Woodrow and Baker

FAMILY COURT OF AUSTRALIA

WOODROW & BAKER

[2009] FamCA 658

FAMILY LAW – CHILDREN – Interim orders – With whom a child lives – Best interests of child – Allegations of sexual abuse of one child by the mother’s child of a previous relationship – Whether there is an unacceptable risk that the child is in danger of sexual abuse by the mother’s child of a previous relationship

Family Law Act 1975 (Cth)

APPLICANT:

Mr Woodrow

RESPONDENT:

Ms Baker

INTERVENOR:

Director-General, Department of Community Services

INDEPENDENT CHILDREN’S LAWYER:

Ms A Boldiston

FILE NUMBER:

PAC

2007

DATE DELIVERED:

28 July 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Watts J

HEARING DATE:

10 - 14 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schroder

SOLICITOR FOR THE APPLICANT:

Joe Harman

COUNSEL FOR THE RESPONDENT:

Mr Cook

SOLICITOR FOR THE RESPONDENT:

Adams & Partners

COUNSEL FOR THE INTERVENOR:

Mr Allen

SOLICITOR FOR THE INTERVENOR:

Crown Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boyle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission NSW

Orders

Orders made 14.11.2008

The document entitled “Minute of Order” be marked Exhibit “XX”. Pending further order, orders are made in the terms of paragraphs 1 to 14 of that document. I note the matters contained in paragraphs A and B of that document.
Pending further order, except for any appeal against these orders, a Judge be appointed to manage any further application filed in relation to the children and that until further order that Judge be Justice Watts, if he is reasonably available.
Leave be granted to the Mother, Father, Independent Children's Lawyer and Intervenor liberty to restore the matter on 7 days notice to my Associate.
This matter be adjourned to 9.30am on 12 August 2009 in the Sydney Registry.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Exhibit XX

That the mother have sole parental responsibility of the children [D] born […] January 2002 and [N] born […] January 2007.
That the children live with the mother.
That pending further order, the father spend supervised time with the children as follows:
a)For up to 4 hours per week through Relationships Australia, on either Saturday or Sunday as nominated by the Service alternating between the [F] and [Y] Contact Centres as may be available, and the parties shall complete all intake procedures as may be required by the Service within 7 days;
b)For a period 3 months for 2 hours each week by such person as nominated by the Director-General of the Department of Community Services, or her delegate, in the [S] area, at such specific times and places as agreed, or nominated by the Director-General of the Department of Community Services.
c)That the mother deliver the children to and collect the children from the Contact Centre for the purposes of time in order 3 (a), and from and to the [S] District Centre for the purposes of time in order 3 (b),
That the parties do all acts and things to enable [D] to be enrolled in [M]Public School.
That the parties each accept the supervision of the Director of Department of the Department of Community Services.
That the mother shall consult with the Department of Community Services after [D] resumes living with her about [D’s] progress and the needs, if any, for counselling to deal with the issues of his parent’s separation, the separation from his mother and siblings and separation from his father.
That each party be restrained from making critical or derogatory remarks in relation to the other parent, or the other parent’s family, in the presence or hearing of the child, and that each party do all things necessary to ensure that no third party makes critical comments about the other party, or the other party’s family, in the presence or hearing of the child.
That the mother do all acts and things and give all authorities necessary to ensure that any school or pre-school the children may attend from time to time shall forward directly to the father copies of the child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities, and notice of school events to which parents are invited, including parent teacher interviews.
That the parties advise the other forthwith of any medical emergency for either of the children.
That the mother keep the father advised of the name of the children’s treating doctors, and authorise those doctors to discuss the children’s health and progress with the father.
That the parties each keep the other advised of their landline and mobile telephone numbers, and address.
That the mother is granted leave to provide a copy of the judgement and orders to any counsellor engaged to assist [D].
That the father seek assistance from a psychiatrist for his current mental health issues and his childhood abuse.
That the father advise the Independent Children’s Lawyer and DoCS within 28 days of the name of his treating psychiatrist and the Independent Children’s Lawyer be granted leave to provide that psychiatrist with a copy of the judgement and the two reports of Dr [A]

A.It is noted that the mother does not intend to leave [D] alone in the presence of his brother [P] without herself or another adult generally present, nor to permit [P] to remain overnight in her home with [D] present, to alleviate the risk for both children of being subjected to further allegations of abuse.
B.It is noted that the mother will ensure that [N] is reviewed by a paediatrician within 6 months of the date of these orders and that she shall ensure that he attends any further appointments or assessments recommended in that paediatric review.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 33 of 2007

MR WOODROW

Applicant

And

MS BAKER

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 14 November 2008 this matter was substantially resolved by consent after five days of hearing. The matter was adjourned for further mention before me on 12 August 2009.
This case is about where D who is aged 7 (born in January 2002) and N who is aged 2 years and 6 months (born in January 2007) will live in the future. When this hearing commenced before me on 10 November 2008, the children lived with their father at C. The mother lived at M.
The mother had living with her at that time children of her former marriage with Mr Baker, namely H who is aged 14 (born in September 1994) and E who is aged 12 (born in August 1996). P, who is aged 17 years and 3 months (born in March 1992) currently lives with his father, Mr Baker.
During times the parties cohabited, P, H and E were part of the household. When the parties got together, P was 5, H was 3 and E was 1. The father played an important part in the lives of those three boys.
D has lived with his father from April 2007. N commenced living with his father from July 2007. FM Howard in substance ordered shared care of N on 17 July 2007.
Since Collier J’s order on 16 July 2008, the children’s time with their mother has been supervised, initially for one hour a week and then subsequently for two hours from 13 August 2008.
I heard the matter for five days. The evidence was completed. The mother, the father, the Independent Children's Lawyer and the Department of Community Services (the intervenor, “DoCS”) all made final submissions.
The central issue in the case was whether or not there was an unacceptable risk that D had been sexually abused by his step brother, P.
In final submissions, the Independent Children's Lawyer said that a finding should be made that there was no unacceptable risk that P had sexually abused D. Counsel for the mother made the same submission.
Although at the commencement of the five days of hearing counsel for DoCS said “subject to … testing, the Director’s prima facie position is that the children are at risk of sexual abuse and the mother is not protective,” in final submissions he did not wish to express a view one way or the other and did not seek an order for the children to live with either parent and intended to make no submissions in relation to that aspect of the matter. When pressed by me, counsel for the intervenor said that the Director’s position was that there was no unacceptable risk to either of the children, given the undertakings the mother had given for P not to be left alone with the children without an adult being present and for P not to stay in the same house overnight with D and N. I was unclear as to what the Director’s final submission was in relation to unacceptable risk absent that undertaking, but it appeared that counsel for the intervenor was not asserting that there was one.
Counsel for the father did not attempt to dispute the submission by the Independent Children's Lawyer that there was no unacceptable risk that P had or would sexually abuse D or N.
Because there may be some possibility that the father might in the future report statements D might make, I will give below detailed reasons as to my views in relation to the sexual abuse allegations.
At the end of the five days of hearing, however, there were a number of things that happened:-
13.1.The father consented to an order in accordance with Dr A’s recommendation that he should seek the assistance of a treating psychiatrist.
13.2.It was agreed or conceded that the children would be moved to live with their mother. Given the unusual circumstances in which these interim orders were made, it is appropriate that I set out below my findings on matters referred to in s 60 CC(2) and (3) of the Family Law Act 1975 (“the Act”).
13.3.The mother gave an undertaking that P would not be left alone with the boys without an adult present, nor spend the night in the same house as the boys. The primary purpose for giving this undertaking was to alleviate the risk for both children of being subjected to further allegations of abuse.
At the end of final submissions, there were a number of matters on which some of the parties did not agree, which were:-
14.1.Whether or not final orders should be made or whether or not some or all of the orders should be made pending further order.
14.2.Whether or not an order for joint or sole parental responsibility should be made.
14.3.Whether or not there should be a delay of four weeks for any order that the children live with their mother to come into effect. The father submitted that this delay would enable D to finish his school year at his current school.
14.4.Whether or not the director of the Department of Community Services could require the mother to ensure that D had further counselling.
14.5.Whether the father could avail himself of the opportunity of having time with the boys at a contact centre on the central coast.
On the final afternoon of the hearing I indicated my decision in relation to those various matters, and the Independent Children's Lawyer prepared a minute (Exhibit XX) in accordance with the indications I gave as to the orders I intended to make.
The reasons for me making the orders in relation to the outstanding matters include findings that I make later in these reasons for judgment in relation to the matters I must consider when determining what is in the best interests of the children. It is convenient however at this point to set out a summary of the reasons for making decisions about those matters in respect of which the parties could not reach interim agreement.

Whether the orders should be made on an interim or final basis

Counsel for the mother submitted that orders should be made on a final basis, and in the event that the father sought psychiatric treatment and put himself in a position where he could present to the court material that would indicate there had been a significant change, then he could commence a new case for a new set of final parenting orders to vary final parenting orders that I would now make. The father, the Independent Children's Lawyer and the Director all asked me not to make final orders.
Dr A had given a firm recommendation that there should be an ability to review what should happen to the boys in the future, once they had settled with their mother and once the father had obtained appropriate psychiatric treatment. Dr A recommended that in the short term the father have supervised time with the boys. Ideally that should be on two occasions per week for up to four hours. The difficulties caused by the distance between the parties were recognised. It was said to be an hour and twenty minute trip, although in final submissions counsel for the mother said that you might have to say that was two hours on occasion, allowing for problems on the highway.
Dr A was strongly of the view that if the boys were going well in their mother’s care, then whether or not the boys spent time with their father on an unsupervised basis could be subsequently reviewed. The results of that review would in part be dependent upon the nature of the father’s beliefs at that time, whether or not there had been any shift in those beliefs and whether the court was confident that the father could refrain from discussing the abuse allegations with the boys. Dr A, without making any concluded diagnosis, had formed the view that the father may be paranoid. That view was based on a number of things, including the father’s presentation to Dr A and Dr A’s consideration of documentation including the notes from the father’s admission in the middle of 2008 to the psychiatric ward of PN Hospital and notes from a psychiatrist whom the father saw in 2006 (Dr G). Dr A also drew from some of the evidence the father gave in respect of things the father reported were happening to him at his home, including evidence from the father that he stayed up late at night, apprehensive that somebody would come to his house.
The father has agreed to an order to seek assistance from a psychiatrist for his current mental health issues and his childhood abuse. The father disclosed in 2008 (after the interviews with Dr A for Dr A’s second report) that he had been sexually abused as a child. Dr A said that that was important information that was not given to him by the father.
The children are to go back to live with their mother. The father is to seek psychiatric treatment. The effect of both those things on the future outcome of this matter is not at this stage known. In those circumstances, I accept Dr A’s recommendation that there should be a further review of this matter and for that reason I do not intend to make any final orders in this matter at this time. Dr A indicated that an adjournment of somewhere in the range of six to twelve months would be appropriate. The Independent Children's Lawyer suggested nine months and no other party spoke against that suggestion. The matter will be rementioned before me at that time for the purposes of reviewing the current situation in the matter, considering whether or not any further updating report needs to be obtained from Dr A and considering any evidence either party wishes to provide at that time. I would obviously be particularly interested in any report from the father’s treating psychiatrist.

