WITHERSPOON & KIMBERLY

[2019] FamCA 280

FAMILY COURT OF AUSTRALIA

WITHERSPOON & KIMBERLY [2019] FamCA 280

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of a child – 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 after a six month moratorium – Where the mother seeks sole parental responsibility, that the child live with her and spend no time with the father – Where the mother alleges that the father has sexually abused the child – Where the Court finds that the father did not sexually abuse the child – Where the mother is the child’s primary attachment figure and the child will be significantly traumatised and at risk of self-harm if removed from her mother’s care – Where the father does not have the capacity to manage the trauma the child will experience – Where the risk of harm posed by removing the child from the mother’s care outweighs the risk of harm posed by her remaining in the mother’s care – Where the child will live with the mother.

Family Law Act 1975 (Cth)

Baghti & Baghtiand Ors [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 Witherspoon

RESPONDENT: Ms Kimberly

INDEPENDENT CHILDREN’S LAWYER: Ms Gomes

FILE NUMBER: BRC 12 of 2017

DATE DELIVERED: 3 May 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 8 - 11 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge

SOLICITOR FOR THE APPLICANT: Morton & Morton

FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Oakley

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

Order

1. All previous parenting orders be discharged.

2. The mother have sole parental responsibility in respect of all major long term issues (as that expression is defined in s 4 of the Family Law Act 1975 (Cth)) for the child, Z born … 2009.

3. The child live with the mother.

4. This order be explained to the child today by a senior family consultant appointed by the Director, Child Dispute Services, Brisbane.

5. The mother be restrained and an injunction hereby issues restraining her from removing the child from Child Dispute Services until compliance with paragraph 4 herein.  

6. The independent children’s lawyer be discharged after the expiration of three months.

NOTATION

A.The senior family consultant appointed pursuant to paragraph 4 herein is at liberty to facilitate a meeting between the child and the father before the child leaves the Court precinct if considered to be of any benefit to the child.

B.The child is likely to have suffered significant emotional harm from the exposure to conflict between her parents.

C.While the Court has determined that it would be in the child’s best interests to have an ongoing relationship with her father, the child will be deprived of that opportunity unless the mother’s attitude changes.

D.The Court gave serious consideration to removing the child from her mother’s care but in the end determined that it was not in the child’s overall best interests for that to happen.

E.If the mother supported the child’s relationship with the father, the Court is satisfied that the child’s long term best interests would be enhanced and the Court encourages the mother to engage in the family therapy that was envisaged to occur last year.

F.The discharge of the independent children’s lawyer is delayed so that she may assist this family to engage in family therapy if the mother indicates a change of heart.     

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 Witherspoon & Kimberly 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: BRC 12 of 2017

Mr Witherspoon

Applicant

And

Ms Kimberly

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. Mr Witherspoon and Ms Kimberly are the parents of Z born in 2009. They are in dispute about where the child should live.

2. The child has always lived with the mother. The father has not spent time with the child since 2016 apart from a brief time during the preparation of the family report in 2018.

3. My impression is that the father just wants to see his child and his application to have the child live with him is one brought as a last resort.

4. Despite the mother’s protestations to the contrary, she is completely opposed to the child having a relationship with the father and I find it reprehensible that the mother, in effect, seeks to attribute responsibility for the current impasse to the child. The mother contends that if the child wanted to see the father she would facilitate that. I consider that to be most unlikely and such a position is completely at odds with her stated beliefs about the father and her actions to date.

5. Unfortunately, and despite the not insignificant long terms risks for the child in remaining with the mother, I have come to the conclusion that I cannot remove the child from all that she knows and cares about to live with her father who is ill equipped to solely parent his daughter. Further, I cannot disregard the very real risk of self-harm by the child if there were a change to her living arrangements.

6. I can only hope that upon reading these reasons the mother will realise the damage she is doing to her daughter and will instigate and support family therapy so that the child can have the opportunity to be loved and cared for by both parents, as is her right.  

Background

1. The father is 57 years old and works full time Technical Officer. He lives on his own in Town C, Queensland. He is in a relationship with Ms F who lives next door to him. Ms F works shift work and has few days off. When she is not at work she has to catch up on her sleep during the day. Ms F has two adult children and three grandchildren with a fourth grandchild soon to be born. She spends as much time as she can with her children and grandchildren. Ms F and the father have been in a relationship since about mid-2016 and she bought the house next door to the father in October 2017, in part, to make the continuation of their relationship easier.

2. The mother is 47 years old and unemployed. She has been in receipt of a pension since about July 1999 but worked part time last year until about May. The mother lives on acreage in Town A, which is about twenty minutes by car north of Town B, Queensland. Town A is about fifty minutes south of Town C, where the father lives. The mother’s parents also live on the same property.

3. The mother and father married in 2008 and separated in 2013. They divorced in 2017. Z is the only child of each of them.  

4. After separation, the mother moved with the child to Suburb D in Brisbane, then to Town B in early 2015, and then to Town A in 2015.  

5. The child has a keen interest in horses and participates in events. She has a number of horses on the property on which she lives. She also has a cat and a dog. In about August last year, the child changed schools for the third time. She now attends a State School, which is about nine minutes by car north of Town A. According to her most recent report card (semester 2, 2018) she appears to have settled in well and is performing reasonably well academically. In all but the subjects of health and physical education and music her effort is assessed as ‘excellent’. Her effort in health and physical education is assessed as ‘satisfactory’ and for music it is assessed as ‘very good’. She is described as a respectful and polite child who interacts well with her peers and made a smooth transition to her new school. Although only 10 years old, the child has already reached puberty and presents as quite a mature and confident 10 year old, which is perhaps unsurprising given her reliance upon her mother and other adults for much of her day to day interaction.  

6. In 2014 a final parenting order was made by consent providing for the parents to have equal shared parental responsibility and for the child to live with the mother and spend weekend and holiday time with the father.

7. Despite the mother’s attempts to portray a problem free period from the time the consent orders were made to mid-September 2016, I note her concessions that there were a number of what she called ‘threats’ by the father to bring contravention proceedings prior to then. I conclude, therefore, that there were issues with the mother’s compliance with the 2014 order prior to September 2016 (which is the last time the father spent time with the child apart from the family report interview in April 2018).

8. On 4 February 2015 the mother applied for a protection order against the father.

9. The domestic violence application was resolved on 22 April 2015 upon the father providing an undertaking to be of good behaviour, without admission.

