FAMILY COURT OF AUSTRALIA
| LICHA & WUNSCHER | [2007] FamCA 357 |
| FAMILY LAW - CHILDREN – Orders made by consent between the parties on the fourth day of the bitterly contested trial involving, inter alia, allegations of sexual abuse - The mother first sought that there be no order for contact and later that the time to be spent between the father and the 7 year old daughter be supervised – That changed in the course of the trial – The father cross applied for residence. |
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| Family Law Act 1975 (Cth) ss 60B, 60CC Evidence Act 1995 (Cth) s 140 |
L v B (2005) FamCA 242
Minagall v Ayres (1996) SASR 151
Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Louth v Diprose (1992) 175 CLR 621
Jurss v Jurss (1976) FLC 90-041
A v A [2006] FamCA 1056
Johnson v Johnson (2000) 201 CLR 488
M v M (1988) 166 CLR 69
Re W, Sex Abuse: Standard Of Proof (2004) FLC 93‑192
B v B (1993) FLC 92-357
N v S and Separate Representative (1996) FLC 92-655
| APPLICANT: | Mr Licha |
| RESPONDENT: | Ms Wunscher |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Mort |
| FILE NUMBER: | MLF | 6928 | of | 2003 |
| DATE DELIVERED: | 14 February 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Guest J |
| HEARING DATE: | 6, 7, 8, 9, 12 February 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Dellidis |
| SOLICITOR FOR THE APPLICANT: | Pearsons |
| COUNSEL FOR THE RESPONDENT: | Ms Agresta |
| SOLICITOR FOR THE RESPONDENT: | Michael L Maplestone |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Mr Mort |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Septimus Jones & Lee |
ORDERS
That all previous parenting orders be discharged.
That the parties have equal shared parental responsibility for decisions regarding the long term care, welfare and development of the child, a daughter, born in August 1999.
That the child live with the Mother.
That the Father spend time with the child as follows:
(a)On Friday 16 February and Friday 2 March 2007 at G at times to be advised by G;
(b) Thereafter for a period of 6 months as follows:
(i)each alternate Friday from 4pm to 7pm commencing 9 March 2007 with the Father to collect the child from S, T, at the commencement and return the child to the Mother's residence at the conclusion of his time;
(ii)Each alternate Sunday from 10am to 6pm commencing 18 March 2007 for a period of 3 months;
(c)Thereafter for a period of 3 months from 10am on Saturday until 6pm on Sunday each alternate weekend commencing 16 June 2007;
(d)Thereafter from 4pm Friday until 6pm Sunday on each alternate weekend during school terms commencing 14 September 2007;
(e)For one week during each of the three mid year school term holidays commencing in the September 2007 school holidays at times to be agreed and failing agreement:
(i)for the first week during 2007 and each alternate year thereafter; and
(ii)for the second week during 2008 and each alternate year thereafter.
(f)For half of the long school term holidays at times to be agreed and failing agreement:
(i)for the first half of the 2007/2008 long school term holidays and each alternate year thereafter; and
(ii)for the second half of the 2008/2009 long school term holidays and each alternate year thereafter.
(g) On Christmas Day:
(i)from 3pm Christmas Day to 3pm Boxing Day 2007 and each alternate year thereafter; and
(ii)from 3pm Christmas Eve to 3pm Christmas Day 2008 and each alternate year thereafter.
(h) On the child's birthday:
(i)from 3pm to 7pm if the birthday falls on a non school day; and
(ii)from 5pm to 7pm if the birthday falls on a school day.
(i) On the Father's birthday:
(i)from 3pm to 7pm if the birthday falls on a non school day; and
(ii)from 5pm to 7pm if it falls on a school day.
(j) On Father's Day from 10am until 6pm;
(k) At other times as may be agreed between the parties.
The Father's time with the child pursuant to paragraph 4 be suspended:
(a) On Mother's Day from 10am;
(b) On the Mother's birthday:
(i)From 3pm to 7pm if her birthday falls on a non-school day;
(ii)From 5pm to 7pm if her birthday falls on a school day.
(c) On Christmas Day:
(i)From 3pm Christmas Eve to 3pm Christmas Day 2007 and each alternate year thereafter; and
(ii)From 3pm Christmas Day to 3pm Boxing Day 2008 and each alternate year thereafter;
That save where otherwise provided for, changeover for periods of time spent by the Father pursuant to these Orders shall take place at the Father's residence at the commencement of each period and at the Mother's home at the conclusion of each period.
That each of the Mother and Father do all things necessary to cause the child's name to be registered as "[the surnames of both parents]".
That each of the Mother and Father be and are hereby restrained from causing or permitting the child to be referred to, known as or enrolled at school as anything other than [the surnames of both parents].
That the Father be authorised to request from the Principal of any school attended by the child that the school forward to the Father, at his expense, copies of all school notices, newsletters, reports and applications for photographs.
That the Father be permitted to attend school events to which parents are normally invited including but not limited to parent-teacher interviews, concerts, fetes and sports days.
That each party provide the other with no less than 14 days prior written notice and particulars of any change of address and/or telephone number.
That each party notify the other in the event of any serious illness or injury affecting the child whilst she is in their respective care.
That the Father shall ensure the child attends her dance lessons, should such lessons coincide with his time with the child in accordance with these Orders.
That the Father shall purchase an asthma pump for the child to be used as necessary.
That save as provided for in these Orders, the Mother be restrained from subjecting the child to any medical, psychological or other examinations save for an emergency medical examination or treatment (and upon immediate notice to the Father of any such medical attendance).
That the Mother be restrained as follows:
(a)From referring to, discussing, questioning, or commenting to or in the presence or hearing of the child in relation to issues of sexual abuse;
(b)Save for the therapeutic purposes, from knowingly causing permitting or allowing a third party to conduct himself or herself in accordance with subparagraph 16(a) hereof.
That the Mother be restrained from denigrating, insulting or rebuking the Father to the child or in her presence or hearing or from knowingly causing, permitting or allowing another person to do so.
That the Independent Children's Lawyer forthwith arrange for the child to attend upon Dr R or such other professional as may be nominated by the Independent Children's Lawyer for therapeutic and reportable purposes.
That the child's parents shall abide by the directions of Dr R (or his nominee) and fully co-operate with any treatment plan AND FURTHER that the Mother be solely responsible for the payment of any professional fees relating to her and/or the child's attendance(s) save that the Father be responsible for the payment of his attendance(s).
That the Mother forthwith attend upon Mr P for therapeutic and reportable purposes in order to address the Mother's parenting and her allegations of sexual abuse AND FURTHER to attend as directed on a reasonable basis and be responsible for payment of any fees.
That pursuant to paragraphs 19 and 20 Dr R and Mr P be at liberty to liaise with each other and the school counsellor in relation to the child's and the mother's progress and therapeutic counselling.
That the mother be at liberty to continue to utilise counselling services for the child at the child’s school, and such counsellor be at liberty to liaise with Dr R.
That the Independent Children’s Lawyer provide forthwith a copy of these Orders and Ex Tempore Judgment delivered 14 February 2007 and Dr R's report and Ms W’s reports to Mr P.
That the Independent Children’s Lawyer forward to the child's school a true sealed copy of these Orders and the report of Dr R filed in these proceedings as soon as practicable.
That the Independent Children’s Lawyer forward to Dr R a true sealed copy of these Orders, the Ex Tempore Judgment delivered 14 February 2007 as soon as practicable.
That the Independent Children’s Lawyer forward to the Manager of G a true sealed copy of these Orders as soon as practicable.
That the appointment of the Independent Children’s Lawyer expire six months from the date of these Orders.
That all extant applications be dismissed and removed from the list of cases awaiting final hearing.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS CERTIFIED
That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.
IT IS DIRECTED
That the subpoenaed documents be returned to the persons or entities received therefrom.
AND IT IS NOTED THAT:
AThe parties intend for the child to have her first appointment with Dr R at 2 pm or 27 February 2007 and thereafter for the Father to attend on Dr R on 1 March 2007 at 1.30 pm and the Mother on 6 March 2007 at 2 pm.
BMr P is available to attend upon the mother by appointment commencing this week.
CThese Orders have been agreed to by all parties on the basis that it is acknowledged that this Court has made no finding of sexual abuse in relation to the child upon application of the requisite standard of proof AND FURTHER that there is no unacceptable risk to the child in relation to any time spent with the Father.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 6928 of 2003
| Mr Licha |
Applicant
And
| Ms Wunscher |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
These proceedings concern child welfare arrangements for the daughter who was born in August 1999. By her Amended Form 1A Response filed 28 March 2006, the mother sought an order that she have sole responsibility for the child’s long‑term care and day‑to‑day welfare and development, that the child live with her and that the father have no contact with his daughter. Central to the mother's case was her allegation that the father had sexually abused the child.
For his part, the father has at all times vehemently denied that he had done so, and by his Amended Form 1 Application filed 24 May 2006 sought an order (inter alia) that the child live with him and that the mother spend time with her in what I may broadly describe as usual or general orders of the court. Thus the demarcation lines were set. There was quite a litigation pathway travelled by him in coming to that position, for when the proceedings were initially commenced on 9 April 2003 he sought “contact”, as it was then styled.
In her Case Outline Document filed 31 January 2007, the mother maintained her stated position, seeking orders as set out in the Amended Form 1A Response. However, when the proceedings commenced before me on 5 February 2007 Ms Agresta, counsel for the mother, reviewed the mother's position that "in view of the reports" she proposed that the father spend time with the child on a supervised basis "at [G] for a couple of years". Her reference to "the reports" were those of Ms W, the Family Consultant, being five in all, the last one dated 21 March 2006. Given the passage of time, it is hard to accept the change in position of the mother upon that stated basis as being genuine.
Mr Mort, counsel for the Independent Children's Lawyer at that stage provided, at my request, a preliminary view that, having given the matter the most careful consideration and having read the relevant files of the Department of Human Services, the allegations of sexual abuse could not be made out to the requisite standard of persuasion and nor was there an unacceptable risk of sexual abuse.
In his Case Outline Document, Mr Mort proposed that subject to evidence and any findings in relation to the allegations of sexual abuse, the preliminary view of the Independent Children's Lawyer was that if the mother was able to satisfy the court that she would promote and facilitate the father's time with the child and comply with any future orders of the court, the child should continue to live with her and spend increasing time with the father on an unsupervised basis. This time should be extended gradually to include weekly daytime periods to overnight periods on alternate weekends to commence within approximately three months. Further, that the child spend time with her father for one half of all school holidays, one half of the long summer vacation, and on special occasions such as birthdays, Father's Day and Christmas Day.
However, it was also the preliminary view of the Independent Children's Lawyer that if the mother was not able to satisfy the court that she would promote and facilitate the father's time with the child and comply with the future orders of this court, then the child should live with the father and spend time with the mother. That time should be spent supervised at G, with the mother having liberty to apply in relation to the question of further contact after 12 months. In the alternative, the mother have no time with the child for three months and then time supervised at G for 12 months.
It was further proposed that the child have regular psychotherapy as recommended by Dr R, that the mother have psychiatric treatment as recommended by him and that each parent attend a post‑separation parenting course.
The rationale for this proposal, as expressed by Mr Mort, was that the orders provided an opportunity for the child to have a meaningful relationship with both parents. It was acknowledged that the child was bonded to her mother and had a close relationship with her. Further, that it would be preferable if the child were able to remain with her mother if possible, while maintaining her relationship with the father.
It was submitted that despite the limited time thus far spent with her father, the child had displayed a very positive and healthy interaction with him. Further, that the father had displayed insight and understanding of the responsibilities of parenthood. It was submitted that the child had a loving relationship with her father, an attachment to him and that the father displayed "some capacity to meet" the child's needs. However, as a result of his limited time with her this was to a large extent untested.
The Independent Children's Lawyer argued that the father’s lack of time spent with the child derived directly from the mother's "failure to promote and encourage the child's relationship" with her father, which displayed a lack of insight into the child’s emotional needs and her responsibility for the potential damage to her psychological and emotional functioning. It was put that she appeared to have disregarded her obligations as the child's primary carer.
The Independent Children's Lawyer at that stage submitted that in the event the mother continued to neglect her parental responsibilities to the child and to "foster positively a relationship between the child and the father" there was a real risk that the father's existence would fade in her life to the detriment of her emotional and psychological wellbeing.
It was noted that the child had suffered trauma as a result of the conflict between her parents and that both Dr R and the Family Consultant urged change in her adverse family situation "via resolution or a reduction of this conflict". That of course, was not heeded by the mother.
The Independent Children's Lawyer then noted that an important measure of the mother's insight into the child's needs would be "her attitude" to the father and "her preparedness to overcome past negativities". On reflection, it is plain to me that the preliminary view and rationale showed considerable understanding and insight of the issues before me.
At the very beginning of the trial I addressed all counsel, expressing a preliminary view under the umbrella of Johnson v Johnson (2000) 201 CLR 488, and the matter was stood down for negotiation. At the recommencement of the proceedings in the afternoon of the first day, I was advised that no agreement had been reached and that the matter was proceeding.
At that point, Ms Agresta submitted that the mother had a fresh proposal, which she articulated in the following terms. Ms Agresta submitted that the new proposal was for the child to live with her mother, and that the father have contact for a period of three months on a fortnightly basis during the day for "several hours" with the mother being present.
Ms Agresta explained that the rationale for this proposal was that the child would “feel more secure”, and secondly, because the child was reluctant to attend on contact. Ms Agresta said, when I sought clarification, that the mother continued to have “a fear” that sexual abuse would take place. She submitted the mother's further proposal was that after that period of three months the father have contact with the child during the day for "several hours", with the mother remaining for “half an hour” to settle her and then leave them together. That too would go on for three months.
Thus following a period of six months, it was then proposed that there be a further period of three months, unsupervised during the day, but not overnight and on a fortnightly basis. Following that period, now being towards the end of 2007 (after nine months), there be unsupervised overnight contact on one night per fortnight, and thereafter "eventually" at "some time" for two nights per fortnight. There was no sunset clause to that open-ended and bald time frame.
Ms Agresta said that her instructions were that once the situation was "up and running", the issue of holiday contact be brought in, broadly speaking, for one half of each holiday. Further, that the parties engage in "some social family therapy".
Given the terms of that proposal, there was little difficulty for me to reason why discussions had broken down. It was plainly obvious for there was, without any criticism being directed to Ms Agresta, a sting of naivety and unreasonableness about it which failed to grasp the central thrust that would enable the parties to move forward for the benefit of the child.
This became so much more apparent with each of the parent's evidence before me and in particular the very helpful and illustrative analysis provided by Mr Mort in Exhibit “ICL3”, comparing that proposal with the terms of the interim orders made by Kay J on 23 May 2005. It was plain that the mother was obdurately stubborn to rational logic and resistant to moving forward with the father's time to be spent with the child.
The father commenced to give his evidence on 6 February 2007 and was cross‑examined about his prior criminal history record, together with the fact that he had been given to reactive depression. The impact of such an attack was at first lost upon me, its relevance being asserted as going to credit and the father's ability to otherwise care for the child. I say that because firstly, the fact of his police record and emotional health was known to the mother, and secondly that he actively participated, notwithstanding the allegation and at the request of the mother, some may say to accommodate her work ethic, in the child's daily nurture, the extent to which however was in dispute. It also did not sit at all satisfactorily with the terms of the signed Parenting Agreement entered into between the parties on 14 June 2002 upon the breakdown of their union.
When the matter resumed on 7 February 2007, I further addressed the parties on the positive advantages to be derived from consensual, sensible and dignified resolution. I emphasised the principles and objects mandated in section 60B of the Family Law Act 1975 (as amended) (“the Act”) and the requirement for professional intervention both now and into the reasonably foreseeable future to assist each of the father, the mother and the child. It was again stood down, but negotiations failed and the trial continued.
On the fourth day of the hearing, after the father had given his evidence and the mother had been extensively cross‑examined by Ms Dellidis, the proceedings were stood down yet again for negotiation purposes. On 12 February 2007, following a weekend break, the parties signed Minutes of Consent Orders.
As will become patently obvious through this judgment, for the mother to have proceeded further would have deepened the crisis revealed from her evidence and what I regard as her lack of perspicacity and discernment in failing to recognise all those clear indicators that there had been no sexual abuse as alleged. Independent third party evidence was apparent, yet ignored by her, as she chose to listen only to those that fed her own imprudent and hastily conceived views. It was the giving of her evidence that cast the die.
I have some doubts that this court will be free of this matter in the future, albeit that I hope I am wrong in my forecast. In any event, those professionals engaged to assist the parties and the child, pursuant to the terms of the consent order, may be assisted by what I have to say, which records the evidence to the point of resolution. Further, in the event it did return to court for any reason, the assigned judicial officer would have a comprehensive understanding of the basis of adjustment between the parties and a foundation for any decision‑making in the future.
Background
The father was born in Iraq in July 1954. The mother was born in Australia in March 1961. Accordingly they are 52 and 45 years of age respectively. The parties commenced cohabitation in May 1998 and their daughter was born in August 1999. Following unhappy differences between them, they separated under the one roof in April 2002. In June 2002 the parties entered into an agreement as to parenting and financial issues, and in November 2002 they physically separated from under the one roof. The child continued to live with the mother and spend time with the father by agreement.
The situation did not work out and on 9 April 2003 the father filed a Form 3 Application in the Federal Magistrates Court seeking orders for shared parenting and specific issues. In essence he sought a shared arrangement for the care of the child. The mother filed a Form 3A Response, seeking residence, defined contact and specific issues on 21 May 2003.
On 26 May 2003 consent orders were made in the Federal Magistrates Court of Melbourne, providing for the mother to have residence, that the father have contact each Sunday between 9 am and 5 pm, and each Wednesday between 4 pm and 7 pm. A family report was ordered.
The progress of the parties' litigation avenue commenced on 27 July 2003 with a notification being made to the Department of Human Services by the father concerning the child, alleging exposure to “psychiatric illness and emotional trauma”. On examination, the Department of Human Services closed the file on 4 August 2003, citing insufficient evidence to act. However, on 10 September 2003 the child was interviewed by the Department of Human Services and the Sexual Offences Child Abuse Unit (“SOCAU”), but did not disclose any sexual abuse. They interviewed the father on 24 September 2003.
On 26 September 2003 the mother reported to the Department of Human Services that the child had disclosed that her father had sexually abused her. Contact was unilaterally suspended by the mother. It was on 1 October 2003 that the Department of Human Services confirmed to the father that they were investigating this further allegation and that contact should be suspended in the meantime. The following day, on 2 October 2003, the father filed Contravention Application proceedings for breach of the contact orders that were made on 26 May 2003, alleging 20 contraventions.
Six days later, the Department of Human Services and the SOCAU interviewed the child. Again, no disclosures were made by the child. The child abuse unit determined no further action be taken and on 13 October 2003 a letter was written by the Department of Human Services which confirmed that the investigation was closed.
Orders were made on 11 November 2003 adjourning the Contravention Application of the father to 10 December 2003 by reason of judicial unavailability. However, events worsened, and on 20 November 2003 the father filed a Form 8 Application for “make up” contact, a Recovery Order and a further Contravention Application for breach of the orders that were made on 26 May 2003, this time alleging six contraventions. Accordingly, overall some 26 breaches of the authority of this court were alleged by the father.
That day, the Department of Human Services received a further notification. The child was allegedly displaying concerning behaviour at school. However, the Department of Human Services took no further action, given that the child was interviewed twice previously with no disclosures. On 26 November 2003 the Department of Human Services again closed the case.
On 10 December 2003 the mother filed an Amended Form 3A Response, seeking supervised contact, a family report and the appointment of a Child Representative. Consent orders were made in the Federal Magistrates Court on 12 December 2003, although there is some confusion as to whether or not they were made on 10 December 2003. It matters not.
Those orders provided for the father to withdraw his Contravention Applications and that the contact orders of 26 May 2003 be varied so that Wednesday and Friday contact occurred between 2.30 pm and 5.30 pm. Mercifully, a Child Representative was appointed. The matter was then transferred to the Family Court of Australia.
On 19 December 2003, the child disclosed that her father physically abused her. The Department of Human Services directed the mother and father to suspend unsupervised contact pending investigation and on 24 December 2003 the child was interviewed again by SOCAU. She disclosed that her father "touched" her on the "inside of her bottom". At that stage the Department of Human Services assessed there was a “significant risk” to the child. On the same day the mother made a statement to the police and the father was interviewed by them. He denied the allegations.
On 29 December 2003 the Sexual Offences Child Abuse Unit advised the Department of Human Services that the allegations were vague, that the child was unable to be submitted to VATE procedure and that the investigation would not proceed. Later, on 21 January 2004 the Department of Human Services interviewed the child and a disclosure was made. The Department recommended supervised contact and the matter was referred to the E Centre Against Sexual Abuse on 27 January 2004. On 2 February 2004 the mother filed a Form 8 Application seeking a suspension of contact. Thereafter, the matter proceeded down the litigation pathway with various applications, and the father having supervised contact to the child.
Legal Principles
The principles governing a case such as this are set out in the Family Law Amendment (Shared Parental Responsibility) Act 2006. In considering the consent orders, I must regard the best interests of the child as the paramount consideration (s 60CA). In determining what is in her best interests, I am obliged to consider the matters set out in s 60CC(1) which are called the ”primary conditions”. There are “additional conditions” also set out in that section. The two primary conditions are, firstly the benefit to the child of having a meaningful relationship with both her parents, and the second is the need to protect her from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. That bore significance.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and, as a note to s 60CC points out, are consistent with the first two objects of Part 7 of the Family Law Act as stated in s 60B. Accordingly they are matters requiring careful consideration.
The issue of credibility was made very clear at the commencement of the trial. Insofar as the standard of proof concerning the various evidentiary issues for my determination is concerned, I have made it clear that the level of persuasion is the civil standard, that is, the balance of probabilities (s 140(1) of the Evidence Act 1995 (Cth)).
By reason of the manner in which these proceedings were conducted, it is necessary in the course of this judgment to make what may be perceived as some harsh comments, but in doing so I stress very firmly at the outset that these comments are not made or intended to insult, belittle or undermine the confidence of the parties and in particular the mother. On the contrary, it is my hope and expectation that what I have to say in this judgment will be considered carefully, in particular by her, and used positively to benefit the child and for each of the mother and the father to better understand an objective independent consideration of the relevant matters considered necessary to facilitate what is in her best interests.
It is readily apparent from the manner in which the proceedings were conducted that the issue of credibility, as I have already discussed, became a critical one. That was necessarily so, given the issues raised before me from time to time. There was a serious allegation. There was a denial. One is required therefore, in the pursuit of a determination, to test the evidentiary base that each party acted upon.
Accordingly, I will in the course of this judgment make a number of significant and crucial findings concerning my acceptance or otherwise on different and important issues. Given this fact, I wish to emphasise that I have had the advantage of carefully observing the witnesses in the giving of their evidence, which is an important one and of considerable assistance, given that my observations span several days during which many issues were put to each of the contesting parties.
I am not by any measure asserting this is a panacea, for it is patently clear that an assessment of truthfulness or reliability by demeanour can be nothing short of hazardous, if that were the only criteria. But in this case, in addition to my general observation of demeanour in the above circumstances, I also take into account the inherent likelihood or otherwise of evidence given on a particular issue and its consistency overall with other evidence and documents relied upon.
I have made such comments in a number of judgments, including for example L & B [2005] FamCA 242. In that case I referred to the fact that a trial judge is in the privileged position of observing witnesses. This was commented upon in Minagall v Ayres (1996) SASR 151 at 154 per Hogarth J. See also Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 313 per Kirby J, who said:
“By conventional theory the observations made by a trial judge of the appearance and demeanour of a witness giving evidence are not only available to be used in the determination of a dispute but amount to important ingredients of the decision-making process. They normally provide the primary decision-maker a distinct advantage which controls, and even limits, the exercise of the appellate court of its statutory functions in an appeal by way of rehearing…”
As I discussed in L & B (supra), a trial judge in a significant case such as this is charged with the onerous duty of affording weight to a particular fact in issue which will "not often be capable of rationalisation beyond the statement, having heard him, I am not satisfied I should accept what he says". See Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273-4 per Mahoney JA. In that case I find considerable assistance from his Honour's comment that:
“…the weight which a judge gives to a particular fact may be affected by, as it has frequently been put, his experience and, in particular, his experience of the significance of that fact in the order of things.”
I have accordingly been careful in evaluating the relevant evidence, which necessarily brings into account matters such as credibility and the inherent likelihood or otherwise of the evidence given by the principal protagonists. A useful explanation of my task was provided by Dawson, Gaudron and McHugh JJ in Louth v Diprose (1992) 175 CLR 621 at 640.
The Evidence
The Father
I wish to make it clear that I have carefully considered the trial affidavit evidence of the father, together with his oral evidence before me. He was a thoughtful and careful witness, who earnestly responded to all questions put to him. There was no indication of evasiveness or procrastination. No doubt some of the matters put, the overall relevance of which was questionable, led to some discomfort. This was quite understandable in the circumstances.