Whether or not on an interim basis an order should be made for equal shared parental responsibility or sole parental responsibility

The evidence from both parties as to their current ability to function with one another as parents of the children was not a matter of controversy.
The father made it clear on a number of occasions in his oral evidence that he believed there was currently no possibility of him being able to communicate with the mother about parenting matters.
There had previously been an order that the parties keep a communication book. I have in evidence a copy of the second communication book. The mother’s evidence was that the father has retained the first communication book. The father’s entries in the communication book are far shorter than the mother’s. It seems however that that means of communication between the parties has fallen into disuse. At the current time the parties have no ability to communicate and resolve their difficulties as parents.
The parents are currently unable to communicate with one another as parents in any meaningful way. In those circumstances it is not in the children’s best interests for an order to be made for equal shared parental responsibility on an interim basis. On an interim basis, given that the children are to primarily reside with their mother, the mother is the appropriate person to make decisions about the children’s long term care, welfare and development.

Should the Director be able to require the mother to seek counselling for D?

The Director in final submissions initially indicated a wish to do this. I had a discussion with counsel for the Director in relation to the evidence given by Dr A. Counsel for the Director had asked Dr A about this topic. Dr A’s response was that further counselling for D at this time was not something that he would recommend. The negative aspects of that counselling would be to keep fresh in D’s mind that something had happened to him. Dr A said that the primary thing that needed to be done for D was for him to be returned to his mother and that that may turn out to be enough. Based upon the current evidence, I accept Dr A’s recommendation.
I granted liberty to each of the parties to bring the matter back to me on seven days notice. If the Department had believed there is stronger ground for D to have counselling for a particular reason and they believed the mother is unreasonably withholding her consent for that to happen, then I would have entertained an application for orders that D have counselling. Whether or not that type of order is made in the future will depend upon whether that application is made and the nature of the evidence relied upon at that time by the Director.

Whether or not there should be a four week delay in the implementation of the orders

Counsel for the father requested that the orders not take effect for a period of four weeks so that D could complete his then current school year. He was in year 1. There would usually be some strength to a request of that nature. In the circumstances of this case, however, there is a strong argument for an immediate response to remedy the current situation.
The orders I make affect not only D but also N. N was removed from his mother by way of an order made by Howard FM (I am told on the papers) based on an assertion (which I find to be incorrect) that the mother had failed to comply with a condition to keep P away from D during periods of time when D and N were with her.
Dr A has given evidence about the effect on N of having been removed (at the date of hearing for a period of 16 months) at a critical stage of his life, particularly in terms of forming attachments. The system to some degree has let N down. Had Federal Magistrate Howard known and understood what the court now understands after five days of hearing, N would not have been removed from his mother. Dr A said that sometimes if a child is moving from one competent parent to another competent parent then the effects of that change may not be dramatic. Dr A’s view, however, is that the father is a less than competent parent, given his current mental status.

When the allegations were first raised, D was kept home from school by his father for a full school term. The mother proposes to have D go to a local school in her area. I determined on 14 November 2008 that the orders should be implemented forthwith.

The time and circumstances the father should spend with the boys

The intervenor offered to provide two hours supervision each week for a period of three months in the S area. The mother and father both indicated that they accepted that arrangement and the mother will therefore be required to travel each week from M to S.
In addition, the father is to have up to four hours per week at a contact centre either at F or Y. Counsel for the father indicated that the father may have difficulty getting to those places because of the unavailability of a motor vehicle. I am told however that both of those contact centres are near a railway station. The father is not currently employed (although he indicates that he intends to attempt to seek employment). There was some doubt as to when the centres were open and whether or not when looked at together they were opened each week. The father understood that that additional four hours may not be available each week or available immediately (there may be a waiting period in relation to at least one of the centres). Counsel for the father also indicated that the father may still be saying that he may find it difficult to travel to the central coast to see the boys. It is my hope that he attempts to overcome those difficulties.

FINDINGS IN THESE REASONS

I intend to make findings based upon the evidence I have heard to date. These findings relate to events about which I have heard evidence. I do not intend to entertain a revisiting of evidence in relation to these events, but some of my other findings (for example, in relation to parental attitudes) may be modified or changed by subsequent evidence as to what has happened between now and when I conclude the hearing of the matter.

DOCUMENTS READ

Father’s affidavit filed 10 October 2008.
Further affidavit of father filed 10 October 2008.
Affidavit of Ms MN filed 8 February 2008.
Affidavit of mother filed 10 October 2008.
Affidavit of Mr SY filed 1 August 2008.
Affidavit of Mrs SY filed 1 August 2008.
Affidavit of Mr Baker filed 10 October 2008.
Affidavit of Dr Z filed 7 November 2008.
Affidavit of Ms AB filed 16 July 2008.
Affidavit of Ms AB filed 10 October 2008.
Dr A’s first report dated 15 January 2008.
Dr A’s second report dated 14 September 2008

