Younge and Hallman
[2017] FamCA 492
•14 July 2017
FAMILY COURT OF AUSTRALIA
| YOUNGE & HALLMAN | [2017] FamCA 492 |
| FAMILY LAW – CHILDREN – Allegations of child sexual abuse –With whom the child lives –Where allegations of sexual abuse have been made against the father –Where the abuse allegations against the father are not substantiated –Whether it is in the child’s best interests to spend time with her father – Court finds an equal time arrangement would not be in the bests interests of the child –Orders made for the child to live with the mother and spend substantial and significant time with the father. |
| Family Law Act 1975 (Cth), ss 60CC, 60CC(2), 60CC(3) 60B(1), 60B(2), 60B(3), 61DA, 65DAA(1), 65DAA(3),65DAA(4), 65DAA(5) |
| Briginshaw v Briginshaw [1938] HCA 34 |
| APPLICANT: | Mr Younge |
| RESPONDENT: | Ms Hallman |
INDEPENDENT CHILDREN'S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 4953 | of | 2011 |
| DATE DELIVERED: | 14 July 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 26-28 June 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Finch |
| SOLICITOR FOR THE APPLICANT: | Dean Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Mr Russo |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms Shearman |
| INDEPENDENT CHILDREN'S LAWYER: | Legal Aid NSW |
Orders
All existing parenting orders in relation to the child B born on … 2009 ("the child") are discharged.
The father and the mother will have equal shared parental responsibility for the child.
the child will live with the mother.
the child will spend time with the father as follows:
4.1during school terms, each alternate weekend from 9.00 am on Saturday to the commencement of school on the following Monday
4.2for one half of each NSW school holiday period at the conclusion of Terms 1, 2 and 3 as agreed between the parties and in the absence of an agreement for the first half in 2017 and each alternate year thereafter and for the second half and each alternate year thereafter
4.3for one half of each NSW school holiday period at the conclusion of Term 4 as agreed between the parties and in the absence of an agreement for the first week and each alternate week or partial week during the 2017/2018 school holiday period and each alternate year thereafter and for the second week and each alternate week or partial week in the 2018/2019 school holiday period and each alternate year thereafter
4.4from 4.30 pm on Christmas Day until 4.30 pm on Boxing Day in 2017 and each alternate year thereafter and from 4.30 pm on Christmas Eve until 4.30 pm on Christmas Day in 2018 and each alternate year thereafter
4.5on the weekend upon which Father's Day falls from 9.00 am on Saturday to the commencement of school on the following Monday
4.6at other times as agreed between the parties in writing.
Without admission, the father's partner Ms C or the paternal grandmother will be present during the time which the child spends with the father in his home, subject to the following:
5.1subject to Order 5.3, this order will apply for a period of twelve months
5.2Ms C or the paternal grandmother will be available to assist the child in relation to dressing, bathing and toileting as required and
5.3the application of this order may be extended beyond the initial twelve months only upon the advice of one of the child's treaters (being medical or psychological) in consultation with each parent and as agreed by each parent.
For the purposes of definition of a relevant school holiday period as referred to in Order 4:
6.1dates will be calculated in accordance with gazetted NSW school terms
6.2pupil free days will not be included in the relevant school holiday period and
6.3time will commence at 9.00 am on the relevant first day and conclude at 6.00 pm on the relevant last day.
Regardless of Order 4, unless otherwise agreed, the child's time with the father will be suspended as follows:
7.1from 4.30 pm Christmas Eve until 4.30 pm Christmas Day in 2017 and each alternate year thereafter and from 4.30 pm Christmas Day until 4.30 pm Boxing Day and
7.2on the weekend Mother's Day.
Whilst the child is living with the mother, she will communicate with the father at all reasonable times and as initiated by the child and also each Wednesday between 6.30 pm and 7.00 pm, to be facilitated by the father initiating that communication.
Whilst the child is spending time with the father, she shall communicate with the mother at all reasonable times and as initiated by the child.
Specific Issues
10.1 Within 21 days of the date of these orders the mother will attend upon the child's General Medical Practitioner for the purposes of obtaining a referral for the child to attend upon a paediatrician and forthwith notify the father of the details of that referral.
10.2The parties will follow all directions, treatment recommendations and referrals as provided by that paediatrician.
10.3Both parties are permitted to attend upon the paediatrician and will keep the other parent informed in relation to appointments and treatment recommendations.
11.1 In consultation with the father, the mother will arrange to attend upon a child psychologist/counsellor who specialises in play therapy, upon referral by the child's paediatrician.
11.2Both parties are permitted to consult with, attend upon and obtain reviews from the child psychologist/counsellor.
11.3The parties will ensure that the child continues to attend all appointments as recommended and directed by the child psychologist/counsellor.
Each party will ensure that the child continues to engage with the D Clinic and will comply with all directions in relation to the child's health management including attending appointments, following referrals and treatment recommendations.
The parties are permitted to provide to the child's child psychologist/counsellor a copy of either or both of the two single expert reports prepared by
Dr E if so requested by that treating professional.Each party is permitted to liaise directly with the child's school, treating practitioners and other specialists and professionals engaged with the child and each parent will ensure that they keep the other informed of any proposed and/or actual changes to these arrangements.
Other than emergency situations, each parent is restrained from engaging a new treating health professional for the child without first advising and consulting with the other party regarding the nature of the treatment and the identity of the treating practitioner.
Each party will keep the other informed of his and her residential, email and phone contact details and advise of any changes within seven days.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Younge & Hallman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAC 4953 of 2011
| Mr Younge |
Applicant
And
| Ms Hallman |
Respondent
And
| Legal Aid NSW |
Independent Children's Lawyer
REASONS FOR JUDGMENT
The proceedings
Mr Younge and Ms Hallman are the parents of B, who was born in 2009 and is currently seven years of age. These proceedings concern parenting arrangements in relation to the child. One significant issue in the proceedings was the mother’s allegation that the father has sexually abused the child. A corresponding significant issue was the father's contention that the mother is unable and/or unwilling to support an appropriate relationship between the child and himself.
The applicant father sought orders which may be summarised as follows:
1. the parties will have equal shared parental responsibility for the child.
2. the child will live with the father.
3. the child will spend time with the mother:
·each alternate weekend from 9.00 am on Saturday until the commencement of school on Monday
·from the conclusion of school on Thursday until the commencement of school on Friday in the first week of each school term
·for half of all school holidays.
4.changeovers will occur at the child's school or at another place agreed between the parties.
5.the child will communicate with the mother by telephone or Skype between 6.30 pm and 7.00 pm each Tuesday and Thursday and by email and text message, while in the care of the father.
6.the child will communicate with the father between 6.30 pm and 7.00 pm each Tuesday and Thursday and by email and text message, while in the care of the mother.
7.each parent is authorised to obtain information from the child's school and health care professionals.
8.the child will attend upon an immunologist in relation to allergies.
9.the child will attend upon a counsellor.
10.each party is entitled to travel outside Australia with the child.
At the conclusion of the trial, the Independent Children's Lawyer ("the ICL") proposed the following orders:
1.That the Applicant Father and Respondent Mother have Equal Shared Parental Responsibility in relation to [the child B] born … 2009 (hereinafter referred to as "the child").
2.That the child live with the Respondent Mother.
3.That the child spend time with the Applicant Father as follows:
3.1.During school terms, each alternate weekend from 9am Saturday morning to the commencement of school on the following Monday.
3.2.For one half of each NSW school holiday period at the conclusion of Terms 1, 2 and 3 as agreed between the parties and in the absence of an agreement for the first half of each school holiday period in 2017 and each alternate year thereafter and for the second half of each school holiday period in 2018 and each alternate year thereafter.
3.3.For one half of each NSW school holiday period at the conclusion of Term 4 as agreed between the parties and in the absence of an agreement for the first week and each alternate week or partial week during the 2017/2018 school holiday period and each alternate year thereafter and for the second week and each alternate week or partial week in the 2018/2019 school holiday period and each alternate year thereafter.
3.4.From 4.30pm Christmas Day until 4.30 pm Boxing Day in 2017 and each alternate year thereafter and from 4.30pm Christmas Eve until 4.30pm Christmas Day in 2018 and each alternate year thereafter.
3.5.The weekend upon which Father's Day falls from 9.00am Saturday to the commencement of school on the following Monday.
3.6.Other times as agreed between the parties.
4.That without admission, the Father's partner Ms C shall be present during the time which the child spends with the Father subject to the following:
4.1.Subject to Order 4.5, the order shall be for a period of 12 months following the date of these orders;
4.2.Ms C shall be present when the Father and the child are spending time together at the Father's home;
4.3.In the event Ms C is unavailable, the Paternal Grandmother may instead be present;
4.4.Ms C or the Paternal Grandmother shall be available to assist the child in relation to dressing, bathing and toileting as required; and
4.5.The obligation of this order may be extended beyond the initial 12 months only upon the advice of one of the child's treaters (being medical or psychological) in consultation with each parent and as agreed by each parent.