The words of Demack J in Jurss v Jurss (1976) FLC 90-041 at 75-184 were apparently lost, in what I regard as an unnecessarily protracted and painful cross‑examination of historical content. So too, many of the rather intemperate assertions by the mother in her trial affidavits of the most private intimacies shared in the course of their union.
If I may borrow the wise words of Demack J in repeating for the benefit of the mother that an inquiry such as that before me is a positive one, designed to promote the best interests of the child and not demote the claim of the parent. Doubtless little regard was paid to the principles and objects of the Act when drafting what may be fairly described as an extravagant and unnecessary attack. This is particularly so given that the mother was fully aware of the father's police history and former predilection to gambling.
Overall, there was nothing put in cross‑examination that caused me to doubt the credibility of the father in the proceedings before me, notwithstanding his past record at another time long ago in quite different circumstances. To the contrary, and unlike the mother, he maintained a dignified demeanour at all times and made concessions when it was both proper and appropriate to do so.
When speaking of the mother, the father displayed no antipathy or anger. He addressed questions relating to the several options available for my determination with sensitivity. He did not seek to demote the claim advanced by her. He candidly, for example, proffered the preferred option that the child continue to live with the mother and that he spend time with her, qualified by her genuinely promoting his image as the father of the child, in circumstances where on the evidence it was open to him to validly reiterate the terms of his Amended Form 1 Application. I thought he was fair. I thought he was honest, realistic and, importantly, reliable.
I deal with his evidence. When examined by Ms Dellidis, the father said that since the filing of his trial affidavit on 18 April 2006 he had consulted with a psychologist to assist him in these proceedings. He explained that he had been depressed and that he received considerable professional assistance and encouragement. He said that he had moved his life “forward” and had paid employment with a welfare agency, with whom he earned approximately $900 per fortnight. He received a Centrelink benefit of some $200 a fortnight.
The father explained that he had a companion who had entered into his life. She is the manager at the V store of the welfare agency and they had engaged in a steady relationship since August 2006. She is 45 years of age and lives at B in a unit of her own. She has no children. He said they enjoy a satisfactory and happy relationship.
The cross‑examination by Ms Agresta, and which I accept was upon instructions from the mother, was directed to dampen, perhaps blacken, the standing of the father as a witness in this court. For example, he was reminded that when he first saw Dr K (page 3 of his report) she told him that the father "had been addicted to gambling". However, the father said this had been the situation well before he met the mother. He was then cross‑examined at length upon his criminal record, and in the result Ms Agresta tendered Exhibit “M1”, being his criminal history sheet, the details of which were admitted by him.
Insofar as his gambling and depression were concerned, the father said that he made full disclosure of these matters to the mother when they met. It is a plain observation that the criminal history sheet of the father, particularly for the years in the late 1980s, was appalling and recorded obvious offences of dishonesty. His convictions and sentences are evident, and as one colloquially acknowledges, he “served his time”.
To suggest that this fact and this fact alone should register and impact upon the father's credibility or lack thereof for all time is not a proposition that I accept. Form both his demeanour in the witness box and his evidence I accept that he felt a great sense of contrition for those past events, which he greatly regretted.
Observing him carefully during the course of the cross‑examination on all these issues, it is clear that it was a painful exercise for him, and one which he accepted as part of the litigation pathway. The need to dwell on these aspects however, in the manner undertaken, was something that I doubt very much.
I do not accept that the father failed to make a full disclosure to Dr K of his past, and I am satisfied that he is the ilk of person that would respond earnestly to matters put to him. There was nothing to be gained by nondisclosure, given that the mother was aware of the history.
The father said he no longer takes medication for depression. He takes Voltaren (25 milligrams) to relieve pain in the lower back. He denied that he took Effexor when he met the mother. He said that he took Prozac prior to their meeting and that he was taken off that medication some time later. He conceded that he did suffer depression from time to time, which was reactive in symptomotology, explaining that it occurred when "the environment about you becomes bad and you can't handle it". He explained, and which is quite understandable, that when he was released from prison he felt that "no‑one wanted to know" him, that there was no opportunity for work which was magnified in circumstances where he had no family and had suffered a lost relationship.
Ms Agresta cross‑examined the father concerning matters raised by him relating to the mother's parents' reaction to him as a consort for their daughter. It is plain that they disapproved of him. He said responsively, when cross‑examined by Ms Agresta, that the maternal grandmother told him, "I don't like you, because it's in my blood," referring to the fact that he looked like "a negro". Such a statement, if made, was callous, racist, heartless and unpardonable. Albeit that the maternal grandmother did not give evidence, the matter having been adjusted prior to her being called, the manner and circumstance in which the father gave that evidence had the ring of reality about it.
However, I might point out that in the course of an insightful cross‑examination by Mr Mort, it became plain that the father did have a tolerable, indeed at times an amiable relationship with the mother's brother, which could lay the potential foundation for an opportunity to engage his assistance in the early stages of the reintegration of the child into his life. That was one positive aspect of these proceedings.
The father was cross‑examined at length in relation to his deposition that he had been "the primary carer" of the child during the first three years. He said that this was by agreement and during which period he cared appropriately and lovingly for her. I do not propose to scrutinise the lengthy, at some times somewhat turgid review of the living situation of the parties during those years, save to say that I was left with the clear impression that the father was involved in a substantial way in the care of the child. The exigencies of their household were such that there was evident a reverse dichotomy of traditional tasks.
It is plain that the father found it difficult to obtain meaningful employment. The mother was a trained professional. In those circumstances it is clear that she returned rapidly to work and it is doubtless too that her contribution financially to the coffers of the family was a most substantial one. It is also plain to me that during this period there were times during which a third party cared for the child, but that did not detract from what appears to me to have been a material contribution to the general nurture, development and welfare of the child by the father. It is not a black and white situation, but one whereby the piecing together the separate indicia formulates an overall picture of the dimension explained by me.
The lengthy cross‑examination of the father's employment history was, in my view, a needless and inessential exercise, doubtlessly obliged to be put by Ms Agresta upon instruction of her client. I have no reason to doubt the bona fides of the father in asserting his belief that he was "the primary carer", but that is in effect a technical term. His evidence leaves me with no doubt as to his contribution. Perhaps the nadir of the puttage, in terms of assisting me in the ultimate determination of the complex issues with which I am charged, arose from the husband's deposition that he took the child when she was approximately six months old, to a local creche, so that she might spend "some time socialising" with other children. He came under criticism for use of the descriptive term, "socialising".
The father was asked a number of questions concerning the Deed of Agreement made 14 June 2002. He made it clear it was his understanding that both he and the mother agreed they would "share equally" the care of the child. He disputed the puttage that it was not intended he have overnight care of his daughter. There appears to me to be some support for that proposition in that he, by his Form 3 Application filed 9 April 2003, sought a final order that he have the sole responsibility for the care, welfare and development of the child from 9 am on Monday to 5 pm on Wednesday. The father explained that his application was, using his words, in the same terms as the agreement between the parties.
The father accepted, as was put to him by Ms Agresta, that save for approximately two nights when the mother was in hospital, he had not had overnight contact with the child from the date of physical separation, November 2002, to this day. I have no doubt that was not his choice. The circumstances of the whole litigation pathway demonstrates that to be a fact. Indeed his daytime contact with the child on an unsupervised basis ceased in about August or September, of 2003.
The father was cross‑examined about the allegation of sexual abuse. Ms Agresta made it clear that the allegation relied upon by the mother was that set out in her trial affidavit of 4 November 2004, being prior to the proceedings heard before Kay J on 23 May 2005 when interim consent orders were made. It was intended at that time the parties proceed into the future within the terms of those orders, which have, in my view been honoured in the breach by the mother. Ms Agresta made it perfectly clear, with her traditional and professional frankness, that in relation to the allegations set out in paragraph 19, "I can't take it any further than that". That proved to be accurate, as the mother in her evidence endeavoured to erect an edifice of fact upon a foundation of quicksand.
The father said that the child had never used the term "pussy cat" in his presence (a reference to her vagina), and denied that he had ever touched her on the genital area, save that he would “wipe” her upon bathing. He explained that such tasks were never in a sexual way but “as a parent”. He made it clear that he believed the child had been coached to make the disclosure by the mother. Further, he said that he did not believe the child expressed that which she is alleged to have said.
The father was referred to the first report of Ms W of 19 August 2004 (paragraph 47) and asked why he so acted (kissing the mother) and saying that he had "no hard feelings" if he was of the view that the mother had "coached" the child. He made it clear to the court, and with considerable passion I might say, in asserting "she is the mother of my child" which is the situation "for the rest of our natural life" and that what he said that day he "meant from the heart at the time". I suspect that the puttage was predicated on the basis of a too black and white situation, without regard to variable human behaviour. It seems to me the father had retained, certainly to that time, unrequited and unresolved feelings for the mother following the separation.
The father made it clear that he firmly believed the mother had “made up” the allegation. When challenged on this, he referred to his affidavit filed 27 July 2004 (para 11), as formulating the foundation for that belief. That paragraph reads as follows:
“11.[Mr F], the psychologist employed by the mother who previously provided a report that no disclosures were made by the child, provided a further report in January 2004 stating that the child had made disclosures of sexual abuse by me. [Mr F] had been notified by Victoria Police that my daughter may have been coached by the mother in regard to the alleged claims of abuse. The following part of the report of [Mr F]. In his report dated 2nd January 2004, purportedly sent by [Mr F] to the respondent's mother's solicitor Mr Maplestone, he states as follows:
“The members of SOCA unit informed that in their opinion [the child] had been coached in her story, adding that [the child] asked her mother if that was what she was supposed to say. [The wife] was alleged to have stated words like, 'What am I supposed to do to get custody?' The latter is concerning, as it clearly casts doubt over the veracity of what has been stated to date. The context of the above is understood to occur within an acrimonious separation and child access battle.””
That report is one relied upon by the mother and is annexed to the affidavit filed in these proceedings on behalf of Mr F on 12 April 2006.
It was put by Ms Agresta that in the months of September to November 2003 the father continued to have contact with the child. With that he agreed, qualifying it by properly asserting "with several interruptions". So much so is clear, given that he filed a Contravention Application on 2 October 2003, as I said asserting 20 contraventions and again on 20 November 2003 asserting six contraventions. A total of 26 contraventions in all. The father said there was nothing in the behaviour of the child to suggest that she was stressed and positively asserted that the child enjoyed seeing him. That was not challenged in cross‑examination.
The father was also cross‑examined in relation to paragraph 22 of the mother's affidavit filed 4 November 2004. Without going into the lurid details of the assertions made, I need only record that he denied the allegations put and vehemently so. They were not, in the result, seriously pursued by Ms Agresta.
The father was asked a number of questions as to his “primary position”, seeking that the child live with him. He acknowledged that such a move would involve a change in her school friends, her school, her teachers and her general environment. He said, however, he compared the damage that the child would sustain following any change of residence with the damage that "is happening now". He made it clear, which I accept, that he would maintain the relationship between the child and her mother, which has been historically demonstrated to be in sharp contrast to the current situation with the child living with her.
When cross‑examined by Mr Mort, the father maintained his belief that the mother had “made up” the allegation. He pointed out that the last unsupervised contact that occurred between the child and himself was in December 2003. On about 12 December 2003 consent orders were made, as I said, in the Federal Magistrates Court. The orders provided, by consent, a withdrawal by him of his Contravention Applications and that the orders made on 26 May be varied in the way described.
The father gave evidence that in a conversation he had with the mother, she informed him that she had been “hassled” by Centrelink and by what he had said about her. I assume that referred to the father's disclosure on 27 July 2003. The mother further complained that she had considerable legal costs and went on to assert, "You started the war, someone's got to finish it”. She made a remark about sexual abuse. He said that he inquired what she was talking about and that she responded with a wink, saying, "You know what I mean”. The father maintained his belief that the child would be subject to "coaching, intimidation, things like that" by the mother. As matters stood, there was in my view a reasonable basis for making that assertion.
Mr Mort then addressed the husband to his background. He was born in Bagdad, Iraq. His father was Jewish and his parents divorced when he was six years of age. He has no siblings. His mother remarried and he was raised by his grandmother. He has no family in Australia.
The father said that he attends the S Church for mass each Sunday. He pointed out that the child formerly attended with him. For some recreation, he sometimes attended a Bible group and other church activities. He has been associated with the church since 2003. He referred to the fact that he has friends, but that the litigation in which he is involved has, to use my own words, disaffected them. He said that the mother's family provided no support for them upon the birth of the child, and that his relationship with her family had "not been good". That was a masterful understatement.
However, he referred to the fact that the mother's brother commenced to visit them when they lived at their home at W. He did this "only when he received a phone call", from her. As to his relationship with her brother, he said there was no friction but that he felt, and understandably, that the brother would "stick by his sister". He said that her brother had helped him out from time to time with transport. It was his view that except for the paternal grandmother, the brother may be an option to assist in the future. That was encouraging.
The father produced an album of photographs (Exhibit “ICL1”) which on the face of them revealed the child having happy times with him. Some of the photographs related to the period prior to their physical separation in November 2002 and otherwise at G. He described his relationship with the child as “beautiful”, as being a “normal one”, but that she would be apprehensive for some 15 minutes at the commencement of contact and then revert to her “normal self”. He explained that when the mother returned to live at the home of the maternal grandmother in November 2002 their relationship "fell off the tracks".
The father repeated that he took Prozac prior to commencing his relationship with the mother but had not been on medication for depression during the relationship. He maintained that he coped with his depression during the relationship, as he currently is, and has never been hospitalised for that illness.
Mr Mort then addressed the father's attention to the Agreement entered into on 14 September 2002. He explained that it was drawn with the assistance of the Monash University Legal Service and asserted that both he and the mother joined in the Agreement to advance the best interests of the child. He described it as "a map for the future". Reference was made to paragraph (E), being “conditions for the responsibility” of the child and in particular that there was to be no change to her legal name and that neither party was to travel outside Melbourne without the consent of the other. He said that as he understood it, the child was now known as SF and (mother’s surname) and at times S (mother’s surname). Her birth certificate is in the name of “[the father’s surname]”.
The father explained to Mr Mort that the mother travelled to Queensland on about 10 September 2003 without his agreement. Her solicitor, Mr Maplestone, wrote to him on 26 August 2003 and in respect of the proposal for travel the father did not agree, expressing certain concerns about the child (see Annexure 15 to the affidavit of the father filed 2 November 2005). He did not receive any make-up contact, and went on to correctly add, nor "the original contact" as agreed between them.
The father complained that from November 2002 until 9 April 2003, being the date he first filed his Form 3 Application in the Federal Magistrates Court, his contact with the child was both irregular and erratic. He was not permitted to spend time with her during, for example, Christmas 2002, an important time in a young child's life. He complained that the mother did not provide him with any details relating to the child and notwithstanding that the mother was working and he was available to care for her, was never offered the opportunity. Given what I have heard from the mother, I accept that evidence.
In his evidence the father made it clear that he withdrew his Applications for Contravention as he and the mother had reached an agreement concerning his time to be spent with the child. He agreed that was a “positive thing”, and that those orders were to proceed on an unsupervised basis. In my view, upon reflection, this was just a contrived step on the mother's part, her focus or target at that time to obtain some evidence against the father of sexual abuse. That is, as painful as it might be, she was disingenuous when consenting to the orders.
The father was referred to pages 39 to 40 of Exhibit “ICL2”, being a relevant part of the Department of Human Services file. He agreed that it was he that made the notification on 24 July 2003 and that the Department's report on the file of what he said was accurate. The following was noted on the file:
“Caller asked writer to be very gentle with the mother, as caller did not want mother to feel degraded in any way.”
The father explained that at the time he did not understand the role of the Department of Human Services and that he was concerned about the mother. He said that he went to their web site, as he was “searching for help” for the family. He was looking for community support. He agreed that, upon reflection, he strongly regretted calling the Department as he did. He said that he realised this could have made the situation worse in relation to his contact with the child. I accept his evidence on that aspect, and that he genuinely regretted his conduct in making the notification. I take into account that he was searching for help, for the family.
Mr Mort referred the father to page 42 of Exhibit “ICL2”, being a telephone call between the mother and the worker on 31 July 2003. Several parts of that file bear reference, including:
“At the moment the father is having three days' overnight access and is wanting to have 50 per cent ...
…she (the mother) said that she does not want to “bag” the father and that he is reasonably stable at the moment. She stated that he has a lot of good character points as he is a very helpful and compassionate person. She said that she trusts him with the baby but wonders whether he always puts her needs first….”
That position changed as it spiralled downwards with the subsequent passing of time.
The father disagreed that he was having overnight contact at the time, and such is the fact. He acknowledged that he sought, as he had always done, a shared fifty-fifty arrangement for the care of the child. That was reflected in the Agreement between the parties of 14 June 2002 and otherwise reflected in the orders she sought in the Form 3 Application filed 9 April 2003. He asserted that it was “common knowledge” with the mother that he sought equal shared time with the child. He agreed it was a positive aspect that the mother at that time said she trusted him with the child. In my view that was then the reality so far as the mother was concerned but, as I said, from then on she spiralled downwards into plain unreasonableness, obsession and a vitriolic view of the father.
History records the fact that on the following day, 1 August 2003, he was denied contact by the mother, which he took as a "payback" for his notification to the Department of Human Services.
When the matter came on for trial before Kay J on 23 May 2005, following a significant and tragic history, and with the assistance of two reports from Ms W on 19 August 2004 and 21 April 2005, consent orders were made, providing for him to have a graduated regime of contact, increasing over time, beginning on a supervised basis and leading eventually to unsupervised contact. The proceedings were otherwise adjourned to a pre‑trial conference in August 2006, over one year thereafter.
History now records that earlier that year, the father filed an Amended Application seeking residence and/or defined contact orders on 23 February 2005. The mother had countered with an Amended Response seeking residence, orders for supervised contact and a change of name. The response was filed on 4 March 2005.
The consent orders of 23 May 2005 did not work, and on 12 October 2005 the father was obliged to file an application seeking resumption of contact. At that point Mr Mort tendered an aide-memoire analysing the consent orders made before Kay J on 23 May 2005, with a comparative analysis of the mother's current proposal (see Exhibit “ICL3”). It is clear that there was a pattern that the proposal put by the mother through Ms Agresta at the commencement of the proceedings before me, and which I have earlier outlined, is very similar to the agreement that was reached between the parties on 23 May 2005. The father said he consented to the orders because he received an assurance from the mother that she would “stick” to them. This she failed, and demonstrably so, to do.
Mr Mort referred the father to the report of Dr R of 1 November 2006 and in particular to page 23, where he offered the following opinion:
“From a psychological standpoint of what is best for [the child] as an individual child it is my opinion that an arrangement that allows [the child] to have significant and meaningful contact with both parents is optimal. The most obvious arrangement is for [the child] to reside with her mother, while having substantial weekend and holiday contact with her father.
Ideally, such an arrangement should be put in place over a couple of months following gradually increasing (and unsupervised time) with [the father]. Mental health treatment for [the child] and the family should occur in conjunction with this.
If [the child’s] parents could come to accept that such an arrangement is in the best interests of [the child]. I do not think [the child] would have difficulty managing such an arrangement.
It appears that efforts have been made to work towards this sort of arrangement before but it has not been possible, in particular because of [the mother’s inability to accept this is in [the child’s] best interests. This has led to an ongoing state of acrimony. Although I can understand why [the mother] may hold some concerns about possible abuse, I think her position of adamant certainty is difficult to understand and not helpful in the current circumstances. The reasons for her absolute position are unclear. There may be benefit, both for the court and as part of treatment, for [the mother’s] position to be explored further psychologically or psychiatrically.
I expect if such an arrangement was in place, [the father] would be able to work within such an arrangement.”
The father said that if the child lived with the mother, he would agree to substantial weekend and holiday contact. As indicated by Dr R, he was both sensitive and amenable to that professional opinion. He, sensibly in my view, said that contact should take place on one day on each alternate weekend between 10 am and 5 pm, plus a period of time midweek after school. He said that he would travel to L School and return the child to the mother on that occasion. It was his view that such daytime contact should continue for a “couple of months”, and then progress to overnight contact for one overnight period, increasing to two nights on Friday and Sunday. However, ultimately he would seek, after a period of some three months, the opportunity to collect the child from school on Friday and return her to school on the following Monday. There would be no difficulties with his work. He has a driver's licence and can borrow a motor vehicle. I thought the proposals by the father in the circumstances were both fair, insightful and unselfish.
The father was then referred to page 24 of Dr R's report dealing with the second option, namely that the child resides with him. He said that he would expect that when seeing the mother the child would "feel the same way" about him "all over again". In those circumstances he suggested that the mother spend time with the child for a “couple of months” on a supervised basis to assess its progress.
When he was asked to assume no order for contact in favour of the mother, the father immediately reacted by saying that was not feasible and indeed, as I can best recall it, said that he would appeal such an order. He made it clear that the mother's contact with the child was essential.
When asked about the mother's positive characteristics, he explained that there were a lot of “good things” about her and her parenting of the child. He applauded the fact that she worked hard and sent the child to an excellent school. He said that the mother cared for her, that she loved the child and wanted the best for her. He said she was a “good mother”, and on reflection a “good partner”. His lack of anger and/or antipathy to her, despite this appalling and tragic history, was obvious.
The father said that he would be unable to pay fees for the L school, as he could not afford them. However, he had made inquiries in the event that he succeeded in his application and would, if the child were to live with him, arrange for her to attend the T Primary School. He had made inquiries of the school and met with the headmaster. He said that placement was available for the child and that he had obtained information in relation to the school. He said it was a “beautiful school”, like a “family school”, and was very clean, quiet and had supportive staff. He explained further that there was a facility for parents to participate in class with the children, which he would very much enjoy.
Following the cross‑examination of Mr Mort, I asked the father about his feelings for the child. He said that when he saw his daughter he felt “relief”, and that he tried "to force myself not to cry". He went on to explain that he remembered her since she was a baby, and that she is now a young girl. He said that the child "corrects my English" and that she takes pictures of him. It is clear to me from his evidence that she enjoys a happy time when in his company. He, with some passion said, "It makes me forget the whole fortnight before."
The father said to me that he has “faith”, and that it was "a precious gift from God that's given me [the child]". He explained that he has no family, and he has feelings of “pure love” and “pure care” for his daughter. He explained that he wanted to see her grow up as a normal child, adding "with love from both parents". I thought his evidence was entirely genuine, profound and passionate. His love for the child ought be given far more credit by the mother than she has in the past.
The father explained his financial situation to Mr Mort in that he received $900 per fortnight from his employer and $300 per fortnight by way of social security benefits, which differs from what I have earlier said by $100 which accounts for the rent allowance. He pays rent of $975 per calendar month, and after payment of utilities and the like he has little left over. He said that he gambles on an irregular basis. He has no addiction to gambling, explaining that he has "moved past that". He went on to say, "I have hope now, I did not have before", about seeing the child. He explained that he was building his life so that he could spend time with her. He was happy that he had a job, and that he felt wanted, which made him “feel good”. He said, "Life is brighter”.
The father was an impressive witness.
The Mother
In reviewing the evidence to the time of adjustment, I have regard to the trial affidavits of the mother filed 4 November 2006 and 12 April 2006 together with her oral evidence before me. The advantage I had as the trial Judge was of inestimable advantage observing her demeanour both in the body of the court and in the witness box, including the tone of her voice in responding to the direct and well researched questions put by Ms Dellidis. With her failure to listen carefully and then respond to the questions, the mother was given to over-talking, evasiveness and a persistent inability to focus on the issues put to her. She would seek to argue her case, at times in a carping and disputatious manner, wrangling with Ms Dellidis, leading to imbroglio.
On a number of occasions I was obliged to censure the mother, but in the result at times to no avail, as she stubbornly sought to emphasise (a verb which I carefully use) her own point. She was at times rather disrespectful and would mutter commentary to herself which was quite audible to me. She was directorial and, frankly, exhausting. All of this went far and beyond courtroom nervousness and feelings of unfamiliarity, but demonstrative of a general overbearing and mulish personality.
When I add together these observations with her then intractable view that the father had sexually abused his daughter when aged about four years, it is little wonder to me that she is in reality a parent who could not individually promote the value and worth of the father to her daughter. She is a strong-willed individual who doubtless had impressed upon the child her entrenched position, and in my view, would be unbridled in that presentation.
There was much about her evidence which buttressed my assessment that she was unreliable, particularly in situations where valid issues were inconsistent with her own view. It seems to me that she was quite open in saying that which best suited her situation, indeed her cause, irregardless of whether it was accurate or not. She moulded evidence to best suit her case. Overall I feel a marked reluctance to accept her evidence on central issues unless corroborated by independent third party witnesses or documents.
The cross‑examination by Ms Dellidis was complex in that it traversed many different factual episodes generated through documents, reports and affidavits before me, and it will serve no good purpose to record this in detail. I was left with the clear impression that her evidence on central issues failed to withstand the test of scrutiny.
