FEDERAL CIRCUIT COURT OF AUSTRALIA
| YARBOROUGH & YARBOROUGH | [2020] FCCA 3546 |
| Catchwords: FAMILY LAW – Interim hearing – parenting application – allegations of possible sexual abuse of children – unacceptable risk – investigation by Department of Communities and Justice – whether time should be supervised – orders made for supervised time and Facetime communication between parent and older two children and for Facetime communication between parent and youngest child. |
| Legislation: Family Law Act 1975 (Cth), ss.11F; 60CC |
| Cases cited: Briginshaw v Briginshaw [1938] HCA 34; (1998) 60 CLR 336 Deiter & Deiter [2011] FamCAFC 82 Goode & Goode [2006] FamCA 1346 Hoda & Pallavi [2020] FamCA 44 Johnson & Page [2007] FamCA 1235 M & M [1988] HCA 10; (1988) 166 CLR 69 SS & AH [2010] FamCAFC 13 W & W(Abuse Allegations: Unacceptable Risk) (2005) FLC 93-235 |
| Applicant: | MR YARBOROUGH |
| Respondent: | MS YARBOROUGH |
| File Number: | SYC 6995 of 2020 |
| Judgment of: | Judge M Neville |
| Hearing date: | 18 December 2020 |
| Date of Last Submission: | 18 December 2020 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Dr Barnett |
| Solicitors for the Applicant: | ATW Family Law |
| Counsel for the Respondent: | Ms Cantrall |
| Solicitors for the Respondent: | Kyle & McGowan Family Law |
| Solicitors for the Independent Children's Lawyer: | Mr Lennon of Sydney West Family Lawyers |
THE COURT ORDERS, PENDING FURTHER ORDER:
The children X born in 2007 (“X”), Y born in 2010 (“Y”) and Z born in 2015 (“Z”) (collectively referred to as “the children”) shall live with the mother.
X and Y shall spend time and communicate with the father:
(a)During the gazetted NSW school holiday periods, except during the gazetted NSW school holiday periods, from 10 am to 4 pm one day per week supervised by a supervised contact service with the parties to share all costs of the supervision including any reports furnished by the agency;
(b)During the NSW school term time, except during the gazetted NSW school holiday periods, from 10 am to 4 pm for three (3) Saturdays each month supervised by a supervised contact service with the parties to share all costs of the supervision including any reports furnished by the agency
(c)Via Facetime for a period of up to one (1) hour twice a week as agreed between the parties or failing agreement from 5pm to 6 pm on Tuesday and Thursdays; and
(d)Any other times as agreed between the parties.
Z shall communicate with the father via Facetime for a period of up to one (1) hour twice a week as agreed between the parties or failing agreement from 5 pm to 6 pm on Tuesdays and Thursdays.
The matter be adjourned to 15 January 2021 at 9.30am for mention.
IT IS NOTED that publication of this judgment under the pseudonym Yarborough & Yarborough is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6995 of 2020
| MR YARBOROUGH |
Applicant
And
| MS YARBOROUGH |
Respondent
REASONS FOR JUDGMENT
X, aged 12 years, Y, aged 10 years, and Z, aged five years, are the children of the applicant, Mr Yarborough (“the father”), and Ms Yarborough (“the mother”).
The children’s parents are in dispute about future parenting arrangements for the three children following the breakdown in what appears to have been an equal time or close to equal time parenting arrangement in 2020.
The matter was listed for interim hearing on 18 December 2020, and on that date the Court was required to consider whether or not the children were at an unacceptable risk of harm should they spend unsupervised time with the father, and/or whether or not the children’s time with the father should resume and progress to unsupervised time in a graduated time arrangement, ultimately culminating in parenting arrangements that are similar to the arrangements put into place until earlier this year.
These reasons were delivered orally on 22 December 2020 and have been corrected from the transcript.
Background
The parties commenced their relationship in or around 2003.
Their first child, X, was born in 2007. X was diagnosed with Autism Spectrum Disorder in or around 2013.
Y is the parties’ second child, and she was born in 2010.
The youngest of the three children, Z, was born in 2015.
The parties’ relationship apparently ran into difficulty in 2019, and ultimately the parties separated on a final basis on or around 31 August 2019.
Throughout their relationship, the parties had been assisted by a nanny in relation to the care of the children around the father’s work hours, and it would appear that that arrangement continued for some period of time following separation.
Upon separation, the parties determined to enter into what was known as a “nesting arrangement”. That arrangement was one where the parties found a suitable apartment in Suburb B, New South Wales that would be the children’s primary residence, and in order to spend time with and care for the children each of the parents would move into the apartment during the periods of time that they were living with and/or spending time with the children. The nesting arrangement allowed the children to have one consistent place of residence and required the parents, effectively, to come and go from the residence.
The relationship between the parents after separation and during the period of the nesting arrangement was not without its difficulty. It would appear that each of the parties had gone on to form new relationships, some casual, some longer term, and it would appear that there were occasions where this caused concern and, or, consternation in the mind of the other party.
In any event, it would appear that in or around July 2020, something changed in relation to the care of the children. It would appear at that point in time that Z started to make comments to the mother which, to the mother’s mind, indicated that something inappropriate was occurring, although she was not at that point in time able to get to the bottom of it.
In July 2020, Z reportedly expressed to the mother comments such as that she sucked her father’s thumb and it tasted nice; that she no longer wanted the father to assist her on the toilet; that she did not wish to share a bed with the father; and most significantly a comment to the effect of Z considered that the father’s breath smelled like his penis. These matters raised concern in the mind of the mother.
At or around this time also, the mother’s new partner, Mr C, was introduced to the children and apparently commenced to spend increasing periods of time with the mother and the children.
On 21 July 2020, the mother made a call to a helpline, 1800 RESPECT, to discuss Z’s comments to her. At this point in time, a risk of harm report was made to the Department of Communities and Justice (“the Department”).
The parties were scheduled to attend mediation to discuss parenting arrangements on 22 July 2020, although having regard to the events to which I have just referred, the mother postponed that mediation. She took the decision to suspend time between Z and the father.
The children were interviewed by caseworkers from the Department on 28 July 2020. It appears, as best I can work out, that the father was first informed that a report had been made to the Department on or around 30 July 2020. He was informed of this by the mother, but she did not discuss with him the detail of the report.
The mother contends that on 2 August 2020 Z asked her to take a photo of Z’s clitoris. Apparently, in the course of discussion about the photograph between Z and her mother, Z reported that the father had taken a photograph of her clitoris on one occasion prior then, apparently, Z then changed her mind and indicated to her mother that that had not occurred.
Throughout August 2020 it appears that Z was troubled in her sleep. The mother contends that Z would wake up in the middle of the night calling out things which caused her (the mother) worry and concern. One of the things that Z apparently woke up screaming was that her vagina was sore.
In the background of these matters that concerned the mother, the Department was continuing to investigate a variety of reports that had been made to it.
On 25 August 2020, Y apparently made complaint that her vulva was scratched. The parents are at odds as to which of them had care of Y when the scratch was first observed or when the scratch occurred, but in any event, Y is reported to have indicated that her vulva or her vagina had been injured recently and she had become aware that there was a scratch to it. Y was apparently taken to D Hospital, where it would appear she was assessed by members of the hospital staff, if not the hospital’s Child Protection Unit.
The children spent a weekend with the father on 29 August 2020, and shortly thereafter the Department wrote to each of the parties indicating that its investigation of the matter had been one which resulted in a conclusion of “moderate risk”. The Department informed each parent that its investigation would be closed, and suggested some steps to the parents that they could take to manage future risk.
It was at or around that time the mother ceased time between all three children and the father.
I observe that in the lead up to this, there was a period of time during which the older children, Y and X, would spend time with the father, whilst Z remained in the mother’s care. This was appears to have been acceded to by the father, in the entirety of the circumstances.
After the Department sent the letter indicating that its investigation would be closed, further risk of harm reports were received. The Department apparently took steps to refer the matter to the Joint Response Unit, which appears to be a joint initiative by the Department of Communities and Justice, New South Wales Police and the Department of Health to investigate and assess concerning child protection allegations.
On 18 November 2020, Z was interviewed at preschool by NSW Police and Departmental caseworkers. Neither parent had been informed of the interview prior to it occurring.
Shortly after that interview, it would appear that FaceTime commenced between the father, X and Y and, very occasionally, Z would participate in the call.
Things came to a head when the father commenced these proceedings, filing his Initiating Application on 2 October 2020. He sought parenting orders in relation to the children.
The mother filed a Response in the matter on 29 October 2020.
The matter was first before the court on 2 November 2020, at which point in time the parties entered into consent orders providing, relevantly, that:
a)The parties would be restrained from facilitating the children’s attendance at E House for counselling or therapy; and
b)The parties would do all acts and things necessary to ensure that the children attend on Ms F or, if Ms F was unavailable, on another therapist as may be agreed between the parties; and
c)Various restraints be put in place in relation to the children being taken to a medical practitioner for check-ups and treatment, other than in the case of routine check-ups in the case of emergency, or in relation to illnesses; and
d)X would continue to attend counselling upon Mr G; and
e)An Independent Children’s Lawyer (“ICL”) be appointed; and
f)Pursuant to section 11F of the Family Law Act a Child Inclusive Conference with an agreed practitioner would be convened at the parties’ request.
The matter was adjourned for interim hearing before me on 18 December 2020. Leave was granted to the father to file an affidavit in reply to the mother’s affidavit.
The parties and the children attended upon Mr H of the J Counselling Centre for the Child Inclusive Conference. Mr H conducted interviews with the parents and children on 10 and 11 November 2020 and conducted a further telephone interview on 13 November 2020. He prepared a report which was returned to the Court and released to the parties on 7 December 2020.
The ICL was appointed on 8 December 2020. The interim hearing occurred on 18 December 2020.
Applicable legal principles
By reference to the matters that are set out by the Full Court in Goode & Goode[1], it is clear that an interim hearing is an abridged with a curtailed scope of inquiry. Where the Court is unable to make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.