5.For the purposes of defining a relevant school holiday period as referred to in Order 3:
5.1.1.Dates shall be calculated in accordance with gazetted NSW school terms;
5.1.2.Pupil free days shall not be included in the relevant school holiday period; and
5.1.3.The Father's time shall commence at 9.00 am on the relevant first day and shall conclude at 6.00 pm on the relevant last day.
6.That regardless of Order 3, unless otherwise agreed, the child's time with the Father shall be suspended as follows:
6.1.From 4.30pm Christmas Eve until 4.30pm Christmas Day in 2017 and each alternate year thereafter and from 4.30pm Christmas Day until 4.30pm Boxing Day; and
6.2.The weekend upon which Mother's Day falls.
7.Whilst the child is living with the Mother, the child shall communicate with the Father at all reasonable times and as initiated by the child and also each Wednesday between 6.30pm and 7.00pm to be facilitated by the Father initiating that communication.
8.Whilst the child is spending time with the Father, the child shall communicate with the Mother at all reasonable times and as initiated by the child.
Specific Issues
9.Within 21 days of the date of these orders the Mother shall attend upon the child's General Medical Practitioner for the purposes of obtaining a referral for the child to attend upon a Paediatrician. The Mother shall then notify the Father of the details of that referral. The parties shall follow all directions, treatment recommendations and referrals as provided by that Paediatrician. That both parties be permitted to attend upon the Paediatrician and shall keep the other party informed in relation to appointments and treatment recommendations.
10.In consultation with the Father, that the Mother shall arrange to attend upon a Child Psychologist/Counsellor specialising in play therapy who is initially referred by the child's Paediatrician. Both parties shall be permitted to consult with, attend upon and obtain reviews from the said Child Psychologist/Counsellor. The parties shall ensure that the child continues to attend all appointments as recommended and directed by the Child Psychologist/Counsellor.
11.That each party ensure that the child continue to engage with the [D Clinic] and shall comply with all directions in relation to the child's health management including attending appointments, following referrals and treatment recommendations until no longer required.
12.That the parties be permitted to provide to the child's Child Psychologist/Counsellor a copy of either or both of the two Single Expert Reports prepared by [Dr E] if requested by that Treater.
13.That each parent be permitted to liaise directly with the child's school, treating practitioners and other specialists and professionals engaged with the child and that each parent ensure they keep the other parent informed of any proposed and/or actual changes to these arrangements.
14.Other than emergency situations, that each parent be restrained from engaging a new treating practitioner (medical/health/counselling) for the child without first advising and consulting with the other parent regarding the nature of the treatment and the identity of the treating practitioner.
15.That each party shall keep the other party informed of the residential, email and phone contact details and advise of any changes within 7 days of such a change."
In his final submissions, the solicitor for the mother indicated that she consented to the orders proposed by the ICL.
Background
The father and the mother, who are both aged 34, married in 2006 and separated on 2 September 2010. The child was aged approximately eleven months at the time of the separation of her parents. The parties were divorced by an order which became final on 14 March 2012.
According to the father, the child spent time with him between September 2010 and December 2011 for approximately one and-a-half hours on three or four mornings per week and from 9.00 am until midday each Saturday. The parties attended a mediation with Relationships Australia in December 2011. They agreed that the child would live with the mother and spend time with the father from 9.00 am on Saturday until 5.00 pm on Sunday on each alternate weekend and for periods during the father's holidays.
The mother began to take the child to a general practitioner ("GP") before and after she spent time with the father at a very early time in her life. In
cross-examination by counsel for the ICL, the mother said that she became concerned in relation to the father's capacity to parent the child in 2011. Records of the F Medical Centre (Exhibit 3), however, demonstrate that the mother took the child to a GP and expressed concerns in relation to the father's care as early as 2010.
On 8 November 2010 a GP noted:
Mother concerned that the child's father is negligent – not changing nappies often enough; he has allegedly threatened to apply for full custody, has been verbally and sexually abusive towards mother.
Mother keen on documentation of health state of the child as evidence.
On 19 November 2010 a GP noted:
Brought in by mum
Wants condition documented – before she goes to father
Looks well, happy, interactive
On 16 December 2010 a GP noted, inter alia, "Review prior to visit to father's over weekend".
On 25 November 2011 a GP noted:
Stay with father every second weekend
Has been doing this for 1 yr
Mother said that the child comes back with scratches, bruises and grazes
Usually on arms and legs mostly
Once had a graze on the right hip and scratch in the groin
Had a hand shape bruise on her right forearm when she came back home on 14/11/11. [Ms Hallman] did not take a photo of this
Almost every week comes back with a nappy rash
Comes back hungry and thirsty
First and second day after returning home to her mother, child would be unsettled and crying
2/12 ago father took child to [a funpark] railway. Child was lost in the dark when the train went through the tunnel. They had to find her with a torch. [Ms Hallman] said [Mr Younge] told her about, because he thought it was funny."
During 2012 the mother was involved with the Brighter Futures program conducted by Family and Community Services ("FACS"). On 6 June 2012 the mother made various complaints to a FACS case worker in relation to the father, the effect on the child of spending time with him and his capacity to care for her.
The FACS file (Exhibit 4) contained the following notes in an entry dated 6 June 2012:
... [Ms Hallman] [mother] and the child today [aged 2 ½]. When [the child] returns from visits with father she is very unsettled and has trouble eating and sleeping for the first few days after coming back from her father; this is most obvious on the first 2 days after coming back and is a pattern described by mother over the last 6 months. Mother says that, over the last couple of Mondays after coming back from father, [the child] has been very unsettled at night – only sleeping for an hour or two at night and this is very unusual for [the child], according to mother.
…
Mother said that, the last 2 visits [the child] has come back from her father after the weekend, her vagina was "unusually red and swollen and bleeding". Caller asked mother, "has [the child] ever had anything like this before- nappy rash or redness?"- Mother said that she has had nappy rash but this was different looking. Mother said that, last time [the child] came back from her father's – she had been on a 3 day holiday sometime in the last 3 weeks (NFI) -… "her vagina seemed to be opened up in there, and was sore, red and there was blood there". Mother said it was not bleeding to the point she had to use tissues.
…"
On 7 June 2012 the mother took the child to a GP, who appears to have made a report to FACS. Inter alia, a FACS worker noted the following in an entry dated 7 June 2012:
"Caller advised [Ms Hallman] said that every time she returns from a visit with the father she is 'irritable', 'won't sleep properly' and that she then 'takes a few days to get over this behaviour'. The mother further advised that on several occasions' she has had 'redness around the vaginal area'.
Caller advised [Ms Hallman] noticed again that the was redness on the child's vagina. …
Caller advised his assessment was that there was 'no sign of any external trauma, bruises or redness' to her. Caller advised 'her genitalia appeared normal today'.
…
Caller advised that his impression of [the child] is that she 'appeared quite normal', and that she was 'happily playing and smiling', 'wandering around the room', and 'didn't seemed (sic) agitated', despite that he was talking to [Ms Hallman] for approximately 20 minutes to get a background about the situation.
CW asked about the mother's presentation. Caller advised that she presents as 'agitated', and that 'she is often agitated'. Today the mother appeared 'tense and worried'. …
On 8 June 2012 the mother unilaterally suspended the child's time with the father, citing as a basis the child's asthma. The father deposed that he consulted the child's GP, who advised that her asthma was no obstacle to her spending time in his care.
On approximately 30 July 2012 the father filed an Initiating Application, by which he sought inter alia orders that the child spend time with him each alternate weekend, every other Wednesday night and on specific occasions. On 16 August 2012 the mother filed a Notice of Child Abuse which, according to the father, made him aware for the first time of the allegations of sexually inappropriate behaviour on his part.
The mother deposed to a conversation in the following terms with the child on 12 July 2012:
19.On 12 July 2012 [the child] drew a picture saying "this is me crying. And this is teddy and piggy. And this is daddy hurting me." I asked [the child] where [Mr Younge] was hurting her and she said "on my bottom". I then asked her if it was at the front or back of her bottom and she pointed towards her vagina and said "here". I also noted redness and swelling in the area of her vagina at the time which was not consistent with nappy rash."
At this time the child was approximately two years and nine months of age.
On 27 September 2012 interim parenting orders were made by consent. These orders provided, inter alia, that the child would spend time with the father as agreed or from 10.00 am until 3.00 pm each alternate Saturday and from 11.00 am until 4.00 pm every Sunday, under the supervision of the paternal grandparents. The father consented to the order for supervision on a "without admissions and without prejudice" basis.
On 20 September 2012 a naturopath, Mr G, wrote a letter to the mother in relation to "reactions" which the child was apparently displaying to various foods. Inter alia, this letter stated as follows:
"…
Please remember that it is only the severe reaction ones that need removing from the diet for three months. The moderate reaction ones can be enjoyed on occasion each week and the mid reaction ones may be given every second or third day.
