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Orders

IT IS ORDERED THAT

Parental Responsibility

It be declared that the presumption of equal shared parental responsibility is rebutted in the best interests of B (born … May 2005), D (born … March 2007) and E (born … March 2010) (“the children”).

The father shall have sole parental responsibility in respect of all “major long-term issues” (as that expression is defined in the Family Law Act 1975 (Cth) (“the Act”)) in respect of the children, save that, prior to making the sole ultimate decision about any such issue, the father shall:

Use his best endeavours to advise the mother in writing of the decision intended to be made;

Seek the mother’s written response in relation thereto;

Consider, by reference to the best interests of the children, any such response prior to making any such decision; and,

Advise the mother in writing as soon as reasonably practicable of his ultimate decision.

The father shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the children whilst the children are in his care.

The mother shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the children whilst the children are in her care.

Counselling and Injunction

For the purposes of these Orders the decision to engage the services of any psychiatrist, psychologist, counsellor or like-professional shall be deemed a “major long-term issue” to which the provisions of paragraph 2 of these Orders shall apply and paragraph 4 of these Orders shall not apply.

The mother be restrained and an injunction issue restraining her from taking the children to any psychologist, psychiatrist, counsellor or like-professional without the prior written consent of the father.

Live with/Spend time with

The children shall live with the father.

The children shall spend time with the mother at all such times as might be agreed in writing between the parties and failing any such agreement in accordance with the succeeding provisions of these Orders.

B and D

B and D shall spend no time with the mother from the time that the children are delivered to the Child Dispute Services until 25 December 2012.

B and D shall spend time with the mother (with such time to coincide with the time E is to spend with the mother in accordance with paragraph 12(a)(i)):

From 12.00 midday on Tuesday, 25 December 2012 until 4:30pm Sunday, 30 December 2012;

From 8.30am Tuesday, 8 January 2013 until 4.30pm Sunday, 13 January 2013;

From 8.30am Tuesday, 22 January 2013 until 4.30pm Sunday, 27 January 2013.

From Term 1, 2013, B and D shall spend time with the mother from after school Friday to before school Wednesday each alternate week (with such time to coincide with the time E is to spend with the mother in accordance with paragraph 12(b)(i)).

E

E shall spend time with the mother:

As from the date of these Orders and until B and D commence Term 1, 2013:

From 8:30am Tuesday to 4:30pm Sunday each alternate week, (with such time to coincide with the time B and D are to spend with the mother in accordance with paragraph 10).

From the time B and D commence Term 1, 2013:

From after school Friday to before school Wednesday each alternate week, (with such time to coincide with the time B and D are to spend with the mother in accordance with paragraph 11).

On Christmas Day 2012, time between the mother and E shall commence at 12:00 midday.

Holiday time/Special Occasions

From Easter School Holidays 2013

The children shall spend with the mother:

For the first half of the Easter, June/July and September/October gazetted school holiday periods every odd year and the second half in every even year;

For the first half of the Christmas/New Year school holidays from after school on the last day of school until 12:00 midday Christmas Day every odd year and, commencing in 2014, from 12:00 midday Christmas Day until 4:30pm on the day before school resumes in every even year;

In the event that the children are otherwise not spending time with the mother, the children shall spend time with the mother:

On the children’s birthdays as follows:

In even numbered years from after school on the day before the child’s birthday until commencement of school on their birthday;

In odd numbered years from after school on the child’s birthday until the commencement of school on the day after their birthday;

If the child’s birthday falls on a weekend: from 3:00pm until 6:00pm on the birthday.

On the mother’s birthday:

If it falls on a weekday: from after school until 6:00pm; and

If it falls on a weekend: from 9:00am until 5:00pm.

On Mother’s Day from 9:00am until 5:00pm.

In the event that the children are otherwise not spending time with the father, the children shall spend time with the father:

On the children’s birthdays as follows:

In odd numbered years from after school on the day before the child’s birthday until commencement of school on their birthday;

In even numbered years from after school on the child’s birthday until the commencement of school on the day after their birthday;

If the child’s birthday falls on a weekend: from 12:00 midday until 3:00pm on the birthday.

On the father’s birthday:

If it falls on a weekday: from after school until 6:00pm; and

If it falls on a weekend: from 9:00am until 5:00pm.

On Father’s Day from 9:00am until 5:00pm.

Family Consultant to Explain Orders

So as to give effect to these Orders, the mother shall present the children to the Director, Child Dispute Services (or such Family Consultant nominated by him) located on Level 3, Harry Gibbs Commonwealth Law Courts, at 9:00am on Friday, 30 November 2012 and shall herself attend thereat for the purpose of:

The Family Consultant explaining the nature and effect of these Orders to the children; and

The children being delivered into the care of the father in accordance with these Orders.

Changeover

Changeover during school term shall occur at the children’s school.

Changeover during holidays shall occur at the father’s house.

Communication

The parties shall be at liberty to communicate with the children by telephone at any reasonable time.

Both parents shall facilitate Skype communication between all of the children and the other parent at 6:00pm each Monday and Friday (in the weeks when the children are not otherwise spending time with that parent in accordance with these Orders).

Both parents shall facilitate telephone communication between the children and the other parent at any reasonable time requested by the children.

Provision of Information

Each party shall do all such things and sign all such documents as may be necessary or required to:

Authorise the other party to communicate with, and receive communication from, any doctor or health professional (of whatever type), whom the children consult, failing which this Order shall, of itself, constitute such authority;

Speak to, and receive oral or written communication from, any school, childcare centre or other educational institution, attended by the children, after payment of any necessary fee, failing which this Order shall, of itself, constitute such authority;

Keep the other party appraised of their residential address, telephone contact number, and other electronic communication address or addresses for the purpose of communication with the children (such as Skype and email), with any changes to same being notified to the other party in writing within 48 hours of same occurring;

Notify the other party as soon as reasonably practicable should any of the children suffer any medical emergency, serious illness, or other significant issue affecting the children’s health or welfare, whilst in their care.

Each parent shall be at liberty to attend any and all extracurricular activities undertaken by the children and each party shall do all things and sign all documents reasonably necessary to ensure that the attendance of each party is authorised.

In the event that either party fails or refuses to do any such thing or provide any such document or authority, this Order shall, of itself, be sufficient authority for each and all of the matters referred to in paragraphs 22 and 23 of these Orders to occur.

Miscellaneous

Pursuant to s 121 of the Act, the parties be granted leave to publish an account of these proceedings, namely, these Orders and the Reasons for Judgment of Justice Murphy delivered in these proceedings to the:

Director-General of the Department of Communities, Child Safety and Disability Services, Child Safety Officer Ms G, and any other officer duly authorised by the Director-General; and,

Principal of any school or the director of any childcare centre attended by the children.

The Independent Children’s Lawyer is discharged upon the later of the expiration of the appeal period in respect of these Orders, or the hearing of any appeal.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same upon the later of the expiration of the appeal period in respect of these Orders, or the hearing of any appeal.

Pursuant to s 65DA(2) and s 62B, Family Law Act 1975 (Cth), 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 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.

Costs

Any application for costs, including any application in respect of costs reserved, by any party shall be made by:

The applicant filing an application via written submissions emailed to … and sent contemporaneously to the other parties, by no later than 4.00pm, 20 December 2012;

Any response being filed via the same method by 4.00pm, 16 January 2013; and,

Any such submissions containing an annexure setting out the precise minutes of the orders sought.

REASONS FOR JUDGMENT

The decision about the best interests of B (born in May 2005), D (born in March 2007) and E (born in March 2010) is dominated by the mother’s assertion that B, and possibly all of the children, have been the subject of, or exposed to, sexually improper behaviour by their father.

During the course of three police interviews, B has stated that he has witnessed his father inserting 17 separate items into his (i.e. the father’s) anus. Those items include a fish hook, glass, pizza and, in one instance, an electrical cord which the child says was inserted whilst he and his father were “…in the security department at Bunnings”.

The mother, through her counsel, contends that each and all of the statements made by B during those police interviews should be taken literally and the conduct to which they relate be accepted as having occurred exactly as described. Other statements and behaviours by B are alleged by the mother and these, too, it is said, are to be taken as indicative of sexual misconduct at the hands of the father and to be without other explanation.

The police and the Department of Communities, Child Safety and Disability Services (“the Department”) have each determined that the allegations of sexual abuse are unsubstantiated.

The latter has determined as substantiated emotional abuse of B and D at the hands of their mother. That determination is based on the Department’s view that actions by the mother toward the children, and B in particular, have inculcated in the children the view that their father is a sexual risk to them and the Department’s determination that the mother does not acknowledge her actions as harmful.

The mother continues to assert a belief that the children have been the subject of improper sexual behaviour: “I still don’t believe there has been any person who has assessed the children who can explain the things they say and do”.

The father contends, through his counsel, that the mother (and her sister) is involved in a “web of fabrication”; it is contended that the mother has “fabricated” a case of sexual misconduct “in two senses” – either the children did not say and do the things she asserts or, if they did say those things, the mother “coached” the children into saying them.

The Independent Children’s Lawyer (“ICL”) contends that this Court will find that the children have not been the subject of sexual misconduct as alleged and that the father presents no risk of harm to the children. The ICL contends that the Court will find that the mother presents an unacceptable risk of emotional harm to the children.

What Orders do the Parties Seek?

The Father

The father seeks an order that he have sole parental responsibility for the children and that they live with him and spend each alternate weekend with their mother, after a one-month moratorium. The father also proposes an order that the children spend half of the school holidays with each parent.

The Independent Children’s Lawyer

The father’s position is essentially identical to that of the ICL, save that the ICL contends that the parents should share parental responsibility and the children should spend time with their mother as follows, providing the mother continues to reside within “30 kilometres of the children’s school”:

B and D spend time with their mother each alternate weekend for four visits, commencing one week after the children move into the father’s residence;

Commencing one week after the children move into the father’s residence, E is to spend time with his mother from Friday to Tuesday each alternate week and, during the day on a Monday in the off-week “for a period of twelve months”; and,

Following the initial four visits between the mother and B and D, all three children are to spend time with their mother from after school Friday to before school Wednesday each alternate week.

In the event that the mother does not reside within 30 kilometres of the children’s school, the ICL proposes that the mother spend time with the children from after school Friday to Sunday afternoon each alternate weekend.

In terms of holiday time, the ICL proposes specific orders for the 2012/2013 Christmas/New Year holidays and, thereafter, that the children spend half of the holidays with each parent.

The Mother

The mother’s position is more complex.

Shortly prior to the mother commencing these proceedings in the Federal Magistrates Court, the mother secreted herself and the children, citing her fear of the father and what he may do to the children should he know their whereabouts. More will be said of this later in these Reasons. Ultimately, interim orders were made in the Federal Magistrates Court by Coates FM on 2 September 2011 for the father to spend time with the children from 9:00am to 5:00pm each alternate Saturday and Sunday. That time was to be supervised, with such supervisor to be agreed in writing by the parties or, failing agreement, at H Centre.

On 7 December 2011, the matter again came before Coates FM who had before him a report prepared by a psychologist, Mr C. Coates FM made further interim orders that the children spend unsupervised time with the father from Saturday morning to Sunday morning each weekend and overnight each Wednesday.

Perplexingly, perhaps, in light of the mother’s allegations of potential sexual harm at the hands of the father and the earlier-expressed fear of him and what he would do, the mother consented to orders for unsupervised time in the proceedings before Coates FM in December 2011.

She says in this respect that she did not want to consent to unsupervised time but that she ultimately “…proposed unsupervised access…” because:

Coates FM had, through the mother’s solicitor, “…cautioned me strongly on the issue of continuing with a request for supervised time”; and,

“With the recommendation of Mr [C’s] report that we ‘test’ the arrangement of unsupervised time…as interim orders and the encouragement by the Judge that I should be very careful about any decision to maintain supervised time – I decided it would be in the children’s best interests if I suggested a program of unsupervised time…”

In an affidavit filed on 23 January 2012, the mother outlined a proposed move to the Gold Coast. The mother reiterated this intention in an affidavit filed on 30 March 2012 in which she stated that she intended to relocate with her parents to the Gold Coast to “…a house with a similar set up to our current arrangements: my parents in one portion of the house and the children and I in the other…” In that event, and if the father “…is determined low risk by the court…” the mother proposed that the father “…move to the Gold Coast and maintain a close relationship with the children similar to the arrangement we have now…”. Leaving aside the obvious legal difficulty with such a proposal, her position appears, in any event, to have changed, at least in part, by the end of the trial.

At that time it was contended on behalf of the mother that she have sole parental responsibility for the children and that the children spend supervised time with their father “[f]or 2 hour (sic) or 3 hours every second Saturday…” at H Centre “…or another supervision centre if [H Centre] is not available…”. Alternatively, the mother proposed that the children live with her and spend time with their father every second weekend “…from Saturday to 5pm Sunday…” and for half of the school holidays.

