Ziegler & Ziegler
[2021] FedCFamC1F 19
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ziegler & Ziegler [2021] FedCFamC1F 19
File number(s): BRC 1479 of 2018 Judgment of: BAUMANN J Date of judgment: 6 September 2021 Catchwords: FAMILY LAW – PARENTING – Discrete hearing as whether the father presents as an unacceptable risk of harm to the child by reason of sexual abuse – Where the Court does not find the father presents as an unacceptable risk of harm to the child by reason of sexual abuse. Legislation: Family Law Act 1975 (Cth) ss 69ZQ, 69ZR
Family Law Rules 2004 (Cth)
Cases cited: Blann & Kenny [2021] FamCAFC 161
Deiter & Deiter [2011] FamCAFC 82
M v M (1988) 166 CLR 69
Rodelgo & Blaine (2019) FLC 93-89
Stott & Holgar and Anor [2017] FamCAFC 152
Division: Division 1 First Instance Number of paragraphs: 35 Date of hearing: 9 and 10 July 2020 Place: Brisbane Counsel for the Applicant: Mr R Galloway Solicitor for the Applicant: HCM Legal Counsel for the Respondent: Mr A George Solicitor for the Respondent: Robyn McKenzie Solicitor Counsel for the Independent Children's Lawyer: Ms A Frizelle Solicitor for the Independent Children's Lawyer: Keyworth Harris & Lowe Family Lawyers ORDERS
BRC 1479 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ZIEGLER
Applicant
AND: MR ZIEGLER
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
6 SEPTEMBER 2021
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That each party file and serve a minute of interim order sought for the next six months by 4.00pm on 15 September 2021.
2.That these proceedings be adjourned for Case Management Hearing at 9.30am on 22 September 2021 in the Federal Circuit and Family Court of Australia, Division 1 at Brisbane.
3.That the parties have leave to appear by telephone on 22 September 2021 by using the Microsoft Teams telephone conferencing system as follows:
(a)The parties shall each telephone … by 9.25am on 22 September 2021;
(b)They shall each then enter the pass code …; and
(c)Hold the line until the Court is ready to connect and proceed with the matter.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ziegler & Ziegler has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANNJ:
INTRODUCTION
The Applicant mother, Ms Ziegler, and the Respondent father, Mr Ziegler, cohabitated from 2007 and finally separated in April 2017. They were blessed during their relationship with the birth of one child – X, in 2014. She is approaching her seventh birthday and since separation has always lived primarily with her mother. After the birth of the child, the nature of the parties’ cohabitation was interrupted by events such as the mother’s admission into a mental health establishment in 2016 and 2017 and further acts of conflict between the parents, resulting in a family violence protection Order being made in October 2016.
At this stage of these proceedings initially, commenced by the mother in the Federal Circuit Court of Australia in February 2018, it is not necessary to make findings about some of those earlier events.
After significant judicial intervention between March and September 2018, the proceedings were transferred to the Family Court of Australia and designated as a Magellan case arising from comments the child made to the mother after a supervised visit between the child and the father on 28 April 2018. That visit was prescribed by Orders of Judge Egan made 27 March 2018. In the chronology of events relevant to the discrete hearing conducted on 9 and 10 July 2020, I make observations and findings of relevance from that first visit, supervised by Ms B(“the paternal grandmother”).
The statements made to the mother since April 2018 have resulted in the mother deposing at the Hearing that:
(a)the sexual abuse of the child by the father may have occurred from as early as 7 April 2018 (when visits had commenced supervised by Ms C (“the maternal grandmother”));
(b)she has a firm and fixed belief that the father has sexually abused the child on multiple occasions;
(c)nothing anyone can say will change her mind;
(d)she accepts, without any further contemplation or doubt, that what the child says is true and she feels it is true “because she will not disclose the abuse to anyone else”; and
(e)she would not accept the evidence of the paternal grandmother or the contact supervisors (referred to later in these Reasons) over what she says the child told her.
In support of the mother’s beliefs, the maternal grandmother gave evidence that she supports her daughter’s belief that the father has sexually assaulted X, and the maternal grandmother described her views as “unshakeable”.