10. Matters appear to have taken a turn for the worse once Ms F and the father commenced a relationship, with the mother on one occasion turning up unannounced at the father’s home banging on doors demanding to be introduced to Ms F.

11. The mother contends that the child has been sexually abused by the father and that this is the reason she stopped the child spending time with the father after 19 September 2016.

12. It is unsurprising, given the history, that the mother conceded during this trial that she despised and hated the father.

13. Given the mother’s allegations and stated beliefs e.g. that the father is a paedophile, it is difficult to reconcile her contention that if the child wished to spend time with the father she would “absolutely” facilitate it.

14. The mother’s legal aid was withdrawn on 12 February 2019 and she represented herself at trial although she had some assistance with the preparation of her material and advice during the trial.[1]

    [1] See Mother’s Notice of Actual Costs retained with the Court papers.

Proposals

1. The father adopts the recommendation of the independent children’s lawyer (“ICL”) and the Minute of Order tendered in support of that recommendation.[2]

   [2] See exhibit 12.

2. The mother proposes that the child continue to live with her and spend no time with nor communicate with the father “unless the child decides to do so”. The mother also proposes that she have sole parental responsibility.[3]

   [3] See the mother’s case summary filed 2 April 2019.

3. The ICL recommends that the child live with the father and spend no time with the mother for six months and thereafter supervised time initially and then unsupervised for two hours at a time each fortnight or all times as agreed. The ICL also recommends that the father have sole parental responsibility.[4] 

   [4] See exhibit 12.

Issues

1. The parties (including the ICL) identified the following issues as significant and relevant to the determination in this matter:

   a)Is there an unacceptable risk of the father sexually abusing the child if she spends time with him?

   b)Is there an unacceptable risk of the child being exposed to family violence by the father if she spends time with him?

   c)Does the mother have a genuine belief that the child has been sexually abused by the father or has she fabricated or manufactured the allegations?

   d)Does the child believe the father has sexually abused her?

   e)Is there an unacceptable risk of the child being exposed to psychological harm if she continues to live with the mother or has unsupervised time with her?

   f)What is the likely impact on the child of a change to her living arrangements?

   g)Does either parent have the capacity to promote and maintain the child’s relationship with the other parent?

   h)Should an order for sole parental responsibility be made?

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;

   c)The communication a child is to have with another person or persons; and

   d)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 right 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)).

7. 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.

8. 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” although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”. ^[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] See Johnson & Page (2007) FLC 93-344, [68], [71].

9. 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 & Baghtiand Ors [2015] FamCAFC 71.

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

10. 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.

11. 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).

12. 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.

13. 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).

14. 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).

15. 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.

16. I turn now to consider the significant issues in the context of the applicable law.

Is there an unacceptable risk of the father sexually abusing the child if she spends time with him?

1. On 10 October 2017 the mother filed a Notice of Risk in which she alleges that the father has abused the child. Particulars of the abuse are identified as:

   Child Z … made disclosures that the father … has sexually abused her by poking her in the anus and vagina.

2. The Notice also alleges that the child would be at risk of further sexual abuse if she were to spend time with the father and that the father:

   Represents serious parental incapacity in that the child has disclosed serious sexual abuse at the hands of the father including poking her in the anus and vagina.

3. The Notice also alleges that the child is at risk from the father because he:

   Regularly drinks to excess.

4. As best I can discern from all of the evidence,[12] the mother relies on the following evidence to support her allegations that the father sexually abused the child:

   [12] The mother only relied upon one affidavit in the proceedings and it contains few particulars of relevant matters. More detail is found in the agreed chronology (exhibit 9) which relies upon inter alia earlier affidavit material filed by the mother as summarised in the family report. The father endorsed the agreed chronology despite there being (at times) no sworn evidence by the mother in support of certain allegations e.g. 17.11.16 entry is sourced from the family report summary of the mother’s affidavit dated 18.9.17 at [108] of the second report. The mother at times expanded upon other evidence during cross-examination.

   a)From in or about May 2016 the child expressed reluctance to spend time with or communicate with the father;

   b)The child started to intermittently refer to the father by his first name;

   c)By September 2016 the child had developed a fear of the dark and would follow the mother around the house even when the lights were on;

   d)When returning from weekends with the father the child would make comments – “I don’t like him, he scares me”;

   e)When the mother attempted to encourage the child to speak to the father when he called, the child said – “No way not after what he has done to me”;

   f)On 11 September 2016 the child spoke to the mother on the telephone while she was with the father and was crying and said – “I don’t want to be here, I want to come home, can’t you come and get me?”;

   g)On 15 September 2016 the child told the father in the hearing of the mother that she did not want to spend the holidays with him. The mother recorded the conversation that followed between herself and the father and the child;[13]

   [13] Exhibit 10 recording and agreed transcript.

   h)On 18 September 2016 the child (while at the father’s home) called the mother and was crying and said – “I am scared of him, I don’t want to be here, can you come and save me, or can Nan or Pop come around and get me?” (on 19 September 2016 the mother arranged for police to undertake a welfare check on the child at the father’s place);

   i)Later that same day the mother and maternal grandmother went to the father’s home whereupon the child asked whether the mother had come to save her (while the child did not go with the mother at that time the father later i.e. the same day, requested that the mother collect the child from the Town C Police Station. When collected, the child is alleged to have said to the mother – “I am glad to be away from him, I never, ever want to see him again or speak to him again.”);

   j)On 28 September 2016 the child said to the mother – “Mr Witherspoon asked me to come to the toilet when he was in there once and asked me to wipe his bottom for him.” The child also said that when she was constipated the father “got some toilet paper and started picking at my bottom and said ‘I’m going to squeeze the poo out of you’”. (I note that during the s 93A interview on 28 November 2016 the child says that this latter incident occurred when the mother and father were still living together.);

   k)In November 2016 (despite the mother saying that she had maintained contemporaneous notes at this time, the evidence of when and what was said by the child and the circumstances in which it was said varies in the evidence e.g. dates vary from 16 to 17 to 18 to 19 to 20 November 2016) the mother says that the child started to cry and said to the mother – “I don’t want to tell you but Mr Witherspoon did something to me when I was up there, I was asleep and I felt something going poke, poke, poke” and she made actions with her hand pointing to her bottom, in particular, her anus;

   l)On 19 November 2016 the mother says that while her parents were over for dinner the child “blurted out” – “No one else pokes my bottom like Mr Witherspoon did to me.”[14]

