YALSBURG & YALSBURG

[2018] FamCA 174

FAMILY COURT OF AUSTRALIA

YALSBURG & YALSBURG [2018] FamCA 174

FAMILY LAW – CHILDREN – Allegations of sexual abuse – assessment of risk – where there is no finding of unacceptable risk in respect of either parent – orders made in the best interests of the child on an interim basis.

Family Law Act 1975 (Cth) ss.60B, 60CC, 61DA

Betros & Betros [2017] FamCAFC 90
Goode & Goode [2006] FamCA 1346
Stott & Holger & Anor [2017] FamCAFC

APPLICANT: Mr Yalsburg

RESPONDENT: Ms Yalsburg

FILE NUMBER: BRC 10819 of 2016

DATE DELIVERED: 23 March 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 12, 13, 14, 15 and 20 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr T Jordan

SOLICITOR FOR THE APPLICANT: Slater & Gordon - Birtinya

COUNSEL FOR THE RESPONDENT: Mr N McGregor

SOLICITOR FOR THE RESPONDENT: JC Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr B Dodd

INDEPENDENT CHILDREN’S LAWYER: Ms N Davies, Legal Aid Queensland

Orders on an interim basis pending further order:

1. That all previous Orders and Parenting Plans be discharged.

2. That the parents have equal shared parental responsibility.

3. That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision.  They are not, however, required to consult with each other about the daily care of the child, B born … 2013 (“the child”).  The types of decisions about which parents are required to inform and consult include but are not limited to changing the child's name; relocating the residence of the child so that existing parenting arrangement become impracticable; changing the child's school; a significant medical intervention for the child.

4. That the child live with the mother.

5. That the child spend time with the father:

   (a)for four (4) occasions from 9.00 to 4.00pm on four (4) consecutive Saturdays, the first and third Saturdays to coincide with time the father spends with C and D, to commence on the first such Saturday after these Orders;

   thereafter:

   (b)For four (4) alternate weekends from 9.00am Saturday to 4.00pm Sunday; then

   (c)For four (4) alternate weekends from 4.00pm Friday to 4.00pm Sunday; then

   (d)For the remainder of 2018 on alternate weekends from 4.00pm Friday to before kindergarten on Monday;

   (e)For two (2) one (1) week blocks in December 2018 and January 2019;

   (f)From commencement of the child’s preparatory year in 2019:

   (i)on alternate weeks from after school Thursday to before school Monday, or Tuesday if Monday is a public holiday and these arrangements stop during school holiday periods and recommence on the first weekend after school resumes; and

   (ii)for one (1) half of the gazetted school holidays;

6. Subject to the conditions imposed by the child’s schools, these Orders authorise both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.

7. That each parent shall ensure that the child attends all educational, sporting and hobby events when the child are with that parent in all reasonable circumstances.

8. That the parents shall keep one another informed of matters concerning the child via a communication book that travels with the child at the commencement and conclusion of any time spent with the child on all aspects of the care, welfare and development of the child, such as schooling, extra curricula activities, medical issues and any other issues that may arise with respect to the child.

9. That each parent keep the other parent informed at all times of their residential address and contact telephone number and to notify the other parent at least seven (7) days prior to relocating their residence beyond a twenty (20) kilometre radius from where they currently reside.

10. That the parents be restrained and an injunction issues restraining the parents from:

    (a)physically disciplining the child;

    (b)discussing; questioning or otherwise encouraging the child to discuss adult issues of conflict raised during the trial, and in particular past allegations of alleged abuse whether sexual or otherwise;

    (c)denigrating or making hurtful comments about the other parent and the other parent’s family and partners in the presence or hearing of the child; and

    (d)recording by phone or other device the words or actions of the child other than playing, and in particular, for the purpose of establishing alleged disclosures or negative remarks about the other parent.

11. That if either parent claims the child has made any remark that suggests inappropriate behaviour by the other parent, they shall, within twenty four (24) hours, advise the Independent Children’s Lawyer in writing by email.

12. That the child attend upon Ms E as recommended by the Independent Children’s Lawyer, and that the mother and the father participate in the counselling/therapy as recommended by the treating practitioner and share the costs equally.

13. That the Independent Children’s Lawyer be at liberty to provide the Court’s Reasons for Judgment to the child’s treating practitioner, to the counsellors for the mother and the father, to the Department of Child Safety, Youth and Women and to the Queensland Police Service.

14. That the mother and the father make arrangements for the child to be enrolled in an alternate Early Education Program to that run by F Group.

15. That the final order Application and Response be listed for Directions before the Honourable Justice Baumann at 9.30am on 29 October 2018.

16. That the Independent Children’s Lawyer be at liberty to apply to have the matter re-listed on the giving of three (3) days’ notice to the parties.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10819 of 2016

Mr Yalsburg

Applicant

And

Ms Yalsburg

Respondent

REASONS FOR JUDGMENT

introduction

1. The child B, soon to turn five years, has spent less than 10 hours of time (all supervised) with his father and no time with his older siblings at all since September 2016.

2. At that time, the parents having separated some 12 months earlier in September 2015, the mother formed the view that the father had sexually abused their son.

3. As the history set out in these Reasons reveals, that belief (which the mother maintained at the hearing of these proceedings), was the catalyst for a range of investigations and therapy.  Even when supervised time was ordered and then began in March 2017, it only resulted in five visits before time again ceased in May 2016 in regrettable circumstances.

4. The reasons which follow seek to deal comprehensively with the allegations of sexual abuse and then the orders which the Court concludes are in the child’s best interests at this time.

short history

1. Statements of fact which follow should be construed as findings of fact.

2. The father was born in 1974 and the mother in 1982 and they were aged 35 years and 27 years respectively when cohabitation commenced in December 2009, having met at a local church.

3. After marrying in July 2010, the couple moved to G Town.  In so doing the father moved a further distance away from his Brisbane based children, C (now aged 15 years) and D (now aged 12 years) who lived with their mother, but spent regular time with him by arrangements between those parents.

4. The child was born in 2013 and was around 2 ½ years of age when his parents physically separated in late 2015 after a period of a month or two of separation under the one roof.

5. Initially post separation the child spent time with the father each alternate weekend (including Saturday night), however after the sale of the former family home in April 2016 which resulted in a parenting plan (dated 22 June 2016), the child began to spend additional unsupervised time with the father from early July 2016 – essentially each alternate weekend from 3.30pm Friday to 5.00pm Sunday.  I am satisfied that many (if not most) of these weekends since separation was at a time that C and D were also in the father’s care, allowing the siblings to maintain and develop the relationship that I find had been established since the birth of the child.

6. After spending the 2016 Father’s Day weekend with the father (which ended on Sunday, 4 September 2016), the mother says the child made a disclosure to her which she interpreted as asserting the father had sexually abused the child.  In a later section of these Reasons, I deal with the events from that date more fully.

7. Sadly however, after 4 September 2016, the child spent no time with the father (save for a brief but warm interaction at family report interviews on 30 November 2016), until a visit at the Children’s Contact Centre on 18 March 2017 – some six months after unsupervised time had stopped.

8. Those visits, despite some earlier attempts to organise time by negotiation between solicitors, arose from a consent interim order made by Judge Cassidy of the Federal Circuit Court on 6 February 2017, the father having filed an Application in that Court on 14 November 2016.  Her Honour, aware of the sexual abuse allegations, transferred the proceedings to this Court.

9. After five two hour sessions, on 27 May 2017, the Director of the Contact Centre gave notice to both parties that the Centre’s services were withdrawn.  The event surrounding that decision was the subject of evidence and cross examination of two workers at the Centre – “Ms FF” the Centre Director and “Ms KK” the volunteer supervisor on 27 May 2017.  The evidence I heard clearly demonstrates that there was no proper basis on the observations made on 27 May 2017, to cease time, noting, of course, that the decision was entirely a matter for the community organisation who offers such services.  Sadly again, the time the child was spending with his father was stopped, and another nearly nine months has elapsed since the child saw his father – or his siblings.

10. Thankfully, Senior Registrar Spink, when the matter came before him on 25 July 2017, saw the urgency in the situation and gave it the earliest hearing date available of 12 February 2018, when evidence was taken and tested over the following four days and then with submissions made by the experienced Counsel:

    -    Mr Q of the father;

    -    Mr McGregor for the mother; and

    -    Mr Dodd for the Independent Children’s Lawyer.

11. During those final submissions on 20 February 2018, the parties’ initial proposals were refined and are set out next, which represent the competing proposals of the parties.

competing proposals

1. Although the parties had identified in their filed Case Information summaries their preferred orders, as often arises, the testing of evidence allows parties to consider their proposals and preferred options.

2. Later in these Reasons, I discuss the competing proposals and identify why the orders the Court has made are in the best interests of the child at this time.  However, it is proper to record the proposals advanced during final submissions on 20 February 2018 as follows.

   Applicant father

   a)The father’s proposals are Appendix One to these Reasons, marked Exhibit 22 at the hearing, and begin with the proposal for equal shared parental responsibility with three options for time with the parents, namely:

   i)the child live with the father and after one month to “settle in”, the child shall spend six months supervised time with the mother to be followed by alternate weekend unsupervised time (Friday to Sunday) and half of school holidays;

   ii)The father’s second preference is for the initial settling in period and then six months supervised for the mother to be followed by week about time; and

   iii)The father’s last preference would see the child continuing to reside with the mother; with the father’s time increasing over alternate weekend blocks of five visits to alternate weekends 3.00pm Friday until commencement of school the following Thursday before becoming week about from the commencement of term two in the child’s prep year being 2019.

   b)Additionally, the father seeks orders as to special days, changeover and exchange of information as set out at paragraphs 8 to 18 of Appendix One.  As I explore further in these Reasons, the father vigorously contends that the only way the child can have a relationship with both parents, is for an immediate and continuing change of residence to the father.

   Respondent mother

   a)Entirely consistent with the mother’s case that the father is an unacceptable risk of harm to the child (a position valiantly argued for by her Counsel Mr McGregor on his clear instructions), the mother, despite all the evidence, continued to propose that:

   i)Her preference is for the child to live with her; spend no time with the father and that she have sole parental responsibility; and

   ii)Her alternate, but clearly second preference is for the father to have supervised time, with Mr McGregor not being able to articulate, on behalf of the mother, what event, timetable or catalyst the mother says would need to occur before she would be able to agree to unsupervised time.

   b)Despite the Court raising its concerns about the difficulties for long term supervision orders (see for example Betros & Betros [2017] FamCAFC 90 at [13]), no proposal was advanced by the mother as to when or how time would move to unsupervised time. The mother’s proposals are articulated in her Case Information summary and, for completeness are attached as Appendix Two to these Reasons.

3. Suffice it to say, that although the mother says she would comply with orders for the child to spend unsupervised time with the father, she would not support those orders.  I sense that the mother was entirely unable to contemplate any likelihood that the child would not live with her.

The Independent Children’s Lawyer (“icl”)

1. Two separate alternatives were advanced by the ICL (see Exhibit 32), namely:

   a)The first and preferred option was for the Court, on an interim basis, to order that the child continue to live with the mother and then, as set out in Appendix Three, graduating increasing unsupervised time would occur between the child and the father from four consecutive Saturdays (9.00am to 4.00pm) eventually to alternate weekends from after school Thursday to before school Monday and half of holidays from the start of the 2019 school year.  In this scenario the parties would have equal shared parental responsibility, and after six months (and before a final order is made), the matter would return to the list before me; and

   b)The second, less preferred option (marked Appendix Four), is for final orders, with the child to live with the father; for the father to have sole parental responsibility and the mother’s time to be unsupervised increased after eight three hour weekly visits (after one month of no time) to eventually alternate weekends and from Thursday to Monday and half of school holidays from the commencement of the 2019 school year.