As I was only asked to perform the Allergy Test, I have not done a complete analysis and case study of the child; therefore I am limited in what advice I can offer. …"
In cross-examination by counsel for the ICL, the mother said that she saw this naturopath on only one occasion in 2012 and has since spoken to him by telephone "a few times". Nonetheless, the mother has controlled the child's food intake strictly and placed her on elimination diets "two and-a-half times" since 2012.
On 20 November 2012 a FACS worker made the following notes (redacted copies produced under subpoena):
…
Caller has not made a report to the Helpline but […] and was told that JIRT will get in contact with caller to get a statement. […] and the […] to the police station on 14/10/2012 […] still has not heard from JIRT. […] wants to know what has happened to the police report.
CW explained […] that CW can not inform […] what had happened to […] because […]
CW […] about the incident of sexual harm by the father that was reported to the police. […] picked child [B] up from access contact with her father, [the child] cried inconsolably for 15 minutes. After the child stopped crying, […] the child what was wrong. [The child] said "daddy hurt me". The maternal aunt was in another room at the time […] called the maternal aunt into the room to speak to [the child]. [The child] […] "daddy hurt me". […] asked where and [the child] said "on my bottom". […] at the front or at the back and [the child] pointed to her vagina and said "here". […] what was the father doing and how did he hurt you but [the child] did not reply.
[The child] has not made any further disclosures since that incident. However, […] has noticed [the child] has become withdrawn since that incident e.g at times, [the child] would go and sit by herself when she usually plays with other people/children. […] has noticed [the child's] speech is regressing at times and she has been waking up crying at least once per night every night. Caller has not noticed any sexualised behaviour except that [the child] has been taking her clothes off.
…
SAS1 dated 15/10/2012. This referral has been rejected by JIRT as there was no disclosure of sexual assault.
In 2013 the mother commenced a relationship with Mr H. They have a daughter J, who was born in 2015 and is presently two and-a-half years of age. Mr H, the mother, the child and J live together at Town K.
On 29 January 2014 final parenting orders were made by consent. These orders provided that the parties have equal shared parental responsibility and that the child live with the mother. The orders also provided, inter alia, that the child spend time with the father from 9.00 am on Saturday until 9.00 am on Monday each alternate weekend; from 3.00 pm on Thursday until 9.00 am on Friday once per month and for seven-night block periods during school holidays. These orders contained provision, on a "without admissions" basis, for the overnight components of the child's time with the father to occur at the home of the paternal grandparents until she commenced her formal education at the beginning of 2015.
In June 2015 the father left the home of the paternal grandparents and moved into an apartment at Suburb L. He began a relationship with his current partner, Ms C, in August 2015. She moved into his home in January 2016 and is due to give birth to their first child later this year 2017.
The mother deposed that she had the following conversation with the child on 8 June 2015, when she collected her from time spent with the father:
23.As I was driving out of my driveway, [the child] said to me words to the effect "Oh I hate [Mr Younge]". I asked her why. She replied: "He was looking at my private parts, and I asked him to stop but he didn't, and I asked his parents to help me but they did nothing." I replied words to the effect: "Oh. I'm sorry to hear that's happened to you. You're done the right thing by telling someone". I reported the disclosure. [The child] was interviewed by detectives at [Town M] Police Station on 10 June 2015. After the interview, while I was driving [the child] home, [the child] said words to the effect: "One really bad thing that [Mr Younge] did I haven't told anyone yet". I asked her what it was. [The child] replied words to the effect: "Well, he made me stay in his bedroom and he took his clothes off. I wanted to go out, but he wouldn't let me, and he got me to touch his private parts". I asked words to the effect: "Do you mean his private parts at the front or the back?" [The child] replied "At the front". I relayed the disclosure to the police officer who had interviewed [the child]."
The FACS file (Exhibit 5) contained the following account of initial information provided in relation to these allegations and of interviews of the child conducted by police officers on 9 June 2015 and 11 June 2015:
…
According to the contact information On Monday 08/06/2015 the PR has picked the child up from the agreed place. While in the car the vic has said to the PR, "[Mr Younge] has been looking at my private parts. I asked him to stop but he wouldn't". The vic also asked the POI's parents help stating, "I asked nan and pop to help me and they wouldn't". The PR did ask the child if she was touched. The vic said, "No". The PR told police that she believed the vic's behaviour since the weekend has been out of character. The vic told the PR at the dinner table she learnt a new word over the weekend "naked". The vic also since the weekend has been touching her step fathers penis. As to the context, police are unsure. Police met with the vic at her home on Tuesday 09/06/2015 at 3pm. The vic was hesitant in speaking with police. When asked about her weekend she became nervous and wouldn't provide police with any information. She would put her fingers in her mouth and mumble.
Police advised the PR that the matter could not be dealt with any further until the vic will provide police with any information. On Wednesday 10/06/2015 the PR contacted police and advised them that the vic is now happy to speak with police. Police have arranged to meet with the vic and PR at [Town M] Police Station on Thursday 11/06/2015. About 3:30pm on Thursday 11/06/2015 the PR attended [Town M] Police station with the vic. Police again spoke with the vic who first appeared to be happy to talk. When the vic began to talk about the POI she again became closed and would not talk. Having the same demeanour and body language. While the vic was moving some toys. The PR informed police the following information: - The PR spoke with the vic about the discussion they had in the car in a non-specific way.
…
They also talked about how the school has been teaching kids about personal safety and touching private parts. No one is allowed to look or touch and no one can ask you to look or touch. With that the following discussion occurred: the vic said "that did happen" PR said "what did happen? [The child] said "He got me to touch his private parts" PR said "where abouts" [The child] said "at the front" The PR did not discuss it any further.
It thus appears that the mother spoke to the child in relation to the allegations and her willingness to be interviewed by police between 9 June 2015 and 11 June 2015. Exhibit 5 contained a note "On Wednesday 10 June 2015 the PR contacted police and advised that the vic is now happy to speak with police". In cross-examination by counsel for the ICL the mother said words to the effect: "I contacted police on 10 June 2015 and said that the child was happy to talk to them. I reminded her that police were safe people to talk to. I might have encouraged her to be brave."
Police officers interviewed the child for a second time on 11 June 2015. Following this interview, the proceedings were referred to a Joint Investigation Response Team ("JIRT").
On 16 June 2015 JIRT officers interviewed the child. Only a partial transcript of this interview was available and formed part of Exhibit 2. This partial transcript read as follows:
"Transcript of interview with the child YOUNGE 16/06/2015
Recording Reference R 0377406
NOT FULL INTERVIEW – DISCLOSURE ONLY
9:07 minutes into interview
What did you come here to talk about today [B]?
Um About [Mr Younge’s] private parts
And what can you tell me about [Mr Younge’s] private parts
Um one day he wanted me to stay there while he took his…while he got undressed
Mmm He wanted you to stay there when he got undressed
Mmm (nodding head)
Tell me about that
Well um well he started to take something off I ran into my bedroom
Ok…. and where were you when that happened?
Um At [Mr Younge’s] place
And do you remember when that was?
Um the first day when I was three
Ok, so I wasn't there the first day when you were three at [Mr Younge’s] place while he wanted you to stay there when he got undressed and you ran into your bedroom, tell me everything that happened that time starting from the beginning and finishing at the end. So what happened?
Um I'm confused
Yeah? What are you confused about darling? Am I confusing you? Does my question confuse you?
Mmm
Yep, ok so you were telling me about [Mr Younge’s] private parts and there was one day that he wanted you to stay there while he got undressed. Tell me everything that happened on that time because I wasn't there so I don't know everything that happened can you tell me?
Um he tried to get into my bedroom
How did he try and get into your bedroom
Um by pushing against it
Mm mm Push against what?
The door
Ok, And where were you?
In my bedroom
And what were you doing in your bedroom?
Playing
And how come he was trying to get into your room?
Because he wanted me to look at his private parts, Then when nanny and poppy heard the big bang they ran to my bedroom and saw [Mr Younge] all naked.
Mm and then what happened?
Um then Pop he tried to get him back into his bedroom
Hmm mm And then what happened
Um nothing else
Nothing else? Ok you've told me a lot of things there, do so you remember when it was when he was trying to get into your bedroom? That time you just told me about do you remember when that was?
Um well the first day when I was three, all happened at the birthday that I was three.
Ok when you say it was the first day when you were three, what do you mean by that?
After my birthday
After which birthday?
My number three birthday
After your number 3 birthday And did it happen before or after your number four birthday?
Um
Do you remember how old your (sic) were?
(pauses) Pardon?
That’s ok
When you, when um,……Who's [Mr Younge]?
Um the person that we are talking about today
Yep And who is he?
Um I don't know what to say
You don't know what to say? Ok Who does [Mr Younge] live with?
Um nanny and poppy
Do you know what nanny's name is?
(Shakes head)
When you shake your head what does that mean?
Um I’m confused
Does nanny have another name
No
No? Does poppy have another name?
No
And do you know where [Mr Younge] lives?