In the alternative set of orders proposed by the mother, she seeks an order that “…the children attend general counselling with a qualified counsellor appropriate to the separation issues.” I do not understand what is intended precisely by the reference to “…the separation issues…”, but I presume it is a reference to the children’s separation from their mother in circumstances where they are to see their father unsupervised. In both the original and the alternative orders, the mother seeks an order that she be permitted to move to the Gold Coast.

The mother’s proposed orders also state that “[i]n the event of a change of residency [of the children], the mother intends to stay on the Sunshine Coast” and seeks “any orders this court deems fit” should the children’s “residency” change.

Statutory Considerations and Alleged Sexual Harm

Allegations of sexual harm are relevant not only to the Primary Consideration dealing specifically with harm; those allegations and their attendant ripple effect are also directly relevant to a number of other mandatory Considerations prescribed by s 60CC of the Family Law Act 1975 (Cth) (“the Act”). For example, it might be contended that a meaningful relationship with a parent who has engaged in sexually inappropriate activities with his or her child is not beneficial to the child. So, too, any views a child has of that parent (whether asserted to be positive or negative) must surely be filtered by, or amenable to, findings about any such risk.

Findings as to the “…nature of the relationship of the child…” with any such parent must also be relevant and not only in circumstances where a finding of unacceptable risk is made. If, for example, a finding of no risk is ultimately made, the making of the allegation by the other parent and the invariably conservative protective steps taken by the “accusing parent” (and, often, the Court) pending the Court’s final determination are also highly likely to have had a dramatic impact on the nature of the child’s relationships not only with each parent, but also other important members of the extended family. Whatever the ultimate finding of the Court, the making of allegations of serious sexual (or other) misconduct will almost always have serious, and likely ongoing, consequences for the children and their relationships with all involved in their lives.

Other examples of Considerations affected by that central issue can also be given. The “responsibilities of parenthood”; the changes that have occurred in the children’s circumstances in the shadow of allegations; the willingness and capacity to facilitate and exercise time; and, the “practical difficulty” of doing so, are all potentially very relevant. So, too, of course, is the willingness and capacity to fulfil parental obligations and responsibilities.

In one sense, then, it might be thought extremely difficult to separate an analysis of the statutory Considerations from the underlying issue of possible risk of sexual harm; each infiltrates the other. Yet, that is quintessentially the task if the proceedings are to have the shape that the Act and authority demands. Doing so is intended to place the central issue of harm in its proper context within the wider issues at large for the particular children the subject of the proceedings and their particular circumstances.

Nature of Relationship?

Whatever conduct or words by the children prior to early 2011 are now said to bear an improper sexual connotation, it is clear that they did not do so in a way that affected their lives, or the actions or reactions of their parents, prior to that time. Other conduct did, however, affect their lives.

The children’s parents separated in or about April 2011 and, on either party’s account, their relationship had been deteriorating for some time prior to separation.

The mother describes the father as an “emotionally withdrawn” man who spent up to 20 hours per day in his home office. The father is described in the evidence of a psychiatrist, Dr S, and the family report writer, Mr M, in similar terms. The picture that emerges is of a man who is ambitious, driven to succeed and, perhaps as a result, somewhat aloof and insular. The mother was, on any view, the primary nurturer of the children prior to separation and subsequently. There can be little doubt that the nature of the relationship between the children and their mother is close and loving.

I reject the picture sought to be painted by the mother of the father as distant in the sense of being essentially uninterested in the children or their nurturing (either before separation or now). As but one example of the evidence used by the mother to sustain that assertion, and what she assets is the oddity of his behaviour more generally, she describes an incident when the parties were living overseas several years prior to the birth of their first child. According to the mother, she asked the father to go with her to get an ice cream. The father, allegedly, declined. This is what the mother makes of that innocuous incident:

I continued asking and gently badgering him until he finally agreed and we left the apartment and walked to a nearby store to get ice cream. I had ice cream, [the father] did not. Following this brief and seemingly normal interaction [the father] refused to talk and interact with me for about 24 hours. He became strangely stony faced. No amount of questions or attempted interaction would rouse him from complete silence and displaying a totally emotionless face.

I do not attach the significance that the mother attributes – or, indeed, any significance – to this evidence. Notwithstanding the personality characteristics of the father earlier identified, I consider he had and, despite the very difficult situation that has confronted him, continues to have a close and loving relationship with each of the children.

In that respect, I not only accept the evidence of the father, but also place considerable weight on the evidence of the father’s partner, Ms R (whose evidence generally impressed me as honest, considered and sincere). I also attach significant weight to the observations of Mr M, made, it should be recalled, in circumstances where the relationship between the children and their father was both interrupted and under the shadow of the allegations at the centre of these proceedings. Examples of the latter include:

“There is an obvious strong bond between the children and both parents. All three children interacted easily with their father…”;

“The children interact with their father in an affectionate and happy manner…[which] is an indication that there is an historically established bond with their father and that they retain an affectionate relationship with him. It is clear that they enjoy spending time with him…”;

“[[B] and [D]] were both extremely happy and boisterous and anxious to see their father.”

I was struck most significantly of all, in that respect, by the evidence of an officer from the Department, Ms G. I was impressed by her objective professionalism and the frank and forthright manner in which she gave evidence. Her cross-examination by the mother’s counsel evidenced a capacity in Ms G to consider the difficult issues involved in an objective and, importantly, child-focussed manner. In circumstances where the relationship between the children and their father had been attenuated, the children had, according to the mother, expressed a fear of their father and a reluctance to see him, and where B had undergone three police interviews, Ms G says, about seeing B at school on 2 August 2012 (which occurred, importantly I find, without the mother being present or knowing of the visit), that when B was asked about his father’s house his “demeanour changed” and he “spoke positively about his father’s home” and referred to it being “great.”

I find it highly unlikely that those observations would have been made by a trained eye, or those behaviours exhibited and those words said by B, if, during the period of the parties’ relationship, the children had not developed a close and loving bond with the father.

I find, then, that the children enjoyed, and continue to enjoy, a close and loving attachment with each of their parents.

I observe here that it was during that same visit to the children’s school by Ms G, and in that same context, that D told Ms G that her mother’s “…job is to make people believe that her dad did rude things to her and her brother.” I accept that D made the statement. I consider it an important piece of evidence. It will be addressed further later in these Reasons.

Views?

The children are each young. They each lack the maturity to express views that might be seen to be, of themselves, highly persuasive in determining orders consistent with their best interests. Yet, the voices of children should be heard and listened to by the Court within the confines of the level of development that underpins them, and to the extent that the Court can have confidence that their views are their own and heartfelt.

Here, as in most parenting cases where sexual abuse is a central issue, it is contended by one party that what the children have had to say about alleged conduct perpetrated upon them should be given great weight. Indeed, here, as has been observed, the mother contends that what B, at least, has said, both in recorded interviews and otherwise as she alleges, should be taken literally and accepted at face value. That issue, to the extent that it informs findings to be made about “unacceptable risk” of harm, will be addressed later in these Reasons. For present purposes, the children have also said a number of things which the mother says are indicative of their broader feelings about, specifically, their father, and about their attitudes to orders that might be made about them. In particular, D has said to witnesses independent of the parties that she “hates” her father and has expressed significant antipathy to the idea of spending time with the father.

Before looking at the specifics of what the children have said and to whom, it should be observed that I reject D’s statements of “hating” her father or of not wanting to spend time with him as being indicative of her true feelings. As will emerge from a more detailed consideration below, I largely reject the evidence of the mother and her sister. At least one aspect of the mother’s evidence is, by her own admission, untruthful. I consider that much of her evidence is exaggerated. I consider that, in many instances, she has substituted a self-serving version of what she would like to be the truth for an honest and frank account of events. As will also later be addressed in more detail, I consider it highly likely that her words, and actions, have influenced the children’s expressed views about their father.

I consider the evidence of the mother’s sister to fall into a similar category. As will, again, become clear later in these Reasons, her demeanour in the witness box was remarkable. I consider she approached the task not as someone endeavouring to give a full and frank account of events to the best of her recollection but, rather, as someone “on a mission” to punish the father and to vindicate her own views and position.

When regard is had to the evidence of those other than the mother, or those close to her, a picture emerges of statements made by the children, in particular D, which are critical or derogatory of the father but accompanied by observations and reactions incongruent with those statements. Reference has already been made to the evidence of Ms G. She also gave evidence that D stated “I hate my dad” but contemporaneously with that statement said “I don’t know why”. Further, D spoke positively about her father’s household and indicated by her demeanour that she felt lovingly towards him but, once again, at the same time repeated that she hated her father.

Mr M observed the children on three separate occasions. In addition to the observations of the nature of the relationship between the children and their father set out above, Mr M also reported:

“At no time has [[B]] displayed any undue anxiety, this [is] inclusive of his interactions with his father.”

“In relation to their actual interactions with either of their parents, both [D] and [B] were affectionate.”

“[[D]] spoke happily about the things that she did at her father’s home and her mother’s home…She was extremely happy in any comments about her father…She said that there was nothing that made her unhappy at her father’s place…”

The Parental Relationship and Impacts on Future Co-Parenting?

The making of the allegations against the father under consideration have, understandably enough, had a dramatic impact upon the capacity of the parties to conduct any form of functional post-separation co-parenting.

There is, as I find, no trust and, indeed, no real respect, between the parents nor do I consider it likely that there will be in the foreseeable future. The father argues (and, I think, genuinely perceives) that the mother has actively encouraged in the children a false belief that he has engaged in sexually inappropriate behaviour involving them. The seriousness of such an allegation by one parent against another is self-evident. It will not be easily changed, if at all, whatever might be the findings of this Court. The same in my view applies to the mother if I find that, contrary to her assertion, there are other reasons for what the children have said and that the mother genuinely believes the father is a sexual (and, perhaps, other) danger to them. I have little doubt that the findings of this Court will, in that event, have little impact on that state of affairs.

I consider that, affected by the matters just referred to, neither party has any heartfelt desire to actively promote a meaningful relationship between the children and the other parent. I consider there is no real prospect of that changing. For similar reasons, I consider that facilitation of time by one parent with the other will require a court order.

As will emerge later in these Reasons, the mother is apparently unshakeable in her conviction that the father presents a sexual risk to the children. Those assertions by her persist in the face of the opinions of others (for example, Mr M, Mr C and Ms R) and, in particular Ms G and the Department who have gone so far as to tell her of their concerns about her own emotional abuse of the children. The mother, it appears, has little or no ability or willingness to “reality test” what the children might say to her, or chooses to be blind to, or dismissive of, explanations alternative to that which accord with her entrenched ideas that the children have been abused. I consider there is a real risk that the mother will continue to portray things said by the children as being indicative of sexual impropriety by the father. As will be seen later in these reasons, I consider it very likely that she plays a role in the genesis of any such statements.

I consider that the father, too, lacks any heartfelt desire to promote a relationship between the children and their mother. However, I consider that he has a much greater capacity than the mother to attribute to children the mental workings of children and to deal with statements by them with due regard for the multiplicity of factors that might underpin any such statements. I consider that is also true of his partner. The factor that looms largest in attempting to predict the words and actions of the children is their pain at the separation of, and ongoing serious conflict between, their parents and them “acting out” issues central to that ongoing battle. B’s plaintive statement to his teacher, recalled by Ms G, is a poignant example: “I’m a kid in the family, why do I have to go to all the big meetings?”

Again, I consider that the father is likely to be assisted significantly by his partner whose intelligence and common sense as a loving mother of her own children, and a loving and caring person in the lives of the instant children, shone through her evidence.

In the sense just described, a consideration of the order seen to be least likely to lead to further proceedings is an important matter.

I cannot see any possibility of these parents being able to do that which s 65DAC requires mandatorily of parents who share parental responsibility. In my judgment (and, indeed, it is, I think, effectively conceded by each of the parents), they do not currently have, nor are they likely to have in the future, any capacity to consult the other about relevant decisions, let alone the capacity to make a “genuine effort to come to a joint decision about” any particular “major long-term issue”. The conflict, mistrust and lack of real communication that would almost certainly attend any such discussion or consultation are antithetical to the best interests of these children.

Irrespective of any ultimate finding as to abuse that renders the presumption of equal shared parental responsibility inapplicable, the presumption is, in my judgment, rebutted in the best interests of the children by reasons of those matters.

I will declare accordingly. I will, however, for the reasons effectively identical to those expressed in Carlson & Bowden, fashion orders for parental responsibility similar to those made in that case. Those orders accord one parent parental responsibility in respect of “major long-term issues” but provide for input by the other parent in a manner which, although different to that required by s 65DAC, nevertheless gives them a voice.

Capacity to Provide for Needs?

It is difficult to distinguish an examination of this Consideration from the allegations of sexual harm. Absent sexually inappropriate behaviour on the part of the father, or a finding of emotionally abusive behaviour on the part of the mother (in the sense earlier referred to) no evidence before me persuades me that either party’s capacity to provide for the children’s needs, including their emotional or psychological needs, is impaired.