   [14] Neither of the mother’s parents were witnesses in her case and I do not accept her explanation for their absence i.e. that her solicitor told her their evidence would look “biased”.

   m)Later that same evening the child was crying and said – “Mr Witherspoon had gone poke, poke, poke here”. She lay on the bed on her back and showed the mother where, i.e. her bottom;

   n)During cross-examination the mother said she believes that the father had a sexual interest in the child from the time she was an infant and she says that the following things informed her belief:[15]

   [15] Some of the evidence given by the mother was not otherwise included in evidence otherwise before the Court and accordingly not put to the father during cross-examination.

   i)When the child was a baby the father did not like to change her nappy if she had defecated and said that it made him feel funny;

   ii)He would say about or to the child “Awww your little fanny”;

   iii)He would say to the child “Come here and give me a kiss on the lips”;

   iv)He bought her lots of toys after separation;

   v)When the child spent time with him after separation she would come back without having had a shower;

   vi)When the child returned from spending time with the father sometimes there was faeces in her pants and she would think ‘why can’t he bathe her’ (which seems an odd response if the mother truly thought the father had a sexual interest in the child);

   vii)The child said she was sleeping in the father’s bed (I note that the child has spent most of her life sleeping in the mother’s bed);

   viii)Over the twelve months (or thereabouts) prior to September 2016 the child became more reluctant to spend time with the father;

   ix)The father made comments about his adult sister’s attire e.g. “I don’t know where to look at [her] when I talk to her because her tits were all out”;

   x)The father made comments about the mother’s 12 year old niece who was developing breasts and in a bikini e.g. “I don’t know where to look when Y is around”;

   xi)The child’s comments about the father asking her to wipe his bottom; squeezing the ‘poo’ out of the child’s bottom; and ‘poking’ the child.

1. I propose to consider in detail some particular evidence relevant to this enquiry under the following headings:

   a)The recorded telephone conversation on 15 September 2016;

   b)The s 93A police interviews with the child;

   c)The family reports;

   d)Hospital records;

   e)Notifications to the Department of Child Safety;

   f)Ms G– the child’s therapist;

   g)Support Agency J – counselling provided to the child on the recommendation of police;

   h)The Contact Centre where four failed attempts at supervised contact occurred; and

   i)Ms K – failed attempt at family therapy.

The recorded telephone conversation between the mother and the father in the presence of the child on 15 September 2016

1. As noted in paragraph 44(g) above the mother recorded part of a telephone conversation on 15 September 2016 and the recording and agreed transcript are exhibit 10 in the trial.

2. It was not uncommon for these parents to record each other and/or the child during telephone calls or at changeovers and the family report writer, Ms L, refers to some of the recordings in her report.

3. The recording on 15 September 2016 demonstrates an appalling lack of judgment by both parents. The child is exposed to a very unpleasant exchange between her parents and despite her repeated pleas for them to stop fighting, neither of them takes any step to protect her. The recording is eight minutes in duration but it is clearly not the full conversation. The child is not only exposed to the parent’s bickering but also to discussion about court proceedings.

4. It is apparent from the recording that the father is frustrated but that is no excuse for his conduct. He talks about the money that he has given to the mother in the property settlement and complains that he does not get to see the child. He accuses the mother of selling his car to her family and then calls them insulting names. He sounds very angry and regularly uses expletives. He directly involves the child in the dispute at times e.g. by announcing that the place for changeovers will have to change because he is sick of driving forty-five minutes. That statement elicits a response from the mother, and the child then engages directly in the argument with the father. The family report refers to further recordings in which the father is heard swearing when the child is present.

5. The mother’s behaviour is absolutely reprehensible. The child is in her care yet she continues the argument with the father. The mother makes no attempt to protect the child by taking the telephone off ‘speaker’ or removing herself from the vicinity of the child. To the contrary, she draws the child into the dispute by making comments to the child such as – “Listen to it. …He is still going on”. The mother scoffs and laughs at the father.

6. During the trial the mother denied that she had referred to the father as ‘it’ to a family therapist, Ms K. Given her reference to the father as ‘it’ during the recorded telephone conversation I do not believe the mother’s denial.

The s 93A police interview with the child on 28 November 2016

1. The child was interviewed by Senior Constable P for about forty-five minutes on 28 November 2016. It is abundantly clear that the child was primed by the mother to say that the father had poked her in the “front and back bottom” and that she had nightmares. From the moment the interview commences the child descends into a long stream of complaints about the father including things that allegedly happened when she was a baby and about which she could not possibly have a memory. It is also abundantly clear that the child sees herself ‘as one’ with the mother because she repeatedly uses the pronoun ‘we’ to describe intention e.g. “We blocked his phone number”; “We told him ‘drive the car’” etc.

2. The child repeatedly states that she felt something poke her “front bottom” and “back bottom” but that she did not see who it was. She thinks it must have been the father. She repeatedly states that she was asleep and when she woke up no one was there. She demonstrates to the police officer a light touch with her finger and agrees that it was a light ‘poke’ that she felt and assumes it was a finger. The ‘poke’ happened outside her clothing. The child says – “I felt something like poking at it.” The child says that there were toys on her bed both behind her and in front of her when she was lying on her side.

3. The child also says – “When my mum was living there with me when I was three when I was constipated he was pulling out my poo.”

4. When the child went back to her mother’s home she says that her bottom was sore and itchy and that her mother took her to the doctor.[16]

   [16] In the medical records in evidence there are consultations relating to thrush/vaginitis/UTI (urinary tract infection) on various dates throughout 2016/2017, the most proximate to this s 93A interview being 16/05/16 for thrush at a GP and a consultation on 30/11/2016 in which the Mother requests a letter from the doctor “for her solicitors” but the doctor does not examine Z on this date. The next reference is at Town B Hospital on 01/02/17 for a UTI and then a follow up the next day with the GP on 02/02/17. 

5. The child cannot remember what her nightmares are about but says – “I think it is about him.”

6. She describes the father as “an idiot” and that he engages in “bad behaviour”. (Both references seem more likely to be from adult influence). 