The mother and her mother, Ms C, gave evidence and were the subject of cross‑examination. By final submissions, the mother’s Counsel, Mr Galloways, contended that the Court would find that the child is at an unacceptable risk of harm by reason of sexual abuse from the father.
The father and his mother, Ms B, gave evidence and were the subject of cross‑examination. By final submissions, Mr George (Counsel for the father) submitted that the Court would find that the child is not at an unacceptable risk of harm from the father by reason of sexual abuse, consistent with the denials by the father.
The Independent Children’s Lawyer (“ICL”) in this matter was appointed in August 2018; briefed Ms Frizelle of Counsel who cross-examined the witnesses, however helpfully called evidence from three supervisors at D Services – anonymously – named (as is usual for their protection) “Ms F”; “Ms G” and “Ms H”. In final submissions the ICL supported the father’s position that he was not an unacceptable risk to X of sexual abuse.
It is appropriate to record that on 26 March 2020, the Court ordered that a discrete hearing be conducted “as to the allegation that the father presents as an unacceptable risk of harm to the child by reason of sexual abuse”. At the time of this Order, the evidence was that the child had spent no time with the father since 11 January 2020. Whilst initially there were some delays in fixing a Hearing date because of adjustments to the Court calendar and necessary technological requirements arising from the impact of the COVID-19 pandemic (at that time only one month old), the Court does express its regret to the parties that the publication of these Reasons did not occur earlier. In setting a “discrete hearing”, the intention was (and in most cases the intention is achieved) to provide Reasons more quickly.
In determining that the matter should proceed in part by way of the discrete hearing – pursuant to the power to do so under the Family Law Act 1975 (Cth) (s 69ZQ and 69ZR) and the Family Law Rules 2004 (Cth) as then applied, and as considered by the Full Court in Rodelgo & Blaine (2019) FLC 93-897, the Court was well aware that both parents raise other issues in the parenting proceedings, yet to be determined, on allegations, yet to be tested.
As much is clear from the two family reports of Ms J and the psychiatric assessment of the parents undertaken by Dr K procured earlier in these proceedings. However, even though that evidence was set out in the ICL’s case outline filed 25 May 2020 as being “relied upon”, it was not, and those two expert witnesses were not cross‑examined.
In summary, the proceedings before me were conducted in respect of the discrete issue, as it was clear that the impasse on the unacceptable risk of sexual abuse of X had prevented any momentum or the child spending any time with her father in any way, from developing.
I now propose to consider the evidence and factual findings relevant to the allegation of unacceptable risk of sexual abuse. Before doing so, none of the experienced Counsel who appeared before me sought a “positive finding” that the husband had sexually abused X – no doubt conscious of binding authority that a Court should refrain from making a positive finding unless compelled to do so (M v M (1988) 166 CLR 69 at 76-77).
However with the consequences that flow to the child (and of course the father) even for a finding of unacceptable risk so serious, the Court is required to carefully analyse and give real and substantial consideration to the facts of the case and decide whether or not, and why and why not, those facts could be said to raise an unacceptable risk of harm (see Stott & Holgar and Anor [2017] FamCAFC 152 at [34]-[38] and the further authorities mentioned in that discussion of principles).
Before leaving the topic of the legal principles to be applied, I accept some attention to the questions of how the existence and magnitude of risk of future sexual abuse is assessed has been given by the Full Court recently (see Blann & Kenny [2021] FamCAFC 161 at [83]-[86]) however I am content to observe that the assessment of risk involves first the prediction of the likelihood an event will happen, and secondly, consideration of the severity of the impact of that event if it does happen (Deiter & Deiter [2011] FamCAFC 82 at [61]).
Because one of the final submissions made by Counsel for the father was that the father has had no opportunity to interfere with child as the mother believes, a clear consideration of the visits that did occur is required.
I will then turn to the evidence of disclosures and other events since April 2018 that the mother says establish her belief that the father has sexually abused X. In undertaking the following analysis I do not, at this stage, make a finding that the mother or the maternal grandmother have “fabricated” the statements made by the child or have sworn false affidavits. No such allegation was put to them in cross-examination.
However, for the reasons which follow, some of the comments made by the child are simply implausible and reflective of a young child who has not yet developed a mastery of her language skills, including accurate references to time, place and context. She was three and a half years of age when the first statements were made to the mother and the first of the s 93A interviews by Police (all of which I have carefully viewed in chambers).