CHRONOLOGY

The father was born in 1965 and is currently 43 years of age.
The mother was born in 1969 and is currently 39 years of age.
The mother married Mr Baker in January 1992 and they had three children.
P was born in March 1992 and at the date of the hearing was 16 years and 8 months.
H was born in September 1994 and is 14 years of age.
E was born in August 1996 and is 12 years of age.
The mother and Mr Baker separated in September 1996.
The father says that he and the mother started a relationship in 1997 or 1998. The mother says that the parties commenced an on/off relationship in March 1998.
D was born in January 2002 and at the date of the hearing was aged 6 years and 10 months.
In March 2002 the mother and father were apart and the father had D with him for that three week period. After that three week period and after police intervention, the father returned D to his mother’s care.
On 2 July 2002 orders were made in the Local Court providing, inter alia, that D live with his mother and that D spend time with his father each Saturday (say for the last weekend of the month) from 10am to 4pm until he attends school.
The parties resumed cohabitation once the orders were made in the Local Court. Between July 2002 and the middle of 2006 the parties cohabited at various times and the mother fell pregnant with N in about April 2006 at a time when the parties began to live together on a regular basis.
The father says that in July 2006 he reported the mother to DoCS because the mother had yelled at D after D had told the father that P had belted him.
The parties finally separated on or about 19 August 2006.
On 15 September 2006 the father attended the mother’s residence for the purposes of removing a shed from the back yard. What happened on this occasion is more fully discussed below.
In January 2007 N was born and he is currently 2 years and 6 months old. An incident took place at the hospital on the day of his birth which is more fully discussed below. The father was escorted from PN Hospital by hospital security.
On 3 January 2007 the father commenced parenting proceedings at the Parramatta Federal Magistrates Court seeking amongst other things that D be placed in his care “in his mother’s absence....for the next three weeks”.
On 8 January 2007 the father spent time with N and moved to his current address at C.
On 15 January 2007 interim consent orders were made by Federal Magistrate Donald providing for D to spend time with the father from 9am on 16 January 2007 until 1pm on 22 January 2007.
The mother says that on 4 February 2007 she contacted the Federal Police after the father had failed to return D to her in accordance with court orders.
On 5 March 2007 consent orders were made at the Federal Magistrates Court providing that D and N would ordinarily live with their mother. D was to spend time with his father during school terms each alternate weekend from after school Friday to the commencement of school Monday and from the conclusion of school Wednesday until the commencement of school on Thursday. He was also to spend time with his father for half the school holidays, Father’s Day and Christmas/Boxing Day. N was to spend time with his father for short periods, initially for five days a fortnight and then for slightly longer periods, so that by September 2007 N was to spend each Wednesday from 1pm to 5pm and each alternate weekend from 2pm Saturday to 12 noon Sunday with his father. An order was also made by consent that the parties communicate using a communication book.
The father currently has a relationship with Ms MN. They have separate houses across the road from one another.
The father says that on 4 April 2007 D disclosed sexual abuse by P. The mother says that the father telephoned her to talk about D having problems at school and indicated that D was better off with him and that he would be seeking orders to get time with the mother’s other children. The father says that D had been found standing in the playground at school with his arms outstretched and crying, and that the father had had a conversation with a school teacher, Ms PC, about this. The father says that back at home, D made disclosures about sexual abuse upon him by P. The father contacted Ms MN and asked her to come across the road and stand outside the front door of the husband’s home to listen to D repeat what he had said to his father without D knowing that Ms MN was there.
On 5 April 2007 the father contacted DoCS but did not immediately attempt to take D into his care. The mother collected D from school. The mother says that D remained in her care for the first half of the school holidays. D came into his father’s care at the mid point of the first term school holidays and was not returned by the father to the mother at the end of those holidays.
On 11 April 2007 the father contacted JIRT at Parramatta and officers from S Police Station attended his home to take a statement. I discuss the JIRT interview in considerable detail below.
On 20 April 2007 D was interviewed by Ms RO (with Senior Constable MY outside the room but involved in the interview). A video of that interview was played at the commencement of the hearing and a transcript of the interview is annexed to Ms AB’s affidavit filed 10 October 2008. That night the mother was contacted by Ms RO from JIRT. A note made by Ms RO of her conversation with the mother at that time is Exhibit E. When told on the telephone about the allegations, the mother “was heard to shriek on the phone”.
On 25 April 2007 the mother raised with the father her concern that D was not attending school and in fact D did not go back to school for the whole of the second term of 2007.
On 26 April 2007 a further interview was attempted by JIRT with D but he was uncommunicative and did not answer any question put to him by JIRT.
On 27 April 2007 the mother was contacted by Ms RO from JIRT and consented to D’s referral to a sexual assault counsellor. Counselling of D at CE Organisation commenced in mid May 2007 with Ms U and continued weekly.
On 2 May 2007 Ms RO and Detective MY attended the mother’s home and interviewed the mother and P. Annexure C to the affidavit of Ms AB dated 10 October 2008, whilst not a detailed record of that interview, makes clear that in general terms the allegations made by D were put to P and he denied them.
In May 2007 the father sought help from Dr SR and was prescribed anti-depressants.
On 9 May 2007 the police were called to the mother’s front lawn after an incident.
On 12 May 2007 the mother refused to provide N to the father. The father called the police who attended and spoke to the parties and the father left without N.
On 14 May 2007 the mother refused to provide N to the father. The father contacted a DoCS officer named Mr DA. The mother had a conversation with Mr DA.
On 17 May 2007 the mother filed an application for interim orders in the Parramatta Federal Magistrates Court seeking the return of D and in the alternative that a recovery order issue.
The mother alleges that on 18, 21, 23 and 28 May 2007 the father did not attend to attempt to have time with N.
On 8 June 2007 JIRT indicated to the mother and the father that their investigation had been closed.
On 9 May 2007 the father returned N to the mother. The mother says that the father indicated that he would retain N on the next occasion he took him.
On 17 May 2007 the father called the DoCS hotline and relayed, amongst other things, a conversation he said he had with D in which D alleged that he had been sodomised by P. Those allegations are discussed in more detail below.
The father believes that on 4 June 2007 he was stalked by Mr W who is a friend of the mother. The father alleges that Mr W tailgated him. The father’s evidence about Mr W’s movements left me wondering who followed whom.
Some interim orders were made at the Federal Magistrates Court on 18 June 2007. Those interim orders were not tendered during the proceedings. I am told that in some way, those interim orders suspended prior interim orders for both children to live predominantly with the mother.
On two occasions shortly before 22 June 2007 the mother spoke to the father’s employer. The father alleged he was stood down as a result of the mother discrediting him. There was no substantiation of that claim and the mother clearly denied that that was her intention or that that was the reason the father was stood down. The father has not worked outside the home since his employment terminated.
In June 2007 the father consulted Dr G, psychiatrist.
On 17 July 2007 an interim order was made by FM Howard for D and N to live with their father and for D to spend time with the mother in the absence of P and for N not to be left alone with P. However, N was to spend each weekday from 9am to 6pm with his mother and alternate weekends from 6pm Friday to 4pm on Sunday and between 1pm and 4pm on alternate Sundays. In substance, the order made on 17 July 2007 was for the mother and father to share the care of N and for D to live with his father.
On 19 July 2007 the father obtained an interim AVO so that he would be protected from the mother (this was after JIRT had decided not to seek any AVO).
The father alleges that on 23 July 2007 D told him that his mother’s friend Ms L had promised him chocolate if D recanted his allegations against P and said that P had done nothing to him. The mother denied that Ms L was there on that weekend or that anything like that had happened.
The father at this time made a number of allegations that he had been told by D that P was present at times when he should not have been in accordance with the court orders. One of the allegations, that P was present on the weekend of 20, 21 and 22 July 2007, was denied by Mr Baker, P’s father, who said that P, H and E spent that weekend with him. Mr Baker, when giving evidence, was not tested on that assertion and I accept that it is true.
On 2 August 2007 the father did not allow D or N to spend time with their mother in accordance with court orders made on 17 July 2007.
The matter was listed before the Federal Magistrates Court on 20 August 2007 and those proceedings were adjourned to 14 September 2007 for an interim hearing. The mother says that the father agreed (informally) that she would spend time with N from 9am until 2pm each weekday commencing 21 August 2007. The mother says that the father did not deliver N to her.
On 10 September 2007 the father filed an application in a case seeking an order that D’s time with his mother be supervised and that N’s time with his mother on non-school days be supervised and that N’s time with his mother during each school day be between 8am and 2pm, provided P is not present.
On 14 September 2007 interim consent orders were made by FM Donald providing that the children would live with the father and that the children spend time with the mother as follows:-
97.1.In respect of D, initially four occasions supervised at … Contact Centre, thereafter from 5:30pm Friday until 5pm Sunday each alternate weekend provided that P is not present.
97.2.In respect of N, from 5:30pm Friday to 5pm Sunday provided that P is not present.
97.3.In respect of both children, from 10am 26 December 2007 to 5pm 2 January 2008.
97.4.From 5pm 9 January 2008 to 5pm 16 January 2008.
97.5.For one week of the term 1 holidays and provided that P is not present.
97.6.The children were to communicate by telephone with their mother each Tuesday and Thursday and on their birthdays.
The mother’s solicitor on this day informed the father’s solicitor of the mother’s intention to move to the central coast to take up work and to live near family support.
On 5 October 2007 N was with his mother at her home in Sydney. Ms MN alleges that she drove past the mother’s home and saw P present with the mother and N. I discuss this evidence later and conclude that Ms MN’s observations were erroneous. I accept the mother’s denial that P was present at this time.
On 12 October 2007 the father did not facilitate N’s time with his mother, allegedly because N was ill. The mother was seeing D at the contact centre.
On 15 October 2007 the mother relocated to live at M on the central coast with P, H and E.
The mother continued to see D at a Sydney Children’s Contact Service.
On 24 October 2007 consent orders were made appointing Dr A as a Chapter 15 Expert to prepare a report in the matter.
The mother says that on 26 October 2007 the father failed to provide the children to her in accordance with the interim orders.
The parties and the children were interviewed by Dr A for his first report on 9 and 11 January 2008 and his report dated 15 January 2008 was released on 24 January 2008.
On 30 January 2008 interim orders were made by consent in the Federal Magistrates Court suspending previous orders. The children’s time with their mother was increased but the order restraining the mother from bringing the children into contact with P continued. The orders restrained both parties from taking D to counselling or psychological or psychiatric therapy without first obtaining the consent of the other parent or alternatively a court order. The orders set out the protocol to be followed when the father contended that either or both of the children were too ill to spend time with the mother; specifically, that the children were to be taken to a medical practitioner and information about their condition as well as the contact details of the medical practitioner were to be provided to the mother. The orders also provided that the parties were to communicate as soon as practicable in relation to major issues regarding the children and in relation to implementing the orders by mobile telephone and/or SMS messages. In addition, the orders provided that the matter be transferred to the Family Court of Australia at Parramatta.
In February 2008 the mother commenced work at a supermarket casually for 15 hours per week.
The father alleges that between March 2008 and May 2008 he suffered attacks on his home with eggs and rocks and that his car was maliciously damaged by brake fluid amongst other things.
The father says that D told him on 10 March 2008 that P was present during contact on 29 February 2008.
On 14 March 2008 the father sent an SMS message to the mother indicating that he intended to suspend the children’s time with their mother.
The matter came before the Family Court for the first time on 31 March 2008. Supervised time between the children and their mother was restored at that time. The matter was given priority and Dr A was asked to update his report.
On 28 May 2008 P commenced living with his father. P is now attending TAFE and working.
On 15 June 2008 the father was admitted to hospital. He suspected he had had a heart attack but that turned out not to be the case. After an initial day in the general ward he spent two further days in a psychiatric ward.
The father says that on 22 June 2008, …, a friend, was told by D that P was present at the time when his mother saw him. The father reported this to DoCS and DoCS interviewed D at school on 25 June 2008. On the next day the father’s solicitors advised the mother’s solicitors and the Independent Children's Lawyer that the father would cease to make the children available.
On 16 July 2008 the Director-General of the Department of Community Services intervened in the current proceedings. The mother’s time with the children was suspended and the mother was to spend time with the children as supervised by the Department. An order was made in the following terms:-
“That the intervenor be entitled to arrange for [D] to be interviewed by, and receive counselling from. [Ms PR], clinical psychologist.”
Part of a report from Ms PR was admitted by consent into evidence, with part of it excluded.
Collier J in effect ordered that pending the final hearing of the matter, the mother see the children in accordance with the facilitation and supervision of the Director-General of the Department of Community Services. This order has had the effect of significantly restricting the mother’s time with the children.
On 16 July 2008 the matter was fixed for five days for hearing before me.
On 20 August 2008 the parties and the children attended for further interviews with Dr A. Dr A provided his report on 14 September 2008.
As a result of recommendations in Dr A’s report, a paediatric assessment was carried out for N by Dr Z, who saw N on 31 October 2008 and provided a report dated 5 November 2008 which is annexed to her affidavit sworn 7 November 2008.

THE FATHER’S EVIDENCE ABOUT THE INITIAL DISCLOSURE BY D ON 4/4/2007

On the night of 4 April 2007 the father, after describing what a teacher at D’s school described to him as D’s problem behaviour, discussed with D a drawing that D had done of his family. The drawing included a drawing of P as a stick man. The father’s evidence is that the following conversation took place between he and D. D said to the father “He has no clothes on”. The father said “Why not?”. D said, “Because he doesn’t wear any”. The father responded, “What do you mean?”. D said “Sometimes he walks around with none on and he sleeps without clothes and daddy, when I have a bath, he comes in and touches my willy”. The father said he asked “Why?” and D responded “I don’t know, but he said I have a nice willy and he said he loves my willy”. The father went on to ask how many times this had happened and D replied “Not all the time but most of the time”. The father said, “Did you tell your mum?”. D replied, “Yes”. The father said, “What did she say?” and D said “She said I don’t care, go away”.

The father said he then walked into another room and telephoned Ms MN, who lived across the road from him. He said that he did not tell Ms MN what D had said but only that “it was disturbing”. A few moments later Ms MN came across the road; the father met her at the front door; she remained there with the door ajar; he went back inside and said to D “So tell me again what [P] does”. The father says that D then repeated what he had said.
Ms MN gives evidence that she concealed herself so D could not see her. Her evidence is that the father said to D, “So what does [P] do to you”. D replied, “When I take my socks off and get into the bath [P] comes in and touches my willy”. The father asked, “How often does this occur”. Ms MN says she could hear D talking but could not hear his response clearly as there was traffic noise.
As I discuss below, although there is one reference by D to P touching his willy in the JIRT interview, there is no context given by D. D does not say to Ms RO, when interviewed by her, that anything happened to him whilst he was in the bath.
The first interview with JIRT took place on 24 April 2007. D made statements during that interview which are discussed later. He did not in that interview mention the most serious allegation in this case which was that P had sodomised D.

THE FATHER’S ALLEGATION THAT D HAD TOLD HIM THAT HE HAD BEEN SODOMISED BY P

Information in the subpoenaed material

The allegation that D had been sodomised by P is the most serious allegation made by the father to the Department.
Part of Exhibit C contains a Departmental record of a complaint made to the help line by the father on 17 May 2007. Amongst other things the father said:-
He (referring to [D]) has also said that
·‘[P] puts his willy in my bum & shakes it’.
·He said (sic) then said ‘he tries to get poo out of my bum, its disgusting, & its hurt me’.
A large amount of material has been subpoenaed in this matter, and as far as I am aware all relevant material from the Department, JIRT and the police has been subpoenaed. I am informed by the legal representatives for the mother, the father, the Independent Children's Lawyer and the Department that there is no other reference in the subpoenaed material to this allegation.

Information in the affidavits

There is nothing in the affidavits of the father (which are incredibly detailed in other areas) which gives any evidence about what is the most serious allegation in this case. There is nothing in Ms MN’s affidavit which refers to it.

