FAMILY COURT OF AUSTRALIA 

De Silva & rogers	[2015] FamCA 936	

FAMILY LAW – CHILDREN – Final parenting arrangements – Best interests of the child – Whether the parents should have equal shared parental responsibility or whether the mother should have sole parental responsibility – Whether there is a benefit of a meaningful relationship with both parents – Where there are allegations of physical and sexual abuse –Where there is  not an unacceptable risk of harm to the child – Allegations of alienation – With whom the child should live and what time the child should spend with the non-residential parent – Where the mother is restrained from changing the child’s surname – Where the child has expressed a view that she does not wish to spend time with the father – Where it is alleged the child’s views have been influenced by the mother – Whether the child’s relationship with the father can be rekindled through therapy.	

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAC, 69ZX(3)(b)
Evidence Act 1995 (Cth) ss 177, 140(2)	

De Silva & Rogers [2009] FMCAfam 824 (unreported, 18 August 2009)
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
In the Marriage of Reihana (1980) 6 Fam LR 134; (1980) FL 90-835
In the Marriage of Schenk (1981) 7 Fam LR 170; FLC 91-023
Johnson & Page [2007] FamCA 1235 at [65]
M v M [1988] HCA 68; (1988) 166 CLR 69; (1988) 82 ALR 577
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Mazorski & Albright (2007) Fam LR 518
W & W (Abuse Allegations: Unacceptable Risk) 2005) FLC 93–235.	

APPLICANT:	Mr De Silva	

RESPONDENT:	Ms Rogers	

Independent children’s lawyer:		

FILE NUMBER:	PAC	5187		of	2008	

DATE DELIVERED:	30 October 2015	

PLACE DELIVERED:	Parramatta	

PLACE HEARD:	Parramatta	

JUDGMENT OF:	Hannam J	

HEARING DATE:	3, 4, 5, 6, 7, 10, 11, 13 and 14 November 2014, 29 June 2015, 1 July 2015 and 13 August 2015	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Friedlander	

COUNSEL FOR THE RESPONDENT:	Ms Goodchild	

SOLICiTOR FOR THE RESPONDENT:	Matthew Folbigg	

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Longworth	

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Rafton Family Lawyers	

Orders
(1)	All previous Orders in respect of V born ... 2006 (“the child”) are discharged.
(2)	The child live with the mother.
(3)	The mother have sole parental responsibility for the child with the exception of the child’s name, and on condition that the mother will keep the father informed in writing in relation to the following:
(a)	The child’s education;
(b)	The child’s religious and cultural upbringing;
(c)	The child’s health;
(d)	Any changes to the child’s living arrangement.

(4)	The mother is restrained from changing the child’s surname from “De Silva”, and shall ensure the child uses the surname “De Silva” including in common daily usage.
(5)	The mother do all things and sign all documents necessary to authorise and direct any school attended by the child to discuss with the father the child’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents or relating to the child specifically.
(6)	The mother shall keep the father advised and updated in relation to any serious medical issues affecting the child.
(7)	The father shall be at liberty to forward birthday and Christmas cards and gifts to the child, and the mother shall ensure that all cards and gifts are provided to the child, and shall be kept by the mother until such time as the child may wish to see them.
(8)	In the event that the child expresses a wish to communicate with, write to and/or spend time with the father, the mother shall facilitate that.
(9)	That:

(a)	Within 7 days of the date of these Orders the father shall, if he wishes to, send to the Independent Children’s Lawyer a letter addressed to the child.
(b)	Within a further 7 days the Independent Children’s Lawyer shall arrange for the child to be seen by herself and, if available, Ms P.
(c)	At the meeting described in subparagraph (b), the Independent Children’s Lawyer (and, if available, Ms P) shall explain to the child the Orders made in these proceedings and, if the letter referred to in subparagraph (a) has been provided by the father and approved by the Independent Children’s Lawyer, provide to the child that letter.
(d)	The mother is to do all things to facilitate the child meeting with the Independent Children’s Lawyer (and, if available, Ms P) pursuant to this Order.
(e)	The mother is restrained from discussing with the child the Orders made, or the outcome of the proceedings, until after the child has met with the Independent Children’s Lawyer (and, if available, Ms P) as contemplated herein.
(f)	The mother shall do all things reasonably possible to ensure no other person discusses with the child the Orders made, or the outcome of the proceedings, until after the child has met with the Independent Children’s Lawyer (and, if available, Ms P) as contemplated herein. 
(10)	All outstanding applications and cross-applications in respect of the child are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  De Silva & Rogers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Family Court of Australia at Parramatta	