An attempt was made on the part of the mother to assert that the father had psychological or psychiatric issues that would impact on his parental capacities and insights. The father asserts, and I accept, that he saw a psychiatrist – at the request of the mother – during what might be seen as the dying days of their relationship. That psychiatrist, Dr S, gave evidence which was unremarkable; he opines that the father, when seen, was in a state of “heightened anxiety” which was, in turn, related partly to his personality (a “driven, ambitious fellow”) and also related to issues in the relationship with the mother.

An additional aspect of parental capacity is the capacity of each parent to cope emotionally with the orders to be made. If orders consistent with the mother’s position are made, I consider they are likely to have a very significant impact upon the father; his relationship with his children will be abrogated or very significantly curtailed. I do not underestimate the impact that will have on him or his capacity to provide for the needs of the children. But, equally, if orders to that effect are made, the impact on the children of any such reduced capacity will be minimal by reason of the minimal opportunities for interaction.

The situation is different if orders broadly consistent with those sought by the father and the ICL are made. Those orders will effect a change to the historical care arrangements for the children with a resultant significant change to the mother’s role and day-to-day life. She has, in essence, been a full-time mother since E’s birth in March 2010. The proposed orders will alter that and will, I think, have a significant emotional impact upon her.

While Mr M was (appropriately) circumspect about hypothesising how the mother might cope emotionally with any such orders, he offered the opinion, based on her presentation, that she was “considered” and “articulate” and appeared during the interview as being appropriately stressed and anxious (as might be expected). There is no evidence before me by which I am persuaded to conclude that the mother would not cope emotionally with orders consistent with the father’s and ICL’s proposals, however much, of course, she would be upset by them and consider them wrong.

Changes?

The orders contended for by the father and the ICL involve very significant changes for the children. The father has been spending time with the children and, since 7 December 2011, that time has been unsupervised. The orders proposed by the mother will also constitute a significant change for the children. This issue is particularly important for E who is yet a toddler.

The evidence presents a picture of B and D as bright, resilient and resourceful children, although both parents refer to B experiencing “meltdowns”. This, I gather, is a reference to bouts of relatively uncontrolled behaviour. The father suggests that, while that behaviour is exhibited when B is with him, it occurs less than what the mother contends occurs when he is with her. The maternal grandmother gave quite explicit evidence about B’s “meltdowns” and I gained the distinct impression that they were by no means infrequent and that, at that time of their occurrence, his behaviour was very difficult to control.

The father’s partner described, during cross-examination, having seen B have one “meltdown” which occurred in about July this year. B was, apparently, playing totem tennis and began hitting the ball as hard as he could. B proceeded to hit the racket on the ground and call himself “stupid” and “idiot”. When asked by the mother’s counsel why that evidence was not in her affidavit, Ms R stated that she didn’t consider it significant as she had seen her own son have “tantrums”. Ms R stated that the father put B in time out and “the whole situation lasted about 15 minutes.”

Mr M described B’s behaviour as “unusual” and reported that B “…had great difficulties keeping still and in fact, I did not see any situations where [B] simply sat still for any measurable length of time.” Mr M further described B as presenting in a “…very confident and assertive manner…”. That opinion is wholly consistent with my observations of B during his police interviews, the videos of which (exhibits ICL 1 and ICL 3) I have watched more than once. Ultimately, Mr M was firm in his opinion that B and D “would cope with the change” postulated by the father and the ICL’s orders, but he considered that, for E, change “is an issue”.

I accept that opinion. It is, I think significantly reinforced by the evidence of the relationship between the children and their father and between the children and Ms R and their reactions toward each emerging from witnesses other than the mother and her family, and, in particular, evidence from independent professionals.

Evidence – Admissibility and Omissions

A large quantity of the voluminous material filed by the mother is irrelevant. It emerges that she prepared much of it herself. At the outset of the trial, Senior Counsel for the husband and counsel for the ICL indicated – sensibly in my view – that they did not consider it appropriate to take up the (very) large amount of time that would have been required to deal with objections seriatim. Division 12 A of the Act, and s 69ZN in particular, pertain. Rather, the issue of inadmissible, irrelevant material was left to me to reject guided by the issues to which attention was directed during the course of the trial with the caveat that, should inadmissible material pertain directly to a specific matter upon which counsel attached particular importance, the passages would be identified and specific rulings made in respect of them.

Save in respect of the issue about to be examined, no such issues were raised.

Expert Evidence, Division 12A and the Mother’s Case

A primary concern of counsel for the mother was to attack the expertise of Mr M and Mr C and to suggest that, because of lack of expertise, their evidence was “irrelevant”. The latter submission was made, as I apprehend it, by reference to the further submission that the Court needed evidence from an “expert in child sexual abuse” in order to make the necessary findings crucial to the ultimate decision.

Within that context, discussion ensued as to the terms of ss 76 and 79 of the Evidence Act 1995 (Cth) (“Evidence Act”) and what “an expert” might mean in terms of that Act. Of course, in parenting proceedings, Part 3.3 of the Evidence Act (which contains sections 76 and 79 of that Act) does not apply. That is, within parenting proceedings, there is no statutory prohibition on receipt of opinion evidence to prove the existence of a fact. This lacuna is not filled by common law rules in relation to opinion evidence nor any State legislation pertaining to same.

The effect is two-fold: opinion evidence is admissible to prove a fact; and, it is not necessary for the provider of the opinion to meet the requirements of specialised knowledge derived through “training, study or experience”.

However, evidence which is not probative of any fact in issue fails the first test of evidence: s 55, Evidence Act (which is not excluded by s 69ZT). What, precisely, are “facts in issue” in parenting proceedings can be somewhat elusive. Facts in issue are, in the usual course, defined by the pleadings and this Court does not have pleadings. Further, in parenting proceedings in this Court, despite the mandatory prescriptive Considerations in the Act, the central inquiry is into best interests and “best interests are values, not facts”. As a result, “… perceptions, predictions and even intuition and guesswork, can all play a part in the making of an order” and the evidence in parenting cases “…is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges.”

The attribution of persuasive force to evidence from a person labelled “an expert in child sexual abuse” lies at the heart of assertions made in the mother’s case and to her objections to evidence in the ICL’s case. She asserts that there is no evidence that meets that description before the Court. She contends that, as a result, this Court does not have evidence before it by which conclusions can be reached central to the issues to be determined and, thus, the orders to be made. The absence of evidence meeting that asserted description underpins what she asserts to be the failings of the evidence before the Court and is also said by the mother to have specific effects upon her. She asserts that its absence leaves her unpersuaded (and unpersuadable) that she may have a mistaken view that B, and, it seems D, have been the subject of sexual impropriety at the hands of their father.

The asserted necessity for evidence from a person labelled a “sexual abuse expert”, and the absence of evidence from a person said to meet that description, is also at the heart of the mother’s submissions, made through her counsel, that what B has said to a police officer about what his father has inserted into his anus in B’s presence, should be taken as literally true and accepted without question. That should occur, according to the mother, unless and until “an expert in child sexual abuse” might indicate otherwise. (It might be observed that the mother does not assert that B’s denials to the police officer of any untoward conduct should be taken literally and without question. As will be seen later in these Reasons, she also does not suggest that statements by B and D indicative of maternal influence should be taken as literally true).

By way of corollary, that same asserted necessity underpins the submissions made by counsel for the mother that the evidence of Mr M and Mr C should be held inadmissible by reason of lack of the required expertise; neither, it is asserted, is “an expert in child sexual abuse”. The submissions made on the mother’s behalf, and her position more generally are, in my view, predicated on a number of misconceptions as to the admissibility of evidence under the Act, and, in any event, the nature of “expert evidence” and the role of expert evidence within proceedings of this type. I am profoundly concerned, as I expressed during the trial, that the mother has been significantly influenced in her views by her sister, by Dr A and, although it troubles me enormously to say so, by her counsel.

It is important that the issues just identified be traversed in some detail.

The Nature of the Proceedings

It is axiomatic that allegations of improper sexual conduct by one parent toward their child or children will dominate proceedings whose purpose is to arrive at orders that best meet the best interests of those children. Yet, as has been pointed out in numerous authorities, these proceedings are not about whether sexual abuse has occurred; they are about what orders are in the best interests of the children. So much has been clearly laid down since, at least, the decision of the High Court in M v M nearly 25 years ago. The amendments to Part VII effected by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) can be seen to emphasise that very point by positing the crucially important matter of potential harm as a Primary Consideration but also placing it among a further Primary Consideration and a number of Additional Considerations, all of which, if relevant, must guide the Court’s determination of the best interests of children in proceedings before it.

The words of the High Court in M v M remain germane and, in light of the manner in which the mother’s case was presented and run, are apposite and bear repeating:

The basic flaw in the [mother’s] argument is to identify the allegation of sexual abuse as the paramount issue for determination by the court … [T]he ultimate and paramount issue to be decided in proceedings for [parenting orders] is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks [a parenting order] does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

Given the nature of the arguments advanced on behalf of the mother in this case it is, I think, necessary to yet again repeat here the well-known, and often-cited, passage from the High Court’s judgment in the same case:

No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases,that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue, the Court must determine whether, on the evidence, there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or him or whom the child believes to have sexually abused her or him. But that is not the issue in this case.

Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

The Challenge to the Evidence of Mr M and Mr C

As reference to the Considerations earlier discussed makes clear, the evidence from Mr M is relevant to a number of different issues that need to be considered in arriving at an ultimate assessment of the orders that best meet the best interests of the children. His evidence does not, contrary to that which is assumed in the argument by counsel for the mother, relate solely to, or inform solely, the issue of risk. His observations are, of themselves, valuable in informing the findings that must be made in respect of the relevant statutory Considerations.

As has earlier been explained, it is, in fact, not necessary for Mr M to meet the requirements of s 76 of the Evidence Act in order for him to provide opinion evidence. In that respect, it might be observed that s 69ZT also applies to the exclusion of any provision in the Family Law Rules 2004 (Cth) relating to expert evidence. Of course, the admissibility of opinion evidence (to which s 69ZT of the Act is directed) is different to the weight to be attached to any opinion evidence once admitted. Opinions derived from “specialised knowledge based on [a witness’s] training, study or experience” in respect of matters within that specialised knowledge may well be given considerably greater weight than opinions (including lay opinions) not deriving from specialised knowledge or from training, study or experience leading to specialised knowledge. Similarly, opinions of the latter type may potentially either be excluded or rendered irrelevant as having no probative value. Neither of the last two bases for the exclusion of the evidence was argued on behalf of the wife. But, to the extent that submissions might be reframed so as to arguably fit within either category, the argument is, in any event, misconceived.

The argument is misconceived because it depends upon four incorrect assumptions. First, it assumes that evidence of the type described could be obtained. Secondly it assumes that any such evidence should be received in substitution for the evidence of Mr M and Mr C. Thirdly, it assumes that the evidence so obtained would be definitive of, or decisive of, the issues to be determined by this Court in so far as they pertain to sexual abuse. Finally, and perhaps most importantly, it assumes that the evidence would establish whether abuse occurred, or did not occur, and that this, in turn, would be decisive of the issues confronting the Court.

It ought to be noted that particular consideration was given by the legislature to evidence of the type under discussion in circumstances where, in contrast to the position here, the opinion rule does apply. Section 79(2) of the Evidence Act is the result of that legislative consideration which was, in turn, based upon the extensive report of the Australian Law Reform Commission. The Commission was alive to the evidentiary difficulties in cases where sexual abuse of children is alleged and said:

There is some danger in admitting [the category of evidence referred to in s 79(2)]. In particular, the evidence might invite a jury to reason using the doubtful syllogism: abuse of children elicits certain behavioural responses; the complainant exhibited some or all of those behaviours; therefore, the complainant is likely to be telling the truth about being sexually abused, or is likely to have been sexually abused, or was sexually abused. The reasoning is doubtful for several reasons. However, the dangers of such expert opinion evidence being misused can be addressed adequately by judicial comments or directions and the application of Part 3.11[of the Evidence Act].

Whilst obviously enough directed to criminal cases, and, thus, cases where s 79 of the Evidence Act applies, protection against the syllogism referred to is very much at the heart of the Court’s tasks in cases of the type under consideration. To repeat, the instant inquiry is as to best interests.

Also, opinion evidence (properly so called) is the ultimate expression of training and study within a specialised area, but as applied to established (or assumed) facts. In parenting proceedings, involving the Court making assessments of the type referred to by Kirby J in CDJ v VAJ earlier quoted, opinions are based on some observations and other data that barely meet the definition of “facts” and certainly do not meet the criteria of empirical certainty. In that context, the words of Mansfield J are important:

… there are great practical differences between experts’ reports from different disciplines … science and mathematics are exact disciplines, whereas disciplines of anthropology, humanity, much of economics and history are not. There is a longer list which could be created. In most if not all disciplines, opinion is formed by reasoning drawn from a group of “facts”. The facts may be drawn from a scientific experiment, historical documents or a series of conversations held with members of a native title claimant group. However, “facts” themselves have varying degrees of primacy or subjectiveness. Some facts are now, in reality (and despite the deconstructionists) incontrovertible. Our communication systems make them so: the use of numbers in measurement is a clear example. Some are obviously more subjectively perceived: descriptions of persons or events, and the like … [provide examples]. Some are complex and themselves involve judgment. In the realm of expert evidence, the primary data upon which an opinion is based may comprise a mixture of primary and more complex facts. The opinion may then be further based on interpretation (sometimes requiring expertise) of those facts and that stage may require an exercise of judgment, sometimes fine judgment, by the person concerned.