Dr A’s first report

Dr A in his first report records, at page 4, that the father told him that D had dreams about P “getting poo out of [D’s] bum with his willy”.
Ms MN says to Dr A (page 6 of Dr A’s first report) the following:-
“[D] told her that ‘[P] got poo out of [D’s] bottom with his willy’ and that his mother found out and sent [D] to his room.”
Because of its importance, I set out in detail the oral evidence given by the father and Ms MN in relation to this matter:

The oral evidence of the father

The following is a transcript of part of the cross examination of the father:
Cross examination of father - Extract of transcript of proceedings 10/11/08
MR COOK: Are you aware of any other disclosures that [D’s] made regarding the behaviour of [P] toward him - of the sort of willies and touching and so on?‑‑‑Yes, I am aware.
What is that? What is the allegation?‑‑‑Well, on one - one occasion [D] said to me - he said [P] tried to get a poo out of his bum with his willy, or words to that effect.
Did you tell the police that?‑‑‑I reported it to the DOCS helpline, yes.
To the helpline?‑‑‑Yes.
What level of contact have you had with JIRT since [D] made these first allegations of [P] rubbing his willy on his back?‑‑‑Occasional contact.
How often is occasional?‑‑‑Well, I haven't had contact with them for quite some months.
How often is occasional?‑‑‑Probably once a month.
For how many months?‑‑‑I can't recall exactly how many months after, but it was a fair while after, yes.
Six months?‑‑‑Yes. Could be longer.
So that would be six contacts?‑‑‑It could be more than that. As I said, it could be longer.
Did you raise it with JIRT then, this comment or disclosure?‑‑‑Yes, I did tell him.
You say they ignored that, did they?‑‑‑Whether he made notes of it or not I'm not sure because the case had been suspended at that point in time.
You told Dr [A] that [P] was getting poo out of [D’s] bum with his willy?‑‑‑That's what [D] said to me.
That is - that certainly sounds far more serious, does it not - - -?‑‑‑It does.
- - - than putting his willy on his back?‑‑‑It does.
One would expect if that was to be true that there would be physical evidence of that?‑‑‑I'm not a doctor, but yes, I would agree.
To your knowledge JIRT have done nothing about it?‑‑‑To my knowledge.
.....
You told the DOCS helpline, you said, that - words to the effect that [P] had pulled poo out of [D’s] bum with his willy?‑‑‑That's what [D] had said to me.
You told us that you notified the helpline?‑‑‑Yes, I did.
You've been agitating for DOCS to take a greater involvement?‑‑‑Yes.
You're regularly in contact with the police and DOCS via JIRT?‑‑‑Yes.
You indicated that over a six-month period you were in contact with at least DOCS more than six times?‑‑‑Yes.
How did this serious allegation escape DOCS' attention when you were there pushing them, you are the notifier of the problem, you are deeply involved in getting with JIRT and DOCS and yet the most serious allegation - - -
MR ALLEN: I object, your Honour. How is the witness going to answer that? That's a matter to be put to my client.
MR COOK: No, it's a question - - -
HIS HONOUR: Well, his credibility is being tested, Mr Allen. I will allow the question.
MR COOK: Sir, with all of those circumstances which you've agreed with, how, as far as you know, did it escape - this serious matter escape their attention?‑‑‑I was told why it was hard for them to do anything.
You were - - -
HIS HONOUR: Sorry, what did they tell you?‑‑‑They told me that it's very hard for them to - to take action when the matter is before the Family Law Courts.
MR COOK: They came to the Family Law Court and involved themselves and that's why they're here today, didn't they?‑‑‑Yes.
Did you raise it with them - have you raised that allegation with them since June when they came into this case?‑‑‑No, and I gave my reason when I was interviewed at their office at [S] in June and I said, "I'm not worried about what should and shouldn’t have happened in the past, let's just move forward."
Did you repeat the allegation to them in June?‑‑‑In the office?
Yes?‑‑‑No.
Do you consider that allegation more or less serious than this willy on the back allegation?‑‑‑Yes, I do.
Then why did you not, in June, raise it with DOCS when they became part of this case?‑‑‑Because it's in the reports - they have all the reports.
Again, you were relying on someone else to do that sort of thing?‑‑‑No. As - from a father's point of view I find it very hard to talk about that and very upsetting. Could you please put yourself in my position. That is very upsetting.
So upsetting that you could not bring it to their - sufficiently, you could bring it to a helpline but couldn't bring it to - - -?‑‑‑I spoke to - I did speak to JIRT about it.
You believe they've done nothing about it?‑‑‑I don't know what they've done about it.
Have you made any inquiries of them?‑‑‑No.
Why not?‑‑‑I just haven't.
It's so upsetting, far more serious than the initial disclosure that's caused all the Court hearings and so on, and you just didn't think about it. Are you seriously saying that?‑‑‑It's not that I just - it's not that I just didn't think about it. I made the reports, I've done what I had to do, I spoke to JIRT about it. If they can't do anything - if they can't reopen the case - they said they can't re-interview [D], so what can be done about it? If they can't re-interview the child, what can be done about it?
[D] was interviewed and he didn't mention it, did he?‑‑‑Not at the start, no.
Not in that interview, did he?‑‑‑No.
Do you know on any occasion other than to you that he has mentioned it?‑‑‑I am sure [Ms MN] has been around when he has mentioned it, yes.
You've had some damage done to your property - - -
HIS HONOUR: Sorry, just before we move off this.
How many times has he spoken to you about this - about [P] using his penis to remove faeces from his bottom?‑‑‑I think there was only two occasions, from memory.
From memory when were those occasions?‑‑‑They were quite some time back.
What does that mean?‑‑‑Early this year and late last year, from memory - from memory.
So late 2007 to early 2008?‑‑‑Yes.
You say [Ms MN] heard these conversations, or - - -?‑‑‑I'm sure it was [Ms MN] that was present at one stage when he was talking about it, yes.
So [Ms MN] was present on one of those two occasions?‑‑‑Yes.
When did you ring the helpline?‑‑‑The first time he said it to me I contacted ‑ ‑ ‑
So late 2007?‑‑‑Yes.
Is that the - that was the first conversation you had with the authorities about this matter?‑‑‑Yes, and JIRT, yes.
Well, when did you speak to JIRT about it?‑‑‑After I had made the report to the helpline.
What, at the same time, the same day, or shortly after?‑‑‑Shortly after, could have been a couple of days later.
So both to the helpline and to JIRT it was late 2007?‑‑‑Yes, I spoke to Detective [MY] at JIRT.
Apart from those two conversations in late 2007 you did not have any further conversation with any person in authority about this matter?‑‑‑There was only one other occasion when I attended [S] Police Station and I was talking to the Sergeant in charge at the time, and as he said - he said, "That would have to be referred back to JIRT."
So you were specifically talking about this serious allegation - - -?‑‑‑And we were also talking about damage - - -
- - - to the policeman at [S]?‑‑‑Yes, and we were also talking about damage to my property.
When was that?‑‑‑That was in early '08.
Around about the time of the second time that [D] said it to you?‑‑‑A little bit after that.
Then that's it?‑‑‑Yes.
Yes?
MR COOK: Do you say - I thought you said that [Ms MN] - was she present when you were told this by [D]?
HIS HONOUR: On one of the two occasions?‑‑‑I'm sure it was [Ms MN] that was there. I do recall someone being there and I'm pretty sure it was [Ms MN].
She has made no reference to such an event in her affidavit, are you aware of that?‑‑‑Yes.
Did you ask her why she had left out such a serious matter?‑‑‑No. I'm not sure when she made that affidavit either, I can't remember.
End of January 2008.
Extract of transcript of proceedings 11/10/08
MS BOYLE: [D’s] complaints to you about [P’s] conduct to him have been both actual complaints and about things that [D] says he has dreamt; is that right?‑‑‑Yes.
So I take it when he talks about having dreamt about problems with [P], it's in the morning when he wakes up when he's had a bad night, or something like that; is that right?‑‑‑Yes, and sometimes in the middle of the night.
Because you spoke to Dr [A] about [D] having dreams about [P] hitting him, stuff [P] did with his willy and about [P] getting poo out of [D’s] bum with his willy, those things all being, as I understand the report - at page 4, your Honour, the first report - that [D] told you he had dreams about; is that right?‑‑‑Yes, and [D] will say, "And it happens in real life, too."
Was the first time he talked to you about [P] getting poo out of his bum with his willy in the context of, "I had a dream about it," or - - -?‑‑‑No.
- - - that it actually happened?‑‑‑No, that it actually happened.
Is there any reason why that allegation doesn't feature anywhere in your affidavit?‑‑‑No, there's no reason.
Because would you agree that that's pretty serious?‑‑‑Yes, I do.
One would have thought likely to have a physical - there might be a physical sign of that having occurred if it has?‑‑‑I spoke to JIRT about that and they said with - that that sort of disclosure - that there can't be any sort of examination unless the disclosure is made within 72 hours of the occurrence - of the last occurrence.
When [D] told you those things he did it with no time frame attached; is that right?‑‑‑That's right, yes. That's exactly right.
When was the very first time he said something to you about [P] getting the poo out of his bum with his willy?‑‑‑That would have been late '07.
Very first occasion that that was said?‑‑‑Yes.
It's really a very, very different complaint than the one that was made to JIRT that you've seen on the tape, wasn't it?‑‑‑Of course it is.
Yes. It's something that has been said to you more than once, is it, by [D]?‑‑‑Yes.
How often?‑‑‑I think it's been - it's been said to me about three times.
The first time that he said that to you, how did you respond?‑‑‑I was shocked.
Yes?‑‑‑I was shocked.
What did you do?‑‑‑I just looked at him and I said, "What?" [this word was said by the father in an inflected incredulous tone] and he said that, and I said, "No, [D], I don't think that's right," and he said, "Well, it is," and I said, "Well, [D]," I said, "Come on, mate," - I said, "I really don't," - and he was quite adamant that it was right.
Is that the way he's been on each of the three times he's said that to you?‑‑‑Well, the second and the third time I just said to him - I said, "[D]," - I said, "Try not to think about things like that."
Well, at least one of those times he was talking about dreaming about it, wasn't he?‑‑‑Yes, there was time - yes, there was one time where he was talking about dreaming about it, yes.
Because that was what you reported to Dr [A] in that first report, the dreaming about it?‑‑‑Yes.
Not the actual?‑‑‑No.
So the first time he talked to you about it, it was about him dreaming about it; is that right?‑‑‑It - I could have been talking in a block about a numerous things - dreams and things like that. From my - from my reading of Dr [A’s] reports and my memory of what was said, he doesn't seem to put what you say to him in the same context in his report.
Well, I understand that's what you say about that, but do you agree where he refers in the first report at page 4:
He had dreams about [P] hitting him -
and then he puts quote marks, okay -
"stuff [P] did with his willy," and about [P] "getting poo out of [D’s] bum with his willy".
Do those two quotes sound like what you said to Dr [A]?‑‑‑It would be fairly close, yes, but - if my memory serves me correct, yes, it would be fairly close.
I think you've already agreed that when you told Dr [A] it was certainly about [D] having dreamt about it?‑‑‑Yes.
So when was the first time that he told you he had - that this was something he said had actually happened to him?‑‑‑Late '07.
That's before you saw Dr [A] or after?‑‑‑Yes, before.
Were you explicit when you saw Dr [A] that it wasn't just something that [D] told you he had dreamt, but something that he told you had actually happened to him?‑‑‑I can't remember if I was explicit about it to not only just being a dream.
Really? You don't remember that?‑‑‑Well, I can't remember if I said, you know, "and he's also said this to me outside of not having dreams."
.....
HIS HONOUR: Before you move, I just want to go back to the ...statement...you say... [D] made about ...[P] getting poo out of [D’s] bum with his willy. The first conversation that [D] had with you about that was late 2007; correct?‑‑‑Yes.
That wasn't a conversation about a dream?‑‑‑No, not the first time, no.
Then there were at least two other conversations - - -?‑‑‑Yes.
- - - that weren't about dreams?‑‑‑No, one of them was about dreams, yes.
So is your memory that there were two conversations that weren't about a dream - - -?‑‑‑That's right.
- - - where he was relating actually what happened - - -?‑‑‑Yes.
- - - and there was one conversation about a dream?‑‑‑Yes.
Did all those conversations happen before you saw Dr [A] on around about 9 or 11 January?‑‑‑Yes.
You can't tell me today whether or not you selectively told him about the third conversation - that was the dream conversation - only, or whether or not you told him about the whole three?‑‑‑As I said, I don't think that the wording is a hundred per cent correct. I'm sure - - -
No, I'm not asking you about - - -?‑‑‑I'm not a hundred per cent sure - - -
I'm not asking you about Dr [A’s] wording - - -?‑‑‑I'm not a hundred - - -
- - - I'm asking about your memory of what you told him?‑‑‑That's right. I'm not a hundred per cent sure that I told him - - -
So you can't remember if you told him about the first two conversations?‑‑‑That's right, I can't.
Okay.
.....
MS BOYLE: Can I show you a document - and I think the page I'm going to open it at isn't dated, but it appears to have come from a helpline call from you on 16 May 2007. If you could just read the page that it's open at to yourself? Have you had a chance to read through that now?‑‑‑I'm about halfway down.
Sorry?‑‑‑Just that page?
Yes. You've had a chance to have a look through that?‑‑‑Yes.
Do you agree that that would appear to be a report by you of you telling the Departmental officers about the allegation of [D] saying that [P] put his willy in his bum, and to do with poo?‑‑‑Yes.
Just looking at that and the date, is that the first time that you, thinking about it - - -?‑‑‑I can't see the date on there.
If you go to the front page of the document. It's a little confusing, it's about halfway down on the right-hand side of the page, there's a date in May 2007 - 17th, I think?‑‑‑Yes.
Is that the first time, just thinking back on it, that [D] made that particular allegation to you?‑‑‑Yes, I think so. I'm not a hundred per cent sure.
Well, that's why I want you to just have a think about it, if that's right?‑‑‑I'm not a hundred per cent sure. He has said lots of things over the time and the actual time when he actually said things is - - -
All right.
HIS HONOUR: But this is the worst thing he's said, isn't it?‑‑‑Yes, yes.
Do I understand that this is a documented dated 16 May; is that correct?
MS BOYLE: I haven't got a copy of it in front of me, your Honour, but I think that's right.
WITNESS: 17 May '07.
HIS HONOUR: 17 May?‑‑‑Yes.
Well, do you then revise the evidence you gave me earlier about - - -?‑‑‑Yes, I thought it was much later in the year.
- - - the end of 2007 being the time when this was said for the first time?‑‑‑Yes, I thought it was much later in the year.
Well, given that this is the most serious thing he's ever said, how is it that you got the timing of that so wrong?‑‑‑I don't - I can't explain it, just - he's said lots of things to me and - - -
Well - - -
MS BOYLE: This is certainly an occasion where he didn't tell you it was a dream?‑‑‑That's right.
He's relating it as though it was a fact that it had occurred?‑‑‑Yes.
That's right?‑‑‑Yes.
As I understood your earlier evidence there were three conversations you had with [D] before you saw Dr [A], all of which referred to that particular allegation with respect to [P]?‑‑‑Yes, and that's as many as I can remember. Yes, that's right.
I had thought you said, but I just want to check with you, that on each of those occasions you advised the Department about what had happened via the helpline?‑‑‑I've made more than one report with those allegations, yes.
That's not quite what I asked you, though. I just want to clarify, you say each time that very serious allegation was made by [D] to you, you contacted the helpline; is that right?‑‑‑The Department - either the helpline or JIRT, yes.
Or JIRT?‑‑‑Or JIRT.
It is an agreed fact that there is no other Departmental or JIRT record of this allegation, apart from the record of 17 May 2007.