7. The police investigation concluded that it was “highly doubtful” any offence occurred.

8. The mother alleges that after the interview, Senior Constable P said to her – “Ms Kimberly there has been more going on up there than you realise, the alcohol use by Z’s father and the neglect is also a concern. My advise (sic) to you is to see a solicitor and get the Consent Order’s (sic) changed so that he has no contact with her.” The mother also contends that Senior Constable P recommended a particular solicitor. Senior Constable P emphatically denied that she said those things to the mother. She said it would be entirely inconsistent with her usual procedure. I accept her denials. There is nothing in the police records that corroborate what the mother contends and the outcome of the investigation certainly does not support the mother’s contention.

9. I accept Senior Constable P’s evidence that she explained to the mother that the child said she did not see who, if anyone, poked her and that it may well have been the toys that the child felt. (I note that when the child was interviewed for a second time by this police officer on 16 July 2017 the child commences by saying it was not the toys that she felt. This lends weight to the officer’s evidence about what she told the mother after the first s93A interview) I also accept Senior Constable P’s evidence that the mother did not receive this information well.

10. Despite an order requiring both parties to view all documents (including the s 93A recordings) prior to the trial, the mother did not do so but that did not dissuade her from alleging that Senior Constable P had acted unprofessionally and made the child feel worthless during the interview. The mother maintained that Senior Constable P had acted unprofessionally despite viewing the interview during the trial. I reject her allegation. The police officer remained entirely professional and appropriately empathetic during the interview with the child. The mother has apparently made a formal complaint against Senior Constable P.

The s 93A police interview with the child on 16 July 2017

1. The mother says that she contacted Senior Constable P again in July 2017 requesting that the child be further interviewed. According to police records, despite the police cautioning against a further interview, the mother was “adamant” that a further interview should be conducted with the child. I reject the mother’s evidence to the contrary.

2. When asked why she is there, the child immediately launches into correcting the impressions formed by the police officer during the previous interview e.g. the child said it was not the toys that poked her it was “him”. The child again lists numerous criticisms of the father e.g. that he fed her spaghetti when she was sick, that he talks over her etc. It is clear that the child has been exposed to the continuing court dispute because the child was able to recount to Senior Constable P various things that occurred at court including:

   I wasn’t actually at court. I was with my nan at home and she was telling the judge everything that happened and his solicitor, well Mr Witherspoon’s solicitor was literally, like, in shock and then when my mum told about the poking business he, like, laughed and then his solicitor went, like, ‘Shh be quiet’ and then she got up him.

3. Despite having had no contact from the father since 19 September 2016 the child says during the interview that she is scared that the father is going to come to her home and that she shakes and has a panic attack when she hears noises.

4. Subsequent to the interview, the mother was advised by police to refrain from discussing court matters with or in the presence of the child. During the trial the mother contends that her exposure to the child of a discussion about court matters was a ‘one off’. I do not believe her. It is more likely that the mother has no filter when discussing court matters in the hearing of the child as demonstrated in front of the family report writer during the family report interview on 11 March 2019. 

The s 93A police interview with the child on 22 March 2018

1. On 22 March 2018 the child was subjected to yet another police interview at the mother’s instigation. The child is again quite articulate and confident during this third interview. The interviewer is Senior Sergeant Q. The child, without hesitation, shares her list of complaints about the father including that he turns up at school when he is supposed to be at work (information that has clearly come from the mother); that he drinks beer; that he stares at her etc. The child is quite chatty and appears relaxed. She says she does not feel safe around the father (by the time of this interview the child had not spent time with the father for eighteen months) and that it is her choice to live with her mother. Towards the end of this forty-eight minute interview the child twice complains about being tired.

The family reports – 9 April 2018 and 11 March 2019

1. Ms L is a very experienced social worker having worked in child protection and family assessment since 1982. Ms L holds a Bachelor Degree and a Masters in Social Work. For the last ten years Ms L has been an in-house social worker with Legal Aid.

2. In her first interview with the child, the child had just turned 9 years old. Ms L initially saw the child in the presence of the ICL and noted that the child appeared “confident around adults” and “surprisingly well prepared”. After the ICL left, the interview continued. The child described the father’s house as “big” and that she “has her own bedroom there” and that he has two dogs. Ms L asked the child why she had not seen the father since September 2016 and she responded – “Because he has done some bad things to me”. These bad things were said to be:

   a)The father had asked her to wipe his bottom while he was in the toilet but she could not recall when this occurred;

   b)He had said to her “Your mother stinks” and slapped her on the leg. She described her father as laughing when this happened (the father gives an account of an occasion when he was playing a game with the child saying “ink pink you stink, ink pink daddy stinks” and it was in this context that he said “ink pink mummy stinks”. I accept his evidence that there was no malice in his comment and that it has been blown out of all proportion, no doubt by the child’s expectation that she must report everything to her mother);

   c)One night at the Sport’s Club her drink got mixed up with her father’s and she tasted rum in his drink when he was not supposed to drink alcohol (how it is that the child is able to discern the taste of rum is a mystery. I note the father denies that rum is a drink consumed by him. The incident nevertheless demonstrates the child’s acute awareness that the father was not supposed to be drinking alcohol and this information is likely to have been conveyed to her by the mother);

   d)One time (she could not recall when) she was constipated and her father was pulling “poo” out of her “butt” and “it really hurt”;

   e)He said that (Ms F) was sleeping in her bed but then said he was joking;

   f)Her bottom was sore when she was at her father’s and she told the neighbours. She did not say why her bottom was sore when asked by Ms L. (The medical evidence reveals that the child has suffered a number of infections or irritations in her genital area e.g. thrush and vulvovaginitis which are said in the medical records to be very common childhood ailments. None of these conditions resulted in a mandatory report of suspected child abuse. A letter from an obstetrician & gynaecologist dated 1 December 2017 opined that the itch/pain was generally worse after the child had been horse riding.);

   g)She wanted to sleep in his bed and he said “Don’t tell your mum”;

   h)He always drinks beer when she was there “in the morning and in the night”;

   i)“I just have bad memories of what he’s been doing to me. He was taking days off (work) to see me at Chapel, I found him staring at me.”

3. The child said there were no good things about her father (I note that in telephone conversations between the child and the father, recorded by the father on 17 September 2014, the child sounds to have a positive relationship with her father). The child told Ms L that she did not like her father drinking and swearing and that sometimes he was angry although he had never hit her. When asked if the father had hurt her she said – “I was in bed once and felt this thing up my bottom but I don’t know if I was dreaming. I felt something in my bottom, my back bottom; I do get skin rashes but nothing recent. Dad was in bed with me. I slept with dad twice in his bed.” The child also said she sleeps with her mother.