[1] [2006] FamCA 1346.
The Court looks to less contentious matters such as agreed facts and issues that are not in dispute, and regard is to be had to the care arrangements prior to separation, the current circumstances, and the parties’ respective proposals for the future.
The Court must regard the best interests of the child as paramount in deciding what interim parenting order to make.
The task of determining interim parenting applications where there are allegations that the children are at risk from family violence, physical abuse or child sexual abuse is notoriously difficult. The authorities are clear, however, that notwithstanding the confines of an interim hearing, the Court cannot set aside competing contentions as to family violence or child protection matters as being impossible to resolve on an interim basis.
In SS & AH[2], the Full Court observed that a judge may need to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.
[2] [2010] FamCAFC 13.
In the present case, given that one of the risks contended for – and the most significant risk contended for – is a risk of sexual harm, it is important to look at how the Court deals with allegations of sexual abuse.
In Deiter & Deiter[3](“Deiter”) the Full Court identified that risk assessment at an interim stage comprises two elements; the first is the prediction of the likelihood of the occurrence of harmful events, and the second is the severity of the impact of those events were they to arise.
[3] [2011] FamCAFC 82.
In Deiter the Full Court observed that risk assessment cannot always await the last piece of evidence being given, and that it is always a question of degree.
In M & M[4] the High Court of Australia observed that when considering allegations of sexual abuse there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, such a finding will have a decisive impact on the order to be made. There will also be cases in which the Court has no hesitation in rejecting the allegation as groundless. However, in resolving the wider issue, the Court must determine whether, on the evidence, there is a risk of sexual abuse occurring if “custody or access be granted” and the Court must assess the magnitude of that risk.
The High Court observed that in deciding what is in the best interests of the child, the court is frequently called upon to assess and evaluate the likelihood of possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of the child, is a fundamental matter to be taken into account in deciding parenting arrangements. Where the Court is faced with a “spend-time with” case, the magnitude of the risk may be less if the order in contemplation is one of supervised time.
The High Court observed that in devising such tests in relation to whether or not there is an unacceptable risk of harm, the courts have endeavoured in their efforts to protect the child’s paramount interests to achieve the balance between the risk of detriment to the child from sexual abuse, and the possibility and benefit to the child from time and relationship with the parent.
The High Court concluded that 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.
As was pointed out in the ICL’s submissions, the High Court also observed in M & M that in considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw[5].
I pause to observe that in an interim stage in proceedings where the evidence has not been tested through the rigours of cross-examination, I could not proceed to make a positive finding that sexual abuse has occurred.
The ICL in his case outline included an extract from the judgment of Hannam J in Hoda & Palavi[6], in which her Honour set out a pathway of risk assessment. In the extract referred to by the ICL, her Honour’s outlined her assessment of the matters of Johnson & Page[7], and W & W(Abuse Allegations: Unacceptable Risk)[8], where the Full Court observed that, as a matter of practice, in a case where sexual abuse allegations are raised a trial judge will almost inevitably be required to consider whether abuse has been proven on the balance of probabilities, as well as considering whether or not an unacceptable risk of abuse exists.
Again, I observe that the confines of an interim hearing do not allow the Court to determine, in this case, whether abuse has been proven on the balance of probabilities, or indeed, at all.
The authorities caution that at an interim stage, where the evidence is yet to be tested and where the Court is often faced with competing contentions and little agreed facts or other independent evidence that will allow the Court to make finding, that the Court should proceed on a cautious basis.
The material relied upon by the parties
On this interim application, I was greatly assisted by the case outline documents carefully prepared by counsel for each of the parents, and by the ICL.
The father relied upon:
a)His Initiating Application filed 2 October 2020;
b)His affidavits of 2 October 2020 and 2 December 2020; and
c)The Notice of Risk filed 2 October 2020.
The mother relied upon:
a)Her Response filed 29 October 2020;
b)Her affidavit of 29 October 2020; and
c)The Notice of Risk filed 29 October 2020.
All parties relied upon the memorandum of the Child Inclusive Conference prepared by Mr H. Mr H’s report was admitted as an exhibit in the proceedings.
All parties made reference to documents produced on subpoena by the Department of Communities and Justice. Given that the court was operating within the confines of an electronic hearing under COVID-19 restrictions, the entirety of the material produced on subpoena by the Department was admitted as an exhibit and that course was taken with the consent of all parties.
The competing applications
Each of the parents had prepared a minute of order, which was tendered in the proceedings. These minutes of order varied slightly from the relief set out in the Initiating Application and Response that had been filed by each of them.
The father’s application
By his minute of order, the father sought:
a)That he and the mother have equal shared parental responsibility for the children.
b)That there be time between the children and the father on X’s birthday.
c)That the children spend time with him from 11 am Christmas Day, 25 December until 10 am Monday, 28 December.
d)Commencing on, and from, 30 December 2020, the children spend time with him in an increasing regime of overnight time, to occur in a series of stages whereby:
i)For the first three months, or close to, the children spend time with him:
§In week one: from after school Wednesday until before school Thursday (or 10am Wednesday to 5pm Thursday if time occurred on non-school days); and
§In week two: from after school Friday until before school Monday.
ii)That on and from 9 March 2021 time in week one increase to Tuesday to Thursday.
iii)On and from 8 June 2021 time increase again so that, on an ongoing basis, the children spend time with him during school terms
§In week one: from Tuesday after school until Friday before school; and
§In week two: from Friday after school until Monday before school.
e)The children spend half of each of the short school holiday periods with him and that they spend alternate week time with each parent during the long school holidays.
In his minute of order, the father proposed a series of orders to be made in relation to special occasion time, which had the flavour of orders in the nature of final relief rather than interim relief.
The father also sought a series ancillary orders designed to support communication between the children and the parent they aren’t spending time with, as well as to regulate the children’s attendance upon medical practitioners, counsellors, mental health practitioners and other medical professionals, without the prior written consent of the other parent.
The father sought orders that the parents be restrained from discussing the proceedings with the children, or denigrating the other parent, and that each parent keep the other notified of any changes to their address or contact details.
The mother’s application
The mother proposed orders that:
a)The children live with her.
b)During NSW school holiday[9] periods, X and Y spend time with, and communicate with, the father from 10am to 4 pm one day each week, supervised by a supervised contact centre or, I have inferred, a professional contact supervisor, with the parties to share all costs of the supervision.
c)During NSW school terms, X and Y spend time with the father on a supervised basis on three Saturdays out of four – or three Saturdays in each month.
d)X and Y have Facetime communication with the father for up to one hour, twice per week, as agreed between the parties, and at such other times as may be agreed between the parties.
e)Z communicate with the father via Facetime for a period of up to one hour, twice per week.
[9] Whilst the mother’s minute of order states “NSW Public Holiday” periods, I have inferred from the totality of the document that this should be a reference to NSW School Holiday periods.
The mother proposed orders that the father complete a course of psychological therapy in relation to parenting guidance around children’s bodily integrity and safety. She also sought orders that the children undertake therapy sessions with the aim of being provided with child safety skills, as directed by Ms K, social worker, or a similarly qualified professional.
The mother sought that a Chapter 15 single expert be appointed to undertake a comprehensive child and family psychiatric assessment.
The ICL’s applications
The ICL did not propose a minute of order in the proceedings. However, in the case outline document prepared by him, he took the following position:
a)The ICL supported the orders sought by the father, insofar as they advanced a case for graduated overnight time.
The parties’ respective positions
In terms of the parties’ positions, they can be analysed or summarised as follows.
From the father’s perspective it would appear that following a breakdown in what he had understood to be a cooperative co-parenting relationship, he considers that the mother is trying, in effect, to preclude his ongoing, close, and loving relationship with the children.
Insofar as the mother has raised concerns about the children’s safety, arising from comments the children are reported to have made to her, and about events occurring in the father’s care, if I have understood the father’s position correctly, he does not say that the mother makes these allegations or raises these matters maliciously or falsely. Rather, the father’s position is that the mother has taken a number of disparate, or different, pieces of information, and has interpreted them and analysed them, through a suspicious, abuse based lens.
If I have understood the father’s contentions correctly, he accepts that the concerns expressed by the mother are concerns that are genuinely held by her, but he contends that her concerns are clearly misguided.
The father considers he has a close and loving relationship with all three of the children. He contends that in the event that the children spend time with him, as set out by the mother, that this will interfere with, and have a negative impact upon, their prior close and loving relationship.
The father contends that he poses no risk of harm to any of the children. He denies having behaved inappropriately and, or, having engaged in sexual abuse upon any of the children.
He contends that insofar as the Court may be required to undertake a risk assessment, there are a number of steps that may be taken to mitigate a risk of harm prior to the Court concluding that the risk of harm is unacceptable, such that it would impose supervised time, or make orders that there be no time at all.
In this regard, he contends that the mitigating steps that can be taken include restraints and undertakings being given by him.
From the mother’s perspective, she contends that the heart of this issue is the matter of risk assessment.
It is the mother’s belief that it is possible that the children have been exposed to abuse, and sexual abuse, in the father’s care.
As I understand her case, she contends that this is a risk that arises in relation to all three children, although it is a risk that primarily appears to have been identified by comments made by Z, as well as some concerning matters reported about Y.
The mother’s case is that on the basis on the evidence before the Court, the issue of the risk of sexual abuse is to be approached by the Court examining a combination of matters and a combination of pieces of evidence that have been raised by the mother.
The mother contends that the children have made various disclosures, and that independent bodies have observed changes to Z’s demeanour, and to some extent, in Y’s demeanour.
From the mother’s perspective, she indicates that she does not wish to thwart the relationship between the children and the father, but rather, she contends that until further information is available and the Court has a better opportunity to test the evidence about the allegations of abuse, the risk is great and if the risk was to crystallise, the consequences of that risk on the children are very high. This is particularly so, given Z’s young age, and the fact that the mother raises the spectre of sexual abuse.
The mother contends that on an interim basis, there is no way to manage the risk that she alleges other than by the making of the orders that she sets out in the minute of order that was filed by her.