Ms MN’s oral evidence

The following is a transcript of part of the cross examination of Ms MN:
MS BOYLE: The occasion that's in your affidavit, when the father called you over to the home and got you to listen at the doorway, as far as you were concerned did [D] know you were there?‑‑‑No.
How do you think he didn't know that? I mean, didn't his Dad have to go across the road, get you, come back - - -?‑‑‑No, his father rang me up and he said, "I want you to come across the road and just listen outside the screen door."
Then after that at some point did you just leave?‑‑‑Yes.
Then what, spoke to the father at some time later?‑‑‑He came out and he said, "All right, [D], just go on with eating your tea," and then he came out the front and he goes, "Did you hear all of that?" and I said, "No, I only heard half of it."
Have you at other times heard [D] say - make comments about things done to him by his brother [P] of a sexual nature?‑‑‑I don't - I don't really recall it, no, because I limit my conversation.
So that's a "no," that you haven't heard anything like that on any other occasion?‑‑‑Not that I can think of, no, no.
You'd remember, wouldn't you?‑‑‑Yes.
Because you told Dr [A] - at page 6 and 7 over the page - that [D] had told you that [P] got poo out of [D’s] bottom with his willy and that his mother found out and sent [D] to his room?‑‑‑Mm.
Is that something that [D] told you or that the father told you?‑‑‑If it did happen it would have been [D], but I honestly don't remember it. We don't have those sort of discussions.
Is what you're telling his Honour you have no particular recollection - - -?
‑‑‑I'm saying it could have happened but I don't remember it.
Well, otherwise the only time that you've heard [D] say something directly about [P] of a sexual nature is when you were listening behind the door?‑‑‑No, look, it - it happens when you least expect it, when he brings something up, and I prefer not to ask too many questions about it, so if he did say that - he may very well have said it - I don't have a sharp recollection of it.
You don't remember when - - -?‑‑‑No.
- - - you don't remember where, nothing about it at all?‑‑‑No, no.
It may be that it was reported to you by his Dad, it may be that you heard [D] say it directly, you just can't say?‑‑‑No, I can't. I can't be honest to answer it honestly and say that.
Because it was a pretty serious thing to tell Dr [A]?‑‑‑Yes, it would have been, and I wouldn't have made it up.
Sure.
HIS HONOUR: Sorry, you would have what?‑‑‑I said it is a serious thing and I would not have made it up.
You would not have made it up?‑‑‑No.
MS BOYLE: Well, are you saying, then, that your recollection at the time you saw Dr [A] must have been much, much better than it is today?‑‑‑Absolutely.
All right. What makes you confident about that?‑‑‑Because I wouldn't have said it if I hadn't heard it.
Okay.
HIS HONOUR: This is a pretty dramatic thing for [D] to have said to you, isn't it?‑‑‑It is.
You can't remember, sitting there today, him saying it?‑‑‑No, I can't remember because this has been going on since April and there has been so many things said about it.
This has got to be the most, you know, disturbing thing that [D] would have said to you ever?‑‑‑Well, yes, possibly it is, but I cannot recall it in all honesty.
Yes?
MS BOYLE: All right. Is it possible that where you reported it to Dr [A] as though you had heard [D] say it directly, that [the father] said it to you and that's why you're recalling it?‑‑‑It's a possibility.

Conclusions in relation to the allegation of sodomy

As set out above, Dr A has recorded on page 4 of his first report (dated 15 January 2008) that the father told him that D “had dreams…about [P] getting poo out of [D’s] bum with his willy”. The father said that D had told him that he had dreamed about that, but on two prior occasions had told him that it had actually occurred without a reference to a dream.
This was the most serious allegation. The father thought that all of the three conversations about this topic with D happened before he saw Dr A and originally thought that the first of them happened in late 2007.
The father could not explain why his initial memory of the most serious allegation that D had made was that it was at the end of 2007 instead of 17 May 2007, when he reported it to the helpline.
When originally giving evidence about it (when the father was asserting that the original conversation took place late in 2007), he said that he was shocked when D said this to him and he demonstrated in the witness box, by using an inflected incredulous tone, how he challenged D about this statement by saying “What?”. He said to D he did not think that that was right. D insisted that it was. That conversation does not sit easily with the father’s other evidence that he had been instructed by JIRT not to challenge D or ask D leading questions about what he was saying on these types of topics.
The father said that he was not confident about a lot of what Dr A had recorded in his report. The father was confident that he had told Dr A of the two occasions on which he says D told him that P had actually attempted to get poo out of D’s bum with his willy (the third occasion being the dream that Dr A actually recorded). The father said that he had not told Dr A that D had said that P had put his willy in D’s bum and shaken it, nor had he said to Dr A that D had commented “it’s disgusting and it hurts me” (as he had originally told the Department).
Dr A checked his notes. I find that the only reference the father made to Dr A about this event was as recorded by Dr A on page 4 of his first report. That record is of D dreaming that this had happened.
The father’s evidence about this most serious topic is inconsistent and implausible in a number of ways:-
141.1.He gave different versions as to the timing of the allegations;
141.2.He only mentioned the allegation to Dr A in the context of it being a dream, not actually happening.
141.3.He gave evidence that all three statements made by D at three different times were reported to the authorities when I find that was not so.
The other evidence on this topic, the most serious of the allegations, comes from Ms MN. Ms MN makes no comment at all about it in her affidavit.
In cross examination, Ms MN originally said that she had not heard any other disclosures from D about sexual interference apart from the occasion on which the father asked her to come across the road and stand at the front door and listen to a conversation between he and D (that event took place on 4 April 2007 and Ms MN gives her version of that event in paragraph 3 of her affidavit). She also gave some oral evidence about that event.
Having said that she had not heard any other disclosure by D, she was then taken to pages 6 and 7 of Dr A’s report. She could not remember D saying the things to her (about P sodomising D) that she told Dr A D had said to her. She presumed however that at the time she saw Dr A, which was on either 9 or 11 January 2008, she would have had in her mind what D had said to her and she would have reported that to Dr A.
I find it extraordinary that Ms MN’s evidence is, in relation to the most serious allegation, that she cannot today remember D saying anything like that to her but that she would have remembered D saying something of that nature to her in January 2008. I do not accept that evidence as credible. I find that what Ms MN told Dr A in 2008 is likely not to have been the reporting of a conversation she had with D but rather the relating of some information the father had at some stage given her.
One other matter that gives me some cause to doubt the authenticity of the assertion that P has sodomised D is that D seemed to be fairly specific in the JIRT interview as to what parts of his body were touched by P’s penis. He refers Ms RO back to the diagram he drew. He makes no assertion on 20 April that P’s penis came into contact with his bottom nor that P had an erect penis.
Also, at no time in the JIRT interview did D report that P had an erect penis. JIRT did not attempt to re-interview D in relation to the new allegations (the father said that they told him that they were unable to, having conducted the initial interview).
I do not accept that there is any credible evidence that P has done anything to D with his erect penis. I find that P has not sodomised D.

The other allegations of sexual abuse

I have already described above what the father and Ms MN said they heard on 4 April 2007. It was not until 11 April 2007 that the father made his first complaint to the authorities.