Um no
No? Ok So he lives with nanny and poppy
Mm And he’s already got a new house
Hess already got a new house and who lives in the new house
Just him
Ok so I want you to tell me about the time when he tried to get into your bedroom by pushing against the door.
Well the big bang meant that the door broke
Mm which door broke?
My bedroom door and now its fixed
Ok so do you have a bedroom at [Mr Younge’s] place do you?
Yeah
Yeah and who sleeps in that bedroom
Um just me
And you said that [Mr Younge] was naked
Yeah
What does naked mean?
I don't know
So when you say [Mr Younge] was naked what did he look like?
Um with no clothes on
No clothes on? And where were his clothes
In his bedroom
And how did his clothes come off
Um because um he used his hands
Mm mm and where was he when he took his clothes off?
His bedroom
In his bedroom? And where were you when he took his clothes off?
In his bedroom then I ran into my bedroom
Ok and why did you run into your bedroom?
Because I didn't want to see the rest of his body
Ok and did he say anything to you when this is happening or did you say anything to him?
Um I said stop when the door went down but he didn't listen he did it two more times
What did he do two more times darling?
Oh well once nanny…instead he wanted nanny and poppy to stay in
To stay in where?
In his bedroom
Mm So what did he do two times?
(sighs) No response
So what were you doing before you were in the bedroom with [Mr Younge] and he took his clothes off? What were you doing before that?
Um I was playing with my dolls house
Yep and where is your dolls house
Um near his bedroom
Mm mm You were playing with your dolls house near his bedroom, What was he doing when you were playing with the dolls house?
Um No response
What was [Mr Younge] doing?
I'm confused
You're confused? Ok you said that you were playing with your dolls house near his bedroom before this happened what was he doing?
Um well he was walking to his bedroom then interrupt me and grabbed me then he wanted me to stay in the bedroom
Sorry what did you say he was walking to where
to his bedroom then grabbed me then wanted me to stay in his bedroom until he had all his clothes off.
Ok And how did you know that he wanted you to stay in his bedroom until he had all his clothes off?
No response
How did he grab you?
By just quickly getting my arm
Hmm hmm And what did he use to grab your arm?
(sighs) No response
What did [Mr Younge] use to grab your arm? What did he grab your arm with?
Um his hand
Uh huh And then you went into the room and was the door in his bedroom open or closed or something else
Closed
And who closed it?
Dad
Who did?
[Mr Younge]
[Mr Younge] closed it? And then what happened when he closed the door
He took some of his clothes off and then I opened the door and quickly ran into my bedroom
Ok and what clothes did he take off? do you remember what was he wearing?
His pyjamas
Do you remember what the pyjamas looked like
Black
Black? Were they just all black or did they have something else on them
They all black
All black? And what did the pyjamas look like?
Well there was a bit of white looking like Batman but it was actually a pirate
A pirate? Where was the pirate
On his shirt
On his shirt? And was it a long sleeve shirt, a short sleeve shirt or something else?
Short
What was he wearing on the bottom?
Shorts
Shorts? Long shorts or short shorts or something else?
No response
Did he have anything under his shorts?
Um undies
Do you remember what they looked like?
No
Do you remember what colour they were?
No
No and you said he took his clothes off, what clothes did he take off?
No response
So he had a short and some shorts and undies. Was he wearing something else?
No
No so what clothes did he take off
Pyjamas
The pyjamas so is that the top and bottom or something else?
I want a break
You want a break? That's not a problem let's have a break. I'll let the tapes know the time and its 11:10am and we are still here at [Suburb N] JIRT and I’m going to get [Ms O] to turn the tapes off for us so we can have a little break.
MM mm
And she'll let me know when they are turned off
Resumes 11:17
Standard questions to resume interview
So we are talking about daddy and then you said you ran into your bedroom
(Nodding)
Yep and you said nanny and poppy heard a bang yep?
Nodding
Tell me about when nanny and poppy came into the room?
Um after the bang they came running
Mm mm And what happened?
No response
They came running? Where did they run to
My bedroom
Mm mm and tell me about what happened when they got to your bedroom
(No response)
So nanny and poppy got to your bedroom and where were you?
In my bedroom but dad was holding me and they got him
Who was holding you?
[Mr Younge]
[Mr Younge] was holding you and they got him? How was he holding you?
On the shoulder
On the shoulder and were his clothes on or off or something…
Off
And were you clothes on or off or something else
My clothes are on
On And tell me about how he was holding your shoulder
(shrugs her shoulders)
Were you sitting, standing, laying or something else when he was holding your shoulder
Standing
Standing, And how about [Mr Younge], what was he doing while he was holding your shoulder?
Umm……(No response)
When you say they got him, who got him?
Nanny and poppy?
And how did they get him? what happened?
Well they were running then they got to him before he took me to his…. back to his bedroom
Mmm and was anything said when that….did nanny and pop say anything
Um
Did daddy, sorry [Mr Younge] say anything to you say anything when this was happening?
(shakes head)
Was there any talking? When nanny and poppy came to the room?
Yeah
Yeah And what was the talking?
Um nanny and poppy said never to do that again
Mmm and who did they say that to
[Mr Younge]
And did [Mr Younge] say anything?
Um he said OK but he didn't listen
What do you mean he didn't listen
Because he did it 2 times again
He did it 2 times again, what did he do those 2 times again?
No response
How did it make you feel when [Mr Younge] did this? how did you feel?
Sad
Sad? And why did you feel sad?
Because I didn't want to see his private parts
Hmm mm ok and you said that this happened the day after you turned 3, were you at school around the time this happened?
No
No? Ok so have you seen his private parts on any other times?
2 other times
2 other times and where were you these 2 other times when you saw them
No response
Where were you?
I want to go back home
You want to go back home? Do you want to keep talking with me
Shakes head
Ending questions"
JIRT officers again interviewed the child on 23 June 2015. A partial transcript of this interview (Exhibit 2) read as follows:
Transcript of interview with [the child B] 23/06/2015
Recording Reference Number: R0378480
NOT FULL INTERVIEW DISCLOSURE ONLY
Interview start time: 10:16
Standard questions asked
6 minutes 20 seconds
[The child B] shown body chart
What's this here
Hair
And what's this here
Mouth
And what are these
Hands
And what are these
Um I don't know
You don't know? So I'm going to call them I don't know
And what is this
Belly…button
Belly button and what's this
Bottom
And what's this
Feet
And I'm going to turn it over and what is this?
Back
Back and what's this?
Bottom
Bottom and what are these
Feet
Feet. Ok so what kind of things is your hair used for? What can you do with your hair?
Brush it
Brush it what else can you do with your hair?
Um
Brush it, who's allowed to touch your hair?
Hairdresser
Hairdresser yep who else is allowed to touch your hair?
Mummy and daddy
Hmm hmm and has anyone touched your hair that's not allowed to?
No response
[The child]? Has anyone touched your hair that's not allowed to?
Um yes
Who
[Mr Younge]
[Mr Younge] and how has he touched your hair when he wasn't allowed to
Well it wasn't him it was [Ms P]
Who
[Ms P]
And who's [Ms P]?
At my old pre school
And she touched your hair and she wasn't allowed to?
Mm
Ok what did she do with your hair
Just touched it
Ok mouth what's your mouth used for?
Um talking
And who's allowed to touch your mouth?
I'm confused
Who's allowed to touch your mouth
I'm confused
So I touch my own mouth when I brush my teeth
Mm
Yep who's allowed to touch your mouth
Me
You? Is anyone else allowed to touch your mouth? Has anyone touched your mouth that's not allowed to?
Um [Mr Younge] has
[Mr Younge] has what?
Touched my mouth
And how has he touched your mouth
Um tried to kiss it?
He tried to kiss it
Mm
Yep and when did he do that
When I was three
When you were three, tell me about it, when he tried to kiss you
He…..mmm
What did he try and kiss your mouth with
Mouth
Mm mm was his mouth open or closed or something else
Closed
And was your mouth open or closed or something else
Closed
Closed ok was anyone else there when that happened?
Um can't remember
Can't remember so when you see [Mr Younge] who is [Mr Younge] to you? Who is he?
Um the person that we are talking about today
The person that we are talking about today ok and who said we are going to talk about this person today?
pardon
Who told you we were going to talk about this person today
No body
No body, ok hand who's allowed to touch your hands
Um
What are they used for? what can you do with your hands
Um
I can see that you're colouring in, can you use your hands to colour in?
yeah
what else can you use your hands for?
Who's allowed to touch your hands the child
Umm…..I don't know
You don't know, has anyone touched your hands that's not allowed to
Um no
No? What are these? You said they were don't knows we called don't knows
Mm
What are don't knows used for?
Um I don't know
You don't know. Who's allowed to touch your don't knows?
Um no body
Has anyone touched them that's not allowed to?
No
No Belly button what can you do with your belly button
Nothing
Nothing? Who's allowed to touch your belly button?
No body
No body? Has anybody touched your belly button that's not allowed to?