The ICL contends that there is an obvious risk that has been raised, that being the risk of sexual abuse. From his perspective, the risks to the children can include physical risks and psychological risks.
The ICL raises, as a possibility, that if the children were to have experienced sexual abuse at the hands of the father, and they were to continue to spend time with the father, it may give rise to the risk of psychological harm, as well as the obvious risk of sexual harm to the children.
He contends, however, that the “flip side” of that, is that if abuse has not occurred and if time is constrained, then there is the risk of a fracture in the children’s relationship with the father, arising in circumstances where they may not spend time with him, or where their time is supervised or occurs through Facetime.
From the ICLs perspective, he considers that the evidence, at this interim stage, is imperfect, and that the Court needs to deal with the evidence as it finds it. The issues that have been raised by the mother have been investigated by the Department of Communities and Justice and have not been substantiated.
The ICL observes that prior to these matters being raised, the parties were in a near equal time nesting arrangement.
The ICL contends that it is clear that X and Y both miss the father and want time with him. Insofar as the mother proposes that X and Y spend time with the father, and that Z not be a part of that time, he contends that the risks associated with this would be to communicate to Z that she is a “problem child”; that she is a “road block” between the two parents; that she is being treated differently than her siblings; and that she has been singled out.
Determining the children’s best interests
It is clear that the Court must determine, on an interim basis, what is in the children’s best interests. The Court does this by considering those matters at section 60CC of the Family Law Act that are relevant to the issues in dispute.
The two primary considerations are the benefit to the children of having a meaningful relationship with each parent, and the need to protect the children from physical or psychological harm from being exposed to abuse, neglect, or family violence.
The Family Law Act is clear that of the two primary considerations, the Court is to give greater weight to the need to protect the children.
The Court also considers those matters set out at section 60CC(3) that are relevant on an interim basis. To my mind, those are in the present case:
a)Any views expressed by the child, and factors that the Court thinks are relevant to the weight that should be given to those views;
b)The likely effect of any changes in the child’s circumstances, including the effect of separation from the parent or any other child with whom they have been living;
c)The capacity of each the child’s parents to provide for the needs of the children; and
d)The issue of family violence.
Turning then to each.
Meaningful relationship
The authorities define a meaningful relationship as one which is of “important, significant, and valuable” to the child.
In assessing the benefit to a child of a meaningful relationship, and giving effect to that by way of Court orders, the authorities endorse a prospective approach – that is, to assess the nature of the relationship as at the time of hearing, and then, if possible, to craft orders which would give effect to the children enjoying the benefit of the meaningful relationship.
It would appear that up until recent times, the father was heavily involved in caring for the children, as was the mother. As noted, the parties, upon separation, entered into a nesting arrangement whereby they were spending either equal time, or close to equal time, with each of the children.
Both parties propose that there be ongoing time and communication between X and Y, and the other parent, and in Z’s case, the mother proposes that there be ongoing communication between Z and the father.
In circumstances where both of the parents seek orders that would promote a relationship between the children and each parent, and, notwithstanding that allegations of sexual abuse that have been raised by the mother, where the mother does not seek that there be no time between the children and the father, I can only consider, at an interim stage, that both parents are satisfied that each of X, Y, and Z, has a meaningful relationship with the other parent, and that there is benefit to each of those children in that meaningful relationship continuing. They are just in dispute at this point in time as to how best to achieve it.
The need to protect the children
This, to my mind, is the most significant of the section 60CC factors arising for consideration in the present dispute.
It would appear, as I have noted, that the mother contends that the children are at an unacceptable risk of harm if they spend time with the father on an unsupervised basis. In relation to that contention, I observe that in her affidavit, the mother makes clear that she has given contemplation to the seriousness of the allegation that she makes. She indicates through her affidavit evidence that the position that she presently finds herself in, is one which she describes as “terrifying”. She has indicated that, at this point in time, she has sought assistance herself to deal with the matters that she raises, and that insofar as she has taken a decision that the children should not spend time with the father, it was not one that she took lightly.
The mother’s evidence as to family violence
The mother’s affidavit evidence indicates that, from her perspective, when she looks back on the relationship between herself and the father, there were a number of matters that occurred between them, which she considers fits the profile of family violence, although she did not recognise that at the time.
It would appear from the matters that she makes reference to in her affidavit that on her case, she experienced forms of family violence of a coercive and controlling nature including:
a)The father assuming responsibility for financial matters and exerting financial control upon her;
b)The father accessing information about her;
c)The father having engaged in conduct whereby she considers it possible that he has set-up fake profiles of her which have been posted on a dating website;
d)That the father may have taken steps to put either a laxative or some other poison into her food which caused her to experience gastrointestinal problems, those problems resolving almost spontaneously upon the ending of the relationship.
Those, however, are not the primary contentions that the mother makes in terms of the present risk matrix.
The mother’s evidence as to the risk of sexual abuse
In or around July of 2020, the mother took the decision to cease time between Z and the father as a consequence of some disclosures that were made to her by Z. On 1 September 2020 she then took the decision that X and Y should not spend time with the father.
In terms of the risks that are identified in the mother’s affidavit, she outlines that on 4 July 2020, Z called her into the toilet and said to her words to the effect of, “I do not want Dad to come. I feel more shy around Dad.”
On 11 July 2020, Z again called her into the toilet and said to her words to the effects of, “I told you last week, I do not want Dad to come. I do not want to sleep in the same bed as Daddy. I want to sleep with Y.” The mother informed Z that it could be organised and that she would let her father know.
The mother gave evidence that from early July 2020, Z started sucking her thumb. She tried to suck the mother’s thumb and when she did so, the mother said, “No. We don’t do that”, and that Z said, “Well, I sucked Dad’s thumb and it tasted nice.”
The mother gave evidence that from late July 2020, Z was having nightmares every second or third night where previously she had not had nightmares.
The mother reports concern or gives evidence of concern that Z was playing with her dolls and that she was open-mouthed kissing them and that when the mother walked into the room and saw her doing this, Z appeared embarrassed.
On 20 July 2020, the mother and Z had a conversation in the kitchen whilst the mother was preparing dinner. Z said to the mother, “I do not want to see Daddy, it is bad.” The mother said, “Why? Why do not you like going?” Z said, “His breath smells like his penis.” The mother said, “What do you mean? What does a penis smell like? Was the penis close?” Z said, “I was here, and the penis was there.” Apparently, Z, at that point in time, demonstrated an arms-length away. The mother said, “Was it touching you? What do you mean? Did it smell like wee?” Z nodded. The mother asked if there was anything else, and Z said, “No”, and started playing.
The mother also gave evidence that on the same day Z said to her, “Mummy, my bottom hurts.” Upon examination the mother saw that Z’s bottom had an unusual round, red rash which cleared up after the mother applied cream a couple of days later.
The mother made contact with the 1800 RESPECT helpline and it was at that point in time that there was some form of report made to the Department of Communities and Justice. That then led to a train of investigation and enquiry.
The mother gave evidence that on 28 July 2020, the children were interviewed by caseworkers from the Department.
She further gave evidence that on 31 July 2020, Z woke in the middle of the night saying, “Dad”, and something about scarves around her neck and asking her mother to get the scarves off her neck.
On 2 August 2020 when she was putting Z’s night nappy on, Z started fretting about a white spot on her clitoris. Z is reported to have asked the mother to take a photograph of her clitoris. The mother replied that they did not need to take a photo. The mother then asked Z, “Have you taken photos of your vagina before?” Z said, “Yes, with Dad. Just one photo.” Z then said, “No. We did not take any photos.” The mother sought to clarify, and Z said to her, “I do not want to get myself in trouble.”
On 6 August 2020 Z woke up and screamed in what was described by the mother as “a piercing wail”, “My vagina is sore. My vagina is sore.” The mother attended to Z and comforted her.
The mother had communication with the Department in early August 2020 and the Department informed her that the case would be closed, and the risk was assessed as moderate.
Apparently, in mid-August 2020, Z became resistant to attending preschool.
On or around 26 August 2020, Y came back from the father’s apartment with the parties’ nanny, Ms L. The mother gives evidence that at that point in time Y had a cut on her vagina. Y apparently showed the mother the cut. When asked about what had happened to her vagina, Y replied, “I do not know what happened. Maybe I scratched myself because my vagina has been itchy. I had long nails yesterday, but I cut them today.” The mother checked Y’s nails and observed that they did not look like they had been recently cut but they were a bit dirty.
The mother observed that the cut to Y’s vagina was about an inch and a-half long with an opening of about one millimetre and that her perineum had about six small cracks around it.
The following day, the mother took Y to the D Hospital and Y told a social worker and a GP, “I have had an itchy vagina for ages, and I scratch it all the time.” Apparently, the medical professionals gave the mother a fact sheet on vaginitis and told the mother there was nothing else they could do.
The mother made contact with Y’s school in early September 2020 and indicated that at or around the time of the attendance at the D Hospital, Y was very distressed. She turned up to school tearful and quiet. Apparently, the teacher told the mother that during Child Protection Week, Y was very distant and dissociative whilst they were doing an activity. She stared out the window and would not participate in the activities and the teacher was reportedly worried about her. The mother apparently replied that she was concerned about Y and her mood swings, and that she had noticed that Y had dissociated.
The father’s evidence and response to the issues of family violence and the risk of sexual abuse
In his first affidavit, the father indicates that he became aware – or he observed – in around July 2020 that the mother had begun to make some pointed comments about his relationship with the children by which she was critical about the father tickling X. On the father’s evidence, the mother started to communicate to him that tickling X and setting up a “tickle jar” (by which the father would deposit 50 cents into the jar in the event that the father forgot and tickled X after X had said he did not want the father to tickle him any further) was “grooming behaviour”.
The father gave evidence that the mother sent the message that the father needed to stop touching the children’s bodies when they said, “Stop.” He interpreted this as a reference to some wider pattern of behaviour.