THE FACTUAL CHRONOLOGY
Statements of fact which follow should be construed as findings of fact.
It is not the intention of the Court to deal with every allegation and statement raised in the two affidavits of the mother filed 13 February 2020. It is necessary to establish the foundation for the findings made and I deal with the evidence chronologically:
(a)The first contact visit between the child and the father after final separation occurred on 8 July 2017, before any proceedings were commenced. The visit was supervised by the maternal grandmother. There is no suggestion any abuse occurred;
(b)After Orders were made by Judge Egan on 27 March 2018, contact visits commenced and then took place on 31 March; 7 April; 14 April and 21 April. These visits were conducted under the supervision of the alert and watchful eye of the maternal grandmother, Ms C, at a local park during the day. The father says they went well. The maternal grandmother, in her affidavit, raises no allegation of witnessing any abuse. I am satisfied then, as now, the maternal grandmother was wary of the father; was involved in some tense verbal exchanges with the father and was keen in her affidavit to make and depose to observations that were denigrating of the father – for example at paragraph 21 where the maternal grandmother says:
I observed Mr Ziegler to arrive for most visits at W Park looking dirty and tired. He was always unshaven and his hair was unbrushed. Mr Ziegler often arrived with bloodshot eyes and usually had multiple large sores over his arms and legs.”
In cross-examination, the maternal grandmother sought to depart, and in my view embellish, “in hindsight” some of her recollections from her supervision over two years earlier. I take into account that she gave evidence from her home by telephone; had been in hospital the day before and was on “pain killers” – however it is clear that having reached a belief that the father had sexually abused X, she was unable to offer any positive evidence about the interaction between the child and the father during the five initial visits in April 2018. To the extent that the father deposes to the interactions being playful and happy, I prefer the evidence of the father. I find that whilst the maternal grandmother said the father was cunning and the father made her feel uncomfortable, at the time she had “no suspicions”. At one point in cross‑examination she acknowledged that it “never crossed my mind” that the father could love X. The maternal grandmother claimed she particularly feared the father would take the child away from her during the visits. This increased her alertness. I am comfortably satisfied that there was no inappropriate conduct of a sexualised nature between the child and the father during those five visits;
(c)Under the Court Orders, after the initial contact visits supervised by the maternal grandmother, contact was to move to supervision by the paternal grandmother and take place at the paternal grandmother’s residence – a more friendly and natural environment. Visits took place on 28 April; 5 May; 12 May; 19 May and 26 May 2018 and as a result of the statements made by the child to the mother referred to next, the mother withheld the child from spending time with the father from 2 June 2018.
I had the opportunity to observe the paternal grandmother give evidence. Ms B asserts that before separation she had a “comfortable” relationship with the mother and the maternal family. Importantly, the paternal grandmother said:
(i)X never had a shower during the visits, but did have “bubble baths” - the first being on 5 May 2018 after she attended a child’s birthday party:
·She said she had not fallen asleep when supervising and remained “awake and alert because I have been so excited at spending time with my granddaughter”;
·The father was “never left alone with X in our home”; and
·She was present at all times when X had her bath and observed the occasion when the father, with his shorts on, got into the bath with X (at the child’s invitation) to allow her to comb his hair (paragraph 34).
Despite the focused cross-examination of Mr Galloway for the mother, the paternal grandmother did not deviate from her sworn evidence. I found her a believable and truthful witness. I am comfortably satisfied that there was no inappropriate conduct of a sexualised nature between the child and the father during those five visits.