4. The child said that she was “scared he might take me away”.  She said it was “sort of” boring at his place and when he got a girlfriend (Ms F), “I was sort of upset … he seemed to care more about (Ms F) than me”. She said she often felt like crying when she spoke to her father on the telephone.

5. The child was acutely conscious that her mother and maternal grandparents did not like the father and that he did not like them.

6. The child agreed to see the father but was noted to be guarded in her interactions with him. Ms L observed that the father was gentle and kind in his approach to the child. The child remained with the father (in Ms L’s presence) for about thirty minutes and did not ask to leave (despite Ms L saying before the commencement of the meeting that she could end the session at any time).

7. After spending that time with the father the child asked her mother if she should forgive her father and her mother responded – “It’s best he goes away and you see him when you are older.” The mother also suggested to the child that she leave behind the presents her father had given her. 

8. In her first report Ms L’s opined that the biggest risk to the child having a meaningful relationship with her father was “the complete breakdown of the parent’s relationship”. In her opinion the child was experiencing “feelings of anxiety and emotional distress about the ongoing conflict between her parents. It appears that these feelings are manifesting in Z’s behaviours, for example, anxiety, hyper vigilance, clinginess”. Ms L opined that the child “presents as a vulnerable girl who cares for each of her parents” but is “very much aligned with her mother and any perceived loss of that relationship creates considerable anxiety for her”.

9. On 11 March 2019, Ms L did not have the opportunity to meet with the child alone or to observe her with the father. Ms L and the ICL entered the waiting room at Legal Aid where the mother, the maternal grandmother, and the child were waiting. Ms L observed the mother and maternal grandmother to be agitated and the child was pale and anxious. The child almost immediately announced – “No I don’t want to be here, I don’t want to speak with you. If you make me see him I will kill myself”. When the child said this, Ms L observed her to be highly agitated and angry. The mother then started crying and the child was crying and looking at her mother. The mother, maternal grandmother, and the child all stated that the ICL, police and Ms L do not believe the child’s allegations regarding the father, in particular the sexual abuse allegations. The child at this point appeared very upset and distressed. The maternal grandmother said they could prove it all and they were not going to stay.

10. Ms L confirms that the mother and maternal grandmother made no attempt to shield the child from their angry and accusatory comments, some of which were directed at the ICL and Ms L.  Ms L describes the mother, maternal grandmother, and the child as a ‘united group’.

11. During the mother’s interview with Ms L (she ultimately agreed to be interviewed) she spent much of the time listing her disappointments and criticisms of the father during their relationship e.g. that he drank too much; that he was not attentive or caring as a husband; that he showed little care or concern for the child etc. The mother claimed that she had to change the child’s school because the child was “terrified” that the father would turn up. It seems more likely that the mother changed the child’s school because of the mother’s own personal differences with the school. The mother describes herself as a “threat” to the school.

12. During the father’s interview with Ms L he disclosed what Ms L describes as “dysfunctional sexual relationships in the father’s family [of origin] and that the father’s own mother and the father’s sister do not appear to have acted protectively of their own children”.

Hospital records

1. Records from the Town C Hospital in February 2016 note that the child was “playful and happy, good interaction with dad”.

2. Despite the child not spending any time with the father after 19 September 2016 the mother caused the child to be subjected to numerous invasive genital examinations and tests related to her allegations of sexual abuse against the father.

3. The mother was counselled by hospital staff on 1 February 2017 regarding common infections in girls related to toileting habits and she was advised about strategies to minimise risk of infection e.g. hand washing and sequence with wiping after toileting. It seems the mother preferred to regard any common infection or irritation as evidence of sexual abuse by the father. No infections indicating sexual abuse were detected and there is no indication of any mandatory notification being made to the Department of Child Safety by the hospitals or general medical practitioners in private practice. In addition to the common conditions suffered by little girls the medical evidence raises other causes or exacerbations for her presentations namely, horse riding causing irritation and the early onset of puberty. The child had been prescribed a topical oestrogen cream.

4. In the Town B Hospital records dated 26 July 2017, it is noted that the mother informed medical staff that the mother had found out about the child’s abuse by the father in “October last year”. This is before the alleged ‘poking’ statement by the child which the mother says did not occur until (variously) 16, 17, 18, 19 or 20 November 2016.

5. The records dated 27 July 2017 from R Hospital record information from the mother including the following:

   [Z] has experienced nightmares since incident last year (occurred July) …

6. Nowhere in the mother’s evidence does she allege any incident occurred in July 2016.

Notifications to the Department of Child Safety, Youth and Women

1. There have been three notifications to the Department but none have reached the threshold for investigation. The Departmental records in November 2017 noted:

   Current information indicates that there may be a risk of emotional harm to [Z] as a result of being exposed to the parental conflict between the parents … there have been no concerns reported by the school or other sources to indicate any concerns for [Z] (sic) wellbeing.

Ms G – psychologist

1. In October 2016 the mother obtained a mental health care plan for the child to see Ms G due to her anxiety. Ms G saw the child on fifteen occasions from 20 October 2016 to 11 August 2017 and on a further 10 occasions from 20 June 2018 until 20 February 2019. Her main source of anxiety related to her father and despite significant support from Ms G the child did not spend time with her father at the contact centre in 2018.

2. In Ms G’s opinion:

   Regardless of who was putting what ideas into [Z’s] head, [Z] had a lot of her own strong feelings regarding her father and she did not want anything to do with him

   And

   Even to have contact with her father is going to be very anxiety provoking exacerbated by her worries of being away from her mum, and her fear of anything happening to her mother.

3. Ms G was rather pessimistic about the prospect of the child being able to have a relationship with her father given that the mother “is very unforgiving towards the father”. In her view the child would require a lot of support if she were to move to live with her father and “would most likely be traumatised to begin with away from her mum” and she also questioned whether the father had the capacity to manage a traumatised child.

4. This latter comment is based upon the child’s numerous complaints about the father e.g. refusing to converse with her in an age appropriate way; his aggression on the telephone; his drinking and swearing; not paying attention to her; taking her to the Sports Club which she found boring; hurting her when brushing her hair; going to the neighbours without telling her; talking over the top of her etc.

5. At the very end of the session on 25 November 2016 the child said to Ms G:

   I remember dad was poking at my bottom and he also poked my front bottom.