The progress of cross‑examination in the second day was, without putting too fine a gloss on it, quite dramatic, in that the further the evidence proceeded, the clearer became my view that the issue of sexual abuse was not made out, nor there being an unacceptable risk to the child of abuse. The mother's evidence at times was most concerning, as it became plain that she had embarked upon a course, then unshakeable in her belief, that the father had sexually abused his daughter. The evidence revealed that between late August 2003 and December 2003 she was unforgiving and utterly resolute in the pursuit of her mission.
It was after the luncheon break that the proceedings were stood down again to discuss resolution, and Minutes of Consent Orders were provided to me on 12 February 2007. In order to fully understand the events leading up to the resolution, I propose to survey the cross‑examination of the mother by Ms Dellidis. Should the matter ever return to court for whatever reason, my successor in title would thus have a detailed analysis of the evidence and better able to understand the adjustment.
After some preamble, Ms Dellidis referred the mother's attention to the fact that she spoke to a worker from the Department of Human Services on 31 January 2003 (Exhibit “ICL2” at page 42). The mother said that she was "extraordinarily surprised" at the call from the Department of Human Services and that she did her best to explain her side of the story. She acknowledged that she told the worker she “trusted” the father with the child. However, on 1 August 2003, shortly after the interview with the worker from the Department, the mother refused to make the child available for contact. The reason for that is pitifully obvious. She acknowledged that she issued an Intervention Order Summons, which appears to have been filed on 15 August 2003 and came on for hearing on 22 August 2003.
She was referred to Annexure “EL3” to the father's affidavit filed 18 April 2006, conceding that during the course of her evidence under oath before that tribunal she made allegations that she was the recipient of harassing and disruptive telephone calls. She conceded that she admitted the frequency “was not great”, and significantly in my view admitted that she made a further allegation under oath that she suspected the father had molested the child. On 24 August 2003 the mother refused to make the child available for contact purposes (see the father's Contravention Application filed 2 October 2003).
On 26 August 2003 her solicitor, Mr Maplestone, wrote to the father, advising that the mother proposed to travel to Queensland. The mother agreed that the contents put forward in that letter were upon her instructions. See Exhibit “F1”. The father refused permission which was, given the circumstances then prevailing, not an unreasonable position to take. The mother conceded that on 3 and 5 September 2003 the father had contact with the child, but that contact did not take place on 7 and 10 September 2003. It was on 3 September 2003 that the first alleged disclosure was made by the child. It appears that the disclosure was made in the morning and that the father, notwithstanding, had contact in the afternoon. That in my view was an important fact to be taken into account when considering this alleged disclosure.
Ms Dellidis directed the mother's attention to Exhibit “ICL2” (page 7 of the Department of Human Services' files), recording that on 10 September 2003 notification was received by them in relation to concerns that the child "was being sexually abused" by her father. It is there stated that concerns were raised that the child disclosed to her mother that "daddy had touched her somewhere" and "he has done it twice", stating that it was on her "pussy cat". Thus it was that the mother took one week in order to make the notification to the Department of Human Services and then travelled to Queensland on a holiday. That too is an important factor for consideration.
The mother's evidence at first was to suggest that the disclosure did not occur in the morning, but after cross‑examination, was demonstrated to be in error and accepted that it did allegedly take place at that time as the father collected the child from child care on the Wednesday.
The mother was then referred to Exhibit “ICL2” (at page 35) dealing with the General Case Note dated 22 September 2003, timed at 6 pm. The mother said she gave an account to the Department of Human Services of what the child had told her, and her concerns about the father and parenting risks. The mother acknowledged there was no disclosure made by the child on 22 September 2003, rationalising this on the basis that the child "had no idea what they were asking her" at the interview. She explained that the child did not understand "what they were on about" as she was too young. The mother was already exhibiting an attitude of non‑acceptance of independent investigation, relying upon her own fixated ideation.
The mother was referred to the fact that the child made disclosures about “Uncle [D]”, (page 36 Exhibit “ICL2”) and explained that she did "not feel it was necessary to investigate that". When asked why, she said that she observed interaction between them which was of a playful nature. That too was a significant indicator of her uni-directional belief as to responsibility on the part of the father. I was somewhat concerned by that allegation and her resultant attitude. There was otherwise evidence that the father had an interaction with his daughter of a “playful” nature.
In relation to her time in Queensland, the mother acknowledged that she did not tell the father that she had spoken to the Department. She acknowledged that she sent a postcard (Annexure “EL2” to the affidavit of father filed 2 October 2003) with no intimation of her course of action. When asked why, the mother said, "Of course not" explaining that, "Why would I notify the father before any investigation began?" and also asserted, "Wouldn't that be warning him?". She claimed that, so far as she was concerned, the father was under scrutiny and if he was warned of what she had done that the father would "commence preparations against that". I found that to be significant as to attitude, as I did the terms of the postcard which was as follows:
“Dear [husband],
We are having a fabulous time! [The child] is loving the beach and climate very much not at all humid this time of the year. We went to the beach and then to Seaworld on a cloud day she loved the dolphin show! Sea lion show and SOS 4D interactive. We ate also delicious seafood dinners and those nights. See you soon. Lots of Love.
[Mother] and [child].”
[The card is accompanied with six crosses and six capital zeros, indicating kisses and hugs.]
In relation to the meeting with the Department on 22 September 2003 and the fact that the child had made no disclosures, the mother said that she did not feel relieved that the child made no disclosures and that her emotions were, "Let's see what happens from here”. Her desire to unearth evidence, regardless of independent investigation, was dominant.
On 23 September 2003 the father sent an email to the mother at 4.45 pm, in which he said:
“I've not seen my daughter for a long time and I've not been able to reach you on either of your phones - home or mobile. I am going to proceed with Recovery Order, that means the Federal Police will bring [the child] from anywhere.”
The mother acknowledged that on the following day she responded with an email asserting, “We have just returned. We went to a conference in Brisbane. I will contact you on Friday re discuss access arrangements”. The plain fact of the matter is that they had returned five days earlier and the mother had seen the Department of Human Services on 22 September 2003. In my view her response was plainly misleading, but consistent with what I regard as a disingenuous attitude.
The mother was then referred to Exhibit “ICL2” (page 17) and the entry:
“On 26 September 2003, mother, […] stated that [the child] disclosed to her whilst having a bath. [The mother] stated that [the child] did not want to be picked up from day care by her dad […]. When [the mother] asked why, [the child] allegedly stated, ‘Because he puts his finger somewhere’. [The mother] stated that she asked, where and allegedly [the child] pointed to her bottom.”
In her evidence the mother said that she did not advise the Department that the child had made a disclosure whilst having a bath, nor that she did not want to be picked up from day care. She said that the child told her that her father put his fingers in her bottom, and that she pointed to the "separation of her bottom". She conceded that no contact took place on both 24 and 26 September 2003, acknowledging there had been no contact that time for a couple of weeks.
Ms Dellidis then referred the mother to paragraph 19 of her affidavit filed 4 November 2004 and her deposition that, "When we returned, the applicant was due to have [the child] on 24 September 2003, although he did not contact me”. It was put to the mother that her oath was a false one, given that the father had sent an email on 24 September 2003. At that point of time the mother, I observed, erupted into a somewhat angry disposition, asserting in relation to the father's reference to a Recovery Order, "What sort of nonsense is that?" It appeared to me that the mother's attitude to an individual's right to due process of the law in the pursuit of legal rights was risible. When I sought clarification and asked what she meant by her comment, she said that, he should have “acted rationally'” and “called me”. She asserted that the father's attitude to the situation, namely his reference to a Recovery Order, “was a little bit unrealistic”. This was typical of her evidence, where she sought to justify her own actions at inappropriate times, made assertions that best suited her course and at times, when I reflect upon the whole of her evidence, made things up as she went along.
The mother agreed that she made a complaint to the police that the father should be charged. That too is significant, albeit that it comes as no surprise. She agreed that when making a complaint there was a requirement to be accurate. At that point, in seeking clarification from her, I asked that if I found sexual abuse had not occurred, what would be her reaction to that. She said, "As I cannot prove it happened, you could not definitely prove it had not”. The mother went on to say that she “carried no doubts” that she believed that what the child had said was correct. She said that the child suffered anxiety that was directly related to sexual abuse, and claimed that “her traumatic behaviour” was part of that, emphasising, "and nothing else".
Ms Dellidis directed the mother's attention to her police statement made 24 December 2003, following the alleged disclosure made by the child that month and about which I will have more to say later in this judgment. The mother emphasised that following that disclosure, "I all the more believed what I suspected was true”.
Dealing with the mother's concession that any statement made to the police must necessarily be accurate, she was referred to her own statement of 24 December 2003 which was made at 5.54 pm, in which, acknowledging the statement was “true and correct and made in the belief that a person making a false statement was liable to penalties of perjury”, she said that on 26 September 2003 she picked the child up from her father's house in E.
It was put to her that no contact took place that day. With this she ultimately agreed. When asked why she had made a serious assertion in a circumstance that was plainly wrong, she retorted, "The government departments don't record things accurately”. There seemed to me to be a common theme emerging from her evidence in relation to recorded events in the Department of Human Services files that any record of what she had said and with which she disagreed for the purposes of the hearing before me, she forcefully disputed. For example, in relation to that mistake, which I regard as quite a serious matter, she said it was "only arbitrarily wrong".
The mother agreed that as a result of her complaint on 26 September 2003 the child was interviewed at the Police Station by the Department of Human Services and SOCAU on 8 October 2003. It was accepted that there was also an interview of the child by them on 22 September 2003 at the mother’s home. Further, on 24 December 2003, the child was again interviewed by SOCAU at the O police station.
Dr R recorded details of the assessment interviews carried out with the child on two occasions, and with the parties. He found that there were no overt signs or evidence suggestive of psychiatric or psychological disturbance on the part of the father, who showed a capacity to empathise and understand the position of his daughter.
He reported that the mother made it clear to him that the child should not have contact with her father alone as he was "a danger" to the child. The mother maintained that any decision on the issue should be made to "protect" the child from her father and that any solution, in her view, required limiting contact or ceasing it all together. He reported that she maintained a position “erected on certainty” that the father had sexually abused his daughter.
Dr R also made thoughtful and supportive commentary upon the reports of Ms W, which sat seamlessly with his own. He observed that the child’s comment about possible child abuse to Ms W appeared limited in the level of description and lack of congruence (which I assume to mean compatibility) with the child’s emotional response. He commented upon Ms W's report that the mother openly stated she would not comply with court orders that obliged her to allow unsupervised contact. It was evident to Dr R that Ms W became increasingly of the opinion that the mother's intransigence to the possibility of unsupervised contact presented "a major obstacle" to an appropriate parenting regime.
Dr R also noted the report of Ms E, being 29 supervised contact visits, and he said:
“The reports describe consistent positive and enjoyable interaction between [the child] and her father during the contact visits. Much enjoyable playful behaviour and interaction was described, nurturing interaction following [the child] suffering a minor injury on a swing in which [the father] was able to sooth and settle [the child].”
Dr R addressed his conclusions and recommendations in a very thorough manner. In summary he said "[The child] used powerful mechanics of avoidance" to manage her "high levels of anxiety" which suggested she used fantasy extensively to escape her anxiety. This was necessary for her to function.
He was of the opinion that the child showed a "high level of compliance and psychological accommodation" to her family's situation by "disconnecting or denying" her feelings, which would be detrimental to her long term psychological development. At the same time, he said the child exhibited considerable “positive capabilities and psychological resources” for a six‑year‑old girl. Her verbal communication was good. She is intelligent and showed good symbolic functioning.
Dr R said that the pattern of behavioural and psychological disturbance described by the mother was of a high level of symptoms in the child in the days following contact with her father. This pattern of symptoms could, he said, be understood as "attachment-related behaviours", and was an understandable psychological and attachment response in young children.
Dr R was of the view that the child was clearly very aware of the parental conflict and clearly “feared losing” her mother if she was to live with her father. Significantly, on the issue of sexual abuse he had this to say (page 20):
“[The child’s] discussion of alleged sexual abuse by [the father] on this assessment is limited in its extent, often without congruent emotion, and has the quality of an often repeated verbal statement the origins of which are no longer available to [the child]. [The child] introduces many of her statements about abuse as being her mother's concerns. My view is that [the child’s] statements do not provide strong or good evidence of past sexual abuse by [the father].”
In summary, Dr R reported that the father indicated "good and positive interactions". The relationship appeared "secure and meaningful". He said that the child showed a capacity to be "emotionally open and interact freely" with her father, and that reunions and separations from him were managed well.
He emphasised the mother's position that she believed the father sexually abused the child and would do so again, given the opportunity. The strength of her conviction he said was "powerful and unwavering". It was his opinion that while it may be understandable that the mother had some ongoing concerns about the possibility of sexual abuse, her adamant view of certainty and essentially uncompromising stance was much harder to understand. To him it raised the possibility of “underlying psychological disturbance or psychiatric disorder on the part of the mother”.
In relation to the child’s psychiatric state, Dr R was of the opinion that her level of anxiety and distress was beyond her capacity to manage. She was “unable to cope” with the level of adversity in her family situation. He said there were signs of early distortion of psychological and personality functioning, excessive use of denial and avoidance towards her emotions and internal psychological world.
Dr R was of the view that the child “overused fantasy to escape or avoid distress”, which would have longer-term detrimental consequences on her psychological and personality organisation. It was his opinion that, psychiatrically, the child could be diagnosed as suffering “an anxiety disorder” as a reaction to her family situation, rather than an intrinsic disorder. He was of the opinion that the child’s anxiety was “consequent to parental conflict”, which was current and ongoing. He said that his assessment “did not point to past childhood sexual abuse or a problematic relationship with the father” as the cause of the child’s symptoms and disturbance.
Dr R was of the opinion that the absence of positive psychological signs of sexual abuse on assessment, and the observed and well documented good relationship between the father and the child, made the possibility of "past childhood sexual abuse far less likely". He did not think the issue of potential sexual abuse by the father should be a "major factor in determining the outcome of a regime for residency and contact", but rather that a psychological shift was especially required with the mother.
Dr R then recorded his opinion about Family Court orders and intervention, which I have earlier incorporated into this judgment. As he considered such an arrangement may not be possible, he set out the two possible courses of action. One was that the child remains residing with the mother and either had no contact or minimal supervised contact with the father. The second option was to have the child reside with her father.
It was his opinion that psychotherapeutic treatment was likely to be helpful for the child in her current situation and would provide considerable support and a psychological space "to reflect on her experience of family" with a professional outside her conflicted family.
Conclusion
I have taken the opportunity in this judgment to record the evidence of the principal protagonists and that of the experts. Too many times have the parties gathered at the portals of the court, agreed upon orders to be made by consent which have, in the result, been honoured in the breach. The parties entered into an agreement on 14 June 2002. It failed. They agreed upon orders made in the Federal Magistrates Court on 26 May 2003. They, too, failed.
The father filed two Contravention Applications on 16 February 2003 and 20 November 2003, alleging overall 26 breaches of the court orders by the mother. Acting upon representations made by her and upon which he acted, in my view with consummate good faith, he withdrew them. Consent orders were then made on 12 December 2003. They failed. The proceedings were transferred to the Family Court of Australia, from the Federal Magistrates Court, and again consent orders were made on 23 May 2005. They failed.
In the meantime, the mother had entertained summonses for an Intervention Order in what I regard as dubious circumstances, and could perhaps be more harshly described as an abuse of process. Prior to the consent orders of 23 May 2005 the parties had the advantage of two insightful and clear reports by Ms W. The mother failed to heed what the Family Consultant, an expert witness, had to say. She chose to regard her as biased.
Epicentral to this profoundly tragic history centred around the child was the mother's unwavering pursuit of her obsessional belief that the father had sexually abused his daughter. She failed to heed reason or commonsense, but fed, I suspect upon those malleable and ductile views of persons sympathetic to her ear. I have no doubt that her own mother, the maternal grandmother, was such a voice of unreasonableness. Her other instrument appears to have been Mr F, albeit that I did not have the opportunity to hear from him. I make that observation upon what the mother had to say and his five reports, all undertaken without the benefit of having heard from the father.
Mr F referred to the "unquestioned" and "good intentions" of the mother, and in one report provided a dissertation on the United Nations Convention on the Rights of the Child. The circumstances of the late night telephone call and alleged disclosure, I use that noun in parenthesis, by the child to Mr F, as described by the mother and referred to in the report, I regard as highly questionable. There was never a proper and professional independent inquiry made by him of that event. His commentary upon the circumstances of the disclosure made by the child to the police on 24 December 2003 is helpfully obvious, but naive.
Throughout the latter part of 2005 and through 2006 the father, exercising considerable personal discipline and emotional strength, saw the child on a supervised basis under high scrutiny. The reports of Ms E are clear and unchallenged by the mother, save to observe qualifications expressed by her to suit her then intractable view. There followed three further reports by Ms W which were, it is plain to me, fundamentally ignored by the mother and challenged under the rubrical heading of “bias”.
So too the report of Dr R dated 1 November 2006, the terms of which were swept aside by the mother as she prepared to challenge the father's application to see his daughter. I have little doubt at all that the mother's blinkered pursuit to satisfy her fixated preoccupation that the father had sexually abused the child left the child vulnerable to awareness of this fact. I do not accept that the mother shielded the child from her consuming passion.
An example of this may be seen from the fact that she even brought the child into the arena of litigation, an event I well remember. It was described in the transcript of 8 December 2006, and which I record as follows:
HIS HONOUR: Who are these people? Is that the child in question? She brings the child to court.
MR MAPLESTONE: You’ll have to wait outside just for a moment.
HIS HONOUR: Why is the child in court?
MR MAPLESTONE: The child’s not allowed in court.
HIS HONOUR: Madam, please, Why is the child in court ?
[THE MOTHER]: Because my mother wasn’t feeling well when I arrived home from work and I had no-one else to take her.
HIS HONOUR: I’m not asking you. I’m addressing your counsel. Madam, would you leave the court with the child.
[THE MOTHER]: It was an emergency situation, your Honour.
HIS HONOUR: I would have thought there would be other ways to handle the emergencies.
[THE MOTHER]: Things happen, emergencies happen.
HIS HONOUR: Please leave the court.
MR MAPLESTONE: You saw my body movement.
HIS HONOUR: It should be recorded in the transcript that on leaving the court, the mother slammed the door to the extent that the eastern wall shuddered.
MR MAPLESTONE: Your Honour, I’m sure that you understand that I’m as embarrassed as---
HIS HONOUR: Mr Maplestone, I know you far too well.
MR MAPLESTONE: Thank you, your Honour.
HIS HONOUR: Of course you’re not – it’s nowhere near within your doing, and it’s just as much an embarrassment to you as it is to everybody else in this court.
I do not accept the mother's explanation. That act was, in my view, utterly unnecessary and doubtlessly painful for the child. It demonstrated a heightened lack of insight on her part, let alone a breach of parental responsibility.
With that said, the competing applications came before me with the mother plainly asserting that the father have no contact with his daughter. That is, put simply, he was not to even be in her presence. The objects and principles of the Family Law Act set out in s 60B of the Act were consigned as meaningless.
I have earlier described the progress of the mother’s variations by way of settlement proposals, which ultimately on day 4 changed, and consent orders signed by her on day 5, accompanied by a notation concerning the issue of sexual abuse. The litigation pathway that commenced in about mid-2003 has nearly, four years later, hopefully come to an end. Only the future will reveal whether or not the mother can understand that her intractable views on this principal issue were erected merely upon thistledown pillars of hope.
A strong preliminary view of the Independent Children's Lawyer was provided by Mr Mort upon the commencement of the trial, a view which sat satisfactorily on the known evidence to be relied upon, including the affidavits of the parties. The presage of that view unfolded with clarity and with the progress of the evidence, so that it became painfully obvious that the mother's approach to the father's application was without foundation.
I am satisfied to the requisite standard of persuasion that the issue of sexual abuse, even at the stage that the proceedings were resolved, was not made out, nor is there an unacceptable risk to the welfare of the child maintaining her contact with her father. I need go no further than the review of the evidence I have recorded in this judgment. I have no doubt that, for whatever reason the mother wrongly bound herself on this issue, she failed to properly, independently and logically rationalise the whole of the evidence and in so doing maintained a blinkered myopic view to reality. Her pursuit of this issue should now end, the orders to be made, obeyed, and that she faithfully endorse the father to his daughter in positive persuasive and genuine terms.
As I said in L & B [2005] FamCA 242:
“413.There is an obligation on the part of each parent to foster the image of an absent parent. That within itself requires discipline, together with an ability to sublimate one's own feelings of pain, hurt or anger, to benefit the best interests of their child. I am not looking to the actions of the perfect parent in the utopian world, but of one who recognises the importance of such qualities and strives to achieve that desired end.
414.That may mean for example an aggrieved parent seeking greater understanding by recourse to professional assistance. To wallow in the mire of disillusionment, anger and bitterness can only, certainly by example alone, influence the child in a variety of negative ways against the absent parent. The effect is dramatically compounded by the spoken word of negativity, passive alienation and subversive manipulation.”
For the benefit of the parties I propose to explain the legal basis that guides the court in cases such as this, dealing with the issue of alleged sexual abuse. I had occasion recently, in A & A [2006] FamCA 1056, to undertake this exercise, and I draw from that judgment the following analysis. Cases involving allegations of sexual abuse were considered authoritatively by the High Court of Australia in M v M (1988) 166 CLR 69. There Mason CJ and Brennan, Dawson, Toohey and Gaudron JJ made it clear that:
“The fact that the proceedings involve an allegation that the child has been sexually abused by a parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's finding on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue later. Viewed in this setting, the resolution of the 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.”
Their Honours then went on to consider the approach that a trial judge should take when reviewing such an allegation and said:
“In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless a court is so satisfied, according to the civil standard of proof with regard to the fact as mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. There Dixon J said, "The seriousness of an allegation made, the inherent unlikelihood 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 questions whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, reasonable satisfaction should not be produced should not be produced by inexact proofs, indefinite testimony or indirect references."
Accordingly, a finding at trial that abuse has occurred can only be reached by application of the onus of proof set out in Briginshaw's case. That test has been codified in s 140 of the Evidence Act 1995 (Cth).
In Re W, Sex Abuse: Standard Of Proof (2004) FLC 93‑192, the Full Court had this to say
“47.In children's matter under Part VII of the Family Law Act where the issue is a child's contact or residence with a significant person in his or her life, the grave consequences of finding of sexual abuse cannot be overstated. Accordingly, before trial judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw, and section 140 of the Evidence Act 1994 (Commonwealth). Inexact proofs, indefinite testimony or indirect inferences are sufficient to ground a finding of abuse.
48.This is a matter which must be specifically borne in mind by a court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this part, the court's paramount consideration must be the best interests of the child in accordance with section 65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Further more when deciding what orders are in the best interests of the child, a trial judge may often be confronted with the multiplicity of issues and facts. In these circumstances, evidence which for example is relevant and probative in relation to the question of an unacceptable risk of abuse occurring may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred.”
In M v M (supra), their Honours having observed that such an allegation is often easy to make but difficult to refute, went on to say that there would be a number of cases where it is not possible to make a positive finding that sexual abuse had actually taken place. Notwithstanding this, however, it is clear from the above passages that by no means ends the judicial assessment of the issue. Their Honours continued:
“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 is granted, and assessing the magnitude of that risk. The existence of the 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.”
The court went on to examine efforts to define with greater precision the "magnitude of the risk" which would justify a finding denying a parent residence or contact to a child. Their Honours concluded that the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to “an unacceptable risk” of sexual abuse.
In B v B (1993) FLC 92-357 the Full Court of the Family Court referred to this test and went on to say:
“The unacceptable risk test is therefore the standard use by the Family Court to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. In other words, where the court makes a finding of unacceptable risk, it is a finding that the risk of harm to the child in having access with a parent outweighs the possible benefits to them from that access.”
The difficulties associated with determining an unacceptable risk were considered, for example by the Full Court in N v S and Separate Representative (1996) FLC 92-655. In the course of his dissenting judgment, Fogarty J analysed the meaning and application of the term "unacceptable risk". His Honour also considered a number of cases in which efforts have been made to define the term with greater precision and concluded that:
“There is a limit beyond which it can be of no use to endeavour to devise a precise expression to encapsulate a judgment which will ultimately depend on a great many factors. However, what can be asserted with confidence is that the welfare of the child requires that the term be carefully construed.”
Later at page 82-714 Fogarty J set out a number of appropriate questions, but not suggestive as an exhaustive catalogue, for consideration as follows
“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 offence 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 affects of the child?”
The catalogue of questions posed by Fogarty J, are most helpful and it takes little effort to mould the evidence detailed before me and otherwise relied upon by the parties to arrive at the clear answer that was strongly urged upon me by the Independent Children's Lawyer at the commencement of the trial. It concerns me that the mother, with all the information she had at her disposal, proceeded as she did. She was mistress of her own fate.