I would respectfully add to his Honour’s list of inexact disciplines much of psychology and social science. That is not to do disrespect to either; rather, it is to distinguish the nature of the primary data in those disciplines from the primary data derived from measurement and empirical observation. In parenting cases, one of the quintessential difficulties confronting this Court is the assessment of evidence where “facts” have a very high degree of subjectiveness and this is never more so than in cases involving allegations of sexual abuse of a child. Many of the “facts” upon which opinions are based – and upon which decisions are based – are indeed “complex and subjectively perceived”.

Examples of these matters can be seen in the evidence of Mr C and the objections to it. Mr C administered a number of psychometric tests to the husband. His ultimate conclusion, based primarily, or at least substantially, on the results of those tests is that the father is at “low risk of sexual offence recidivism”. All of the tests administered are based on an assessment of “recidivism”. That led to questions from both me and counsel for the mother: in short, how can a test related to recidivism be helpful as a measure when the occurrence, or risk of occurrence, of conduct is not yet established?

Mr C reiterated that the results of the test were to be used as an “aide memoir” (indeed, Mr C states the same in his report dated 17 July 2012 at [118]). Mr C went on to state that he determined to administer the tests, and in particular the STABLE 2007 because, inter alia, there are (for obvious reasons) no tests which measure the risk of offending in people who have not been convicted of a sexual offence and, further, the constructs which the test measures (including, for instance, deviant sexual preferences and emotional identification with children) could, Mr C opined, be relevant to the issues which this Court must determine.

Again, the evidence of Mr C is not directed to the issue of “whether abuse occurred” but rather to providing evidence, among other evidence, by which any risk might be assessed by the Court.

In that context, I make it clear that I do not attach significant weight to the test results detailed by Mr C. However, I consider his observations of the children with their father to be highly relevant to the issue of the children’s best interests. Those observations were not predicated upon, nor influenced by, his determination of the father’s risk of “sexual offence recidivism”. In attaching significant weight to them, I am comforted by their striking similarity to the observations made independently by Mr M. Mr C observed each of the parents with the children and reported that:

B and D “asked confidently about when their father was to arrive”;

B “displayed a positive affect and was excited to see his father”;

D “also displayed her excitement”;

“[D] and [B] were observed to physically position themselves close to their father…”;

At the end of the session, “[B] was reluctant to leave his father. [D] was also observed to encourage her mother to say goodbye to her father”;

“[B] and [the father] were mutually reciprocal and this interaction style manifest[ed] in a balanced and positive affect that permeated the observation”; and,

“[The children] displayed having a close relationship with their father…”.

The Absence of Evidence from a “Sex Abuse Expert”

Ms Merkin submitted on behalf of the mother that “[t]here is no evidence from any expert report writer that can properly inform this court about any findings in relation to sexual abuse or risk of sexual abuse in this case.” In submitting that the evidence of both Mr M and Mr C ought to be excluded, Ms Merkin referred (selectively) to my judgment in Donaghey & Donaghey (2011) 45 Fam LR 183.

The selective use of my judgment in Donaghey by Ms Merkin is apt to misconstrue what was meant by the statements counsel has relied upon in written submissions. Whilst Donaghey and the present case are similar in that both involve/involved allegations by the mother of sexual abuse of the subject child/children by the father, in Donaghey the mother relied upon evidence from a psychologist who purported to provide opinion evidence relating directly to the question of whether abuse had occurred. The psychologist based that opinion on his contention that he had observed the “general indicia of sexual abuse” in the subject child. When pressed by me as to what literature he was relying upon to determine what was the “general indicia of sexual abuse”, the psychologist could not point to any peer-reviewed, published, research but, rather, directed me to conduct a “general internet search” using the search terms “signs of sexual abuse.”

It was in the context, then, of a psychologist purporting to assert that a child had been sexually abused on the basis of “booklets produced by the sexual assault service” and internet searches of “signs of sexual abuse” that I said (emphasis in original):

56. In (at least) cases of this type, “well-recognised peer reviewed research” is, in my respectful view, a concept which should cause significant pause for thought. As but one example of the concerns to which I refer, Ceci and Bruck, presenting the Amicus Brief for the case of State of New Jersey v. Michaels, compiled by the Committee of Concerned Social Scientists (2007), say: “It is important to understand that this is a rapidly expanding area of inquiry. Reviews of the literature that were published only a few years ago, are now out of date”. The concern is exacerbated significantly when regard is had to the (notorious) fact that, since the Full Court in B and R made reference to data “… partly constituted by readily accessible public information of which it would be expected that a trial Judge would inform himself or herself…” the sources and volume of “readily accessible public information” have each increased enormously, indeed exponentially. There is no doubt about the volume and accessibility of information on the Internet; the issue is its reliability or, perhaps more accurately, how to assess its relative reliability when compared to other pieces of information also emanating from the same public resource.

57.At the very least, as it seems to me, when issues as serious as child abuse arise, the introduction of such research as evidence should come about (as the Full Court effectively suggests in McCall) by the means of an independent expert who possesses requisite training, expertise and experience in dealing forensically with cases in which sexual abuse of young children is alleged, and who, crucially, as part of that expertise, is also familiar with relevant peer-reviewed research. Crucially, that training, expertise and experience should permit them to properly posit particular pieces of research within the scientific mainstream. Caution is needed on the part of the Court when reference is made to a particular study or studies – even by a properly qualified expert. Such a reference can be of little assistance unless it is known where the study, or studies, sit within the accepted body of knowledge. As the Honourable John Fogarty AM said above (@ 272), “You could fill a library with articles on this topic arriving at differing conclusions”.

Ms Merkin, relies upon my statements in [57] to submit that Mr M “does not ‘possess […] the requisite training, expertise and experience in dealing forensically with cases in which sexual abuse of young children is alleged …’ and he cannot ‘properly posit particular pieces of research within the scientific mainstream.’” Mr M does not posit any opinion regarding whether or not the children have been sexually abused, nor whether they are at risk of being sexually abused. Similarly, I have earlier said that I attach little weight to the assessment by Mr C of the father’s risk of sexual offence recidivism. Like Mr M, and unlike the psychologist in Donaghey, Mr C does not proffer an opinion regarding whether or not abuse has occurred, nor, whether or not the father poses a risk of sexual abuse (which must be distinguished from any contention regarding risk of recidivism).

I consider that the true basis of the arguments made by counsel for the mother against the admission of Mr M’s and Mr C’s evidence is based on the assertion earlier addressed, namely that the “child abuse expert” the mother sought to adduce evidence from would “provide the answer” to whether the children had been abused (or not). I do not accept that premise. Moreover, as clear authority establishes, it misconceives the nature of the inquiry.

Further, and in any event, any opinion so expressed is only as good as the data upon which it is based; precisely the point I was making in the extracts from Donaghey relied upon by counsel. Save if the Court was to permit the children to be interviewed by this asserted expert, the data upon which any such opinion would be based is precisely the same as the data which the Court has before it. It is for the Court to assess risk; not the mooted (or any other) expert. Moreover, the children’s alleged behaviours and statements do not emerge from a laboratory or from similar controlled circumstances which cloak any collation and assessment of data with the relative purity of scientific inquiry; they emerge from a factual matrix coloured by the subjectivity earlier referred to, much of which pays homage to the syllogism referred to by the Australian Law Reform Commission earlier quoted.

Any suggestion that the children should be re-interviewed to provide relevant data to an asserted “child sexual abuse expert” falls foul of precisely those problems and, even more importantly, risks being abusive of itself; again B’s poignant words earlier quoted resonate loudly. B has been interviewed (in one form or another) by his mother and the mother’s sister. The mother says this took place over the whole afternoon with both the mother and sister present. Her sister said it took “an hour or an hour and a half”. It was videotaped. He has also been “interviewed” (in one form or another): three times by Detective T; once by Ms G, together with her colleague; once by Mr C; and, on three occasions, by Mr M. D has been interviewed (in one form or another) by: Ms G; Mr C; and, by Mr M (on three separate occasions).

As will emerge, I also strongly suspect that D has also been the subject of interrogation by the mother and, most probably, by the mother’s sister. The mother’s sister indicated that D was present when B was being “interviewed” by the mother and that both B and D had been “interviewed” “by themselves”. I consider it more likely than not that D was also questioned about behaviour on the part of the father.

I would not countenance B being interviewed again – by a “child sexual abuse expert” or anyone else.

Is There an Unacceptable Risk of Sexual Abuse?

Overview of Allegations of Sexual Misconduct

The essential harm of a sexual nature alleged by the mother as against the father consists of the assertion that the father has inserted a number of different items into his own (i.e. the father’s) anus, at different times and (it seems) different locations, in the presence of B. There are also assertions, made more vaguely and to different people, that the father has exposed B to pornography on a computer.

Disturbingly, since the allegations just described were made, allegations against the father have expanded to include “suggestions” that both B and D may have been the subject of sexually improper behaviour. The quotation marks are used intentionally to signify that the assertions in this respect lack any real particularity and the mother was, at least ostensibly, equivocal in making a direct assertion of sexually improper behaviour in respect of either of the two younger children.

B alleges that his father has inserted at least 17 separate items into his (the father’s) anus in B’s presence. The best evidence of these “disclosures” (to use a ubiquitous, but loaded and over-used expression) comes from three videotaped interviews conducted by Detective T on 26 April 2011, 28 April 2011 and 23 May 2011. Each of those interviews was instigated by actions or requests of the mother (and, as she would have it, B).

As Ms G explained in oral evidence, the police and the Department work together in arriving at their assessment – the former with a focus on whether criminal charges should be preferred and the latter focussed on whether direct intervention in the family, in one form or another, is required under State law. As has already been referred to, Ms G interviewed both children at their school. The mother was unaware that each of those interviews was taking place. Those interviews took place on 2 August 2012 – that is, only a few weeks prior to the commencement of the trial, and after, it might be noted, the police interviews.

I have already referred to what has been said by the Department; the allegations of sexual abuse by the father are “unsubstantiated”, but emotional abuse at the hands of the mother has been “substantiated”. It is important to record a crucial component of the context for that assessment. Counsel for the mother challenged Ms G as to whether she had commenced the assessment with a preconception that the children couldn’t, or shouldn’t, be believed. In evidence which I both accept and consider very important, Ms G said this (emphasis added in each case):

Ms Merkin: So, Ms [G], have you also, as part of your professional development, been exposed to the knowledge available on coaching of children?

Ms [G]:What do you mean “exposed to”?

Ms Merkin: Well, in your professional development, have you received training how to differentiate between a child that is making a disclosure that is genuine and a child that is making statements that have been coached?

Ms [G]:I guess, generally, we believe what children tell us. Whether a parent has coached or not, that would be a professional judgment and it is something that, along the way, we are trained before we start, we are trained as we go on, but I am not aware of there being any specific training that is specifically around a parent coaching a child to make disclosures.

Ms Merkin: No. But my question to you is: have you received professional development training to assist you in differentiating between a child’s statements that’s genuine and a child’s statements that may come about because of coaching?

Ms [G]:Not specifically.

Ms Merkin: So, how do you know, or when you ask a child questions and a child gives you statements do you look for things like authenticity in respect to their description of the surrounding events or the surrounding characteristics of where they are positioned, where they have said these things have occurred? Do you look at, for example, variation in what the child is claiming?

Ms [G]:I guess it depends on the child’s age. So, some children are old enough and articulate enough to contextualise where the abuse has occurred, so it would depend on the child’s age. But, my assessment is not just on one specific interview. Our assessments are holistic. That is why we speak with everyone and we look at all of the evidence. So, I think children’s interviews are very important but it’s not the only piece of evidence that we use.

Ms Merkin: Yes. So when you interviewed [D] and you asked her questions about “how do you know this?”, for example, when [D] described things, and she could give you no explanation for why she said that her mum’s job was to make people believe about the rude stuff, did you consider that the child was giving you no detail about how this had occurred?

Ms [G]:Well she also told me that she knew because her mother had told her. She told me several times that that had happened.

Ms Merkin: And, the mother nevertheless denied it, you’d agree?

Ms [G]:Yes she did.

Ms Merkin: And, when you spoke to the maternal grandparents, did they offer you any insight as well with respect to what [D] was saying?

Ms [G]:They stated that all of the Family Law Court issues are separate. They stated that at one point, the mother had a job where she worked for the government and I didn’t ask them this, this is information that they freely provided me, they spoke about the mother having previously worked for the government and that it’s possible that [D] just calls her mum’s work “working for the government” because she knows that that’s a job that her mother has previously had.