From the father’s perspective, he agrees that the mediation that the parties were supposed to attend on 22 July was cancelled and then, on 30 July in 2020, he was informed by the mother during a Zoom call with the mediator that the mother said, “I am suspending mediation. Z does not want to see Mr Yarborough. I called a helpline because Z has been saying things and, as a result of the nature of those things, the helpline informed me I needed to call either the Department of Communities and Justice or the police. So I called the Department and they have interviewed all of the children.”
The father gave evidence that he was shocked upon hearing these comments.
The father’s evidence is that, hearing nothing from the Department in the days that followed, he initiated contact with the Department, speaking with Mr M, who informed him of the nature of the nature of the concern and reassured him that, based on the initial interviews, it was unlikely to be rated “high-risk”.
On 11 August 2020, the father spoke with Ms N, a caseworker with the Department, who informed him that the catalyst for the investigation was a comment made by Z that, “Daddy’s breath smells like his penis.”
The father gave evidence that he recalled that at his rock climbing gym, Z had declared loudly, “The hand sanitiser smells like a man’s penis.” The father’s evidence is that he queried this and understood that Z, for whatever reason, associated the smell of urination with the smell of alcohol. It is not clear from the father’s affidavit what it was that Z said to him that caused him to come to that conclusion.
In any event, the father gives evidence that on or around 25 August 2020, whilst spending time with Y and X, Y had a shower and came to the father and said to him, “I have got scratches on my vagina and I do not know how I got them. It has been itchy for a couple of weeks. Do you think I could have done it in my sleep or something?” He replied, “That is no good. I do not think you can do very much. Do you think you will be able to sleep?” Y said, “Yes. I can.” The father then said to her, “Okay. Good. See how you go. Maybe talk to Mum about this tomorrow and see what she says. It will be all right.”
On 26 August 2020, Y apparently attended school and the father gives evidence that she saw the mother before she returned to the father’s care later that day. He observed that Y appeared fine but after they had gone to bed, she got up again, came into his room crying. He said to her, “What is wrong?” To which Y replied, “These scratches I have got, they could not have been anything to do with you, could they?” The father gave evidence that he formed a picture of what conversation had occurred between Y and the mother, and he tried to comfort Y while she was crying. Y said, “I talked to Mum, like you said. Mum gets so serious sometimes. She goes straight to abuse. Everything is so big right now.”
The following morning, there was further discussion in which Y said to the father, “It was Mum’s tone. I felt like she was interrogating me about you, and it was really upsetting. I am really worried that she will take me away from you like she has with Z.” The father said to her, “No. You will always have a choice and you are always able to see your Mum, and your Dad.”
Y subsequently reported to the father that the mother had taken her to the doctor, and everything was okay.
The father confirmed that he too had received a letter from the Department on 7 December 2020 indicating that the Department had closed the investigation, and he annexed a copy of that letter to his affidavit material.
Following receipt of that letter, the father reached out to the mother by way of text message and then legal correspondence, trying to revive and reinstate time between himself and the children.
In the father’s second affidavit, he responds to some of the matters raised by the mother. He denies the allegations of family violence made by the mother. He denies having engaged in coercive and controlling behaviour, in financial abuse, in keeping password information or changing passwords, as contended for by the mother. He denies that he has set up fake profiles for the mother or in relation to the mother on dating websites and he adamantly denies that he has taken any step to administer poison or other substance to the mother.
The father, in his second affidavit, denies any allegations that he has acted in any sexual manner towards the children or that he poses a risk. His position is that there is an allegation regarding Z which arises from a single disclosure she made, which was investigated by the Department and then a separate issue about some scratches to Y’s vagina which resulted in the mother taking Y to the D Hospital.
In his second affidavit, the father makes no response at all and is silent on the issue raised by the mother as to whether or not a photograph was taken of Z’s vulva.
The father observes that having conducted a Google search of E (which is a counselling organisation to which the mother had taken the children) he became concerned about the nature of the counselling provided and the philosophy of the service.
He expresses concern that Z was interviewed on 18 November 2020 by a caseworker from the Department, as well as police officers, and the director of the child care. It is the father’s understanding that the attendance arose not as a result of any new information but the disclosures that the mother alleges were made in July 2020 by Z. He expresses concern about Z being interviewed by so many people about her father. The father indicates that he does not understand there to be any immediate concern raised by the mother about his relationship with X.
One of the issues that arose in this case, as well, was that the mother contends that following separation there were some text messages exchanged between the father and, if I have read it correctly, his mother, which appeared apropos of nothing on one of the children’s iPads. The mother gives evidence that she found out via Z’s iPad that the father was on several dating websites. And she became concerned that the websites that the father had been accessing were inappropriate for children.
In relation to that particular issue, it is the father’s evidence that he did not access inappropriate websites in Z’s presence. When I use the term, “inappropriate websites”, I refer to websites featuring adult content which are inappropriate for children to access, rather than to websites featuring adult content that an adult may choose to access in their own time and away from children.
I further understand the father’s evidence to be that shortly after separation he was exchanging text messages with his own mother in which he had, freely shared, some of his thoughts about the mother and her new relationship and that his mother had freely shared her thoughts in reply and that the conversation appeared on Z’s iPad via Apple Family Sharing. As best as I can work out from the evidence of the father, it would appear that that conversation appeared on Z’s iPad sometime in or after May 2020 and before June of 2020. It is the father’s understanding that Z did not read the message as she was not yet reading, and it was simply a private conversation between his mother and himself where he expressed private feelings.
Evidence from the Department’s file
Given the significance of the matters that are raised in this case and the difficulties of determining such matters on an interim basis, I have carefully examined the entirety of the material produced on subpoena from the Department of Communities and Justice which was admitted as Exhibit D.
I pause to observe that the documents produced by the Department has been redacted so as to conceal the names of people who provided information.
It appears that the Department first became involved with the family when a risk of harm report was received on or around 21 July 2020.
That risk of harm report indicates that the Departmental Helpline received a report identifying, in broad terms, that the parties had a shared care arrangement of approximately fifty-fifty with two nights on and two nights off, worked out by way of verbal agreement.
The information received on 21 July 2020 was that there had been three conversations between an unidentified person and Z raising concerns. The first of those occurred on 4 July 2020 when Z is reported to have said “I do not want Dad to come” and that she was “more shy around Dad.” The second occurred on 11 July 2020 in which Z is reported to have said that she did not want to stay with her father; that she is “more shy when Daddy is here.”; and “It is different when Daddy is here.”
The report also includes information that in relation to an anticipated holiday Z is reported to have said, “I don’t want to sleep in the same bed as Daddy. I want to sleep with Y.”
The information received by the Department was also that the reporter believed that the father was involved in a “Sugar Daddy” dating website where he pays for “escorts” and that in March 2020 an unknown woman came to the house and took Z for a ride on her scooter.
The unknown woman reportedly visited the house on another occasion and a photo, described as the woman’s “escort” photo, was found online and the reporter considered that the unknown woman visiting the children was an “escort”. Whilst “escort” is a quaint term, I have understood it as a reference to a sex worker having regard to the context of each party’s affidavit.
After that report was received, it would appear that the Department received a further report on, or around, 28 July 2020.
In that report, the reporter disclosed that Z said that she did not want to sleep in the same bed as the father; that Z has said, “I don’t like it,” when the father says, “I love you,” and when asked the question, “Why, how is it different when I say it to you and when your dad says it?” Z is reported to have said, “Your breath smells like ice cream and Daddy’s breath smells like cherries which is like the smell of his penis.” The Departmental record at this point contains a notation “en toto” which I have inferred as indicating that the material at that point of the record was a direct quote.
The report received on 28 July 2020 goes on to say that when the person that Z was talking to was a bit surprised by what she had said, Z is reported to have retracted her statement and said, “No, no, both you and Dad’s breath smells like ice cream.”
The report goes on to include a caseworker note that a home visit was arranged and includes a comment that the statements are “highly suggestive of sexual abuse.”
A home visit occurred on 28 July 2020 and a file note record was created as a result of that home visit.
It would appear from the file note record of the home visit[10] that caseworkers Ms N and Mr M attended the home. They initially spoke to the mother alone and then interviewed Z in the presence of the mother, the rationale being that Z presented as very shy and reluctant to speak to caseworkers.
[10] Exhibit D: document which bears the reference “...00 Consult”.
The file note record indicates that Z did not disclose any abuse to the caseworkers. She was able to identify who lives in her home. The caseworkers attempted to engage with Z who reportedly would whisper to her cat and would sometimes tell caseworkers what the cat said the answer was or otherwise she would whisper to her mum.
Z was able to describe the parenting arrangements. She was unable to answer what the rules are in her home when either her mother or her father was there, saying that she had forgotten. She indicated that she was getting tired and cuddled into her mother. The caseworker, Ms N, asked Z whether or not she remembered telling her mother that she doesn’t like when her daddy says he loves you. Z is reported to have said, “Nope,” and shook her head.
The caseworker then asked if Z remembered telling her mummy that she didn’t like the smell of her Daddy’s breath. Again Z is reported to have shaken her head and said, “No.” Caseworkers observed that Z then turned to her mum and whispered, “Why did you tell them that?” It was at that point that the interview concluded.
Y and X were then interviewed separately and neither reportedly made any disclosures of abuse.
Y said she feels safe equally with mum and dad and did not identify any worries about living with her mum or her dad, other than when her mum gets sad or angry. She was able to describe what safety means to her and she identified her parents as two safe adults.
The Department apparently inspected the home and formed no basis for concerns as a result of the state of the home.
On 29 July 2020, the Department conducted a safety report. [11]That safety assessment report indicated an outcome of “safe”. The Department’s caseworkers considered that, at that point in time, there was insufficient information to identify that the children were at risk of sexual abuse and were in immediate danger as no disclose of abuse had been made. No inappropriate sexualised behaviours were identified and no physical signs of abuse were reported.
[11] Exhibit D: document which bears the reference “...75”.
The safety assessment indicates that after interview with the children, the father was to be interviewed as part of the risk assessment process. Whilst it appears that the Departmental caseworkers intended to interview the father, no interview appears to have occurred prior to 4 August 2020 being the date recorded in the file on which the father contacted Mr M.
