FAMILY COURT OF AUSTRALIA TAYLOR-BLACK & VASSER [2008] FamCA 335

FAMILY LAW CHILDREN With whom a child lives sexual abuse allegations best interests of child

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA

APPLICANT: RESPONDENT: INDEPENDENT CHILDRENS LAWYER: FILE NUMBER: DATE DELIVERED: PLACE DELIVERED: PLACE HEARD: JUDGMENT OF: HEARING DATE:

Mr Taylor-Black Ms Vasser Ms Eva Karagiannis SYC 200 2007

15 May 2008 Sydney Sydney Watts J 28 30 April 2008;

REPRESENTATION COUNSEL FOR THE APPLICANT: Ms Hausman

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SOLICITOR FOR THE APPLICANT:

Ross A. Clarke & Associates Mother in person Legal Aid Commission of NSW

SOLICITOR FOR THE RESPONDENT: SOLICITOR FOR THE INDEPENDENT CHILDRENS LAWYER:

ORDERS
1. 2. 3. 4. All previous orders herein be and are hereby discharged. The father have sole parental responsibility for the child of the relationship born April 2001 (hereinafter referred to as [the child]). The child live with the father. Commencing on Saturday 9 August 2008, the child spend time with the mother as follows:4.1. on alternate weekends from 9.00am on Saturday until 6.00pm on Sundays; the mother to collect the child from the father on the Saturday, the father to collect the child from the mother on the Sunday; on the weekend of Orthodox Easter at the times specified in paragraph 4.1 herein; on occasions of the childs and the mothers birthday each year; in the event that the birthday falls on a school day, for a period of 3 hours after school; in the event that the birthday falls on a weekend when the child is not otherwise with the mother, for one day on that weekend; in each even numbered year between 10.00am Christmas Eve and 10.00am Christmas Day and in each odd numbered year between 10.00am Christmas Day and 10.00am Boxing Day; ; on Mothers Day each year from 9.00am until the commencement of school the following day; at other times as may be agreed in writing between the parties.

4.2. 4.3.

4.4.

4.5. 4.6. 5.

The Applicant Father be at liberty to suspend the time periods the Mother is entitled to have with the child, on two (2) occasions per year (although not on consecutive time periods pursuant to these orders), to be nominated by the Applicant Father, to enable the Applicant Father to take the child away during

school holiday periods, conditional upon him advising the Respondent Mother not less than two (2) calendar months in advance of his intention to do so. 6. The Respondent Mother shall be entitled to make up weekends as nominated by the mother, in the event that the Applicant Father elects to suspend the childs time with her mother pursuant to order 5. The provisions of paragraph 4.1 are suspended on Fathers Day each year and on those occasions the mothers time shall take place on the following weekend. The mother shall ensure that the child sleeps in her own bed whenever the child spends time with her on an overnight basis. The parties facilitate the childs attendance upon any counsellor or therapist as may be nominated by the Independent Children's Lawyer including attending personally upon that therapist if so requested and for that purpose the Independent Children's Lawyer may provide to the counsellor or therapist a copy of Dr Ms report and a copy of my Reasons for Judgment.

7. 8. 9.

10. The mother is otherwise restrained from presenting the child to any medical practitioner, therapist, counsellor, psychologist, DoCS caseworker, police officer or any social worker other than in the case of a genuine emergency. 11. The mother shall be at liberty to attend any major sporting event where parents ordinarily attend (this is not to include, without the fathers consent, such things as the childs sporting lessons whilst she is living with her father). 12. The Respondent Mother is restrained from attending D school or any other school which the child shall attend, for the purpose of participating in class, or other extra curricular activities such as reading groups, without the written consent of the Applicant Father, and otherwise the Respondent Mothers attendance shall be limited to school plays, concerts, presentation nights, speech nights, or parent/teacher interviews as arranged with the school from time to time. 13. The mother shall have telephone communication with the child on two occasions each week, such calls to be made by the mother between the hours of 6.00pm and 7.00pm. 14. The father shall provide the child with privacy at the time she has any telephone communication with the mother. 15. Both parties are restrained from recording in any fashion, or allowing third parties to do so on their behalf, conversations with the child. 16. The Respondent Mother is restrained from videoing or photographing the child, or allowing third parties to do so on her behalf, with the intention, or for the purpose of collecting evidence or information to use in anticipated proceedings or complaints against the Applicant Father. 17. The Respondent Mother is restrained from questioning the child, or discussing with the child, matters related to the subject of abuse, including sexual abuse, in relation to the Applicant Father.

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18. Each party shall notify the other, as soon as practicable, of any medical or other emergency concerning the child. 19. The father shall forthwith execute the appropriate authority at the childs school and at any school which the child may attend, to authorise the school to forward to the mother copies of the childs school reports and any other document ordinarily provided to parents. 20. The mother be restrained from taking the child outside the Sydney metropolitan area without the written consent of the father or further court order. 21. The father be restrained from taking the child outside the Commonwealth of Australia without the written consent of the mother or further court order. 22. The Court requests that until further order the Australian Federal Police place the childs name on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders. 23. Each party is restrained from making application for the issue of a passport for the child without the written consent of the other party or an order of the Court. 24. Each party shall keep the other party informed of any change to his/her residential address and telephone contact number. 25. The Independent Children's Lawyers application for costs against the father be dismissed. IT IS NOTED that publication of this judgment under the pseudonym Taylor-Black & Vasser is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY FILE NUMBER: SYC 200 of 2007 Mr Taylor-Black Applicant And Ms Vasser Respondent

REASONS FOR JUDGMENT

INTRODUCTION 1. This case is about what time the child born in April 2001 (aged 7) should spend with both of her parents. It is a difficult and sad case. The central feature of this matter is an allegation raised by the mother after a conversation with the child on 6 January 2007 that the father had digitally interfered with the childs vagina, using also a dummy and mustard. The inquiry focused on whether there was any unacceptable risk that the allegations were true and if not, whether there was an unacceptable risk that the allegations were a product of the mothers either conscious or unconscious behaviour. The mother, in particular, has been highly distressed by this case. There has already been considerable litigation between the parties about the child, including a previous fully defended hearing before Moore J which concluded in Her Honour making a determination in March 2004 and an interim application in the current proceedings which attracted an appeal to the Full Court. Moore J made orders and delivered reasons for judgment on 26 March 2004. A summary of Moore Js findings are set out in Exhibit XX. Those findings have been numbered 1 to 41. Given the history of the litigation, I decided on a preliminary basis whether or not any further evidence should be allowed in this hearing about matters in respect of which Moore J had made findings in 2004. As a result of that consideration I made findings that are set out in Reasons dated 26 October 2007. A number of matters were agreed facts and are set out in paragraphs 5 of my Reasons of 26 October 2007 in the following terms:-

2. 3.

4. 5. 6.

AGREED FACTS 7.

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1. 2. 3. 4. 5. 6. 7.

The Mother was born in Sofia, Bulgaria in 19561. After a holiday visit in 1995, the Mother returned to Australia in 1996 and has remained living here since2. The Mother is now an Australian citizen3. During her time in Australia the Mother has undertaken some part-time work and completed various courses4. The Father was born in Australia in 19505. The Father has been married and divorced twice6. The Father has no children from either marriage, but has a son from a much earlier relationship. This child was adopted out. The Father has since established contact with this child7. The Father lives in a home he owns in T8. The Father has a close relationship with all members of his family, especially his brother, with whom he spends much of his leisure time9.

8. 9.

10. The parties met in 199910. 11. The Mother fell pregnant around August 200011. 12. In March 2001 the Mother moved from her premises into the property at T12. 13. The child was born in April 200113. 14. After the childs birth, the Mother was primarily responsible for her dayto-day care whilst the Father worked. 15. The Mother, Father and the child continued to live in the T home until November 2002 when the Father moved to his mothers residence14. 16. In light of an unresolved dispute about the terms of the Mothers occupation of the T home, she left there in January 2003 and has since lived with the child in rented premises15. 17. The Father did not see the child between January 2003 and early March
1 At [2004] FamCA 240 (Moore J) at [8]. 2 Ibedem at [8]. 3 Ibedem at [8]. 4 Ibedem at [8]. 5 Ibedem at [9]. 6 Ibedem at [9]. 7 Ibedem at [9]. 8 Ibedem at [9]. 9 Ibedem at [9]. 10 Ibedem at [10]. 11 Ibedem at [10]. 12 Ibedem at [10]. 13 Ibedem at [1]. 14 Ibedem at [10]. 15 Ibedem at [10].

200316. 18. The Mother made allegations that: 18.1. The Mother witnessed the Father dressed only in a towel, holding his penis and masturbating while standing beside the childs cot17; 18.2. When the Mother was away from the home the Father tampered with the child in some way as her nappy had been removed and couldnt be found18. This allegation by the Mother had a culpable overtone given the Mothers claim that the Father would not change the childs nappy at all when the Mother was present19; 18.3. The child behaved strangely on return from her Father which resulted in the Mother contacting DOCS and a paediatrician20. The Mother said she was told the child may have been given some type of sedative21; 18.4. The Father masturbated in front of the Mother22; 18.5. The Father had pornographic magazines23. FINDINGS OF MOORE J WHICH ARE NOT AGREED 8. At paragraph 6 of my Reasons of 26 October 2007 I set out areas of continuing contention arising from the Reasons of Moore J in 2004. The relevant paragraphs of Her Honours Reasons were as follows:19. Moore J found that the following allegations were baseless24: 19.1. The Mother had inaccurately alleged that she had observed the Father, on 4 November 2002, dressed only in a towel, holding his penis and masturbating while standing beside their daughters cot25; 19.2. The Mother had incorrectly alleged that the Father had tampered with the childs nappy in a culpable way; 19.3. The Father had never masturbated in front of the Mother26; 19.4. The Father had never had pornographic magazines27.
16 Ibedem at [11]. 17 Ibedem at [15]; [17]. 18 Ibedem at [17]. 19 Ibedem at [17]. 20 Ibedem at [17]. 21 Ibedem at [17]. 22 Ibedem at [17]. These specific allegations are evident from the Fathers denial of them at ibedem at [18]. 23 Ibedem at [17]. These specific allegations are evident from the Fathers denial of them at ibedem at [18]. 24 Ibedem at [56]. 25 Thus accepting the Fathers evidence restated at ibedem [18]. 26 Thus accepting the Fathers evidence restated at ibedem [18]. 27 Thus accepting the Fathers evidence restated at ibedem [18].
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20. Considerations which had a direct bearing on these findings, in addition to various other aspects of the Mothers evidence, included: 20.1. The Mother changed her position, without satisfactory explanation or a retraction or modification of the claims made, about her concerns for the child were she to have unsupervised contact with her Father28. 20.2. The Mother gave different accounts of the detail of what she saw and what occurred beside the childs cot in her affidavit and in her interview with Dr W29. There were also inconsistencies between these two sources about the occasions the Father changed the childs nappy in her absence. Furthermore, her oral evidence continued to reflect a confused picture30. 20.3. The Mother, without adequate explanation, failed to raise complaint on numerous appropriate occasions about the Fathers alleged conduct beside the childs cot and concerning the childs nappy, despite her ability in other instances to express her position and access appropriate agencies31. 20.4. The evidence of the Fathers second wife about her intimate relationship with the Father failed to support the picture the Mother presented of the Fathers sexuality32. 20.5. The findings of Dr W that: 20.5.1. The Mothers attitude seemed to indicate more about her state of mind, than the Husbands personality functioning33; 20.5.2. Nothing in the assessment of the Father, nor in Dr Ws observations of the Father with the child, lent credence to the Mothers assertions34. 21. Moore J proceeded on the basis that the Mothers version of events was a product more of her personality function than malice of forethought35. 25. Despite her assertions to the contrary, the Mother had interfered with actions by the Father to see the child and attempted to stop him from seeing the child as the complaint and summons taken out 28 November 2002 included the child as a PINOP36 (a person in need of protection). 32. In 2004 the child had a close bond with each of her parents but the
28 29 30 31 32 33 34 35 36 Ibedem Ibedem Ibedem Ibedem Ibedem Ibedem Ibedem Ibedem Ibedem at at at at at at at at at [20]. [20]. [20]. [20]. [20]. [20]. [20]. [21]. [19].

quality of her relationship with each of her parents was markedly different, the connection the child had with her Father being the healthier for her37.
SOME MATTERS IN ISSUE AND FACTS IN DISPUTE

9.