2. As might be expected, considering the parents’ preferred proposals, neither parent embraced the alternatives contended for by the ICL.

3. There was one issue upon which they all agreed – and that was for the child to have a new counsellor/therapist who is fully informed of all the findings (on the evidence) made by this Court.  The Court indicated, if orders are made that involved any time occurring with both parents, then counselling is indicated (see paragraph 9 of the ICL’s proposed orders), and the ICL provided some names to the parties.  After submissions, the Court was informed that the parents agreed to share equally the costs of visits to therapist Ms E, one of the persons suggested by the ICL - who is able to commence therapy on or about 5 April 2018.

4. As is apparent from the competing proposals, there are only a few areas of agreement and they do not involve the core issue of where the child should live and what time (and in what form), the child should spend time with the non-resident parent.

legislative pathway

1. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

2. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

3. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

4. In Goode & Goode [2006] FamCA 1346 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.

5. Before I make findings within the matrix of the relevant s.60CC(2) and s.60CC(3) considerations, it is helpful to make some findings about some important issues that arise on the evidence – beginning with the major issue of whether the father presents as an “unacceptable risk” to the child.

does the father pose an “unacceptable risk” to the child?

1. As previously noted, the mother’s allegations, she says based on the child’s disclosures and behaviour, have confirmed to the mother that the father did sexually abuse the child.  During her testimony at the trial, the mother’s formed, I would find entrenched, view about the father’s conduct was restated on more than one occasion.

2. It is worth noting that the father in this case is not said to have been involved in any adult sexual behaviour from the mother’s testimony of concern to her (e.g. use of pornography; extreme sexual practices etc.).

3. The mother of the father’s two teenage children from his prior relationship (a girl now aged 15 years and a boy now aged 13 years) gave evidence that her co-parenting of those children with the father never raised any issues of concern, and they have been separated for many years.  It is within this historical context that the allegations, evidence and findings which follow are to be assessed.  Before doing so, I incorporate in these Reasons the recent statement of principles from the Full Court (Thackray, Kent and Watts JJ) in Stott & Holger & Anor [2017] FamCAFC 152 which guide the exercise of my discretion:

   [34] The “unacceptable risk” test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed as follows in M v M (1988) 166 CLR 69 where the High Court said at 78:

   In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.  To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   [35] The “unacceptable risk” test applies also to other forms of risk, including risks to children associated with exposure to family violence: A v A (1998) FLC 92-800 at 3.15 and 3.25; Amador v Amador (2009) 43 Fam LR 268 at [89].

   [36] In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:

   the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”.  In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

   [37]     As an eminent former judge of this Court has said (emphasis added):

   … unacceptable risk in the High Court’s formulation requires two separate steps.  Is there a risk, and is it unacceptable?  The concentration by the High Court is upon both the nature and the degree of risk in the particular case.  Its formulation is all about balance.  In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.  The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …

   [38] We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).

1. There are so many “events” that form part of the history in this matter since early 2016 that the Court has decided to select for analysis the majority of significant events.  These Reasons do not purport therefore to record every event that was referred to in the evidence.

2. The findings in respect of some of the events are relied upon in respect of other discrete issues which I further explore in these Reasons.  When dealing with the two s.93A Police interviews and many of the video recordings by the mother of the child (which are included in the USB marked Exhibit 19), I indicate that apart from viewing the recordings in Court during the trial, I have also viewed them again in chambers.

3. Although, in final submissions Counsel for the mother submitted that he could not, on the evidence, assert sexual abuse had occurred, he expressly contended, consistent with his instructions, that the father presents as an unacceptable risk to the child without particularisation.  Counsel for the father contended that a finding should be made that no sexual abuse has occurred and no finding that the child will be at any unacceptable risk in the father’s care (urging, in fact, that the child will be at unacceptable risk of psychological harm if he continues to live with the mother).

4. Counsel for the ICL submitted, for reasons explored later in these Reasons, that the Court should find that the child is not at unacceptable risk of harm in the father’s care.  Unless otherwise stated, a reference to a paragraph in the mother’s Affidavit in the following paragraphs 35 – 87 of these reasons refers to her Affidavit filed 3 February 2017. Paragraphs 35 – 87 provide discussion/findings by Event/date.

5. 9 October 2015 - The mother says the father expresses thoughts of suicide.  I accept the father was depressed at the time with the relationship breaking down and the mother trying to cope with the suicide of her own father some four weeks earlier.  The mother says she separated “under the one roof” on 22 November but physically left the family home with the child on 10 December 2015.  Dr H, in his report, was aware of the father’s depressed mood at that time (which the father acknowledged) but does not regard it as significant now.  I agree.  The parties attempted marriage counselling with Ms J which was not successful.  It also seems the mother was not happy that the father had agreed to spend four weeks of the Christmas school holidays in the house with his older children.

6. Early 2016 - The mother asserts this is when she “first started to become concerned about the child” (paragraph 66) because she alleges these words were repeated a number of times after picking the child up from the child’s weekend with the father.  The comments alleged included:

   “I am scared of daddy”

   “Mummy I need you”

   and on one occasion

   “daddy can’t get me here”

   These comments were not raised by the mother with the father at the time.  Visits with the father continued (without orders) and, as set out below, increased in duration.  No context for this comment is provided, including the discussion taking place at the time between the child and the mother.

7. February 2016 - The mother asserts (at paragraph 69) that the child made comments that “he did not want to go back to Daddy’s”.  The mother says the routine in the father’s home was different (e.g. no daytime nap) and that the father “smacked” the child.  The father acknowledged in cross examination he had used physical discipline that was minimal and appropriate at times, but does so no longer.  I do not regard, in these circumstances, the child’s comments as concerning; reflecting nothing more than some separation anxiety from his mother.  At around this time, the father was preparing the family home for sale and had indicated an intention to move back to Brisbane from G Town.  The father says this made it difficult for him to spend as much time with the child as he wished.  The mother criticised the father for his comments, and says it reflects a lack of interest by the father in the child.  I do not agree with the mother, but accept some adjustments were occurring in the parties’ relationship with separation only having occurred in early December 2015.

8. April/May 2015 - The father, then the mother and the child move back separately to Brisbane.  On 24 April 2016 the mother contacted an after-hours doctor because the child complained of a “sore stomach”.  The father conceded the child was not sleeping well and was expressing opposition to wearing a nappy (being a “big boy now”).  The child had, I find, been asked to deal with a lot of changes over six months.  In May 2016 he was only three.  It seems hardly surprising that this little boy was finding it hard to adjust to the changes in his parents’ relationship and the places he was living in.

9. 30 May 2016 - With property matters still being negotiated, solicitors for the mother wrote a letter to the father’s solicitors on 30 May 2016 (see Annexure “BDY-11”).  Although the mother asserts (at paragraph 73) that “throughout the first half of 2016 the child started complaining to me ‘I have a sore bottom’ on the night arriving back from his father’s”, no mention of this issue is made in the letter of 30 May 2016.  I find the mother’s assertion of the frequency of this comment by the child, as exaggerated, and inconsistent with other evidence of the mother that by mid-June 2016 (when only a third complaint was said to be made) and that she became “concerned”.  The reasons the mother gave in the letter for being cautious about moving forward and increasing time too quickly was said to “arise predominantly from her concern about your client’s state of mind”.  The nine reasons then articulated assert the foundation for the mental health “concerns”.  They were not seriously put to the father in cross examination; are not generally supported by the evidence of Dr H and are not accepted by the Court.  More concerning is that the mother, on her evidence by around this time, was having concerns that the father may be sexually abusing the child but:

   a)never raised her concerns;

   b)never said the concerns arose from alleged exposure of the father to sexual misbehaviour by a teacher of his years ago;

   c)felt the father had, again some time earlier during the relationship, entered the bathroom when his older children were showering was somehow significant;

   d)and ultimately, despite these stated and unstated concerns, facilitated and agreed to an increase in the time the child spent with his father to two nights each alternate weekend from early July 2016.

10. This inconsistent behaviour by the mother is troubling, if, as she asserts, she is a “highly protective” mother.  Her evidence that she was trying to do the best thing for the child is, at best, confusing.

11. July 2016 - The mother withdrew the child from kindergarten as he was not coping, and the child was not returned for some weeks.  I accept that the child’s behaviour was becoming more difficult to manage at the same time.  I find the mother was regularly examining the child’s bottom when he returned from the father’s home and was concerned enough on 14 June 2016 to attend upon her General Practitioner (K Medical Centre) because “his anus was not closing properly for up to one week after coming home” (paragraph 76).  There is no evidence by the General Practitioner of any concern of the doctor.

12. 2 September to 4 September - This was the Father’s Day weekend.  The child had, with the assistance of the mother, prepared a Father’s Day card in the shape of a tie (see Exhibit 18) that included questions and answers.  The mother asserts that the answers the child gave were concerning.  In my view, the mother’s evidence about the words “nappy” and “cuddles” was a nonsense.  Her assertion that the father’s body language “shifted” when he read the card (which is denied by the father) is similarly rejected.  The card is otherwise the sort of card any father would be happy to receive – as the father was.  The mother “facetimed” the child every day.  The father says, and I accept, the weekend (spent in the company of the child’s older siblings) went well.  Sadly, as the history reveals, that weekend of enjoyment in September 2016 has been the last occasion for the child to spend any unsupervised with his father and any time at all with his siblings C and D.

13. 6.30pm 4 September - The child returned to the mother’s care at around 5.00pm on Sunday.  At paragraphs 90 to 92 of her Affidavit the mother describes the behaviour, words and her reaction leading up to her decision to take the child to the Emergency Department at the L Hospital – arriving at around 7.24pm that night.  It is not necessary to incorporate this evidence in these Reasons save to make the following findings:

    a)The child said his bottom was “sore” when he was on the toilet;

    b)After he had been to the toilet the mother observed his bottom “was so red and inflamed” covering an area of around two to three centimetres.  The mother says she asked the child why his bottom was sore and he said “I can’t tell”;

    c)When she laid the child on the floor to put cream on his bottom for relief, the mother deposes that the child’s bottom “opened up” and she could “see about two inches up his bottom”.  The child then lost control of his bowels (having already done “two normal poos” in the toilet); and

    d)The mother then says at this time, the father sent her a “random text message”.  The mother asserts the message should be seen as suspicious and, somehow, confirming some strange behaviour by the father.  I find it was entirely coincidental and not a cause for concern at all.

14. The Court has no way of knowing what other conversations took place between the mother and the child after he returned to the mother’s home or on the way to the hospital.  On all the evidence in this case, I cannot be satisfied (in fact I regard it as likely), that conversations took place on the way to the hospital.  On the mother’s own evidence, before she arrived at the hospital, the child made no disclosure to her that connected the child’s sore bottom with any conduct of the father.

15. 7.24pm 4 September 2016 - The sources of evidence, available to the Court about this event at L Hospital, some of which was the subject of cross examination are:

    a)the mother’s testimony (paragraphs 93/94);

    b)the written report of the consulting Dr M (see Exhibit 14); and

    c)the notes from the Hospital records.