The police consider that there is no evidence upon which any criminal actions should proceed. Whilst their position can be expressed formally in that way, evidence adduced during the hearing – remarkably, by counsel for the mother – put the investigating detective’s position more directly. In an e-mail sent by the detective to Ms G – which, I emphasise, was intended to be a private communication – the detective’s assessment was that the mother was “…a drama queen who is out to get her x-husband.” I intend no criticism of the detective in citing that quote; my impression was of an experienced, committed police officer doing a difficult job offering a private comment to a work colleague. Sometimes unguarded opinions from people experienced in dealing with cases of this type say as much or more as their formal comments. In my view, such is the case here.

The father implacably denies that he has ever at any time inserted anything into his anus as alleged by B or that he has engaged in any conduct that could meet that description. He also denies implacably that he has engaged in any form of sexually improper conduct in B’s presence or the presence of the other children or engaged in any behaviour abusive of them.

The Role and Evidence of Dr A

Much of the affidavit of Dr A, a long-time friend of the mother, is irrelevant. Indeed, much of it could be described as gratuitous criticism and comment rather than fact (or even opinion). Dr A plays a significant role in these proceedings by reason of the mother clearly and unequivocally attributing an opinion expressed by Dr A to her on 6 April 2011 as being that which, in effect, “made the penny drop” in the sense that it immediately (and, as it turns out, unshakeably) inculcated a belief in her that past and present conduct of the father was indicative of him presenting a sexual risk to the children.

In that context, it is important to record that, in the 275-item chronology filed by the mother, there is listed incidents stretching back to 2002 and 2003 which are now said (presumably as some form of tendency evidence) to be indicative of, or to build a picture of, sexual risk. I instanced an example early in these Reasons. None of those incidents, or the combination of them, caused the mother to take any action, or to be concerned about sexual risk at the time they occurred. Indeed, notwithstanding these alleged incidents and the alleged concern, the mother proceeded to have three children with the father. Furthermore, the magnitude of the change in the mother’s attitude towards, and perception of, the father is plainly evident from a letter written by the mother to the father in February 2011. The letter was written some two and a half years after two incidents (photographing of B’s erect penis and the alleged statements by the father whilst playing “Batman” with B) that the mother now asserts are sinister. In that letter, the mother says “[a]s a father, you are loving, kind and funny! The children adore you. And rightly so. I treasure the memories I have of you playing with the kids, laughing, relaxed and open.” That letter is dated 2 February 2011.

Only two months after she wrote this letter, the mother had secreted herself and the children and had been in contact with both the Department and the Police regarding what she alleged was the risk of sexual abuse (and, it seems, other harm) posed by the father. Only two months after the mother wrote the letter, a conversation with Dr A convinced her that the father posed a sexual risk to the children. I have no reason to question the authenticity of the mother’s sentiment in that letter. I consider it, unlike much of the evidence put before the Court by the mother, to be a frank (and contemporaneous) account of the mother’s feelings towards her husband and, more importantly, the father of her children.

During the April 2011 conversation with Dr A, the mother told Dr A about B inserting Lego into his anus and a photograph of B’s erect penis (later to be referred to). As a result, Dr A advised the mother to contact the Department and to “interview” B. According to Dr A:

22.In April [2011] I told [the mother] clearly there could be major risks in [the father] accessing the children, I advised her to seek further advice from services that are local, and specialize in sexual abuse, child abuse, and protective issues in general and pending their advices to her, to minimise access.

Not only do the doctor’s opinions play a crucial role as the catalyst for the mother’s continuing belief, and the actions she took subsequently, his specific opinion was the cause of her interviewing B and videotaping it (“interview” is the word used by both Dr A and the mother). The mother does not have, or purport to have, any training or experience in interviewing children who may have been the subject of sexual impropriety.

Dr A was cross-examined primarily in relation to this role in informing the mother of his beliefs – or purported opinions – about the risk posed to the children by the father. That cross-examination can be seen to emanate from [25] of his affidavit. The opinions there contained are:

…I believe there has been and continues to be a severe risk of physical, emotional, and sexual abuse by [the father], on his children. I believe there is a great risk that his motivations and interactions with the children is based negligibly on parental love, but mostly unhealthy sexual drives.

Dr A’s opinions are, as he readily admitted, based solely on what the mother has told him of what she has seen and heard the children do and say. Otherwise, Dr A’s evidence is that he has:

Never met the father;

Never seen the children with their father;

Only communicated with the father on two occasions via telephone (one of those occasions being via SMS message);

Never seen the photograph referred to at [21] of his affidavit (which, it should be noted, is an important factor in his opinions);

Never spoken to the children about these issues;

Never seen any of the three police interviews involving B, or any part of them;

Never, as a result, been able to observe B’s behaviour during those interviews;

Never seen B’s denials during those interviews that his father has done anything improper to him;

Never been informed of any denials by B that his father has done anything improper to him;

Never seen Mr M’s reports nor been informed of any of his observations or opinions;

Never seen Mr C’s report nor been informed of any of his observations or opinions.

While Dr A’s loyalty to his friend, the mother, whom he has known “…since she was 9 years old” might be commended or even admired, I find it extraordinary, and not a little troubling, that a medical practitioner who, presumably, has both professional and life experience, and whose affidavit reveals him to do at least some work in the field of psychiatry, would express the opinions – and the strength of opinions – to which I have just referred.

I find it frankly remarkable that any person, let alone a person with the doctor’s professional and life experience, would opine – in respect of a father whom they don’t know, have never interacted with and have never observed with his children – that that father is motivated by “…mostly unhealthy sexual drives…” and “negligibly on parental love…”.

The lack of any real basis for giving the opinions which he did causes me, of itself, to conclude that Dr A’s opinions, and his evidence more generally, is of no assistance in informing the decision to be made about risk. That conclusion is reinforced by his evidence exhibiting, in my view, partiality to the mother and a complete lack of objectivity.

The Mother’s Observations, Her “Interview” and the Video Camera

Three potentially helpful pieces of evidence were, on the mother’s evidence, captured on a video camera.

The first in time, in about late November 2008 when B was about three and a half, is the father taking a photo of the child with an erect penis. The father admits this. He says it was taken as a joke “to be used at his 21^st” and says he now recognises it as inappropriate. The photo, he says, is redolent of that (now admittedly inappropriate) purpose. That is, the photo would, on his contention, be, of itself, indicative of an inappropriate humorous purpose as distinct from any sexual overtones. There is no evidence that the father has ever denied taking the photograph or given an account of a purpose different to that which he now asserts.

The mother contends that she “found” the photograph whilst using the camera. By way of contrast, the father says he showed the photograph to the mother openly. The father asserts that he did not delete the photograph. The mother contends that when she saw the photograph she asked the father why he had taken it and whether he had helped B get the erection, and the father deleted the photograph. The father denies that conversation. The mother deposes now to “feeling quite sick, confused and afraid” at the time as a result of seeing the photograph. Indeed, the mother states that the following day she asked B whether the father had touched him on his penis in response to which B (who, it should be remembered, was three and a half years old at the time) allegedly said “Dada puts safety pins up his bottom and touches himself”. The mother says that at that time she “…really didn’t believe [B].”

Her actions would appear to confirm that and to give cause to wonder about the evidence of her alleged contemporaneous feelings; she went on to have another child with the father (the child E), becoming pregnant with him some 15 months later and later sent the letter earlier referred to.

The second potentially helpful piece of real evidence results from an alleged film of the father and the child when the child was playing “Batman”. This is said to have occurred in early 2010. It is said by the mother that she saw the father filming B whilst asking him whether he thought Batman would have a “Batman-shaped penis”. The mother attributes sexual connotations to that alleged discussion.

The third potentially helpful piece of real evidence is also an alleged film of the mother’s “interview” with B, performed at the suggestion of Dr A, which took place on 10 April 2011. This was, the mother says, recorded on the same camera as each of the other two incidents.

This “interview”, and evidence of it, is extremely important. First, it is the first time that B (allegedly) says anything directly that attributes behaviour to his father as earlier described since the “pins statement” made some two and a half years previously. There was, according to the mother, approximately an hour of footage, although the process of interviewing “stopped and started” so the process may well, she says, have taken “longer than an hour”. The mother says that D was present at the beginning of the interview although she left after “five minutes.” The mother’s sister (Ms X) was present during the interview. Ms X says that the interview took an “hour and a half”.

The demeanour of B during that interview and its attendant circumstances is each also potentially important. The mother says she asked “open-ended questions” during that interview; the assessment of that assertion is potentially important. The mother and her sister suggest that the interview was conducted in an atmosphere of relaxed calm. The sister denies asking any questions of either child. Having regard to the presentation of each of the mother and her sister (and particularly the latter) in the witness box I consider that to be extremely unlikely; again, the assessment of the assertion of a calm atmosphere by direct evidence is potentially important. Again, I consider it highly unlikely that this was the case.

Despite its considerable importance and its potential to inform any investigative process, the existence a video-recording of the interview, only came to light during the course of the proceedings. This is despite significant attention having been directed to the obtaining of the picture of B’s erect penis (for reasons which will be obvious from what was earlier said) during the course of preparation of these proceedings. Correspondence passed between the then solicitors for the mother and the father’s solicitors in which the mother expressed adamant opposition to anything other than supervised time. No mention was made of the recording of the interview. No mention was made of that recording to the police officer who conducted the interview with B a fortnight after the mother’s interview.

The mother asserts that the video camera is missing. I think her evidence in that respect is false; I think it highly likely that she does know of its whereabouts.

The mother asserted that the last she saw of the camera was when it was in one of a number of boxes containing various possessions of the mother and the children. The mother alleges that that box has “gone missing” during one of the many moves the mother has made since separating from the father. In terms of these moves, the mother states that, following separation: she stayed briefly with her parents; then moved to her sister’s home for “a few days”; before moving to a caravan park as she “was deeply afraid [the father] would try and take the children”; after which she stayed in an apartment in U; before moving to a women’s refuge for “approximately three weeks; after which the mother acquired “more permanent accommodation in the northern suburb of Brisbane”; and, from that “more permanent accommodation”, the mother moved to her parents’ home where she presently resides with the children.

The mother was questioned about the location of the camera. Her evidence is important:

His Honour:And we know that the camera was available, and its whereabouts known to you, from August 2008 till shortly after April 2010, is that right?

Mother:2011.

His Honour:2011, I beg your pardon.

Mother:That’s correct.

His Honour:Can you pinpoint when was the last time you saw this camera?

Mother:It might have been November.

His Honour:November last year.

Mother:Yes, I can’t pinpoint exactly. After I used it, in April, I was quickly told that it wasn’t – by the Department when I went to see them on the 21^st – that it is not something you do, and of course I was horrified.

His Honour:21^st of what?

Mother:Sorry, 21^st of April when I went to see Mr [O]. So I was horrified.

Mr Page:Horrified at what?

Mother:That I had done something I wasn’t supposed to.

Mr Page:Like what?

Mother:Interview the children; talk to them about their experiences.

…

Mr Page:You didn’t tell Mr [T] that you’d done this.

Mother:No I didn’t mention it to Mr [T], I don’t think so, I might have, it wasn’t something I tried to keep a secret.

Mr Page:You didn’t tell it to the Child Safety Officers…Mr [O]?

Mother:I believe I did mention it to Mr [O].

Mr Page:What do you mean mentioned it? Did you tell Mr [O] that you had in fact video and audio recorded an interview that you carried out with [B], earlier that month.

Mother:I don’t know if I said those exact words, but I told him I had interviewed the children, whether I went as far as saying I interviewed them with video and audio, I am not sure.

His Honour:Sorry, just, again, I am fixated on dates here. 21 April 2011 is when you, as I understand it, when you pinpoint being told by the Department that it was inappropriate for you to have done that. So we know that the camera has gone missing after you knowing of its whereabouts for about three years, after you were told it was inappropriate for you to conduct the interview which was contained on the camera.

Mother:That’s right, it wasn’t directly after though; there was a period of time where I had it. I was moving around quite a lot, I had a lot of boxes and I know that obviously there is another perception that can be had of why it’s gone missing, all I can say is the fact.

…

The mother asserts that the only person to whom she made mention of her interview was an officer at the Department. No evidence is tendered from the Departmental file (which was produced pursuant to subpoena) to support that assertion. I find it extremely unlikely that reference by a mother to her filming an interview with her child which purportedly indicates sexual abuse would not have been noted in the file, and indeed, acted upon.

What is known about the videoing of that interview, on the mother’s own evidence is:

It was not mentioned to anyone (outside of her sister and parents);

She had the camera with the video of the interview (and that of the “Batman incident”) in her possession at least until April 2011;

She did not produce it to the Department;

She did not mention it or produce it to the police (yet she last saw the video camera in November 2011 – that is six months after the last of the three police interviews); and

Despite it being alleged that the same camera had the “erect penis photo” on it before being deleted by the father, the mother refused to make it available to the father’s solicitors so that they could ascertain whether the “hard drive” or “SD card” within it still held the photo, notwithstanding its alleged deletion.

I consider her statement that she didn’t reveal it because the Department expressed concerns at her having interviewed B is a half-truth. I strongly suspect that the mother well knows where the video camera is and refuses to produce it out of concern about what might be made of that which it contains, particularly by this Court.