Interview with JIRT on 20/4/2007

This interview was pivotally important in terms of what then happened in the lives of D and N. A transcript of the interview is annexure A to the affidavit of Ms AB sworn 10 October 2008. A video of the interview is Exhibit A and, as already mentioned, was played in court at the commencement of the first day of the hearing. A viewing of the tape indicated that during part of the interview D was giggling, but otherwise he did not appear anxious. Dr A said that D presented to him in a fairly similar manner during his interviews.
There was some dispute during parts of the cross examination, by various counsel, as to what allegations arose from the interview, and it is therefore important to consider what happened during the interview in some detail.
The interview was carried out between Ms RO, an officer of the Department of Community Services, and D on Friday 20 April 2007. Senior Detective MY was outside the interview room and communicated with Ms RO through an ear piece during the interview.
At page 3 of the transcript, Ms RO asks D “you’re ok to talk to us on your own today?”. D replies “Yeah, I don’t know, I haven’t asked dad yet”.
When asked about this, the father said he had not said anything to D about why they were going to see JIRT and D otherwise knew that he should not talk to strangers.
Notwithstanding that, D, when asked “are you ok to talk to us though”, replied “yeah”.
D made no immediate disclosure of sexual abuse.
After being asked questions about things that D likes and does not like about various members of his family, at page 12 of the transcript the following exchange occurs:-
[MS RO]: Okay. What’s something that you like about [P]?
[D]: Nothing.
[MS RO]: Nothing; you don’t like anything about [P]?
[D]: No.
[MS RO]: No; what’s something that you don’t like about [P]?
[D]: Because he rubs his willy on my back.
[MS RO]: Yeah.
[D]: And he always tells me to touch his willy.
[MS RO]: Mm. Okay.
[D]: And he punched me, slapped me.
[MS RO]: Yeah.
[D]: And smacked me with the spoon.
[MS RO]: So he punched you, smacked you?
[D]: And slapped me and rubbed his willy on my back.
[MS RO]: Okay; when did he rub his willy on your back?
[D]: All the time when I was going to hop in the bath at mum’s.
[MS RO]: So all the time you go to – you go to get into the bath?
[D]: Yeah.
[MS RO]: He rubs his willy on your back?
[D]: Yeah.
[MS RO]: Okay, when – when – when was the last time he did this?
[D]: Just before my birthday.
[MS RO]: Okay. Okay. [D], because I wasn’t there when you were in the bath.
[D]: Yeah.
[MS RO]: And [P] rubbed his willy on your back.
[D]: Yeah.
[MS RO]: Just before your birthday.
[D]: Yeah.
[MS RO]: Can you tell me from the beginning to end what happened?
[D]: I don’t know what happened.
[MS RO]: You don’t know. Okay…….
(the discussion then turned to when this happened and I will deal with this in more detail below).
It should be noted that D has indicated two matters relating to sexual abuse by P in this passage on page 12:-
158.1.P rubbed his willy on his back; this happens when D “was going to hop in the bath at mum’s”.
158.2.P always tells D to touch his willy.
Whilst there is considerable further discussion in the record of interview about the first allegation, there is no further reference to the second.
Ms RO however, on page 13 of the transcript, for the first but not the only occasion, suggests to D that P rubbed his willy on D’s back when D was in the bath. That is not something that D told Ms RO. It is something that Ms RO suggests to D to which he initially responds “yeah”.
The next part of the interview is a discussion about when P rubbed his willy on D’s back. At the top of page 14 of the transcript, D says that it happened “just last year” and when he was asked “before your birthday?” he answered “yeah”.
This statement is somewhat ambiguous. D’s birthday is in January. The interview was carried out in April 2007. On one interpretation, that might put the alleged timing back to 2005 but the better view would date the occasion or occasions when P allegedly rubbed his willy on C’s back sometime in 2006. At that time D was five years of age.
On the second half of page 14, D is asked how old he was turning on “that birthday”. D replies “when I was four”. The following exchange occurs:-
[D]: No, I was three.
[MS RO]: Yeah.
[D]: Then on my birthday I went four.
If that version is accurate, then the alleged incident when P rubbed his willy on D’s back would have happened when D was three. There is however an inconsistency in what D has said, and it is difficult to be certain as to when it is he is saying these events happened.
At page 16 of the transcript, Ms RO refocuses the conversation by saying to D “Okay, so when you were in the bath”. On the second half of page 16 of the transcript, the following passage occurs:-
[MS RO]: When you were in the bath.
[D]: Mm.
[MS RO]: You said [P] rubbed his willy on your back?
[D]: Uh huh.
[MS RO]: Where was he?
[D]: In the bathroom.
[MS RO]: He was in the bathroom?
[D]: Yeah.
This is now the third occasion on which Ms RO has suggested to D that he was in the bath, and the first occasion on which Ms RO has directly suggested to D that P rubbed his willy on his back when D was in the bath.
On page 17 of the transcript, Ms RO says for the fourth time, when referring to P being in the bathroom, “Okay, so he was in the bath, when he was in the bath what did he do?”.
A little later on page 17, Ms RO says for the fifth time, “So when he was in the bath with you what did he do?”.
D did not reply to either of these questions by referring to P rubbing his willy on his back.
At the bottom of page 17 of the transcript, Ms RO, for the sixth time, makes a suggestion to D that P and he were in the bath together. D however corrects Ms RO. The passage, commencing on the last line of page 17 of the transcript and continuing on page 18, is as follows:-
[MS RO]: Okay. So when you were in the bath and [P] was in the bath.
[D]: Yeah.
[MS RO]: Tell me what he did?
[D]: He wasn’t in the bath.
[MS RO]: He wasn’t in the bath?
[D]: No.
[MS RO]: Where was he?
[D]: He – mum told him to get dressed because when I quickly hopped in the bath and – and [P] went out, nutted.
[MS RO]: Nutted, what’s nutted?
[D]: That with no clothes on.
[MS RO]: No clothes on, yeah.
[D]: And he ran out again and I don’t know the rest.
[MS RO]: You don’t know the rest.
[D]: …No audible reply…
[MS RO]: So you said that [P] rubbed his willy on your back?
[D]: …No audible reply…
In this passage, D’s replies lead to two conclusions:-
170.1.D is not saying that anything happened when the two boys were in the bath together;
170.2.D has not connected any occasion when both boys were naked with the assertion that P rubbed his willy on his back.
On pages 18 and 19 the following passage occurs:-
[MS RO]: And how did he rub his willy on your back?
[D]: Because I told him not to and he just started doing it.
[MS RO]: Okay and when he started doing it – sorry, excuse me, I’m sneezing. When you told him not to what did he say?
[D]: He just said, “Oh, I think that’s yes”. So he started to do it.
[MS RO]: Okay, where did he rub on your back?
[D]: Down and up, down and up; just – I’ll show you. There and there and there. [At this point in the video, [D] lifts his shirt up, stands with his back to [Ms RO] and points to where he says that [P] rubbed his back. As he is facing the camera, it is not clear exactly where he is pointing, although from the position of his arms it appears that [D] is using both his hands to point to three places in the centre of his back approximately halfway down]
[MS RO]: Okay and how did you feel when he was rubbing his penis on your back?
[D]: What?
[MS RO]: Sorry, how did you feel when he was rubbing it on your back?
[D]: What the willy?
[MS RO]: Yeah, the willy?
[D]: Because I didn’t like it and I hate it and I ran out and told mum.
[MS RO]: Mm.
[D]: And …. rubbing his willy on my back and ---
[MS RO]: How long was he rubbing his willy on your back?
[D]: Only for five minutes.
[MS RO]: Five minutes; how do you know it was five minutes?
[D]: Because – no, I know he was going to do it for five minutes.
On page 20, Ms RO suggests to D that his mother was in the kitchen when in fact D had said nothing of the sort to Ms RO but D agreed with the proposition.
At page 20 of the transcript the following passage occurs:-
[MS RO]: Okay. How did his willy feel? Was it soft, was it hard or something else?
[D]: Soft.
[MS RO]: Soft, okay and did he rub his willy anywhere else other than your back?
[D]: In the middle and the side and other side; that’s all.
[MS RO]: Of what?
[D]: Of my back.
[MS RO]: Of your back, okay. Has [P] ever done anything like this before?
[D]: I don’t know but he started it. He started it. I didn’t.
At page 24 of the transcript, the following passage occurs:-
[MS RO]: And [P] was rubbing his willy on you.
[D]: Mm.
[MS RO]: Okay, were you sitting or were you standing or something else?
[D]: I was standing.
[MS RO]: Standing?
[D]: Yeah.
[MS RO]: Okay, so where were you standing?
[D]: Next to the bath.
[MS RO]: Next to the bath. Okay and where was [P]?
[D]: He was in front – behind me.
[MS RO]: He was behind you?
[D]: Yeah.
[MS RO]: Okay and when did he start rubbing his willy on your back?
[D]: That time and then that time then that time and I count, one time, two time, three time, four time then last time not – that’s not the last time.
[MS RO]: Okay.
[D]: Then number five was the last time.
[MS RO]: Okay, this time we were talking about here when you were in the bath?
[D]: Yeah.
I note in passing that this is the seventh occasion on which Ms RO suggests to D that he was in the bath, but then she checks with D and for the second time D corrects Ms RO.
[MS RO]: When did he start rubbing his willy on your back, when you were inside or outside the bath or something else?
[D]: Outside the bath.
[MS RO]: Outside the bath?
[D]: Yeah.
[MS RO]: Okay and when you were outside the bath was he wearing any clothes or was he not wearing clothes or something else?
[D]: He was wearing clothes.
[MS RO]: He was wearing clothes? Okay, what clothes was he wearing?
[D]: Jarmies.
[MS RO]: Jarmies, okay, what colour jarmies does he have?
[D]: Mum got [P] some new jarmies; red pair?
[MS RO]: Red pair?
[D]: …. then just then watery, just the thing…. I don’t know what they are.
[MS RO]: And what colour shirt was he wearing?
[D]: Green, the boxers.
[MS RO]: He was wearing boxers?
[D]: For his pants; new ones.
[MS RO]: Blue ones?
[D]: No, red ones. [At this point in the video, [D] stands up and walks to a large yellow curtain with red patterns that is hanging up as part of the decoration of the room. He points to the red pattern on the curtain to demonstrate the colour of [P’s] boxers]
[MS RO]: Just like this.
[MS RO]: Okay. Okay, so they’re little ones?
[D]: Yeah
[MS RO]: Okay. Was he wearing anything else other than them?
[D]: No.
[MS RO]: No, okay. When you were outside the bath were you wearing anything?
[D]: No, I took my clothes off.
[MS RO]: What were you wearing?
[D]: Nothing. I started to put my foot in and I know [P] was there put his willy on my back and rub it.
[MS RO]: Yeah
[D]: Yeah.
[MS RO]: How did you know that?
[D]: Well, because I was thinking of it.
[MS RO]: You were thinking of it?
[D]: Yeah.
[MS RO]: Why were you thinking of it?
[D]: Oh because I want to.
[MS RO]: Because you want to think about it?
[D]: …No audible reply…
On page 26 of the transcript, Ms RO suggests to D for the eighth time that he was in the bath at the time of the alleged inappropriate contact by P:
“Okay. Okay, did you see his willy when you were in the bath?”
For the third time D corrects her by saying “I was outside the bath”. Ms RO then says:-
[MS RO]: Outside the bath? When you were outside the bath did you see his willy?
[D]: No.
[MS RO]: No? How did you know it was his willy?
[D]: Because I could feel it.
[MS RO]: You could feel it? Okay. Had you felt something like that before?
[D]: What?
[MS RO]: Did you feel – like how did you know it was a willy though?
[D]: Because [P] had one.
[MS RO]: Because [P] had one?
[D]: Because same as I do.
At this point in the interview, D goes to undo his trousers to show Ms RO what he is talking about. She discourages him from doing that and asks him what does P’s willy look like. D responds by saying that it was the same colour as his. What this passage in the transcript confirms is that D, in this interview, has not said that P was naked at any time when he rubbed his willy on his back. Certainly, the suggestion made in cross examination by counsel for the father that P in some way was slapping his naked penis on D’s back cannot be sustained upon a careful reading of the JIRT transcript.
In my view the confusion has been largely brought about by a misinterpretation by Ms RO of what D initially said to her. It is clear on the evidence that there was a conference between Ms RO and the father prior to the interview taking place. The father’s evidence is that D had told him that things had happened in the bath and that information had been passed onto JIRT. I infer that that preconception was held prior to the interview by Ms RO and it may have influenced the manner in which Ms RO has misinterpreted what D said to her.
At page 28 of the transcript, a third allegation against P emerges in the following passage:-
[MS RO]: Okay. Okay so who can actually touch your willy?
[D]: No one.
[MS RO]: Who is allowed to touch your willy?
[D]: No one.
[MS RO]: No one and does anyone touch your willy?
[D]: Yes, [P].
[MS RO]: [P] touches your willy?
[D]: Yeah.
The question “does anyone touch your willy?” on its face is an open question. However, it comes at a point in the interview where there had been a substantial amount of conversation between D and Ms RO about P rubbing his willy on D’s back. Apart from responding to the question with the answer “yes, [P]”, D gives no other detail as to how this occurred. This is similar to the answer given on page 12 of the transcript that P always tells D to touch his willy. D said that P touched his willy when he was four (page 29 of the transcript). When pressed for further detail (bottom of page 29 of the transcript), none was provided apart from D saying that he had reported this to his mother who had reacted by simply telling P to go to his room. The mother denies that any such thing had been said to her by D.
It was clear that, despite Ms RO’s attempts, D was not able to understand what truth and lies were. The mother however reports that generally D is a truthful boy.
On occasions during the record of interview, D asserts that he drew his mother’s attention to various things and that his mother had taken particular actions.