The file note record of that call indicates that Mr M apologised to the father for not organising an interview. He was unable to say why that did not take place but acknowledged the stress that it would cause.
Mr M outlined to the father that Z had made the following statements:
a)That her Daddy’s breath “smells like his penis” and “you know when it smells like wee”;
b)She did not want to stay with him any longer or to see him;
c)That she is “more shy” when her Daddy is here and it is different; and
d)That she doesn’t like when Daddy says “I love you”.
Mr M told the father there were no other disclosures or comments made.
The father is reported to have expressed some form of relief upon being informed of those matters as he thought it would be something more than that. He is recorded to have stated that he thought that the recent holiday to Town O with the children was positive and could not think of a reason why Z would not want to see him.
The file note record indicates that the father observed that on one occasion when they went rock climbing together Z said something really embarrassing at the top of her voice about the hand sanitiser that she had to use – that it smelled like a man’s penis. The father was reported to have said to Mr M that he thought this was unusual so he asked her why she said this and she said, “From you.”
The father is reported to have said that Z is a pretty small girl and somethings when she is in the bathroom he will go to the toilet and it might be from that. As for the “thing about his breath”, he doesn’t know. It was the father’s view that the hand sanitiser at the rock climbing club did not smell like urine. The father is reported to have concluded the call, by informing Mr M that it was sad that things had gotten to this and that the parents are not talking other than through texts about the children and finances.
On 7 August 2020, the Departmental file[12] indicates that new information was received that the father had set up a “tickle jar” for X, whereby the father would give 50 cents to X every time X let the father tickle him. A decision was taken by the Departmental caseworkers that the information should be read in conjunction with previous reports and assessed as part of ongoing casework.
[12] Exhibit D: document which bears the reference “Triage record ...28”.
On 8 August 2020 the Departmental records indicate that a decision was taken to “screen out” the information about the “tickle jar” due to it being considered a “non-risk of serious harm”.
The father was interviewed by case worker, Ms N, on 11 or 12 August 2020. It is not clear whether this was a telephone call or a formal interview but, in any event, the father was reported to have spoken with Ms N and indicated that he had no concerns about any alcohol or drug use by the mother but had been enquiring as to matters that were asked of him in some form of interview.
As best I can work out from the record it may have been that the father was formally interviewed on 11 August 2020, although I was unable to find a formal note of that record of interview in the material that was provided by the Department.
In any event, the father spoke to Ms N on 12 August 2020 wanting to check if he had raised that he had spoken to Z on facetime. He is reported to have indicated that the Facetime call that had most recently occurred, was cut short by the mother and that he was unable to remember if he had made that clear on 11 August 2020 when he and Ms N spoke. The father expressed that he believed that the mother is trying to prevent Z from being in contact with him, without her being there.
The father is reported to have asked some questions about the appropriate age at which a child could still sleep in the same bed as a parent and when a child might be considered too old to sleep in the same bed as a parent. He reportedly queried whether or not there were any guidelines or policies around that.
Insofar as there is any record of the matters discussed between the father and Ms N on 11 August 2020, the only record that I could find of it was in the risk assessment report[13] apparently created on or around 28 August 2020.
[13] Exhibit D: document which bears the reference “Assessment ID ...91”.
The information contained in that document indicates that on 11 August 2020 the father denied ever having touched any of the children inappropriately or making them do anything inappropriate towards him. He is reported to have said that he believes the acrimony between him and the mother has magnified certain things. He is reported to have expressed the belief that the children are aware that the parents are not getting on as they don’t talk anymore and Z may be picking up on this tension. The father is reported to have said that Z may be favouring her mother, hence not wanting to see him.
In relation to Z having stated that the father’s breath smelt like penis, the father is reported to have advised that on the last day of holidays, when rock climbing, Z made a statement in front of lots of people that the hand sanitiser smells like a man’s penis. He did not question Z at the time but later asked her, did she mean “like my penis.” Z said, “Yes,” and he asked her what she meant and she said, like when he is “having a wee.”
The father is reported to have said that there have been times when he is urinating and Z is present however he would cease doing that given the current report. He is reported to have said that he does not make Z watch him urinate but provided a context whereby she may need to go to the bathroom and given her age and the fact that she still needs assistance with some tasks whilst in the bathroom, he may also use the bathroom and Z may, at that point in time, see his penis.
The father is reported to have accepted that he tickled X in the past and gave X some money, as an incentive, to try to get him to do some chores. He denied any ongoing financial arrangement in this regard and said he did not know it made X feel uncomfortable, but now that he does he would cease doing that.
The father confirmed that Z has helped do up his belt and tie his shoes because Z asks to help.
The result of that particular safety assessment was that the Department addressed risk assessment questions as follows:
A likelihood that sexual abuse has occurred and/or may occur and the perpetrator is likely to have access to the child or young person: No.
Non accidental injury to a child younger than two years: No.
Severe non accidental injury: No.
Parent’s or carer’s action or inaction resulted in death due to neglect or abuse, past or current: No.
It would appear that the Department conducted some further investigations, speaking with Ms P on 26 August 2020. Ms P is the director of the preschool which Z attends. The file note record of the conversation indicates that Ms P set out some observations which were formalised subsequently in a written summary on 30 October 2020. Ms P is reported to have indicated on 26 August 2020, that the preschool was doing a child protection book on the curriculum.
On 28 August 2020 case worker, Ms N, apparently had a telephone call with the Child Protection Unit. I inferred that this the Child Protection Unit at D Hospital. It is a very difficult file note to understand in parts but it would appear that Ms N obtained information that Y was examined by the hospital. She had been brought in by the mother with a cut on her vulva. The record read, “No sexual assault. Medically doctors can’t say what caused scratches. Did general medical. Y didn’t disclose anything.”
Beyond that, it is difficult from the case file note record to identify who said what to whom but it would appear that the Child Protection Unit considered that Y was “conforming, eager to please, quite open and talked about worries that she had about puberty.”
On the same day, Ms N had a telephone call with Y’s school principal who, in summary:
a)Expressed no concerns about Y’s attendance;
b)Observed that Y’s emotional presentation changed recently; and
c)Observed that sometimes she was distressed and usually speaks about divorce with her parents.
The principal is reported to have informed Ms N that Y’s demeanour changed in term 3 – about five weeks prior. The school had noticed change and there had been a couple of conversations about the mother’s new partner. Y is reported to have said that she didn’t like him yet and was upset about the mother having a new partner but didn’t not specify why she did not like the partner.
The school principal provided further information about Y apparently being unwell at times she was upset.
On 1 September 2020, caseworker Ms N received an email from X’s school. That email indicated that there were no concerns about X’s school attendance and there was only one behavioural concern in relation to X which occurred at the beginning of the year during a school camp, when X became distressed about not being put in the same room as a friend. His behaviour became dysregulated and he threw some rocks causing some property damage. The school considered that is was possible that that reaction in X was attributable to his diagnosis of autism spectrum disorder.
On 2 September 2020, Ms N had a consultation with a casework specialist, Mr Q. The record of that consultation indicates that:
a)Ms N and Mr Q were in agreement that there was insufficient information at that point to substantiate that abuse has occurred or is likely to occur, as there had been no disclosures.
b)There had been changes in behaviour noted, including night terrors, not wanting to see the father and being reluctant to go into preschool, however, “no red flags.”
c)The agreed course of action was to suggest counselling for the mother and otherwise that the parties develop a parenting plan through mediation, counselling services be implemented for Z and suggesting to the parents that mediation be utilised to develop a family safety plan about rules. This course of action appears to have been outlined in the letter sent to each of the parents on 7 September 2020 as appears in the affidavit material and in exhibit D.,
In relation to the letter that was sent to each of the parents on 7 September 2020, I observe that that letter sets out, relevantly, that a risk assessment in relation to a report received about Z was completed on 28 August 2020, with an outcome of “moderate.” The letter states “As the reported concerns have not been substantiated and the outcome was moderate, we will be closing the case.’ The letter then goes on to outline the recommended steps to be taken by the parents.
I observe that insofar as the letter makes reference to a “moderate risk”, it does not identify this as a moderate risk of any particular form of abuse. Rather it is a general statement that the risk was identified as moderate.
It is difficult to properly understand what information the Department next received, however, it would appear that there were a series of calls between the caseworker and the mother at various points in August and September 2020.
On 30 October 2020, the preschool prepared a report about their observations of Z. This was apparently done in response to a request by the Department’s caseworker. Whether this request was made because the Department had received a further Risk of Significant Harm report was difficult to make out from the information before the Court.
But in any event, the preschool details observations of Z in “terms 3 and 4”. I infer that references to terms 3 and 4 are references to the New South Wales school year and that term 3 commenced in or around July of 2020 and term 4 commenced in or around October 2020.
The preschool observed that for most of term 3 and into term 4, Z was finding it difficult to settle emotionally in the mornings. She had been more withdraw at times. She had been quieter than usual, making less eye contact than usual and was less responsive to attempts to help her settle. The preschool observed that this anxiety behaviour was not present in terms 1 and 2. In addition to those matters, in term 3 she started to bring a special blanket from home. She had increased tiredness, eating at unusual times that were out of sync with her usual routine.
The behaviours that were observed apparently sat in contrast from observations in terms 1 and 2 and were considered to have significantly decreased by term 4.
There was some observation about Z’s willingness to participate in a Father’s Day craft-making activity. Insofar as the record contains information about that, it appears that Z reported to her mother rather than to preschool staff that Z did not want to come to preschool on the day that the Father’s Day activities were being done and that she made a comment as to how the father might feel if she were to direct her activities towards her grandfather rather than the father.
The preschool also observed that in term 3, Z’s artwork was dark and messy with lines and scribbles drawn through her drawings, and that that was different to term 4, where her work had more clarity and colour.