Observations

It is important in this context to record that, leaving aside the alleged “disclosures” by B and D, the only direct observations of behaviour which the mother alleges gave (and give) her concern about sexual misconduct having been perpetrated on any of the children, are those of the mother. Such observations comprise B inserting Lego into his anus on two occasions and D “masturbating” and “sniffing” her underwear. The second of the two incidents of B inserting Lego into his anus is not referred to by the mother in her affidavit evidence, nor in any statements made to the police, the Department or Mr M; it was revealed for the first time in her oral evidence.

The first observation relates to an incident when B and his cousin were bathing together in March 2011. They were making things from Lego in the bath. The mother says she observed “[B] on his back with his legs in the air” and that he was intentionally inserting a piece of Lego into his anus. The mother said to him “we don’t do that”. B laughed and, the mother says, pulled it out. In respect of this incident, the mother:

left the room and left the Lego in the bath;

did not inspect B’s anus afterwards;

did not take B to a doctor;

did not discuss the incident with a doctor or any medical practitioner at that time.

The second incident, revealed for the first time in oral evidence, and which is said to have occurred at holiday apartments in late April/early May 2011 is described in almost identical terms. The same lack of action on the mother’s part attended it.

The Children’s Statements About What the Mother Said and Did – Coaching?

Each of the three interviews conducted by the police, and the interviews conducted by Ms G, contain troubling statements by the children indicative, at face value, that the mother has “coached” the children or provided an “agenda” for them as to what should be said to those interviewing them.

Neither the mother in evidence, nor her counsel in submissions, was able to offer any reason why, if B’s statements indicative of abuse are said to be taken as literally true, B’s and D’s statements of maternal influence should not also to be taken as literally true. It is, I think, important to quote in full Ms G’s evidence when speaking of her interviews with B and D, noting, again, that the interviews took place at school and without forewarning to, or in the presence or company of, the mother. In respect of the interview with D, Ms G recounts (emphasis added in each case):

Ms [G]:When I spoke with [D] she immediately was quite chatty. She spoke to me about her teachers and what she had been doing in class and which teachers she liked. She said that she has been staying at Dad’s place, and that Dad had dropped her off that morning. I asked her about Mum’s house and just general “tell me a bit about Mum” and she told me that she likes going out for coffee with her Mum. She told me that her mother’s job was to make people believe that her dad does rude things to her and her brother, and that she tells everyone that this happens. [D] also told me that her brother had… also told her that her Dad had done rude things to her brother and that she knew the information as her mother had told her and she knew the information as her brother had told her. I asked if there was any other … sorry let me just read my notes … “yeah, I was told. My mother told me, and I heard it, and now everyone knows, even my friend, and sometimes [B] tells me and mummy tells me.” And then she told me that her brother had told a police officer. She named the police officer as being … and she described him. She said that her brother didn’t want to speak with the police officer, but her mother gave the brother a treat and her a treat. I asked her what she needed to do to get that treat, and she told me that she couldn’t remember. And that she knows about, that dad does rude things because her mum tells her, she kept repeating that to me. I asked her, “what does she say?”, “how do you know?”, and she didn’t elaborate any further. She told me that she hated her dad and that she hated her dad because she couldn’t move to the Gold Coast and that was her dad’s fault, and her Mum was trying to get the government to allow that to happen. When I asked her what the rude things were, she said that “there were rude things”, she said “I don’t know, only my brother”, “it’s kind of private and rude.” She said that she’s spoken to all of her friends about it and that her mother “tells me”. She said “I don’t speak to dad about it” because she is worried that he will get angry.

…

Ms [G]:[D] was worried that her father would get angry. She said “I hate my dad, but [B] loves him. I don’t know why I just do.” She said that she had spoken to her mother about this and that she was going to keep that a secret. She did speak very positively about dad’s household. So, she spoke about hating him. I asked about what that house was like and she spoke about playing on the trampoline. She spoke about Dad having a girlfriend …, and there being two kids there … and that they all played together. So, although she was saying that she hated him, she spoke very positively about that environment. She said that [B] hadn’t told her dad either about the rude things. I asked her directly if anything rude had happened to her, and she said “no.” She also spoke about her grandparents who she referred to as … and … and they know about it, and they say that it’s not right what dad would do to them. And that was basically that interview.

Ms Kirkman-Scroope:And what was [D’s] affect like when she was giving you all this information, which sounds like quite a lot of information?

Ms [G]:I think she felt that she hated her dad; she was quite strong on that: “I hate my dad”. However, when she spoke about dad’s home environment, she did speak positively about it. She spoke about dad’s girlfriend and having, it appeared as though she had quite a good relationship with her, that she spoke with her a lot and she liked the children there as well.

Ms Kirkman-Scroope:So her body language was consistent with what she was saying to you, would you say?

Ms [G]:Well, she presented as quite a happy young girl so, I guess, it’s a difficult question to answer because the moment that she said “I hate him” she also followed that up with discussions that she’d had with her Mum and that she called her Dad a liar. She said that “my Dad’s a liar because my Mum is right.”

…

Ms Merkin:When you interviewed [D] …she talked to you about hating her father she said because she wanted to move to the Gold Coast. Did you ask [D] about why it exactly was why she associated the father with not moving to the Gold Coast?

Ms [G]:She actually told me…It was something to the effect of that her Dad and the government won’t let her and her Mum was trying to sort that out.

Ms MerkinSo could she, or did she explain to you, what she meant by the government.

Ms [G]:No, I didn’t ask her what the government was.

…

In respect of B, Ms G referred to her concerns emanating from B referring to receiving a reward from his mother for talking to the police and, in particular, to starting each of two police interviews referring directly to that reward (emphasis added in each case):

Ms Merkin:OK, so if [B] is doing this, showing the size [of an object he said his father had inserted into his own anus], do you agree that that becomes a detail that is more likely to be genuine, if a child explains a size using his own body and his own fingers to indicate a size.

Ms [G]:I guess he provided some detail but in the context of that interview, whether that’s accurate in the context of that interview, and the other things that were said during that interview, and what he had said at the start of the interview.

Judge:What are you referring to when you say that?

Ms Merkin:That at the start of two interviews, he said I’m going to get a Blade Blaze for being here, and then he also, in another interview said, “so, if I do a lot, I get Lego. But I don’t get it today” and he sort of crossed his arms and then [Detective] … [[T]] asked him, “now you told your Mum that you wanted to talk to me?” and, [[B]] said, “no. I wanted the Lego, that’s why I’m doing it.”

…

Ms Merkin:[B] was also asked by the detective, “I heard that you said (sic) your Mum that you want to talk to me, did you tell your Mum that you want to talk to me?” And that’s when [B] replied again, “no. But I wanted to get a Lego.” You were aware when you spoke to the mother that the mother said that the first time that they went to the Detective to have the interview for [B], that after that event she went to the toy store and bought each child a present. Do you remember in the interview when the mother discussed that with you?

Ms [G]:I can’t recall if the first interview, she said that, but when I spoke with her last night, because at that time, the time I spoke with the mother, the first interview, I hadn’t viewed those DVDs. So, I have only recently viewed those DVDs, so it was only last night that I spoke to her when she asked me why would I be substantiating [emotional] harm [by the mother], that I had that conversation and she informed me last night that they were living in a caravan park, they didn’t have much toys and that after the interview, she was going to get, I asked her why would the kids say that, and she said she was going to get them a toy that evening, but I believe the first interview… I’m not sure if we spoke about that.

Ms Merkin:But last night you spoke about it.

Ms [G]:Yes, I did. Yes.

Ms Merkin:So, if she explained to you that after the first interview, she went to the shop and bought a toy for each child, if you have a precocious child or a child that who is quite assertive, and has woken up to the fact that last time he went to speak to the detective he got a toy, isn’t it also the case that the child has made up, has said this because that’s what he wants, not necessarily what his mother had told him?

Ms [G]:Well, I asked the mother that last night. That was what I thought that she was inferring. I said to her, “are you saying that [B] associates speaking with police and getting a toy?” and she said “no, that’s not what I’m saying”. So, [B’s] not my child, she knows him better than anyone, and she said no, that wasn’t the case.

As the excerpts from the transcript reveal, the mother explains the coincidence in time between the police interviews and the children receiving toys, not as being related to the interviews but, rather, because they were then living in a caravan park and didn’t have access to any, or as many, toys. I reject her explanation. I have little doubt that the children had been made well aware by the mother that a reward would follow them giving to the police what she had made clear was the account she was desirous of.

In addition, statements made by B during the police interview are indicative of his mother having discussed her concerns and the father’s alleged conduct directly with him. For example, in respect of the photograph of B’s erect penis, B says (of an incident, it ought be noted, that occurred when he was about three and a half and some three years prior to the interview): “… my mum found that rude picture of my todge [penis], um, his, she told my dad that it’s not all right and he’s like ‘that’s okay’ and so he had to delete it”. Further, D repeatedly told Ms G that her mother had told her that her father does “rude things” to her brother.

What Does the Child B Say Occurred and Its Probability?

What did B tell the Police?

Counsel for the mother said during cross-examination of Ms G that “at points of time in that [police] interview, the child said some things that were difficult to believe. Like ‘dad put pizza up his bum’” (emphasis added). That apparent concession prompted me to request counsel to seek very clear and specific instructions. Having sought specific instructions, counsel confirmed that each and all of what B alleges should be taken as literally true.

Over the course of the three interviews with Detective T, B alleged that his father inserted at least 17 different items into his anus. The manner in which B made those allegations is, in my view, highly relevant to an assessment of the reliability of what B is saying and will be returned to. B claimed that his father inserted the following objects into his own anus:

Nails;

A needle;

A “blue and black” “curved” “triangle thing”;

A “hook” and that he does this “every day”;

“Some driftwood” whilst he and his father were at the beach;

A piece of plastic covered in glass;

A jellyfish;

Some glitter which he “does…with glue”;

Chips;

A small piece of pizza;

“Sharp, sharp” metal;

A pen;

Plaster;

A marble which grew “as big as the room” when the father removed it from his anus;

An “electric cord” whilst in the “security area” of Bunnings;

A “bow tie”; and

A bouncy ball.

It should first be observed that, during B’s initial police interview with Detective T on 26 April 2011, he stated that the only object his father had put up his anus was the triangular object. B expressly stated that his father had not put needles up his anus (this was in answer to a direct question from the detective who was referring to the alleged statement made by B to the mother some three years earlier).

However, when B returned for a further interview on 28 April 2011, he stated that, in addition to the triangular object, he had also seen his father insert nails and needles into his anus. When B underwent his final s 93A interview on 23 May 2011, that is almost one month after his second interview, in addition to the needles, nails and triangular object, he named the 14 other objects set out above. The mother makes no mention of B ever referring to any of those items. During that last interview, which commenced with B stating “if I do a lot, I have to get a Lego” B said to Detective T he had told him “way more” than he had told his mother.

It is important to note that several of the above objects were not described by B spontaneously but only after Detective T had asked him “what else [had his father put into his anus]?” Further, when B described both the chips and pizza, he paused beforehand and, whilst tapping his chin, said “thinking, thinking, thinking” before animatedly stating “chips” and “pizza”. The reference by B to a “bow tie” is interesting in that respect. Detective T had again asked B “what else [had the father put ‘up his butt’]?” and B had looked up to where the camera was positioned and, whilst looking at something just off to the side of the camera, stated a “bow tie…just like that teddy’s” whilst pointing to something off to the side of the camera.

Inconsistencies

There were inconsistencies in the accounts given by B. In particular, during his first interview, B said that he saw his father insert the triangular object whilst his father was standing “out the front of their house” and B was riding his bicycle around the street. However, during the second interview the following exchange occurred:

Det [T]:You said last time when I talked to you that your dad was putting a triangle up his butt.

[B]:Yeah! A triangle thing and the colour was blue and the other half was black and it had curved sides, yes, and I was at a park when I saw him do it.

Det [T]: You were at a park when you saw him do it? Tell me more about this park that you were at when you saw him do it.

[B]:This park, it was a sort of dog park and it had a kids’ playground next to it.

Counsel for the mother contended in cross-examination of Detective T that the discrepancy in B’s account of where he was when he saw his father insert the triangular object into his anus was explained by the fact that B was referring to two separate incidents. Detective T did not accept this proposition. Nor do I. B’s discussion of the triangular object during the second interview was prompted by Detective T stating “[y]ou said last time when I talked to you that your dad was putting a triangle up his butt.” There is nothing in B’s response to indicate that he was talking about a separate incident.

The child B’s Demeanour

The interviews are also notable for B’s demeanour. He was “hyperactive” (used by me in a lay sense) and had to be requested many times by the police officer to return to his seat. In my view, he plainly evidenced on each occasion an unwillingness to participate in the interviews and, importantly, told Ms G as much when she saw him more than 12 months later. He gave similar indications to the police officer, not only in what he said (“all these talks and I don’t know what to say”) but also in what I regard as behaviour entirely consistent with wanting to be somewhere else.

As an example, after a significant exchange as just described, the following occurred (emphasis added):

Det [T]:All right [B], I’m not going to waste your time and I’m not going to waste my time. If you’re not going to talk to me, I’ll turn it off and we’ll walk out.