However, it may well be that with her having heard the evidence of the father under oath, given her evidence in court and tested by Ms Dellidis and having had the benefit of professional independent advice from Ms Agresta and her experienced solicitor Mr Maplestone, that she now realises and genuinely accepts the findings I have made. In making those findings I am of course fortified by her agreed notation to the orders.
There are some further matters I propose to add. By reason of the Family Law Amendment (Shared Parental Responsibility) Act 2006, this court has moved forward to recognise the value children gain by maximising the time they spend with each of their parents. What remains common ground, however, is that the principles underlying the objects of Part 7 of the Act remain the same.
What the mother now recognises by the terms of these orders is that the child has a right to know and be cared for by both herself and the father, a right to spend time on a regular basis with both of them, and that each of the mother and father share duties and responsibilities concerning her care, welfare and development. Their duty towards the child is a joint one.
Now that the proceedings have adjusted, it is important the mother moves forward without rancour or ill feeling towards the father. It is essential she recognises, in an unfeigned way the goodwill and trust reposed in her by this resolution, and consign the past to where it belongs. The future is the direction now to be travelled for the benefit of the child under the guidance of both of her parents.
In my view the father has been very patient indeed and has never wavered in his journey to ensure that the child has the benefit of two parents, despite the serious allegations made against him. I am sure that, notwithstanding, he bears no ill will against the mother, in circumstances whereby it would not have been an unnatural expectation on his part. With both parents sharing in the child’s life, she has a ready opportunity to be happy and become a productive member of the community.
I certify that the preceding two hundred and ninety one (291) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.
Associate:
Date: 26 April 2007.
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as LICHA & WUNSCHER
- AGLC
- Licha and Wunscher [2007] FamCA 357
- Case
- [2007] FamCA 357
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the child, specifically whether the allegations of sexual abuse were substantiated to the civil standard of proof, and if not, whether there was an unacceptable risk of such abuse occurring if the father had contact with the child. The court also had to consider the benefit to the child of a meaningful relationship with both parents and the need to protect her from harm.
Guest J found that the allegations of sexual abuse were not made out to the requisite standard of proof and that there was no unacceptable risk to the child in maintaining contact with her father. The court's reasoning was heavily influenced by the evidence presented, including the testimony of the parties, the reports of various professionals (Family Consultant Ms W, psychologist Mr F, psychiatrist Dr K, and Dr R), and the Independent Children's Lawyer's assessment. The court noted the mother's persistent and, in its view, unfounded belief in the allegations, her lack of insight, and her failure to promote the child's relationship with the father. Conversely, the father was found to be a credible, honest, and reliable witness who genuinely desired a relationship with his daughter and demonstrated an understanding of his parental responsibilities. The court applied the principles of the *Family Law Act 1975* (Cth), particularly concerning the paramountcy of the child's best interests and the "unacceptable risk" test in cases of alleged abuse.
The court ordered the discharge of all previous parenting orders and established new arrangements. These included equal shared parental responsibility, the child living with the mother, and a detailed schedule for the father to spend time with the child, gradually increasing over time. The orders also included provisions for the child's name, school matters, communication between parents, and specific therapeutic interventions for both the child and the mother. The court also made orders restraining the mother from certain behaviours towards the child concerning the allegations and from denigrating the father.
Orders
Orders of the court
1.
That all previous parenting orders be discharged.
2.
That the parties have equal shared parental responsibility for decisions regarding the long term care, welfare and development of the child, a daughter, born in August 1999.
3.
That the child live with the Mother.
4.
That the Father spend time with the child as follows:
(a) On Friday 16 February and Friday 2 March 2007 at G at times to be advised by G;
(b) Thereafter for a period of 6 months as follows:
(i) each alternate Friday from 4pm to 7pm commencing 9 March 2007 with the Father to collect the child from S, T, at the commencement and return the child to the Mother's residence at the conclusion of his time;
(ii) Each alternate Sunday from 10am to 6pm commencing 18 March 2007 for a period of 3 months;
(c) Thereafter for a period of 3 months from 10am on Saturday until 6pm on Sunday each alternate weekend commencing 16 June 2007;
(d) Thereafter from 4pm Friday until 6pm Sunday on each alternate weekend during school terms commencing 14 September 2007;
(e) For one week during each of the three mid year school term holidays commencing in the September 2007 school holidays at times to be agreed and failing agreement:
(i) for the first week during 2007 and each alternate year thereafter; and
(ii) for the second week during 2008 and each alternate year thereafter.
(f) For half of the long school term holidays at times to be agreed and failing agreement:
(i) for the first half of the 2007/2008 long school term holidays and each alternate year thereafter; and
(ii) for the second half of the 2008/2009 long school term holidays and each alternate year thereafter.
(g) On Christmas Day:
(i) from 3pm Christmas Day to 3pm Boxing Day 2007 and each alternate year thereafter; and
(ii) from 3pm Christmas Eve to 3pm Christmas Day 2008 and each alternate year thereafter.
(h) On the child's birthday:
(i) from 3pm to 7pm if the birthday falls on a non school day; and
(ii) from 5pm to 7pm if the birthday falls on a school day.
(i) On the Father's birthday:
(i) from 3pm to 7pm if the birthday falls on a non school day; and
(ii) from 5pm to 7pm if it falls on a school day.
(j) On Father's Day from 10am until 6pm;
(k) At other times as may be agreed between the parties.
5.
The Father's time with the child pursuant to paragraph 4 be suspended:
(a) On Mother's Day from 10am;
(b) On the Mother's birthday:
(i) From 3pm to 7pm if her birthday falls on a non-school day;
(ii) From 5pm to 7pm if her birthday falls on a school day.
(c) On Christmas Day:
(i) From 3pm Christmas Eve to 3pm Christmas Day 2007 and each alternate year thereafter; and
(ii) From 3pm Christmas Day to 3pm Boxing Day 2008 and each alternate year thereafter;
6.
That save where otherwise provided for, changeover for periods of time spent by the Father pursuant to these Orders shall take place at the Father's residence at the commencement of each period and at the Mother's home at the conclusion of each period.
7.
That each of the Mother and Father do all things necessary to cause the child's name to be registered as "[the surnames of both parents]".
8.
That each of the Mother and Father be and are hereby restrained from causing or permitting the child to be referred to, known as or enrolled at school as anything other than [the surnames of both parents].
9.
That the Father be authorised to request from the Principal of any school attended by the child that the school forward to the Father, at his expense, copies of all school notices, newsletters, reports and applications for photographs.
10.
That the Father be permitted to attend school events to which parents are normally invited including but not limited to parent-teacher interviews, concerts, fetes and sports days.
11.
That each party provide the other with no less than 14 days prior written notice and particulars of any change of address and/or telephone number.
12.
That each party notify the other in the event of any serious illness or injury affecting the child whilst she is in their respective care.
13.
That the Father shall ensure the child attends her dance lessons, should such lessons coincide with his time with the child in accordance with these Orders.
14.
That the Father shall purchase an asthma pump for the child to be used as necessary.
15.
That save as provided for in these Orders, the Mother be restrained from subjecting the child to any medical, psychological or other examinations save for an emergency medical examination or treatment (and upon immediate notice to the Father of any such medical attendance).
16.
That the Mother be restrained as follows:
(a) From referring to, discussing, questioning, or commenting to or in the presence or hearing of the child in relation to issues of sexual abuse;
(b) Save for the therapeutic purposes, from knowingly causing permitting or allowing a third party to conduct himself or herself in accordance with subparagraph 16(a) hereof.
17.
That the Mother be restrained from denigrating, insulting or rebuking the Father to the child or in her presence or hearing or from knowingly causing, permitting or allowing another person to do so.
18.
That the Independent Children's Lawyer forthwith arrange for the child to attend upon Dr R or such other professional as may be nominated by the Independent Children's Lawyer for therapeutic and reportable purposes.
19.
That the child's parents shall abide by the directions of Dr R (or his nominee) and fully co-operate with any treatment plan AND FURTHER that the Mother be solely responsible for the payment of any professional fees relating to her and/or the child's attendance(s) save that the Father be responsible for the payment of his attendance(s).
20.
That the Mother forthwith attend upon Mr P for therapeutic and reportable purposes in order to address the Mother's parenting and her allegations of sexual abuse AND FURTHER to attend as directed on a reasonable basis and be responsible for payment of any fees.
21.
That pursuant to paragraphs 19 and 20 Dr R and Mr P be at liberty to liaise with each other and the school counsellor in relation to the child's and the mother's progress and therapeutic counselling.
22.
That the mother be at liberty to continue to utilise counselling services for the child at the child’s school, and such counsellor be at liberty to liaise with Dr R.
23.
That the Independent Children’s Lawyer provide forthwith a copy of these Orders and Ex Tempore Judgment delivered 14 February 2007 and Dr R's report and Ms W’s reports to Mr P.
24.
That the Independent Children’s Lawyer forward to the child's school a true sealed copy of these Orders and the report of Dr R filed in these proceedings as soon as practicable.
25.
That the Independent Children’s Lawyer forward to Dr R a true sealed copy of these Orders, the Ex Tempore Judgment delivered 14 February 2007 as soon as practicable.
26.
That the Independent Children’s Lawyer forward to the Manager of G a true sealed copy of these Orders as soon as practicable.
27.
That the appointment of the Independent Children’s Lawyer expire six months from the date of these Orders.
28.
That all extant applications be dismissed and removed from the list of cases awaiting final hearing.
29.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS CERTIFIED
30.
That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.
IT IS DIRECTED
31.
That the subpoenaed documents be returned to the persons or entities received therefrom.
AND IT IS NOTED THAT:
A The parties intend for the child to have her first appointment with Dr R at 2 pm or 27 February 2007 and thereafter for the Father to attend on Dr R on 1 March 2007 at 1.30 pm and the Mother on 6 March 2007 at 2 pm.
B Mr P is available to attend upon the mother by appointment commencing this week.
C These Orders have been agreed to by all parties on the basis that it is acknowledged that this Court has made no finding of sexual abuse in relation to the child upon application of the requisite standard of proof AND FURTHER that there is no unacceptable risk to the child in relation to any time spent with the Father.
FAMILY COURT OF AUSTRALIA AT MELBOURNE
FILE NUMBER: MLF 6928 of 2003
Mr Licha
Applicant
And
Ms Wunscher
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
1.
These proceedings concern child welfare arrangements for the daughter who was born in August 1999. By her Amended Form 1A Response filed 28 March 2006, the mother sought an order that she have sole responsibility for the child’s long‑term care and day‑to‑day welfare and development, that the child live with her and that the father have no contact with his daughter. Central to the mother's case was her allegation that the father had sexually abused the child.
2.
For his part, the father has at all times vehemently denied that he had done so, and by his Amended Form 1 Application filed 24 May 2006 sought an order (inter alia) that the child live with him and that the mother spend time with her in what I may broadly describe as usual or general orders of the court. Thus the demarcation lines were set. There was quite a litigation pathway travelled by him in coming to that position, for when the proceedings were initially commenced on 9 April 2003 he sought “contact”, as it was then styled.
3.
In her Case Outline Document filed 31 January 2007, the mother maintained her stated position, seeking orders as set out in the Amended Form 1A Response. However, when the proceedings commenced before me on 5 February 2007 Ms Agresta, counsel for the mother, reviewed the mother's position that "in view of the reports" she proposed that the father spend time with the child on a supervised basis "at [G] for a couple of years". Her reference to "the reports" were those of Ms W, the Family Consultant, being five in all, the last one dated 21 March 2006. Given the passage of time, it is hard to accept the change in position of the mother upon that stated basis as being genuine.
4.
Mr Mort, counsel for the Independent Children's Lawyer at that stage provided, at my request, a preliminary view that, having given the matter the most careful consideration and having read the relevant files of the Department of Human Services, the allegations of sexual abuse could not be made out to the requisite standard of persuasion and nor was there an unacceptable risk of sexual abuse.
5.
In his Case Outline Document, Mr Mort proposed that subject to evidence and any findings in relation to the allegations of sexual abuse, the preliminary view of the Independent Children's Lawyer was that if the mother was able to satisfy the court that she would promote and facilitate the father's time with the child and comply with any future orders of the court, the child should continue to live with her and spend increasing time with the father on an unsupervised basis. This time should be extended gradually to include weekly daytime periods to overnight periods on alternate weekends to commence within approximately three months. Further, that the child spend time with her father for one half of all school holidays, one half of the long summer vacation, and on special occasions such as birthdays, Father's Day and Christmas Day.
6.
However, it was also the preliminary view of the Independent Children's Lawyer that if the mother was not able to satisfy the court that she would promote and facilitate the father's time with the child and comply with the future orders of this court, then the child should live with the father and spend time with the mother. That time should be spent supervised at G, with the mother having liberty to apply in relation to the question of further contact after 12 months. In the alternative, the mother have no time with the child for three months and then time supervised at G for 12 months.
7.
It was further proposed that the child have regular psychotherapy as recommended by Dr R, that the mother have psychiatric treatment as recommended by him and that each parent attend a post‑separation parenting course.
8.
The rationale for this proposal, as expressed by Mr Mort, was that the orders provided an opportunity for the child to have a meaningful relationship with both parents. It was acknowledged that the child was bonded to her mother and had a close relationship with her. Further, that it would be preferable if the child were able to remain with her mother if possible, while maintaining her relationship with the father.
9.
It was submitted that despite the limited time thus far spent with her father, the child had displayed a very positive and healthy interaction with him. Further, that the father had displayed insight and understanding of the responsibilities of parenthood. It was submitted that the child had a loving relationship with her father, an attachment to him and that the father displayed "some capacity to meet" the child's needs. However, as a result of his limited time with her this was to a large extent untested.
10.
The Independent Children's Lawyer argued that the father’s lack of time spent with the child derived directly from the mother's "failure to promote and encourage the child's relationship" with her father, which displayed a lack of insight into the child’s emotional needs and her responsibility for the potential damage to her psychological and emotional functioning. It was put that she appeared to have disregarded her obligations as the child's primary carer.
11.
The Independent Children's Lawyer at that stage submitted that in the event the mother continued to neglect her parental responsibilities to the child and to "foster positively a relationship between the child and the father" there was a real risk that the father's existence would fade in her life to the detriment of her emotional and psychological wellbeing.
12.
It was noted that the child had suffered trauma as a result of the conflict between her parents and that both Dr R and the Family Consultant urged change in her adverse family situation "via resolution or a reduction of this conflict". That of course, was not heeded by the mother.
13.
The Independent Children's Lawyer then noted that an important measure of the mother's insight into the child's needs would be "her attitude" to the father and "her preparedness to overcome past negativities". On reflection, it is plain to me that the preliminary view and rationale showed considerable understanding and insight of the issues before me.
14.
At the very beginning of the trial I addressed all counsel, expressing a preliminary view under the umbrella of Johnson v Johnson (2000) 201 CLR 488, and the matter was stood down for negotiation. At the recommencement of the proceedings in the afternoon of the first day, I was advised that no agreement had been reached and that the matter was proceeding.
15.
At that point, Ms Agresta submitted that the mother had a fresh proposal, which she articulated in the following terms. Ms Agresta submitted that the new proposal was for the child to live with her mother, and that the father have contact for a period of three months on a fortnightly basis during the day for "several hours" with the mother being present.
16.
Ms Agresta explained that the rationale for this proposal was that the child would “feel more secure”, and secondly, because the child was reluctant to attend on contact. Ms Agresta said, when I sought clarification, that the mother continued to have “a fear” that sexual abuse would take place. She submitted the mother's further proposal was that after that period of three months the father have contact with the child during the day for "several hours", with the mother remaining for “half an hour” to settle her and then leave them together. That too would go on for three months.
17.
Thus following a period of six months, it was then proposed that there be a further period of three months, unsupervised during the day, but not overnight and on a fortnightly basis. Following that period, now being towards the end of 2007 (after nine months), there be unsupervised overnight contact on one night per fortnight, and thereafter "eventually" at "some time" for two nights per fortnight. There was no sunset clause to that open-ended and bald time frame.
18.
Ms Agresta said that her instructions were that once the situation was "up and running", the issue of holiday contact be brought in, broadly speaking, for one half of each holiday. Further, that the parties engage in "some social family therapy".
19.
Given the terms of that proposal, there was little difficulty for me to reason why discussions had broken down. It was plainly obvious for there was, without any criticism being directed to Ms Agresta, a sting of naivety and unreasonableness about it which failed to grasp the central thrust that would enable the parties to move forward for the benefit of the child.
20.
This became so much more apparent with each of the parent's evidence before me and in particular the very helpful and illustrative analysis provided by Mr Mort in Exhibit “ICL3”, comparing that proposal with the terms of the interim orders made by Kay J on 23 May 2005. It was plain that the mother was obdurately stubborn to rational logic and resistant to moving forward with the father's time to be spent with the child.
21.
The father commenced to give his evidence on 6 February 2007 and was cross‑examined about his prior criminal history record, together with the fact that he had been given to reactive depression. The impact of such an attack was at first lost upon me, its relevance being asserted as going to credit and the father's ability to otherwise care for the child. I say that because firstly, the fact of his police record and emotional health was known to the mother, and secondly that he actively participated, notwithstanding the allegation and at the request of the mother, some may say to accommodate her work ethic, in the child's daily nurture, the extent to which however was in dispute. It also did not sit at all satisfactorily with the terms of the signed Parenting Agreement entered into between the parties on 14 June 2002 upon the breakdown of their union.
22.
When the matter resumed on 7 February 2007, I further addressed the parties on the positive advantages to be derived from consensual, sensible and dignified resolution. I emphasised the principles and objects mandated in section 60B of the Family Law Act 1975 (as amended) (“the Act”) and the requirement for professional intervention both now and into the reasonably foreseeable future to assist each of the father, the mother and the child. It was again stood down, but negotiations failed and the trial continued.
23.
On the fourth day of the hearing, after the father had given his evidence and the mother had been extensively cross‑examined by Ms Dellidis, the proceedings were stood down yet again for negotiation purposes. On 12 February 2007, following a weekend break, the parties signed Minutes of Consent Orders.
24.
As will become patently obvious through this judgment, for the mother to have proceeded further would have deepened the crisis revealed from her evidence and what I regard as her lack of perspicacity and discernment in failing to recognise all those clear indicators that there had been no sexual abuse as alleged. Independent third party evidence was apparent, yet ignored by her, as she chose to listen only to those that fed her own imprudent and hastily conceived views. It was the giving of her evidence that cast the die.
25.
I have some doubts that this court will be free of this matter in the future, albeit that I hope I am wrong in my forecast. In any event, those professionals engaged to assist the parties and the child, pursuant to the terms of the consent order, may be assisted by what I have to say, which records the evidence to the point of resolution. Further, in the event it did return to court for any reason, the assigned judicial officer would have a comprehensive understanding of the basis of adjustment between the parties and a foundation for any decision‑making in the future.
Background
26.
The father was born in Iraq in July 1954. The mother was born in Australia in March 1961. Accordingly they are 52 and 45 years of age respectively. The parties commenced cohabitation in May 1998 and their daughter was born in August 1999. Following unhappy differences between them, they separated under the one roof in April 2002. In June 2002 the parties entered into an agreement as to parenting and financial issues, and in November 2002 they physically separated from under the one roof. The child continued to live with the mother and spend time with the father by agreement.
27.
The situation did not work out and on 9 April 2003 the father filed a Form 3 Application in the Federal Magistrates Court seeking orders for shared parenting and specific issues. In essence he sought a shared arrangement for the care of the child. The mother filed a Form 3A Response, seeking residence, defined contact and specific issues on 21 May 2003.
28.
On 26 May 2003 consent orders were made in the Federal Magistrates Court of Melbourne, providing for the mother to have residence, that the father have contact each Sunday between 9 am and 5 pm, and each Wednesday between 4 pm and 7 pm. A family report was ordered.
29.
The progress of the parties' litigation avenue commenced on 27 July 2003 with a notification being made to the Department of Human Services by the father concerning the child, alleging exposure to “psychiatric illness and emotional trauma”. On examination, the Department of Human Services closed the file on 4 August 2003, citing insufficient evidence to act. However, on 10 September 2003 the child was interviewed by the Department of Human Services and the Sexual Offences Child Abuse Unit (“SOCAU”), but did not disclose any sexual abuse. They interviewed the father on 24 September 2003.
30.
On 26 September 2003 the mother reported to the Department of Human Services that the child had disclosed that her father had sexually abused her. Contact was unilaterally suspended by the mother. It was on 1 October 2003 that the Department of Human Services confirmed to the father that they were investigating this further allegation and that contact should be suspended in the meantime. The following day, on 2 October 2003, the father filed Contravention Application proceedings for breach of the contact orders that were made on 26 May 2003, alleging 20 contraventions.
31.
Six days later, the Department of Human Services and the SOCAU interviewed the child. Again, no disclosures were made by the child. The child abuse unit determined no further action be taken and on 13 October 2003 a letter was written by the Department of Human Services which confirmed that the investigation was closed.
32.
Orders were made on 11 November 2003 adjourning the Contravention Application of the father to 10 December 2003 by reason of judicial unavailability. However, events worsened, and on 20 November 2003 the father filed a Form 8 Application for “make up” contact, a Recovery Order and a further Contravention Application for breach of the orders that were made on 26 May 2003, this time alleging six contraventions. Accordingly, overall some 26 breaches of the authority of this court were alleged by the father.
33.
That day, the Department of Human Services received a further notification. The child was allegedly displaying concerning behaviour at school. However, the Department of Human Services took no further action, given that the child was interviewed twice previously with no disclosures. On 26 November 2003 the Department of Human Services again closed the case.
34.
On 10 December 2003 the mother filed an Amended Form 3A Response, seeking supervised contact, a family report and the appointment of a Child Representative. Consent orders were made in the Federal Magistrates Court on 12 December 2003, although there is some confusion as to whether or not they were made on 10 December 2003. It matters not.
35.
Those orders provided for the father to withdraw his Contravention Applications and that the contact orders of 26 May 2003 be varied so that Wednesday and Friday contact occurred between 2.30 pm and 5.30 pm. Mercifully, a Child Representative was appointed. The matter was then transferred to the Family Court of Australia.
36.
On 19 December 2003, the child disclosed that her father physically abused her. The Department of Human Services directed the mother and father to suspend unsupervised contact pending investigation and on 24 December 2003 the child was interviewed again by SOCAU. She disclosed that her father "touched" her on the "inside of her bottom". At that stage the Department of Human Services assessed there was a “significant risk” to the child. On the same day the mother made a statement to the police and the father was interviewed by them. He denied the allegations.
37.
On 29 December 2003 the Sexual Offences Child Abuse Unit advised the Department of Human Services that the allegations were vague, that the child was unable to be submitted to VATE procedure and that the investigation would not proceed. Later, on 21 January 2004 the Department of Human Services interviewed the child and a disclosure was made. The Department recommended supervised contact and the matter was referred to the E Centre Against Sexual Abuse on 27 January 2004. On 2 February 2004 the mother filed a Form 8 Application seeking a suspension of contact. Thereafter, the matter proceeded down the litigation pathway with various applications, and the father having supervised contact to the child.
Legal Principles
38.
The principles governing a case such as this are set out in the Family Law Amendment (Shared Parental Responsibility) Act 2006. In considering the consent orders, I must regard the best interests of the child as the paramount consideration (s 60CA). In determining what is in her best interests, I am obliged to consider the matters set out in s 60CC(1) which are called the ”primary conditions”. There are “additional conditions” also set out in that section. The two primary conditions are, firstly the benefit to the child of having a meaningful relationship with both her parents, and the second is the need to protect her from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. That bore significance.
39.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and, as a note to s 60CC points out, are consistent with the first two objects of Part 7 of the Family Law Act as stated in s 60B. Accordingly they are matters requiring careful consideration.
40.
The issue of credibility was made very clear at the commencement of the trial. Insofar as the standard of proof concerning the various evidentiary issues for my determination is concerned, I have made it clear that the level of persuasion is the civil standard, that is, the balance of probabilities (s 140(1) of the Evidence Act 1995 (Cth)).
41.
By reason of the manner in which these proceedings were conducted, it is necessary in the course of this judgment to make what may be perceived as some harsh comments, but in doing so I stress very firmly at the outset that these comments are not made or intended to insult, belittle or undermine the confidence of the parties and in particular the mother. On the contrary, it is my hope and expectation that what I have to say in this judgment will be considered carefully, in particular by her, and used positively to benefit the child and for each of the mother and the father to better understand an objective independent consideration of the relevant matters considered necessary to facilitate what is in her best interests.
42.
It is readily apparent from the manner in which the proceedings were conducted that the issue of credibility, as I have already discussed, became a critical one. That was necessarily so, given the issues raised before me from time to time. There was a serious allegation. There was a denial. One is required therefore, in the pursuit of a determination, to test the evidentiary base that each party acted upon.
43.
Accordingly, I will in the course of this judgment make a number of significant and crucial findings concerning my acceptance or otherwise on different and important issues. Given this fact, I wish to emphasise that I have had the advantage of carefully observing the witnesses in the giving of their evidence, which is an important one and of considerable assistance, given that my observations span several days during which many issues were put to each of the contesting parties.