FILE NUMBER: PAC 5187 of 2008

Mr De Silva 	
Applicant

And

Ms Rogers 	
Respondent

REASONS FOR JUDGMENT
Introduction 
1.	This matter concerns the long-term parenting arrangements for V (“the child”), a little girl of nine. The child’s parents Mr De Silva (“the father”) and Ms Rogers (“the mother”) were in a de facto relationship for six and a half years and separated when the child was seven months old.
2.	Following earlier contested parenting proceedings, orders were made in August 2009 for the child to live with her mother and spend defined time with her father.
3.	In September 2011 the child’s mother says that the child made a disclosure to her that her father had sexually assaulted her. 
4.	The father was subsequently arrested and following a trial, acquitted of sexual assault. 
5.	The mother continues to believe that the child was sexually assaulted by the father and that on this basis there is an unacceptable risk of harm to the child if she were to spend any time with him. The father denies that he in any way sexually abused the child or represents an unacceptable risk of harm to her. He contends that the mother has alienated the child from him. 
6.	At the commencement of these proceedings the father proposed that the parents share parental responsibility for the child equally, that the child live with her mother and spend time with him on an increasing regime, commencing with two hours each alternate weekend and building to a week about arrangement after about a year.
7.	The child has not spent any time with her father since December 2011. She has for some time strongly opposed spending any time with him or having contact with him.
8.	After nine days of hearing in November 2014, interim orders were made by consent for family therapy to be provided to the child for the purposes of supporting her reintroduction to her father and supervised time was also to occur.
9.	Family therapy was not successful. The child briefly spent time with her father but then once again strongly opposed spending time with him or engaging in any further therapy.
10.	Prior to the resumption of the hearing in June 2015, the father amended his application to seek orders that the parents share parental responsibility for the child, that the child live with him, that the mother seek psychiatric treatment and that the child not spend time with or communicate with the mother or her maternal family for a period of six months.  He proposes that supervised time with the mother commence if, in the opinion of the treating psychiatrist, the mother will not continue to alienate the child from him as he alleges she has done.
11.	The mother continues to maintain that there would be an unacceptable risk of harm to the child if she were to spend time with the father.  Her proposal is that she have sole parental responsibility for the child, that the child live with her and spend no time with the father.  
12.	The Independent Children’s Lawyer (“ICL”) largely supports the mother’s proposal but proposes that orders exclude the issue of the child’s name from the exercise of sole parental responsibility and restrain the mother from changing the child’s surname.  The ICL’s proposal also envisages orders which allow the father to forward birthday and Christmas cards and gifts to the child and require the mother to provide all such cards and gifts to the child and to facilitate any wish the child may express to communicate with or spend time with the father.  The ICL also proposes specific orders permitting the father to send a letter addressed to the child through the ICL and for the ICL to arrange for the child to be seen by herself and a family therapist to explain the orders made in the proceedings and to provide any such letter from the father to the child. The ICL’s proposed orders also include restraints upon the mother from discussing with the child the orders made or the outcome of the proceedings prior to the meeting with the ICL and therapist.
13.	The question for me to determine is whether any of the proposed suite of orders or some other orders are in the best interests of the child.
Background
14.	The mother and father, who are now both 48 years old, met on an internet site in early 2000 when they were each in their early 30s. At that stage, the father lived in Melbourne, and the mother, who was married but separated from her husband, lived in Sydney. The mother moved to Melbourne and started living there with the father in his home from about late 2000. 
15.	The mother had several miscarriages and in October 2005, became pregnant with the child. It is the father’s contention that the mother never intended that they live together as a family.
16.	In January 2006 the mother moved back to Sydney when she was a few months pregnant and obtained a job working in child protection. The father was unable to move as he needed to sell his house in Melbourne and look for a job in Sydney. The father did, however, travel to Sydney on a number of occasions over the following months and was present when the child was born.