[B]:Fine.

Det [T]:Now you need to sit up and you need to behave yourself because if you don’t…

[B]:Then I forget what I’m going to talk about.

Det [T]:Okay, well if you’ve forgotten what you talk about, what you wanted to talk about…

[B]:Boing, boing

Det [T]:I’ll take you back down to your mum, hey?

[B]:I know what I’m gonna say, but I don’t, I don’t know what to say though, I don’t know what …

Det [T]:Well you know as I’ve told you, the other two times I’ve spoken to you, nothing’s too bad that you can’t talk to me here about today.

[B]:It’s not that, it’s some … I forget what I’m gonna say, I forget, I don’t know what I’m gonna say, I forget, I forget everything.

The child B’s Denials and Improbability

A number of statements made by B are to the effect that his father has not engaged in untoward behaviour.

During the first interview with Detective T, Detective T asked B “I heard that whilst you were at your house, you dad was downstairs and you walked out and saw him doing something. Did you walk out and see him doing something?” B responded, “no.” Further, during that first interview, B was asked if he had seen his father put anything else (other than the “triangular thing”) into his anus. B responded, “no”.

Having herself identified that there were things that “didn’t make sense” in the list of objects identified by B, for instance “pizza” and “chips” and the “triangle thing”, counsel for the mother in, one assumes, an attempt to “make sense” of those statements, did something quite extraordinary. During cross-examination of Detective T, she held up a plastic French fry and a sex toy (referred to by the mother as a “butt plug”) purchased at a sex shop by the mother. In doing so, it seems that counsel was contending that B’s references to objects like “pizza” and “chips” and a “triangle thing” which “didn’t make sense” when taken literally (as counsel contends they should be) were, in fact, references to plastic food toys and a sex object respectively.

Thus, it was, it seems, an attempt by counsel to attribute meaning to them by converting the statement (which was to be taken literally) into something which did “make sense” by attributing her own (or, perhaps, the mother’s) adult interpretation of what the statement might mean if not taken literally.

There was no evidentiary foundation for the assumption inherent in that performance and the resulting questions. There is nothing in anything B has said to indicate that the items had any meaning other then their literal meaning. For example, when Detective T questioned how his father could put pizza into his anus, B stated that it was a “small piece”; at no point did he say that it was a toy or plastic.

In an apparent attempt by counsel for the mother to explain how one could take literally B’s claim to have seen his father insert an electrical cord into his anus whilst in public in a Bunnings store, counsel for the mother submitted that I would accept that the father had done exactly as B suggested, in the manner suggested, because people are “raped in public parks”. I reject that submission.

I consider many of the assertions made by B to be inherently unbelievable and I see no licence available on the evidence to attribute “adult meaning” to those statements. For example, it is by no means apparent to me why the reference to “chips” should mean (as counsel for the mother’s performance suggests) a reference to a plastic, toy chip. Other examples can be given, of which the “electrical cord” is particularly telling. But, also, B’s references to a jellyfish, a marble that grows to the “size of the room” when removed from the anus, a bow tie and pizza are also apposite – when taken individually, but particularly collectively. During his first interview with Detective T, B expressly stated that, apart from the blue and black triangle with curved sides (which, again, I note, is not referred to by the mother in any of the alleged “disclosures” made by B to her), he had not seen the father put anything else into his anus. When asked specifically about needles, B denied having seen his father insert needles into his anus.

Across three interviews B went from referring to the father inserting only one object, to the father inserting 17 different objects into his anus. I consider it highly likely that B has been subjected to repeated questioning by his mother. I consider it highly likely that the mother’s entrenched beliefs (plainly shared by her sister) have prompted further “disclosures” by B.

Whilst I am not satisfied specifically that the mother has told B what he should say to Detective T in the sense of providing a word-for-word “script’, I am satisfied that the mother encouraged B to state that he had seen his father insert objects into his anus. I consider that B, who is undoubtedly a highly intelligent young boy, was left in no doubt about what he was required to say so as to get Lego and other toys. So much is, in my view, plain from B’s statement during the last interview with Detective T (during which B referred to 14 new items, including jellyfish, bow ties and pizza) that “if I say lots, I have to get Lego” (emphasis added).

Credibility and Reliability of Evidence

An assessment of unacceptable risk depends, in large measure, on an assessment of the veracity and reliability of the mother’s evidence. Statements allegedly made to the mother by the children, and the child B in particular, and observations by her of B’s behaviour are at the heart of her allegations and asserted belief that B has been exposed to sexually improper behaviour at the hands of his father.

The words spoken by B (and the other children) may, of themselves, be important. But, so too, is the context within which those words are spoken and, in particular, the attendant actions and reactions of those hearing those words. The interpretation of what may be said by a child, and the reaction to what is said based upon that interpretation is one example of what might be important. So, too, is the nature, manner and extent of any questioning by the person hearing those words. Each of those matters becomes all the more important when the person reacting (or not reacting), or the person asking questions, is a person in whom a child reposes love, trust and admiration – that is, a person whose words and actions guide their development.

As will already be apparent, I am singularly unimpressed by the evidence of the mother.

I consider that many of her answers evidenced an incapacity to consider alternative views and scenarios. Her evidence was self-serving of her purpose. A prime example is many of the entries in her 275-item chronology which, in my view, is pregnant with the ex post facto attribution of sinister intent or meaning to events which, significantly, were considered benign or trivial by her at the time but which are now said to constitute together a picture (or part of a picture) within which the alleged sexual predilection of the father “makes sense”.

I find the events surrounding her sister and a mysterious woman making a “proposal” (as it was called in the trial) to the husband – which will be addressed shortly – to be extremely troubling.

The mother admitted giving a false answer to what I consider to be an important question and the falsity of that answer highlights the concerns I have about the chronology to which I have just referred. In cross-examination the mother said that, when she consented to an order that the father have overnight time with the children in December 2011, she considered, despite her consent, that “maybe” the father was a risk to the children. However, when cross-examination from the ICL pursued the issue on the following day of trial, she said she would like to “revise her answer to ‘yes’”. When asked why she had changed her evidence overnight, the mother said “I was afraid to tell the truth. I’m afraid to lose my children”. When pressed, the mother conceded “that was incorrect what I said, it was not an honest answer”.

A harsh interpretation of what the mother said would see a finding that her answer was consistent with an attitude that it was permissible to give false sworn evidence when the circumstances were serious enough to warrant it (“I was afraid … to lose my children”). Yet, I consider the evidence more telling for how, as I see it, the mother’s evidence or recall is tailored to a self-serving end.

I have already referred to the fact that I completely reject the mother’s evidence that she does not know the whereabouts of the camera. Its importance is obvious because it provides real evidence of the matters referred to at [113] – [119] of these Reasons. The father has never rejected the mother’s assertion that he took a photo of B’s erect penis when he was a toddler but, as has been seen, he attributes to it a purpose which, although perhaps deserving of approbation, is denied as an example of any sexual impropriety. In my view it is by no means insignificant that it is the father who, through his solicitors, continued to press for production of the photo. Those requests were resisted by the mother through her solicitors. When it was asserted by the mother that the photo had been deleted by the father (plainly as part of an assertion by her that he had done so to hide its alleged sinister appearance or purpose), it was the father who, having denied he had deleted it, continued to press the mother for production of the camera so that evidence could be obtained from (in effect) its memory, only to be confronted by an assertion by the mother that it was “missing”. As I have said, I think it highly likely the mother has given deliberately false evidence about that.

The mother has consistently rejected any notion that she had questioned the children (save in the initial interview by her captured on the missing camera). She has also consistently rejected any notion that she has offered the children inducements to tell the police or the Department (or any report writer) what she alleges the father has done. Yet, the evidence from witnesses independent of the mother reveals consistent statements by the children to the contrary and an opinion by an experienced Departmental worker to the contrary. Perhaps the most telling, (but by no means the only) examples are D telling Ms G that it was her “mother’s job” to tell “everyone” that her father had “done rude things to her brother” and D repeatedly saying to Ms G that her mother had told her that her father had “done rude things” to her brother. Having seen both the mother and her sister in the witness box and listened carefully to their evidence, I think it highly likely that this is an accurate description of what the mother says and, more broadly, encapsulates neatly the impression given to the children by the mother about the father.

The evidence as a whole persuades me that the mother had no concerns about any improper behaviour of a sexual nature by the husband, nor concerns about any sexual proclivity as asserted, prior to separation. I reject the suggestions in her evidence to the contrary. Against that background, I regard the evidence of the mother that a conversation with Dr A in April 2011 (in and prior to which she had given him selective information) which, she says, caused “the penny to drop”, to be an extreme example of the self-serving nature of the mother’s evidence to which I have earlier referred.

The Evidence of the Mother’s Sister

The evidence of Ms X, the mother’s sister, can also be seen as important in assessing unacceptable risk. The first occasion post-separation upon which B himself says anything that might indicate untoward behaviour on his father’s part is, of course, important. Ms X was there when that occurred. She also played a part in the delivery of “the proposal” to the husband. Further, the father contends that the mother’s allegations against him and her position in these proceedings are largely as a result of the influence upon her of her sister.

I have already referred to Ms X’s demeanour whilst giving evidence in these proceedings. Ms X repeatedly spoke over both counsel and me during her cross-examination. She also frequently failed to provide responses to what were relatively straightforward questions from counsel. When I attempted, pursuant to the principles enunciated in s 69ZN and, in particular, ss 69ZN(4) and (7), to inform Ms X that her job as a witness was to provide the best, simple, honest answer to the questions she was being asked, she again continued to speak over the top of me. She asked cross-examining counsel to repeat simple questions which, in my view, she plainly understood. She was truculent. She responded to simple questions with periods of silence, saying, when asked to give an answer, that she “was thinking”. I do not accept that as an explanation of her behaviour; her silences were indicia of her truculence.

Significant allowances should be made for lay witnesses caught up in family turmoil manifest in court proceedings; the stress of giving evidence is, frequently, significant and manifests itself in the witness box in many different ways, almost all of which are contained within the daily experiences of this Court. Ms X’s behaviour and demeanour went well beyond that which might be explained by those considerations. Her demeanour was quite extraordinary. I repeat, she gave the impression of “a woman on a mission” rather than a loving sister caught up in difficult and stressful circumstances doing her best to give an honest account of her recollections.

If Ms X’s demeanour was remarkable, so, too, was much of the content of her evidence.

“The Proposal”

Ms X’s evidence is that, with the mother’s foreknowledge and agreement, she and another woman attended unannounced upon the father shortly after separation (specifically, 15 April 2011) to put forward “a proposal” on behalf of the mother. Ms X claims that she had not previously met the other woman; she claims only to know her as “L”. She says she does not know her surname and has no contact details for her. The mother, too, says she does not know “L’s” surname and has no contact details for her. During oral evidence, the mother described “L” as a “friend of a friend” and her “advocate”. The mother does not explain how she came to know L or, more significantly, how L came to be present when Ms X put the “proposal” to the father. “L” was neither a deponent nor a witness. This is notwithstanding the oral evidence of Ms X that L had “taken notes” of the meeting with the father.

Both the mother and Ms X say that the purpose of the unannounced visit to the father with a woman allegedly unknown to Ms X (and also unknown to the father) was to deliver “a proposal” on behalf of the mother. The terms of “the proposal” and the manner of its delivery are the subject of competing evidence.

The father says he attended upon the maternal grandparents’ home as the mother had asked that they hold their “normal Friday night ‘movie night’” at their house, rather than the former matrimonial home. The father says he arrived “…to find [Ms [X]] and another woman I did not know sitting at the kitchen table. [The mother] and the children were nowhere to be seen.” According to the father, Ms X stated that “we have information about what you have been up to with the kids and if you don’t sit down we are going to call the police.” Ms X then stated that the “deal” comprised a “70:30 split” of the property and the father was to have no contact, except via email, with the mother.

Ms X deposes to “pass[ing] on” the mother’s “pre-prepared statement” to the father “without accusations or threats.” During cross-examination, however, Ms X conceded that she had said to the father: “we know what you are doing with the children”, “you really have a problem don’t you?” “stay away from [the mother] and the children and by the way property is 70:30 and we will be communicating through lawyers.”

On the mother’s account, the proposal was benign. The mother says that her “…intention in offering this proposal was to protect the children and stay out of the court.” Whilst the mother states in her affidavit that she relies on the affidavit evidence of her sister “…for the detail of this event”, the mother conceded during oral evidence that “…part of the instructions…” she gave to her sister included the ultimatum that property was to be split 70:30 per cent in favour of the mother or the mother/her family would go to the police. Remarkably, as it seems to me, that “detail” was left out of Ms X’s affidavit.

If the mother’s asserted intention is to be accepted it involves having a perfect stranger intercede so as to allude for the first time to the father acting improperly toward his children whilst promulgating “a proposal”. It is, in my view, inescapably implicit that her view of the father was then such that he would “trade off” a relationship with his children for a monetary settlement and there being no (unspecified) complaint to the police.