44.
I am not by any measure asserting this is a panacea, for it is patently clear that an assessment of truthfulness or reliability by demeanour can be nothing short of hazardous, if that were the only criteria. But in this case, in addition to my general observation of demeanour in the above circumstances, I also take into account the inherent likelihood or otherwise of evidence given on a particular issue and its consistency overall with other evidence and documents relied upon.
45.
I have made such comments in a number of judgments, including for example L & B [2005] FamCA 242. In that case I referred to the fact that a trial judge is in the privileged position of observing witnesses. This was commented upon in Minagall v Ayres (1996) SASR 151 at 154 per Hogarth J. See also Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 313 per Kirby J, who said:
“By conventional theory the observations made by a trial judge of the appearance and demeanour of a witness giving evidence are not only available to be used in the determination of a dispute but amount to important ingredients of the decision-making process. They normally provide the primary decision-maker a distinct advantage which controls, and even limits, the exercise of the appellate court of its statutory functions in an appeal by way of rehearing…”
46.
As I discussed in L & B (supra), a trial judge in a significant case such as this is charged with the onerous duty of affording weight to a particular fact in issue which will "not often be capable of rationalisation beyond the statement, having heard him, I am not satisfied I should accept what he says". See Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273-4 per Mahoney JA. In that case I find considerable assistance from his Honour's comment that:
“…the weight which a judge gives to a particular fact may be affected by, as it has frequently been put, his experience and, in particular, his experience of the significance of that fact in the order of things.”
47.
I have accordingly been careful in evaluating the relevant evidence, which necessarily brings into account matters such as credibility and the inherent likelihood or otherwise of the evidence given by the principal protagonists. A useful explanation of my task was provided by Dawson, Gaudron and McHugh JJ in Louth v Diprose (1992) 175 CLR 621 at 640.
The Evidence
The Father
48.
I wish to make it clear that I have carefully considered the trial affidavit evidence of the father, together with his oral evidence before me. He was a thoughtful and careful witness, who earnestly responded to all questions put to him. There was no indication of evasiveness or procrastination. No doubt some of the matters put, the overall relevance of which was questionable, led to some discomfort. This was quite understandable in the circumstances.
49.
The words of Demack J in Jurss v Jurss (1976) FLC 90-041 at 75-184 were apparently lost, in what I regard as an unnecessarily protracted and painful cross‑examination of historical content. So too, many of the rather intemperate assertions by the mother in her trial affidavits of the most private intimacies shared in the course of their union.
50.
If I may borrow the wise words of Demack J in repeating for the benefit of the mother that an inquiry such as that before me is a positive one, designed to promote the best interests of the child and not demote the claim of the parent. Doubtless little regard was paid to the principles and objects of the Act when drafting what may be fairly described as an extravagant and unnecessary attack. This is particularly so given that the mother was fully aware of the father's police history and former predilection to gambling.
51.
Overall, there was nothing put in cross‑examination that caused me to doubt the credibility of the father in the proceedings before me, notwithstanding his past record at another time long ago in quite different circumstances. To the contrary, and unlike the mother, he maintained a dignified demeanour at all times and made concessions when it was both proper and appropriate to do so.
52.
When speaking of the mother, the father displayed no antipathy or anger. He addressed questions relating to the several options available for my determination with sensitivity. He did not seek to demote the claim advanced by her. He candidly, for example, proffered the preferred option that the child continue to live with the mother and that he spend time with her, qualified by her genuinely promoting his image as the father of the child, in circumstances where on the evidence it was open to him to validly reiterate the terms of his Amended Form 1 Application. I thought he was fair. I thought he was honest, realistic and, importantly, reliable.
53.
I deal with his evidence. When examined by Ms Dellidis, the father said that since the filing of his trial affidavit on 18 April 2006 he had consulted with a psychologist to assist him in these proceedings. He explained that he had been depressed and that he received considerable professional assistance and encouragement. He said that he had moved his life “forward” and had paid employment with a welfare agency, with whom he earned approximately $900 per fortnight. He received a Centrelink benefit of some $200 a fortnight.
54.
The father explained that he had a companion who had entered into his life. She is the manager at the V store of the welfare agency and they had engaged in a steady relationship since August 2006. She is 45 years of age and lives at B in a unit of her own. She has no children. He said they enjoy a satisfactory and happy relationship.
55.
The cross‑examination by Ms Agresta, and which I accept was upon instructions from the mother, was directed to dampen, perhaps blacken, the standing of the father as a witness in this court. For example, he was reminded that when he first saw Dr K (page 3 of his report) she told him that the father "had been addicted to gambling". However, the father said this had been the situation well before he met the mother. He was then cross‑examined at length upon his criminal record, and in the result Ms Agresta tendered Exhibit “M1”, being his criminal history sheet, the details of which were admitted by him.
56.
Insofar as his gambling and depression were concerned, the father said that he made full disclosure of these matters to the mother when they met. It is a plain observation that the criminal history sheet of the father, particularly for the years in the late 1980s, was appalling and recorded obvious offences of dishonesty. His convictions and sentences are evident, and as one colloquially acknowledges, he “served his time”.
57.
To suggest that this fact and this fact alone should register and impact upon the father's credibility or lack thereof for all time is not a proposition that I accept. Form both his demeanour in the witness box and his evidence I accept that he felt a great sense of contrition for those past events, which he greatly regretted.
58.
Observing him carefully during the course of the cross‑examination on all these issues, it is clear that it was a painful exercise for him, and one which he accepted as part of the litigation pathway. The need to dwell on these aspects however, in the manner undertaken, was something that I doubt very much.
59.
I do not accept that the father failed to make a full disclosure to Dr K of his past, and I am satisfied that he is the ilk of person that would respond earnestly to matters put to him. There was nothing to be gained by nondisclosure, given that the mother was aware of the history.
60.
The father said he no longer takes medication for depression. He takes Voltaren (25 milligrams) to relieve pain in the lower back. He denied that he took Effexor when he met the mother. He said that he took Prozac prior to their meeting and that he was taken off that medication some time later. He conceded that he did suffer depression from time to time, which was reactive in symptomotology, explaining that it occurred when "the environment about you becomes bad and you can't handle it". He explained, and which is quite understandable, that when he was released from prison he felt that "no‑one wanted to know" him, that there was no opportunity for work which was magnified in circumstances where he had no family and had suffered a lost relationship.
61.
Ms Agresta cross‑examined the father concerning matters raised by him relating to the mother's parents' reaction to him as a consort for their daughter. It is plain that they disapproved of him. He said responsively, when cross‑examined by Ms Agresta, that the maternal grandmother told him, "I don't like you, because it's in my blood," referring to the fact that he looked like "a negro". Such a statement, if made, was callous, racist, heartless and unpardonable. Albeit that the maternal grandmother did not give evidence, the matter having been adjusted prior to her being called, the manner and circumstance in which the father gave that evidence had the ring of reality about it.
62.
However, I might point out that in the course of an insightful cross‑examination by Mr Mort, it became plain that the father did have a tolerable, indeed at times an amiable relationship with the mother's brother, which could lay the potential foundation for an opportunity to engage his assistance in the early stages of the reintegration of the child into his life. That was one positive aspect of these proceedings.
63.
The father was cross‑examined at length in relation to his deposition that he had been "the primary carer" of the child during the first three years. He said that this was by agreement and during which period he cared appropriately and lovingly for her. I do not propose to scrutinise the lengthy, at some times somewhat turgid review of the living situation of the parties during those years, save to say that I was left with the clear impression that the father was involved in a substantial way in the care of the child. The exigencies of their household were such that there was evident a reverse dichotomy of traditional tasks.
64.
It is plain that the father found it difficult to obtain meaningful employment. The mother was a trained professional. In those circumstances it is clear that she returned rapidly to work and it is doubtless too that her contribution financially to the coffers of the family was a most substantial one. It is also plain to me that during this period there were times during which a third party cared for the child, but that did not detract from what appears to me to have been a material contribution to the general nurture, development and welfare of the child by the father. It is not a black and white situation, but one whereby the piecing together the separate indicia formulates an overall picture of the dimension explained by me.
65.
The lengthy cross‑examination of the father's employment history was, in my view, a needless and inessential exercise, doubtlessly obliged to be put by Ms Agresta upon instruction of her client. I have no reason to doubt the bona fides of the father in asserting his belief that he was "the primary carer", but that is in effect a technical term. His evidence leaves me with no doubt as to his contribution. Perhaps the nadir of the puttage, in terms of assisting me in the ultimate determination of the complex issues with which I am charged, arose from the husband's deposition that he took the child when she was approximately six months old, to a local creche, so that she might spend "some time socialising" with other children. He came under criticism for use of the descriptive term, "socialising".
66.
The father was asked a number of questions concerning the Deed of Agreement made 14 June 2002. He made it clear it was his understanding that both he and the mother agreed they would "share equally" the care of the child. He disputed the puttage that it was not intended he have overnight care of his daughter. There appears to me to be some support for that proposition in that he, by his Form 3 Application filed 9 April 2003, sought a final order that he have the sole responsibility for the care, welfare and development of the child from 9 am on Monday to 5 pm on Wednesday. The father explained that his application was, using his words, in the same terms as the agreement between the parties.
67.
The father accepted, as was put to him by Ms Agresta, that save for approximately two nights when the mother was in hospital, he had not had overnight contact with the child from the date of physical separation, November 2002, to this day. I have no doubt that was not his choice. The circumstances of the whole litigation pathway demonstrates that to be a fact. Indeed his daytime contact with the child on an unsupervised basis ceased in about August or September, of 2003.
68.
The father was cross‑examined about the allegation of sexual abuse. Ms Agresta made it clear that the allegation relied upon by the mother was that set out in her trial affidavit of 4 November 2004, being prior to the proceedings heard before Kay J on 23 May 2005 when interim consent orders were made. It was intended at that time the parties proceed into the future within the terms of those orders, which have, in my view been honoured in the breach by the mother. Ms Agresta made it perfectly clear, with her traditional and professional frankness, that in relation to the allegations set out in paragraph 19, "I can't take it any further than that". That proved to be accurate, as the mother in her evidence endeavoured to erect an edifice of fact upon a foundation of quicksand.
69.
The father said that the child had never used the term "pussy cat" in his presence (a reference to her vagina), and denied that he had ever touched her on the genital area, save that he would “wipe” her upon bathing. He explained that such tasks were never in a sexual way but “as a parent”. He made it clear that he believed the child had been coached to make the disclosure by the mother. Further, he said that he did not believe the child expressed that which she is alleged to have said.
70.
The father was referred to the first report of Ms W of 19 August 2004 (paragraph 47) and asked why he so acted (kissing the mother) and saying that he had "no hard feelings" if he was of the view that the mother had "coached" the child. He made it clear to the court, and with considerable passion I might say, in asserting "she is the mother of my child" which is the situation "for the rest of our natural life" and that what he said that day he "meant from the heart at the time". I suspect that the puttage was predicated on the basis of a too black and white situation, without regard to variable human behaviour. It seems to me the father had retained, certainly to that time, unrequited and unresolved feelings for the mother following the separation.
71.
The father made it clear that he firmly believed the mother had “made up” the allegation. When challenged on this, he referred to his affidavit filed 27 July 2004 (para 11), as formulating the foundation for that belief. That paragraph reads as follows:
“11. [Mr F], the psychologist employed by the mother who previously provided a report that no disclosures were made by the child, provided a further report in January 2004 stating that the child had made disclosures of sexual abuse by me. [Mr F] had been notified by Victoria Police that my daughter may have been coached by the mother in regard to the alleged claims of abuse. The following part of the report of [Mr F]. In his report dated 2nd January 2004, purportedly sent by [Mr F] to the respondent's mother's solicitor Mr Maplestone, he states as follows:
“The members of SOCA unit informed that in their opinion [the child] had been coached in her story, adding that [the child] asked her mother if that was what she was supposed to say. [The wife] was alleged to have stated words like, 'What am I supposed to do to get custody?' The latter is concerning, as it clearly casts doubt over the veracity of what has been stated to date. The context of the above is understood to occur within an acrimonious separation and child access battle.””
72.
That report is one relied upon by the mother and is annexed to the affidavit filed in these proceedings on behalf of Mr F on 12 April 2006.
73.
It was put by Ms Agresta that in the months of September to November 2003 the father continued to have contact with the child. With that he agreed, qualifying it by properly asserting "with several interruptions". So much so is clear, given that he filed a Contravention Application on 2 October 2003, as I said asserting 20 contraventions and again on 20 November 2003 asserting six contraventions. A total of 26 contraventions in all. The father said there was nothing in the behaviour of the child to suggest that she was stressed and positively asserted that the child enjoyed seeing him. That was not challenged in cross‑examination.
74.
The father was also cross‑examined in relation to paragraph 22 of the mother's affidavit filed 4 November 2004. Without going into the lurid details of the assertions made, I need only record that he denied the allegations put and vehemently so. They were not, in the result, seriously pursued by Ms Agresta.
75.
The father was asked a number of questions as to his “primary position”, seeking that the child live with him. He acknowledged that such a move would involve a change in her school friends, her school, her teachers and her general environment. He said, however, he compared the damage that the child would sustain following any change of residence with the damage that "is happening now". He made it clear, which I accept, that he would maintain the relationship between the child and her mother, which has been historically demonstrated to be in sharp contrast to the current situation with the child living with her.
76.
When cross‑examined by Mr Mort, the father maintained his belief that the mother had “made up” the allegation. He pointed out that the last unsupervised contact that occurred between the child and himself was in December 2003. On about 12 December 2003 consent orders were made, as I said, in the Federal Magistrates Court. The orders provided, by consent, a withdrawal by him of his Contravention Applications and that the orders made on 26 May be varied in the way described.
77.
The father gave evidence that in a conversation he had with the mother, she informed him that she had been “hassled” by Centrelink and by what he had said about her. I assume that referred to the father's disclosure on 27 July 2003. The mother further complained that she had considerable legal costs and went on to assert, "You started the war, someone's got to finish it”. She made a remark about sexual abuse. He said that he inquired what she was talking about and that she responded with a wink, saying, "You know what I mean”. The father maintained his belief that the child would be subject to "coaching, intimidation, things like that" by the mother. As matters stood, there was in my view a reasonable basis for making that assertion.
78.
Mr Mort then addressed the husband to his background. He was born in Bagdad, Iraq. His father was Jewish and his parents divorced when he was six years of age. He has no siblings. His mother remarried and he was raised by his grandmother. He has no family in Australia.
79.
The father said that he attends the S Church for mass each Sunday. He pointed out that the child formerly attended with him. For some recreation, he sometimes attended a Bible group and other church activities. He has been associated with the church since 2003. He referred to the fact that he has friends, but that the litigation in which he is involved has, to use my own words, disaffected them. He said that the mother's family provided no support for them upon the birth of the child, and that his relationship with her family had "not been good". That was a masterful understatement.
80.
However, he referred to the fact that the mother's brother commenced to visit them when they lived at their home at W. He did this "only when he received a phone call", from her. As to his relationship with her brother, he said there was no friction but that he felt, and understandably, that the brother would "stick by his sister". He said that her brother had helped him out from time to time with transport. It was his view that except for the paternal grandmother, the brother may be an option to assist in the future. That was encouraging.
81.
The father produced an album of photographs (Exhibit “ICL1”) which on the face of them revealed the child having happy times with him. Some of the photographs related to the period prior to their physical separation in November 2002 and otherwise at G. He described his relationship with the child as “beautiful”, as being a “normal one”, but that she would be apprehensive for some 15 minutes at the commencement of contact and then revert to her “normal self”. He explained that when the mother returned to live at the home of the maternal grandmother in November 2002 their relationship "fell off the tracks".
82.
The father repeated that he took Prozac prior to commencing his relationship with the mother but had not been on medication for depression during the relationship. He maintained that he coped with his depression during the relationship, as he currently is, and has never been hospitalised for that illness.
83.
Mr Mort then addressed the father's attention to the Agreement entered into on 14 September 2002. He explained that it was drawn with the assistance of the Monash University Legal Service and asserted that both he and the mother joined in the Agreement to advance the best interests of the child. He described it as "a map for the future". Reference was made to paragraph (E), being “conditions for the responsibility” of the child and in particular that there was to be no change to her legal name and that neither party was to travel outside Melbourne without the consent of the other. He said that as he understood it, the child was now known as SF and (mother’s surname) and at times S (mother’s surname). Her birth certificate is in the name of “[the father’s surname]”.
84.
The father explained to Mr Mort that the mother travelled to Queensland on about 10 September 2003 without his agreement. Her solicitor, Mr Maplestone, wrote to him on 26 August 2003 and in respect of the proposal for travel the father did not agree, expressing certain concerns about the child (see Annexure 15 to the affidavit of the father filed 2 November 2005). He did not receive any make-up contact, and went on to correctly add, nor "the original contact" as agreed between them.
85.
The father complained that from November 2002 until 9 April 2003, being the date he first filed his Form 3 Application in the Federal Magistrates Court, his contact with the child was both irregular and erratic. He was not permitted to spend time with her during, for example, Christmas 2002, an important time in a young child's life. He complained that the mother did not provide him with any details relating to the child and notwithstanding that the mother was working and he was available to care for her, was never offered the opportunity. Given what I have heard from the mother, I accept that evidence.
86.
In his evidence the father made it clear that he withdrew his Applications for Contravention as he and the mother had reached an agreement concerning his time to be spent with the child. He agreed that was a “positive thing”, and that those orders were to proceed on an unsupervised basis. In my view, upon reflection, this was just a contrived step on the mother's part, her focus or target at that time to obtain some evidence against the father of sexual abuse. That is, as painful as it might be, she was disingenuous when consenting to the orders.
87.
The father was referred to pages 39 to 40 of Exhibit “ICL2”, being a relevant part of the Department of Human Services file. He agreed that it was he that made the notification on 24 July 2003 and that the Department's report on the file of what he said was accurate. The following was noted on the file:
“Caller asked writer to be very gentle with the mother, as caller did not want mother to feel degraded in any way.”
88.
The father explained that at the time he did not understand the role of the Department of Human Services and that he was concerned about the mother. He said that he went to their web site, as he was “searching for help” for the family. He was looking for community support. He agreed that, upon reflection, he strongly regretted calling the Department as he did. He said that he realised this could have made the situation worse in relation to his contact with the child. I accept his evidence on that aspect, and that he genuinely regretted his conduct in making the notification. I take into account that he was searching for help, for the family.
89.
Mr Mort referred the father to page 42 of Exhibit “ICL2”, being a telephone call between the mother and the worker on 31 July 2003. Several parts of that file bear reference, including:
“At the moment the father is having three days' overnight access and is wanting to have 50 per cent ...
…she (the mother) said that she does not want to “bag” the father and that he is reasonably stable at the moment. She stated that he has a lot of good character points as he is a very helpful and compassionate person. She said that she trusts him with the baby but wonders whether he always puts her needs first….”
90.
That position changed as it spiralled downwards with the subsequent passing of time.
91.
The father disagreed that he was having overnight contact at the time, and such is the fact. He acknowledged that he sought, as he had always done, a shared fifty-fifty arrangement for the care of the child. That was reflected in the Agreement between the parties of 14 June 2002 and otherwise reflected in the orders she sought in the Form 3 Application filed 9 April 2003. He asserted that it was “common knowledge” with the mother that he sought equal shared time with the child. He agreed it was a positive aspect that the mother at that time said she trusted him with the child. In my view that was then the reality so far as the mother was concerned but, as I said, from then on she spiralled downwards into plain unreasonableness, obsession and a vitriolic view of the father.
92.
History records the fact that on the following day, 1 August 2003, he was denied contact by the mother, which he took as a "payback" for his notification to the Department of Human Services.
93.
When the matter came on for trial before Kay J on 23 May 2005, following a significant and tragic history, and with the assistance of two reports from Ms W on 19 August 2004 and 21 April 2005, consent orders were made, providing for him to have a graduated regime of contact, increasing over time, beginning on a supervised basis and leading eventually to unsupervised contact. The proceedings were otherwise adjourned to a pre‑trial conference in August 2006, over one year thereafter.
94.
History now records that earlier that year, the father filed an Amended Application seeking residence and/or defined contact orders on 23 February 2005. The mother had countered with an Amended Response seeking residence, orders for supervised contact and a change of name. The response was filed on 4 March 2005.
95.
The consent orders of 23 May 2005 did not work, and on 12 October 2005 the father was obliged to file an application seeking resumption of contact. At that point Mr Mort tendered an aide-memoire analysing the consent orders made before Kay J on 23 May 2005, with a comparative analysis of the mother's current proposal (see Exhibit “ICL3”). It is clear that there was a pattern that the proposal put by the mother through Ms Agresta at the commencement of the proceedings before me, and which I have earlier outlined, is very similar to the agreement that was reached between the parties on 23 May 2005. The father said he consented to the orders because he received an assurance from the mother that she would “stick” to them. This she failed, and demonstrably so, to do.
96.
Mr Mort referred the father to the report of Dr R of 1 November 2006 and in particular to page 23, where he offered the following opinion:
“From a psychological standpoint of what is best for [the child] as an individual child it is my opinion that an arrangement that allows [the child] to have significant and meaningful contact with both parents is optimal. The most obvious arrangement is for [the child] to reside with her mother, while having substantial weekend and holiday contact with her father.
Ideally, such an arrangement should be put in place over a couple of months following gradually increasing (and unsupervised time) with [the father]. Mental health treatment for [the child] and the family should occur in conjunction with this.
If [the child’s] parents could come to accept that such an arrangement is in the best interests of [the child]. I do not think [the child] would have difficulty managing such an arrangement.
It appears that efforts have been made to work towards this sort of arrangement before but it has not been possible, in particular because of [the mother’s inability to accept this is in [the child’s] best interests. This has led to an ongoing state of acrimony. Although I can understand why [the mother] may hold some concerns about possible abuse, I think her position of adamant certainty is difficult to understand and not helpful in the current circumstances. The reasons for her absolute position are unclear. There may be benefit, both for the court and as part of treatment, for [the mother’s] position to be explored further psychologically or psychiatrically.
I expect if such an arrangement was in place, [the father] would be able to work within such an arrangement.”
97.
The father said that if the child lived with the mother, he would agree to substantial weekend and holiday contact. As indicated by Dr R, he was both sensitive and amenable to that professional opinion. He, sensibly in my view, said that contact should take place on one day on each alternate weekend between 10 am and 5 pm, plus a period of time midweek after school. He said that he would travel to L School and return the child to the mother on that occasion. It was his view that such daytime contact should continue for a “couple of months”, and then progress to overnight contact for one overnight period, increasing to two nights on Friday and Sunday. However, ultimately he would seek, after a period of some three months, the opportunity to collect the child from school on Friday and return her to school on the following Monday. There would be no difficulties with his work. He has a driver's licence and can borrow a motor vehicle. I thought the proposals by the father in the circumstances were both fair, insightful and unselfish.
98.
The father was then referred to page 24 of Dr R's report dealing with the second option, namely that the child resides with him. He said that he would expect that when seeing the mother the child would "feel the same way" about him "all over again". In those circumstances he suggested that the mother spend time with the child for a “couple of months” on a supervised basis to assess its progress.
99.
When he was asked to assume no order for contact in favour of the mother, the father immediately reacted by saying that was not feasible and indeed, as I can best recall it, said that he would appeal such an order. He made it clear that the mother's contact with the child was essential.
100.
When asked about the mother's positive characteristics, he explained that there were a lot of “good things” about her and her parenting of the child. He applauded the fact that she worked hard and sent the child to an excellent school. He said that the mother cared for her, that she loved the child and wanted the best for her. He said she was a “good mother”, and on reflection a “good partner”. His lack of anger and/or antipathy to her, despite this appalling and tragic history, was obvious.
101.
The father said that he would be unable to pay fees for the L school, as he could not afford them. However, he had made inquiries in the event that he succeeded in his application and would, if the child were to live with him, arrange for her to attend the T Primary School. He had made inquiries of the school and met with the headmaster. He said that placement was available for the child and that he had obtained information in relation to the school. He said it was a “beautiful school”, like a “family school”, and was very clean, quiet and had supportive staff. He explained further that there was a facility for parents to participate in class with the children, which he would very much enjoy.
102.
Following the cross‑examination of Mr Mort, I asked the father about his feelings for the child. He said that when he saw his daughter he felt “relief”, and that he tried "to force myself not to cry". He went on to explain that he remembered her since she was a baby, and that she is now a young girl. He said that the child "corrects my English" and that she takes pictures of him. It is clear to me from his evidence that she enjoys a happy time when in his company. He, with some passion said, "It makes me forget the whole fortnight before."
103.
The father said to me that he has “faith”, and that it was "a precious gift from God that's given me [the child]". He explained that he has no family, and he has feelings of “pure love” and “pure care” for his daughter. He explained that he wanted to see her grow up as a normal child, adding "with love from both parents". I thought his evidence was entirely genuine, profound and passionate. His love for the child ought be given far more credit by the mother than she has in the past.