16. In his final submissions, Mr McGregor for the mother, described this event as the “seminal” event – a description disputed by Mr Q for the father.  I regard it as a very important event because it was the first occasion that the child is said to have directly connected the “sore bottom” he was experiencing on that day with actions of the father.  As I seek to demonstrate, I am not satisfied that this is the case as the mother believes to be so.  I make the following findings:

    a.The mother expressed concerns to the doctor about possible sexual abuse and made allegations against the father of being sexually abused as a child; being an alcoholic; suffers from depression; has ADHD and has been suicidal in the past – similar allegations raised in her solicitor’s letter of 30 May 2016;

    b.On examination the anus appeared normal with “no redness at the moment”.  It is not explained how, in less than 60 minutes from the mother’s first observation, the “redness” had receded;

    c.The comment by the child to the doctor, when asked “if he had hurt himself” was, according to the report “dad did it”.  The report says that when the doctor asked him what happened, “he began to speak about his step brothers and a game of ball that they were playing”.  The mother disputes the accuracy of the comment “dad did it” and says, in her presence and with the doctor present, the child said “daddy hurt my bottom”.  The mother’s evidence is that the doctor simply failed to record the comment accurately.  The mother could have called Dr M as a witness – but did not.  The mother cannot explain why the written report uses exactly the same words as the handwritten clinical notes.  I do not accept the mother’s evidence on this point.  I find that in the presence of the doctor he said “daddy did it”, but that the words were associated with the game being played with his siblings;

    d.At paragraph 94, the mother gives details of a discussion she had at the hospital with the child after the doctor left the room.  The doctor properly summarises what the mother told her of the disclosures the mother asserts were made, however I am not satisfied the comments were made by the child, and further if made, I am of the view that the mother’s questioning lead the child to give answers the mother now relies upon:

    1.e.g. “if dad had hurt his bottom lots of times or only a little”

    e.In circumstances where the examining doctor found no evidence of sexualised behaviour or abnormal examination, but where it must have been apparent to the doctor that the mother still held concerns, the doctor suggested the mother present her concerns to the Police Child Protection Investigation Unit (CPIU) “which will have someone appropriately qualified to document for legal purposes”;

    f.In light of the previous findings and evidence, I am unable to explain the use of the phrase “the diagnosis was CHILD AT RISK” in the report, however I am certainly satisfied the mother latched on to that comment as confirming the child was at risk, irrespective of that statement not being consistent with the report.  No one sought to have this confusion clarified by Dr M;

    g.After the visit to the Hospital, the mother (at paragraph 95) says the child acted aggressively when she tried to put on his nappy and said he was going to “kill you” and that “I’m not going to love you anymore” which, understandably upset the mother.  After an apparent restless night, the mother the next morning engaged in further discussions with the child.  When on the toilet, the mother appears to have decided to begin her conduct of video recording the child - often when on the toilet.  The video recording made at 7.30am on 5 September 2016 forms part of Exhibit 19.  The mother sets outs at paragraph 97 her “translation” of the child’s words, however having carefully viewed this recording I find:

    i)often the child is difficult to understand – consistent not only with his age but also his acknowledged language difficulties.  I accept the mother is probably better than anyone in understanding what words he might be saying;

    ii)the questioning by the mother is intense and inappropriate, seeking to lead the child to an answer:

    e.g. “Did your bottom start hurting the first night at daddy’s or the second night?”

    iii)whilst sitting on the toilet, this child, in my view, was making statements (according to the mother) about a knife being present; some use of a crayon to explain what made his bottom sore that “It’s big and it’s really strong with hard voice and it can hurt roundabout with this crayon”.  He is seen with a crayon in his hand at the time.  The conversation sought to ask what room he was in (referring to the siblings);

    It seems clear that by this point the mother had a belief that the child had been sexually abused by the father using some hard implement – be it a knife, something inserted into his anus or, as the mother’s belief continued, the father’s penis.  The absence – at any time at all – either before 4 September 2016 or after of any physical evidence of such a heinous act is both revealing and inconsistent with the allegation the mother believed to be true.  The mother (by paragraph 98) introduced into the history of comments by the child, an expressed fear of “monsters”, said first to be mentioned on the evening of 5 September 2016.  This, as the reasons will reveal, is a recurrent theme – the term monsters – which the mother applies some significance to.  I do not.

17. 6 September 2016 - On this day at 8.50am, the child was interviewed by officers of CPIU.  I have viewed this video (see Exhibit 7).  Clearly no disclosures were made.  Exhibit 24, being a part of subpoenaed records produced by the Queensland Police Service, includes the police officers’ assessment and, ultimately, a summary made by the officers on 19 January 2016 which noted initially after the s.93A interview that:

    As a result of nil disclosures during 93A and nil medical evidence of a sexual assault this matter is now finalised as evidence indicates highly doubtful offence occurred.

    I am satisfied the mother was cautioned by Police about not questioning the child.

18. 8 September 2016 – The mother consulted her General Practitioner Dr N who referred her to Psychologist Ms O.  Exhibit 13 reveals notes of Dr N and confirms that the mother informed her of her concerns; that she had begun to keep a diary and notes “timing of sore bottom and comments that the child makes regarding visits”.  She is also recorded as reporting that the father “was sexually abused as a student in high school”.  Also has a history of ADHD, depression, SI”.  Dr N prescribed a mental health plan for the child (on 9 September 2016) to see Ms O – but it was clear on the evidence, that Ms O never engaged with the child, despite two separate appointments when the mother attended the rooms of Ms O with the child.  Despite the cautions from Police the mother claims Ms O indicated to her that she was the best person to question the child.  It seems, on the evidence that the earliest time this advice from Ms O could have been given, was the first appointment on 19 September 2016 (see Exhibit 27).  However, at paragraphs 100 of her Affidavit the mother deposes to the following conversation with the child taking place, namely:

    Mother – “tell mummy when daddy hurt your bottom, what was he using”

    Child – “he was using a hammer and a mask and I was being scared”

    Mother – “a hammer and mask”

    Child - “yes, my mask my cranky mask”

    Mother – “does he use anything else or just the hammer?”

    Child – “Just the hammer and some scissors.  A hammer and scissors”

    The mother recorded this exchange.  It is not clear what words preceded the recorded discussion.  The questions were clearly “leading”.  I have viewed the videos, said to have been recorded on 10 September 2016.  A further recording took place on that day.  One was taken when he was on the toilet.  Then there was a gap before a further recording is made in another room.  The mother’s conduct was, I find, concerning in circumstances where the Police had interviewed the child and gave the mother feedback  I find that the mother’s actions reveal an attitude of rejecting the Police advice and to continue to question the child – and record further alleged disclosures.

19. 13 September 2016 – armed with the further video “evidence”, the mother says at paragraph 13 she again contacted CPIU and the Department of Child Safety, who she says (no doubted based on whatever version the mother gave the officer) that she should act “protectively” and that if she was concerned – she should “not provide contact to Mr Yalsburg”.  There is no corroborative evidence from DOCS of this advice, however all time ceased from 4 September 2016 until ordered to occur by the Court in early 2017.

20. 15 September 2016 – at the suggestion of Dr N, the mother attended L Hospital (see Exhibit 14), for a Paediatric referral to exclude medical causes for the sore bottom and soiling.  The notes record the mother as indicating that the child’s visit with the father (scheduled for the next day) the mother “is not going to allow”.  The Registrar Dr Van Der Merwe, for reasons unclear when one looks at the notes, merely adopted the earlier statement of “the diagnosis was CHILD AT RISK”, in her letter to Dr N of 15 September 2016.  I do not find that Dr Van Der Merwe made such a diagnosis on 15 September 2016.  I accept that using the earlier statement and incorporating that statement in a letter 11 days later might have been seen by the mother as supportive of her concerns.

1. 16 September 2016 – on this day, the mother again recorded the child.  I have viewed the recording.  It is difficult to hear and understand.  The child was climbing around.  It follows an earlier pattern of both leading and suggestive questioning.  It is not clear that the child, for the first time it seems on the mother’s evidence, mentions the word “penis” and the mother says connects that word with her question of what else is “big and strong”.  The “interview” by the mother is a further event of concern.  During the course of this day, the mother caused her solicitors to write to the father’s solicitors (see Annexure “MY2”), proposing that contact be “on a supervised basis” and that a family report be obtained.  The mother relied upon the TPCH Emergency Department Report of 5 September 2016.  Attempts to arrange, at such short notice, a suitable supervisor proved fruitless.  The father’s suggestion as to supervision by Mr and Ms P, was rejected by the mother.  Under cross examination as to why she rejected these people as supervisors, I find the mother’s explanation unconvincing.

2. 19 September 2016 – the mother had her first consultation with Ms O.  Ms O’s notes form Exhibit 27.  Ms O was the subject of brief cross examination about this consultation and her subsequent consultation with the mother on 28 September 2016.  The mother’s reported comments to Ms O raised every concern she had.  Ms O never consulted with the child (even though, strangely, it was his Mental Health Plan).  It is clear that the therapist indicated she would only act therapeutically and was not adopting an investigative role.  Ms O’s recollection was that she might have recommended the book “Everyone’s Got a Bottom”; was unlikely to have recommended to the mother to necessarily initiate questioning or “excessively interrogating” but that if the child offers information, then she should deal with it naturally.  The notes of Ms O did not suggest the mother reported to her the comments of the child made on 8 September 2016 of “hammers and scissors” being used to hurt the child’s bottom.  Ms O referred the mother to another Psychologist who did family assessments, Mr Q.  Although there is no evidence how soon after the visits to Ms O the mother contacted Mr Q, she did so and conceded that he told her that “I not ask any further questions of the child” (paragraph 101).  As the history reveals, the mother seemed unable to take this advice.  It also seems, at some level, Ms O had some concerns as she felt it necessary to tell the mother – “mother needs to be present for the child; if just constantly looking for evidence, won’t be able to do this”.

3. 6 October 2016 – by email the father’s solicitors expressed the father’s concerns that the mother had not contacted R Contact Centre to enable that organisation to commence supervision of time, and that they had instructions to commence proceedings (see Annexure “MY5”).

4. 13 October 2016 – the mother (at paragraph 106) when reading the book “Everyone’s Got a Bottom” on 12 October 2016 said that the child said “I felt daddy touch my private parts” and then touched his anus.  In circumstances where the mother gives no context to how this alleged disclosure arose, and the words alone do not suggest sexual abuse (remembering at this time the child was three and a half years of age; difficult to understand and was still wearing a nappy at night).  When the mother attended the L Hospital (Dr S) on 13 October 2016, she was informed that the Paediatric Unit does not perform a forensic service.  The report (forming part of Exhibit 21), to the child’s General Practitioner was posted on 14 November 2016, and included a history given by the mother.  During the hospital consultation Ms T described as “Child Protection Liaison Officer Child Protection Unit the L Hospital” was also in attendance.  The conclusion reached by Consultant Paediatrician Dr S was that “based on history provided today and examination findings, there is no evidence of any underlying medical condition to date.”  Exhibit 21 reveals the mother (who was a recipient of the letter) responded by email quickly on 17 November 2016 referring the doctor to the events of 4 September 2016 (already described earlier) and the discussion with Dr M at that time.  The clear intent of the mother’s email was to have Dr S amend her report.  In a response to Dr N prepared on 18 November 2016, Dr S made it clear she would not alter her report as the “described findings” of redness and inflammation around the child’s anus and anal dilation were “not evident” at the time of her examination.  The report of Dr M also made no mention of evident redness on 4 September 2016.  In my view the mother’s attempts to have the Paediatrician amend her report could have been an attempt (as late as November 2016) to reinforce her belief of what she says she observed on 4 September 2016.  From 2 November 2016, the mother begins to observe, she says, the child regularly referring to “monsters” which the mother believes was a connection with the father’s behaviour.  I see no connection at that time at all.  Children of this age talking about “monsters” is not particularly surprising.