17.	In October 2006 the father bought a house at Suburb C which was registered in both parents’ names and the mother and the child started living at this home. The father and his parents remained living in Melbourne but visited the mother and the child over Christmas in 2006 and over the Australia Day long weekend in 2007. 
18.	There was an incident at the family home on 26 January 2007 which resulted in the father being arrested for malicious damage and an Apprehended Violence Order (AVO) being made against him. The parties separated for the first time on the following day and the child remained living with the mother.
19.	In March 2007, the mother had the child baptised but did not invite the father or his parents to the baptism. 
20.	In April 2007 the mother arranged for her mother, her mother’s partner and her step-brother to move into the C home. The father was prevented by the AVO from coming within 100 metres of the mother’s home address or approaching the mother. 
21.	In July 2007 the father obtained a job in Sydney.  He rented a house near Suburb C and started spending time with the child every Saturday afternoon for two and half hours.
22.	In early October 2007, the mother successfully made an application to vary the AVO so that the father was no longer prohibited from approaching the home or the mother. In January 2008, the father moved into the C home with the mother, though each of them maintained separate bedrooms. 
23.	From January 2008, the father worked hours that allowed him to be involved in the daily care of the child while the mother worked full-time.
24.	The AVO expired in February 2008.  On 16 March 2008 there was a dispute which resulted in the mother leaving the C home with the child and moving to her mother’s home. On 17 March the father and the mother’s half-brother were involved in an altercation at the C home. 
25.	On 23 April the mother made a statement in relation to the two March incidents and sought an AVO for her protection against the father. Although an interim order was made on 20 May, in July 2008 the application was dismissed in the Local Court.
26.	The maternal family moved out of the C home and the paternal grandparents moved in with the father. 
27.	In July 2008, the mother met her current husband, Mr M. In October 2008 the mother and the child moved to a property owned by Mr M but did not inform the father of her new address and changed solicitor so the father was unable to contact her. The mother then stopped making the child available to the father. The father brought an application for location orders and commenced the first set of parenting proceedings. 
28.	In December 2008 orders were made in relation to the child with the consent of the parents. The child was to spend time with the father on a weekday for a few hours and changeovers were to occur at a contact centre.
29.	The first parenting proceedings were heard in May and June 2009 and judgment was delivered on 18 August 2009. The orders provided for the child to live with her mother and spend time with her father on an increasing basis.
30.	In August 2009, the mother married Mr M.
31.	From August 2009, the child generally spent time with the father in accordance with the orders on a Tuesday afternoon after childcare until 7 pm and for 24 hours each alternate Saturday from 9 am.
32.	In September 2009 the mother gave birth to her second child, B, the son of herself and Mr M. 
33.	The father appealed against the parenting orders, though the mother did not participate in the appeal which was heard in November 2010. Judgment was delivered on 17 June 2011 dismissing the appeal.
34.	The father travelled to Europe with his mother between late March to late May 2011 to visit a dying aunt and did not see the child during this time.
35.	On Sunday 25 September 2011 the mother says she received a complaint from the child that the father had sexually assaulted her and the mother made a complaint to the Community Services helpline.
36.	On 30 September 2011 the child was interviewed by the Joint Investigation and Response Team (“JIRT”) and made disclosures of sexual abuse by the father.
37.	On about 9 and 10 October, the mother says the child made further disclosures concerning sexual abuse. She was re-interviewed by JIRT on 11 October.
38.	On 12 October 2011, a search warrant was obtained for the father’s home, which was executed the following day and numerous items were seized.
39.	On 20 October 2011, the mother provided a statement to police concerning the child’s disclosures.
40.	On 14 November 2011, the father commenced these proceedings seeking interim and final orders.
41.	On 15 December 2011, interim orders were made providing for the father to spend supervised time with the child on five occasions in December 2011 and January 2012.  The child spent time with the father on 19 December and 23 December.  On 2 January 2012 the father was due to spend time with the child but she did not pass into the father’s care.