No
No and you said this here was bottom? What's a bottom used for?
Going to toilet
To do what?
Um
To go to the toilet to do what? Because you've got bottom here and bottom on the back see you've got one on the front and one on the back, what's the one on the front used for?
Hmm…I don't know or the back I don't know
You don't know or the back you don't know, you told me that was to go to the toilet is that right?
Mm mm
Is it to do a wee or a poo or something else
Um wee and poo
Wee and poo. From this one? So wee and poo from this one? Or which one?
[The child]
Hmm?
Which one's got wee and which one's got poo? Or do they come from the same one?
Um
Where does the wee come from
Bottom
Yep which bottom? That one or that one? Or something else
I don't know
You don't know ok. Who's allowed to touch your bottom
No one
Has anyone touched your bottom that's not allowed
[Mr Younge] has
[Mr Younge], and how did he touch your bottom?
Helping me to get dressed
Yep. has there been any other times he's touched your bottom
Oh there was something that when he tried to get ……(inaudible).. undressed I always said no but he doesn't listen he gets angry
He gets angry so what did you just say so what happens when who gets undressed
Um
When who gets undressed [B]?
No response
And who gets angry
Um
Feet what can you use your feet for?
I'm just drawing a picture
You're drawing a picture, what are drawing a picture of
Me
You what are feet used for
Um walking
Yep who's allowed to touch your feet
Everybody
Has anyone touched your feet that's not allowed to?
Well I don't like it when everybody does it because it tickles
It tickles, and you back, what can you use your back for
Um nothing
Nothing? Who's allowed to touch your back?
No one
No one has anyone touched your back that's not allowed to?
No
No, and this bottom, what's a bottom used for
Um weeing
Mm mm
and pooing
weeing and pooing
who’s allowed to touched your bottom
no response
who's allowed to touch your bottom [B]?
Um no one
No one, has anyone touched this bottom that's not allowed to?
Umm No response
Has anyone touched this bottom that's not allowed to?
I want a drink
You want a drink, ok maybe [Ms O] would you be able to go and get a glass of water? Yep keep the tapes running, has anyone touched you here that's not allowed to?
No response
And feet, we've done the feet haven't we. Yep. So when you say [Mr Younge] who is [Mr Younge]?
The man that we are talking about today
Ok and who is he to you?
Rude
Rude and why is he rude
Everything that he does is rude he bes rude to me then he gives me presents to make me like him again
Mm and how is he rude to you
Just said it
You just said it?
Mm
Which bit?
Every bit
What did you just tell me?
Can't remember
Can't remember (knocking on door) Yep [Ms O] will bring the water in for you you right? Is that better? And what does he use to touch your bottom
Not… his hands
And you said someone…….who gets changed?
Me
You. So how does he touch your bottom with his hands when you getting changed?
No response
Who puts your clothes on when you get changed?
Um Me
Mm mm how about when you're with [Mr Younge]? Who changes you?
[Mr Younge] (murmurs)
[Mr Younge], Is there anything else you want to tell me about [Mr Younge] touching your bottom?
Yeah but I don't answer it because it's really hard
pardon
I'll just, I'll answer it after I've done this (referring to drawing)…. done the mouth
You'll answer it when you've done the mouth. Ok You're doing the mouth pink
Yeah
Very nice
But it broke off
That's ok looks there's another pink hear and how does it make you feel when [Mr Younge] touches your bottom?
Mm mmm mmm (humming a song)
[B]?
Yeah
How does it make you feel when [Mr Younge] touches your bottom?
Sad
Sad? And why does it make you feel sad?
Because I don't like it
And where abouts on your bottom does he touch?
The front
The front?
(Humming)
And what else is happening when he's touching your front? Is he putting clothes on you?
(humming continually) Clothes on me
Does he touch your bottom any other time besides when he puts your clothes on you?
No
Sorry When he puts you clothes on you? No. Do you have any questions [Ms O]? No yeah yeah. I'm just going to put my name on this to say that I've done this picture with you, Can you write your name?
Yeah
Can you write your name on this picture so we know that I've done it with you?
You told me before that he's rude and that he gives you presents to like him again
Mm
How is he rude?
I don't know
You don't know, and what kind of presents do you get?
Really exciting ones
Like?
Um…..a new house
Hmm?
A new house
A new house? Has anybody else done anything like this to you before?
Um……..this (gets a small rock and candle out of her school uniform pocket and shows [Ms Q])
Ooh got a candle and a rock
Has anybody else done anything like this to you before? About what you've told me with [Mr Younge]?
Um no
No ok, you know how we made a promise in the beginning that everything we talk about is the truth so only real things?
Mm
Is everything you've told me today been the truth
Yes
Ok so I'm just going to double check [Ms O] do you have any more questions? No Ok, alright we are going to let the tapes know the time…the time is….twenty to eleven and it's still the 23rd June 2015 and we will get [Ms O] to turn the tapes off for us please. 11:20 finish
Initially the father declined to participate in an interview with JIRT officers and stated that, in doing so, he acted on legal advice. At a later time the father informed a FACS worker that he was willing to take part in an interview. He gave uncontradicted evidence that he was never contacted by police in relation to an interview. The paternal grandparents also declined to participate in a JIRT interview, in reliance on legal advice.
JIRT officers made a decision not to substantiate the allegations of sexual abuse. The FACS file (Exhibit 5) contained this entry dated 25 August 2015:
Phone call to the mother [Ms Hallman] on her mobile ... I advised [Ms Hallman] that I had received and read the Family Law Court report and Magellan as well as reviewed the interviews of [the child]. I advised [Ms Hallman] that there is insufficient evidence and I would not be substantiating the matter. I advised I would be sending her a closure letter informing her of this.
[Ms Hallman] asked about what the police were up to with the matter. I advised her that I could not make comment on that, however, I was aware that the police investigation is ongoing and that the OIC [Ms O] was not in this week, however, she could make contact with [Ms O] next week.
[Ms Hallman] asked whether it was possible for JIRT to interview [the child] again. I advised her that in relation to the current allegations [the child] had been interviewed and we would not be interviewing her again. [Ms Hallman] stated "what happens if she hasn’t told you everything?" I advised her that I could only go off the information [the child] provided in the interview. [Ms Hallman] asked what she should do if [the child] makes further disclosures. I advised her that she should report them to the police and/or FACS Helpline."
This advice was confirmed by letter to the mother dated 26 August 2015.
The single expert, Dr E, discussed with Mr H the allegations that the child touched his penis. This discussion occurred in the context of an enquiry whether he had observed any sexualised behaviour by the child. He said that, approximately six months earlier, the child “patted his trousers on top of his penis.” He said that he “felt uneasy” and made no comment to the child. He told the mother of this incident.
In June 2015 the mother unilaterally suspended the child’s time with the father. On 15 December 2015 the parties consented to interim orders which provided, inter alia:
1.The respondent mother will allow the applicant father time with the child [B] born … 2009 ("the child") commencing from the first Saturday from the making of these orders and each alternate weekend thereafter from 9.00 am Saturday until 5.00 pm Sunday and the overnight component of this time shall occur at the paternal grandparents residence and/or in the presence of the paternal grandmother."
The mother deposed that she had the following conversation with the child on 28 August 2015:
25.On 28 August 2015 I had a conversation with [the child] before she went to bed. [The child] said words to the effect:
"I'm sick of these bad feelings that I got from [Mr Younge]. I'm always scared he is standing outside my window with his clothes off". I replied with words to the effect: "I wish I could take those feelings away from you". [The child] replied "I keep having bad dreams about it all too". I replied with words to the effect: "Have you been having bad dreams?" [The child] said words to the effect: "Yeah, all the time". I sat down next to [the child] and gave [the child] a hug.
26.After a pause she said words to the effect: "I just don't understand why [Mr Younge]'s parents didn't do anything when I told them to help me. They should be teaching him how to be a nice person". I continued to hug [the child] and said words to the effect: "I'm sorry to hear you feeling this way".
The father and the child continued to spend time together, without incident, in accordance with the orders of 15 December 2015 during 2016 and 2017. It appears that the mother made no further allegations of abuse or neglect of the child by the father to FACS.
On 24 May 2017 the child attended the allergy clinic at D Clinic. Notes of the clinic dated 24 May 2017 read as follows, inter alia:
[Prof R] – Allergy clinic
[Dr S] – (paeds SRMO)
7 yo female referred by LMO due to suspicion of food allergies
- throughout (sic) her life they noted the child has adverse reaction to certain meal intakes
- first noted that 18 month of age when having peanut butter – became agitated and angry and had N-V
- since them (sic) they noted similar reactions with other meals like (nuts, dairy products, olives and garlic, wheat, soy)
- in two occasions she's ended up in hospital with acidosis after cramping episodes and n-v after having food intake
- has had tests with naturopath (on 2012) which says possible allergy to meals like wheat, gluten, cow's milk, peanut.
Most symptoms described by mother after food ingestion seemed to be behavioural, which are unlikely to be related to an allergy reaction
Only meal which potentially can be true allergy is the peanuts given hx of N-V."