In an order made on 1 November 2007 I identified the following matters in issue and facts in dispute:
1. MATTERS IN ISSUE: 1.1. Whether the presumption of equal shared parental responsibility for [the child] should apply in this case or whether the father should have sole parental responsibility for [the child] (fathers proposal). 1.2. The amount of time [the child] should spend with each of her parents. 1.3. Whether [the childs] telephone communication with the parent with whom she is not living should be:1.3.1. liberal, as per order 7 made 26 March 2004; or 1.3.2. limited (fathers proposal) to one occasion per week of no more than 15 minutes. 2. FACTS IN DISPUTE 2.1. Whether the father poses any unacceptable risk of sexual abuse and/or psychological abuse to [the child]. 2.2. Whether the mother poses any unacceptable risk of psychological abuse to [the child] and in particular: 2.2.1. Whether [the child] made the disclosures alleged by the mother. 2.2.2. Whether the mother encouraged [the child] to say things about her father; 2.2.3. Whether the mother embarked upon a course of conduct where she has made false allegations against the father relating to inappropriate sexual conduct by the father involving [the child] and in particular, is there any basis for the mothers allegations that, prior to the hearing before Moore J in 2004:2.2.3.1. The Mother witnessed the Father dressed only in a towel, holding his penis and masturbating while standing beside [the childs] cot. When the Mother was away from the home the Father tampered with [the child] in some way as her nappy had been removed and couldnt be found. This allegation by the Mother had a culpable overtone given the Mothers claim that the Father would not change [the childs] nappy at all when the Mother was present. [The child] behaved strangely on return from her Father

2.2.3.2.

2.2.3.3.

37 Ibedem at [41].
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which resulted in the Mother contacting DOCS (Department of Community Services (DoCS) and a paediatrician. The Mother said she was told [the child] may have been given some type of sedative. 2.2.3.4. 2.2.3.5. The Father masturbated in front of the Mother. The Father had pornographic magazines.

2.2.4. Whether in 2004, despite her assertions to the contrary, the Mother had interfered with actions by the Father to see [the child] and attempted to stop him from seeing [the child] as the complaint and summons taken out 28 November 2002 included [the child] as a PINOP. 2.3. Whether in 2004 [the child] had a close bond with each of her parents but the quality of her relationship with each of her parents was markedly different, the connection [the child] had with her Father being the healthier for her. 2.4. If either parent poses a unacceptable risk of abuse to [the child], how best to protect [the child] from abusive behaviour by her parents. 2.5. The nature of [the childs] relationships with each of the parties and significant others. 2.6. [The childs] views in relation to the parties respective proposals for her living arrangements and the weight to be placed on those views. 2.7. The parents respective parenting capacities and in particular: 2.7.1. Whether either party is affected by some form of personality disorder or other psychiatric condition which impacts on their ability to provide for [the childs] needs, especially her emotional needs; and 2.7.2. The parties respective capacities to implement an arrangement whereby [the child] equally shares her time between her parents or spends substantial and significant time with the parent with whom she does not primarily reside. 2.8. The parties respective capacities to facilitate and encourage appropriate and continuing relationships between [the child] and the other parent and members of that parents extended family. 2.9. The effect on [the child] of the exposure to parental conflict. 2.10. The likely impact on [the child] of any reduction of her living time with the mother and in the event the court finds such a reduction in [the childs] best interests, how best to facilitate that reduction. 2.11. Whether the Court should make an order which would be least likely to lead to the institution of further parenting proceedings in respect of [the child], and if so, what order(s) would achieve that outcome. 3. CREDIT

3.1. It is noted that the credit of each of the parties is in issue.

DOCUMENTS READ 10. The following evidence has been read by me in these proceedings:10.1. The mothers affidavit sworn 18 February 2008; 10.2. The fathers affidavit sworn 5 February 2008; 10.3. Affidavit by the fathers brother sworn 31 January 2008; 10.4. Affidavit of the fathers sister sworn 29 January 2008; 10.5. My Reasons dated 26 October 2007; 10.6. Dr Ms report dated 31 August 2007; 10.7. The Independent Children's Lawyers list of documents and bundle of documents (Exhibit ICL 5); 10.8. Exhibits tendered during the hearing; 10.9. The mothers written submissions filed 12 May 2008. ORDERS MADE BY MOORE J ON 26 MARCH 2004 11. Moore J made orders in the previous proceedings on 26 March 2004 in the following terms:
1. 2. All previous parenting orders relating to the care of [the child] born [] April 2001 are discharged. As from the date of these orders, the child live with her father as follows: (a) (b) (c) (d) (e) (f) (g) (h) 3. in the first week immediately following the making of the orders from 9am on Saturday to 6pm on Sunday; in the second week immediately following from 9am on Saturday to 6pm on Sunday; in the third week immediately following from 6pm on Friday to 6pm on Sunday; in the fourth week immediately following from 6pm on Friday to 6pm on Sunday; in the fifth week immediately following from 6pm on Friday to 6pm on Sunday; in the sixth week immediately following from 6pm on Thursday to 6pm on Sunday; in the seventh week immediately following from 6pm on Thursday to 6pm on Sunday; in the eighth week immediately following from 6pm on Thursday to 6pm on Sunday.

Thereafter, and until the child commences school, the child live with her father as follows:
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(a) (b) 4.

in the first week from 10am Sunday until 10am on Thursday; and in the second week from 10am on Sunday until 10am on Wednesday, and repeating that two (2) week cycle thereafter. during school terms she live with her parents on a week about basis, the first week with her father and the second week with her mother and repeating that two week cycle thereafter, the changeover of her care to occur at the end of school each Friday; and during school holidays she live with each of her parents for one half of each school holiday period as agreed and, failing agreement, with the father in the first half in even numbered years and the mother in the first half in odd numbered years, changeover to occur either at the childs school or the residence of a parent whichever shall apply.

Upon the child commencing school, a)

(b)

5. 6.

The child live with the mother at all times except as provided in orders 2, 3 and 4 hereof. Orders 2, 3, 4 and 5 are subject to any agreement by the parents to the contrary, including arrangements on special occasions such as Fathers Day, Mothers Day, the childs birthday, and Christmas or other religious festive occasion. Each parent is at liberty to telephone the child in the home of the other parent on a landline number to be provided at all reasonable times but no later than 7pm. Each parent have sole responsibility for making decisions with respect to the day to day care, welfare and development of the child during periods when the child lives with him/her. Subject to the father taking responsibility for paying all fees and education costs, the father is permitted to enrol the child at [D School] to commence her schooling there and each parent is to do all acts and things and sign all documents necessary to complete that enrolment. The parents are to seek a referral for the child to attend a paediatrician skilled in managing the interplay between physical symptoms and emotional disturbance and, for that purpose, they are at liberty to provide to the paediatrician a copy of the report of Dr [W]. It is noted: The mother proposes to attend upon a counsellor and/or psychiatrist for the purposes of seeking treatment in an attempt to understand and contain her anxieties about [the child] when she is separated from her. It is further noted: The mother will seek advice as to age appropriate activities and age appropriate expectations in the maternal/child relationship.

7.

8.

9.

10.

11.

Pursuant to S65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person

contravenes these orders are set out in Annexure A and these particulars are included in these orders. 12. The exhibits tendered in Court are to be returned at the expiration of one month from this day to the party tendering same on the condition they be returned to the Court if required. In relation to documents produced to the Court on subpoena, the solicitor for the party who caused the subpoena to issue uplift those documents no later than seven days from this day and forthwith take all steps necessary to return the documents to the person or corporation entitled to them. The matter is to be removed from the list of cases awaiting final hearing. The party with whom the child is to commence her period of residence shall be responsible for the collection of the child from the other party and the changeover point shall be at a public place to be agreed between the parties from time to time. The restraining orders dated 5 December 2002 and 20 December 2002 and made in the Family Court of Australia shall continue pending further orders of the Court. Each party is restrained from making application for the issue of a passport for the child [], born [] April 2001, without the written consent of the other party or by order of the Court. Each party shall keep the other party informed of any change to his/her residential address and telephone contact number.

13.

14. 15.

IT IS ORDERED by consent:

16.

17.

18.

RICE AND ASPLUND

12. From 26 March 2004 until early January 2007 the child spent time with her father for three days in one week and four days in the next week. 13. The father says that in the week commencing Sunday 31 December 2006 he had the child in his care for four days until 10am Thursday 4 January. Under the orders the mother was then due to have the child in her care from 10am on Thursday 4 January until 10am Sunday 7 January. On Sunday 7 January 2007 the mother did not deliver the child to the father. 14. The reason was that the mother said that the child had made disclosures which raised fresh allegations against the father that the father had sexually interfered with the child. 15. The circumstances in which these allegations were raised are central to this hearing. 16. It was agreed between all parties that the events of January 2007 in the circumstances of this case created a sufficient change of circumstances to warrant a reconsideration of the orders that had been made by Justice Moore in 2004.

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APPLICATIONS OF THE PARTIES Father 17. The orders sought by the applicant father are as follows:
1. That the Applicant Father have sole parental responsibility for both the long term and day to day care welfare and development for the child, [], born [] April 2001 and that the child live with him. That the Respondent Mother spend time with the child as follows: 2.1 2.2 2.3 on Saturday of each alternate weekend between the hours of 10am and 4pm; on Mothers Day between the hours of 10am and 2pm; on the [childs] birthday, if it falls on a school day, for a period of two (2) hours at the end of the school day, as agreed between the parties; on the [childs] birthday, if it falls on a non-school day, between the hours of 10am and 2pm; on the Mothers birthday, if it falls on a school day, for a period of two (2) hours at the end of the school day, as agreed between the parties; on the Mothers birthday, if it falls on a non-school day, between the hours of 10am and 2pm; on Easter Sunday between the hours of 10am and 2pm; on Christmas Day in each even numbered year between the hours of 10am and 2pm and on Boxing Day in each odd numbered year between the hours of 10am and 2pm.

2.

2.4 2.5

2.6 2.7 2.8

3.

That the Applicant Father be at liberty to suspend the time periods the Mother is entitled to have with the child, on two (2) occasions per year (although not on consecutive time periods pursuant to these orders), to be nominated by the Applicant Father, to enable the Applicant Father to take the child [] away during school holiday periods, conditional upon him advising the Respondent Mother not less than two (2) calendar months in advance of his intention to do so. That the Respondent Mother shall be entitled to make up time periods as agreed between the parties, in the event that the Applicant Father elects to suspend pursuant to order 3 above. That the Respondent Mother is restrained from taking the child to any medical practitioner without the written prior consent of the Applicant Father, excepting in the event of an emergency. In such circumstances the Respondent Mother is to provide the Applicant Father with all details of any such urgent attendance as soon as practicable following the said

4.

5.

attendance upon that medical practitioner. 6. The Respondent Mother is restrained from taking the child to any psychiatrist, psychologist, counsellor, or other health professional without the prior written consent of the Applicant Father, or Order of the Court. The Respondent Mother is restrained from recording in any fashion, or allowing third parties to do so on her behalf, conversations with the child []. The Respondent Mother is restrained from videoing or photographing the child [], or allowing third parties to do so on her behalf, with the intention, or for the purpose of collecting evidence or information to use in anticipated proceedings or complaints against the Applicant Father. The Respondent Mother is restrained from questioning the child [], or discussing with [the child], matters related to the subject of abuse, including sexual abuse, in relation to the Applicant Father. The Respondent Mother is restrained from attending [D] school or any such other school which [the child] shall attend, for the purpose of participating in class, or other extra curricular activities such as reading groups, without the written consent of the Applicant Father, and the Respondent Mothers attendance shall be limited to school plays, concerts, presentation nights, speech nights, or parent/teacher interviews as arranged with the school from time to time. That for the purposes of all time periods the Respondent Mother spends with the child the Respondent Mother shall be responsible for collecting the child from the Applicant Fathers residence a the commencement and the Applicant father shall be responsible for collecting the child from the Respondent Mothers residence at the conclusion.

7.

8.

9.

10.

11.

Mother 18. On 18 October 2007 the mothers then legal representative indicated that the mothers position was that she sought that the child spend equal time with both her parents on a week about basis without any supervision being required for the childs time with her father. 19. During the final phase of the hearing on 28 April 2008 the mother, who was now unrepresented, confirmed that that was still her position. 20. In her submissions about holidays, the mother at page 23 of her submissions stated:
I am not prepared to say how the school holidays, public holidays, special days, birthdays, mothers and fathers day, religious holidays could be arranged. In my view, it is always very easy to arrange such time when the parties are prepared to negotiate.

21. It is difficult to understand that submission given that one would think it is clear to the mother that she and the father find it extremely difficult to negotiate about anything.
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Independent Children's Lawyer 22. On 1 November 2007 the Independent Children's Lawyer informed me that when Dr M recommended that the child spend limited weekend time with her mother, she was referring to Saturday morning through to Sunday evenings. 23. During final submissions the Independent Children's Lawyer handed up a written document seeking the following orders:26. 27. 28. 29. That all previous orders herein be and are hereby discharged. That the father have sole parental responsibility for the child of the relationship [] born [] April 2001 (hereinafter [the child]). Order that [the child] live with the father. That [the child] spend time with the mother as follows:a) on alternate weekends from 9.00am on Saturday until 6.00pm on Sundays; the mother to collect [the child] from the father on the Saturday, the father to collect [the child] from the mother on the Sunday; on the weekend of Orthodox Easter at the times specified in para 4(a) herein; on occasion of [the childs] and the mothers birthday each year; in the event that the birthday falls on a school day, for a period of 3 hours after school; in the event that the birthday falls on a weekend when [the child] is not otherwise with the mother, for one day on that weekend; at Christmas on an alternating basis; on Mothers Day each year from 9.00am until the commencement of school the following day; at other times as may be agreed between the parties.

b) c)

d) e) f) 30.