42.	A provisional Apprehended Violence Order was issued on 13 January 2012 and included a condition that the father not approach the child by any means except through the father’s legal representative, but the family law orders were not suspended.
43.	On 27 February 2012 the father attended a police station at the request of police and was interviewed. Following the interview he was arrested and charged with assault, sexual assault of a child under 10 and possession of child abuse material (child pornography) and remained in custody until 6 March 2012. Subsequently bail conditions were imposed prohibiting the father from contacting or approaching the child by any means. 
44.	In September 2012 the father was committed to stand trial. The mother gave evidence at the committal proceedings.
45.	In early 2013, the father stood trial for two counts of sexual intercourse with a child under 10. The father was acquitted and the prosecution were ordered to pay the father’s costs, on the basis that it was not reasonable to have instituted proceedings, due to inherent weaknesses in the Crown case. The count of possessing child abuse material was discharged on 15 March 2013 when the DPP directed that no further proceedings be taken in the matter.
46.	In July 2013, an Expert Child Family and Adult Psychiatrist, Dr MM, interviewed members of each of the parents’ households. Dr MM’s report dated 16 September 2013 was released in October 2013. He recommended that the mother have sole parental responsibility for the child, that the child remain “in the mother’s primary care” and did not support the re-establishment of contact with the father “despite the probability that the father’s assertions of innocence and that [the child] had been alienated were correct”.
47.	On 16 December 2013, Dr MM provided a second report as a result of a letter which had been received from the father.
48.	The first nine days of the parenting proceedings were heard in November 2014.
49.	At the completion of the nine days hearing and with the consent of the parties, the matter was adjourned for further hearing. Orders were made in an attempt to rekindle the relationship between the child and her father through the provision of therapy to the child and through some supervised sessions of time with the father after a number of sessions of therapy.
50.	From November 2014 to June 2015, the father attended four individual sessions with the therapist, Ms P. The child attended nine individual sessions with Ms P from November 2014 to February 2015. The father and child had a joint session on one occasion on 9 February 2015 and the child had two further individual sessions with the therapist following that joint session.
51.	On 14 March 2015, 28 March 2015 and 11 April 2015, the child was to spend supervised time with the father but refused to attend.
52.	On 31 March 2015, Dr MM saw the parties for a final time. On 8 April 2015, Dr MM wrote his third report which was released on 30 April 2015.
53.	There were two days of further hearing on 29 June 2015 and 1 July 2015 and final submissions were made on 13 August 2015.
The matters in dispute
Has the mother disrupted the relationship between the child and the father and caused the child to be alienated from him?
54.	It is the father’s contention that the mother has not ever supported the child having a relationship with him. He contends that the undisputed facts demonstrate the mother’s lack of support for the relationship prior to the August 2009 parenting orders. From that time, it is the father’s case that the mother significantly disrupted the child’s relationship with him until the incident in late September 2011 and that since that date the mother and members of her household have further disrupted the relationship so that the child has become alienated from him. 
55.	It is the mother’s case that she promoted the child’s relationship with the father at all times and that prior to the child’s disclosure in September 2011 she only cancelled contact between the child and the father when there was a reasonable excuse, such as illness. After this time, it is the mother’s case that the child has chosen to distance herself from the father.  In circumstances where the mother believes that the father has sexually assaulted the child, she has not promoted that relationship in accordance with the child’s wishes except during the adjournment in the proceedings when she at all times cooperated with the orders for the child to receive therapy and spend time with the father.
Events prior to the first parenting proceedings