On 24 July 2016 the child was admitted to D Clinic for three days, suffering from vomiting and dehydration. Notes made by a dietician during this admission stated, inter alia:
Spoke with mother who reports multiple food intolerances diagnosed with home testing kit (not immunologist/allergist) with behavioural relationship to food.
Diagnosis
Probable unsupported beliefs about food related to home diagnosed food intolerances as evidenced by current diet lacking in good source of carbohydrate and calcium especially."
On 26 October 2016 the child was admitted to D Hospital, suffering from vomiting, for two days. A hospital note read:
Follow up
Discharge with GP to refer to immunologist to consider skin prick test given hx of multiple food intolerances (outpatient dietician) we also recommended seeing a child psychologist in case this is cyclical vomiting or anxiety related.
The evidence and witnesses
The applicant father relied upon the following affidavits:
1.Mr Younge (the father) sworn on 29 May 2017.
2.Ms C (partner of the father) sworn on 29 May 2017.
3.Mr T Younge (the paternal grandfather) sworn on 25 May 2015.
4.Ms U Younge (the paternal grandmother) sworn on 25 May 2017.
All of these witnesses gave oral evidence by way of cross-examination by the solicitor for the mother and counsel for the ICL.
The respondent mother relied upon her affidavit sworn on 5 June 2017. She gave oral evidence by way of cross-examination by counsel for each of the father and the ICL.
A single expert, Dr E, prepared reports dated 5 November 2013 and 18 July 2016. Dr E gave oral evidence by way of cross-examination by the legal representatives for the father, and the mother and counsel for the ICL.
Approach To These Proceedings
In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) (the Act) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests.
The Court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5) of the Act. There is no temporal definition of “substantial and significant time”.
In MRR v GR [2010] HCA 4 the High Court of Australia said:
[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (“if it is”) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible…
A leading decision on the approach of the court to allegations of sexual abuse of children is that of the High Court of Australia in M and M [1988] HCA 68 at [21]. Their Honours said:
…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…
and at [19]:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
In M and M [1988] HCA 68 at [22] the High Court identified the relevant standard of proof in these terms:
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 [1938] HCA 34; (1938) 60 CLR 336 at p.362. There Dixon J said:
‘The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
The “Briginshaw test” is now encapsulated in section 140 of the Evidence Act1995 (Cth), which provides:
140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence, and
(b) the nature of the subject matter of the proceeding, and
(c) the gravity of the matters alleged.
The High Court in M and M [1988] HCA 68 at [24] addressed the issue of unacceptable risk” of sexual abuse and said:
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 assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or 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 a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
In W and W (Abuse allegations: unacceptable risk) [2005] FamCA 892 at [111] the Full Court (Warnick, May and Boland JJ) discussed the “the unacceptable risk test”, and said:
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised 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. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
The Full Court in W and W [2005] FamCA 892 cited with approval the following passage from the judgment of Fogarty J in N and S & the Separate Representative (1996) FLC 92-665:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
I would respectfully observe that this series of questions is a useful, practical tool for a court to utilise in assessing whether there exists an “unacceptable risk” of sexual abuse of a child.
The allegations of sexual abuse
As noted, JIRT did not substantiate the allegations made in 2012 that the father sexually abused the child. On 29 January 2014 the mother consented to final parenting orders which provided, inter alia, that the child would spend time with the father away from the home of the paternal grandparents from the beginning of 2015.
In the 2013 interview the mother told the single expert that she believed the child had been sexually abused by the father. Dr E reported as follows:
'[Mrs Younge] felt all of the child's behaviours pointed to sexual abuse, which, for [Mr Younge], was "a way to dominate … be powerful and in control", as it happened with her. She cried as she described it was a "narcissistic thing, preying on the weak … making the other person feel powerless and like they don't have a voice". She said she has worked on strategies with her psychologist on how to engage with [Mr Younge] by creating and enforcing boundaries. "Over time, he has stopped bullying" and she has "no need to be scared".
Hoping "the child's safety will be ensured when she has contact with her father" by the court, Mrs Younge wanted their time together to be supervised until [the child] is around six seven years old and "more able to communicate with adults". If orders are made for unsupervised contact, she will feel it is "out of my hands … have to hope she's okay. If the last few months continue, should be okay".'
Dr E interviewed both of the child's grandmothers in 2013 and reported:
The allegations about sexual abuse are confounded by [the child's] history of nappy rashes and food intolerances – how much did these problems cause the distressed behaviour her mother (and others) observed at nappy changes? Of note, [Mrs J Younge], who presented as an attentive grandmother, reported no untoward behaviours from [the child], while [Ms Hallman] had also not observed behaviours in her which would suggest abuse.
Having seen [the child's] drawing at this assessment, I would question how helpful her drawings in 2012 could be to clarify this issue, particularly as [Mrs Younge's] therapist on 19 July 2012 noted that her mother had "attempted to elicit information from [the child] via drawing about her imaginary friends". Questioning a child on multiple occasions may result in any disclosures being contaminated by suggestive or leading questions."
Dr E addressed the mother's contention that the child cried "inconsolably" after a supervised visit with the father in 2012. She opined:
"[Mrs Younge] correctly told the Brighter Futures case worker on 21 November 2011 that the "trauma" of events in the marital relationship, which "triggered symptoms of anxiety and depression" in her, had also "impacted on [the child]", "who displayed some emotional symptoms and difficult to settle at times."
However [the child's] behaviour in 2012 was non-specific and typical of a three year old trying to cope and process the stressors and strains of everyday life, let alone manage the distress in her parents. Her crying "inconsolably" for fifteen minutes after a supervised visit with her father could well indicate her distress at being separated from him."
Dr E's conclusion in relation to the sexual abuse allegations in her 2013 report was as follows:
If there are findings by the court [Mr Younge] has indeed been abusive to his ex-wife and child, he is an inappropriate person to be taking a significant role in the child's life, particularly during her childhood and adolescence.
However, from this assessment, I would not support this position. Because of [Mr Younge's] anxiety, [the child's] age and [Mrs Younge's] vulnerabilities, I would recommend [the child's] overnight time with her father continues to occur in the PGP's home. I would not consider he needed to be supervised during the day when they are involved in activities in the community."
Dr E identified psychological vulnerabilities in the mother in her 2013 report. She opined:
[Mrs Younge] presented as currently not warranting a diagnosis of a clinical psychiatric disorder. However aspects of her psychological functioning appear compromised by her past experiences of abuse, including her perceived abuse from [Mr Younge] during their toxic marriage
and:
Problematic is [Mrs Younge] difficulties with recalling events: she did not impress as being deliberately deceptive, rather as having suppressive and repressed experiences or she had been dissociated during incidents."
Dr E asked the mother at her first interview in 2013 whether she herself had been subjected to sexual abuse. The mother initially responded that she had not been the victim of any such abuse. In the second interview in 2013, however, the mother said that she had been the victim of a sexual assault. Dr E reported:
She explained on 11 September not mentioning in her last interview she was raped when 18 because this was "just a one-off thing, not a significant person, not ongoing" and she had not thought it relevant. Following the assault, she had sexual abuse counselling for a short time and "well and truly moved on from that". She denied experiencing symptoms of trauma in an ongoing way (as alleged by [Mr Younge])."
The father swore that he has "never sexually abused [the child]". He discussed the 2015 allegations with Dr E, who reported as follows:
Reporting he has watched the two JIRT recordings of their interviews of [the child] because he was representing himself in these proceedings, [Mr Younge] expressed his concern about why [the child] had made disclosures.
He mentioned [the child] had stated to the JIRT officer she had seen "Daddy's private parts". To a query about this, he denied she has but then amended his statement, recalling how, a couple of times over a couple of years, he came from the shower, with a towel around him, into the bedroom where he knew she was watching TV.
Subsequently, in a corner of the room, not in front of her, he put on his shirt (which came over his genitals), dropped the towel and put on his underpants. He opined this could have been the only times she had seen him naked, although she had seemed preoccupied with the TV.
[The child] had also told JIRT Daddy forced her to watch him get undressed. [Mr Younge] was clear he has not done this. However, on an occasion where she would not stop playing with her dolls' house and get ready for bed, he took her hand, led her to the bedroom and insisted she get changed. He stayed while she undressed, including taking off her underwear to put on "pull ups", which she wears to bed.
He described another occasion when she was jumping on her bed while naked and not following his directions to get dressed. He had eventually sat in her room with his iPad, and, following his "stern, staring, I'm serious" look, she had said she did not like him looking at her like that. He had left the room when she began to dress herself.
[Mr Younge] stated he has not helped [the child] with toileting or dressing since 2014, when she had issues wiping her bottom. On three to four occasions after she smelt of "poo", he checked her underpants and, observing some soiling, he wiped her properly and talked to her about the need to do this. He commented she had not appeared uncomfortable while he assisted her."