(d)X, for the reasons which follow, spent no time with the father between 26 May 2018 and 5 October 2019 (some 16 months), save for two reunification sessions overseen by counsellor Ms S. The first visit, thereafter on 5 October 2019 took place at the contact centre known as D Services;
(e)I deal with the period between the first disclosure on 28 April 2018 and the first visit at D Services as a separate topic below;
(f)The visits at D Services were the subject of brief notes tendered as Exhibit 15. There were eight visits, with the summary comment being “fine” on each occasion, save for the last visit on 11 January 2020, where the summary recorded “great interaction”. The notes reveal that on 6 February 2020 (after the mother had decided not to take the child to D Services for further visits), D Services had been contacted by “Ms Q from R Services – she is investigating concerns, allegations Re: X”. The notes of the visits are unremarkable. However, to the credit of the ICL, she arranged to call as witnesses “Ms G”; “Ms F” and “Ms H” – the actual supervisors of visits that took place during which the mother alleges (based entirely on statements made to her by the child) that the father hurt the child or otherwise acted inappropriately. There is no need to detail all their evidence in these Reasons. The parties (particularly the mother) heard it given by telephone. It has to be said that all three ladies are highly experienced, namely:
(i)“Ms F” is a social worker with 19 years of experience and had a background with child safety. She never heard X call the father “Daddy Z”; she says she was always vigilant; she observed the child to be very active “almost hyperactive”; she never heard X say anything about being “hurt”;
(ii)“Ms G” has spent over 18 years at D Services and is the team leader. She did a short period of supervision when “Ms H” went to lunch and some early short periods. She observed a “beautiful relationship” between the child and the father; the only information of alleged abuse that was mentioned to her was the telephone from Dr M; she denied that she “took my eye off the father and the child was abused”; supervision was always “vigilant”; X can play “rough” and on one occasion she asked the child to “calm down”;
(iii)“Ms H” is a qualified educator who has worked at D Services for 11 years. She observed great interaction between the child and the father; never heard X call the father “Daddy Z”; the child never mentioned to her she was “sore” or had a “sore vagina”; observed X, on one occasion, climbing a tree to a “low branch”. Although the mother expressed to Ms H after the visit on 11 January 2020 that X “was a very different child”, she could not think of anything she observed that was different. She always stands close to the child during visits and saw nothing at any time inappropriate.
Whilst the mother in her cross-examination says she believes her child’s statements about abuse occurring during these supervised visits at D Services – I do not. I am comfortably satisfied that these highly experienced supervisors would step in if anything inappropriate was observed or said. I believe their testimony. The fact that the mother dismisses their testimony as truthful, and with no hesitation or reflection, is concerning.
I have undertaken this analysis to set a context for what the mother says the child has told her – and aware of the submission made that the father has had no opportunity to abuse the child. I accept, of course, that there might have been an “opportunity” when the parents were in an intact relationship, but the mother provides no evidence that it occurred before separation (when the child was approximately 2 and ½ years of age) or of any concerns about the father being inappropriate. I now deal with the events surrounding the disclosures and the mother’s numerous responses to those statements.
EVENTS AND STATEMENTS AFTER 28 APRIL 2018
I now deal with this part of the history:
(a)Although the mother (at paragraph 11) says X began referring to the father as “Daddy Z” and also refers to him, I infer, in her home by that name, the evidence is she refers to him as “dad” or “daddy” when with the father, including when being supervised;
(b)At paragraphs16 to 19 of the mother’s affidavit, the mother refers to statements made by the child on 28 April 2018, claiming she had a shower with “Daddy Z” and that “Mr L” dried her. This is in direct conflict with the evidence of the paternal grandmother;
(c)The mother says at 12.15am (on, I infer, 29 April 2018) the child “woke up and was screaming” and said words to the effect “I’m itchy and sore”. Nothing said could be construed as a statement about the father acting in a sexualised manner towards the child. The mother did not take the child to the doctor for her “itch” and the child said the next day it had settled down. No allegations are made about anything occurring on the next visit of 5 May 2018;
(d)On 12 May 2018, after returning home from the supervised visit, the mother at paragraph 25 gives details of a discussion with the child. The issue seemed to be that the father got angry and “smacks me and yells at me” if X called the father “Daddy Z”. The father in his testimony, denied any angry interaction with the child of this nature and nothing was observed by the paternal grandmother. The visit on 19 May 2018 was not the catalyst for any concerning comments by the child, nor was the visit on 26 May 2018;
(e)By the 26 May 2018 visit, the parties were aware that the matter was to return to Court on 1 June 2018. I accept the mother was, at this time, anxious about the child’s time with the father increasing. On 22 May2018, Judge Egan had discharged an earlier order for the father to submit to a hair follicle test. The mother (at paragraph 28) says she sought advice on 31 May 2018 from a Psychiatrist as to methods by which she could ease the child’s “anxiety and worries about spending time with Mr Ziegler”. The evidence of the father and the paternal grandmother, which I accept, is that the child did not exhibit any “anxiety” when in their care. On 1 June 2018, Judge Egan specifically ordered the supervised time be for six hours (10.00am to 4.00pm) “whether such time occurs at the paternal grandmother’s residence…or elsewhere”;
(f)The day before the rescheduled visit on 2 June 2018 the mother (at paragraph 30) says the child made statements as set out, including that:
(i)“Daddy Z tickles me hard and scratches me”; and
(ii)after enquiring where (the child being on the toilet at the time) and further exploring “where” by the mother’s questioning, the child said “he tickles in between (pointing to her vagina) and then it goes inside”.