After that, on or around 2 November 2020, a report was received by the Department’s Helpline which was apparently referred to the JRU[14]. I understand the reference to the JRU to be a reference to the Joint Referral Unit which is a cooperative enterprise between the Department of Communities and Justice, New South Wales Police and the Department of Health.
[14] Exhibit D: document which bears the reference “Engagement ...63”.
That document indicates that the matter was given a final response priority of less than 24 hours. The document contains a JRU decision rationale as follows:
Z, five, has disclosed that Mr Yarborough, father, has touched Z on the genitals, causing injury, shown his genitals to her and has taken a photograph of Z’s genitals.
It is not possible to identify with precision when that information first appears in the entirety of the documents contained within Exhibit D. I have been unable to locate the first time that the information was provided to the Department, New South Wales Police, New South Wales Health or to the JRU, other than from the engagement document described at footnote 14. In any event, I understand that this was the information that gave rise to an assessment that a response priority of less than 24 hours was required.
In terms of what then occurred, it would appear that on 12 November 2020, the caseworker called the preschool to arrange an interview with Z at the preschool. The interview occurred on 18 November 2020 and it would appear that Z was interviewed by a caseworker and at least one, if not two police officers, as well as the childcare director, Ms P, being present. I was unable to find within exhibit D a precise transcript of the interview with Z, nor any handwritten notes of the interview that occurred on that date.
Exhibit D includes a meeting summary document in relation to the interview. I do not consider it likely that the meeting summary document represents the entirety of what was discussed, but in any event, it appears to be the best evidence of the police interview with Z that occurred on 18 November 2020. The minutes are brief and state as follows:
(1) Z presented as very quiet and nervous; she spoke and responded to some questions but at other times remained silent and bit her mouth closed; (2) Z did not make any disclosures of harm during the interview; (3) Z shook her head when asked if the father has ever hurt her private parts.
The engagement record to which I have made reference includes a table of actions that have apparently been undertaken by various workers attached to the JRU. By reference to that document, it would appear that as at 16 November 2020, the matter sat with the Central Metropolitan JIRT, which I understand to be the Joint Investigation Response Team, and that the “LPR” status was incomplete. The documents do not explain what the LPR status is. It has therefore been impossible to conclude that the case has been closed by the Joint Investigation Response Team or the Joint Referral Unit.
It would appear that there was a discussion between case worker Ms R and Detective Senior Constable Ms S on or around 18 November 2020. I understand that both Ms R and the Detective Senior Constable were in the interview that occurred on 18 November 2020. The file note is a record of the police and Ms R reporting back to the mother and indicates that the police officer explained Z did not make any disclosures and that this was a good thing.
The mother apparently voiced some concern about the difficulties arising in relation to having a child disclose in circumstances where the child has only just met the people conducting the interview. It was foreshadowed by caseworker Ms R that the process of disclosure may take a long time and it may be difficult to get a child to disclose and that the caseworkers would therefore like to come and do a home visit and speak with Z again. There was some discussion about what might make Z feel comfortable if that was to occur.
In addition to that, the caseworker apparently asked the mother about the word “clitoris” being used by Z. The mother said no, this was a word that the mother used, and Z said the word “vagina”. Regarding the photograph of the vagina, it is reported in that record:
She said, “Yes, it was taken,” and then, “No.”
It is very difficult to understand whether this is something that was said by Z in interview or by the mother in the course of the conversation.
The file note record concludes with a notation that the police case has been suspended and that the case worker and the mother are to discuss a suitable timeframe for a home visit.
As far as I can ascertain, that is the most recent, relevant record amongst the significant volume of material produced on subpoena by the Department.
Conclusions and, or inferences, drawn from the Departmental file
Having regard to the entirety the Departmental file, it would appear that what I can make of it upon careful review is that other than one incident of behavioural concern occurring at the start of 2020 on school camp, X’s school has not noticed or identified any changes in his demeanour or behaviour and there are no concerns for his school attendance.
Y’s school observed a change in her demeanour in term 3 in or around mid-July 2020. She was apparently upset about her parents’ separation and expressed that she did not like her mother’s new boyfriend, but no further information is reported.
Z’s preschool noticed a change in her behaviour and demeanour in or around term 3, but that those changes had abated or ameliorated by term 4. In relation to the observations of the preschool staff, I consider that they have observed Z regularly throughout 2020 and are in a good position to be familiar with her characteristics and usual routines and demeanour.
To the extent that Z may be considered by any person to be selectively mute or otherwise to be a shy and reticent child, the preschool appears to be aware of these characteristics and I understand the observations they have made are made in light of Z having those characteristics. Insofar as they have reported Z engaging in quietness, reduced eye contact, reduced responsiveness and any withdrawal, I consider that these observations are made and indicate from the preschool’s perspective that they sit in contrast to her usual characteristics in this regard.
In terms of the preschool’s comments about what to draw from Z’s artwork, it is impossible to draw any inference in relation to the possibility of abuse having occurred from her artwork. There is no indication as to the extent to which Z’s artwork is expressive of abuse having occurred or a likelihood that abuse did occur. There could be any number of explanations as to why Z drew the things that she did in term 3.
I observe, however, that it was of note to the preschool that there had been a change in the artwork produced by Z, which, if I have understood correctly, sits alongside the other changes the preschool observed.
In addition to those matters, it appears that the Department first received information on 21 July 2020. Since that time, at no point have any of the children made what has been referred to as a “disclosure”, that is, as I understand it, the children have not made a statement indicating that an act of abuse has occurred.
The Departmental records indicate the Department has assessed at various points that the information provided to it raises suspicion or is highly suspicious of sexual abuse having occurred.
The allegations that there has been sexual abuse on Z or on Y have not been substantiated. To the extent that Z has made a comment that the father’s breath smells like anything, there are numerous iterations of her comments both through each parent’s affidavit material and the significant volume of material produced by the Department. It is impossible at an interim stage to assess whether Z said that the father’s breath smells like “his penis”, “a penis”, or in response to a question reportedly asked by the father, “your penis”.
Further, it would appear that the Department had, at some point in time, received information that the father is reported to have taken a photograph of Z’s genitalia. As noted, the first record I can find of that information being received is on or around 2 November 2020. I can find no record of it prior to that date and I can find no record of the father having been interviewed by the Department after that date.
To the extent that the Department was aware that a photograph of Z’s genitalia may have been taken by the father, it would appear that the Department did not have access to Mr H’s report (which will be discussed shortly) and it would appear that Z reportedly shook her head when asked about it by caseworkers or, in the alternative, said to case workers, “Yes, it did happen,” then, “No, it did not.”
Report of Mr H
There is further information that is relevant to the present inquiry contained in the report of Mr H.
In terms of the report, I observe that Mr H details further iterations of Z’s to the effect that “Daddy’s breath smells like a penis” or “like a man’s penis” or some other expression of that comment.
During interview, Mr H made some inquiries of the father in relation to the mother’s affidavit evidence that she had observed Z playing with the buttons on the father’s jeans, and the father explained that Z liked to help him tie his shoelaces and buckle up his belt, which he stressed was innocent.
Mr H reports that when he asked the father if he had ever taken a photograph of Z’s genitalia, the father said, “I suspect I did,” and, “It rings a bell I did this.” Given that that part of Mr H’s report is in quotation marks, I have inferred that this a direct representation of the words that the father used. Mr H reports that the father said that he did so in the context of Z asking him to show her that she had thoroughly cleaned cream from her vagina in the morning when he was changing her out of her night nappy. The father is reported to have said that he does not recall whether he provided that explanation to the Department and that he now regrets taking a photo.
He is reported to have expressed regret that the outcome of the Departmental risk assessment was moderate despite there not being any substantiation of the abuse.
The mother indicated in interview with Mr H that one morning when she was cleaning cream from Z’s vagina, Z asked her to take a photo to reassure her that her vagina had been thoroughly cleaned. The mother apparently then asked Z if anyone had previously taken a photograph of her vagina, and Z replied, “Yeah, with Dad, only once.” The mother then reported that upon inquiry, Z replied, “I don’t want to get into trouble,” and closed down the conversation.
Is there a need to protect the children from physical or psychological harm from being exposed to abuse, neglect or family violence?
Having regard to whether or not there is a need to protect the children from physical or psychological harm arising from exposure to abuse, neglect or family violence if they spend time with the father on an unsupervised or even a supervised basis, the evidence before me leads me to the conclusion that I am unable at this point in time to confidently rule out or rule in the possibility that some form of child sexual abuse has occurred. It appears to me on an interim basis that it is impossible to make any finding in that regard.
However, it would appear that the Department maintains some form of open case and envisages undertaking further interviews of Z in relation to the matters that have occurred.
To the extent that the father indicated in his most recent affidavit that the allegation regarding Z arises from a single disclosure that was made by her which was investigated by the Department, and then a separate issue about some scratches to Y’s vagina, this perhaps underestimates the information that had been provided to the Department and that was considered by the Department in the course of the investigation of various matters.
It would appear that insofar as the Department received a Risk of Significant Harm Report that Z made a comment to the effect her father’s breath “smells like penis”, that that is the allegation or that is the information that has not been substantiated, as noted.
In terms of the Department holding information about the father having taken a photograph of Z’s genitalia, it would appear that the precise source of information giving rise to that is unknown, as is the precise time at which it was received by the Department.
Irrespective, however, there is a curiosity that arises from Mr H’s report in relation to the father’s response to that particular piece of information.
It would appear that if it was the case that a parent had taken a photograph of their child’s genitals on one occasion, then that is something the parent would be likely to recall.
It is curious that the father was unable to recall with any certainty or any particularity as to whether or not he did in fact take a photograph of Z’s genitalia. It was not a matter that was addressed by him in his second affidavit at all, and it is a matter in which he indicated to Mr H that he suspected that he did and it rang a bell if he did.
It is also curious that Mr H reports that the father provided an explanation or a context in which a photograph was taken, if, in fact, it was taken, and there is no information that allows me to understand why it is that the father gave that context or otherwise expressed regret for having taken a photograph when he does not accept he took a photograph.