The provisions of paragraph 4(a) are suspended on Fathers Day each year and on those occasions the mothers time shall take place on the following weekend. The mother shall ensure that [the child] sleeps in her own bed whenever [the child] spends time with her on an overnight basis. That the parties facilitate [the childs] attendance upon any counsellor or therapist as may be nominated by the Independent Children's Lawyer including attending personally upon that therapist if so requested. The mother is otherwise restrained from presenting [the child] to any medical practitioner, therapist, counsellor, psychologist, DoCS caseworker, police officer or any social worker other than in the case of a genuine emergency. The mother shall be at liberty to attend any school or sporting event where parents ordinarily attend.

31. 32.

33.

34.

35.

The mother shall have telephone communication with [the child] on two occasions each week, such calls to be made by the mother between the hours of 6.00pm and 7.00pm. The father shall provide [the child] with privacy at the time she has any telephone communication with the mother. Each of the parties is restrained from recording in any way, any conversations the child may have or any statement which the child makes. Each party shall notify the other, as soon as practicable, of any medical or other emergency concerning the child. The father shall forthwith execute the appropriate authority at [the childs] school and at any school which [the child] may attend, to authorise the school to forward to the mother copies of [the childs] school reports and any other document ordinarily provided to parents. That the parties contribute to the costs of the Legal Aid Commission herein in equal shares.

36. 37. 38. 39.

40.

CREDIT Mother 24. The following matters effect my assessment of the mothers credit. 25. She made a statement at paragraph 132 of her sworn affidavit 11 September 2003 saying that the father had never made any financial contribution towards the cost of the child. She also informed Mr C of this. This is not correct. Exhibit 1 shows that he had made some contributions. However, I do accept the mothers overall point that she has received very little by way of financial assistance in respect of the child so far from the father. 26. The mother, in her early evidence, conveyed a picture of being left alone without any emotional support during her pregnancy. I am satisfied that the evidence does not support such an absolute position and in fact the father offered her considerable support during the pregnancy. 27. The mother did present a picture of the father begrudgingly going to Bulgaria at the commencement of their relationship (paragraph 6 of her affidavit like that he begrudgingly went there and stayed five days). His passport shows that he stayed for a longer period than that. 28. The mother asserted that she never tried to stop the child seeing her father in 2002/2003. However the AVO that she prosecuted had such an effect. 29. I refer later to the inconsistencies in the mothers evidence about whether or not the mother had tape recorded any of the childs conversations for the purposes of attempting to gather evidence prior to the tape recording made by her on 6 January 2007. 30. The mother in her earlier affidavit material said that she didnt stop the father from seeing the child. That was not actually true given that once the father left the house she instituted her AVO proceedings and an order was made on 12
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December 2002 which effectively stopped the father from seeing the child. The father did not see the child except for occasions when the parties had to go to one court or another, until Registrar Henderson made interim orders at the Family Court on 28 February 2003. So there was effectively a period of in excess of two and a half months when the child did not see her father. 31. The mother said things to Dr R that she did not report to any other person notwithstanding the nature of the assertions she made to Dr R. 32. I do not accept the mothers assertion that she did not want the child to go to D School given what Dr M records at page 11 of her report. Father 33. The mother makes a number of submissions about the fathers credibility. The father admitted in cross examination that there were things in respect of which he had mental blanks. The mother suggests that one of these things is whether or not he masturbated in front of the child in 2002. The father was emphatic that he remembered that he did not do what the mother alleged that he did. It is the type of event, which in my view, a person would not fail to remember. I do not accept the mothers hypothesis that one explanation of the difference between her version of the incident involving masturbation and the fathers was that the father had simply forgotten that it had happened. 34. The mother points to the fact that in the Joint Investigation Response Team (JIRT) interview the father gave evidence that he had never touched the childs vagina. The mother refers to Exhibit 11 (the communication book) and the fathers entry of 26-29 June 2005 in which he says:
[The child] is fine, cream on her wrist. I brought more cream and bandage which is in this bag. I also put amolin cream on [the childs] bottom.

35. There are a number of possible explanations for the inconsistency. The first of which there is a distinction between the word bottom and vagina. The second is that the father simply did not, in the context of the JIRT interview, make a mental connection between touching the childs vagina and putting cream upon it. 36. The mother complained that the father did not respond to her communications in the communications book in a fulsome way. I accept the fathers explanation that, because of the history of conflict with the mother, he simply kept his entries down to the minimum of informing the mother as to matters of a medical nature that had transpired during the time the child was with him. 37. There is an issue between the parties in relation to the incident that took place at Randwick Hospital. I prefer the version given by the father in relation to that incident. 38. At page 8 of her submissions the mother asserts that the father gave inconsistent evidence about the timing of reading in the childs school. I do not think that is so. The father came under a cloud in relation to sexual abuse from early January 2007. The child started school on 31 January 2007. The effect of the fathers

evidence is that when he had to fill a form out he had to disclose the substance of the allegations made against him and that disqualified him from being able to read at school. 39. The mother, in her submissions, refers to the fact that the father kept a diary and those diaries were not in evidence. During the hearing I ruled that those diaries were subject to legal professional privilege and the father was not obliged to produce those documents. 40. The father was questioned about him attending the mothers church on 7 January 2007. I accept the fathers evidence that he took a video camera to the church because he was unsure as to what reaction he would get when he went there looking for the child. 41. The father asserts that the child has been exposed to watching movies in the mothers household at an inappropriate level. The mother denied that the child ever saw Pirates of the Caribbean and I am unable to make any finding as to whether or not that happened. The lack of a finding does not affect the decision that I otherwise make in this matter. 42. There was one occasion during his evidence where the applicant father showed a flash of anger. It was in the context of the father reflecting upon the difficulty that had been caused, particularly to his family, as a result of what he viewed to be totally unfounded sexual abuse allegations by the mother. Conclusion as to credit 43. Having regard to the above matters, but more particularly having observed the parties over the six days at the final stage of this trial, I find that I prefer the evidence of the father rather than the evidence of the mother where their evidence is in conflict. Mothers use of an interpreter 44. On the last days of the final stage of the hearing, the mother had an interpreter available to her. Over the days the interpreter was in the court room he only was asked to interpret a word or two on no more than six occasions. The mother, in my view, competently presented her case in the English language. 45. Dr M makes some comments about the mothers use of the interpreter during the interviews for the report. At page 8 she says the interpreter was used by the mother from time to time. At page 12 she says the interpreter was used frequently. 46. At page 20 Dr M records:
...she was a slim woman who spoke with a strong accent and whose command of English was generally good although she did seek assistance from the interpreter, which for some of the time I felt was for support rather than assistance with language.

47. At page 10 Dr M records that the child only speaks English and the mother speaks English to the child at home (page 12).

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48. I acknowledge that the mother felt pressure and tension from the concentration and stress created by her role as her own representative. However the mother, in my view, ran her case in an extremely competent way. She is an intelligent woman. Her mental status however is such that she is unable to view what has happened in an objective manner. The mothers mental status 49. The state of the mothers mental health seems relatively clear on the expert evidence. Dr W diagnosed that the mother had a personality disorder in 2004. Dr W at that time put the mothers personality disorder in the cluster of personality disorders known as histrionic. The mother tendered a letter from Dr K (Exhibit 5), the mothers current GP, who says that having known the mother for some time she disputed Dr Ws ability to make a diagnosis of the nature that he made. Both Dr Ws evidence and Dr Ks evidence are before me in written form. Neither of them were called to give evidence. Dr W is of course a psychiatrist, whilst Dr K is a general practitioner. 50. I place heavy reliance however on the evidence given by Dr M as to the mothers current mental state. Dr M at page 12 of her report opined that there was no evidence of psychotic process or of a depressive illness and at page 26 says the following:Dr [W] has diagnosed [the childs] mother with a histrionic personality disorder. I would place her personality disorder within the cluster B narcissistic/borderline, characterised by emotional instability and the inability to put the needs of others first. This is particularly evident when the mothers [sic] colludes or falsifies allegations the father, which she knows could result in [the child] seeing less of the father and perhaps the father going to jail, without regard for how this would affect [the childs] immediate and long term emotional needs.

51. Hence Dr M does not agree that the mother has a histrionic personality disorder today. She places the mothers mental health in a different cluster of personality disorders, describing it as narcissistic/borderline and she gave some more precise evidence that within that cluster she would call the mothers mental state narcissistic personality disorder. 52. The mother denied at paragraph 20 of her submissions that she has any disorders. She says she has never been tested, assessed or treated for any personality disorder. This flies in the face of the assessments which the mother knows Dr W and Dr M have made. The mother simply does not accept those assessments. Dr R 53. No evidence was filed by Dr R notwithstanding the fact that she had seen the mother as her treating psychiatrist for a few years. The mother was legally represented during the period when appropriate witnesses were discussed and a timetable for the filing of affidavits were set. They still represented the mother at the time that timetable had expired. No application was made at any time for Dr R to give any evidence as to whether or not she had a view about the

mothers mental status. 54. Dr Rs notes include a written document. These were notes that the mother prepared for Dr Rs eyes only. They contain allegations that the mother has made no where else. An example is an assertion that the child was doing very strange body movements and sounds. The fact that the mother said these things to Dr R but to no other person is a matter which goes to the mothers credit. Given the extensive reporting of other matters to a wide range of professionals and authorities, it is disturbing that the mother would make these types of assertions in a private session with Dr R and no one else. 55. The Independent Children's Lawyer commented on the fact that the mother refused to give Dr R a copy of Dr Ws report during her therapeutic consultations with Dr R. SEXUAL ABUSE ALLEGATIONS 56. There are two different sets of suggestions of improper sexual conduct by the father in this case. The first was when the child was too young to speak. The only witnesses in relation to those allegations are the mother and the father. The second lot of allegations stem from events in January 2007. 57. The mothers position in relation to those allegations is that she didnt make the allegations. She says that the allegations came from the child and she simply repeated them. The incident of 4 November 2002 the masturbation incident 58. The mother says she witnessed the father masturbating in front of the childs cot on 4 November 2002. 59. The mother in her evidence left no room for any alternate explanation. She gave clear evidence that she saw the father masturbating. The father says it never happened. 60. There are inconsistencies in relation to the mothers story in relation to what happened in 2002. In her first interim affidavit sworn 10 December 2002, at paragraph 2(d) the mother says that the child was lying naked on the bed. However in Dr Ws report at page 7 the mother says that the child was dressed in a T-shirt but was not wearing a nappy. 61. During her evidence and in submissions the mother explained that from her point of view there was no difference between the child being naked and the child not wearing a nappy. 62. At paragraph 15 of the mothers written submissions the mother says:Inconsistency in my evidence comes only from that sometimes I said that [the child] was lying naked and sometimes with t-shirt. What I meant always, in my view, is that [the child] was naked. I meant [the child] was without her nappy. When [the child] is without nappy, I view her as naked, as she is not covered, or left or private parts uncovered. When he [sic] private parts are uncovered, in my language and expression, this means she is naked. What took my attention was not what [the child] had on her shoulders but what the applicant was doing.
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63. The event that the mother is describing is a serious and important one in the context of this hearing. I find the detail is an important one and I find there is an inconsistency in the evidence that was given by the mother in the two statements which is not adequately explained by the statements contained in the mothers submissions. 64. There is a further inconsistency about the mothers reaction to the incident. In the mothers affidavit sworn 11 September 2003 she says the following at paragraph 136.19:I was shocked and following the incident I did not leave [the child] alone with [the father].

65. In the second affidavit sworn 20 February 2003 at paragraph 20, she says:I have witnessed [the father] acting out inappropriate conduct in front of [the child] and I will always have concerns about her safety if he had unsupervised contact with her.

66. In Dr Rs notes relating to a consultation with the mother that seems to have taken place around 25 July 2005, it is recorded that the mother told Dr R:I will always be concerned about [the childs] contact with [the father].

67. The three statements referred to immediately above have to be contrasted with the statement made in Exhibit 12 (the mothers statement handed up in court on 5 May 2008), where the mother says at page 5.1:At that time, I did not raise complaints regarding the applicants masturbating in [the childs] room and [the childs] nappy because according to me, it isnt a substantial issue. I said that I did not see the Applicant Father interfere with [the child] physically. He did not have direct physical contact towards [the child] which could have consequences as a result. I said that I did not see the applicant interfere with any act of a sexual nature with [the child]. I saw the Applicant masturbating in [the childs] room. I was not surprised for him to do that. In my opinion, that was silly and inappropriate behaviour from him. This disgusts me because he did that in [the childs] room.