5. 15 October 2016 – at paragraph 108 the mother asserts the child made a disclosure about the father touching him.  The conversation occurred in the shower when both the mother and the child were both, I infer, nude and having a shower.  A leading question like “where do you let Daddy touch”, could cause a child to give a response, by this time, he may think the mother is seeking.  The mother (at paragraphs 111 to 114) says the child expressed concern about his mother coming into bed with what he described “as no clothes on”.  The mother seems to suggest that these discussions over a number of nights lead her, on 15 November 2016 to have a very detailed discussion with the child, which she recorded on two separate occasions.  I have viewed the recording. I have concerns about the mother’s behaviour in eliciting responses.  The tape speaks for itself.  During the recording on 15 November the child enquiries twice where “daddy is”, but not in a frightened but more enquiring way.  The child’s reference to “monsters”, a “knife” and “vaginas” makes no sense – save for the observation made by Dr U that the child is an imaginative child.  It may be purely coincidental but these recordings were made the day after the father filed proceedings in the Federal Circuit Court of Australia seeking unsupervised time leading to equal time.  On this evening the mother records a conversation she had with the child about “monsters” – when she is trying to put him to bed.

6. 17 November 2016 – the mother’s solicitors wrote to the father’s solicitors proposing an expedited family report and that supervised time be delayed and a family report prepared urgently (see Annexure “MY9”) because “in recent days the child has made certain statements to our client which have caused our client to become even more concerned in regards to matters that we have canvassed with you previously”.  No particulars were given.  No explanation as to why supervised time (as agreed to commence in the “Parenting Plan” dated 11 November 2016 – see Annexure “MY8”) should be delayed any longer – a point properly made by the father’s solicitors in their email of 18 November 2016.  On that day the mother cancelled her intake interview at the Contact Centre – further frustrating any contact between the child and the father.

7. 30 November 2016 – Interviews were conducted with Mr V, and to his credit a report was published quickly (on 10 January 2017).  I deal with the evidence of Mr V below, he being the subject of cross examination.  However I note before interviews took place (it representing the first occasion the child had seen the father for nearly three months), the mother kept seeking that CPIU “undertake further investigations”; videoed the child again on 17 November 2016; alleges the child had a “significant shift in behaviour and sleeping patterns” (she says as a result of mentioning the father’s name to the child in early November); contacted someone at W Group and contacted the Department of Child Safety again.  Sadly by this time the mother, I find, gave no consideration at all as to what effect on the child (if no abuse had in fact occurred), not seeing his father and his siblings was having upon him.  Even when the mother must have read the report prepared by Mr V (for example the observed warm reactions between the father and the child – see for example paragraph 70) it does not appear to have had any effect on the mother’s beliefs.  In a narrative included in Exhibit 24 about the mother’s contact with the CPIU on 22 November 2016, it says:

   The mother of the child [B], [Ms Yalsburg] has contacted CPIU [X Town] stating that the child has made further disclosures that have been recorded by her.  The mother was asked to drop the USB at [X Town] station for copying to disc.  The mother raised a number of issues about numerous referrals that she has received for different support agencies however claims that she still needs help.  The mother stated that the child acted out violently on occasions and that she was having difficulty dealing with it.  Issues relevant to her parenting were discussed and [Ms Yalsburg] agreed to a referral that was made for her through Supportlink.  The mother further raised issues concerning seeking psychological help for the child however the psych she consulted would not see the child due to the possibility of being subpoenaed down the track (her words).  The mother further stated that she had consulted a number of psychs for the child.  The mother further advised that her barrister wanted her to seek medical attention for the child and have medical reasons discounted for family law court purposes.  The child has been seen by Dr…at the…who provided advice that there was no apparent medical reason for the child discomfort.  There was also no reason given for the discomfort, ie accidental, intentional, sexual etc.  A copy of this report was requested from the mother.  Matter to be forwarded to PCSC [Y] [X Town] CPIU.

8. The mother did not call any Police officers or Department of Child Safety workers to give evidence so that the Court is left with trying to interpret and understand what weight is to be applied to recorded assessments within the subpoenaed records.  However officer Y made the following assessment on 19 January 2017 (after I infer she reviewed all the material offered by the mother), noting that at no time had the father ever been interviewed by Police.  The assessment says:

   Further investigation by CPIU OIC DSS [Z] and PCSC [Y] have identified a number of discrepancies.

   The writings contained within the handwritten diary have not been made contemporaneously, and have not been recorded on the date that corresponds with the incident being written about.  Further the diary notes are the informant’s interpretation of observations and conversations and cannot be relied on for accuracy.

   Of note is the statement contained on space for September 6 regarding a text message received from the Subject about the sleeping arrangements for the children during a previous visit, after one of the Subject persons other children…had told the informant that she had slept in with the victim child because he was crying and not settling.  The notes indicate that a random message was received from the Subject stating that [B] slept in…room and…slept in [B’]s room.  The informant has interpreted the meaning of the text message to be a cover up stating ‘which confirmed my worst fears and gut feeling that [Mr Yalsburg] had hurt him and been messing around with him’.

   What the diary doesn’t show is all correspondence via email or text prior.  In diary note on date August 29 she makes mention of the victim child trying to climb into bed with her at night after returning from the Subjects home.  The diary note that the Inf quotes ‘I told him we have our own beds…and he was ok with that but tested the boundaries as…slept with him last F/N’.  Without all the previous correspondence between the Inf and Subject it can’t be proved that this text was not as a result of possible emails from the Inf talking about the child’s behaviour since…slept in with him, and the subject having a subsequent discussion with [C] the next time he saw her to clarify what she had told the Inf.

   Furthermore, the diary contains notes relating to the disclosures allegedly made to the Dr....  However medical reports from Dr…provide that child talked about hurting his bottom playing a game of ball with his step-brothers, and that when Dr…left the room the Informant continued to question the child, and told Dr…what the child had allegedly disclosed during her absence.  This again cannot be relied on for accuracy, and is merely either the Informants interpretation, or even a version the Informant wants to promote.

   The above discussed notes and reports have been scanned onto the occurrence for reference.

   As the child did not make disclosures during 93A, police will not be proceedings any further with these allegations.  Concerns are held that the Informant may try to push this matter further with the child.  Advice has been given multiple times to the Informant to cease asking the child questions relating to this matter, however it is highly unlikely that she has ceased due to the comments made to Police during recent phone calls during which she has made comments that the child still talks about it.  The Inf and Subject are currently before the courts in relation to custody agreements with a hearing set for late February 2017.  Dept child safety notification is being generated due to the concerns held for the child’s mental wellbeing should the Inf continue her actions.

9. As these Reasons demonstrate, the Court also has some concerns about the mother’s behaviour, however from around this time, the mother had begun therapy with a counsellor Ms AA (another referral from her General Practitioner in substitution for Ms O).  This referral has proved pivotal to reinforcing the mother’s belief systems.  Certainly it is clear Ms AA had no concerns about moving from the role as a therapist into the role of a forensic expert.  My concerns in this regard are dealt with more fully below.  The mother was also referred to F Group, a publicly funded organisation which deals specifically with children who had a history of abuse and/or neglect.  It seems that when the mother attempted to engage this service around 24 November 2016, the service was not able to assist “until Court is over”.  The mother did nothing to facilitate even supervised time occurring at the agreed BB Contact Centre (“BBCC”) until the Court made an Order on 6 February 2017 – with the mother making an appointment for intake on 3 February 2017 – over two months after she first cancelled her earlier appointment.

10. 6 February 2016 – Judge Cassidy made an order by consent on an interim basis that the child live with the mother and for the child to spend supervised time with the father at BBCC.  An ICL was appointed and the matter was transferred to the Family Court for consideration as a Magellan matter.  The first visit was ultimately scheduled to occur on 16 March 2017.  When it did, over six months had passed between real time visits between the father and the child.

11. I find however, with the absence of any support from medical authorities, Police, or the Department for the mother’s beliefs, the role played by Ms AA and the views she expressed galvanised the mother’s position.  This included the decision of the mother, and perhaps Ms AA, to have a consultation with the child on 16 March 2017 – two days before the first scheduled supervised visit at BBCC.

12. 16 March 2017 – on this date the mother records a conversation in the car whilst she is driving.  The child is hard to understand.  The notes of Ms AA (Exhibit 29) reveal that before this consultation, there had been nine earlier sessions between the therapist and the child commencing 7 December 2016 – all including or being in the mother’s presence in part or for the whole time.  The early disclosures in the notes of Ms AA that are, in my view, relevant, appear to be:

    23 February 2017 – Ms AA told him she would be seeing his dad at the special house where the ladies would “keep him safe” and after he was asked how he felt about seeing daddy and said “grumpy” his explanation for feeling grumpy is recorded as “daddy hit me” – with the mother saying “I don’t know what that’s about – I haven’t said anything”;

    2 March 2017 – the child was asked to tell a story of when he is grumpy and he said “when dad hit me on the back and put a hammer on my tummy”.  When Ms AA looked over to the mother she said “she thought it was a metaphor”.  My impression from the mother’s evidence is that she was forming the view (based she says on professional guidance) that although the comments made by the child made no sense in reality, it was an infantile way of describing the father doing something to him – a “metaphor”;

    16 March 2017 – he used the words “naughty daddy” on two occasions without any context save that it was explained he was to see his father on Saturday; and

    27 April 2017 – when asked “what happened in the week” the child said he had a “bottom kiss with dad”.  Clearly with the supervised visits, this did not occur.  However the mother showed Ms AA a video recording she had made a few days before on 23 April 2017 which I deal with below.  It seems, based on this video and the history given by the mother (and in the absence of informing herself about the family report, or the visits at the BBCC), Ms AA felt compelled to express an opinion that future visits cease.  By this date, visits had proceeded without incident and on the records of BBCC, with observed warmth, on 18 March; 1 April; 15 April.

13. 4 April 2017 – the mother was told by Ms CC (from F Group) that they were closing their file (which seems to have been opened since 24 November 2016) but that the mother could self-refer “once the Court case was closed”.  The notes of discussions between Ms CC and the mother on 17 February 2017 reveal the mother felt supported by her social worker, who I infer was Ms AA.