I inquired of counsel for the father about the status of the photograph at the time of the interim hearing. Counsel for the father confirmed that the father’s position was that he did not admit to having taken a photograph of Z’s genitalia. I asked where the photograph was as at the date of interim hearing, and counsel responded that the father had checked his camera roll and that the photograph was not on the camera roll – in the event that the father had taken the photograph, then it would have been deleted by him, and otherwise it would indicate that no photograph was ever taken.
This is a curious part of the evidence which has caused me some significant consternation in the time since the interim hearing was conducted. It has not been possible for me to resolve that particular issue given that I would consider that the father would be in a position to know with a little more confidence whether or not he had, in fact, taken a photograph of Z’s genitalia at any stage.
In relation to that issue, Mr H raises some concerns about boundary issues arising from such an action. Mr H indicates in his report that whatever the father’s reasoning for photographing Z’s genitalia – and I pause to observe I will read that as a reference to possibly photographing Z’s genitalia – it is inappropriate, at the very least misguided, and that it breaches a child’s sense of bodily safety and security.
Mr H recommends that the father would benefit from obtaining professional input or advice to inform him about appropriate parenting behaviours and skills to instil in the children a sense of bodily integrity, that is, to recognise when another person is infringing upon their personal space or doing something to their body that is inappropriate.
Whether or not it is the case that the father did, in fact, take a photograph seeking to provide reassurance to Z about this particular issue or whether or not no photograph was ever taken is something that I am unable to resolve at an interim basis given that it was a matter that was clearly raised in the mother’s affidavit material but not addressed by the father.
Insofar as the father may have some insight into that behaviour if, in fact, it did occur, it is difficult to understand the basis on which he has come to regret taking the photograph, as there is no evidence that would allow me to form that view one way or another.
In addition to the risks identified by Mr H at that part of his report in relation to any intrusion on a child’s sense of bodily integrity, it appears that a further risk arises in relation to this particular issue of the photograph and that is the risk that the photograph – if it was taken, and if it was taken on a mobile device – could have inadvertently wound up in the hands of another person, such as happened when Z’s iPad displayed text message communication between the father and his mother, apparently through some form of family sharing device.
If it were the case that there was a picture of Z’s genitalia, and if it was the case that that picture was transmitted unwittingly, inadvertently or through some form of family sharing through various electronic devices, the possibility that the image could have been seen by Z, by X, by Y, by the mother or by anybody else accessing a device is a risk that could have arisen and could be one that could have very devastating consequences for any of those persons. In certain circumstances, were that to have occurred – that is, were a photograph of a child’s genitalia to be transmitted either advertently or in inadvertently – it is a matter in relation to which state criminal laws would possibly be invoked.
I emphasise at this point in time that I do not make a finding that the father has deliberately taken a photograph of Z’s genitalia.
I do not make a finding that the father has retained an image of Z’s genitalia.
I do not make a finding that the father has transmitted an image of Z’s genitalia to any other person.
But what I am concerned about at an interim stage is the issue of risk, and in the absence of evidence from the father in relation to this particular issue, having regard to the totality of the evidence and the risks that I have already identified, I consider that there is at least a risk and that there is a need to protect the children from physical or psychological harm arising from the potential for being exposed to abuse, neglect or family violence in the event that they were to spend time with the father.
In terms of the unacceptability of that risk, I will turn to that in due course.
The children’s views and the weight to attach to them
In terms of the children’s views, X, Y and Z were interviewed by Mr H.
It is clear from X’s perspective, at nearly 13 years of age, that he misses his father. He does not understand why he is not presently spending time with his father. He felt sad when his parents separated but considers now that the sadness has gone away, and he spoke in very positive terms about activities that he enjoys undertaking with his father.
X did not express feeling frightened or upset in either parent’s care. He said he has not seen his father in months. He does not know why. He wants to know why he cannot see his father, and his mother has not provided him with an explanation. X said that he does not feel good about not seeing his father, and he would really like to see and spend time with his father, including overnight time.
For her part, Y was confused when her parents initially separated, but for reasons best known only to herself she considers that it makes more sense now. She indicated various views on the division of labour within the household and perceives that her parents were unhappy prior to separation and considers they are happier now. Y has no idea why she has not spent time with her father, and she considers it has been a long time since she last saw him.
She feels sad about not seeing her father but tries not to think about it all the time, and she is unsure as to whether her mother wants her to see her father. She would like to spend time with her father, including overnight time, and she would like this to commence as soon as possible. She would like any time that she spends with her parents to be fair, as was occurring previously, and did not raise concern about being in either parent’s care. She reported to Mr H that she has a good relationship with her mother’s new partner, Mr C, whom she described as nice and friendly.
From Z’s perspective, at age five, she had expressed some views, although I am cautious about the weight to be given to them given her age.
Z was asked about her father and indicated that she does not live with him. She was unable to remember what her favourite dinner was that her father cooked, and in the view of Mr H appeared to be slightly reticent when answering questions about her father.
Mr H commented that Z paused and made a clicking noise in her mouth before answering questions about her father. Whilst this may be one of Z’s characteristics, it appears relevant that Mr H had observed it and considered it necessary to make comment upon it.
In interview, Z drew a picture of her family but did not include her father in the drawing. When asked about this, she is reported to have looked slightly uncomfortable and said, “I don’t live with him”. She said that she sometimes misses her father and described both of her parents as kind.
The effect of any changes to the children’s circumstances
In terms of the effect of any changes in the children’s circumstances, it would appear from the report of Mr H that both X and Y miss their father. It appears that not seeing them is something that has caused them confusion and has caused feelings of sadness in them.
Z sits a little outside of X’s and Y’s perspective, and she appears to be somewhat more equivocal about her views about her father. Throughout the entirety of the material produced by the Department of Communities and Justice, she is reported by people to have said that she was reticent to spend time with her father and expressed various concerns about him. In terms of whether or not she misses her father, she had indicated that she sometimes did, but it would appear at her age and stage in development that she has been comfortable living primarily with her mother.
In terms of the effect of differing arrangements for the children, it is a matter I must consider given that it is the mother’s proposal that X and Y spend time with the father separately from Z and that Z spend no time with the father other than through Facetime. This is a difficult issue to assess on an interim basis.
It may be, as the ICL submitted, that if such an arrangement were implemented, Z would feel that she was being singled out and, or, that she is a “problem child”.
It is also clear, however, that earlier in 2020, steps were taken for Z to remain in her mother’s care whilst Y and X spent time with the father, and there is nothing in the evidence that indicates that this caused any particular difficulty for Z, nor that it contributed to any psychological harm in her.
The capacity of the parents to meet the needs of the children
In terms of the capacity of the parents to provide for the needs of the children, it would appear that both parents propose that the mother remain the children’s primary caregiver for the immediate future, but it is clear on the father’s case, supported by the ICL, that he seeks a return to something close to an equal shared-care arrangement.
The mother has given affidavit evidence that the events of the last six months or so have given rise to significant difficulty for her. Whilst there is no evidence from a psychologist or other person to talk about the impact upon the mother’s functioning, and whilst there is no evidence that the mother would not facilitate time in accordance with Court orders, it is clear from the mother’s affidavit that she has found the information that Z has reported to her to have been difficult for her to receive and respond to.
It is clear from Mr H’s report that he considers that the mother is concerned about the children’s safety in the father’s unsupervised care and the possibility that they could be exposed to further alleged abuse. It is clear from Mr H’s report that he considered that the mother was upset and distressed throughout interview and that she was experiencing some difficulty coming to terms with her own feelings about the events that had occurred.
It is clear from Mr H’s report that he considers that in order to meet the children’s needs the father needs to undertake some form of psychological assistance and, or, psychoeducation in relation to bodily integrity and respect for boundaries.
I observe in relation to the proceedings that the father has indicated in his proposed minute of order that it is his intention to undertake a parenting course, as proposed by Mr H, and is making inquiries as to suitable courses with the intention of enrolling in such a course. There is no information before the Court at present as to when it is that the father might be able to engage in that therapeutic work.
Family violence
In relation to family violence, I have addressed that earlier in these reasons insofar as the mother contends that family violence has occurred of a coercive and controlling nature and the father denies the mother’s contentions in that regard and gives an account which sits directly at odds with the mother’s account of financial control, abuse of passwords and contentions that the mother has been poisoned by him.
It is not contentious that there is no relevant family violence order in place between these parties.
What is in the children’s best interests?
In terms of the determination to be made, it would appear at this point in time that there are allegations that the father has engaged in child sexual abuse upon Z, possibly Y and possibly X. As noted earlier in these reasons, I am unable to rule in or rule out those allegations.
Having regard to the observations of the High Court in M & M, this is not a case where I could confidently accept the allegations and thereby determine the issue, and it is not a case where I could have no hesitation in rejecting the allegations as groundless and thereby determine the issue.
It would appear that this is a case where the Court must balance the consequences of the allegations for the children as against the impact on the children and their relationship with the father if certain steps are taken.
Having regard to the totality of the evidence, it is hard to know at this point in time what it is that Z actually said about the way that her father’s breath smells. There are simply too many records in which the precise words used by Z and, or, the nuance of those words may have been lost. Even within the father’s own account of his conversation with Z at the rock climbing venue, different versions appear in his affidavit and in the Departmental records of the matters reported in interview.
I do not for one moment suggest that this is indicative of the father changing his story to suit the facts. Rather, what it reveals is the difficulty of relying upon hearsay accounts and the fact that important words and nuance can be lost when summary records are taken. So I have approached the records in regards to that particular allegation with significant caution.
Insofar as there are reports about how Z has acted throughout the course of her sleep or things that she has said in dreams, it would appear to me that it is impossible at this stage to know how to interpret those matters. It cannot be the case that just because a child in the course of her sleep makes certain comments that it is indicative that abuse has or has not occurred. What appears significant to my mind about that part of the evidence, however, is that the mother observed that in or around July 2020, Z started to experience troubling nightmares which she had previously not experienced.