68. There is a fundamental shift in the mothers position in relation to the allegation that the father masturbated in front of the child. In her two earlier affidavits and to Dr R she was sufficiently concerned about the incident to the extent that she was weary about the childs contact with the father. The incident now is one that she calls silly. 69. There are a number of opportunities that the mother had prior to 10 December 2002 to mention or report the incident that the mother now said took place on 4 November 2002. After the father moved out of the home in November 2002 he filed an application in the Family Court with which the mother was served. Moore Js judgment indicates that service took place on 27 November 2002. 70. On the following day, 28 November 2002, the mother swore a Complaint and Summons (Exhibit F) for the purposes of having the father excluded from the

home. The complainant was the mother herself. She named the child as a person in need of protection. There is no mention of masturbation in the alleged incident on 4 November 2002 in the complaint and summons. 71. The mother saw Dr S on 3 December 2002. Dr S had been the childs long term GP. The notes disclose that no mention of this incident was made to Dr S. 72. The matter came before Loughnan JR on 5 December 2002 when the parties were before the Family Court. The incident was not raised by her then solicitor Mr Golden. 73. On 7 December 2002 the mother gave a statement to the police. That statement is annexure B to the mothers affidavit sworn 18 February 2008. It is quite a lengthy statement and there are lots of things the mother complains about in relation to the father, including his possession of a firearm. There is no mention in any of those documents of the alleged masturbation incident. 74. It took the mother until 10 December 2002 before the allegation is made by the mother. 75. I accept that the father was never in a room with the mother with a towel on. The father concedes that there was one occasion when the mother was asleep, the child awoke and he went to the child to put a dummy in the childs mouth and on the way put a towel around his waist. 76. On the balance of probabilities I accept the fathers evidence that nothing untoward happened on 4 November 2002 or any other time involving him masturbating in the childs room. Nappies 77. Apart from the assertion of what happened on 4 November 2002 the mother made other allegations against the father arising out of his alleged conduct whilst they were together in 2002. The mothers evidence was to the effect that there were many occasions when the mother was suspicious about the fathers behaviour with the child. These allegations go to assertions that the father stared at the childs vagina when he took the nappy off. The mother would go out on shopping expeditions and leave the child alone with her father and when she came back nappies would be missing and the child would be in a dishevelled state (see Dr Ws report at page 6.5 and 7.3; the mothers affidavit sworn 11 September 2003 at paragraphs 136.17 and 136.18). 78. I am comfortably satisfied that the father did nothing untoward with the child when she was a baby whilst changing her nappy. 79. The mothers cross examination of the father about him being a sperm donor gave some insight into the mothers perception of the fathers sexuality and potential for doing harm to the child whilst she was a baby. The thrust of the cross examination was that the fathers sexual appetite was increased by the fact that he regularly visited a clinic to donate sperm. I accept the fathers rejection of that assertion. This is linked with the mothers further assertion that the father often accessed pornographic magazines. The father denied that he did so and I

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accept his evidence in that regard. 80. I note that when the matter came before Justice Moore the mother abandoned most of her concerns referred to above. She certainly didnt seek any supervision order before Moore J. The history of the mothers dissatisfaction with the current orders in 2004 81. The mother told Dr R in notes of a consultation that appears to have taken place on 20 January 2005: I will apply for a review of the orders in 2005. 82. The mother said to Dr R in 2006:I am going to start court proceedings. I have got no choice. 83. On 30 September 2005 the mother said to Dr A:I am unhappy about the shared custody order of the Court. 84. The mother wrote a letter to the father dated 28 March 2006 and followed it with a further letter dated 19 August 2006 (annexures F and G to the fathers substantive affidavit sworn 5 February 2008). In those letters the mother foreshadows her intention to take court proceedings. The mother says that all she was trying to do was get the father to go to mediation. The letters however have to be read in light of the entries that I have just referred to in Dr Rs and Dr As notes. 85. Two issues concern the mother. The first was the amount of time that the child would be away from her at the commencement of the 2007 school term. For the first time the child would be regularly away from her mother for a week at a time. 86. The mother actually suggested a reduction from what was effectively a shared care arrangement (three days/four days; four days/three days on a fortnightly cycle) to the child being with the father on weekends from Friday afternoon to Sunday afternoon (and elsewhere Monday morning). The mother suggests that this did not significantly alter the childs time with the father but it would mean that he had four days and six nights with her a fortnight as opposed to seven days and seven nights a week. 87. The second issue that concerned the mother was the school that the child had been ordered to attend by Moore J. The mother clearly wanted the child to go to a public school. In Dr Rs notes there are a number of references to this. She also makes it clear in the letters written to the father. I do not accept the mothers submission (on page 18 of her submissions) that she did not wish to stop the child going to D School. 88. Dr M records that when she asked the mother if she was worried about anything in particular that had happened, the mother said [the father] wants to have [the child] full time and thinks this is best for her, [the father] chose the school, a Christian school, which I would not have chosen (page 11). The mother now says that she has no problem whatsoever with the child going to D School. The

child of course has been going to D School since the beginning of 2007 in accordance with the orders that Justice Moore made in 2004. 89. In the report of Mr C dated 23 October 2006 (Exhibit B), the mother reports to Mr C that the shared parenting arrangement is placing increased physical and social-emotional strain on the child, who has lived in two separate households from week to week over the past two and a half years. The report notes that the mother is concerned that the childs enrolment at D School will place additional stresses on the child. 90. I conclude that in 2005 and 2006 the mother is becoming more and more dissatisfied with the arrangements that have been made for the child pursuant to Moore Js orders which were to become operational once the child commenced school. 91. Throughout this period the mother is attempting to gather evidence for the purposes of being able to change the orders which were then current. Complaints about the father 92. On or about 26 or 28 September 2005 (see DoCS records Exhibit ICL 5), the mother telephoned DoCS. She complained about a number of things which included:92.1. The child suffering a tick bite; 92.2. The child talking about being disgusted at her fathers home and in some way being pushed by her father to do something she did not want to do; 92.3. Displaying with her face and behaviours and gestures, mimicking feeling that she is expressing which is disgust; 92.4. The child telling her mother that her father had locked her in a dark room when he lost his temper. 93. After these matters were noted by DoCS, the mother is noted as telling DoCS that the child has been talking about seeing her father leaking from the bottom and being nudy, that he talks about only him leaking from the bottom. The note also says that the mother informed DoCS that when the child was picked up from the father her vagina was red and was sore to do wee. 94. The mother was advised to take the child to hospital for examination and to make an appointment at the Child Protection Unit at Sydney Childrens Hospital to have her examined and also seek legal advice about changing the court orders. 95. The note goes on to record that the mother also made other complaints and notes that the mother had stated that she had been documenting the childs behaviour on return from staying with the father. She was concerned about the child being burnt, being left unsupervised, changes in her behaviours, seeing a counsellor, concerns about behaviours, language and signs of physical abuse/verbal abuse occurring at the fathers. She told DoCS that the child was frightened and that the mother did not believe the father provided a safe place for the child and that the child was not in good hands with the father. She said the child was now

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behaving in an aggressive way and acting like the father and his brother, copying their language and behaviour. The mother asserted to DoCS that the child was picking up racist language and ideas from the father and was making racist comments. 96. In the mothers oral evidence she was more expansive and graphic when she gave the court a description of the childs disclosure to her that the father was leaking from the bottom whilst he was lying on a floor. 97. The graphic description given to me by the mother clearly indicated that the leaking only came from the anal area. 98. That evidence by the mother has to be contrasted with what is in Dr Rs notes (Exhibit ICL 5, tab 6, sub-tag 11 (pink tag)). Those notes clearly indicate the mother reporting to Dr R on or about 20 October 2006 that the mother had concerns for the child because the father was walking naked and still leaking from bottom. There is an arrow from the word bottom to the words leaks from front and back. I am comfortably satisfied that the mother told Dr R that the discharge from the father was happening both from his anal area and from his front. 99. This, in my view, is an important inconsistency in the mothers evidence. 100. Counsel for the father put to the mother that what she was describing to Dr R and to DoCS in relation to the leaking bottom was that the father was ejaculating. 101. The mother in cross examination, seemed to absolutely refuse to agree with the proposition that that was perhaps what she was suggesting by the reports that she made. Again she simply responded by saying that she didnt know, it was just what the child said to her. 102. I do not accept the mothers statement that the child said that her father was leaking from the bottom. It is such a serious allegation that, had it been said, it is unlikely the mother would not have actioned it immediately. 103. During 2005 and 2006 the mother made numerous reports to DoCS. In ICL 5, tag 7, sub-tag 2, between January 2003 and May 2006 there are fourteen entries on different days of notifications to DoCS in relation to the child, including:103.1. smacking the child; 103.2. when the child was burnt on the arm; 103.3. inappropriate sexual behaviour; 103.4. red sore vagina; 103.5. tick bite; 103.6. mother refusing to take the chld to hospital; 103.7. Dr R and paediatrician Dr H expressing concerns that the child was at risk of psychological abuse because of the conflict between the parents; 103.8. Dr R expressing concern that the mother was failing to provide her with a

copy of Dr Ws report; 103.9. the arguments between the parents are noted as to involve wearing and not wearing nappies; going to preschool; the father going away on trips without telling the mother; the father not properly engaging in the use of the communication book and the father allegedly giving the child a dummy; 103.10.Dr H expressed concerns about the mother being erratic and anxious when separating from the child; 103.11.Concerns were raised about the fathers parenting style and disrespect to the mother; 103.12.mother not knowing where the chld was in the fathers care and contacting the police (24.11.05); 103.13.allegations of emotional and psychological abuse by the father with the child experiencing some nightmares, crying and screaming (24.4.06). 104. On 16 September 2005 the mother took the child to see Dr V. Dr Vs notes states that the mother is anxious because she has suspicions about inappropriate behaviour from the father when the child was with him Re: stuff coming out of private area, & being smelly. 105. On 26 September 2006 Dr S wrote a letter which appears more than once in the evidence, a copy of which is at tab 3 in ICL 5. Dr S confirmed to the mother in that letter that he had given advice to the father in July 2006 that because of the childs continuing problem with minor vaginal irritation it would benefit the child to sleep as lightly dressed as possible, including not wearing more than pyjama pants to bed. The mother had apparently been to Dr S and got his written advice that there was no need for his advice to continue and that it would be reasonable now for the child to wear underpants to bed underneath her pyjamas or nightie. He went on to say:= I should state that there is no medical reason for [the child] to wear or not wear underpants. The decision as to what she does is a decision for the parents. As reasonable people, I am sure that the two of you can arrive at a sensible decision as to what should be done. If I may offer my own opinion, it appears to be prudent for [the chld] to wear underpants as this is the action that most appears to preserve [the childs] modesty, which you [the mother] appear to feel very strongly about. Conversely, I see nothing to be gained by insisting on the opposite action. 106. On 30 September 2005 the mother saw Dr A. Dr As note is, in part, as follows:Purpose of her visit is to report her suspicion of child being sexually abused by her child father susp. Abuse for about one year since girl is old enough to talk about her father/walks always naked, his bottom leaking, he stinks in bed/physical suspicion. Shows some bruising in the past on her legs, genital area always red.

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107. Another entry in Dr As notes of 21 November 2005 records that the mother still has concerns about the child arising from her suspicions of abuse and the lack of interest by DoCS. 108. In the period up to January 2007 the mother initially gave evidence that she took the child to the doctors almost every week. Later in the hearing she changed that evidence to say that it was less frequent. The childs disclosures in January 2007 109. Counsel for the father provided seven references that all relate to the childs disclosure in January 2007. Those references are as follows:109.1. paragraph 10 of the mothers interim affidavit sworn 18 January 2007; 109.2. paragraph 28 of the mothers substantive affidavit sworn 18 February 2008; 109.3. the mothers statement to police dated 9 January 2007; 109.4. the JIRT interview with the child; 109.5. the transcription of the micro cassette recording and the recording itself; 109.6. Dr Ms report; 109.7. Dr Rs emergency appointment with the mother in January 2007 and a further appointment in February 2007. The micro-cassette the recording of the childs conversation on 6 January 2007 110. On a number of occasions, and including Saturday 6 January 2007 the mother taped conversations she had with the child. There are in evidence two CDs and a transcript of what is supposedly on the CDs (part of Exhibit ICL 5). The CDs are from the enhanced micro-cassette. I have listened to the tapes. I have compared them with the transcript. There are some variations. The word dupa is the word the mother and child used for vagina at the time the tapes were made. That word is used on a number of occasions in the mothers questioning of the child. The person doing the transcription was not aware of what dupa meant. 111. I do not accept the mothers explanation that the tape recorder is old and stops by itself. An objective listening to the tape would indicate that the tape has been turned on and off manually. 112. The transcript of the CDs are illuminating. They give an insight into the types of conversations the mother is having with the child leading up to 6 January 2008. On 6 January 2008 part of the conversation the mother has with the child is in the following terms:
Q75 A Q76 A Yes? I got a trick(?) up my sleeve. I know what I can do and the (indistinct) put the pants on very quick (indistinct) and up it go and I put the T shirt on and go to bed. Lovely. I think plan B will work.