14. 23 April 2017 – the mother was showering with the child during which the mother says the child made further disclosures after she asked why he put his finger in his mother’s bottom.  The shower discussion is recorded at paragraph 8 of the mother’s Affidavit filed 9 October 2017 (“the second Affidavit”).  Some incredible stories were given such as:

    When I was a baby daddy put his fingers in my bottom, then he put a nappy on me, when I was naughty and he put a pistol in my mouth

15. And two days later (before seeing Ms AA), he is alleged to have said he was “locked in a cage” and that his father “used a knife and cut me and it really really hurt”.  The mother says she was distressed but seems to have affirmed the child’s unbelievable story by the words “I am really sorry to hear that”.  The mother said she spoke to “[Ms DD]” at the Department the next day and it is alleged “[Ms DD]” told the mother (see paragraph 9 of the second Affidavit) that:

    -          the child going to see his father was traumatising him;

    -the mother should inform Police of these disclosures;

    -DOCS will be stepping in if the Court grants unsupervised access;

    -          the child is never to have unsupervised access with the father again;

    -          the mother has the full support of DOCS; and

    -the child was showing evidence “of post-traumatic stress disorder and there was evidence to suggest post traumatic responses are happening”

16. The mother said when, on 26 April 2017 she rang “[Ms DD]” again with concerns, she was told to get the child “psychiatric help”.  It seems after seeing Ms AA she visited CPIU and spoke with “[Mr EE]” (on the advice of DOCS), who discussed the option of a second interview with the child.  The mother, somewhat curiously considering the lengths she had gone to record the child and, I find, accumulate evidence, says (at paragraph 13) that “I expressed concern about the child being put through a interview and stated that I was simply reporting the child’s behaviour and disclosures as I was advised to do.”  In these circumstances, and particularly the alleged advice of “Ms DD” from DOCS, I find it concerning that the mother took no steps to bring “Ms DD” to Court to give evidence.  Perhaps the answer is that the mother felt the first “Magellan” reports dated 24 April 2017 and in particular the report of 21 July 2017 (dealing with information received on 24 April 2017; 26 April 2017 and 28 April 2017) (see Exhibits 2 and 3) was sufficient, however nothing in those reports do more, frankly, then to record what the “Notifier” told them consistent with the mother’s version of events.  It is apparent on the versions provided to DOCS, and where the mother informed the Department of continuing professional support, there was insufficient information to indicate that more intrusive departmental intervention was required.

1. 29 April 2017 – the mother cancelled the contact visit scheduled alleging the child was “ill”.  No evidence has been produced to the Court to support this cancellation.  On 1 May 2017 Ms AA prepared a report (see Annexure “BDY3”) in the context of a clear opinion having been formed by Ms AA that the child the child had been sexually abused, that recommended inter alia:

   2.        That current supervised contact visits cease with the child’s father, [Mr Yalsburg] due to the retriggering and re-traumatisation occurring for the child, which are clearly presenting in this behaviours and recent assessment tests.

2. This report was shared with the child’s medical practitioner and adopted, it seems, by the F Group organisation.  I regard the opinion expressed as flawed in circumstances where, even if Ms AA is qualified to express an expert opinion, she had not informed herself of any relevant collateral information; accepted the mother’s versions of events without proper scrutiny and is now totally unmovable about abuse having occurred.  As I note later in these Reasons, the assessments made by Ms AA relied on questionnaires completed by the mother not unreasonably considering the child’s age.  The reliability of the testing must therefore entirely be founded on the accuracy of those answers.

3. 13 May 2017 – the mother again recorded the child on this day.  I have seen the video.  This recording took place two days after the child had a session with Ms AA.  Her notes reveal little of what occurred in the sessions on 11 May 2017; 18 May 2017 and 25 May 2017 except respectively the following:

   11.5.2017:  Play therapy and sand tray work.  Reinforce touching rules and protective behaviours work

   18.5.2017:  Play therapy and art work including use of artwork for feelings expression

   25.5.2017:  Play therapy conducted with some art work and sand tray therapy.  Item in sand tray included conflict between symbols.  PBs work and touching rules.  Puppet work for imaginative play and attunement work.

4. 26 May 2017 – the mother, at paragraph 16 of her second Affidavit says she spoke to Ms CC at F Group on this date.  The records of Act for Acts (Exhibit 28) do not reveal any discussions took place. They had closed their file on 4 April 2017.  I do not accept the mother got the advice from Ms CC as she claims on that day.  The records reveal, in fact, the mother’s first appointment was 12 October 2017.

5. 27 May 2017 – this date was the final supervised visit between the father and the child.  Frankly, the documenting of the reported concerns; the decision of the Director “Ms FF” and the effect of cessation of time that occurred can only be described as a complete mess with tragic consequences.  As I find later when dealing with this incident, the cessation of time should have never occurred based on the evidence properly tested before me.  Worse still, reliance on the note provided by BBCC has perpetuated further harm to this child – and the loss of time with the father, he was enjoying and entitled to exercise under the Court’s Orders of February 2017.  However, what is clear is that the publication by the mother, and the therapist who supported her, that BBCC has ceased time, merely encouraged and supported the further behaviour of the mother in my view.  The following parts of this detailed chronology are such that had time continued, as it should have, it is impossible to know what further trauma to this child might have been avoided.

6. 22 May 2017 to 2 June 2017 – the mother conducted multiple discussions and recordings as the Exhibits reflect with reference to “monsters” and “killing”.  The recording of 22 May reveals him playing with figures like “The Hulk” – a monster in appearance.  The mother describes the child’s behaviour getting worse – also recorded by his new childcare centre.  The notes of the consultation with Ms AA on 1 June 2017 reveal concerning aggressive behaviour by the child.

7. 4 June 2017 – when the child “wet his pants” Ms AA informed the mother the child was showing “trauma indications and behaviours”.  Sadly again I make the observation that Ms AA made no attempt to obtain and consider available collateral material.  I take the view that as Ms AA was so convinced sexual abuse and/or trauma had occurred, nothing was likely to have changed her opinion.

8. 5 June 2017 – the mother attended Dr GG and, on the basis of the mother’s expressed concerns, he recommended the child see a Psychiatrist.  At paragraphs 20 to 34 of her second Affidavit she set out her concerns and history of aggressive behaviour by the child.  It seems a tragedy to me, that not one person who the mother consulted for advice and guidance even seemed to consider the possible effect on this little boy of the disruption to his relationship with his father.  It defies logic to note that none of these experts seemed to have considered the visits that took place so well and the effect of the mother telling the child on 11 June 2017 that he “would not need to go back to the special house for a while”.  I do not accept, on the evidence of the BBCC notes, that the child was “very happy and seemed relieved” visits with this father had ceased again as the mother asserts.  A referral ultimately to Child Psychiatrist Dr U was made, referred to shortly.  The mother’s recording continued unabated with Exhibit 19 revealing events on 11 June, 18 June, 21 June, 8 July, 31 July and finally on 2 August 2017.  On many occasions the mother’s voice was raised.  She said things like “I haven’t done anything to hurt you” and “it’s okay to feel angry”.  She kept saying he was “breaking the rules” and “in this house mummy has rules”.  Some of these conversations appear to have followed an incident where he was “hurting” the mother – being aggressive.  At this time the notes for the childcare reveal his behaviour could be challenging.

9. Many of the recordings are difficult to understand.  When he did not want to eat his breakfast one morning he said his “tummy was hurting”.  He seemed uninterested in eating.  There is nothing unusual in this exchange and it is not clear why the mother offered it in evidence.

10. 15 August 2017 – childcare centre records disclosure by the child that “mum always yells at me and hurt my tummy” and the centre took the view, with an obligation for mandatory reporting, that they should inform DOCS, which they did by telephone.  They were informed by DOCS that the disclosures did not reach the threshold for intervention by the Department.

11. 20 August 2017 – the father’s solicitor requested that the mother agree to the use of an alternate contact centre or privately engaged supervisor and reinstate supervised visitations.  The mother at paragraphs 44, 45 and 46 of her second Affidavit explains why she could not reinstate supervised visits – a decision communicated by her solicitor’s letter dated 27 September 2017 (see Annexure “BDY13”).  The mother says she relied upon “the seriousness of the contents of the report from [BBCC]”.  After discussing, I infer, the report and the views expressed by Ms AA (including I expect her opinion of 1 May 2017), the mother’s General Practitioner expressed an opinion on 1 September 2017 (see Annexure “BDY12”) where he says:

    I have been the child [B's] GP for the past 8 months.  During this time I have become familiar with the social issues that are currently impacting his behaviour and development.  Based on accounts by [the child's] mother and his psychologist, there appears to be a clear pattern between [the child’s] developmental regression and behavioural disturbances and contact with his father.  While this issue is before the courts I obviously cannot make comment on the particulars of the situation, however what can be noted is the negative impact the child’s father has on the child's mental state.  His counsellor, [Ms AA], has noted that visits with his father will result in ongoing re-traumatisation.

    Therefore, I believe it is in [the child’s] best interests that he does not have reinstated contact with his father at this time.”

12. It is disappointing when a medical practitioner makes such a clear and persuasive statement without more than the version of one parent and of the child’s Psychologist.  At the time he chose to express his opinion in a letter addressed “To whom it may concern”, a great amount of collateral information in addition to that provided by the mother and Ms AA was available including at least:

    -          the family report of Mr V;

    -          the Psychiatric report of both parents by Dr H;

    -          notes from BBCC; and

    -          information from the child’s childcare centre.

    There is no evidence that the child’s General Practitioner considered any of this material.

13. August 2017 – as a result of a referral from Dr GG on 13 June 2017 (see Exhibit 16) to Child & Youth Mental Services for “further assessment and management following allegations of CSA against his father, initially commencing in early-mid 2016”, the child was seen by Child Psychiatrist Dr U on two separate occasions – 13 July 2017 and 17 August 2017.  Dr U further informed the Court that further contact occurred as follows:

    6 July 2017 – with mother

    27 July 2017 – telephone call to Ms AA

    2 August 2017 – with mother

    13 September 2017 – telephone call with mother

    5 October 2017 – with mother

14. Unlike Dr GG (who was not offered as a witness), Dr U was available for cross examination about her consultations and her two written reports being a letter of 31 August 2017 (a request that the child receive inclusion support within the kindergarten and daycare environment – see Exhibit 15) and a more comprehensive report to Dr GG of 25 October 2017, attached to Dr U’s Affidavit filed 19 December 2017.  The report opined that the child presented as a “likeable young boy with a good imagination and strong skills in pretend play”.  It is, as one might expect, clear that the most significant factual foundation relied upon by Dr U was the reported history given by the mother and the views/opinions expressed by Ms AA (who had indicated to Dr U that she intended to see the child regularly for an indefinite period).  Dr U had also made contact with Early Intervention Clinician Ms JJ and childcare provider, JJ Group.  The opinion provided in the report must be seen within the context of what data (apart from the two observations of the child) were available to Dr U and where she had no knowledge of:

    -          the father’s position and denials;

    -          no information from the BBCC about the visits;

    -          the family report; or

    -          the report of Dr H.

15. Dr U acknowledged, properly in my view, that the more information she had would have been helpful, but in the absence of that further information she had to rely upon the accuracy of the mother’s history given to her.  Significantly, and I find also reflective of the child’s presentation through nearly all of the videos the mother recorded, Dr U said a lot of what the child said had to be translated by the mother “because of his articulation difficulties”.  Although Dr U said the behaviour of the child in “isolation was not concerning” and that it was likely any anxiety of the mother would impact on the child, Dr U maintained the major concern she identified was his significant fluctuation in his ability to react and interact both in consultations with her and as reported at kindergarten and therapy sessions.  This suggested to Dr U that “his primary difficulty is emotional rather than developmental”.  Although opining that these difficulties are “consistent with a reaction to significant and severe stressors”, the child psychiatrist agreed that his difficulties could be contributed to by the loss of the time with his father (and siblings) if he was enjoying that time as the father alleges.