In his oral evidence the father addressed the mother's allegations of sexual assault of the child in 2015. He said words to the effect:
It is a false allegation. One morning [the child] was jumping on the bed. I said "[B] please get ready for school". I went away and when I came back she was still jumping, she was naked, I sat on a chair and said "get changed" sternly. She said "I don't like you looking at me like that". I went out and she got dressed, when I came back she was her normal bubbly self.
Both of the paternal grandparents denied that the child ever complained to them of the father looking at her genitalia and requesting their help. They both denied that there was any incident when they ran into the child's bedroom, after "a big bang" and found the father to be naked and holding the child by her shoulder or arm. The paternal grandfather denied that he said to the father "don't do that again". The father and the paternal grandparents all agreed that the child's bedroom door banged on some occasions when the wind blew in a certain way.
Dr E assessed that the 2015 allegations of sexual abuse appeared to be "highly unlikely" and "a confabulated narrative by the child". She reported:
… there are other incidents which could easily have contributed to a confabulated narrative by the child, viz-
[Mr Younge] has acknowledged twice assertively making a point of watching her change into her pyjamas (because she had been jumping on her bed naked/playing with her doll's house and delaying changing) and she had told him she did not like him looking "like that".
He reported on several occasions he cleaned her bottom in 2014 because she had inadequately wiped herself and was malodorous. He described a few times dressing after a shower while she was in his bedroom but denied he had been totally naked at any time in her presence.
Making [the child's] allegations highly unlikely were her references to her father breaking down her bedroom door and the PGPs observing their son naked. In their open letter to the Family Court, dated 15 October 2015, they "categorically state" they have "never seen [Mr Younge] behave inappropriately towards [the child] and he never would. He has too much respect for her, (which) shows when they are together". Unless they are devoid of all moral sense and empathy, the alleged sequence of events is fictitious.
The paternal grandparents certainly did not present as people who are "devoid of all moral sense and empathy". On the contrary, they appeared to be sincere and honest people who love and would protect their granddaughter.
Dr E identified a number of factors which may have played a role in the child's behaviour at the time the allegations of sexual abuse arose in 2015. She opined as follows:
Other possible contributing factors to the reports about [the child's] behaviours in 2015 are –
·her mother's pregnancy in 2014, which was complicated in the first and third trimesters (during the latter [Ms Hallman] described being emotionally labile)
·[J's] birth, a significant life event for [the child] (and the family). Although reportedly a positive experience for her, she would have had to do some internal adjusting to sharing her mother with a breastfeeding infant. This was no doubt driving her "Mother – Baby" play with her friend, which she associated with her nightmares
·[the child] commenced Kindergarten, another challenging event which brings change and requires adaptation to (sic)
·[the child] rethinks her idea of family, deciding to call her step-father "Dad", which she was likely to be aware [Mr Younge] would not be happy with
·she met another of her father's partners. She minimised her awareness of [Ms C], although they have spent significant time together
·the possibility that when [Mr Younge] moved out of the PGPs' home (and thereby was alone with [the child] at night), [Ms Hallman's] anxiety about the child being abused was exacerbated
·her misperception of adult behaviour, as seen when she referred to [Mr H] strangling her while she was upside down. His rough and tumble type play had "freaked" her and became distorted into something else."
In her 2016 report, Dr E expressed the clear view "I cannot conclude that the child has been sexually abused". She opined:
[Ms Hallman] continues to mistrust her ex-husband, convinced he has perpetrated marked abuse on her and is capable of similarly abusing their daughter. Even if [the child] has never heard her explicitly express these views, the child would be aware of her apprehension about him.
Dr E considered that the father behaved unwisely and opined as follows:
However given the previous events in 2013, [Mr Younge] has been remarkably indiscreet during the incidents he reported, viz dressing himself while [the child] was in his bedroom and being involved in her toileting and changing of clothes.
It has been naïve of him to become involved with these activities, although, at face value, they seemed like common parenting practices. Given the context of past abuse allegations, it would have been wiser (and protective of himself) to allow a female to have attended to [the child] and to have dressed himself out of her presence.
I am satisfied, and I find to the requisite standard, that the father did not sexually abuse the child. I reach this conclusion in relation to the 2012 allegations for reasons which may be summarised as follows:
·the child suffered from recurrent nappy rash and vaginal redness at the time of the allegations in 2012
·the mother had developed concerns in relation to the father's care of the child as early as 2010, such that she had her examined by a GP before and after time with him
·the GP who examined the child on 7 June 2016 identified no genital abnormalities in the child but noted the mother's "agitation"
·the child's complaint that the father "was hurting her" was capable of innocent explanation, such as the application of cream for rashes and soreness
·neither the maternal or paternal grandmother reported to Dr E any behaviours on the part of the child which would indicate sexual abuse
·JIRT declined to accept the 2012 allegations for investigation
·Dr E concluded that the father had not sexually abused the child
·the mother consented to final orders on 29 January 2014 which would mean that the child spent time alone with the father.
I find, the requisite standard, that the father did not sexually abuse the child for reasons which may be summarised as follows, in relation to the allegations made in 2015:
·the father gave a persuasive, innocent explanation for the child's complaint that he "was looking at her private parts"
·the paternal grandparents both denied, in a very convincing manner, that there was any incident when they found the father naked with the child
·the mother spoke to the child about the allegations between her first and second interviews with police officers
·the child said that the incident in which the paternal grandparents found the father naked with her in a bedroom occurred around her third birthday, yet the father and the child were not spending time together at that stage
·the father admitted that he had dressed in the child's presence and attended to her toileting and dressing, in a manner which was considered "incredibly naïve" by Dr E
·JIRT did not substantiate the allegations after their investigation
·Dr E concluded that sexual abuse was "highly unlikely" and appeared to be "a confabulated narrative" on the part of the child
·Dr E identified a number of factors which may have influenced or contributed to the child's behaviour around the time of the allegations.
The best interests of the child: Section 60CC considerations
Section 60CC(2)
I have found, to the requisite standard, that the father did not sexually abuse the child. In my view, the evidence gave no indication that he would engage in sexually inappropriate behaviour towards the child in the future. I am satisfied, and I find, that there is no unacceptable risk that the father would sexually abuse the child in the future. I am satisfied, and I find, that there is no need to protect the child from neglect while she is in the care of the father.
I consider that the child will benefit from a meaningful relationship with each of her parents. Both the mother and the father are devoted to the child and love her dearly, although it seems that they each have been misguided in some aspects of their parenting. Dr E took the view that "the child's relationship with the father needs to be supported" and I have no hesitation in accepting that proposition.
Section 60CC(3)
I have had regard to all of the considerations set out in section 60CC(3), some of which are of no or marginal relevance to these proceedings. For example, the child is not of Aboriginal or Torres Strait Island heritage and there are no particular factors in relation to the maturity, sex, lifestyle and background of the child or the parents.
The child did not express directly to the single expert any views in relation to parenting arrangements. She told Dr E that she now sees the father every second week, rather than each week. She said that she preferred to see him every week.
The child was asked by Dr E "where was the safest place for her?". She replied "maybe both homes" and identified these family units as consisting of "mum, dad, [J]" and "in her other dad's house was [Ms C] and her family who were visiting".
The mother has been the child's primary carer and attachment figure throughout her life. In her oral evidence Dr E said words to the effect that the relationship between the child and the mother tended toward being "enmeshed", which was a matter of concern in relation to a change of residence.
It does not seem to me that the child experiences difficulties in her relationship with Mr H. Apparently there was an incident when he swung her upside down in play and the child told the father that he "was strangling her". I am of the view that this incident was an innocent mistake on the part of Mr H, which does not indicate a problematic relationship with the child.
The child's relationship with the father has suffered disruption and interruptions, at the behest of the mother. Nonetheless, she has spent time with him on a regular basis since the Orders of 15 December 2015. The mother has made no reports of any allegedly untoward conduct on the part of the father since that time.
Dr E observed in 2016 that the child "engaged playfully with the father and included [Ms C]". At the beginning of the observation session, the child moved so as to sit beside the father and told Dr E that she "likes" Ms C.
In my view, each of the parties has taken the opportunity to participate in making major long-term decisions concerning the child and to spend time and communicate with her. It appears, however, that the mother has been somewhat restrictive in allowing the father input into the child's involvement with health care professionals. For example, in his oral evidence the father said that the mother told him that he was not welcome at the child's appointment with the immunologist. On the other hand emails annexed to the mother's affidavit indicated that she provides the father with a considerable amount of information in relation to the child, albeit in a somewhat directive and critical manner.
The evidence did not reveal the amount of child support which the father pays for the child. I infer that he does pay child support on a regular basis, as he has full-time employment.
The father proposed that the child move into his primary care and spend time with the mother each alternate weekend; every Wednesday afternoon; for half of all school holidays and on special occasions. She would remain at her current school until the end of 2017 and then move to V School. The father set out in his affidavit a commendably detailed proposal in relation to the child's extracurricular activities in his full-time care.