Q77 A Q78 A Q79 A Q80 A Q81 A Q82 A Q83 A Q84 A Q85 A Q86 A Q87 A Q88 A Q89 A Q90 A Q91 A Q92 A Q93 A Q94 A Q95 A Q96 A

right, thats good but why always happen this with your (instinct) every day? (indistinct) Oh right. Okay then you tell me he touch your (indistinct). No. Your say, dont touch my bottom, dont touch. Yes, because he touches my bottom. I know. And goes up. Sorry? Goes up there. Show me there, show me? He goes like that always. Touch you there, which one you doing wee wee, yes? With what, with the fingers? His hands, dirty hands. Why and what? He keeps touching it and I dont allow him to do that but he does it. I dont want him to do it. And? But he does it. When he does that? He does that all the time in the night, making it feel comfortable, but it doesnt feel comfortable at all. He tells you that it is comfortable? He thought that was my dummy, his finger. Dummy? Actually wrong part I dont have a dummy. Wrong part but I do have dummies there, I have six. Six dummies? Yes, I got (indistinct) school. How you can touch his (indistinct) with his dummy. (indistinct) dummy and goes like that. Show me, yes? That. And what does he say? He says Do you feel comfortable and I dont, it hurts. Then he twists my foot. Yes? Like this. And? And crack my little foot, it swell (indistinct) and he trod on my foot. He trod on my foot very hard with two feet going stomp, stomp, stomp. But you know that nobody has to touch your (indistinct) private parts of the body? Now I feel I really got a crack in my toe. What if hes listening now? No one is listening now, its only me and you. What if he came here?

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Q97 A Q98 A Q99 A Q100 A Q101 A Q102 A Q103 A Q104 A Q105 A Q106 A Q107 A Q108 A Q109 A Q110 A Q111 A Q112 A Q113 A Q114 A Q115 A Q116 A

So what? You are afraid? Mmm, I am afraid. From what afraid? I am afraid as in scared. No, nobody comes here right now, you dont have to be afraid (indistinct). You tell me it hurt when he touch your bottom? yes. Why it hurt, what he hurt? How it hurt you? he takes off my pants inside the bed. Yes? He just (indistinct) like that and that (indistinct) Yes? It goes smack smack smack. Smack where? Here and here. Here where you doing wee? Wee and poo. And what? Then it really hurts and I go to my bedroom and lock it and I (indistinct) and lock it so I can (indistinct). How long is this, like it is like a play, Lets play now sometimes he thinks? No. What? (indistinct) What is important now? What (indistinct) now? Because the right thing are not when Im not with you. If you were there you could stay with me all night and protect me. Yes, protect you yes. If you were there with me. But now you tell me something that [the father] touch you with his fingers when youre doing wee? He put some mustard on him. What? He eats mustard. Mustard? Mmm And? And actually touches mustard with his fingers and then he pokes in here. And? Then I go wipe my (indistinct) thats mustard in there so I go and have a bath or have a shower and keep getting a bucket and I splash and then wipe wipe wipe because he coats with lots of mustard. Mustard? Mustard. Who told you it is mustard? Well I know mustard is really not good in your (indistinct) so thats why I cleaned it up.

Q117 Where you clean out? A I clean it out when he puts mustard on it. First he puts mustard then I go to have a shower and wash it off. Q118 What colour is this mustard? A The mustard is grey and its sort of grey yellow brown. Q119 Where take his him? A And a little pit pink with orange and yellow. Q120 (indistinct) feeling has to be (indistinct) A It has to be yuck and it feels yuck, if you have my feeling it being so worse. Q121 Really, what is your feeling? A My feelings was just when people make me jealous and I feel feelings and I really feel yucky. People always makes me feel jealous and I dont hurt them. I done my tricks, Im just jealous. Q112 Do you know what jealous means? A No. Q123 So why you say this word? A Because I feel like someones going to kick me and my feeling it came true, someone was going to kick me. Q124 Kick you? A Mmm. Q125 You get cranky and upset? A I get upset and I go to you and tell (indistinct) and thats what I do. Q126 [Child], when [the father] take your pants off did you tell him that you have to tell your mum and a doctor because this is not right did you? A I couldnt. He had the big (indistinct). Q127 What he has? A He has this big (indistinct) Q128 Doing what? A He was going to smack me with it. Q129 Smack you? A Smack me if I said that. Q130 No he will not. That was my conversation with [the child], she took a book and a sleep later. We read the book, she (indistinct) with one book, she would like to read before to sleep and it is 17th of January, night time, actually about 9 oclock in the evening. My long conversation with [the child].

113. The actual tape says 7 January not 17 January. It is clear from other evidence that the taping took place on Saturday 6 January 2007. 114. In question 78 the mother uses the word dupa where the transcript says (indistinct). 115. In question 90, again the mother uses the word dupa where the transcript says (indistinct). 116. The child has not told her mother on the tape that her father touched her dupa prior to the mother suggesting that to the child in question 78. So far as I am aware the mother gave no evidence of the child having said that to her prior to 7
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January 2007. 117. It is of some significance that the initial suggestion to the child that her father touched her on her dupa was answered no. In question 79 the mother says you say, dont touch my bottom, dont touch, the child then agrees with her mother and says yes, because he touches my bottom. 118. Question 83 seems to be suggesting to the child that her father touched her dupa while she was doing wee wee and that suggestion is reinforced by question 110. 119. Dr M comments (at paragraph 20.9) on the seductive tone of the questioning, leading questions and the child not being distressed when talking of the father touching her dupa with mustard. 120. I agree with Dr Ms assessment of the seductive tone and leading nature of the questioning and the fact that the child does not appear to be distressed when talking of her father touching her dupa with mustard. 121. In the JIRT interviews the child makes it clear that her reference to mustard was a joke (see Exhibit C which is subpoenaed material from DoCS, file notes of 27 February 2007 and 17 January 2007). 122. In paragraph 15 of the mothers statement to the police dated 9 January 2007 the mother says:I talk to [the child] about [the father] taking her pants off. I turned on a tape recorder. I have been tape-recording conversations for a while because a friend of mine told me it would be a good idea. 123. In oral evidence the mother denied that she had ever on prior occasions used the tape recorder to tape conversations with the child because it would be a good idea. She had said that on previous occasions she would record and tape things with the child such as singing or reading a book. I find that the mothers oral evidence in this regard is inconsistent with the statement she made to police at paragraph 15 and it is inconsistent with what is on the CDs, which are enhanced versions of the micro cassette tape. 124. I find that the mother had been taping the childs conversations for some time in an attempt to obtain a disclosure from the child. The statements made by the child on 6 January 2007 need to be seen in this context. The JIRT interview with the child 125. There is no issue that the child made disclosures alleged by the mother to DoCS. 126. On 8 January 2007 the child underwent a lengthy interview (572 questions and answers) with JIRT. The record of interview was video taped. The child was aged 5 years and 8 months at the time. 127. I think it is useful to quote extensively from some parts of the JIRT interview in order to give a flavour of how it went:Q41 Okay. What if I ask you a question that you know the answer to but you dont want to say?

A Q42 A Q43 A Q44 A Q45 A Q46 A Q47 A Q48 A ..... Q57 A Q58 A Q59 A Q60

I dont really know. What if I asked you a question that you know the answer to but you dont want to say or dont --Really know? Yes? Well, actually, when my dad takes off really things off my body here, its just here. Mm? And just because my dad tells me off my pants. Mm? Thats not very good. Mm? On the night. Well, thats important and well get to that, but I just want to make sure that if I ask you a question, [childs name] --Yes --- and you know the answer but you dont want to say, if you just let me know and we can go back to that question later on? Yes

Okay. Now [child], can you tell me what youve come here to talk to me about today? Just my mum says that you have to come here to tell my bottom stuff because my bottom because my dad takes off my pants in the night. Where are you when your dad takes off your pants at night? Just in my bedroom and he tells me to take off my pants, that I dont do. Why does he tell you to take off your pants? When I dont want to do, I dont want to take off my pants that he tells me to. Yes. Why does he tell you to take off your pants that you dont want

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to do? A Q61 A Q62 A ..... Q65 A Q66 A Are you all right? So before the water you were talking about that your dad takes your pants off at night in your bedroom? Yes. And I asked you what happens when your dad takes off your pants? Just when my dad takes off my pants and I dont want to, that really I dont want to take off my pants, that really I dont, but my dad takes me to take off my pants. Its just he takes off my pants that I dont want to. Thats what I tell my mum. Yes? That I dont want to take off my pants because I dont want to take off my pants, that I really dont know what my dad is doing. Can you tell me why you dont want to take off your pants? Yes, because I dont want to take off my pants because thats what my mum says, you cant take off your pants because youre a lady. Thats what my mum says. So your mum says you cant take off your pants because youre a lady? Mmhm (indistinct) You said that your dad takes your pants off at night? These colouring things [Childs name]? Yes You said your dad takes your pants off at night? I dont know. I dont know actually. What happens when you take off your pants that you dont want to do? I dont want to take off my pants actually, really I dont want to take off my pants, but Im really a little bit thirsty, I just might get a drink. Do you want a drink now? Yes.

Q67 A Q68 A

Q69 A Q70 A Q71 A Q72

A Q73 A Q74 A ..... Q101 A Q102 A Q103 A Q104 A Q105 A Q106 A Q107 A Q108 A Q109

Yes Can you tell me why he would want to take your pants off at night? Yes, I dont know, actually, but I know he wanted to take off my pants. What happened when he takes your pants off? Because he really wants to take off my pants. I dont know why, but he really wants to take off my pants.

Tell me something that you dislike about your mum, something that you dont like so much? I dont like so much when she always screams when I do something. Thats what I dont like. Yes, she always screams? She always makes these funny things, but I know whats the baddest thing she does, screams. Screams always. So thats the thing that you dislike the most about your mum? Yes, I like --Okay? She hugs me, thats what the most I like from her. Thats good? Thats what I love from her. Thats why I love her. All right. Whats the thing that you most dislike about dad? The most thing that he its the same as my mum. He always hugs me. Is that a dislike or the thing that you like the most about your dad? The most The most? And he always says, I love you, I love you, I love you, I love you. Where will I put that? In something that you like about your dad or

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something you dont like about your dad? A Q110 A Q111 A Q112 A Thats what I like about my dad. So you like that your dad hugs you? Yes. Yes? Actually --What did you say, that he says --Oh, I love you, [child], because really when I have to be with my mum because Im a woman. Well actually I have to be with my mum. Whats something that you dislike the most about dad? But, the most thing I like about my dad is going to school at [D School]. Yes? Yes. The second thing is my mum wants me to go to a public school. Thats I dont like; public school. You dont like public school? My dad thinks theyre not very good. Okay? The children are naughty my dad went to a public school and he wanted to go to a private school, mens private school. You said a few things that you like about your dad, you said that you the most when he hugs you? [sic] Yes. You said he liked the most with your mum when she hugs you and you like with your dad when he says that I love you? [sic] Yes. Can you tell me what you most dislike about your dad? Well, its like its like changeovers and most what did you just say? Can you tell me?

Q113 A Q114 A Q115 A Q116 A Q117 A Q118 A Q119 A Q120

A Q121 A

Mm What you most dont like about your dad? Oh, that one. Well, lets see; I like about my dad is about going just playing around. I dont like about my dad is just doing all these yucky things that I dont like. All these yucky things. When you say yucky things, what do you mean by that? Well, its like always that I sometimes like I, like, its a funeral. When I go with my dad, that means Im really going with my mother, and when it was time to in Christmas time, it was a long time ago, and this was when I was having, with my dad, time, in the Christmas one I was with my dad and all the friends came to my house and my mum rang up. Mm? And she said, Can I please have [the child] now, when it was my time with my dad that I liked, and I didnt want to go with my mum because I had happy times and she wanted to ruin my happy times. So when you say that the thing you most dislike with that is yucky things? Yes You said funerals and changeover. Is there anything else? No, not actually, no.

Q122 A

Q123 A

Q124 A Q125 A ..... Q203 A Q204 A Q205 A Q206 A Q207

Okay. All right. And --The neck, its all right to touch there, but no-one can touch there. No-one can touch here? But my dad does. Does he? He always goes like that all the time. Ouchies. When you say he does that, can you tell me what he does? Yes, no he doesnt put any mustard that was a joke actually. That was a joke. So you said here, you call this is your bottom?

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A Q208 A Q209 A Q210 A ..... Q218 A Q219 A Q220 A ..... Q233 A Q234 A

Yes. And you said that your dad touches you here? Yes Okay. Can anyone else touch you here? No, no-one. No? No-one can.

Yes? So, no-one ever well, they can touch here, but not here. And no-one can touch here? Why cant anyone touch here? Well, because it might be very private and here is private and here is private. Do you want to draw circles where youve said its private? Yes. There, and here.