(g)I accept that the mother was “completely shocked” and felt sick as she deposes to at paragraph 31. No real context is provided by either the mother or the maternal grandmother for a comment made shortly after when the child was lying on the maternal grandmother’s bed to the effect, “Daddy Z hurt my vagina”, however at 8.00pm that evening, the mother attended the N City Police Station and made a formal statement (see “Z-1”);
(h)The morning of 2 June 2018 the mother, at the request of the Child Protection Investigation Unit, took the child to the Police station for an interview. I have viewed the s 93A video of the interview, conducted by Police between 9.05am and 9.30am. The child (only three years old at the time) was talkative but fidgety. She appeared confused about who was “daddy”; “Daddy Z” and “grandad” at times. She said no one “touches me” on her private parts; had not told “nobody” that someone touched her; could not explain why she calls her “daddy” “Daddy Z”; thought she was going to the doctor that morning as she had hit her head and expressed she was “happy” to go to “daddy’s house today”. She did not go however, and even after going to P Hospital and then a General Practitioner (who conducted an external examination), the mother decided not to facilitate, as the Orders required, the scheduled visit;
(i)Later on the night of 2 June 20118, the mother had a further discussion with the child (set out at paragraph 43). It is apparent, even on the mother’s own testimony, that she engaged for reasons unexplained, in questioning the child in a leading way. This conversation elicited, for the first time the mention of “sticky pots” and the making of pancakes. I am satisfied on all the evidence that by 2 June 2018, the mother felt so concerned about her interpretation of what the child was telling her, that she decided not to facilitate further visits at that time;
(j)On 4 June 2018, the mother’s solicitors communicated to the father’s solicitor that the mother was unwilling to facilitate the father’s time (supervised by the paternal grandmother) in accordance with the Orders, and filed an Application in Case on 7 June 2018 seeking a suspension of time. By the time of this Application in a Case, none of the medical investigations initiated by the mother found evidence of abuse;
(k)I am satisfied, at least since 1 June 2018, the interactions between the father and the child during supervised visits had been the subject of further discussions between the mother and X. I am not satisfied, nor would I have expected, that I would have every discussion set out in the mother’s evidence. The mother made no notes. The maternal grandmother says X can just say things. Be that as it may, there is no context offered by the mother for the conversations she had with the child some time on 30 June 2018 (see paragraph 48), including the comment “when he puts his finger inside my wee wee, and he takes them out, he smells them. It’s disgusting, mum”;
(l)This “disclosure” was made just prior to the release of the family report filed 11 July 2019, by Ms J. The report was based on interviews and observations conducted on 23 April 2019 of the mother, her family and the child. However, the father was interviewed separately on 16 May 2019 and was not observed with the father for the reasons set out at paragraph 47 of the family report;
(m)After time was formerly suspended by Court Order dated 18 July 2018, the mother sought a further Police interview, which took place on 20 July 2018 between 14.41 and 15.03. I have viewed the s 93A video. In this interview the child again appeared confused at times; indicating she did not want to talk about “Daddy Z”; claimed “my daddy is called Mr AA” (the mother’s partner at the time); claimed both Mr AA and the mother “tickle me”; towards the end of the questioning she did mention that “Daddy Z did something that hurt me”, but despite further questioning she gave no further context.