At page 16 of the transcript, D says that his mother told P not to have any more showers whilst D was in the bath because his mother was aware that P had rubbed his willy on his back. The mother denies ever being aware of any such allegation. Her reaction when she was told by JIRT as to what the allegations were (a screech as recorded by Ms RO in Exhibit E) corroborates, in some way, the evidence by the mother that she had not heard about these things before JIRT contacted her.
On page 17 of the transcript, D reports to Ms RO that he told his mother P had done it and that his mother had said to P “Go away, walk out the door, don’t tell your dad and he will come back to get you and tell him to keep you at the dad’s house”.
At page 21 of the transcript, D tells Ms RO that he told his mother about P rubbing his willy on his back four or five times. The mother denies that anything like that was reported to her by D and I accept her evidence about that.
I note at page 15 of the transcript of the JIRT record of interview that D, seemingly without prompting, says “Mum always gives me baths because mum gives me the yuk dinner and I don’t eat it”. This is reflective of a strongly held view by the father that the mother’s ability to provide for the children’s dietary needs is grossly deficient. It is in my view likely that D is aware of his father’s attitudes in relation to the mother’s food preparation and has taken some of those attitudes on board and repeated them in the JIRT interview.

Second attempted JIRT interview

There was a second interview between Ms RO and D (with his father present) which was attempted on 26 April 2007. The Department does not indicate the purpose of this further interview. D was non-communicative and refused to engage with Ms RO at all on this occasion.

STATEMENT MADE BY D TO CONTACT CENTRE SUPERVISOR ON 23/7/2008

Ms NB, the Department Caseworker who has been facilitating supervised contact between the mother and the children each Wednesday at the S Children’s Contact Centre (following orders made by Collier J on 16 July 2008), has provided a detailed file note of her supervision.
In a file note dated 23 July 2008, as part of a discussion D is said to have volunteered the following in response to a question about what were the names of his half brothers:-
“[H], [E] and [P], I don’t like [P], we were in the bath, mum wasn’t there, he touched my willy and I didn’t like it.”
Counsel for the Department put to Dr A that more weight should be placed upon a statement made by a child spontaneously than statements made by a child in a more formal setting such as the JIRT interview.
Dr A opined that a statement made more than a year after the JIRT interview should not be given particular weight. I agree with that opinion. There is nothing to indicate in the initial JIRT interview that P was in the bath with D. Given Dr A’s other evidence about the possible effect of the father’s mental status, and given that D has been in his father’s care since the JIRT interview, I do not place any significant weight on the statement made by D to Ms NB on 23 July 2008.

CONCLUSION IN RELATION TO THE OTHER ALLEGATIONS ABOUT SEXUAL ABUSE

The mother said that she entertained the possibility that what D was reporting about P in the bathroom was true until she saw the tape for the first time in court.
The mother’s final position was that she thought that something may have happened accidentally between P and D but that it was not malicious.
Dr A in his first report comments that what happened between P and D is a question of fact to be determined by the court and that he would be guided by the court’s assessment of what actually took place. He says his own view, however, is that there is little support for the allegations.
He opines that D may have had different reasons for feeling upset at school in April 2005. D said that he was pinched and pushed at school and later told his mother that a child did not want to play with him. The school record raises no specific concerns apart from general difficulty settling in and making friends.
At the time the incident referred to in the record of interview took place (either before D turned 4 or alternatively before he turned 5) there appears to be no contemporaneous evidence of D being upset at preschool.
Dr A points out that D interacted normally with his father, mother and with N and he did not find him depressed or anxious. Dr A also saw P and recorded that P showed no evidence of persistent anti-social behaviour. I discuss Dr A’s view of the father’s mental state below. Dr A in his second report opines that the father may be paranoid (although he had not reached a firm view about any medical diagnosis). Dr A was concerned that things D was saying were inexplicable unless one assumed that D was being influenced in reaching those views by his father’s attitudes. Having been influenced by his father’s attitudes, it may now be ingrained as his own attitude. An example that Dr A gave (page 6 of the September 2008 report) was where D said that he never wanted to see his mother. That attitude was inexplicable in view of his warm and loving interactions with her at the contact centre and in the observations that Dr A made of D with his mother.
The only independent evidence about anything sexual happening between D and P comes from the JIRT interview. I do not place great weight on the conversation that Ms MN said she overheard, nor on the comment made by D to the case worker over a year after the initial JIRT interview. The JIRT interview was conducted sixteen days after the father said D had made an initial disclosure to him. It is clear that at least on one occasion (4 April 2007) the father had D repeat the assertion that P had touched him. Putting the information in the JIRT interview at its highest, there may have been an occasion on which there was some contact by P when he was clothed where he jumped on D’s back when D was in the bathroom. That may have even happened on more than one occasion. There may have been other occasions during boisterous play where P came into contact with D’s genitals, but that is speculation.
I agree with Dr A’s conclusion that if sexual contact between P and D has occurred, it is more likely to have been innocent and transient rather than persistent and deliberate. I also agree with Dr A’s conclusion that it has not resulted in any direct harm to D, although the consequences of what flowed from the allegations through the legal process have in all likelihood caused harm to both children.
I find that there was never any systemic sexual abuse of D by P. I find that there is no unacceptable risk that D or N are in danger of sexual abuse at the hands of P. I find that it is unlikely that any inappropriate sexual conduct will occur in the future.

OTHER EVENTS DISCUSSED DURING THE EVIDENCE

The incident on the occasion of N’s birth

The mother did not tell the father the date on which N was to be born by caesarean section nor the hospital at which that was to take place. She said the father did know, however, that she was going to the PN Hospital for her prenatal attention. The father found out and attended the hospital shortly after the birth. The father knew that the mother did not want him there. The mother’s friend, Ms L, had been with her during the birth. The father was allowed to take a photograph of N but not to nurse N. The mother says she feared that the father might do something similar to what she said he did in March 2002, when he removed D from her care for three weeks. There was a verbal confrontation between Ms L and the father. The father was escorted from the hospital by security. It is unclear whether it was the hospital or somebody who was with the mother who called security. The father then proceeded to travel to the mother’s home where her parents were looking after D. He had contacted the police who met him there. The father attempted to obtain D from the maternal grandparents. The police told him he needed to obtain a court order.
On the following day the father commenced parenting proceedings at the Parramatta Federal Magistrates Court seeking, amongst other things, that D be placed in his care “in his mother’s absence for the next three weeks”. That application was served upon the mother. It is unclear to me where the mother was when that service took place.

The allegation that the mother brought P into contact with the children after orders were made that she should not

In her affidavit (paragraph 4), Ms MN gives details of an observation that she made when she drove past the mother’s home at about 4:30pm on Friday 5 October 2007. Ms MN said that she saw an adult female standing outside with N on her hip (the mother agrees that she was outside the property with N on her hip at that time). Ms MN said that she had three boys with her. She said that she drove home and told the father. The father showed her photographs. Ms MN says that she identified one of the boys in the photograph and the father informed her that that was P. She said that she was then shown a photograph of H and said that she thought that one of the other boys she saw was probably H and she was unable to identify the third boy.
Ms MN in her oral evidence was far from convincing in relation to this evidence.
The mother denies that P was with her on this occasion. She says that the three boys were H and two of his friends.
P’s father, Mr Baker, gave evidence to say that P was with him at 4:30pm on 5 October 2007, and consequently the assertions made by Ms MN in her affidavit cannot be accurate. P’s father actually says that P was with him between 28 September and 8 October 2007. He was not tested about that when he was cross examined.
Ms MN’s oral evidence was that she had never seen P before this day and that her observation of him was only from the side, and she then saw photographs. She conceded that if there is evidence from someone else that P was somewhere else, then the boy she saw must have been someone else of the same age. That was a concession she made easily. I conclude that Ms MN got the identification of P wrong.
The father is not prepared to accept that Ms MN jumped to conclusions and got it wrong. He would prefer to believe that there was some type of ulterior motive at play that has led to P’s father giving the evidence that he has.
Based on this alleged identification by Ms MN, the father decided to inform the mother orally that he did not intend to comply with orders to which he had agreed only about a month before (on the basis that he was asserting that the mother had breached a condition of those orders to which she had agreed– namely not to have P there). The fact that the father did this is conceded in a letter that his solicitors wrote to the mother’s lawyers in December 2007 (see annexure E to the father’s primary affidavit sworn 9 October 2008). In that letter the father says:
“One of our client’s friends witnessed your client with [N] and [P] in the driveway of her home in October 2007. [N] and [P] were in close proximity to each other.”
The father in October 2007 told the mother orally that she could see the boys at a Sydney Contact Centre, supervised on a fortnightly basis. He did not however make any application to the court to change the consent orders that he had agreed to only shortly before.