16. It seems that the views expressed by Dr U to Ms AA, about only having one therapist for the child might have been one of the catalysts for Ms AA having her final session with the child on 1 November 2017 – at around the time the child began with F Group.  At the hearing Ms AA confirmed, as did the mother, that she maintains a therapeutic relationship with the mother.  It is clear to the Court, and on all the evidence, that the mother heavily relies upon this therapy which I find acts as confirmation of the mother’s beliefs of the father sexually abusing the child.

17. 12 October 2017 – the notes from F Group form Exhibit 28.  An “initial client summary” for the child dated 8 November 2017 prepared by Family Therapist/Psychologist Ms CC is an Annexure to Ms CC’s Affidavit filed 12 February 2018.  Ms CC was the subject of cross examination by telephone.  Surprisingly, although initially the mother was informed that F Group could not assist until the Court case was concluded, they did take on the case earlier than normal.  The evidence of Ms CC confirmed that F Group is Government funded and is only able to offer services to children who have “a history of abuse and neglect”.  That is, that the service is founded on abuse (sexual or otherwise) or neglect having occurred.  Ms CC, when taken to her notes, could not explain why she had typed in her notes (as she types her own notes) if the mother had not told her exactly that, for example:

12/10/17	-	“Dad had been charged with sexual abuse toward [B]”
-	“Due to the escalation of [B] reactions at home and to inappropriate behaviour of dad during the contact the Judge have decided to suspend contacts at the moment”
26/10/17	-	“Dad used hide and seek as a grooming instrument”

The notes of the therapist reveal that improvement in the child’s emotional self-regulation was observed after therapy.  From the initial observation on 18 October 2017there were a number of consultations to 31 January 2018 (approximately 16 visits) and he was also being prepared to enter the Early Education Program (EEP) at the beginning of 2018 – which by the commencement of the trial, had begun.  Ms CC could not provide any information about the Program or the child’s performance in that Program (in a class of four pupils) as she does not run the Program.  Ms CC did indicate that although the child currently spends two days a week in the EEP, if the Court found that sexual abuse had not occurred, F Group would have to consider whether he can continue in the program.  The report dated 8 November 2017 referred to two diagnostic tools – CBCL and PEDS – and consistent with the overall factual foundation, these were completed by the mother and the therapist did not challenge or test their accuracy by considering collateral information that could have been available.  In all respects, Ms CC approached the therapy from a position that the child had been the subject of sexual abuse causing him trauma – and that the father was the perpetrator.  The Court also notes that consistent with other examples set out in these Reasons, on 30 January 2018, the mother contacted F Group to ask them to change the report of 8 November and is recorded to have sought that the report “be more specific in the description of what had happened to the child and his closure (sic)”.  I assume rather than closure the word was meant to be “disclosure”.  The therapist refused to do so, citing confidentiality concerns.

1. 3 February 2018 – in an Affidavit sworn 7 February 2018 (and filed on that date being less than one week before the hearing was to commence), the mother deposes to a further disclosure made by the child to her after she became upset with him for touching the oven and turning it off, when the Saturday evening roast was cooking.  The mother then deposes at paragraphs 5 to 8 as follows:

   5.        I then explained to [the child] that I still loved him and gave him a hug.  I explained that it was his behaviour that I did not like and that I still loved him.  I told [the child] that no matter how upset or cranky I was with him I would never hurt him.  I told him that it was not okay to hurt anyone no matter how upset or angry you may be feeling.  I asked [the child] if he understood that I would never hurt him and he said yes.  [The child] asked if I was going to call the Police on him and I replied no I’m not going to call the Police but that if I hurt him he had every right to call the Police on me and that no one is ever allowed to hurt him not even me.

   6.        [The child] then whispered to me ‘Mummy can I tell you a secret?’  ‘Promise you won’t tell anyone?’  I said ‘Yes sure I promise I won’t tell anyone.’  He said ‘My daddy has a gun and it shoots out slime that’s really sticky and it sticks to you and will never come off and it is really yucky and the gun has poo poo on it that really smells.’

   7.        [The child] scrunched up his face arid then I asked him ‘Why is this a secret?’  the child responded ‘My daddy said please don’t tell anyone.’  I said ‘Why did he say don’t tell anyone.’  He said ‘Because there will be trouble.  the child then said ‘Guess who has a gun out of [C] and [D]?’  I said ‘I don't know, who?’  the child said ‘[D].  ‘[D] has a gun and a dummy and a nappy."

   8.        I gave [the child] a hug and thanked him for telling me his secret and trusting me.  I reassured him that he can tell me anything and that I would not be angry at him and I told him that I was proud of him for telling me his secret.

2. On Monday, 5 February 2018 the mother contacted the Department as the updated Magellan report (Exhibit 6) reveals.  Again the Department noted it was informed that:

   [The child] had supervised visitation with the father March 2017 however this was suspended May 2017 because the father was pushing [the child] around the room taking polarised photos of the child against his will and the father had a slight erection.

3. As findings already made in these Reasons show, the Court does not regard the mother’s claim for why supervised time ceased as accurate on the evidence tested before me, but I acknowledge it was an interpretation available on the memo alone.

4. The child was interviewed by Police on Thursday, 8 February 2018 and a copy of the s.93A record of interview has been tendered as Exhibit 11 and viewed by the Court.

5. What is immediately apparent from this last interview (by comparison with the earlier interview and video) is that the child is easier to understand.  What has not changed is that he proved difficult to engage or keep on track in questioning and made many statements which seemed inconsistent such as:

   a)No one told him that what happened “was a secret”; but then at a later point said his mother (who had taken the child to Police), told him “not to talk to” the Police;

   b)When lead by the Police into an enquiry as to “did something happen at your dad’s house?” the child said things like:

   -“My daddy has a badge”

   -“He can’t protect me anymore – that is why I am at mummy’s”

   -“Daddy’s gun is blue”

   -“He uses his gun to protect [C] and [D]”

   -“He keeps his gun on himself” and then demonstrated it being in a holster at the side

   -“Daddy’s gun shoots out slimy stuff; sticky stuff goes on the ground” and then pointed to a green toy in the interview room saying “it looks like this” colour

   -“He shoots a bullet”

   -“Daddy shoots the sticky stuff at me”

   -“It goes into my belly”

6. In my view, I do not believe that the child, who it must be recalled made these statements (including the ones the mother deposes to) for the first time in February 2018 – some 17 months after he last spent any unsupervised time with the father – was describing the father ejaculating on him as the mother effectively contends.

7. It is further troubling that the child is heard to say to Police that:

   -“Nothing I don’t like when at dad’s” and then says:

   “I hate my daddy and he does bad stuff I don’t like”

   and then refuses to tell the Police what the “bad stuff” was that he did not like.

   By this time he appeared totally disengaged and would not even tell the Police the name of his kindergarten teacher.

1. This is a matter where the best interests of the child and his future healthy relationships demand that if the Court is satisfied, on the balance of probabilities, that sexual abuse of the child by the father has not occurred, it needs to be so stated.

2. I am so satisfied and make that finding on the evidence explored above, but by way of summary includes:

   a)the positive relationship which I find existed with the father (and the child’s siblings) up to 4 September 2016 and, to the limited extent able to be observed thereafter.  In my view, the Father’s Day card for 2016 rather than causing concern, as the mother would have the Court accept, reveals a normal positive relationship existed.  The mother’s attempts to characterise the use of the word “nappy” or the child’s view of the father as affectionate to him as in some way sinister, did her no credit at all;

   b)with the heightened “fear” from early 2016, the mother says she held (and the regular examination of the boy’s anus by the mother) the Court could accept the mother was alarmed by what she swore was the child’s initial disclosure on 4 September 2016.  When it was accompanied by irregular bowel movements, the Court would not be overly critical of the mother taking the child to the Emergency Department of the Hospital, as she did;

   c)I am of the view that the mother however, rather than looking at the whole of the initial report, focused on the words “diagnosis CHILD AT RISK”.  I agree with Dr H that the mother misinterpreted that report, as have others.  I do not accept that redness existed when the child was examined at the hospital – some short time after the mother deposes to seeing it at her home.  It makes no sense that such a significant anal reaction dissipated so quickly and was not observed by Dr M;

   d)I have made statements and findings during the history above, which I rely upon but do not repeat, and agree with the submissions of the ICL that often the mother can be seen as asking leading questions during her “interviews of the child”; had made suggestive comments to the child and we have no overall context for exchanges associated with play situations (and even worse when the little boy is on the toilet).  Some discussions occurred shortly after the mother had showered with the child and body contact occurred; her easy dismissal of the unlikely use of knives and guns as actually “metaphors” for other implements and/or a penis is rejected by me.  In short, much of what this little boy said (especially about monsters and the like) is the type of infant comment one would not find surprising from a child of this age at all;

   e)The child is an imaginative boy, yet there is no evidence at all that he had made any even remotely similar “disclosures” to Police (on two occasions considering my findings on the February 2018 interview), childcare providers or his therapists – other than the ambivalent statement to Dr M on 4 September 2016 and perhaps to Ms AA on one occasion;

   f)The mother having, in her view, some initial medical evidence to support her worse fear, has continued to build on the experts who support her belief.  However, properly examined as I have above, some of the opinions expressed to the mother are best described as poorly founded.  I can understand why Mr McGregor described the event on 4 September 2016 as “seminal”.  To the mother it clearly was and she continued to gather support from professionals that the child’s behaviour was as a result of the trauma suffered at the hands of the father;

   g)Sadly, despite the reservations raised by experienced social worker Mr V, the mother generally took advice from others when those professionals had not seen the father or the child’s interaction with him, and where some of them:

   -had no knowledge of the positive contact centre interactions;

   -Accepted the memo from the contact centre (and the Director’s decision to cease time) as a confirmation of the father’s risky behaviour; and

   -had not read the reports of either Dr H or Mr V which, at the very least, would have given them a perspective from the father’s version of the history and, one might think, cause them to be less certain that abuse had occurred.

   h)All I need to say further about Ms AA, is that once she formed her professional view that the child had been abused – a view not formed with the benefit of significant collateral data she could have considered as was available – her therapy (and the following therapy of Act of Kids) were all founded on the certainty abuse had been perpetrated on the child by his father.  Having such a focus meant that the therapists seeking to help this vulnerable child’s behaviour completely ignored the real possibility that the loss of any contact with a loving father and doting engaged siblings could have been a major contribution to how he behaved or felt emotionally.

3. I intend to deal with the other issues identified by the ICL, within the matrix of the primary and additional considerations and a consideration of the competing proposals of the parties earlier set out.

Primary considerations

The benefit to the child of having a meaningful relationship with both parents

1. I find that the child will, subject to the concerns dealt with next, benefit from having a meaningful relationship with both parents.  In respect of the father, the child has available to him a strong and capable father who loves him and will enrich his life.  He is, in my view, an appropriate role model.  The Court is unable, in the absence of any evidence offered by the mother, to assess the benefits the child gains from his interactions with the mother’s step father (or for that matter, the maternal grandmother).  It is, on my overall assessment, a matter of deep regret that the child’s relationship with his father has been so disrupted as the history shows.

2. All the evidence reveals the mother is meeting the child’s physical needs and loves him absolutely.  The mother’s behaviour raises some concerns which I deal with next, however in many ways she is highly committed, vigilant and protective.  Most observers of her interactions with the child (for example the childcare providers) have seen these qualities.  She has been the child’s primary carer to September 2016 and basically his sole and exclusive carer since then.  Subject to the concerns which I deal with next, the child does benefit from having a meaningful relationship with her.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. I rely on earlier findings and say again that I do not assess on the evidence that that the father is an unacceptable risk to the child, if living with him or spending unsupervised time with him.  I do not find the father would expose the child to abuse (sexual or otherwise), neglect or family violence.