104.
The father explained his financial situation to Mr Mort in that he received $900 per fortnight from his employer and $300 per fortnight by way of social security benefits, which differs from what I have earlier said by $100 which accounts for the rent allowance. He pays rent of $975 per calendar month, and after payment of utilities and the like he has little left over. He said that he gambles on an irregular basis. He has no addiction to gambling, explaining that he has "moved past that". He went on to say, "I have hope now, I did not have before", about seeing the child. He explained that he was building his life so that he could spend time with her. He was happy that he had a job, and that he felt wanted, which made him “feel good”. He said, "Life is brighter”.
105.
The father was an impressive witness.
The Mother
106.
In reviewing the evidence to the time of adjustment, I have regard to the trial affidavits of the mother filed 4 November 2006 and 12 April 2006 together with her oral evidence before me. The advantage I had as the trial Judge was of inestimable advantage observing her demeanour both in the body of the court and in the witness box, including the tone of her voice in responding to the direct and well researched questions put by Ms Dellidis. With her failure to listen carefully and then respond to the questions, the mother was given to over-talking, evasiveness and a persistent inability to focus on the issues put to her. She would seek to argue her case, at times in a carping and disputatious manner, wrangling with Ms Dellidis, leading to imbroglio.
107.
On a number of occasions I was obliged to censure the mother, but in the result at times to no avail, as she stubbornly sought to emphasise (a verb which I carefully use) her own point. She was at times rather disrespectful and would mutter commentary to herself which was quite audible to me. She was directorial and, frankly, exhausting. All of this went far and beyond courtroom nervousness and feelings of unfamiliarity, but demonstrative of a general overbearing and mulish personality.
108.
When I add together these observations with her then intractable view that the father had sexually abused his daughter when aged about four years, it is little wonder to me that she is in reality a parent who could not individually promote the value and worth of the father to her daughter. She is a strong-willed individual who doubtless had impressed upon the child her entrenched position, and in my view, would be unbridled in that presentation.
109.
There was much about her evidence which buttressed my assessment that she was unreliable, particularly in situations where valid issues were inconsistent with her own view. It seems to me that she was quite open in saying that which best suited her situation, indeed her cause, irregardless of whether it was accurate or not. She moulded evidence to best suit her case. Overall I feel a marked reluctance to accept her evidence on central issues unless corroborated by independent third party witnesses or documents.
110.
The cross‑examination by Ms Dellidis was complex in that it traversed many different factual episodes generated through documents, reports and affidavits before me, and it will serve no good purpose to record this in detail. I was left with the clear impression that her evidence on central issues failed to withstand the test of scrutiny.
111.
The progress of cross‑examination in the second day was, without putting too fine a gloss on it, quite dramatic, in that the further the evidence proceeded, the clearer became my view that the issue of sexual abuse was not made out, nor there being an unacceptable risk to the child of abuse. The mother's evidence at times was most concerning, as it became plain that she had embarked upon a course, then unshakeable in her belief, that the father had sexually abused his daughter. The evidence revealed that between late August 2003 and December 2003 she was unforgiving and utterly resolute in the pursuit of her mission.
112.
It was after the luncheon break that the proceedings were stood down again to discuss resolution, and Minutes of Consent Orders were provided to me on 12 February 2007. In order to fully understand the events leading up to the resolution, I propose to survey the cross‑examination of the mother by Ms Dellidis. Should the matter ever return to court for whatever reason, my successor in title would thus have a detailed analysis of the evidence and better able to understand the adjustment.
113.
After some preamble, Ms Dellidis referred the mother's attention to the fact that she spoke to a worker from the Department of Human Services on 31 January 2003 (Exhibit “ICL2” at page 42). The mother said that she was "extraordinarily surprised" at the call from the Department of Human Services and that she did her best to explain her side of the story. She acknowledged that she told the worker she “trusted” the father with the child. However, on 1 August 2003, shortly after the interview with the worker from the Department, the mother refused to make the child available for contact. The reason for that is pitifully obvious. She acknowledged that she issued an Intervention Order Summons, which appears to have been filed on 15 August 2003 and came on for hearing on 22 August 2003.
114.
She was referred to Annexure “EL3” to the father's affidavit filed 18 April 2006, conceding that during the course of her evidence under oath before that tribunal she made allegations that she was the recipient of harassing and disruptive telephone calls. She conceded that she admitted the frequency “was not great”, and significantly in my view admitted that she made a further allegation under oath that she suspected the father had molested the child. On 24 August 2003 the mother refused to make the child available for contact purposes (see the father's Contravention Application filed 2 October 2003).
115.
On 26 August 2003 her solicitor, Mr Maplestone, wrote to the father, advising that the mother proposed to travel to Queensland. The mother agreed that the contents put forward in that letter were upon her instructions. See Exhibit “F1”. The father refused permission which was, given the circumstances then prevailing, not an unreasonable position to take. The mother conceded that on 3 and 5 September 2003 the father had contact with the child, but that contact did not take place on 7 and 10 September 2003. It was on 3 September 2003 that the first alleged disclosure was made by the child. It appears that the disclosure was made in the morning and that the father, notwithstanding, had contact in the afternoon. That in my view was an important fact to be taken into account when considering this alleged disclosure.
116.
Ms Dellidis directed the mother's attention to Exhibit “ICL2” (page 7 of the Department of Human Services' files), recording that on 10 September 2003 notification was received by them in relation to concerns that the child "was being sexually abused" by her father. It is there stated that concerns were raised that the child disclosed to her mother that "daddy had touched her somewhere" and "he has done it twice", stating that it was on her "pussy cat". Thus it was that the mother took one week in order to make the notification to the Department of Human Services and then travelled to Queensland on a holiday. That too is an important factor for consideration.
117.
The mother's evidence at first was to suggest that the disclosure did not occur in the morning, but after cross‑examination, was demonstrated to be in error and accepted that it did allegedly take place at that time as the father collected the child from child care on the Wednesday.
118.
The mother was then referred to Exhibit “ICL2” (at page 35) dealing with the General Case Note dated 22 September 2003, timed at 6 pm. The mother said she gave an account to the Department of Human Services of what the child had told her, and her concerns about the father and parenting risks. The mother acknowledged there was no disclosure made by the child on 22 September 2003, rationalising this on the basis that the child "had no idea what they were asking her" at the interview. She explained that the child did not understand "what they were on about" as she was too young. The mother was already exhibiting an attitude of non‑acceptance of independent investigation, relying upon her own fixated ideation.
119.
The mother was referred to the fact that the child made disclosures about “Uncle [D]”, (page 36 Exhibit “ICL2”) and explained that she did "not feel it was necessary to investigate that". When asked why, she said that she observed interaction between them which was of a playful nature. That too was a significant indicator of her uni-directional belief as to responsibility on the part of the father. I was somewhat concerned by that allegation and her resultant attitude. There was otherwise evidence that the father had an interaction with his daughter of a “playful” nature.
120.
In relation to her time in Queensland, the mother acknowledged that she did not tell the father that she had spoken to the Department. She acknowledged that she sent a postcard (Annexure “EL2” to the affidavit of father filed 2 October 2003) with no intimation of her course of action. When asked why, the mother said, "Of course not" explaining that, "Why would I notify the father before any investigation began?" and also asserted, "Wouldn't that be warning him?". She claimed that, so far as she was concerned, the father was under scrutiny and if he was warned of what she had done that the father would "commence preparations against that". I found that to be significant as to attitude, as I did the terms of the postcard which was as follows:
“Dear [husband],
We are having a fabulous time! [The child] is loving the beach and climate very much not at all humid this time of the year. We went to the beach and then to Seaworld on a cloud day she loved the dolphin show! Sea lion show and SOS 4D interactive. We ate also delicious seafood dinners and those nights. See you soon. Lots of Love.
[Mother] and [child].”
[The card is accompanied with six crosses and six capital zeros, indicating kisses and hugs.]
121.
In relation to the meeting with the Department on 22 September 2003 and the fact that the child had made no disclosures, the mother said that she did not feel relieved that the child made no disclosures and that her emotions were, "Let's see what happens from here”. Her desire to unearth evidence, regardless of independent investigation, was dominant.
122.
On 23 September 2003 the father sent an email to the mother at 4.45 pm, in which he said:
“I've not seen my daughter for a long time and I've not been able to reach you on either of your phones - home or mobile. I am going to proceed with Recovery Order, that means the Federal Police will bring [the child] from anywhere.”
123.
The mother acknowledged that on the following day she responded with an email asserting, “We have just returned. We went to a conference in Brisbane. I will contact you on Friday re discuss access arrangements”. The plain fact of the matter is that they had returned five days earlier and the mother had seen the Department of Human Services on 22 September 2003. In my view her response was plainly misleading, but consistent with what I regard as a disingenuous attitude.
124.
The mother was then referred to Exhibit “ICL2” (page 17) and the entry:
“On 26 September 2003, mother, […] stated that [the child] disclosed to her whilst having a bath. [The mother] stated that [the child] did not want to be picked up from day care by her dad […]. When [the mother] asked why, [the child] allegedly stated, ‘Because he puts his finger somewhere’. [The mother] stated that she asked, where and allegedly [the child] pointed to her bottom.”
125.
In her evidence the mother said that she did not advise the Department that the child had made a disclosure whilst having a bath, nor that she did not want to be picked up from day care. She said that the child told her that her father put his fingers in her bottom, and that she pointed to the "separation of her bottom". She conceded that no contact took place on both 24 and 26 September 2003, acknowledging there had been no contact that time for a couple of weeks.
126.
Ms Dellidis then referred the mother to paragraph 19 of her affidavit filed 4 November 2004 and her deposition that, "When we returned, the applicant was due to have [the child] on 24 September 2003, although he did not contact me”. It was put to the mother that her oath was a false one, given that the father had sent an email on 24 September 2003. At that point of time the mother, I observed, erupted into a somewhat angry disposition, asserting in relation to the father's reference to a Recovery Order, "What sort of nonsense is that?" It appeared to me that the mother's attitude to an individual's right to due process of the law in the pursuit of legal rights was risible. When I sought clarification and asked what she meant by her comment, she said that, he should have “acted rationally'” and “called me”. She asserted that the father's attitude to the situation, namely his reference to a Recovery Order, “was a little bit unrealistic”. This was typical of her evidence, where she sought to justify her own actions at inappropriate times, made assertions that best suited her course and at times, when I reflect upon the whole of her evidence, made things up as she went along.
127.
The mother agreed that she made a complaint to the police that the father should be charged. That too is significant, albeit that it comes as no surprise. She agreed that when making a complaint there was a requirement to be accurate. At that point, in seeking clarification from her, I asked that if I found sexual abuse had not occurred, what would be her reaction to that. She said, "As I cannot prove it happened, you could not definitely prove it had not”. The mother went on to say that she “carried no doubts” that she believed that what the child had said was correct. She said that the child suffered anxiety that was directly related to sexual abuse, and claimed that “her traumatic behaviour” was part of that, emphasising, "and nothing else".
128.
Ms Dellidis directed the mother's attention to her police statement made 24 December 2003, following the alleged disclosure made by the child that month and about which I will have more to say later in this judgment. The mother emphasised that following that disclosure, "I all the more believed what I suspected was true”.
129.
Dealing with the mother's concession that any statement made to the police must necessarily be accurate, she was referred to her own statement of 24 December 2003 which was made at 5.54 pm, in which, acknowledging the statement was “true and correct and made in the belief that a person making a false statement was liable to penalties of perjury”, she said that on 26 September 2003 she picked the child up from her father's house in E.
130.
It was put to her that no contact took place that day. With this she ultimately agreed. When asked why she had made a serious assertion in a circumstance that was plainly wrong, she retorted, "The government departments don't record things accurately”. There seemed to me to be a common theme emerging from her evidence in relation to recorded events in the Department of Human Services files that any record of what she had said and with which she disagreed for the purposes of the hearing before me, she forcefully disputed. For example, in relation to that mistake, which I regard as quite a serious matter, she said it was "only arbitrarily wrong".
131.
The mother agreed that as a result of her complaint on 26 September 2003 the child was interviewed at the Police Station by the Department of Human Services and SOCAU on 8 October 2003. It was accepted that there was also an interview of the child by them on 22 September 2003 at the mother’s home. Further, on 24 December 2003, the child was again interviewed by SOCAU at the O police station.
132.
On 8 October 2003 the General Case Note in Exhibit “ICL2” records:
“Worker advised [the mother] that DHS would not support her in denying father access to [the child], as no disclosure was made. [The mother] said she was very concerned as [the child] does not want to see her father and therefore will not allow her father to have access. [The mother] made it clear that she has to be the protective parent for [the child] and if that meant breaching the court ordered contact she was willing to do that.”
133.
The mother conceded that the Department said that they would not support her, as no disclosure had been made. I regard this evidence as significant. The General Case Note also recorded:
“[The mother] said she wants [the child] to have a forensic medical examination. Worker advised [the mother] that DHS will not be able to make the referral, and she will have to organise that through [Sexual Assault Centre] herself.”
134.
In her evidence before me, the mother denied that she said she wanted the child to have a forensic medical examination, but as events subsequently transpired, this is precisely what she did. I do not accept her denial.
135.
In the course of her evidence the mother said that she took the matter up with her doctor and had the child "examined after she complained about her bottom". This, as the chronology reveals, was approximately one month later. The mother then revealed for the first time that in October 2003 she took the child to see Dr J of the T Medical Centre. She was present during the examination, and that the child was present with her during her discussion with Dr J. She said that when Dr J asked what her concerns were, she told him that she was primarily concerned with the child’s “emotional state”, her “soiling”, her “emotional outbursts”, and that she was concerned with her “psychological state”. She explained that the child did not want to see her father and that, "She told me that her father did something to her."
136.
I observed the mother carefully in the giving of that evidence. She was remarkably coy about this conversation allegedly held with Dr J for, in my view, she then realised she had earlier stated that the child was present and that it would be highly inappropriate to discuss such a sensitive issue with Dr J in the presence of the child. That conduct does not however surprise me. The mother went on to say that she informed Dr J that the child’s "anal region was required to be examined". She then said, "I think" he examined her and went on to say that he did in fact examine her. She said Dr J examined her "bottom" but no instruments were used, save for a "magnifier". The mother went on to explain that she understood Dr J observed "areas inflamed" and that "the skin appeared a bit loose around the anus". She said she was informed by Dr J that she could not be certain "about what it might be", asserting it was outside his area of expertise and that she should seek further examination at a hospital, with counselling for the child on other issues. Of real concern to me is that none of this material appears in the affidavits of the mother, nor in the disclosures made by her to any worker at the Department of Human Services or the sexual offences child abuse unit. This I find to be significant.
137.
Then, and for the first time, the mother revealed that the child was further examined at the University. The examination was conducted at the E Centre Against Sexual Abuse unit by a paediatrician. It was her recollection this procedure was carried out in late October or early November 2003 and that she attended the centre alone with the child. She said that she was interviewed alone by a worker and that the child was supervised outside the room at the time. When asked how she explained this process to the child, about taking her to the hospital, she, somewhat glibly in my view, replied, "You're going to see a doctor," and "that's it". It seemed to me she was quite flippant about the event.
138.
The mother gave evidence that she informed the worker at the E Centre Against Sexual Abuse (at the University) what she had said earlier in a previous statement, this time asserting she said it concerned "[the child’s] emotional state" and that the father "put his finger in her bottom". She told them that she observed that the child's "bottom was inflamed". As to the latter aspect, it was conceded by her that she had not mentioned that fact to Mr F, to Ms W, or made the assertion in any of her affidavits. This in my view is just another example of saying that which best suited her cause.
139.
The mother said she recalled that her solicitor discouraged her from taking the child to the E Centre, but notwithstanding, she did so anyway. When asked why, she said, "To see if [the child] was intact”. She agreed that she did this contrary to the advice of her solicitors.
140.
In the course of her evidence the mother disclosed that the child was undressed for the examination and that the medical practitioner used "microscopic instruments" to examine the child’s vagina and anus, which included “penetration”. She informed her solicitor about this event, who inquired of her “if anything had come of it”. Nothing had. It was the mother's evidence that she did not think the child would have found the process “terrifying”, and went on to say that she had been examined before, "but not to that extent".
141.
When asked by Ms Dellidis, the mother conceded that she failed to disclose in her affidavit material or to the Department of Human Services or other collateral associations that she had undertaken this course of action. She admitted that nothing was revealed, despite the examination, and went on to gratuitously add, "[The child's] name has been on the [Centre’s] waiting list for years for protective counselling”. The mother said that her main concern was the child’s emotional state. I do not accept that evidence. In my view it is plain that her main concern was to endeavour to elicit some support for her belief that the child had been sexually abused.
142.
The mother's attention was then directed to her consultations with Mr F. She said that the child first saw him on 7 November 2003 which, according to her evidence, must have occurred after she had taken the child to the University for investigation and report. The mother denied that her motivation to see Mr F was not "spurred on" by reason of the child’s emotional state, but rather to buttress her belief that the child had been sexually abused.
143.
I do not, by any measure, accept that denial. When one adds all the separate facts together, it is clear that the mother was focused with an unwavering desire to prove that which she believed. Her conduct, in my view, was irrational and was maintained by her without proper regard to the child’s best interests.
144.
The mother constantly sought to argue her own case. For example, she denied that the interview with the police would have caused the child anxiety, and gratuitously added that the child was "not happy though when she had to see her father". To equate by comparison her interview with the police with seeing her father is shameful and utterly without insight. In making such a comment I need only recall the contents of the E reports.
145.
When put by Ms Dellidis, the mother conceded that between 5 September 2003 and 5 November 2003, some two months, the child only had contact with her father on one occasion. This was on 27 October 2003. What is clear is that during that time frame the child had been examined by Dr J, by the paediatrician at the University Medical Unit, and also interviewed by police and workers at the Department of Human Services.
146.
It was put that all those factors would have caused anxiety to the child, to which the mother replied, "I say none of those things contributed to her anxiety”. That answer was, in my view both slick and implausible.
147.
Ms Dellidis addressed the mother's attention to paragraph 22 of her affidavit filed 4 November 2004 and her evidence that since the disclosure on 3 September 2003 the child “began wetting/soiling her pants for the first time in two years, at least once a day". The mother said this commenced in early September 2003 and that at the time of the first disclosure on 3 September 2003 she would wet herself before going to contact and upon returning home. She went on to add that she had first observed that this occurred in August 2003, but that from 3 September 2003 "it occurred every day".
148.
Her evidence grew with the telling. The mother said it increased in the amount of times before contact to "several times" a day. This went on for months, she said, in circumstances where it had not happened prior to 1 September 2003. She emphasised that it became ”worse” with contact. This hardly sat comfortably with the postcard the mother forwarded from Queensland to the father on behalf of herself and the child. The mother conceded that she relayed none of this to the Department of Human Services. To that extent, in developing this line of evidence, she said that she informed Dr J about the “daily soiling” when she first saw him in October 2003 and which was, somewhat remarkable in the circumstances, being the first time she sought medical attention for that problem. When asked why she had not sought medical attention earlier, she simply responded, superficially in my view, that "children have accidents".
149.
Ms Dellidis put to the mother that the Department of Human Services closed their first investigation on 16 October 2003, it having commenced on 3 September 2003 (see Exhibit “ICL2” at page 28). It is there noted, as part of their reasons for closure, "Child care centre had no concerns and case closed." The mother denied that the child care centre had no concerns and when asked to comment upon how it came about that such a recording appeared in the Department files, she flippantly responded, "Could be a fly on the wall”.
150.
The mother said that the child attended child care three days per week between 9 am and 4 pm. She was attending different child care facilities during 2003, being a family day care centre, a creche and a pre-school. She attended M Day Care three days a week and at other times attended the family day care centre. This was during the second half of 2003.
151.
The mother said that by 8 October 2003, when the child was interviewed by the Department of Human Services, she was personally convinced that the symptoms displayed by the child were as a result of sexual abuse perpetrated by the father. However, she said that she was not personally upset or disappointed at the fact that no disclosures had been made to the Department or that they did not support her in the father not seeing the child. I reject that denial and for the most obvious of reasons.
152.
She claimed that she was only "confused". It was in those circumstances, she said, that she took the child to be examined by Dr J and the University Centre. She was searching for evidence that the child was abused.
153.
Ms Dellidis next addressed the mother's attention to page 2 of her police statement made on 24 December 2003 where she asserted that through the Victim's Referral and Assistance Service (VRAS) and her local general practitioner, she began taking the child to see Mr F. Chronologically, this was after she had conferred with Dr J. She said that Mr F telephoned VRAS on her behalf “for funding purposes”, as a result of which she received free counselling for some eight sessions. She said she filled out an application form with Mr F which described the child as the “victim”. It was her belief that at the time she made the application the child was a victim of sexual abuse by the father. After the eight funded visits, she offered to pay Mr F for further consultation, but he then applied for extended funding which resulted in a further eight free visits. I regard her use of Mr F primarily to elicit evidence of sexual abuse.
154.
Ms Dellidis asked the mother whether she informed Mr F of her belief that the child was the victim of sexual abuse at the hands of the father. I observed the mother to take a considerable time before answering that question. She appeared quite evasive in my view, and then said "not for certain yet". She reiterated that she was more concerned about the child's behaviour at the time. Although the application form for funding was never tendered, it is difficult to rationalise this with her earlier evidence whereby she described the child as "the victim".
155.
The mother said that she was not satisfied with the conduct of the interview by the Department on 8 October 2003, asserting "they left a lot to be desired" and that "they do not cater for a child of that age". It was her view that the Department personnel were not able to communicate effectively “with a child of that age”. Overall, I formed the clear impression that she was very upset at the fact that no disclosure was made.
156.
It seemed to me that the mother was quite coy about the disclosure that she had consulted with Dr J and taken the child to the University Medical Centre. When asked whether she informed Mr F about those interviews, she hesitated and said, "Yes, not when I first saw him, it was later on”. She admitted she did not inform the Department during the course of their involvement that she had taken the child for a physical examination. When asked why this was so, she said, "because nothing came of it" and that she believed the Department “would ignore” it. She complained that, “everyone acted like it was not important," and baldly asserted that, as there was no finding, "it was not relevant".
157.
The evidence of the mother was very difficult to follow in terms of logic. She said that when she took the child to the University Centre she informed them that the child’s bottom was inflamed and that “the father put his finger in (the child's) bottom”. She then went on to say she did not actually inform them of her belief that the child had been sexually abused. It was put to her that she personally was an “emotionally abusing parent” by subjecting the child to such interviews and examinations, which she denied. It is plain to understand her bland denial, but it is also plain to me that her conduct lacked insight because she was obsessive in her drive to demonstrate her belief as correct and in so doing, in my view, acted contrary to the child's best interests. There was a clear alternative pathway which she did not take.
158.
Ms Dellidis addressed the mother's attention to the fact that the father's Contravention Application filed on 20 October 2003 and returnable 3 November 2003 was adjourned by consent to 10 December 2003. The father then had contact with the child on 5, 7 and 11 November 2003. The contact that took place on 5 November 2003 was unsupervised. She agreed it was the first time the child had seen her father for a long time. When asked how she personally felt about the fact that such contact was unsupervised, given the notifications, the various interviews and the two examinations, the mother said that she was “very concerned”, and spoke to Mr Maplestone. She said it was a stressful period. However, until 7 November 2003, she had no counselling for herself.
159.
I have no doubt that it was a stressful period for her, but she acted rudderless, on her own initiative rejecting any objective evidence inconsistent with her own fixated view.
160.
Ms Dellidis referred the mother to paragraph 8 of the father's affidavit filed 20 November 2003 where he deposed (and upon which he was not challenged) the following:
“8. That on Wednesday 5 November 2003 the mother attended at my place to pick [the child] up after contact. On her way out, after she picked up [the child], she told me in a threatening manner words to the effect, ‘If you touch [the child] again, you know what I will do’. I said, ‘What are you saying?’ The mother then said, ‘You heard me, if you touch [the child] again…’ and I said, ‘This is insulting and I will report the matter to my lawyer’. She said, ‘Report what you like’. I felt threatened, ashamed and embarrassed by the mother's conduct in the presence of the child.”
161.
The wife conceded that she said “something similar” to that, asserting that it was her recollection she said to the father, "I know what you did. Please don't do it again”. I do not accept her evidence, but rather prefer the evidence of the father and his version of the events that occurred that day. Further, I accept that the incident took place in the presence of the child. This the mother accepted, but in order to lessen the impact of the incident she said that the child "could not know what we were talking about".
162.
In my view, this is simply another incident of aberrant parenting on the part the mother and clearly suggestive that she says and does things in the child’s presence without regard to content. Whether directly or unconsciously so, I have no doubt that she involves and has involved the child in these proceedings in one way or another.
163.