This picture of the father might be contrasted with that expressed by the mother barely eight or nine weeks earlier in the letter to which I have referred.

I accept the father’s version of this incident. Indeed, both the mother and her sister appeared to ultimately concede in oral evidence that the meeting and proposition occurred as the father had contended in his affidavit evidence. That being so, the incident is very troubling on a number of levels. It speaks of a collective attitude by the mother and her sister. Concerns about the interview with B pertain. Further, I find it remarkable that a loving mother predominating the best interests of her children would engage in this action at all.

As I have earlier referred to, Ms X was present during the crucial “interview” with B recorded on the missing camera. The incident just referred to, together with her demeanour in the witness box, reinforces my non-acceptance of Ms X’s contention that she did not participate at all during the interviewing of the children. Indeed, I find it inconceivable that she was the calm and silent presence that both she and the mother assert she was during that “interview”. I consider it highly likely that Ms X actively involved herself in the interviewing process.

Conclusions as to Unacceptable Risk

I find that the father does not present an unacceptable risk to the children if orders are made that the children spend time, including overnight time, with him, or if they live with him.

As will be plain from what I have earlier said, I have very significant reservations about the veracity and reliability of the mother (and Ms X). I place little reliance upon their evidence in respect of the issue of unacceptable risk.

In particular, I place very little reliance on their evidence as presenting an accurate picture of what B and D have said that has, in turn, been construed by the mother as indicative of sexually improper behaviour. The same is equally true of the mother’s observations (for example the alleged “Lego in the bath incidents” earlier referred to).

In a similar vein, I place little reliance upon the evidence of the mother as to her observations of the children’s demeanour, in particular in so far as assertions as to demeanour accompany allegations of what the children have said about behaviour said to be improper.

To the extent that Ms X gives evidence about those matters, I also have very little confidence in her evidence in each such respect.

I think it highly likely that the mother has, through words, actions and inducements, influenced – or sought to influence – what the children have said to both the police and the Department. The children’s statements to Ms G, in combination with my assessment of the evidence of the mother (and her sister), and Ms G s opinion, persuade me of that conclusion. I refer in particular to D’s statements to Ms G and to the poignant words of B to which I have earlier referred. I accept Ms G’s evidence and the accuracy of her observations. Ms G’s conclusion of substantiated emotional harm is consistent with my own findings in respect of that issue.

The three interviews conducted by the police officer were, in my view, attended by the findings just made. To the extent that it might be asserted that they contain disclosures of sexual impropriety, they are, in my view, unreliable evidence in respect of any such potential finding.

I reject the mother’s contention that B’s statements about objects being inserted by his father into his father’s anus should be taken literally.

I consider that B’s account is marked by significant inconsistencies. His account in those interviews is marked by a palpable desire to be elsewhere and a desire to “say whatever it takes” to bring the interviews to an end. B’s account within each of the three interviews is marked by denials to which I give weight. The nature and extent of B’s allegations grow dramatically with each interview. Allegations are made of objects being inserted into his father’s anus by reference to objects within the interview room.

B’s accounts are marked by allegations which I consider palpably preposterous, the best examples of which are the public insertion of an electrical cord into his father’s anus at a large retail outlet and the marble “growing to the size of the room”. The experienced police officer’s plain scepticism about B’s account/s is shared by me.

Conclusions As to Best Interests

I have earlier made findings in respect of parental responsibility and, in particular, the presumption of equal shared parental responsibility which I find both inapplicable and, in any event, rebutted in the children’s best interests. (Respectively, ss 61DA(2) and (4)). There is, then, no applicable precondition to the exercise of the power to make a parenting order (MRR v GR (2010) 240 CLR 461 at 466). Findings as to best interests are, then, “at large” (Goode & Goode (2006) FLC 93-286 at 80,899).

The ultimate finding that the father does not present an unacceptable risk of harm to the children, is clearly central to the orders that best meet the best interests of these particular children in their particular circumstances. Equally clearly, while crucial, it is not per se determinative of the ultimate orders. So, too, my finding, consistent with the opinion of Ms G, that the mother’s actions constitute emotional abuse of the children is plainly important, but not per se determinative, of the orders that best meet the children’s best interests. Obviously enough, however, an assessment of the orders that best protect the children from an assessed risk of harm (see s 60CC(2)(b)) is central to the orders ultimately to be made. Findings about risk (the issue that has overwhelmed these proceedings) play a crucial role, but other Considerations are also important. Whilst an assessment of all risks of harm is, of itself, crucial in arriving at orders which reflect the children’s best interests, the parties’ respective reactions to what they assert to be the risk posed by the other and how that manifests in their future actions and more broadly upon the children is also vital.

Findings consistent with the mother’s historical primary care-giving role; her unchallenged capacity to provide for the children’s day-to-day needs (including their psychological and emotional needs) absent the pervasive issue of the allegations made against the father; and the potential effect of any changes to the erstwhile care arrangements on the children, particularly E, suggest a continuation of the mother’s erstwhile role. The findings made in respect of the alleged risk to the children posed by the father point to a significant, unrestricted, regular and on-going role in their lives. (See, eg s 60B).

Those findings, however, sit with other findings about the behaviour of the mother and, in particular, a finding that her actions have been emotionally abusive of the children. Recognition must be given to the fact that proceedings involving serious allegations in respect of children create feelings and reactions in parents that may well abate over time to the benefit of their children. That is all the more so where, as in my view is the case with the mother here, a party has been influenced by others in their beliefs and actions. Evidence giving cause for optimism of a change in the beliefs of the mother about the risk posed by the father, and her attitude toward the children’s relationship with their father, might in turn give cause for optimism that the emotional abuse of the children might cease. The evidence in this case earlier discussed points, in my view, to the opposite conclusion.

Among other things, I was struck by the mother’s statement during cross-examination that she “…still [doesn’t] have any person who has assessed my children and given me a clear, logical, evidenced decision.” The statement was made not only after reading the reports of Mr M and Mr C, but also after hearing the evidence of Detective T and, in particular, Ms G. When asked what more the Department, the Police, Mr M or Mr C could have done to satisfy the mother, she responded “I expected I would get answers” for what the children are saying and allegedly doing. Consistent with my earlier findings, I think the mother’s answer is, in fact, disingenuous. She did get answers, but they were not the answers she desired or which were consistent with her beliefs. They have, as a result, been rejected in favour of a picture of the father as a sexually perverse and malign influence on the children.

The impression I have clearly gained from the whole of the evidence, and my impression of the mother and her witnesses, is that allegations against the father are likely to continue. I think there is a real prospect they will expand; B’s allegations have expanded over time and there are now suggestions of sexually improper behaviour toward D and E, the latter of whom is but two and a half years old.

If the children remain in the mother’s full-time care, their prospects of having an appropriate meaningful relationship with their father will be significantly impinged. Indeed, I think it highly likely that allegations against him will continue to flow, time will not be promoted and a false impression of their father will be inculcated in the children. Those outcomes are antithetical to their best interests and the Court should not permit the children being abused emotionally in that way.

The finding that this is likely might be thought to lead to the possibility of the children spending significantly truncated time with their mother or, indeed, spending time with their mother that is supervised. By way of corollary, it might be argued that the facilitation of significant time with the mother does little to address the issues just raised. The logic of such an argument must be acknowledged. However, the emotional needs of the children should not be governed by logic alone as the statutory Considerations recognise. What is there seen is a requirement to balance a number of, often competing, matters relevant to orders that best meet best interests.

I have, earlier in these Reasons, dealt with the issue of the children’s views (s 60CC(3)(a)) and the nature of the relationship between each of the children and their parents (s 60CC(3)(b)). Each of the children plainly has a loving and mutually beneficial relationship with each of their parents. I have no doubt that the mother and father love their children dearly. It is also apparent that B and D enjoy spending time with their father and the father’s new partner.

It is patently clear from the evidence of Mr M and Mr C, each of whose opinions I accept in this regard, that the children’s relationship with each of their parents is not only beneficial to them, but is also significant and valuable (see, ss 60CC(2)(a) and (3)(b) and Sigley v Evor (2011) 44 Fam LR 439).

As I have previously outlined in these Reasons, I have serious concerns regarding the capacity of each of the children’s parents to put aside their perceptions of the other (and the risk it is said they pose) so as to permit them to facilitate a relationship between the children and the other parent. On balance, I consider that, consequent upon the end of these proceedings, the father (together with his partner Ms R) will, his feelings of mistrust and ill-will toward the mother notwithstanding, promote the children’s relationship with their mother and facilitate time. I have no such confidence in the mother. My (significant) concerns emanate from the evidence to which I have earlier referred and, in particular, the manner in which her belief as to risk is said to have quickly developed and grown in the period following the writing of the letter in February 2011.

I have also earlier addressed the likely effect of any changes on the children (s 60CC(3)(d)). The mother has been the primary caregiver for the children, the youngest of whom is yet a toddler. Any change, and in particular a change in residence, is going to be significant for each of them, and especially E. The father is, as far as providing day to day care, untested as a primary carer. He is in a new relationship and if the children come into his care full-time, all of the challenges of a blended family will present themselves. This is an important Consideration which concerns me significantly.

No issues regarding the practical difficulty of the parties spending time with the children were raised during the proceedings (s 60CC(3)(e)).

Whilst neither party contends that the other is incapable of providing for the children’s physical needs, I consider that the mother’s capacity to provide for the children’s emotional needs is compromised by her implacable belief that the father has sexually abused the children (s 60CC(3)(f)). The mother’s actions in secreting the children and their residence at a caravan park because of “fear” of the father also pertain. I do not consider there was any real basis for the asserted fear. As a result of the issues earlier discussed and findings earlier made, concerns about the mother’s attitude to the responsibilities of parenthood are a relevant Consideration (s 60CC(3)(i)).

Time with the mother brings with it, on my findings, the prospect of further emotional abuse of the type described and the prospect of further allegations. But, if the children spend the majority of their time with their father (and his partner and their children) their opportunity to experience for themselves their father and to develop their own views of, and relationship with, him is facilitated. Further, in my view, it is facilitated in a manner not otherwise available if orders are made for “weekend time” with him.

Conclusions as to Orders

Taking all of the relevant Part VII Considerations into account, together with the Objects and Principles, I am satisfied that it is in the best interests of the children to live predominately with their father and for their father to have parental responsibility for them in respect of major long-term issues, but within the confines of the terms of order earlier referred to.

As to the time the children should spend with their mother, I am mindful of the need to balance the benefit which the children plainly derive from a meaningful relationship with their mother with the very real risk that time spent with the mother poses further risks of emotional abuse should the mother continue to insist that the children have been sexually abused. Ultimately, balancing all of the Considerations as best I can, I consider an order that the children spend five nights per fortnight and half of the school holidays with their mother to be in their best interests.

I am also satisfied that there should be a brief moratorium in the time between B and D and their mother, so as to enable them to settle into the new arrangement. As I have said, the changes for them are significant and I apprehend that this decision will be very upsetting for the mother. There should be a period to allow each to settle. There will be slightly more than three weeks between when this decision is handed down and Christmas and, most of that time coincides with school holiday time. That provides a sufficient period and context for that purpose and the holiday nature of the time assists the children to deal with the change. I consider it appropriate that the children spend time with the mother at Christmas and it is appropriate that it marks the time at which regular time with the mother should resume.

It will be noted that I have referred in the preceding paragraph to only B and D. The child E is in a different position in respect of any moratorium. He is yet only two and a half years of age and his mother has been his primary carer all of his life. Whilst I am satisfied that there is a strong bond between the children and that this will provide comfort to each of them during what will inevitably be a difficult transition, I consider that, for E, that is insufficient to meet his needs. His stage of development (including his language skills) ameliorate against the risk posed by the mother earlier referred to.

Notwithstanding that E will be spending five nights per fortnight away from B and D until Christmas Day (which, I note, is a little over three weeks away), I consider that orders providing for time between E and his mother on five nights a fortnight from the date of these Orders, with such time to ultimately coincide with the time between B and D and the mother, to be in his best interests.

Given the proximity of these orders to the Christmas/New Year school holidays, and the moratorium of time between B and D and the mother, I will make orders for specific periods of time between the children and their mother during the 2012/2013 Christmas/New Year school holiday period. Thereafter, the children will spend half of their school holidays with each parent.

I refer again to B’s poignant words quoted earlier in these Reasons. I do not consider it in any of the children’s best interest for them to be taken by the mother to a person whom she might consider as a “child sex abuse expert” or similar counsellor. Given the mother’s insistence on taking the children to a “…sexual abuse expert…” for “assessment” or for counselling “…in relation to sexual abuse”, I will make an order restraining the mother from taking the children to any psychiatrist, psychologist or other similarly qualified professional for any assessment, counselling, therapy, or like-treatment, without the prior written consent of the father.

The changes for the children and what they have gone through during the course of the allegations at the centre of these proceedings, and, indeed, the proceedings themselves, might well raise the need for them to receive counselling. I consider the father alone should make that decision. To remove doubt, I will include that specific matter within the Orders.

I order accordingly.

I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 29 November 2012.

Associate:

Date: 29 November 2012