All right. You said here that dad touches you here, but you said with mustard and that was a joke? That was a joke. What do you mean? Mustard is I dont mean mustard, but I know that (indistinct) said mustard and dad touches mustard with his fingers, and the mustard was just a made up thing that he was making up. Thats what he did. When you said here that your dad touches you? Yes. Yes? Do you know, like, why does he touch you there? No, I dont know. Can you remember the last time that he touched you there? Yes. Yes?

Q235 A Q236 A Q237 A Q238

A Q239 A Q240 A Q241 A Q242 A Q243 A ..... Q286 A Q287 A Q288 A Q289 A Q290 A Q291 A Q292

Yes. Can you tell me about that time? He was actually pulling my pants down, touching with me. Thats what he actually did. So the last time? Mm. That dad touched you here? Yes. He was pulling your pants down? Yes Then what happened? Well, I dont think hell be really mean about this and I dont think he might tell so much about this, that I might tell.

[Child], when we first came in here? Yes. You said that --Yes That youd come to talk to me about your dad taking your pants off at night? Yes Yes? Yes And that he pulled your pants down? Yes Can you tell me some more about that? Yes. Yes?

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A Q293 A Q294 A Q295 A Q296 A Q297 A Q298 A Q299 A ..... Q347 A Q348 A

Yes. Well, its like in the night, when he you have to brush your teeth, its the sneakiest thing that I have ever done. So its at night when you have to brush your teeth? Yes. Yes? Yes, and my dad was brushing his teeth, I did the sneakiest thing ever. What did you do? I was putting my pants on. Yes? Quickly putting this on, my big trousers at night, and then put my pants on, kept them on. Yes? And I put my pants on quickly, then my T shirt. That was the sneakiest thing I ever done. Why was that sneaky? Because I dont want to take off my pants You keep saying that, that you dont want to take off your pants. Can you tell me why you dont want to take off your pants? Well, well, its like my mother.

Where are you when daddy touches you on your bottom? Well, its like you just said before, I was in my bedroom and he came up to my bedroom, my bedroom is downstairs and his is upstairs. Whereabouts in your bedroom are you? Well, I am downstairs in another bedroom and part of the house where [the fathers sister] used to live, down on the bottom of our house.

..... Q369 A Who else was there when he was touching you on your bottom? Lets see. I cant even think of it.

Q370 A Q371 A Q372 A Q373 A Q374 A Q375 A Q376 A Q377 A Q378 A Q379 A Q380 A Q381 A Q382

I cant event think of it? Okay. Do you know what time during the day? Was it light or dark? I think it was day. Why do you think it was day? Because it was day It was day? (indistinct) day. Do you know what day it was? No, but it was a day. It was a day, not night, not afternoon, it was just day. What did he touch you with? Just his fingers His fingers. When you say this fingers, like do you know how many fingers? Five. Can you show me? High five, just five. Can you show me? Going like that. Five fingers going like that? Yes, and like that. I didnt even feel it, but I know he was touching me like that. How do you --I looked down and he was going like that, and I said, Dad, stop it, and he did. Has he done this before? Well, he only just once and he did this twice and five times, I think, five. You said something about mustard?

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A Q383 A Q384 A

Mustard. What is mustard? Its some stuff like mixed up with jam and toast, and its really yucky, mustard. What do you do with mustard? Well, you put it on bread. Its like fish paste. Its like fish past, you know, fish paste. (indistinct) like fish paste. You put it on toast and you eat it. Right? Its yuck, I dont like fish paste and I dont like mustard. And I looked at him and he was eating mustard, and he said, do you want some mustard? And I said, No, its made out of fish jam. I dont like fish jam.

Q385 A

..... Q426 A Q427 A Q428 A Q429 A Q430 A ..... Q433 A Q434 Where you were at the picnic with your mum and your dad, and this is your dad youve drawn, with his five fingers? Yes. Were his fingers? So when you said that your dad touched you on your bottom on this day? Yes When you were at the picnic with your mum and your dad? Yes What did he touch you with? Well, --You said his five fingers? You have five fingers and there is something that has to be very, very serious. Whats that? Kind of like this (indistinct). Everyone was actually here, move that. There we are. Thats the gate.

A Q435 A Q436 A ..... Q444 A Q445 A ..... Q455

Mm. Whereabouts were his fingers? Were they on your clothes or under your clothes? It was when I was wearing my trousers it was in there, going sideways in there. Okay. So was he was his fingers touching your clothing or something else? Well, he was touching me on something that was important.

But Im just trying to understand, was it on the outside of your clothing or the inside or something else? Well, it was the outside going like that. Okay? The outside

Before we had a break, you were saying that at the picnic, with your mum, your dad,. You were wearing a dress, trousers, and that your dad touched you on the bottom on the outside of your clothing; yes? Yes. Is there anything more that youd like to tell me about that day? No. No? Thats all.

A Q456 A Q457 A ..... Q529 A Q530 A Q531

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On this day here when youre at the picnic with your mum, and you dad? Yes. And he touched you on your bottom? Yes. And he pushed hard?
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A Q532 A Q533 A Q534 A Q535 A Q536 A Q537 A Q538 A Q539

And do you know what, I felt something. What did you feel? It was pushing me here, something was going like that on my back. Do you know what that was? That was my dad. Your dads what? My dads hand going like that. Why was he doing that? I dont know. I knew that was him and he touching my bottom. Whereabouts were you sitting when your dad was touching your bottom? [Name], Ill show you on here. I was sitting here. Yes? And mum was sitting here. Yes? My dad was sitting there. Okay. He went walking around to there and he went push, push in the back of my back.

128. Dr M comments that the child appears relaxed when she is being interviewed by JIRT. As set out above, in answers 57 to 61, the child sets out her understandings as to why she is being interviewed. Dr M comments that the interviewer asks the child several times about anything dad does that she dislikes, and she does not come up with anything. Dr M concludes that there is nothing in the video material to suggest that anything untoward took place between the child and her father. Dr M further concludes that the difference between what the parents say about the child wearing underpants to bed has been elaborated, either consciously or unconsciously, to produce an allegation of sexual abuse by the father, for which in Dr Ms view there is no evidence. Quite clearly what the child was saying happened at a picnic near D School, with the mother present, is the child fantasying about an event that did not happen. 129. The child informed Dr M that:
[The child] told me she is not scared of Dad but she is scared of Mum, although she does not know why. She said, Mum tells me to do what she wants me to and

say things I dont want to say. She said she forgets what these things are. She told me, Dad is kind, Mum is not kind, I dont like anything about Mum. Mum lies, she says Dad is mean and he tells lies which is not true. I know Mum is lying. Mum gets me to say things about Dad which are not true. I know I shouldnt have said it but Mum told me to say it. She became tearful. When [the child] told me these things she stood directly in front of me, very close to me, making good eye contact. There was no real sense of her being rehearsed and she appeared to be completely genuine. [page 16, Dr Ms report).

130. The mothers complaint that these things might have been said by the child in the context of the child having been with her father is significantly diluted by the fact that when the child had spent significant time with the mother prior to the final interview with Dr M, Dr M reports the following:Initially, [the child] was seen alone....when [the child] was seen briefly at the beginning of the interview she told me quickly that she liked dad better than mum and that it was no particular thing but I feel safer with dad.

131. Then later on 9 August 2007 in the individual assessment with the child, Dr M reports the following:
When they were separated again, [the child] told me that her mother screams at her and Dad doesnt. She told me, Dad doesnt tell me what to say, only mum told me what to say about dad. When I asked her about what she said about dad again, she said it was definitely not true.

132. On 1 November 2007 the former mothers lawyers indicated that the general submission that the mother wished to make was that because both parties case is that the child lied at some point (the father saying the child lied about the allegations she made to DoCS and the mother saying that the child lied about saying that the mother had put the child up to it), then I should discount anything that the child has said, because on both parties cases she has lied. 133. The fathers case is that the only reason the child lied in the first place was because of the pressure placed upon her by her mother. 134. The mother, in submissions, refers to the fact that the child on the tape showed how her daddy touched her (she refers to page 35 of the transcript which contains Q377 Q385 set out elsewhere in these reasons). This however was something that the child had rehearsed with her mother on 6 January 2007. I am unsure as to whether that rehearsal was something the mother consciously intended. 135. The mother is still of the view that some of the things that the hcild said that are highly improbable still may be in essence true. At page 13 of her submissions she says of the travelling on the train to Parramatta and the picnic time in D School when she and the father were suppose to be with the child:
this doesnt mean that similar events didnt happen some time some where.... [The child] visualised our presence and said that we were together maybe
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because she wanted to see one or other of us around her some times some where.

136. I do not accept that there is an unacceptable risk that there is any accuracy in anything that the child says which both parties agree could not have happened. 137. At page 14 of her submissions the mother asserts that the childs behaviour during her interview with Dr M was not her usual behaviour and that the childs language looked as if she was parroting somebody elses words. That hypothesis was directly put by the mother to Dr M during her cross examination of Dr M. Dr M rejected the notion that what the child was telling Dr M was as a result of her father coaching her to say things. Mothers position about supervision 138. In the mothers written document provided to the court on 5 May 2008 (Exhibit 12) at paragraph 4.5 and also in her oral evidence, the mother asserted that she didnt need to worry about supervision for two reasons:138.1. The child was starting to talk as she grew older and would be able to articulate if something happened to her when she was with her father, and; 138.2. The mother herself would be able to see if there were changes to the child after she was with her father, that caused concern. Report by Dr M 139. Dr M provided evidence as the Courts single expert witness. She swore an affidavit on 31 August 2007, which annexed a copy of a report dated 28 August 2007, and she gave oral evidence. 140. Dr M saw the father on 7 June 2007; the child, the fathers sister and the father on 18 July 2007 (for individual assessments); she interviewed the mother and the child on 31 July 2007 at a time when the child had been with her father immediately prior to the interview and at the mothers request, again on 9 August 2007 when the child had been with her mother in the period of time prior to the interview. 141. In the mothers response and comments on the report by Dr M (Exhibit O), and her submissions filed 12 May 2008, the mother refers to what she sees as many mistakes in Dr Ms report. 142. Dr M conceded that the last sentence on page 15 of her report contains an error. In her report Dr M says that the child said:Mum says not to wear them because I am a lady and dad says I have to wear them because I will get a urinary tract infection.

143. It is clear from all the other evidence that the word not has been put in the wrong place and Dr M confirmed that. The sentence should read Mum says to wear them because I am a lady and dad says I have not to wear them because I will get a urinary tract infection. The mother refers to this mistake on more

than one occasion. It is not, in my view, anything more than an obvious dictation error by Dr M. 144. The mother refers to the fact that Dr M did not remember that Dr W had indicated that both the father and the brother had been sexually abused. In my view that is not of significance. Dr M was shown that part of Dr Ws report in the witness box and said that that information did not affect any conclusion that she had reached about what was in the childs best interests. 145. The mother complained that Dr M did not give equal evidences for both parents. By this she meant that Dr M had interviewed the fathers brother and sister for the purposes of the report but nobody on her side (it was unclear to me as to what friends of hers the mother would have wanted interviewed). The mother called no witnesses in her case. I do not accept the complaint made. 146. The mother in her submissions asserts that Dr M admitted when she interviewed the child she was very close body to body and eye to eye contact. That in fact is not what Dr M said. Dr M explained that it was only at one particular point in the interview when the child came up to her, and volunteered information. 147. The mother complained that Dr M did not ask the child at all if her father ever touched her on her private parts. Whilst that is strictly true, it does not invalidate Dr Ms opinion based on what the child did actually say to her and what Dr M had read, that the child was in fact explicitly denying sexual abuse. 148. The mother in her submission misconstrues Dr Ms evidence in the third last paragraph on page 23. Dr M there says: However, I am not convinced that she would not collude with [the child] to make further accusations against the fathers behaviour towards her, for example, the issue of wearing underpants appears not to be related in any way to sexual abuse, but a matter of hygiene about which parents and professionals disagree. 149. The mother, in her submissions, seems to miss Dr Ms point that for the mother the issue of wearing underpants on any view of it and particularly listening to the micro-cassette tape, extends beyond a matter of hygiene. It is the topic that the mother uses to introduce the child to a line of questioning about what the childs father does with the child in bed. 150. The mother was unable to either accept or understand Dr Ms evidence that it was unusual for the mother not to have raised her concerns about the child being sexually abused by her father during her interviews with Dr M. The mother in her submissions reiterates at page 4 that she simply answered the questions when they were directly addressed to her. 151. The mother believes that Dr M lacks objectivity and fairness and has made extreme recommendations. Because of the mistakes that the mother asserts that Dr M has made, she asks me to pay attention to the weight that I place upon Dr Ms report and evidence.