Ms Dellidis then referred the mother to paragraph 9 of the father's affidavit filed 20 November 2003, where he deposed:
“That on Friday 7 November 2003 the mother arrived at 5.40 pm to pick [the child] up, when she is required by the court Order to pick [the child] up after 7:00pm. I told the mother to come back at 7:00 pm and she refused and started verbally abusing me and calling me a loser in the presence of the child. My landlady and her husband were also present on this occasion. I felt embarrassed and ashamed as a result of the mother's behaviour. I told the mother that I would report the matter to my lawyer and she told me, ‘I don't care’."
164.
The mother accepted that contact at that time was between 4 pm and 7 pm. At first she said that she arrived one and a half hours late, not earlier for the collection, as deposed. She said it was about 5.30 pm and was late because the child had attended her first visit with Mr F. She was a little uncertain then as to when that contact occurred. Ultimately she said that she saw Mr F with the child well prior to the contact, and that Mr F did not recommend that the child not attend contact that day. This is a further reference to the mother's unrestrained conduct in the presence of the child, which could only have a negative impact upon her. I accept the father's evidence of that event.
165.
Ms Dellidis then addressed the mother's attention to paragraph 10 of the father's affidavit filed 20 November 2003, (accepting of course this was a contemporaneous document to the event) which reads as follows:
“10. On Sunday 9 November, 2003 I cycled to [C] to pick up my friend [Mr R’s] motor car and arrived at the mother's residence at about 9.10 am. I telephoned the mother to let her know that I was waiting outside. A few minutes later the mother came out with [the child] onto the balcony of their residence and the mother told me she was dressing [the child] up. She then told me that [the child] didn't want to go and later she told me that [the child] was sick. The mother failed to deliver the child to me for contact on this occasion and I returned home.”
166.
In cross‑examination, the mother said that she believed the child was unwell that day but did not remember what was wrong with her. She then positively asserted that the child was “not feeling well”. Later she asserted, "I remember now she was sick that day”. In my view that was another example of how she moulded the evidence to best suit her thesis.
167.
It was put to her that she denied the father contact to the child in order to eliminate the father from the child's life. Her response was, "Not necessarily”. I accept the father's version of these events and regard that as another example of simply taking the law into her own hands, and without a reasonable basis refusing to permit the father to see the child. If there was a basis for her to so act, it should have been brought to the attention of and determined by the court.
168.
Ms Dellidis put to the mother that she enrolled the child at L School on 7 November 2003. She was to commence her schooling there in 2005. When it was first put to her that she did not acknowledge the existence of the father or provide information about him or a means for the school to involve him in the child's school life, she said, "I do not agree”. That transpired to be incorrect.
169.
The mother was then shown the form of enrolment signed by her (Exhibit “F2”). At this point the mother began to forcefully over-talk Ms Dellidis, and it was not possible for me to restrain her. She was seeking to argue her case, and the proceedings were promptly stood down in order to enable Ms Agresta to speak to her client and warn her to conduct herself appropriately in the giving of her evidence.
170.
Upon her return to court, the mother said that she did not include the father's details because she did not know where he lived. However, paragraph (3)(b) of the orders of 20 May 2003 made it clear that she knew precisely where he lived. I do not accept her denial. A plain reading of the enrolment form shows the mother excluding any trace whatsoever of the father from involvement at the school. This was, in my view, consistent with her irresponsible parental attitude.
171.
The mother's actions during this period of time, which I have set out thus far, continued in a rather unrelenting fashion. On 14 November 2003 she took out a complaint and summons for an intervention order against the father, her complaint being (the Aggrieved Family Member being the child):
“The complainant and the defendant were in a de facto relationship for 3½ years, ending in April 2002. The defendant has had access with the aggrieved family member (AFM) on Wednesdays, Fridays and Sundays. In August the AFM disclosed to the Complainant that she had been touched by the Defendant on two occasions, indicating where she was touched. When the Complainant asked her why she did not wish to go to access DHS were involved. Approx two weeks later the AFM further disclosed that [the father] had put his finger up my bottom. The Defendant has also approached the AFM at her kindergarten on non‑access days. The AFM is behaving very emotionally distressed and unstable and is having counselling. The Complainant is concerned for the child's health, emotional state and development if she is subjected to further abuse. The last disclosed incident occurred at access on Sunday (9.11.2003).”
172.
In reference to the word "abuse" in the Statement of Complaint, the mother said that she meant both sexual and emotional abuse and the last incident, as stated in her Complaint and Summons, which occurred on Sunday, 9 November 2003. That was plainly wrong, as she conceded in cross‑examination that, no contact took place that day. Her reaction to that was simply to assert, "I made a mistake”. As a result of her ex parte appearance, an order was made in the terms of Annexure 6 to the father's affidavit. She agreed that no notice was given to the father of her actions. There is much in that document that is in my view reckless and misleading.
173.
Further, it was put to her that only a few days later, namely on 19 November 2003, she brought another Complaint and Summons for an Intervention Order, putting herself forward as the Aggrieved Family Member, asserting in her Statement of Complaint the following:
“The Defendant and I are former de facto partners and we have a 4 year old daughter together. On Sunday the 15th November the child refused to go to access with the father & she was unwell. The father insisted that I deliver her regardless to the front gate. He was abusive to me and my family. I have concerns about sexual abuse violation and molestation of my daughter. There have been three incidents of violation disclosed to me by the child.”
174.
It is arguable that her recourse to this sort of process in the whole of the circumstances, the matter being before the court in any event can be said to be an abuse of process. Her Statement of Complaint by no means faithfully reveals the factual reality. I regard this document, frankly, as dangerous.
175.
As the chronology of events disclosed, it was on 20 November 2003 that the father filed his Form 3 Application for make-up contact, a Recovery Order, and a further Contravention Application to which I have earlier referred. As I said, there were six breaches complained of. The mother was unable to say whether or not, as at or about that time, the child's pre-school were aware that the child had allegedly been sexually abused by her father. She said that she only mentioned to them that, "We are going to court”. Later she said that she “possibly” informed them.
176.
Given the contents of Exhibit “ICL2”, particularly at page 28, I am satisfied that the pre-school were aware of the allegations and that they, in the result, and following investigation, had no concerns. The Department did not take action in relation to any notification on 20 November 2003.
177.
The mother agreed that on 10 December 2003 (being the date about which there is some confusion) consent orders were made and the father withdrew his Contravention Applications. Contact orders were made in the terms that I have earlier described.
178.
That contact was to be unsupervised. When asked how she felt about that, the mother said, "I felt I had no alternative”, and later, "What else could I have done?". In relation to the father's withdrawal of his Contravention Applications,, she brushed that aside, asserting such applications were "worthless" and that she "would not want to waste my time on that". In my view the mother disingenuously induced the father into taking this course in respect to the orders of this court. On the other hand I find that the father acted in good faith.
179.
The mother also went on to say that the father was on notice and that, "My hope is that the father could restrain himself until such time as we got suspension of contact”.
180.
In relation to the husband “restraining” himself, although at first she vacillated, the mother finally agreed that she meant from "touching" the child. It was put to her that she in fact hoped through Mr F that the child would make disclosures upon which she could act. She said, "Not necessarily so”. I have no doubt that this was her motive and part of her drive to prove her point.
181.
The mother agreed contact was exercised on 14 December 2003. It was put to her that on the following day, “late at night”, she telephoned Mr F and had the child speak to him. When asked why she did this, she said it was her belief that Mr F had told her to telephone him to tell him about, in effect, what was happening at court.
182.
When asked why she put the child on the telephone, she unconvincingly replied, "Because [the child] likes talking to him”. The mother claimed that she asked the child whether she would like to speak to Mr F, bearing in mind that contact was next due to occur on 17 December 2003. She explained that the child "felt" contact was coming up and had already commenced wetting and soiling herself. The mother said that the child "knew when contact was happening".
183.
The mother was then referred to Mr F’s report of 18 December 2003 (page 3), where he reported:
“[The mother] reported that later that night she had asked [the child] what had upset her so much. [The child] was reported to have said words like, ‘[the father] touched me more around the bottom again’. [The child], presumably with the assistance of her mother who was heard in the background, made a late evening call 15/12/2003 to the telephone number of the author. During this call [the child] stated, ‘[The father] did it again,’ and was audibly upset. [The mother] was concerned about the behaviour of [the child] and was seeking assistance about what to do.”
184.
The impression gained from Mr F’s report is quite different from the circumstances explained by the mother. I do not accept her bald narrative, and more likely than not, as a result of her prompting, that which is set out above is correct. In my view the mother would be unbridled in the pursuit of her view.
185.
Ms Dellidis then directed the mother to the father's contact that occurred on 17 December 2003, and what the father had to say about it in his evidence. The father did have contact. The mother agreed that she said, "Alright, you started the war, someone's got to finish it”, that she made a remark about sexual abuse and did not dispute that the father said, "what are you talking about?" She denied that she winked, and said that she informed the father, "I know what you did, and don't do it again”. I have no hesitation in accepting the father's version of the events which I have already outlined.
186.
It was put by Ms Dellidis to the mother that she "warned" the child about the contact visits, to which she emphatically replied, "Never, never”. She was then referred to the report of Dr R annexed to his affidavit filed 4 January 2007 (page 13), where he said:
“In the past she had forewarned [the child] about the contact visits several days before. This seemed to cause behavioural and emotional disturbance at school prior to contact. Following the advice of a psychologist, [the mother] changed her management of the contact visits only by telling [the child] on the day. The psychologist also gave advice about managing [the child’s] anxiety, in particular by allowing [the child] to have something of [the mother’s] to hold while she was away from her.”
187.
The mother's explanation for that, glibly I might say, was that she was warned by Mr F to prepare [the child] for contact purposes. In my view the mother's evidence and denial earlier referred to by me is incorrect, indeed false.
188.
The mother said that by 24 December 2003 she had eight sessions with Mr F and that the child had been present with her during all of those sessions. It was her evidence that the first four sessions were “to gain a rapport” with the child, so that she would become relaxed.
189.
The mother agreed that on 19 December 2003 no contact occurred, because she had an appointment with Mr F. After that the father had no contact, as on 24 December 2003 the child allegedly made disclosures to Mr F. She was referred to his report of 2 January 2004 where he said:
“Further to my communication of 18th December 2003, additional information has come to light concerning the case. At interview on 24th December 2003 [the child] stated that [the father] had put his finger in her bottom. It is important to note that this statement occurred in the following context and is not the preferred way of acquiring such information.
When asked a direct question, ‘Did [the father] put his finger in your bottom?’ [The child] responded with, ‘Yes’. When asked, ‘In what room in the flat did this happen?’ [The child] responded, ‘In the bathroom’.
Over a number of visits with [the child], and with her mother present, [the child] had not revealed precisely what ‘it’ was that [the father] had done. Using play and other techniques, [the child] had not been forthcoming in stating what had happened. To help clarify the issue, more direct questions were asked. This resulted in the statement by [the child] as noted above. The Department of Human Services Child Protection Unit was notified on 24th December 2003.”
190.
The mother said that she was present at that time, gratuitously adding that, “[The child] wet herself too”. That fact is not in the notes of Mr F. Prior to 24 December 2004, the wife denied that she had expressed to Mr F her dissatisfaction with the performance of the Department of Human Services and the E Centre Against Sexual Abuse style of interviews. I accept the concessions made by Mr F and I can safely find that any response by the child would have been influenced by the mother. The so‑called disclosures are in my view most suspect and unreliable, given the whole of the circumstances surrounding this important issue.
191.
Ms Dellidis directed the mother's attention to paragraph 6 of her affidavit filed on 2 February 2004, in which she deposed:
“I am aware that on 17 and 19 December 2003 [the child] stated to her psychologist [Mr F] that the respondent had put his finger in her bottom.”
192.
It was put by Ms Dellidis that her deposition was plainly wrong, as no disclosure had been made to Mr F by the child on either 17 or 19 December 2003. With this the mother agreed, wiping it aside asserting, “It's just a matter of semantics”. I found this response disturbing in its failure to understand the gravity of the situation and the requirements for basic accuracy.
193.
The mother said that all previous interviews, the eight of them with Mr F, led to "a conclusion" on 24 December 2003. When I sought clarification from her, she explained that she meant “a conclusion” that there had been sexual abuse. In relation to that disclosure, the mother said, "I was just happy to see [the child] getting help and to see that the link was there”. No doubt that would be so, if any alleged disclosure had not been so tainted by her influence and conduct.
194.
Ms Dellidis referred the mother to the interview at the police station on 24 December 2003. Present at the interview was the mother and, amongst others, her brother. In relation to that interview the mother said that she did not "think [the child] would be anxious", for it was similar to "just going for a drive". She denied that her brother and herself were removed because of interjections by her. At that point Ms Dellidis put to her the following extract of the First Visit Case Note on the Department files:
“Mother appeared very anxious about the interview, and while she was present in interview with child and police officers, it was necessary for police members to suspend the interview of [the child], as mother was interjecting inappropriately at the interview. Police commenced the interview again with [the child], although without the mother.”
195.
In my view, particularly given the mother's lack of credibility, I regard her evidence of the denial as false.
196.
The mother agreed that she did “cry” when she learned that the child had made a disclosure. She said that her reaction was because of “the emotion” that the disclosure of the child “was factual” in that the child said it herself without pointing, physically to her body.
197.
It was put by Ms Dellidis that the disclosure by the child must have related to an incident that occurred prior to 3 September 2003. This she denied, brushing aside the question as "all fluff". When challenged as to her belief when the incidents occurred, she began by saying "It happened at least, every …maybe" and then went on to say "at least once a month" and then to allege "three or four episodes". It was her evidence that every time the child made the disclosure it related to a “fresh incident” and that the sexual abuse happened “several times” between that period, namely when she was having irregular contact with the father which was between 3 September and 24 December 2003.
198.
Ms Dellidis put to her that between 24 December 2003 and the first contact at G on 19 November 2004 the father only had contact with the child on two occasions, being on 6 February and 20 February 2004. Both were supervised. When I sought clarification as to her present state of mind, she said that it was her belief if the father had any contact on a unsupervised basis he would "do it again after a time". That, in my view, is how she felt in the giving of her evidence before me, and which has now all changed. That may well be a concern, but I hope not in the future. Only time will tell.
199.
The mother demonstrated herself to be a sceptic. When asked whether she could draw any comfort from the four reports of Ms W, the Family Consultant, she said that Ms W "can't be certain" about her views that the child is not at risk with the father. She plainly asserted that Ms W was biased "from the outset". Further, she said that she drew no comfort from the report of Dr R, as he did not undertake a psychiatric assessment. Nor could she draw comfort from the report of Dr K because his “arena” had nothing to do with sexual abuse. On the other hand the mother said she could not say “unequivocally” that the father had sexually abused the child. When questioned further about this, she said "I am dubious” about whether or not there is a risk that the father would sexual abuse the child.
200.
Ms Dellidis then put to her an extract from the report of Dr R, where he said (page 14):
“I asked [the mother] her understanding of the situation with [the child]. She indicated a clear and strong belief that [the child] had been sexually abused by her father. She expressed a strong belief that [the child] was at ongoing risk of sexual abuse by her father. She believed that [the child] needed to be protected and should not see her father unsupervised. In discussing her conviction that [the child] had been sexually abused by her father, [the mother] used language such as “[she was] certain, never been more certain” and “[I am] absolutely clear [about the sexual abuse there is] nothing I could be more sure of.”
201.
The mother denied she said that to Dr R, which I do not accept. She went on to say, when challenged by Ms Dellidis, that she still felt the same way now as she did then. The difference is, that at present there is, to use her words, "a modicum of doubt". At this point of time, I found her evidence on this issue to be quite risible.
202.
The mother agreed that by 14 January 2004 the police had decided not to pursue any prosecution following the disclosure of 24 December 2003. She agreed that the police attended at the husband's residential unit, confiscated the computer, analysed the hard drive and found nothing on it of any consequence. Her response to that was, "I think he changed the computer”. In relation to that, she agreed, quite reluctantly from my observations, that the father had no notice that the child had been interviewed by the police nor of her disclosure of 24 December 2003.
203.
It was on 24 December 2003 that the mother made her statement to the police, to which I have earlier referred. She said that the child was interviewed at her home on 21 January 2004 by the Department of Human Services in her presence. The father's contact in the meantime had ceased.
204.
Ms Dellidis then referred the mother to the contact summary referred to in the General Case Note of the Department of Human Services (at page 19) and in particular the following:
“Mother, […] interrupted the interview on at least two occasions. Mother stated that [the child] has been telling all her family about the abuse and [the mother] is happy that she is finally telling professionals the truth about the abuse.”
205.
When asked whether that was correct, her response was, "That's what they observed." I accept the record as accurate. It corroborates her intense ungoverned desire to impose on others her intractable views.
206.
The mother said that she had never been present when the child made her alleged disclosure of sexual abuse to her brother. She said that on one occasion when with her mother, the child came in and “just said” that, "I believe he did it again”. That, as a stand-alone statement, is utterly non-credible in the whole of the circumstances and for obvious reasons. When asked when this occurred, she said, "I believe” towards the latter part of unsupervised contact after 3 September 2003 and before 24 December 2003. The mother just appeared to be making this up as she went along. For example, she said that her mother asked “where” the abuse took place, and that the child alleged said that her father put his finger in her bottom. At that stage she could not remember if they examined her bottom. She said that on “other occasions” they “looked at her bottom”, because she said “it hurt”. She said that on some occasions there was inflammation in the area, asserting it was “red”.
207.
Ms Dellidis asked the mother whether there had been any discussion between the maternal grandmother and herself regarding the issue of sexual abuse. She said that the mother was present when the child used the term "pussy cat". As the evidence revealed, this is alleged to have only been said on 3 September 2003. When challenged about that, the mother allegedly said to the maternal grandmother, "What do you think about that?" to which she replied, "Do you think it could possibly be something else?" She went on to assert that the conversation was fleeting and not in-depth. Given all that I have heard, if there was any suggestion that the child had been sexually abused, it is doubtless to me that the mother would have engaged in rabid dialogue on the issue.
208.
Further, as her mother was a witness to this alleged conversation, it was pointed out by Ms Dellidis that it did not appear in her affidavits, in any discussion with the Department of Human Services, the Sexual Offences Child Abuse Unit, or with the police. When asked why this was so, the mother responded, slickly in my view, "Because my affidavit would be 100 miles long”.
209.
In the affidavit of the maternal grandmother filed on 13 April 2006 the only direct reference by her is as follows:
“9. I overheard the conversation between [the mother] and [the child] on 3 September 2003 when [the child] said she did not want to go to day care. I recall during the conversation that [the child] told [the mother] that “[the father]” had been touching her and she did not like it. Later, after [the child] had spoken to the psychologist, [Mr F] told me that “[the father]” had put his finger in her bottom.”
There was no suggestion whatsoever in her affidavit that she has discussed the issue with the mother or examined the child's bottom.
210.
Ms Dellidis addressed the mother's attention to the first period of supervised contact by the father of the child, which occurred on 6 February 2004. In relation to that occasion, the father deposed in his affidavit filed on 27 July 2004, drawn in person, the following:
“6th February 2004. With the help of the DHS, I had contact visit with my daughter at DHS. The visit duration was 2 hours, but the mother cut it to 30 minutes because she remembered that she had an appointment. I brought Christmas gifts to [the child] and she opened them and played with them. [The child] indicated to the supervisor, ([Mrs H]) that she didn't want to go back with her mother. When [the child] told that her mother wanted to go, [the child] said, ‘Can I stay with you?’ Exact words.”
211.
The mother's response to that supervised contact period is set out in paragraph 11 of her affidavit filed on 16 August 2004, which is as follows:
“As to paragraph 10 thereof, I agree that I saw [the child] on 6th February 2004 at the Department of Human Services Office. [The child] became distressed after half an hour and I suggested that the contact should conclude for the day. When we returned home [the child] was unsettled and wet her pants. She did not sleep well and, as a result, I had to take her back to [Mr F], the Psychologist.”
212.
Ms Dellides then brought to the mother's attention the General Case Note of the Department (Exhibit F4), reporting on this occasion. There the supporting details record:
“Although initially it was agreed that access was two hours, [the mother] stated that she only wanted the access until 11.30 am therefore [the father] only had one hour with [the child]. At the end of the access [the child] was very relaxed with [the father]. [The mother] knocked on the access door at 11.30 am asking when [the child] would be ready to go to which the writer stated that they were just packing up. [The child] gave her father a big kiss and cuddled him. When packing up the toys that [the father] had brought [the child], [the father] asked whether [the child] wanted to take them home with [the child], stating that she didn't, that her mother would throw them away. [The mother] again knocked on the door; the writer again stated that she would bring [the child] out, although would come out the adjacent door after walking through the office. When the writer stated to [the child] that it was time to go back to the mother, [the child] stated that she didn't want to go. The writer asked as to whether [the child] wanted to stay with her father and she said no. The writer then asked again whether she wanted to go with her mother and [the child] stated that she didn't, that she wanted to stay with the writer. When the writer left with [the child] and walked through the office [the child] again stated that she didn't want to go to her mother and wanted to stay with the writer. [The child] did not state why this was. The writer took [the child] to her mother and she left.”
213.
I have no doubt in finding that the mother's assertion in paragraph 11 of her affidavit that, "[The child] became distressed after half an hour”, is plainly false. There is no reference whatsoever to that fact. It is plain to me that the mother did her best to terminate the contact and acted utterly inappropriately. When it was put by Ms Dellidis that there was no reference in the Case Note report to the child’s alleged “distress”, the mother responded quickly by saying, "she was distressed at going to contact”. This too examples the mother's ability to say what she sees best to suit her case, without regard to truth, to fact or to reality.
214.
At that point, following a discussion, the proceedings were stood down for further negotiation.
Family Consultant
215.
In coming to my conclusion in this judgment and approving the orders and otherwise underpinning my findings on all the evidence I have heard, thus far that there has been no sexual abuse or any unacceptable risk of sexual abuse, it is incumbent upon me to refer to the reports of Ms W, the Family Consultant in the proceedings.
216.
I make it clear that in coming to my determination I have regard to her five reports. I do not want it to be thought that I am not doing justice to them by my short references for I have found the reports to be extremely helpful and of great assistance.
217.
In her first report of 19 August 2004, having surveyed the background, defined the dispute, made observations of the child and of both parenting figures, including the taking of a history, Ms W then reported under the heading “Discussion”. Prior to that she made the observation that the father presented as a “devoted father”, who was highly concerned for the child’s wellbeing and adamant that depriving her of a relationship with him was both damaging and wrong.
218.
In the course of Discussion, Ms W said that she was able to state from her observations that, the interaction between the child and her father was "of an exceptionally good quality" and that the child not only enjoyed her time with him, but was quite distraught upon their being separated. She reported that whilst the existence of such a positive relationship neither ruled in or out the possibility that the alleged sexual abuse had occurred, it did demonstrate that there was "a significant bond".
219.
It was her view that it would appear there might well be a considerable gain for the child to have a relationship with her father, and that equally, a considerable loss if she did not. I found those matters to be quite significant.
220.
Ms W reported that the mother impressed as “preoccupied” with protecting the child. It was her view that she did so "to the point of intrusiveness", and that what she described as the mother's “hypervigilance” raised real concerns in regard to its impact upon the child's life should the father be excluded. I found that report to be helpful.
221.
The second report is dated 21 April 2005. Again it is a lengthy report in which the Family Consultant surveyed the background, defined her contacts, dealt with the dispute before the court and addressed what she described as “key issues”. Ms W referred to the child and her observations. She said the child was a delightful, well-mannered and intelligent girl but still somewhat pseudo-immature for her age. She reported that the child was said to be very giving and cooperative at school and progressing exceptionally well, except for occasional worrying outbursts.
222.
Ms W next dealt with the parenting figures and made observations of both the mother and the father. In her report, she said that it was her overall assessment that the father continued to have a “particularly strong bond” with the child. Under the heading of “Discussion”, she said that the key concern in this matter was the right for the child to have a safe and secure upbringing, and in that context, the opportunity to do so and to have an unimpeded and fruitful relationship with both her mother and her father.
223.
Ms W reported that it was the mother’s view that the child’s safety and security would be compromised should there ever be unsupervised contact between the child and her father because of “the inevitability”, in her eyes, that the child would be sexually abused by the father. Ms W observed that the mother therefore insisted she would not abide by any orders providing for unsupervised contact. She said that the mother was so strong in her stance that she was prepared to take the risk in the protection of the child of persisting with her refusal to abide by orders of the court knowing that the court may change residence.
224.
Ms W reported that the father clearly believed that if the mother was capable of shifting from her “current intransigence”, it might still be “less damaging” to leave the child with her, than her having to separate the child from her mother, to whom he accepted she was deeply attached.
225.
In the result, the Family Consultant said that she was not optimistic that if the child remained in the care of the mother she would be able to have an ongoing relationship with the father, given the mother's inability to accept that she would be safe in his care. She said that whilst she did not have the same concern should the child be placed in the father's care. Ms W expressed strong concerns that the mother may, by reason of her inability to accept any relationship between the child and her father, withdraw from the child’s life.