2. Counsel for the father vigorously contends that the evidence compels a finding that the mother has deliberately concocted stories; sought inappropriately to illicit information or gather evidence to support her beliefs about the father’s conduct and in so doing has exposed the child to emotional and psychological harm.

3. The effect of this past behaviour of the mother, the father submits, is that unless the child is moved from the care of the mother to the father, it is unlikely that the child will be able to have a relationship with the father and that the mother will not support the child’s relationship with the father.  I rely upon but do not repeat earlier findings and record the following findings on this critical issue:

   a)The mother’s repeated examination of the child’s anus after visits with the father seemed to have little foundation.  Whilst the mother sought medical advice around June 2015 on this issue, she made many “examinations” before then.  It is hard to know how aware the child was of this conduct and whether he saw it as an unusual ritual following visits with his father around nappy changing time;

   b)The report of Dr M was capable of misinterpretation by the mother.  The “diagnosis of CHILD AT RISK” clouded for her any other explanation.  As Dr H opined, he interpreted that statement differently – as does the Court.  The lack of greater disclosure by the child to Police or to Dr M, I find, caused the mother to be hyper alert and caused her (despite the Police recommendation not to question the child) to engage the child in discussions as the history reveals.  Again, it is impossible to really know what the child thought was happening that caused his mother to video him on the toilet or after he had a shower with her.  I suspect now that he is older, he may be more curious as to why his mother has done so.  It must stop and injunctions directed to this behaviour ceasing will be made;

   c)Whilst I accept that the finding is evenly balanced, at this stage it is my concluded view that the mother’s belief system was more a feature of her initial fears being confirmed by advice of professionals claiming to be experts (in particular of Ms AA) rather than a deliberate concoction made to support her fears.  It is my assessment that this imaginative little boy can be lead to say almost anything if he is approached by his mother – the person who has been exclusively caring for him and who he exclusively relies upon.  The highly trained Police Officers, doing their best on two occasions, found him difficult to engage with and his lack of any disclosures at kindergarten or other than with Ms AA during one session, supports my finding.  There is no evidence that the child made any disclosures to other family members of the mother;

   d)I reject attempts to characterise, in this matter, statements about guns, knives, or scissors as some form of “sinister” metaphor.  In my view, those comments made by the child are more likely a figment of his imagination and a reflection of the sort of implements children of his age are exposed to on television; in games and during interactions at play with other young children.  The mother’s reliance on them being a “metaphor” is another example of her adopting a statement made by a professional.  As Dr H opined, it is possible such statements can be considered by this mother as a true and expert “confirmation” of her own views.  I believe that is likely to have happened in this case;

   e)I accept there is a real, not at all fanciful, risk that the mother, with her belief system intact (unless she has the capacity to read and accept these findings), will find it hard to:

   i)fully support the child’s relationship with the father;

   ii)not easily accept any future comment by the child as having an innocent rather than sinister connotation; and

   iii)certainly, if continuing to be supported by Ms AA and her fixed views, find it challenging not to continue to record the child and refer the child to Police or the Department.

   f)The history of this matter shows that the inability of the mother to accept the benefit and warmth of the child’s relationship with the man she chose to be the child’s father, has been impeded by the lack of time that has occurred since September 2016.  Even when it did occur, the highly misleading and destructive memo from the BBCC, only tended to support her belief and caused everyone, it seems including the Court, to proceed very cautiously.

4. Although I hold some reservations about the mother’s capacity to support and nurture the child’s relationship with the father in the future, the evidence on balance, in the unusual circumstances of this case do not persuade me that the mother is incapable of doing so.  The father may say the Court is being overly optimistic, but I find that the only way this question could be more clearly answered is to test the mother with a clear defined order for the child to spend time with the father.  This is the essence, I believe, of the ICL’s preferred proposal and in my view, with some modest variations; the proposal which I ultimately find does meet the child’s best interests at this time.

5. When examining the other additional considerations that follow, it will become further clear why this preferred proposal of the ICL, although of course not providing any absolute guarantee, is best.

Additional considerations

1. Save for a consideration of s.60CC(3)(d), I make findings on the additional considerations prescribed by s.60CC(3) in a narrative form.

2. the child is too young, and the context for any views expressed so confusing for him, that I could not apply any weight to his views as expressed, save that I do not accept that the child “hates” his father as he expressed to Police in the interview on 8 February 2018.

3. It is, as a result of the history of care at least, appropriate to find that the child is primarily attached to his mother.  As earlier noted, the lack of any evidence from the extended maternal family makes it difficult to assess the nature of the relationship between the child and them.  In my assessment, the relationship between the father and the child, which was warm and intact as at 4 September 2015, has been damaged at least by the lack of time that has occurred to maintain and nurture that relationship, if not other factors associated with the mother’s behaviour and some of the therapists retained to support her and/or the child.  At the conclusion of the hearing, and on the evidence available, a degree of speculation exists in defining how damaged the relationship now is and what steps are best to repair that damage.  Mr V was unable to offer, not unsurprisingly considering when he saw the family, any real guidance save to observe the child’s personality may assist in the repair.  In my view, the only real option is for time to recommence robustly and quickly with the father.

4. I was reflecting on the way that the child spoke about his siblings C and D to Police on 8 February 2018.  My sense was that sadly, the child may not regard his siblings in the same positive way now as I find he did at September 2016.

5. The lack of time, and when there were no actions taken by the mother to initiate time between the siblings whilst she sought to resist the father spending time (for the reasons she gave), is likely to have caused those important sibship relationships to also diminish.  It is the Court’s hope that the orders for time will involve, as soon as the father regards it as possible and proper, C and D.

6. From the time the mother unilaterally ceased time after 4 September 2016, the father’s attempts to spend time and communicate with the child has essentially been shaped by Court Orders – which themselves were not then complied with until suspended.  In the circumstances, no criticism can be advanced against the father for his failure to spend time or participate in decision making.  The mother, in any event, did not seek to involve the father in her decisions to seek therapeutic assistance; the choice of therapist; involvement in F Group or the choice of childcare.  She did not even record his name in enrolment forms.

7. The mother did not seek to make an issue about the level of child support assessed or paid by the father and, in the circumstances where, if the father had spent time with the child, he would have met expenses when the child was in his care, I take this issue no further.  As identified, I deal with the s.60CC(3)(d) consideration discretely below.

8. The actual residences of the parties has changed from G Town to the Brisbane area post separation, however it seems that there are no practical difficulties or extraordinary expenses likely to be incurred when the child spends time with the father.

9. I rely upon earlier findings in confirming that, in the Court’s view, both parents have the capacity to provide for the needs of the child and that the concerns which the Court has identified in the attitude of the mother towards the father in facilitating time, must be seen within the context of the earlier findings about the mother’s belief system, and how it was created and professionally supported and confirmed.

10. There are no family violence orders in existence and no significant family violence issues arise.

11. The Court, pursuant to s.60CC(3)(l) is asked to consider “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child”.  In most cases such a question is always answered positively “yes” and final orders are made.  In this way the proceedings are completed and the parties (usually parents) return to their lives as parents focussing on their children rather than as litigants focussing on the proceedings and their lawyers.  Family Law jurisprudence incorporates sensible restraints to be overcome, if fresh proceedings are to be launched.

12. In this case, the ICL primarily proposes an interim order which, at first blush, might be seen as offering the need to finalise proceedings.  However, despite the considered opposition from Mr Jordan (for the father) and to a degree from Mr McGregor (for the mother), I find merit that it is in the child’s best interests to proceed with a degree of optimistic caution.  Things may have been different, if after the initial cessation of time in September 2016, even supervised time was commenced and proceeded.  The Court, if asked (even if the parties were unable to do so), might have explored ways of increasing (or at least maintaining) time.  That did not occur in this case, with the result being that for a period of over 18 months the child has spent less than 10 hours supervised time with the father.  I return to this dilemma shortly when assessing the competing benefits and disadvantages of a change of residence to the father.

13. The interim order the ICL submits I should made, and which I intend to make generally, will clearly put both parents under more scrutiny and a degree of pressure, both emotionally and financially.  I have considered that predicament which I accept is not optimal.  However, the Court wishes to give to the child the best chance of emerging from being the focus of this litigation, to having a functional and enriching relationship with both of his parents – not just one of them.  I accept the relevance of the concern raised by the father’s Counsel, that an interim order for some months is not a real test of whether the mother’s attitude and behaviour can be seen to improve sustainably.  He may be correct, however the mother will certainly be challenged to consistently reveal a new and supportive attitude to the child’s relationship to his father.  Whilst the mother is dealing with that challenge, the child’s relationship with the father (and the child’s siblings) can experience real repair.  In so doing, the child has a real opportunity to begin to balance the slightly different parenting styles of his parents.  The father will be free to be more involved in the child’s school/childcare life and involve him in extra-curricular activities.  Of course, the mother says the father at times has shown little interest in the child.  If that be true (which the Court does not accept on the evidence currently offered to the Court), then orders the Court proposes to make and that are in the child’s best interests, will fail because of the father’s lack of commitment.  Most importantly, notwithstanding the regrettable history since September 2015, the child not yet five years of age, the Court is not prepared to consign him to any prospect of only having one parent in his family to guide and nurture him into the future and expects his parents to do their best to put the past period behind them and work towards a better outcome for their son than has been the case for the last over two years.

Change of residence

1. The findings already made about the mother’s behaviour are likely to be seen by the father as perhaps generous to her.  However, parenting cases do not contain any element of reward or punishment of parents in their adjudication.  The focus never deviates from securing an order likely, in the Court’s view, to meet the best interests of the child.  I acknowledge it was a finely balanced conclusion as to whether, as the father urged, a change of residence at this time is in the child’s best interest.  Since separation occurred in September 2015, the mother has been the primary carer.  Even before separation, I am satisfied the mother was the primary carer with the father being as involved as his work commitments (exerted to support the family financially) permitted.  The evidence of the father’s ability to work around the needs of the child, if he lived with him primarily, are well intended but totally untested.  The father fairly acknowledged that the child may need counselling but did not fill the Court with confidence that he had properly thought through every aspect of the change of residence he proposes.

1. I accept that if the child continues, on an interim basis, to live with the mother and the mother was to act in a way which did not support the father’s relationship, then the child could suffer further emotional harm.  Similarly, if the change of residence creates significant emotional distress for the child who is absent from the day to day care of his primary attachment figure, that could have a long term effect on his functioning.

2. In weighing up these factors, I have decided it is in the child’s best interests to live with his mother; spend regular time with the father and to incorporate some restrictions on the parenting style and decision making.

Parenting responsibility

1. The parents have shown little capacity to communicate – even with the assistance of lawyers – about the major long term issues let alone more minor issues.  I accept that it may ultimately come to pass, that one parent should exercise sole parental responsibility.  This is rarely a desirous outcome where both parents are exercising time with a child; have a legitimate point of view as to long term issues and where the quality of such major decisions is usually improved by two parents seeking to reach a compromise.  Although the father asserts essentially the mother has no capacity to accept a view different to her own, I have concluded that on an interim basis, as the ICL proposes, the parties shall have equal shared parental responsibility.  The father gave evidence he believes it is possible to repair parental communication and expressed a wish to attempt to do so.  The mother was less optimistic.