6. The child said she could not remember when this happened or where she was when it happened.

7. In Ms G’s notes for 30 November 2016 she records that the mother told her that the child was having “breakdowns” e.g. “yelling out in sleep ‘stop it, stop it’”. The mother does not depose in her evidence to these matters.[17] If the child was in fact yelling out in her sleep to ‘stop it’ she may of course have been referring to any number of things e.g. telling her parents to stop fighting as she was heard to do in the 15 September 2016 recording.

   [17] A reference to this effect is contained in the unsworn timeline prepared by the mother – exhibit 10.

8. Ms G’s notes for 2 December 2016 indicate that the child may have been engaging in some sexual play with a little boy who asked her if she had a sore bottom and told her he had a sore ‘doodle’. The child giggled as she told Ms G and also told Ms G that she loved the boy and knew that he loved her too.

9. An email from the child’s grade 3 teacher dated 7 February 2017 is included with Ms G’s records. It is written to the mother and refers to a statement made by the child to the effect that she had not slept well because she was worrying about the father. It then says:

   She then told me that she was struggling to concentrate because she was still thinking about it and “how he used to hurt me”.

10. On 14 July 2017 Ms G’s notes record the following:

    Ms [Kimberly\ (the mother) said for [Z] to tell me more about the night of panic and what may have triggered it. [Z] said that she remembers her dad reading her stories at bedtime, in bed, and staring at her, even though she told him to stop staring. His face was close, over top of her.

11. In Ms G’s records for 20 June 2018 I note that the child informed her that she has a cat, a dog and a horse. She named two girlfriends at school. She said that her mother told her that the father had telephoned the school asking when chapel was held. One can only wonder about the mother’s motivation of informing the child of this when according to the mother the child was anxious about the prospect of the father turning up at school. I conclude that it suited the mother’s purpose to maintain the child’s anxiety. The mother encouraged it because it would further her prospects of removing the father from her life.

12. During a session with the child on 1 August 2018 the child said she did not like her father and did not want to live with him. Ms G spoke with the mother and the child after the session and encouraged the child to attend the next supervised visit. By the end of the conversation, the child said she would like to go into the contact centre for the next visit. That did not eventuate.

13. On 15 August 2018 Ms G’s records reveal that the child told her that one thing has made her happy, namely:

    No longer needs to go to [the contact centre] – hooray

    The order gives you three tries

14. That latter comment is likely to have come from the mother and is another example of her unrelenting attempts to sabotage the child’s relationship with the father.

15. At the child’s session on 10 October 2018 she spoke positively about her new school and named two friends.

Support Agency J

1. The child was referred to Support Agency J by police in order to learn protective behaviours. The child attended six sessions.

2. The mother informed the counsellor on 6 December 2016 that on or around 16 November 2016[18] the child made a disclosure of sexual abuse. The notes record being informed by the mother as follows:

   [Z] was reported to be upset and asked to tell Ms [Kimberly] [the mother] in her words; “something to do with stupid [Mr Witherspoon]” … Ms [Kimberly] stated that [Z] said, words to the effect; “when I was asleep, I felt something go poke, poke, poke, at my bottom”. When asked by Ms [Kimberly] to show her where, [Z] reportedly showed Ms [Kimberly] her anus. Ms [Kimberly] stated that she responded to disclosures calmly as she was “not shocked”. She invited her parents to stay over the weekend in order to support her, and while the family were seated in the lounge, [Z] reportedly said, in her words; “no-one else pokes at my bottom like Mr [Witherspoon] did”. Further, later the same evening, [Z] reportedly became emotionally dysregulated, described as being upset and hyperventilating. [Z] then reportedly told Ms [Kimberly] in her words that; “he (Mr [Witherspoon]) also touched me here, poke, poke” and this was demonstrated with [Z] placing her hand down the front of her pants and touching her vagina …

   [18] If exhibit 10 was prepared contemporaneously with events, as the mother says it was, it seems odd that the date of alleged ‘disclosures’ is uncertain and that the date is not consistent with the date in exhibit 11.

3. Nowhere in the mother’s evidence is there any reference to the child putting her hand down the front of her pants as described to the counsellor at Support Agency J.

4. This absence is all the more remarkable because the mother claims to have made a contemporaneous note of the significant events involving the child’s statements to her in November 2016.[19]

   [19] Exhibit 10.

5. Exhibit 11 comprises five typed pages created by the mother on her computer. The first page has a handwritten heading “Sept 2016” and commences with the words – “About 6 to 9 months ago …” The second page commences with the heading “What [Z] has said to me in the last 2 weeks”. The mother says that the first page was prepared by her many months later but she insists that the entries under the dates commencing on the second page were made contemporaneously with the events described therein. She explains the heading on the second page as being something she added after.

6. There are a number of inconsistencies between the mother’s alleged contemporaneous notes and the report provided to Support Agency J. Some of those inconsistencies include:

   a)There is no note made for 16 November 2016. Exhibit 11 (the alleged contemporaneous notes) commences with the date 17 November 2016;

   b)As already noted, nowhere in the mother’s alleged contemporaneous notes (or indeed anywhere else) is there any description of an incident involving the child placing her hand down the front of her pants and touching her vagina;

   c)There is no mention in the mother’s notes of the child saying “something to do with stupid Mr Witherspoon”;

   d)The mother’s notes state the child said “no one else pokes my bottom like Mr Witherspoon did to me” while having dinner not while seated in the lounge.

7. On 19 June 2017 the Support Agency J records reveal the mother informing the counsellor that the child had provided her with additional information as follows:

   [Z] stated that she recalled waking up and her father on top of her “staring at her”.

8. There is nothing in the mother’s evidence or in the contemporaneous notes to suggest that the child made such a complaint to her i.e. that the father was ‘on top of her’.

9. On 11 July 2017 the records note that the mother informed the counsellor that the child had “recently also made further disclosures of the abuse” to the maternal grandmother. The maternal grandmother was not a witness in the mother’s case.

10. The Support Agency J records note the child’s negative view of the father, in particular, the child stating that she hated her surname, ‘Witherspoon’.

11. On 30 October 2017 the child had an individual session with a counsellor due to the mother’s concerns about the father’s recent attendance at the child’s school. The child is said to have talked about recent thoughts of suicide by jumping off a verandah. The child said that the father had poked her bottom through her pyjamas.

12. Support Agency J records confirm the child’s view that she is caught in the middle of the constant conflict between her parents and that the parents even exposed the child to their argument over the child playing sport on weekends.