226.
Ms W then described the available options. They included, firstly leaving the child in the care of her mother and ordering supervised contact; secondly leaving the child in the care of the mother but ordering unsupervised contact; or thirdly the child remaining with her mother and there being no contact. There was a fourth option, namely to change residence to the father.
227.
Ms W reported that whatever the conclusions reached by the court regarding the substantive issue in question, it was her assessment that ideally the child would benefit most by having a “safe ongoing relationship with each of her parents”, both of whom she loved and to whom she related.
228.
Her third report was dated 13 October 2005. In that report, Ms W dealt with the supervision order and a progress report referring to various specific dates. She observed that despite the orders that were made by Kay J on 23 May 2005, there had been no contact between the child and her father since the end of the contact at G. She then set out some, but not all of the efforts made in what she described as an unsuccessful attempt by her to facilitate the commencement of supervised contact away from the Centre. I have regard to what she had to say. Ms W said that every effort had been made by the father and herself to resume the contact in accordance with the court orders. She said, however, the mother's resistance to the resumption of contact in any manner other than on her terms resulted in the failure of this to occur.
229.
Ms W reported that the mother had not complied with paragraph (4) of the orders made by his Honour, which stated that she undertook counselling "for the purpose of assisting her to facilitate a reintroduction of contact as provided for by the orders". She said that whilst it was noted that the mother had been ill, it was clear she did not perceive contact as something which was either “a priority” because of the court orders, nor did she perceive it as something the child might be entitled to. Ms W expressed concern about both these views and their impact upon the child.
230.
Ms W said the court was thus faced with two options. The first was the cessation of the relationship with the child. She said if this was proposed, then the child would be expected to suffer considerable loss, given the positive nature of her relationship with her father. The second option was a change of residence. She was of the opinion this would involve placing the child in the care of the father, a parent with whom she had a loving relationship and who would be able to foster the child’s relationship with the other parent in a way that the mother seemed unable to do. However, that involved her being placed, however, in the care of someone that the mother still believed had sexually abused the child. Ms W was of the view that should this be considered as an option, it may be that a further family report or psychiatric assessment of the child would be required in order to assess how she would cope with that transition.
231.
A further report of Ms W was prepared and dated 6 March 2006. Again, it is a comprehensive document, in the course of which she dealt with the issues in dispute. She reported that the child presented as a “delightful and intelligent child” and that she was once again “extremely pleased to see her father and related warmly and happily to him”. She observed that the child appeared secure in both greeting and leaving him, despite the instability of the contact arrangements.
232.
In her evaluation, Ms W reported that the “dilemma” the court faced was the same as it was some 12 months earlier. She said that the situation had become even more entrenched with the mother's opposition to the continuation of a relationship between the father and the child given her agreement to orders that provided for extensive and eventually unsupervised contact and her non-compliance with those and other orders made since then.
233.
Ms W observed that it would now appear that as long as the child remained in the mother's care, the likelihood of a long‑term relationship with her father, whereby the child had contact on a regular and substantial basis, "is virtually nil", given the unrealistic terms under which the mother would permit any contact at all. She said the possible explanation for the mother's stance remained the same. It was her view that in order therefore for the child to have the possibility of a safe and fulfilling relationship with both parents, if the court found that there had not been sexual abuse by the father or if it found that the risk of the child being in his care was not unacceptable, “then serious consideration may need be given to a change of residence”.
234.
Ms W made recommendations, to which I have regard. She otherwise caused to be prepared a final report of 21 March 2006, in which she dealt with contact levels and matters of that nature.
Independent Children's Lawyer
235.
The Independent Children's Lawyer also caused to be filed two affidavits by Ms E, who is a social worker by occupation. She was able to report as to the occurrences and observations of the G Centre.
236.
I have regard to the actual detail set out in the first report annexed to Ms E’s affidavit filed 27 January 2005. This encompassed six two-hour visits. One visit was cancelled by the mother, and twice she was late. In her summary, Ms E had this to say:
“The visits that [the child] has had with the father […] at the [M] venue of the Children's Contact Service have been characterised by the obvious enjoyment the father and the child show in each other's presence. [The child] has shown that she is very comfortable with her father, laughing and giggling throughout the contact visits. [The child] would often greet her father with a hug.
The father was able to appropriately engage in play, showing considerable amounts of energy and enthusiasm. [The child] frequently initiates different activities, with the father following her lead. Together, the father and [the child] have enjoyed playing basketball, watching videos, playing with dolls, reading stories, playing in the sandpit and blowing bubbles. The father is very attentive to [the child’s] needs for drink, food and safety, and meets them in an age-appropriate manner. The father is child-focused during the contact visits.”
237.
In a second report prepared by Ms E, and annexed to her affidavit filed 10 May 2006, she comprehensively detailed many of the contact visits between January 2005 and March 2006. Three were cancelled by the mother. She was late 13 times.
238.
Ms E reported that the child and her father had 29 facilitated contact visits at the centre. During these contacts, the child had shown that she was “comfortable” with being in close proximity to the father. She reported that the child often arrived to the service smiling, and greeted the father with a hug and a kiss. Throughout the contact visits the child told the father that she “loved” him, and that she “missed” him. At times she put it in writing. The father responded to the child by telling her that he loved her and missed her too.
239.
Ms E reported that the child generally separated from the father with “ease, smiling and waving goodbye” as she walked through the door. The child referred to him as "daddy", and the father frequently referred to the child as “[nickname]”. She reported that the father had attended to the child’s needs for food, drink, hygiene and safety. He brought various fruits and drinks with him to the contact service.
240.
Ms E also reported that throughout the contact visits the father and the child engaged in various types of play. Often the child would “use her imagination” in creating games. The child would introduce an idea and the father follow her lead. The father generally engaged himself in her play or remained close to her as he observed. She reported that the father and the child “frequently exchanged positive dialogue”. The child spoke regularly about her school and the films that she had recently watched. The father, she reported, would listen to the child intently, encouraging her to tell her story by asking various questions.
241.
The Independent Children's Lawyer also relies upon an affidavit of Dr K, a psychiatrist. I have regard to the content of each of the reports concerning his task of undertaking a psychiatric assessment of both the parties.
242.
Dealing first with the father, Dr K reported that the father presented in quite a “plausible fashion” in interview, without overt psychiatric symptomatology or disturbance. He had an appropriate concern for the care of the child and desire to see his daughter. He noted in the family report there was an indication that he related well to the child.
243.
Dr K reported that he would have no reason, from seeing him, to suspect that he may have sexually abused the child. He said that, indeed, the father thought the child was put up to making those claims. He reported that "keeping to my area of expertise", he could only say that the father did not give evidence of any overt psychiatric disturbance and did not give evidence of overt personality problems, difficulties, or behaviours that would impact negatively in his parenting of the child.
244.
He also added one other comment. He was of the view that it was appropriate for him to say that if in fact the mother had put the child up to and coached her about the claimed sexual abuse, then in doing so it represented a sexual abuse in its own right. But he went on to note that he only made “that comment” if it was relevant, and if in fact it were accepted that she did put the child up to her statements by coaching.
245.
Dr K went on to finally report that the father did not give any overt evidence of psychiatric disturbance such as would cause him any concern for the welfare of a child in his care or custody.
246.
He also reported on the mother. In the course of his report he was of the opinion that the mother did not present any evidence of significant problems. He said that she gave the impression of being a very responsible and honest person, and had genuine concerns that the child may have been sexually abused. However, I make the observation that I have been in the privileged position of seeing both parties giving evidence over several days, a position vastly different from that of Dr K.
247.
The Independent Children's Lawyer also relied upon the report of Dr R, dated 1 November 2006 which was very helpful to me. I do not propose to record in this judgment full details of what he had to say, but I make it clear that I have given his observations, his recordings and his opinion my careful consideration.
248.
Dr R recorded details of the assessment interviews carried out with the child on two occasions, and with the parties. He found that there were no overt signs or evidence suggestive of psychiatric or psychological disturbance on the part of the father, who showed a capacity to empathise and understand the position of his daughter.
249.
He reported that the mother made it clear to him that the child should not have contact with her father alone as he was "a danger" to the child. The mother maintained that any decision on the issue should be made to "protect" the child from her father and that any solution, in her view, required limiting contact or ceasing it all together. He reported that she maintained a position “erected on certainty” that the father had sexually abused his daughter.
250.
Dr R also made thoughtful and supportive commentary upon the reports of Ms W, which sat seamlessly with his own. He observed that the child’s comment about possible child abuse to Ms W appeared limited in the level of description and lack of congruence (which I assume to mean compatibility) with the child’s emotional response. He commented upon Ms W's report that the mother openly stated she would not comply with court orders that obliged her to allow unsupervised contact. It was evident to Dr R that Ms W became increasingly of the opinion that the mother's intransigence to the possibility of unsupervised contact presented "a major obstacle" to an appropriate parenting regime.
251.
Dr R also noted the report of Ms E, being 29 supervised contact visits, and he said:
“The reports describe consistent positive and enjoyable interaction between [the child] and her father during the contact visits. Much enjoyable playful behaviour and interaction was described, nurturing interaction following [the child] suffering a minor injury on a swing in which [the father] was able to sooth and settle [the child].”
252.
Dr R addressed his conclusions and recommendations in a very thorough manner. In summary he said "[The child] used powerful mechanics of avoidance" to manage her "high levels of anxiety" which suggested she used fantasy extensively to escape her anxiety. This was necessary for her to function.
253.
He was of the opinion that the child showed a "high level of compliance and psychological accommodation" to her family's situation by "disconnecting or denying" her feelings, which would be detrimental to her long term psychological development. At the same time, he said the child exhibited considerable “positive capabilities and psychological resources” for a six‑year‑old girl. Her verbal communication was good. She is intelligent and showed good symbolic functioning.
254.
Dr R said that the pattern of behavioural and psychological disturbance described by the mother was of a high level of symptoms in the child in the days following contact with her father. This pattern of symptoms could, he said, be understood as "attachment-related behaviours", and was an understandable psychological and attachment response in young children.
255.
Dr R was of the view that the child was clearly very aware of the parental conflict and clearly “feared losing” her mother if she was to live with her father. Significantly, on the issue of sexual abuse he had this to say (page 20):
“[The child’s] discussion of alleged sexual abuse by [the father] on this assessment is limited in its extent, often without congruent emotion, and has the quality of an often repeated verbal statement the origins of which are no longer available to [the child]. [The child] introduces many of her statements about abuse as being her mother's concerns. My view is that [the child’s] statements do not provide strong or good evidence of past sexual abuse by [the father].”
256.
In summary, Dr R reported that the father indicated "good and positive interactions". The relationship appeared "secure and meaningful". He said that the child showed a capacity to be "emotionally open and interact freely" with her father, and that reunions and separations from him were managed well.
257.
He emphasised the mother's position that she believed the father sexually abused the child and would do so again, given the opportunity. The strength of her conviction he said was "powerful and unwavering". It was his opinion that while it may be understandable that the mother had some ongoing concerns about the possibility of sexual abuse, her adamant view of certainty and essentially uncompromising stance was much harder to understand. To him it raised the possibility of “underlying psychological disturbance or psychiatric disorder on the part of the mother”.
258.
In relation to the child’s psychiatric state, Dr R was of the opinion that her level of anxiety and distress was beyond her capacity to manage. She was “unable to cope” with the level of adversity in her family situation. He said there were signs of early distortion of psychological and personality functioning, excessive use of denial and avoidance towards her emotions and internal psychological world.
259.
Dr R was of the view that the child “overused fantasy to escape or avoid distress”, which would have longer-term detrimental consequences on her psychological and personality organisation. It was his opinion that, psychiatrically, the child could be diagnosed as suffering “an anxiety disorder” as a reaction to her family situation, rather than an intrinsic disorder. He was of the opinion that the child’s anxiety was “consequent to parental conflict”, which was current and ongoing. He said that his assessment “did not point to past childhood sexual abuse or a problematic relationship with the father” as the cause of the child’s symptoms and disturbance.
260.
Dr R was of the opinion that the absence of positive psychological signs of sexual abuse on assessment, and the observed and well documented good relationship between the father and the child, made the possibility of "past childhood sexual abuse far less likely". He did not think the issue of potential sexual abuse by the father should be a "major factor in determining the outcome of a regime for residency and contact", but rather that a psychological shift was especially required with the mother.
261.
Dr R then recorded his opinion about Family Court orders and intervention, which I have earlier incorporated into this judgment. As he considered such an arrangement may not be possible, he set out the two possible courses of action. One was that the child remains residing with the mother and either had no contact or minimal supervised contact with the father. The second option was to have the child reside with her father.
262.
It was his opinion that psychotherapeutic treatment was likely to be helpful for the child in her current situation and would provide considerable support and a psychological space "to reflect on her experience of family" with a professional outside her conflicted family.
Conclusion
263.
I have taken the opportunity in this judgment to record the evidence of the principal protagonists and that of the experts. Too many times have the parties gathered at the portals of the court, agreed upon orders to be made by consent which have, in the result, been honoured in the breach. The parties entered into an agreement on 14 June 2002. It failed. They agreed upon orders made in the Federal Magistrates Court on 26 May 2003. They, too, failed.
264.
The father filed two Contravention Applications on 16 February 2003 and 20 November 2003, alleging overall 26 breaches of the court orders by the mother. Acting upon representations made by her and upon which he acted, in my view with consummate good faith, he withdrew them. Consent orders were then made on 12 December 2003. They failed. The proceedings were transferred to the Family Court of Australia, from the Federal Magistrates Court, and again consent orders were made on 23 May 2005. They failed.
265.
In the meantime, the mother had entertained summonses for an Intervention Order in what I regard as dubious circumstances, and could perhaps be more harshly described as an abuse of process. Prior to the consent orders of 23 May 2005 the parties had the advantage of two insightful and clear reports by Ms W. The mother failed to heed what the Family Consultant, an expert witness, had to say. She chose to regard her as biased.
266.
Epicentral to this profoundly tragic history centred around the child was the mother's unwavering pursuit of her obsessional belief that the father had sexually abused his daughter. She failed to heed reason or commonsense, but fed, I suspect upon those malleable and ductile views of persons sympathetic to her ear. I have no doubt that her own mother, the maternal grandmother, was such a voice of unreasonableness. Her other instrument appears to have been Mr F, albeit that I did not have the opportunity to hear from him. I make that observation upon what the mother had to say and his five reports, all undertaken without the benefit of having heard from the father.
267.
Mr F referred to the "unquestioned" and "good intentions" of the mother, and in one report provided a dissertation on the United Nations Convention on the Rights of the Child. The circumstances of the late night telephone call and alleged disclosure, I use that noun in parenthesis, by the child to Mr F, as described by the mother and referred to in the report, I regard as highly questionable. There was never a proper and professional independent inquiry made by him of that event. His commentary upon the circumstances of the disclosure made by the child to the police on 24 December 2003 is helpfully obvious, but naive.
268.
Throughout the latter part of 2005 and through 2006 the father, exercising considerable personal discipline and emotional strength, saw the child on a supervised basis under high scrutiny. The reports of Ms E are clear and unchallenged by the mother, save to observe qualifications expressed by her to suit her then intractable view. There followed three further reports by Ms W which were, it is plain to me, fundamentally ignored by the mother and challenged under the rubrical heading of “bias”.
269.
So too the report of Dr R dated 1 November 2006, the terms of which were swept aside by the mother as she prepared to challenge the father's application to see his daughter. I have little doubt at all that the mother's blinkered pursuit to satisfy her fixated preoccupation that the father had sexually abused the child left the child vulnerable to awareness of this fact. I do not accept that the mother shielded the child from her consuming passion.
270.
An example of this may be seen from the fact that she even brought the child into the arena of litigation, an event I well remember. It was described in the transcript of 8 December 2006, and which I record as follows:
HIS HONOUR: Who are these people? Is that the child in question? She brings the child to court.
MR MAPLESTONE: You’ll have to wait outside just for a moment.
HIS HONOUR: Why is the child in court?
MR MAPLESTONE: The child’s not allowed in court.
HIS HONOUR: Madam, please, Why is the child in court ?
[THE MOTHER]: Because my mother wasn’t feeling well when I arrived home from work and I had no-one else to take her.
HIS HONOUR: I’m not asking you. I’m addressing your counsel. Madam, would you leave the court with the child.
[THE MOTHER]: It was an emergency situation, your Honour.
HIS HONOUR: I would have thought there would be other ways to handle the emergencies.
[THE MOTHER]: Things happen, emergencies happen.
HIS HONOUR: Please leave the court.
MR MAPLESTONE: You saw my body movement.
HIS HONOUR: It should be recorded in the transcript that on leaving the court, the mother slammed the door to the extent that the eastern wall shuddered.
MR MAPLESTONE: Your Honour, I’m sure that you understand that I’m as embarrassed as---
HIS HONOUR: Mr Maplestone, I know you far too well.
MR MAPLESTONE: Thank you, your Honour.
HIS HONOUR: Of course you’re not – it’s nowhere near within your doing, and it’s just as much an embarrassment to you as it is to everybody else in this court.
271.
I do not accept the mother's explanation. That act was, in my view, utterly unnecessary and doubtlessly painful for the child. It demonstrated a heightened lack of insight on her part, let alone a breach of parental responsibility.
272.
With that said, the competing applications came before me with the mother plainly asserting that the father have no contact with his daughter. That is, put simply, he was not to even be in her presence. The objects and principles of the Family Law Act set out in s 60B of the Act were consigned as meaningless.
273.
I have earlier described the progress of the mother’s variations by way of settlement proposals, which ultimately on day 4 changed, and consent orders signed by her on day 5, accompanied by a notation concerning the issue of sexual abuse. The litigation pathway that commenced in about mid-2003 has nearly, four years later, hopefully come to an end. Only the future will reveal whether or not the mother can understand that her intractable views on this principal issue were erected merely upon thistledown pillars of hope.
274.
A strong preliminary view of the Independent Children's Lawyer was provided by Mr Mort upon the commencement of the trial, a view which sat satisfactorily on the known evidence to be relied upon, including the affidavits of the parties. The presage of that view unfolded with clarity and with the progress of the evidence, so that it became painfully obvious that the mother's approach to the father's application was without foundation.
275.
I am satisfied to the requisite standard of persuasion that the issue of sexual abuse, even at the stage that the proceedings were resolved, was not made out, nor is there an unacceptable risk to the welfare of the child maintaining her contact with her father. I need go no further than the review of the evidence I have recorded in this judgment. I have no doubt that, for whatever reason the mother wrongly bound herself on this issue, she failed to properly, independently and logically rationalise the whole of the evidence and in so doing maintained a blinkered myopic view to reality. Her pursuit of this issue should now end, the orders to be made, obeyed, and that she faithfully endorse the father to his daughter in positive persuasive and genuine terms.
276.
As I said in L & B [2005] FamCA 242:
“413. There is an obligation on the part of each parent to foster the image of an absent parent. That within itself requires discipline, together with an ability to sublimate one's own feelings of pain, hurt or anger, to benefit the best interests of their child. I am not looking to the actions of the perfect parent in the utopian world, but of one who recognises the importance of such qualities and strives to achieve that desired end.
414. That may mean for example an aggrieved parent seeking greater understanding by recourse to professional assistance. To wallow in the mire of disillusionment, anger and bitterness can only, certainly by example alone, influence the child in a variety of negative ways against the absent parent. The effect is dramatically compounded by the spoken word of negativity, passive alienation and subversive manipulation.”
277.
For the benefit of the parties I propose to explain the legal basis that guides the court in cases such as this, dealing with the issue of alleged sexual abuse. I had occasion recently, in A & A [2006] FamCA 1056, to undertake this exercise, and I draw from that judgment the following analysis. Cases involving allegations of sexual abuse were considered authoritatively by the High Court of Australia in M v M (1988) 166 CLR 69. There Mason CJ and Brennan, Dawson, Toohey and Gaudron JJ made it clear that:
“The fact that the proceedings involve an allegation that the child has been sexually abused by a parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's finding on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue later. Viewed in this setting, the resolution of the 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.”
278.
Their Honours then went on to consider the approach that a trial judge should take when reviewing such an allegation and said:
“In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless a court is so satisfied, according to the civil standard of proof with regard to the fact as mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. There Dixon J said, "The seriousness of an allegation made, the inherent unlikelihood 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 questions whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, reasonable satisfaction should not be produced should not be produced by inexact proofs, indefinite testimony or indirect references."
279.
Accordingly, a finding at trial that abuse has occurred can only be reached by application of the onus of proof set out in Briginshaw's case. That test has been codified in s 140 of the Evidence Act 1995 (Cth).
280.
In Re W, Sex Abuse: Standard Of Proof (2004) FLC 93‑192, the Full Court had this to say
“47. In children's matter under Part VII of the Family Law Act where the issue is a child's contact or residence with a significant person in his or her life, the grave consequences of finding of sexual abuse cannot be overstated. Accordingly, before trial judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw, and section 140 of the Evidence Act 1994 (Commonwealth). Inexact proofs, indefinite testimony or indirect inferences are sufficient to ground a finding of abuse.
48. This is a matter which must be specifically borne in mind by a court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this part, the court's paramount consideration must be the best interests of the child in accordance with section 65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Further more when deciding what orders are in the best interests of the child, a trial judge may often be confronted with the multiplicity of issues and facts. In these circumstances, evidence which for example is relevant and probative in relation to the question of an unacceptable risk of abuse occurring may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred.”
281.
In M v M (supra), their Honours having observed that such an allegation is often easy to make but difficult to refute, went on to say that there would be a number of cases where it is not possible to make a positive finding that sexual abuse had actually taken place. Notwithstanding this, however, it is clear from the above passages that by no means ends the judicial assessment of the issue. Their Honours continued:
“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 is granted, and assessing the magnitude of that risk. The existence of the 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.”
282.
The court went on to examine efforts to define with greater precision the "magnitude of the risk" which would justify a finding denying a parent residence or contact to a child. Their Honours concluded that the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to “an unacceptable risk” of sexual abuse.
283.
In B v B (1993) FLC 92-357 the Full Court of the Family Court referred to this test and went on to say:
“The unacceptable risk test is therefore the standard use by the Family Court to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. In other words, where the court makes a finding of unacceptable risk, it is a finding that the risk of harm to the child in having access with a parent outweighs the possible benefits to them from that access.”
284.
The difficulties associated with determining an unacceptable risk were considered, for example by the Full Court in N v S and Separate Representative (1996) FLC 92-655. In the course of his dissenting judgment, Fogarty J analysed the meaning and application of the term "unacceptable risk". His Honour also considered a number of cases in which efforts have been made to define the term with greater precision and concluded that:
“There is a limit beyond which it can be of no use to endeavour to devise a precise expression to encapsulate a judgment which will ultimately depend on a great many factors. However, what can be asserted with confidence is that the welfare of the child requires that the term be carefully construed.”
285.
Later at page 82-714 Fogarty J set out a number of appropriate questions, but not suggestive as an exhaustive catalogue, for consideration as follows
“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 offence 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 affects of the child?”
286.
The catalogue of questions posed by Fogarty J, are most helpful and it takes little effort to mould the evidence detailed before me and otherwise relied upon by the parties to arrive at the clear answer that was strongly urged upon me by the Independent Children's Lawyer at the commencement of the trial. It concerns me that the mother, with all the information she had at her disposal, proceeded as she did. She was mistress of her own fate.
287.
However, it may well be that with her having heard the evidence of the father under oath, given her evidence in court and tested by Ms Dellidis and having had the benefit of professional independent advice from Ms Agresta and her experienced solicitor Mr Maplestone, that she now realises and genuinely accepts the findings I have made. In making those findings I am of course fortified by her agreed notation to the orders.
288.
There are some further matters I propose to add. By reason of the Family Law Amendment (Shared Parental Responsibility) Act 2006, this court has moved forward to recognise the value children gain by maximising the time they spend with each of their parents. What remains common ground, however, is that the principles underlying the objects of Part 7 of the Act remain the same.
289.
What the mother now recognises by the terms of these orders is that the child has a right to know and be cared for by both herself and the father, a right to spend time on a regular basis with both of them, and that each of the mother and father share duties and responsibilities concerning her care, welfare and development. Their duty towards the child is a joint one.
290.
Now that the proceedings have adjusted, it is important the mother moves forward without rancour or ill feeling towards the father. It is essential she recognises, in an unfeigned way the goodwill and trust reposed in her by this resolution, and consign the past to where it belongs. The future is the direction now to be travelled for the benefit of the child under the guidance of both of her parents.
291.
In my view the father has been very patient indeed and has never wavered in his journey to ensure that the child has the benefit of two parents, despite the serious allegations made against him. I am sure that, notwithstanding, he bears no ill will against the mother, in circumstances whereby it would not have been an unnatural expectation on his part. With both parents sharing in the child’s life, she has a ready opportunity to be happy and become a productive member of the community.
I certify that the preceding two hundred and ninety one (291) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.
Associate:
Date: 26 April 2007.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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