In relation to comments about the “tickle jar” and whether or not the father had tickled X against X’s stated wishes, again, looked at in the way that the Departmental material records that information, there could be something sinister about that issue. It is suggested at one point in the records that the father was paying X to allow him to tickle him. It is, however, also suggested in the father’s affidavit material that he implemented the tickle jar as a system so that in the event that father forgot that X did not wish to be tickled and, in fact, tickled X against his wishes the father would put 50 cents in a tickle jar. I infer that from the father’s perspective that this was a mechanism to reassure X that X would not be tickled in a way that he did not wish to be tickled.
In addition to what the Court may make of other matters such as the photographing of Z’s genitalia by the father, firstly, I am unable to ascertain that the father did, in fact, take a photograph because it is not something that indicates that he did. He appears to be equivocal about that. Whilst it may be that if a photograph was taken, it was taken for purposes which were proper in their reasoning – that is to provide reassurance to Z –I cannot make that finding because there is no evidence of it before me.
In addition to those matters, it would appear that at or around the time that there were changes to Z’s demeanour, the school observed changes to Y’s demeanour. It would appear that there were unexplained scratches on Y’s vagina or vulva. These may have a completely rational and regular explanation, and it may be that they are not indicative of abuse. It may be that Y has had some sort of infection or some sort of issue which has caused her to scratch her own vagina. The evidence does not allow me to conclude one way or another.
However, the comment that Y at 10 years of age is reported to have made to the father asking him “These scratches, they couldn’t have anything to do with you?” are curious. One would expect a 10 year old child to be able to have some confidence that the scratches had nothing to do with her father.
It was submitted for the father that, looked at individually, the evidence in relation to each of the contended risks is not such that the Court could be satisfied that the risk reached an unacceptable risk of harm. Whilst I have taken that submission and given it consideration, it appears to me that to adopt an approach whereby I look at each risk in and of itself and alone would be to fail to recognise that at some point of July 2020 Y’s school and Z’s preschool observed changes in the demeanour of each of those children and it appears to me that it is necessary to look at the entirety of the circumstances that have occurred for the children, rather than looking at them on an individual, one-by-one basis.
When I give to consideration to those matters as a whole, it appears to me that there is an unacceptable risk of harm to all of the children in the event that they spend unsupervised time with the father.
In looking at that issue, I have taken into consideration the fact that the department did not substantiate the risks in the report of 21 July 2020.
However, insofar as the Department has formed any view, it would appear to me that they have not had access to Mr H’s report. The issue of the photograph and the circumstances in which it may or may not have been taken is information that is not presently available to the Department. Whether or not that might affect any risk assessment is something that I am unable to determine on an interim basis.
It would also appear from the report of Mr H that irrespective of whether sexual abuse has or has not occurred, there may be some work the father needs to do in terms of understanding children’s boundaries and respecting those boundaries. I am unaware at this stage as to whether or not the father is likely to be able to undertake that work in due course.
In determining that the children are at an unacceptable risk of harm in father’s unsupervised care, I have given consideration to the mother’s functioning.
Whilst the father’s counsel submitted, and I accept, that there is no psychological evidence to say that the mother would not cope if orders for time were made on an unsupervised basis, nor is there evidence that she would not facilitate time, it appears to me that the material indicates that she has been troubled by and distressed by the allegations that have unfolded over the past six months and that she sought assistance in this regard.
There is no suggestion by any party that the mother has deliberately or maliciously manufactured the matters that she raises. It would appear that all parties accept that the matters that she raises are her genuinely held beliefs. It would, therefore, appear to me that to require the mother to facilitate unsupervised time between the children and the father would be to require the mother to provide the children to the father in circumstances where she has a genuine belief that they are at risk of harm in his care.
Furthermore – and it was something that was adverted to in the report of Mr H – the potential for further allegations to arise is one that obviously emerges on the information that is before me. In the event that further allegations were to arise, it appears to me that there would be further departmental involvement, further interviews and the children may be subjected to further intrusive consequences.
In the event that the children were to spend unsupervised time with the father and if there was any issue in terms of interference with their personal boundaries and, or, photographing of any of the children in circumstances in which they did not wish to be photographed, I consider that the consequences upon each of the children would be profound, damaging and likely to have serious short, medium and longer term effects. Whilst I cannot predict that such actions would occur, at this interim stage I must do my best to ascertain the risk of such matters.
Accordingly, for those reasons I do not consider that the children’s time with the father should proceed on an unsupervised basis.
In terms, then, of the manner in which time should proceed, I observe that the mother proposes that time occur between X and Y and the father on a supervised basis as set out in the minute of order proposed by her and that Z spend time with the father through Facetime only.
It would appear to me from the matters raised by the ICL that it is possible that the older children may come to consider that Z is being singled out and that Z may feel that she is being singled out. However, in circumstances where it is clear that both Y and X very much want to spend time with the father and that Z appears to be somewhat more equivocal about that; and where it would appear that the children had a recent experience of attending for time with the father without Z being present; and observing that Y has made comments to the father set out in his affidavit that she wants to spend time with the father and is worried that the mother might stop her time with the father as she has done with Z; it appears to me that X and Y not suffer undue distress if that time occurs without Z.
It would appear to me, in those circumstances, therefore, that the orders proposed by the mother in terms of time occurring between X, Y and the father on an “in-person” basis and otherwise Facetime time occurring between all of the children and the father are appropriate in the circumstances.
I have had regard to the amount of time that should occur and whether or not time should occur more frequently than is proposed in the mother’s minute of order. There is no evidence before me as to the likely cost of supervision, although, I infer that the parents are in a financial circumstance where they are able to meet the cost of supervision.
It is difficult at this interim stage to assess what level of time would be appropriate for the children, given my conclusions as to risk and the need to protect all of the children. It is also difficult to ascertain what level or time would be sufficient to maintain the relationship between the children and the father.
Insofar as Mr H’s report contains any guidance in this regard, his recommendation is that if the Court finds that the children are at an unacceptable risk, then supervised time may be the most prudent course of action particularly on an interim basis, and until further comprehensive assessment can take place.
I cannot countenance, at this point in time, overnight time between X, Y and the father as I consider that it would be too difficult to impose a supervisory solution that would mean that time could be supervised on an overnight basis. In the absence of anything better to guide me, it would appear to me that the mother’s proposal allows for regular weekly time for a significant period between the children and the father. I understand and accept that supervision will impose some constraints on the relationship between them.
Whilst the mother expresses that supervision should occur a contact centre, there is nothing to my mind which would indicate that the children could not spend time with the father at a public place supervised by a professional contact agency, rather than being confined to a centre.
It appears to me that notwithstanding those limitations, the mother’s proposal in relation to the amount of time is one that will meet the children’s needs, particularly, in circumstances where they will also be having FaceTime time with the father.
Insofar as I have given consideration to the impact of supervision upon the relationship between the children and the father, I observe that it may be unusual to have a third party present at supervised visits. It may be the case – particularly for X who is old enough to understand such matters and likely for Y who is also likely old enough to understand such matters – that they may wonder why there is a third party present throughout the time that they spend with the father. This is something that I would expect the parents should have some discussions about through their legal representatives as to how it might be explained to the children.
I observe that each of the children has had to contend with each of the parents introducing them to new partners or new friends. To the extent that a stranger might be present at times that the children are with the father, it may be the case that they come to wonder about the nature of the relationship between the father and that other person, or it may be the case that it is something that does not cause them any undue concern, but it is a matter that should be considered between the parents and discussed.
Insofar as the father has sought an order for equal shared parental responsibility, the mother’s minute was silent upon that. An order for equal shared parental responsibility requires parents to do all things necessary to consult with each other, to liaise with each other and to genuinely attempt between themselves to reach agreements for the children. It imposes a positive obligation on the parents in this regard. It appears to me in the present circumstances that the parents have been able to negotiate through their legal representatives whether or not the children should attend at E House for counselling and the arrangements that should be in place for the children’s attendance upon doctors, medical health professionals and allied health professionals.
It appears that there are no decisions pending in relation to the children’s schooling, and it would appear that there are no other significant decisions that will need to be taken in the near future.
In the circumstances, it does not appear to me necessary at this point in time to make any order in relation to equal shared parental responsibility for the children.
It further appears, having regard to the matters contained in the mother’s affidavit about the risk that she perceives to the children and herself and the fact that the parents appear to predominantly now communicate via text message, that an order for equal shared parental responsibility is not appropriate on an interim basis and is unlikely to be in the children’s best interests.
Insofar as the mother seeks an order that the father engage in a therapeutic course with a therapist who is able to provide appropriate parenting guidance, having regard to the fact that the father indicates through his proposed minute of order that he intends to attend to this, I do not consider it necessary to make an order requiring him to undertake such a course. That is a matter that he can complete without an order compelling him to do so, having regard to the content of Mr H’s report.
In relation to the mother’s application that the children undertake therapy sessions with the purpose of being provided with child safety skills as directed by Ms K, there were no submissions made going to the necessity for such an order nor why it is in the children’s best interests nor the father’s position on that issue. Again, that is a matter that I can consider can and should be determined between the parents through their legal representatives and, potentially, with the assistance of a very experienced ICL who may be able to provide support and guidance and/or other options in the event that the parents cannot agree.
Conclusion
For the reasons given. I consider that it is in the children’s best interests that interim orders be made in accordance with the minute of interim order proposed by the mother.
I certify that the preceding three hundred and ten (310) paragraphs are a true copy of the reasons for judgment of Judge M Neville
Associate:
Date: 11 January 2021
- AGLC
- YARBOROUGH & YARBOROUGH [2020] FCCA 3546
- Case
- [2020] FCCA 3546
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether there was an unacceptable risk to the children, necessitating specific interim orders regarding their contact with the parent. This involved assessing the information available, including the findings of the departmental investigation, to determine the level of supervision required for any contact.
Neville J reasoned that, given the serious nature of the allegations and the ongoing investigation, it was necessary to implement measures to protect the children. The court ordered that the parent's time with the older two children would be supervised. Furthermore, the court ordered that Facetime communication would be permitted between the parent and the older two children, and also between the parent and the youngest child.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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