2. By ordering equal shared parental responsibility, the Court is bound to consider whether it is in the best interests of the child and reasonably practicable to order:

   -    equal time and, if not

   -    substantial and significant time.

3. The mother did not propose any such time arrangements, whilst the father’s proposals at Appendix One, saw the mother’s time graduating to significant time from the start of the 2019 school year.

4. The Court does not find that significant and substantial time for the non-residence parent (or perhaps even equal time) is not over a possibility.  Rather at this time, in the uncertain situation that currently exists, making a final order with that level of optimism cannot be justified.

5. The Court, for the reasons set out above, makes the orders which appear at the commencement of these Reasons which it finds are in the child’s best interests.

I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 23 March 2018.

Associate: 

Date:  23 March 2018

APPENDIX ONE

1. That all previous Orders and Parenting Plans be discharged.

Parental Responsibility

1. That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the child B born … 2013 (“the child”).

2. That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   a)They shall inform the other parent about the decision to be made;

   b)They shall consult with each other on terms that they agree; and

   c)They shall make a genuine effort to come to a joint decision.

3. In the event the parties cannot agree on the issue of schooling and/or medical issues, the father shall have the ability to make the final decision, after taking into consideration the mother’s views in accordance with the process set out in order 3.

4. That notwithstanding the provisions of Order 2:

   a)The Mother shall be responsible for the daily care, welfare and development of the child when he is living with or spending time with her; and

   b)The Father shall be responsible for the daily care, welfare and development of the child when he is living with or spending time with him.

Time with the parents

Option 1, the father’s first preference

1. That the child live with the father and spend time and communicate with the mother:

   a)After an initial settling in period with the father of one (1) month, thereafter supervised at a supervised contact centre, which centre is to be agreed between the parties, but failing agreement, R Contact Centre at OO Town, at such time as may be able to be facilitated by that centre, for a period of six (6) months.

   b)That after the period of six (6) months supervised contact referred to in (a),

   i)During school terms, each alternate weekend 3:00pm Friday until 5:00pm Sunday;

   ii)During school holidays, for one half of each school holiday period, being the first have in odd numbered years, and the second half in even numbered years.

Option 2, the father’s second preference

1. That the child live with the father and spend time and communicate with the mother:

   a)After an initial settling in period with the father of one (1) month, thereafter supervised at a supervised contact centre, which centre is to be agreed between the parties, but failing agreement, R Contact Centre at OO Town, at such time as may be able to be facilitated by that centre, for a period of six (6) months.

   b)That after the period of six (6) months supervised contact referred to in (a), each alternate week, commencing and concluding at 3:00pm Friday each week, to continue throughout each school holiday period;

Option 3, the father’s last preference

1. That until the child has completed term 1 of his prep school year in 2019, the child live with the mother and spend time with the father on a graduating basis as follows:

   a)from 3:00pm Friday to 5:00pm Sunday, each alternate weekend, for a total of 5 visits;

   b)from the completion of (a), from 3:00pm Friday until 9:00am I commencement of school Monday each alternate weekend, for a total of 5 visits;

   c)from the completion of (b), from 3:00pm Friday until 9:00am I commencement of school Tuesday each alternate weekend, for a total of 5 visits;

   d)from the completion of (c), from 3:00pm Friday until 9:00am I commencement of school Wednesday each alternate weekend, for a total of 5 visits;

   e)From the completion of (d), from 3:00pm Friday until 9:00am I commencement of school Thursday, each alternate weekend.

2. That from commencement of term 2 of the child’s prep school year, the child shall live with the Father and Mother on a week about basis each alternate week from 3:00pm Friday of one week until 3:00pm Friday of the following week, continuing fortnightly.

3. Special occasions

4. That the child shall spend time with his parents on special occasions as follows:

   a)for Christmas Day:

   i)from 5.00 pm Christmas Eve until 2.00 pm Christmas Day in even numbered years with his Father and in odd numbered years with his Mother; and

   ii)from 2.00 pm Christmas Day until 5.00 pm Boxing Day in odd numbered years with his Father and in even numbered years with his Mother.

   b)on the child’s birthday:

   i)In 2018, by telephone with the parent they are not living with on the day between 3:30pm and 6:30pm, with that parent to make the telephone call to the other parent’s telephone.

   ii)From 2019 onwards, with the parent they are not living with on the day from 3:30pm until 6:30pm, with that parent to be responsible to collect and return the child

   c)with his Father on Father’s Day weekend; and

   d)with his Mother on Mother’s Day weekend:

   i)In 2018, either at the contact centre nominated at Order 8(a) or 10(a) (as the case may be), at such times as the contact centre can accommodate the visit, or if the contact centre cannot accommodate a face to face visit, by telephone with the father to initiate the call from the child to the mother at 9:00am; and

   ii)From 2019 onwards, from 3:00pm Friday until 5:00pm Sunday.

5. The child shall communicate with his parents on the telephone or FaceTime at such times as the child reasonably requests but otherwise on Tuesday or Thursday between 6:30pm and 7:00pm and in relation to such communication each parent shall:

   a)ensure that the child is available to receive the telephone call;

   b)arrange for the child to telephone the other parent on the following night, if for any unforeseen circumstance, the child misses the telephone call from that parent; and

   c)ensure that the child has privacy during the conversation.

Collection and Delivery

1. That once the child is attending school, and except as otherwise ordered, the Father and there shall collect the child from and return him to school (at school times) during times that they have the child.

2. That when the child is not attending school:

   a)the Father shall collect the child from the Mother’s residence at the commencement of the child’s time with the Father; and

   b)the Mother shall collect the child from the Father’s residence at the conclusion of the child’s time with the father/commencement of the child’s time with the Mother.

Exchange of Information

1. That the Mother and Father shall:

   a)Keep the other parent informed at all times of their residential address and contact telephone number/s;

   b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the child and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child; and

   c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child.

2. That both parents are to provide their authority to any treating medical practitioner to release the child’s medical information to the other parent, and such authority shall be provided by the parent in writing if requested by the medical practice.

3. That both parents are to provide their authority to any school or day care centre attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost).

4. That during the time the child is with either parent, that parent shall:

   d)Respect the privacy of the other parent and not question the child about the personal life of the other parent;

   e)Speak of the other parent respectfully; and

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

APPENDIX TWO

1. That the Mother have sole parental responsibility for the child B born … 2013 (“The Child”).

2. That the child lives with the Mother and there be no order for the child to spend time with the father.

APPENDIX THREE

1. That all previous Orders and Parenting Plans be discharged.

Until further order it is ordered

1. That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision.  They are not, however, required to consult with each other about the daily care of the child.  The types of decisions about which parents are required to inform and consult include but are not limited to changing the child's name; relocating the residence of the child so that existing parenting arrangement become impracticable; changing the child's school; a significant medical intervention for the child.

2. That the child live with the mother.

3. That the child spend time with the father

   a)For 4 occasions from 9 a.m. to 4 p.m. on 4 consecutive Saturdays, the first and third Saturdays to coincide with time the father spends with C and D;

   b)For 4 alternate weekends from 9 a.m. Saturday to 4 p.m. Sunday;

   c)For 4 alternate weekends from 4 p.m. Friday to 4 p.m. Sunday;

   d)For the remainder of 2018 on alternate weekends from 4 p.m.

   e)Friday to before Kindergarten on Monday;

   f)For 2 one week blocks in December 2018 and January 2019;

   g)From commencement of the child's preparatory year in 2019

   i)on alternate weeks from after school Thursday to before school Monday, or Tuesday if Monday is a public holiday and these arrangements stop during school holiday periods and recommence on the first weekend after school resumes;

   ii)for one half of the school holidays;

4. Subject to the conditions imposed by the child's schools, these orders authorise both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.

5. That each parent shall ensure that the child attend all educational, sporting and hobby events when the child are with that parent in all reasonable circumstances.

6. That the parties shall keep one another informed of matters concerning the child via a Communication Book that travels with the child at the commencement and conclusion of any time spent with the child on all aspects of the care, welfare and development of the child, such as schooling, extra curricula activities, medical issues and any other issues that may arise with respect to the child.

7. That each parent keep the other parent informed at all times of their residential address and contact telephone number and to notify the other parent at least 7 days prior to relocating their residence beyond a 20 kilometre radius from where they currently reside.

8. That the child attend upon a counsellor/therapist recommended by the Independent Children's Lawyer and that the mother and the father participate in the counselling/therapy as recommended by the treating practitioner.

9. That the Independent Children's Lawyer be at liberty to provide the court’s reasons for judgment to the child's treating practitioner, to the counsellors for the mother and the father, to the Department of Child Safety and to Queensland Police Service.

10. That the mother and the father make arrangements for the child to be enrolled in an alternate Early Education Program to that run by F Group.

11. That the final order application and response be listed for mention before the Honourable Justice Baumann on a date not less than 6 months after the reasons for judgment are delivered.

12. Liberty to the Independent Children's Lawyer to re-list the matter on giving 3 days’ notice to the parties.

APPENDIX FOUR

1. That all previous Orders and Parenting Plans be discharged.

2. That the father shall have sole parental responsibility for the child, having consulted with the mother about decisions to be made in the exercise of parental responsibility and shall make a genuine effort to come to a joint decision with the mother.  The father and the mother are not, however, required to consult with each other about the daily care of the child.  The types of decisions about which parents are required to inform and consult include but are not limited to changing the child's name; relocating the residence of the child so that existing parenting arrangement become impracticable; changing the child's school; a significant medical intervention for the child.

3. That the child live with the father.

4. That the child spend time with the mother

   a)For 8 occasions from 9 a.m. to 12 noon on 8 consecutive Saturdays, commencing 4 weeks after these orders come into force;

   b)For 8 occasions from 9 a.m. to 2 p.m. on 8 consecutive Saturdays,

   c)For 8 occasions from 9 a.m. to 4 p.m. on 8 consecutive Saturdays

   d)For 4 alternate weekends from 9 a.m. Saturday to 4 p.m. Sunday;

   e)For the remainder of 2018 on alternate weekends from 4 p.m. Friday to 4 p.m. Sunday;

   f)From commencement of the child's preparatory year in 2019

   i)on alternate weeks from after school Thursday to before school Monday, or Tuesday if Monday is a public holiday and these arrangements stop during school holiday periods and recommence on the first weekend after school resumes;

   ii)for one half of the school· holidays;

5. Subject to the conditions imposed by the child's schools, these orders authorise both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.

6. That each parent shall ensure that the child attend all educational, sporting and hobby events when the child are with that parent in all reasonable circumstances.

7. That the parties shall keep one another informed of matters concerning the child via a Communication Book that travels with the child at the commencement and conclusion of any time spent with the child on all aspects of the care, welfare and development of the child, such as schooling, extra curricula activities, medical issues and any other issues that may arise with respect to the child.

8. That each parent keep the other parent informed at all times of their residential address and contact telephone number and to notify the other parent at least 7 days prior to relocating their residence beyond a 20 kilometre radius from where they currently reside.

9. That the child attend upon a counsellor/therapist recommended by the Independent Children's Lawyer and that the mother and the father participate in the counselling/therapy as recommended by the treating practitioner.

10. That the Independent Children's Lawyer be at liberty to provide the court’s reasons for judgment to the child's treating practitioner, to the counsellors for the mother and the father, to the Department of Child Safety and to Queensland Police Service.

11. That the father make arrangements for the child to be enrolled in an alternate Early Education Program to that run by F Group.