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152. In my view, the errors that the mother has pointed to in Dr Ms report, so far as those criticisms are valid, do not affect the weight that I need to place upon Dr Ms opinions on issues which are central to my determination of what is in the childs best interests. 153. I accept the conclusions Dr M has reached and I will substantially adopt her recommendations. Conclusion about allegations of sexual abuse 154. What happened in January 2007 could have spun badly out of hand. The father could have been charged and faced a criminal trial. Certainly it meant that the child initially did not go to her father and that the child for some considerable time saw her father in a supervised setting. The mothers behaviour led to the allegations being made by the child. I am not on the Brigenshaw standard able to say on balance whether the mother deliberately coached the child to say things that she did. I am satisfied, however, on balance that the mothers behaviour, whether deliberate or otherwise, led to the child saying the things that she did and that there is an unacceptable risk that did lead the child to say what she did and that this may happen again in the future. 155. I accept the mother believed what the child told her. The mother however lacks insight into how the words the child used to her were enticed out of the child. I accept that the mother cannot tell whether what the child said was the truth or not. I do however find that the mother was all too willing to accept that the words the child used were accurate. 156. At page 19 of her submissions the mother submits that taking [the childs] pants off was never related to sexual abuse but the lack of hygiene and care. That submission flies in the face of any objective interpretation when one listens to the conversations between the child and her mother which are recorded on the CD and the evidence of Dr M which I accept. 157. In the JIRT interview the child refers to being touched with her fathers five fingers on her vagina when she was suppose to be at a picnic that she was at with her mother and father next to the D School. It is agreed by everybody that no such event ever happened. 158. A number of points in Dr Ms report makes it clear that Dr Ms opinion is that there is no evidence the father poses any threat of sexual or psychological abuse to the child (see pages 16, 21 and 24). 159. For the child to have wittingly or unwittingly been placed in a situation which led her to say the things that she said to JIRT on 8 January 2007 is very concerning. 160. There are two possible viable explanations as to why the child might have said what she said: 160.1. the mother deliberately coached the child into saying what she originally said; 160.2. the child worked out at the time that what she was saying was the type of

thing that the mother would be pleased to hear. 161. Certainly Dr Ms evidence as to what the child said to her means that the first possibility is not fanciful, but I dont have to decide which of those alternatives are the more likely. 162. I accept Dr Ms opinion that there is a risk of ongoing collusion between the mother and child if the current arrangements continue. Given Dr Ms evidence about the mothers mental status, which I accept, I am unable to conclude that the mother would be able to control her behaviour in the future. The mothers narcissistic personality disorder means that she elevates her own needs above those of the childs, and that is something that her mental status does not allow her to currently change. STATUTORY CONSIDERATIONS Paramount consideration 163. In deciding what parenting orders to make for the child I must consider the childs interests as my paramount consideration (Section 60CA Family Law Act (FLA)). Primary considerations 164. In determining those best interests I must primarily consider Section 60CC(2) FLA: 164.1. the benefit to the child of having a meaningful relationship with both of her parents; 164.2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence. 165. I acknowledge that it is important to ensure that the child has the benefit of a meaningful relationship with both of her parents. In the context of this case however it is also extremely important that I do what I believe is necessary to protect the child from future long term psychological harm. The orders that I make need to strike a balance between the benefit that the child will have from a meaningful relationship with her mother and the risks that have been identified in relation to the childs psychological health if her mother acts in the future in a way that she has in the past. 166. In addition I must consider those matters set out in Section 60CC(3) and (4) FLA and I also have in mind the objects and their underlying principles of Part VIII FLA.

ADDITIONAL CONSIDERATIONS Expressed views and their weight 167. Although I dont put a great deal of weight on what the child expresses as her views in relation to where she wants to live at her age, I am comforted by the
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fact that her expressed views are consistent with the view that I have otherwise formed about what is in her best interests. 168. The child stated on a number of occasions to Dr M that she would prefer to live with her dad. Dr M records that she brought this up in a number of ways. For example, while drawing she spontaneously told Dr M that she did not like her mothers food and likes to go home with her dad. 169. At page 19 of her report Dr M records that in the interview with the child on 9 August 2007 (an interview which took place after the child had been with her mother for some time), the child told Dr M that she does not want week and week about with each parent, rather she wants to spend more time with dad, although she does want to see mum. 170. At page 21 of her report Dr M describes the child as being clearly intelligent and articulate (the child was 6 years and 4 months at the time of this interview). At page 25 Dr M concluded in general, the child saying that she would like to spend more time with her father and she would like to continue at D school. However, Dr M says that the child also said she would like to continue to see her mother. Dr M explained that she did not push the child in relation to expressing her views in any more detail. Relationships With mother 171. It is clear that the child and her mother have a close relationship. I accept Dr Ms view that at times this relationship can be suffocating. I also accept that the mother has set out to seek a far more exclusive relationship with the child and that the relationship the mother seeks with the child is not healthy for her long term emotional development. The mothers ability to focus on the childs needs and put the childs needs ahead of her own is affected by the mothers mental status. With father 172. Dr M did not consider that the father had a personality disorder or any other problem with his mental status. 173. The child and her father share a close and loving relationship. At the time Dr M saw the child for the interviews she had an anxious attachment to her father which Dr M explained was a progression of the separation anxiety that she felt in the presence of her mother. I accept, however, that the father is sensitive to the childs separation anxiety. The father has had a strong attachment with the child since an early age and that has meant that a warm, caring and empathetic relationship has developed between the child and her father. 174. During the interview with Dr M on 31 July 2007 the mother said that her position was:She thought that [the father] should have [the child] at weekends only, but not during school time, between Monday and Friday when [the child] should live with her. She thought [the father] could pick [the child] up on Friday

after school and bring her back on Sunday night or Monday morning at the latest and that he could have her every weekend for contact. She said this could be easy and done cooperatively over things such as parties and other functions [the child] has to attend at weekends. 175. The mothers position has dramatically changed since her expression of her position to Dr M on 31 July 2007. I find the mothers curious position, as expressed to Dr M on 31 July 2007, to be consistent with Dr Ms assessment of the mothers mental state. On a number of occasions during the interviews Dr M records that she asked the mother to express her concerns about the child being with her father. On no occasion did the mother raise with Dr M the sexual abuse allegations. This led Dr M to comment at page 12 of her report she avoided questions relating to the allegations of abuse to the extent that I found myself wondering why we were meeting. 176. Dr M at page 23 again records that she found it particular strange that the mother did not bring up any of the allegations of the fathers alleged abuse of the child until Dr M directly confronted her. Dr M recorded that she then more or less pushes this aside, and in the interview on 9 August 2007 seems to have told Dr M that she was happy with the current contact arrangements of week and week about. Dr M says that she felt that this was motivated by the mothers own fear that the father would be given more contact with the child rather than less, as a result of the unproven allegations and that she wished this to be simply swept under the carpet so that nothing would come of it. With others 177. I am confident that the child has a meaningful relationship with both the fathers siblings, particularly the fathers brother. 178. The fathers family have made some significant sacrifices in the time it has taken for this matter to reach a final conclusion through the Court process. The fathers sister came up from Melbourne away from her partner to provide supervision. The fathers sisters ability to continue that arrangement has been compromised by a diagnosis of breast cancer last year. The fathers sister was not asked any questions in relation to evidence that she has given. The fathers brother clearly has a close relationship with the child (as evidenced by the description in Dr Ms report). Dr M describes that when the child was experiencing severe separation anxiety, and the fathers brother was asked to take her outside, she left happily with the fathers brother. Willingness to encourage and attitude to relationship between child and other parent; attitude to the responsibilities of parenthood 179. Section 60CC(4A) FLA requires me in particular to focus upon events that have happened, and circumstances that have existed, since the separation occurred. 180. There was a disagreement between the mother and father during the evidence about the fathers involvement with the mother during her pregnancy. I prefer the evidence given by the father over the evidence given by the mother in that regard.
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181. Since the fairly traumatic events (where Federal Magistrate Altobelli removed the child from her mother for a period of time in January and February 2007) and whilst this case has been waiting for final determination there has not been any significant incident that would demonstrate an unwillingness by one party to foster the childs relationship with the other parent. I am however not convinced, as Dr M is not convinced, that the mother would not collude with the child to make further accusations against the fathers behaviour towards her in the future. As Dr M observes there are many instances which could be blown out of control and misinterpreted in a similar way to what has happened in the past. I share Dr Ms concern about the mothers propensity to do that in the future. The genesis of this concern is the mothers inability to put the childs needs ahead of her own and her tendency to see things in her own way. Quite clearly the mother has interpreted the child taking her pants off in bed in the fathers home in a similar way as she would see that as an adult. Dr M sees this as a product of the mothers personality pathology in which she is unable to see the child as separate to herself. I agree with Dr M that that could be particularly damaging for the child as she gets older and requires appropriate differentiation and separation from her parents. Obligation to maintain the child 182. The mother complains that the father didnt provide proper financial support for the child immediately after the separation. There is probably some substance to that complaint. The parties however have been sharing the childs care equally since the judgment of Moore J and although it might have been the father could have done more to financially assist the mother in caring for the child, it is not a matter that is of any significant weight in respect of the decisions I have to make in this case.

Effect of Change 183. There is no doubt, what I propose for the child, will be a significant change for her. There is no doubt that she will suffer some distress from not being with her mother as much as she has been up until this point in her life. The short term distress the child will experience, however, is something I have to weigh against the real risk of the child suffering long term psychological damage to her if the current situation is allowed to continue. Practical difficulty and expense of being with and in touch with other parent 184. There are no issues raised about any practical difficulty or expense in the child sharing time with both of her parents. The capacity of parents and others to provide for needs of the children (including emotional and intellectual needs) 185. There are some concerns about the father fostering a positive relationship with the mother. Those concerns arise from the fact that:-

185.1. The father initially had difficulty referring to any positive qualities of the mother; 185.2. The father had difficulty saying positive things about the mother. 185.3. The father conceded that he taped conversations between the child and her mother and that the child was aware that those conversations were being taped, and in fact participated in turning the tape recording machine off. This would be quite a damming piece of evidence in some cases but in the overall dynamics of this case it is not a matter in respect of which I place great weight. It is, of course, however not an activity that should be encouraged and I accept that the orders sought by the Independent Children's Lawyer that the father provide the child with privacy at the time that she has telephone communication with her mother is an appropriate one. 186. I am satisfied with the fathers evidence in relation to how the child came by her burns. Dr M gave evidence that she had viewed hospital records which indicated that the event was an accident that could have happened in any household. 187. I am satisfied on the evidence that although the father has not provided the mother with any significant funds for the childs upkeep in the past, his recent inheritance means that he will be able to repay the monies that he has borrowed and will have a significant capital amount which will underpin his ability to financially support the child in the future. 188. The mother asserts that a lot of accidents and events happened with the child while she was with the father. On the evidence I have I do not accept that generalisation as accurate. 189. I agree with Dr M that the father impresses as a responsible parent who is willing to spend time and care for the child and who has arranged a suitable school which will provide her with suitable friends. The father recognises problems of the anxious attachment that the child has now transferred to the child and himself, and he is attempting to remedy that. I intend to make an order that the child be given the assistance of professional help. 190. The father said to Dr M, and in oral evidence, that one result of the allegations made was that some voluntary reading he was doing at school could no longer continue because the school was not prepared to allow him to read to the children whilst the allegations were outstanding. 191. The mother submits that the child has adapted herself to the current situation and is now her normal way of life; that the child is well developed in all aspects of her life and is above average at school and is active socially and fully involved in school activities and is cheerful and energetic. The mother produced a number of testimonials which spoke favourably of her attitude and responsibility to the duties of parenthood. Nobody has seriously questioned the mothers ability to look after the childs physical and educational needs. The central feature of this case however is the difficulties the mother faces in meeting the childs emotional and psychological needs into the future. At page 24 of the submissions the

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mother reiterates that she will have concerns about the childs safety when the child is with her father, until the child is old enough to look after herself. 192. Dr M agreed with Dr W in his previous report that the mother had difficulty putting her own needs ahead of the childs and tends to see things in her own way. As an example, Dr M said that the mother saw the child taking her pants off in bed in a similar way to which the mother would see it if the mother took her pants off in bed. Dr M said this was an example of the mothers personality pathology in which she was unable to see her child as separate from herself. Dr M opined that this could be particularly damaging for the child if she gets older and requires appropriate differentiation and separation from her parents. Family violence 193. I agree with Dr Ms opinion that there is no evidence at all that the father poses any threat of sexual or psychological abuse to the child. I agree that what was originally a disagreement about wearing underpants under the childs pyjamas has been misconstrued and totally distorted by the mother to produce allegations of abuse against the father which have not had any foundation. The mothers propensity, in my view, to behaviour in a similar manner in the future places the child at psychological risk. I reject the submission made by the mother (at page 22) that she has never done anything to hurt or damage the child psychologically. 194. At page 22 the mother makes the submission that if she had really set out to coach the child she would have done a far better job of it. She would have got the child to say that the father had done something really physically inappropriate to her with his penis. This is an unusual submission. I have agreed with Dr Ms assessment that the mother did ask a number of leading questions that led the child to make the assertion that she did. The fundamental assertion was that the father was using his hand to sexually interfere with the childs vagina. The mother has shown no insight at all into the fact that that is what she did do. Any family violence order 195. The mother obtained an interim AVO in 2002. From what I know of this matter there was little, if any, basis upon which she could assert that she had a reasonable fear of family violence by the father. There hasnt been an family violence order in existence since 2003. The order that would be least likely to lead to the institution of further proceedings 196. The mother makes a somewhat ominous prediction on page 23 of her submission by saying after two or three years [the child] will be able to express her wishes more conscientiously and responsibly. It seems that the mother is already laying the ground work for another application in two or three years to change whatever arrangements are put in place now. 197. In my view, the orders that I make mean it less likely that the mother would be successful if she sought to institute further proceedings involving the child (which would in effect be a third full final hearing in relation to the childs parenting) in the future.