Looking through the window

The father gives evidence about an occasion when he went to the property where the mother was for the purposes of removing a shed by agreement. He said that when he arrived he found it strange that D had not come out to see him. He said he looked through a window and saw E barricading the door by putting his feet against it and bracing himself against the bed, and H holding D down on the bed. He interpreted this not as normal game playing but as a situation where the mother had given H and E instructions to restrain D from going out to see his father. The father gave evidence that he shouted through the window for the boys to stop. He then went around to the front door and complained to the mother. At that time he says that he had video taped the incident.
The mother confirms that she locked the doors and drew the blinds and told the boys to go and play in a room. Her evidence is that D was unaware that his father was coming to the property on this occasion and she did not want him to know. I accept that the mother told the boys to go and play in the room. On balance I am of the view that what the father saw was the boys playing, as opposed to any deliberate attempt by the boys to restrain D from seeing his father.

DR A’S REPORTS

Dr A has prepared two reports, one dated 15 January 2008 and another dated 14 September 2008.
In the first report, putting aside the sexual abuse allegations, Dr A did not have concerns regarding the mother or the mother’s family. He said that there appeared to be good relations between the siblings in the mother’s home, with the mother providing appropriate care and supervision of the children. He commented positively on the way P, H and E presented at the interview, providing consistent accounts. As I note above, Dr A said that P showed no evidence of persistent anti-social behaviour and that he appeared to be growing up well.
Dr A concluded that there was no evidence to support the father’s concerns about the mother’s family. Dr A noted that the mother was providing appropriate parenting and the children in her care were developing normally. He also commented that they were grieving at the loss of D and N from their household.
In Dr A’s second report he comments that N and D do not seem anxious, frightened or fearful in the mother’s company and that they enjoy seeing H and E. The mother presented as calm, settled and cooperative, and there was no evidence of anxiety or depression. She expressed appropriate concerns for the children.
In his second report Dr A notes that the father is being treated for depression with Avanza 60mg, has been prescribed sleeping tablets and required a psychiatric hospitalisation earlier in the year.

THE FATHER’S MENTAL STATUS

The father says that he is fearful for his safety. He says that his house and car have been hit with rocks and eggs and there have been other incidents of damage to his car, such as brake fluid being poured over it. He says that these attacks have occurred at night and that he stayed up waiting for attackers.
Dr A reported that the father presented as angry, agitated and abrupt in the second interview with him. He was obsessively ruminating over the allegations, although later in the interview settled down and was calmer. Dr A concluded in his first report that the father did not have a mental illness. He revised that opinion in the second report and opined that the father may well have a paranoid disorder (without detailing what that disorder might actually be). He is concerned that part of that paranoia involves a belief that the mother may be orchestrating attacks on him.
That the mother would behave in such a way is in my view unlikely. She presented as a caring person who has in fact shown a willingness to allow the father to see the children. The mother said that she moved away to M in part to put distance between her and the father. It is unlikely that she would be orchestrating any attack against him of the nature described by the father.
There were two pieces of evidence given by the father which I found slightly unusual:-
222.1.The father gave evidence that he had caught N fondling himself (N is still only 2 years and 5 months old). As a result, he used velcro to tie up N’s nappy and pilcher, creating in effect a chastity belt so that N could not fondle himself.
222.2.When D complained that his mother may be able to hear them through the drains at the father’s home, the father went to the other side of the street and spoke into the drain, having N at the other end of the drain listening, to demonstrate to N that it was not possible for his mother to hear them through the drains.
There was no reference in the father’s affidavit material to his hospitalisation in the psychiatric institution. That was discovered during the subpoenaing of material. Despite Dr A taking history from the father in relation to his earlier years (see background on page 5 of Dr A’s first report), the father failed to mention to Dr A that which the father now asserts, namely, that he was sexually abused as a child. The father has had one session with Dr G, a psychiatrist; his GP has prescribed him anti-depressants, but it is unclear what other treatment the father has had. He has sought prescriptions for valium for the purposes of assisting him to sleep. The evidence about the father’s use of alcohol is slightly obscure. The father himself in oral evidence said that he now had perhaps two or three glasses of wine a night, but they were watered down with a mixer. Other information would indicate that at some points the father’s use of alcohol has been higher than that.
The father on more than one occasion has had suicidal ideation. Exhibit G contains material produced on subpoena by PN Hospital, including a two page NSW Health document entitled “Discharge Summary” and dated 18 June 2008. On page one of the document under the subheading “reason for referral,” it is noted that the father complained of “suicidal ideation and depression due to complex social stressors.” On page two of the document under the subheading “psychiatric diagnosis,” the “diagnosis that was the Focus of Care for this episode” is noted as being depression and suicidal ideation. In a letter from an intern at the Area Health Service to the Emergency Department at PN Hospital dated 16 June 2008, it is noted that the “patient requested to be seen by the mental health team as he was feeling very depressed and experiencing suicidal ideation.”

Information from other professionals

Ms PR’s counselling was predicated on the assumption that sexual abuse had taken place. Consequently, Ms PR gave no consideration to the other matters that might be affecting D’s behaviour, including the separation from his mother.
The affidavit by Dr Z, paediatrician, cleared N in relation to any serious physical developmental delay. Dr A, however, still had concerns about N’s emotional development, particularly since he had been removed from his primary carer when he was six months of age.

THE MATTERS I MUST CONSIDER

The interim orders I have made, mostly in the end by consent, are orders which I consider to be in the best interests of the children.
To determine what is in the child’s best interests, I must primarily consider two things and additionally consider 13 other things.
The primary considerations are:
229.1.the benefit of the child having a meaningful relationship with both of the child’s parents and
229.2.the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.
I will deal below with the additional considerations using headings. Although I have considered them all, I only refer to those which I consider relevant in this case.
First I will focus on what I must primarily consider.

PRIMARY CONSIDERATIONS

Meaningful Relationship

Both children will benefit from having a meaningful relationship with both their parents. At the current time however, I accept Dr A’s opinion that the relationship the children have with their father needs to be monitored for the purposes of ensuring that the father’s fears and anxieties concerning the mother’s ability to care for the children are not recycled to the children.

Protection from harm

In this case, at the time of making interim orders in November 2008, the opportunities to allow the maintenance and development of a meaningful relationship between the children and their father needed to be constrained because of a counterbalancing need to protect D from harm from being subjected to or being exposed to abuse, neglect or family violence.

Dr A in his first report comments that he found no evidence of the children being harmed in either parent’s household, apart from the harm to their relationship with their mother and their siblings as a result of their change in residence (Dr A’s first report). By September 2008 however, Dr A had concerns about the father’s mental state and the effect on the children, and particularly on D, of fears and anxieties the father may have.

ADDITIONAL CONSIDERATIONS

Views

D wanted to live with his father and to spend some time with his mother. He described his fear of his mother and P. As I have found, there is no unacceptable risk of D being harmed when he is with his mother. D’s expressed views are inconsistent with the behaviour he displays when he is observed with his mother, both by Dr A and in the contact centre notes. I place little weight on D’s expressed views, not only because of his age but because of the history which has led to D expressing those views.

Relationships

D has a good relationship with his siblings, apart from reporting his fear of P. Both parents are affectionate towards D and N.

Willingness of parents to facilitate relationships and maintain child

The mother has shown a willingness to encourage the children’s time with their father. I am less than satisfied that the father, at the time of making the interim orders, had an equal capacity to encourage the children’s contact with their mother. The father has on occasion shown a reluctance to encourage the children’s time with their mother and has taken the children away or stopped the children from seeing their mother on a number of occasions. These occasions have been associated with some anxiety or fear that the father has, which I have found not to be well founded.

Effect of change

This litigation has already brought about one significant lot of change in the lives of the two boys. A reversal of the current situation will mean another change. Dr A was of the view, however, that that change was necessary and in the best interests of the children. What in effect was proposed by Dr A is a complete reversal of the situation as it existed in November 2008, so that the children went and lived unsupervised with their mother and saw their father on a supervised basis (as opposed to it being the other way around). That change cannot happen without some effect on the children. I do however accept Dr A’s opinion that that change is necessary and not to effect a change will not be in the children’s best interests.

Difficulty and expense of time

There is no evidence that the time the children will spend with their father cannot be practically implemented.

Capacity to provide for child’s needs and attitude to child and to responsibilities as parent

Up until November 2008, the mother’s parenting capacity has been brought into question by the Department. At the commencement of this case, the Director’s preliminary position was that the evidence disclosed an unacceptable risk of P having sexually abused D and the mother being uncaring about that happening. The Department in April 2007 asked the mother to remove P from her household. P was doing the school certificate at that time and she saw no need to take the action the Department recommended. As it turned out, she was correct. I do not see any reason to accept the view that the mother was uncaring because she did not accept that D was at risk in her household as a result of behaviour by P.
The mother has demonstrated a greater parenting capacity than the father.
The mother has raised three well balanced boys, in addition to the two children the subject of these proceedings, and has demonstrated significant parenting capacity to do so. Dr A observed the mother interacting with D and N in a loving and affectionate manner.
The father complained that the children did not receive an adequate diet in the mother’s household. The father said he had learned to cook special meals which D in particular enjoyed. There is, however, no objective evidence to indicate that the children in the mother’s household are undernourished or that the mother does not appropriately provide for their physical needs.
Notwithstanding the fact that D and N have not been living with her all the time, the mother was very aware as to what D was doing at school. She was able to give clear evidence that D had only missed one term of school in 2007 whilst the father was very unclear about that and accepted a suggestion that it might have been possible that D had missed two terms at school.
It must be said that the father seemed to have put considerable effort into attempting to improve his parenting skills and he is engaged in a number of organisations and programs for that purpose (Springfield, Burnside, Brighter Futures, the DoCS Help Line and the like).
However, he still relied upon others to assist him with parenting. He has had considerable problems with D’s bed wetting. He relies upon Ms MN to settle D after D comes back from seeing his mother on mid week visits and recently a routine has been put in place whereby D will go to Ms MN’s house to sleep.
The mother demonstrated on a number of occasions her pragmatic and simple approach to parenting, whereas the father’s attention to detail at times was lacking.
I find the father was not able to contain his anxiety and upset at all times and this has affected his capacity as a parent.
The father had the children stay half the school holidays in April with his sister and for other periods of time with his sister and with other people.

Family violence

There is no indication in this case that family violence is an issue, apart from the allegations of sexual assault by P on D.

Family Violence Orders

There is no current family violence order. JIRT originally contemplated obtaining an AVO but did not proceed. The father took proceedings to obtain an AVO as referred to earlier in these reasons.

Order least likely to lead to further proceedings

The father commented that as a result of what he had been told, he expected D to continue to make new disclosures in the years to come about sexual abuse in his mother’s household.

Conclusion in relation to best interests

Taking into account the matters I must consider, I conclude that the interim orders, that were substantially agreed upon between the parties, are in the best interests of the children.

I certify that the preceding two hundred and fifty-three (253) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.

Associate:

Date: 28 July 2009

[2009] FamCA 658

28 July 2009

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