It is hardly surprising that, as the mother says, the Police told her on 20 July2018 that no further action by Police would be taken. The next day the mother says a conversation took place (again no context is offered to the Court) during which the child said that Mr Ziegler hurts her belly or wee – a statement in effect, the mother says the child repeated to her “on a number of occasions for weeks”. On 24 July 2018, the mother began counselling for the child with child Psychologist Dr Y. Dr Y’s notes form Exhibit 5. I have read them. The referring doctor’s letter of 17 July 2018 sought “psychotherapy and support” for the child following “allegations of sexual abuse”. The focus of the 10 sessions, as the report of 13 September 2018 makes clear, was directed to personal safety, but the child is not always willing to engage in these discussions. The notes reveal that the mother used part of these sessions to gain support and advice “on how to respond to disclosures” and “how to best support X to recover from alleged abuse”. I am satisfied, although no disclosures were made to the counsellor, that the mother’s comments and need for advice were based on the mother’s firm belief that sexual abuse had occurred;
(n)At paragraphs 55 to 59 the mother says many further; different and more expanded statements of alleged abuse were made by the child – again encouraged by the mother (e.g. “thank you for telling me more of your secret”) and where she seems to use the term “gina” to describe her genitalia, having earlier, on the mother’s sworn testimony, used descriptions such as “wee wee” and “vagina”. Obviously continually concerned, the mother arranged for a third s 93A interview by Police on 15 August 2018. I have viewed the s 93A video. The reference to “sticky pots” at times during the interview makes no rational sense at all. The mother has no idea what the child is referring to and the best the father, under cross-examination, could offer, was it might have something to do with the process of making pancakes. By this third interview however, and noting the extensive continual discussions between the mother and the child, the child makes many more negative comments about the father, including:
(i)He keeps on breaking things;
(ii)Puts his hand in my “gina” every time and he puts “sticky pots into my gina”;
(iii)He lives at his “yucky house” and
(iv)When I am asleep at my house he “keeps waking me up with sticky pots”
Of concern is the child’s statement that “my mummy told me what to say today – about sticky pots and Daddy Z”
The mother denied she did so repeatedly.
(o)The Department of Children, Youth Justice and Multicultural Affairs at various junctures in this journey have been involved and notes tendered by the ICL (Exhibit 8), make no suggestions and substantiation on their investigations of allegations the father has abused the child;
(p)The mother, firm in her belief and she says in the face of continual statements of concern by the child “only” to her, had the child medically assessed, all within the context of the belief the child was abused. Whilst I accept that such medical investigations occurring months after the last visit between the child and the father did not reveal any concerns, that does not answer the mother’s question – “but it did not reveal it did not occur”; and
(q)I have already dealt earlier with the attempts to have supervised contact at D Services provide an opportunity to the child to spend time with the father – proving unsuccessful in any sustainable way. It is suffice to say that by 11 February 2020, minutes of the SCAN Team recorded a view that there was a concern about the mother’s continuing reporting of sexual abuse by the father since 2018 and the subject child’s risk of emotional harm due to the mother wanting the child to be continually interviewed and medically examined.
DISCUSSION
I have given real and substantial consideration to the facts of this case. In circumstances where all contact visits between the child and the father since separation have been in the presence of initially, the maternal grandmother, then the paternal grandmother and finally, supervision at D Services, if the type of sexual abuse which the child’s words to the mother suggest occurred, it would not be possible for the abuse to occur unless the Court accepted the mother’s belief that, at least the paternal grandmother and the D Services supervisors either:
(a)failed to properly supervise the time X spent with her father; or
(b)having properly supervised the time, simply lied about seeing no inappropriate contact between the father towards the child.
I am satisfied that from first time the mother says the child made a disturbing comment on 28 April 2018, not only did the mother begin to form, what now represents a firm belief that sexual abuse occurred, but that it is more likely than not, this young child was engaged in constant discussions with the mother about the topic.
At this stage of the evidence, I am not satisfied that the child was “coached” by the mother, although for the purpose of the last s 93A interview, even the child says the mother told her what to say.
The introduction of the term “sticky pots” is simply bizarre.
The mother would ask the Court to also accept that the father is likely to take any chance to see the child as an opportunity to abuse her sexually. In this respect, she caused her Counsel to cross-examine the father about cruelty to dogs. The father, who lives in a rural area, gave a frank answer which reflected the need to protect his stock from dangerous dogs. I am not persuaded that evidence from the father, which I accept would make many people (not only city based persons) uncomfortable, supports the mother’s belief that the father has sexually abuse his daughter.