Any other fact or circumstance 198. In relation to specific matters in issue and facts and dispute that were highlighted before the final state of the hearing I shortly respond (as set out in bold):1. MATTERS IN ISSUE: 1.1. Whether the presumption of equal shared parental responsibility for the child should apply in this case or whether the father should have sole parental responsibility for the child (fathers proposal). No 1.2. The amount of time the child should spend with each of her parents. This is set out in the orders made for the reasons otherwise given 1.3. Whether the childs telephone communication with the parent with whom she is not living should be:1.3.1. liberal, as per order 7 made 26 March 2004; or 1.3.2. limited (fathers proposal) to one occasion per week of no more than 15 minutes. I accept the recommendation of the Independent Children's Lawyer that telephone communication with the child should take place on two occasions each week between the hours of 6pm and 7pm. 2. FACTS IN DISPUTE 2.1. Whether the father poses any unacceptable risk of sexual abuse and/or psychological abuse to the child. No 2.2. Whether the mother poses any unacceptable risk of psychological abuse to the child and in particular: 2.2.1. Whether the child made the disclosures alleged by the mother The child did make disclosures but in circumstances which I elaborate elsewhere in these reasons. 2.2.2. Whether the mother encouraged the chld to say things about her father Yes, but given the mothers mental status I make no explicit findings as to whether or not this was deliberate or a function of her personality disorder. 2.2.3. Whether the mother embarked upon a course of conduct where she has made false allegations against the father relating to inappropriate sexual conduct by the father involving the child

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and in particular, is there any basis for the mothers allegations that, prior to the hearing before Moore J in 2004:2.2.3.1. The Mother witnessed the Father dressed only in a towel, holding his penis and masturbating while standing beside the childs cot. No. 2.2.3.2. When the Mother was away from the home the Father tampered with the child in some way as her nappy had been removed and couldnt be found. This allegation by the Mother had a culpable overtone given the Mothers claim that the Father would not change the childs nappy at all when the Mother was present. No. 2.2.3.3. The child behaved strangely on return from her Father which resulted in the Mother contacting DoCS and a paediatrician. The Mother said she was told the child may have been given some type of sedative. No 2.2.3.4. 2.2.3.5. The Father masturbated in front of the Mother. No. The Father had pornographic magazines. No 2.2.4. Whether in 2004, despite her assertions to the contrary, the Mother had interfered with actions by the Father to see the child and attempted to stop him from seeing the child as the complaint and summons taken out 28 November 2002 included the child as a PINOP. Yes. 2.3. Whether in 2004 the child had a close bond with each of her parents but the quality of her relationship with each of her parents was markedly different, the connection the child had with her Father being the healthier for her. I do not need to answer that question for the purpose of these proceedings, but observe that it is my view that today the quality of the childs connection with her father is healthier for her than her connection with her mother. 2.4. If either parent poses a unacceptable risk of abuse to the child, how best to protect the child from abusive behaviour by her parents.

The child is at unacceptable risk of future psychological abuse by her mother. The orders that I have made are designed to be protective of the child from abusive behaviour by her mother. 2.5. The nature of the childs relationships with each of the parties and significant others. This is dealt with elsewhere. 2.6. The childs views in relation to the parties respective proposals for her living arrangements and the weight to be placed on those views. This is dealt with elsewhere 2.7. The parents respective parenting capacities and in particular: 2.7.1. Whether either party is affected by some form of personality disorder or other psychiatric condition which impacts on their ability to provide for the childs needs, especially her emotional needs; and 2.7.2. The parties respective capacities to implement an arrangement whereby the child equally shares her time between her parents or spends substantial and significant time with the parent with whom she does not primarily reside. This is dealt with elsewhere 2.8. The parties respective capacities to facilitate and encourage appropriate and continuing relationships between the child and the other parent and members of that parents extended family. This is dealt with elsewhere 2.9. The effect on the child of the exposure to parental conflict. I agree with Dr M where she concludes that the childs exposure to the parental conflict is confusing for the child. A repetition of parental conflict in the future is likely to lead to the child having difficulty with her own judgment which is detrimental for her developmentally. 2.10. The likely impact on the child of any reduction of her living time with the mother and in the event the court finds such a reduction in the childs best interests, how best to facilitate that reduction. Dr M, having read Exhibit O, gave evidence that the childs time with her mother should be terminated for a period so that she can relax into the new arrangements with her father. She changed her opinion in relation to a gradual introduction of the new regime. I accept her revised opinion in that regard. 2.11. Whether the Court should make an order which would be least likely

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to lead to the institution of further parenting proceedings in respect of the child, and if so, what order(s) would achieve that outcome. This is dealt with elsewhere 3. CREDIT 3.1. It is noted that the credit of each of the parties is in issue. This is dealt with elsewhere PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY 199. Section 61DA provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the childs parents to have equal shared parental responsibility for the child. Section 61DA(2) provides that the presumption does not apply in circumstances where a parent has engaged in abuse of a child or family violence. 200. Abuse is narrowly defined in the Act as assault or sexual activity. I have found in this case that there is no unacceptable risk that the father has been involved in any untoward sexual activity so far as the child is concerned. There is no allegation the mother has been physically abusive to the child. 201. Family violence means conduct, whether actual or threatened, by a person towards a member of the persons family that caused that member of the persons family reasonably to fear for their personal wellbeing or safety. The expression personal wellbeing or safety is wide enough to cover the type of danger, posed by the mother to the child, that I have described in these reasons. The childs wellbeing is threatened in the long term by the risk of the mother repeating behaviours that she has displayed in the past as described in these reasons. 202. I am satisfied that in the circumstances of this case, the presumption in s.61DA(1) does not apply because of the threat of the mothers conduct in the future that would cause the child to be reasonably apprehensive about her personal wellbeing. 203. If I am wrong about the application of s.61DA(2) FLA then I find that the provisions of s.61DA(4) apply. That is, the presumption in the circumstances of this case is rebutted by evidence that satisfies me that it would not be in the childs best interest for the childs parents to have equal and shared parental responsibility. 204. The psychological abuse that I otherwise detail in these reasons and the inability of the parties to communicate (as evidenced, for example, in the two communication books in evidence) is sufficient reason for me to conclude that it would be inappropriate to create a regime for the child which would rely upon the parties agreeing in the future in relation to major decisions in respect of the chld. Consequently, any presumption of equal shared parental responsibility is rebutted. I find that it is not appropriate in the circumstances of this case to make an order for equal shared parental responsibility. 205. Notwithstanding the fact that legislation doesnt require me to consider whether

or not it is in the childs best interests to spend equal time or substantial or significant time with both her parents I will consider that matter and whether or not the arrangement proposed by the mother for the continuation of equal coparenting should continue. In that regard I will have regard to the matters set out in s.65DAA(5). Section 65DAA FLA 206. Section 65DAA(5) FLA provides that in determining whether it is reasonably practical for the child to spend equal time, or substantial and significant time, with each of her parents, I must have regard to:206.1. how far apart the parents live from each other; 206.2. the parents current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; 206.3. the parents current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; 206.4. the impact that an arrangement of that kind would have on the child; 206.5. such other matters as the court considers relevant. 207. It is the mothers case that since at least January 2007 there hasnt been any significant conflict or disagreement between the father and the mother in relation to making the week about arrangement happen. 208. As Dr M comments at page 24:The mother proposes now that they return to the previously agreed week and week about contact arrangement. I am concerned about this as, in my experience, this is an arrangement that only works if the parents are able to come to a working agreement themselves, which these parents have not done. In particular, I think the mother is likely to distort actions of the father which could be held against him and used in further court cases. I would therefore not support the week and week about arrangement, which currently takes place. 209. The mother at page 11 of her submissions says I dont believe that the applicant is a fit, honest, emotional, stable and realistic person. 210. The mother at page 17 of her submissions says that it is impossible to communicate on the phone with the father. The father has indicated why he hasnt been prepared to go to mediation with the mother and I accept his explanation. I accept that that was the basic reason why the communication book was started. 211. The mother at page 22 of her submissions comments on the fact that the child currently lives in a shared care arrangement between both parents and she says: I cannot say that this has been best for her. As her mother, I love her dearly

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and I would like for her to live with me all the time. I provide more than necessary to fulfil her needs. 212. The parties have for some time been speaking to one another via a communication book (the two books are in evidence). This is in my view not a basis upon which a co-parenting arrangement can proceed in the circumstances of this case, in the longer term. 213. I find that in the circumstances of this case it is not appropriate to contemplate the child spending significant and substantial time with the mother, particularly having regard to the matters set out in s.65DAA FLA. PROPOSED ORDERS 214. On 1 November 2007 I noted that at the end of the hearing orders 16, 17 and 18 made 26 March 2004 would be confirmed, given that they were not an issue between the parties. 215. The Independent Children's Lawyer indicated that she supported the suspension of order 4 as sought by the Independent Children's Lawyer for some period of time but not for the period that was recommended by the single expert, Dr M. The Independent Children's Lawyer suggested because of the mothers distress and the childs likely reaction to that distress, the period should be limited to six to eight weeks. The Independent Children's Lawyer conceded however that there was no expert evidence to support her submission. The Independent Children's Lawyer also wanted an order that any therapist engaged pursuant to order 7 be provided with a copy of Dr Ms report. 216. In final submissions Counsel for the father asked me to consider a staggered reintroduction of the child to her mother after a three month period which has been suggested by Dr M. Counsel for the father made an application that the reintroduction be daily (Saturday and Sunday) and then gradually increased to overnight. Counsel for the father however conceded that that was not Dr Ms recommendation. 217. In relation to the period of time that the childs face to face time with the mother should be suspended following these orders, Dr M gave evidence that having read the 52 page document which was a critic on Dr Ms report provided by the mother on the sixth morning of the hearing, that Dr M had changed her view as expressed in the last paragraph of her report. In that last paragraph she suggested a gradual winding back of the child time with the mother to a circumstance where she would only see her mother two days a fortnight (one overnight) on alternate weekends. She indicated in oral evidence that she was now of the view that there should be a three month period where the child did not have face to face time with her mother. The doctor was not tested in relation to that opinion by the Independent Children's Lawyer or by anybody else. It is the only expert evidence that I have. Counsel for the father rightly submitted that had Dr M been tested about her opinion as to the three month period she might have in fact said it was an absolute minimum. The Independent Children's Lawyer submitted that I could look at the evidence on an overall basis and take

into account the level of distress that the mother would feel as a result of a three month order and the effect that that distress might have on the child. Looking at the whole of the evidence however I on balance dont see that I can ignore the unchallenged recommendation of Dr M as being the primary evidence on the issue. Given that that is the unchallenged expert opinion that I have, I will rely upon it. 218. The father has requested some flexibility in relation to being able to swap weekends so that he take the child away for extended periods during school holidays. I accept that that proposal is in the childs best interests. I also accept Dr Ms opinion which recommends against the child spending extended periods of time with her mother. For that reason I have not ordered that the child spend extended periods of time with her mother. 219. The mother gave evidence that the child is continuing to wake up in the mothers bed on a significant proportion of the nights that the child is with her. It is in the childs best interests that this should cease and I intend to make an order that it does. 220. As I have mentioned, it is inappropriate that the father record the childs telephone conversations with the mother. I have made an order directed against the father for that purpose. I have made similar orders, as sought by the father, in relation to the mother video taping or questioning the child with the purpose or intent of gathering information to make further complaints to the authorities against the father in relation to the fathers parenting or abuse perpetrated by the father. 221. I also think it is appropriate to make orders which would put some boundaries on the mothers attendance at the childs school and attendance at the childs sporting events. 222. Dr M flagged the mother as a flight risk and for those reasons I will continue to make the orders that have been in place for some time now placing the child on the watch list and injuncting the parties from removing the child from the jurisdiction without the written consent of the other parent or further court order. 223. The Independent Children's Lawyer made an application for costs against the father of $6,560.25. It was not strongly pressed. The father has paid a large sum of money for his own legal costs arising out of both the 2004 litigation and the current proceedings. In the circumstances, and having in mind the matters set out in s.117(2A) FLA I find that it is not just that the father should pay any costs for the Independent Children's Lawyer.

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I certify that the preceding two hundred and twenty-three (223) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts Associate: Date: 15 May 2008