N Family Contact Service

1. Pursuant to a consent order made on 29 May 2018, the child was to spend supervised time with the father at this contact centre.

2. The Centre’s notes reveal the following (as per original):

   16.6 [2018] [Z] presented at the gate not willing to attend. Asked mother to positively prepare her, mother stated [Z] doesn’t want to come. [Z] agreed to come again next fortnight. Mother stood with arms folded.

   30.6 [] refused to come in. she stated “because he poked me in bottom and locked me in my room when I was two”.

   13.7 [Z] stated at child orientation she might come inside to see Dad. When she was returned Mum, she stated she wouldn’t be coming in

   14.7 [Z] said she didn’t want to see dad because of what he’s done

   28.7 [Z] stated she didn’t want to come in, I asked why she stated, “I just don’t like him”, told [Z], grandmother was here. She still didn’t want to come in.

Ms K

1. On 2 October 2018 the parents consented to an order that they attend family therapy with the child in an attempt to inter alia rebuild the relationship between the child and her father. Ms K is a social worker and she was appointed to undertake the therapy but elected not to proceed due to the mother’s strong opposition and objection to participating in the therapy. The mother was dismissive of the whole process describing it as a waste of time. Ms K considered that it was futile subjecting the child to another professional in those circumstances. She referred to the possible risk of suicidality “alleged or actual” and opined that the therapy would “hold little benefit given Ms Kimberly’s overt and immovable position in regards to Z and her father’s future relationship”.

Conclusion on sexual abuse allegations

1. In considering the allegations made by the mother I have been very careful not to dismiss them too readily despite her obvious hatred of the father. It is necessary in all cases, but particularly in a case such as this, to assess the evidence very carefully and even more so when the potential of getting it wrong may have such serious consequences e.g. exposing a child to an abuser or depriving a child of a relationship with a parent.

2. The father denies the allegations of sexual abuse but a bare denial is far from conclusive.

3. I readily accept that allegations of this nature may not arise out of a single event or observation or statement by a child but rather after reflection and consideration of a course of conduct or a series of observations coupled with statements made by a child. I also readily accept that if the mother is trying to piece together different pieces of evidence (that have only become significant after the event) her memory may not be entirely accurate.  

4. In this case, the mother points to her observations of the father and comments by him over a period of time, which, when coupled with the alleged statements and behaviours by the child, form the basis for the mother’s allegations.

5. I want to stress that nothing the child is alleged to have said or done unequivocally implicates the father in sexual abusing her.

6. In my view it is quite wrong of the mother to convey to the child that she (the child) is not being believed.

7. It is the mother who has interpreted what the child has said and done as indicating sexual abuse. Importantly, in this context it is the mother who has alleged that the father poked the child in the anus and the vagina. The child has at no time made that statement even on the mother’s own case. The mother readily conceded that the words used by her (the mother) i.e. anus and vagina, are not the child’s words. In fact the child was very clear in her police interview that:

   a)She did not see her father poke her in the ‘front’ or ‘back’ bottom (indeed even the mother’s evidence is that the child said she was asleep);

   b)She may have dreamt it;

   c)The feeling of poking was on the outside of her clothing;

   d)She had toys at the front and back of her in her bed.

8. The father concedes that he sat on the child’s bed, propped up on pillows, and read her stories on a number of occasions. Ms F confirms that on one occasion in or about August 2016 she observed the father to be lying on the child’s bed when the child was sick and that she had toys both in front of her and behind her including a toy giraffe. The child’s ‘feeling’ of something poking her in the front and back bottom may well be explained by the toys pressing against her during her sleep. This is the conclusion reached by police.

9. I do not regard the mother’s evidence about what the child allegedly said to her about the allegations i.e. ‘I don’t want to tell you but Mr Witherspoon did something to me when I was up there’ – as reliable because:

   a)The quote is inconsistent with the child’s other alleged statements to the mother i.e. that she was asleep, and with her statements to police i.e. she did not see the father ‘poke’ her and when she woke up there was no one there;

   b)The mother did not include this alleged statement in her trial affidavit. Indeed she says very little in her affidavit about the crucial allegations;

   c)There are many inconsistencies about what statements were allegedly made by the child and when and about the circumstances in which she is said to have made the statements;

   d)As discussed below I do not accept that the mother’s notes of what allegedly occurred in November 2016 were made contemporaneously;

   e)Even if the child made the statement, I am not satisfied that the child made a spontaneous statement to the mother and I find it more likely that the mother asked the child questions and, given the mother’s dislike of the father, it is more likely than not that questions would have been leading i.e. suggesting the answer.

10. To the extent that the mother relies upon other statements attributed to the child as indicating sexual abuse I note:

    a)According to the child, the alleged request to wipe the father’s bottom was said through a closed door;

    b)According to the child, the alleged picking of ‘poo’ from her bottom occurred at a time when the mother and father were both in the home.

11. It must also be observed that, even if the last two incidents occurred, they do not of themselves indicate that the child has been sexually abused and there are explanations, other than sexual abuse, for the statements made by the child. For example, it is common ground that the father historically avoided attending to the child after she had defecated and it is in that context that the father says that he may have said to the child when she asked him to wipe her bottom, something like – “how would you feel if I asked you to wipe my bottom”. This may well explain the child’s comment that the father asked her to wipe his bottom. In relation to the second comment, the father does not recall the child having been constipated but concedes that he did wipe her bottom after she had defecated on two or three occasions. This may well explain the child’s statement about the father picking ‘poo’ or squeezing ‘poo’ from her bottom. I note that the Support Agency J notes record the mother reporting that the father had made “pinching motions on Z’s anus when she was on the toilet” which is a description different to the allegation that he actually picked or squeezed the child’s anus. Those notes also reveal that the mother thought the child’s bottom was sore at the time because of worms. The mother makes no mention of this in her own evidence.