When asked by counsel for the ICL how the child may react to a change in residence, the father said "I think she would feel a bit confused and sad". The father told Dr E that a change in residence would be "a bit of an adjustment at the start" but indicated that he believed that the child "would adapt quickly". The father gave evidence that he would seek assistance from a psychiatrist and organise counselling/therapy for the child.
Dr E expressed considerable concerns as to the implications for the child of a change in residence. Her clear recommendation in her 2016 report was: "I would not support a change of residence for the child".
In her oral evidence Dr E outlined her concerns in relation to a change in residence. She said:
I don't know how it would benefit the child to live with the father. There would be the benefit of an ongoing relationship with the father but with huge losses for her – the mother, step-father, school, community. Dealing with loss is difficult, we have to be very sure that the other parent can offer the child comfort and support to deal with mourning. I don't think the father is the most psychologically minded person, I think he would be at a bit of a loss if she was enormously distressed. I think he cares greatly for her.
Dr E said also in her oral evidence:
[a change of residence] is something she will get through but at what cost? [The child] will find it very distressing to be cut off from the mother.
and:
she has already had a very chaotic upbringing. She needs stability, not more disruption unless it is necessary.
No issues arose in relation to the practical difficulty and expense of the child spending time and communicating with each of her parents. They live at V School and Town K which, according to the submissions of counsel for the father, are apart by approximately 35 kilometres.
In my view, some concerns in relation to the mother's capacity to provide for the child's needs arise from her treatment of the child's alleged food intolerances. She has controlled the child's diet strictly, to the point of introducing elimination diets, on the basis only of advice given by a naturopath in 2012. In fact, as noted by Dr E, the advice of the naturopath was to the effect that only foods which cause severe reaction should be eliminated and then for a period of three months.
Dr E was taken to the mother's evidence that the child displayed violent behaviour, which including clawing at a door, for three days after the father gave her a slushy drink. The mother said that she "did her own research and concluded that glucose and wheat in the slushy caused her reaction". The mother sought no medical treatment in relation to this behaviour. Dr E opined that "it is tricky to make a link to diet" and expressed the view that the mother's mindset was to the effect that "dad has done something wrong again".
Dr E was asked to comment on the mother's alleged observations of the child's behaviour after time with the father. In an email to the father in 2014 the mother wrote, inter alia:
Firstly I've been noticing a pattern with [the child] lately after her visits with you, where her behaviour is terrible for the days following, often she is keeled over with severe stomach cramps a few hours after I've picked her up, as well as diarrhoea or constipation, puffiness under her eyes, and often she catches a cold, or is unwell in another way and has been needing to take time off pre-school. Past experiences taught me that her diet can cause all of the above symptoms. Talking specifically about her getting colds and other sicknesses, when she eats a food that she is intolerant to, her body launches an immune response and her system becomes inflamed while it attacks the food that it considers foreign. Because it is busy with this, it makes her more susceptible to picking up actual bacteria and viruses and her immune system is unable to fight them because it is weakened …
Dr E said "I think a failure to follow through to be inappropriate parenting. It borders on being neglectful. The symptoms could well be psychological."
Concerningly, the mother stated in her oral evidence that Professor R at the allergy clinic told her that he "did not know much about food intolerances". Dr E expressed great difficulty with the proposition that a person without knowledge of food intolerances could hold the position of professor in an allergy clinic.
A dietician at the D Hospital expressed concerns as to the mother's "probably unsupported belief about food related to home diagnosed food intolerances as evidenced by current diet." The mother was most reluctant to concede in cross-examination that the dietician had expressed these views to her or that the child had been assessed as clinically underweight. Unconvincingly, the mother suggested that the dietician retracted her concerns in relation to the child's diet when she saw the food which the mother provided for her. There was no note to that effect in the medical records.
Of some comfort, however, the mother proffered consent to the specific issues orders proposed by the ICL. Obviously, these orders were intended to ensure that the child receives proper medical assessment and treatment. Additionally, the specific issues orders proposed by the ICL would ensure that the child receives counselling from an appropriately qualified therapist. Dr E opined that both parents should be involved in the child's medical management and suggested that they attend separate appointments with health care professionals.
A very significant issue in the proceedings was the mother's capacity to facilitate the child's relationship with the father. In my view, the father has very sound reasons for the concerns which he expressed as to the mother's future support of their relationship. The mother has unilaterally suspended the child's time with him on two prior occasions. The mother made clear in her oral evidence that she continues to believe that the father has sexually abused the child.
When asked by counsel for the ICL to explain the basis for her application for a strictly supervised regime of time for the child with the father, the mother initially was unable to formulate a reply. I adjourned the proceedings for a short time to enable the mother to consider her position. Ultimately, the mother agreed with counsel for the ICL that "nothing has happened since June 2015 to justify two hours in a contact centre."
On the other hand, the mother stated on her oath that she would obey orders for the child to spend time with the father. Dr E said words to the effect "my opinion is that the mother will not fulsomely promote a relationship with the father." She expressed no opinion, however, that the mother would actively seek to undermine the father/daughter relationship.
In my view, Mr H is likely to be a positive influence on the mother in relation to her attitude to possible sexual abuse of the child by the father. Dr E reported on her interview with Mr H, inter alia, as follows:
·"he spoke openly about hearing 'second hand' about the allegations of 'sexual misconduct' by [Mr Younge] and said he needed 'more evidence'
·"he found it 'hard to believe' that [Mr Younge] could be 'so stupid' because the child was now six”
·"he alluded again to his 'uncertainty' if anything has happened and stated he will do as he is told and not talk to her about the subject. He opined it would be "the worst thing in the world to be accused of"
·"[he] reported that [the child] has not done or said anything that has concerned him"
·"describing his hopes for the outcome of the proceedings, [Mr H] had written "whatever's fair", which he explained meant "whatever is right for [the child] and [Mr Younge]. He added "if [Mr Younge] has not done anything wrong", he "would not want to see him punished"
Although Mr H gave no evidence in the proceedings, these statements to Dr E suggest to me that he would bring a balanced approach to any future suggestions of sexual abuse of the child by the father. Notably, he applied an objective analysis to the child's statement that he "strangled her" during his interview with Dr E. She reported:
'Discussing [the child's] comment that he had strangled her, he wondered if she was referring to how, about twelve months ago, he scared her by picking her up and trying to turn her upside down. Her reaction meant that he would never do it again, while he can swing [J], "a daredevil" around and "she's fine."
Dr E could not say whether the father would support a relationship between the child and the mother, in the event of a change of residence. She said "it depends on how angry he is with the mother, I am not saying that he will breach orders". Dr E here referred to the allegations of sexual abuse which the mother has levelled against the father, which in her view lacked validity.
As noted above, I am of the view that each of the parties is a devoted parent to the child, although they have both been misguided in some aspects of their parenting. Within their respective limitations, I consider that each of the parties has an appropriate attitude to the child and a responsibilities and duties of parenthood.
The mother levelled historical accusations of family violence at the father. She did not set out in her trial affidavit, however, any details of this alleged conduct on the part of the father. Accordingly, it is impossible for any findings to be made in relation to family violence.
Equal or substantial and significant time
It was common ground that there will be an order for equal shared parental responsibility. Accordingly, I am required to consider whether it is in the child's best interests, and reasonably practicable, for the child to spend equal time with each of her parents. If there is no order for equal time I am required to consider whether it is in the child's best interests, and reasonably practicable, that she spends substantial and significant time with each parent.
Neither of the parties nor the ICL proposed orders that the child spend equal time with each parent. In my view, the concerns raised by Dr E in relation to a change of residence would apply also to the sudden implementation of an equal time regime. The same concerns of the implications of separation from the mother would come into play for the child. I am thus of the view that an equal time arrangement would not be in the best interests of the child.
The parties' homes are apart by some 35 kilometres. In my view, this distance raises issues of reasonable practicability with an equal time arrangement. For example, the child would be required to spend considerable time in travel to her school. I conclude that an equal time arrangement would not be reasonably practicable, in the circumstances of these parties.
I consider that the orders proposed by the ICL, and supported by the mother, would result in the child spending substantial and significant time with each of her parents. Both the mother and the father would have the opportunity to be involved in her education and extracurricular activities. the child would spend weekday, weekend and holiday time with each parent and see both the mother and the father on special occasions.
I would observe that both the ICL and Dr E proposed that Ms C or the paternal grandmother be present when the child is in the father's home, as a protective measure against future allegations of sexual abuse. Dr E stated, in the clearest possible terms:
having another adult around is to protect the father.
She made no suggestion of any need to protect the child from abuse or neglect in the unsupervised care of the father. In her 2013 report Dr E identified no necessity for another adult to be present when the child and the father were together in a public place.
I will make orders substantially as proposed by the ICL. The mother should understand that, if further unsubstantiated allegation of sexual abuse of the child by the father arise in the future, a change in residence could become necessary.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 14 July 2017.
Associate:
Date: 14 July 2017
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Procedural Fairness
0
4
1