Certainly, his posting on social media of a disgusting photograph of female genitalia and an accompanying misogynistic comment, is entirely inappropriate. The father acknowledged his foolishness.
A parent who hears comments such as the mother did initially on 28 April 2018 and thereafter, cannot ignore them. She appropriately contacted police. However, after three interviews; investigations by officers of the Department of Child Safety and medical investigations, it could not be said that the mother did not take every step to try, as she sees it, to protect her daughter.
However, sexual abuse allegations by young children, if made, are fraught with uncertainty due to their young age, developing verbal skills and diminished ability to link time and place with accuracy.
I agree with the submissions of the ICL, adopted by the father, that the evidence does not establish that the father poses an unacceptable risk of sexual harm to the child.
SO WHAT HAPPENS NEXT?
Although I accept the issue of whether or not the Court finds the father poses an unacceptable risk to X is not the only issue, the Family Report dated 2 July 2019 identified further issues, where at paragraphs 61 and 62, Ms J said:
61.It is the report writer’s opinion that the difficulty with respect to determining future parenting arrangements, lies in determining whether or not X is at risk of harm should she recommence spending time with the father in the near future. Based on information from the investigating authorities, there appears to be no independent information that indicates that X was harmed by her father and it is noted that DOCS deemed that Mr Ziegler was a parent willing and able to care and protect his daughter. If the court accepts these investigations and the father’s denial that he has not harmed his daughter, it is respectfully suggested that positive consideration be given to X recommencing time with her father. It is suggested that prior to time commencing on a regular basis, that the parties engage with a suitably experienced counsellor for the purpose of reunification between X and Mr Ziegler. It is recommended that the parties engage with psychologist, Ms S, at V Town, for the purpose of working towards reunification between Mr Ziegler and X. It is also anticipated that Ms S can assist Ms Ziegler, in remaining appropriately protective of her daughter, but also assist her in promoting X’s relationship with her father. Once reunification has occurred, it is suggested that X spend time with her father at a contact centre on days and times as available, for six months, and that unsupervised day time commence thereafter from 9 AM until 5 PM each alternative Saturday for six months, and that the time then be increased from Friday afternoon until 5 PM Sunday each alternate weekend thereafter, and half the school holidays.
62.It is the report writer’s opinion that the challenge for the mother will be to somehow find a way to promote X’s relationship and protect X from her anxieties with respect to her daughter spending time with the father. It is asserted that should the mother continue to perceive the father in a negative light and promote the view that he is an unsafe person, (while the evidence does not support this), it will risk X forming an insecure attachment to her father, and may also confuse her about what is safe and what is not safe. This may result in her suffering from unnecessary anxiety, poor behavioural and impulse control, and an inability to form trusting and secure relationships in the future. Hence it will be important that Ms Ziegler seek assistance to help her cope with X spending time with her father, and not exposing X to her anxieties and negative view of Mr Ziegler.
Of course, now that the Court has made the finding set out in these Reasons and considering how the visits at D Services that took place were positive in their nature, the major impediment to X recommencing meaningful time with the father (and the extended paternal family) appears to now be a combination of the following factors:
(a)The mother’s capacity, perhaps with the benefit of counselling, to accept the findings of the Court and to genuinely support the child’s relationship with the father – noting the father has at all times, supported X living primarily with the mother;
(b)The father’s capacity, also perhaps with the benefit of counselling, to put the events, hurt and issues of unfairness that he has probably felt in not spending time with X behind him to embrace the future opportunities for a relationship with the child. This must, of course, include not sharing with the child any negative opinions he holds about the mother, and ensuring other members of his close family do not do so; and
(c)How X, who has now not spent time with the father since January 2020, is able to re-engage with the father. Her ability to do so could be shaped, not only from what she may have heard over that time from the mother and maternal grandmother, but also whether the mother can support X’s relationship with the father.
It would be helpful if the ICL could engage the parents in discussions as to how the child’s time with the father should recommence. Conscious of the delays already acknowledged by the Court, I propose to list the matter before for a Case Management Hearing at 9.30am on 22 September 2021, with the ICL and the parties to exchange and file by 15 September 2021, a minute of interim orders sought for the next six months.
If the parties are unable to agree on the forward process of this matter, the matter will be listed for an urgent interim hearing thereafter.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 6 September 2021
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