to the conclusion that even if the mother were to be on her best behaviour for an interim period, the zealotry with which she pursued the allegations against the father would come to the fore at some later time and the child would again be subjected to further investigation and disruption in her relationship with the father. The mother’s behaviour when interrogating the child and her propensity to interpret innocent statements and behaviour as sinister cause me to conclude that her behaviour is unlikely to change in the short to medium term, if at all.

3. Another matter I must give consideration to, is the making of an order least likely to lead to further litigation. I have come to the conclusion that it would be more disruptive for the child for another interim order to be made which involves the prospect of further review and litigation. The parties and child have already been involved in litigation for years. Finality is, in this case, to be preferred.

other matters

1. Included in the minute of order recommended by the ICL and adopted by the father are a number of ‘specific issues’ provisions relating to the parents access to information, exchange of contact details, non-denigration, counselling for the mother, changeover venue and the like. In addition, an injunction is sought against the mother enjoining her from engaging in the types of behaviour of which I have been critical in these reasons and requiring the destruction of recordings.

2. No submissions were made by the mother against the inclusion of such provisions and I consider them to be appropriate.

Conclusion

1. It is not in contention that the father does not pose an unacceptable risk of harm to the child. Unfortunately, the mother’s conduct in persisting with allegations until very late in the trial has caused me to conclude that her motivation in withdrawing the allegations has more to do with trying to avoid a change in the living arrangements for the child than a genuine change of position.

2. The mother’s conduct, supported by her partner, of interrogating the child and drawing irrational and unwarranted conclusions cause me to conclude that if the child remains in the mother’s primary care it will only be a matter of time before further allegations are made against the father.

3. The father has had a very limited opportunity to develop a relationship with the child and the decision to remove the child is one that I accept is an extreme measure but one I believe will best meet the interests of the child in the long term.

4. Additionally, the child is more likely to be able to maintain a long term relationship with both parents if she lives with the father. The mother will be given time to adjust and hopefully come to terms with the order and the consequences of her conduct upon the child.

5. During the moratorium and the period of supervised time, the child will have the opportunity to develop her relationship with the father and build resilience to withstand any attempts by the mother to undermine that relationship in the future.

6. Having regard to the mother’s attitude to the father and the persistent allegations she has made against him I do not consider it to be in the child’s best interests for the parents to be required to make joint decisions about major long term issues. If such an order were made it is more likely to involve continuing conflict. That said, I propose to provide the mother with an opportunity to have an input and I am confident that the father will give due consideration to the mother’s views. 

7. The outcome in this case is ironic because the father’s application for the child to live with him was reluctantly brought by him. But for the mother’s relentless allegations against him and disruption in the child’s time with him, he would have been content for the child to live with the mother and spend weekend and holiday time with him. Sadly the mother’s conduct results in a finding that the only way the child can have a relationship with both parents is if she lives with the father. 

I certify that the preceding one-hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 8 February 2019.

Associate: 

Date:  8 February 2019