12. As to the allegations of sexual abuse more generally:

    a)Senior Constable P observed the child during two formal interviews and at the police station before and after the interviews. In her opinion the child was calm and matter of fact during the interviews. Her observations accord with my own (having observed the video recording). Senior Constable P noted a marked difference when the child was in the company of her mother where she became quite distressed. She opined that the child appeared to be under a huge amount of pressure to please her mother and was not meeting her mother’s expectations. I accept Senior Constable P’s observations and her opinions are entirely plausible particularly as I have now had the opportunity to consider all of the evidence;

    b)According to police records, the child was acutely aware that she was caught in the middle of the dispute between her parents and that she had to report the father poking her because she wanted to stop him from contacting her and her mother;

    c)The child’s untenable position i.e. being caught in the middle of this dispute, has also been made clear to the family report writer, the child’s psychologist and the counsellor at Support Agency J;

    d)I do not accept that the notes made by the mother (exhibit 11) were contemporaneous and her memory of what was said is likely to be unreliable. The mother’s explanation that she had inserted the heading ‘what Z has said to me in the last two weeks’ was unconvincing and I find it more likely that the notes were made after the event and not contemporaneously. Accordingly, quotes attributed to the child in that document and elsewhere are unlikely to be accurate representations of what was said and even if they are, they are unlikely to have been said without prompting by the mother;

    e)The mother was, by at least September 2016, wanting to limit if not exclude the father from the child’s life despite there being no ‘disclosure’ (as the mother would have it) of sexual abuse;

    f)The mother’s disdain of the father predated the alleged statements made by the child. Indeed the mother alleges that she held an opinion that the father was a paedophile prior to any statements made by the child;

    g)The mother’s basis for believing the father is a paedophile are unpersuasive e.g. comments made about his adult sister. The mother’s allegations of grooming behaviour by the father e.g. buying toys for the child, asking the child to kiss him on the lips etc. are not of themselves indicative of sexual abuse. It is entirely unremarkable for parents to buy their children toys and while it may not be usual or advisable for a parent to kiss a child on the lips (this was not put to the father in cross-examination) it could not be said to be so abhorrent, of itself, to indicate a sexual interest in a child.

    h)There are explanations, other than sexual abuse, for the child’s behaviour as described by the mother including:

    i)The child had been exposed to increasing conflict between the mother and the father. The recording on 15 September 2016 is but one example. Ms F also gave an account of another occasion when the mother and father were arguing at a changeover with the mother aggressively pursuing the father until he escaped by going to the toilet. On this occasion Ms F recounts her concern for the child whom she could not see and worried that she was locked in the mother’s car. She pleaded with the mother to tell her where the child was and ultimately the child (after about twenty minutes in a hot car) was released by the mother. I reject the mother’s denials of this incident.

    ii)I have no doubt that the child’s exposure to such conflict would have caused her to express reluctance to see the father;

    iii)The child also complained to Ms L that she felt ignored by the father at times particularly when Ms F came on the scene;

    iv)The child was also exposed to the mother’s denigration of the father and provided with details about the court process;

    v)The child was exposed to a series of upsetting events on 19 September 2016 including the police doing a welfare check and being handed back to the mother at the police station.

    i)It seems remarkable that the child’s anxiety has increased exponentially despite her not having spent time with the father since September 2016. Even on the few occasions that he attended the school chapel, she did not have contact with him. In my view the mother’s reactions and encouragement of the child’s anxiety were over the top e.g. she and the child crawled out of the chapel (or at least part of the way) when the father was in the crowd. There was no imminent risk to the mother or the child. The mother has exacerbated if not caused the child’s extreme reaction;

    j)I find it difficult to reconcile the mother’s stated belief that prior to separation she had formed the view that the father was a paedophile and her subsequent actions e.g. repeatedly consenting to orders that the child spend time with the father and complaining about the father not bathing the child after separation when one would have thought that the mother would have been relieved. It is more likely that the allegations have their origins in the mother’s hatred of the father (perhaps because of the way he allegedly treated her during the marriage) and a desire to get him out of her life.   

1. If the child were to live with the father there is a greater prospect of the child being able to have a relationship with both parents although I remain sceptical about the father’s ability to adequately explain to the child a change in the child’s living circumstances without being critical of the mother.

Should an order for sole parental responsibility be made?

1. The parents have no ability to make joint decisions. It is not in the best interests of the child for the parents to have equal shared parental responsibility for major long term issues.

Conclusion as to what parenting order is proper

1. Both parents have behaved abominably as parents for many years and have failed miserably in protecting their child from exposure to their conflict. I have no doubt that the child will suffer the long term effects of this exposure and may continue to believe that her father has abused her: not because he has done so, but because the mother has made it impossible for the child to have a relationship with both parents.

2. Both parents, but the mother in particular, should hang their heads in shame.

3. Despite my findings about the mother I do not propose to change the child’s living arrangements because:

   a)The child is now 10 years old and has always lived with her mother;

   b)The child has not spent time with her father since September 2016;

   c)The child has repeatedly said she does not want to see her father;

   d)The child will be traumatised by removal from her mother;

   e)The father does not have the capacity to manage the trauma the child will inevitably experience by being removed from her mother and kept from her mother for six months (or even for a shorter period);

   f)The child’s entire world would be removed from her if she lived with the father e.g. she would have to change schools again and she would have to leave her friends and maternal grandparents and she would have to leave her horses and pets;

   g)While I have no doubt that the father is well meaning he was unable to console the child when she was upset on the last occasion she spent time with him in September 2016 and presented as a man of limited insight during his oral evidence;

   h)The father would have only limited assistance from Ms F given her full time employment and her commitments to her own family;

   i)Ms L considers there to be a significant risk of the child running away from the father or self-harming if she were removed from her mother;

   j)While ongoing therapeutic assistance for the child and the father would no doubt provide some assistance I am not satisfied that such therapy would be enough to overcome the significant detriments to the child and the significant risk of self-harm;

   k)While there is likely to be long-term psychological harm to the child remaining with the mother if the mother does not change her ways, even this is not a sufficient reason, of itself, to remove the child given the other considerations.

4. It is with some considerable regret that I come to the conclusion that the child should remain with the mother. Unless the mother changes (and there seems little reason to be optimistic in that regard), the child will be deprived of her right to have a relationship with both of her parents.  I can only urge the mother to consider carefully my reasons for judgment and act in the best interests of her child by engaging in the family therapy that was proposed last year. It is only with the mother’s acceptance and encouragement that her child has any chance of avoiding the very real prospect of long term psychological or emotional harm.

5. I consider it prudent to have a senior family consultant explain my order to the child and in particular to stress that she bears no responsibility for my decision and to inform her that the mother has assured the Court that she would facilitate the child spending time with the father if the child requested that.   

I certify that the preceding one-hundred and eighty-one (181) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 3 May 2019.

Associate: 

Date:  3.05.2019