56.	It is the father’s case that from a short time after the mother became pregnant she moved to Sydney knowing it would be difficult for him also to move from Melbourne. He contends that the incident at the family home on 26 January 2007 which resulted in him being arrested and charged with malicious damage and an Apprehended Violence Order (AVO) being made was an exaggerated reaction to events in which the mother said provocative things towards him. The issuing of the AVO was the reason that the parties first separated and the mother remained living in the home the father had purchased in Suburb C. The father did not return to the home until January 2008 and this arrangement only lasted a short time as a dispute in March 2008 resulted in the mother leaving the C home with the child and moving to her mother’s home. It is not in dispute between the parties that the mother did not make the child available to spend time with the father for some time until he commenced the first set of parenting proceedings including an application for location orders.
57.	The mother’s position is that the relationship between her and the father broke down as a result of the father’s own behaviour and obtaining the assistance of police and an AVO was an appropriate way of responding to the father’s violence. The mother disputes the position that she made it difficult for the father to have a relationship with the child from the outset. She contends that she had a reasonable excuse for any occasion on which she withheld the child and that on occasions she provided the father with makeup time. She also contends that she had a co-operative relationship with the extended paternal family.
58.	So far as the period of time prior to the first parenting proceedings is concerned, I am of the view that the undisputed facts support the father’s contentions to a greater degree than the mother’s. The circumstances in which the mother invited her brother and mother to live with her in the C home which the father had purchased but was unable to live in himself, and the mother arranging for the child to be baptised but not inviting the father or paternal family are in my view matters of significance that support the father’s contention. It is likewise significant that shortly after the expiry of the AVO there were two further incidents at the C home which the mother used as the basis of obtaining a further AVO for her protection against the father and although interim orders were made these applications were ultimately dismissed. I also attach weight to the fact that the father was unaware of where the mother was living and he spent no time with the child for several months in 2008.
59.	In the course of submissions the parties’ legal representatives did not wish to be heard against my indication that I proposed to adopt the findings of Federal Magistrate Lindsey (as his Honour was then known) in the first parenting proceedings with respect to this period of time pursuant to s 69ZX(3)(b) of the Family Law Act 1975 (Cth) (“the Act”). As those findings arose from a more extensive consideration of more detailed evidence of those events and are consistent with my views on the respective cases of the parties relating to this period, I adopt the following findings in the first parenting proceedings:
51.	The father gave the impression in his evidence of being highly affronted by the steps the mother had taken in 2007 and again in 2008 (unsuccessfully) to obtain an Apprehended Violence Order against him and to report him to the police for malicious damage in 2007.  He was deeply offended by her doing these things, as he has been by other aspects of the mother’s behaviour and, in particular, her moving home without notice to him in 2008 and her lack of co-operation in facilitating time-spent with his parents when they visit from Melbourne.  He is deeply distrustful of her.
…
58.	The mother’s conduct in the relationship can be characterised as having a high degree of peremptoriness.  She moved from Sydney to Melbourne very shortly after meeting the father.  She moved from Melbourne back to Sydney before the birth of the child in circumstances of some surprise to the father.  Her attitude towards the father and the issue of a relationship with him has ebbed and flowed since the parties were together in Sydney.  After hearing her cross-examined I was left with the impression of someone who exhibited significant high-handedness in the way in which she dealt with the father and, to some extent, that attitude still informs the way she deals with him.  Her decision to move to Sydney whilst pregnant with the child was reached without her taking into account the obvious difficulties the father would have in following her.  He worked in Melbourne.  He owed [sic] real property there.  His parents lived in the [sic] Melbourne.  The significant impact her move would have upon him simply does not seem to have been an issue that mattered to her.
59.	She is critical of him for the fact that he made very few trips to Sydney prior to the birth of the child, having been solely responsible for bringing about the position where the prospective parents lived in the different States.
60.	She was obliged to concede in cross-examination that the father continued to provide significant financial support to her after her move from Melbourne.  
61.	The unfortunate incident on Australia Day 2007 was precipitated by an argument between the parties.  The father says that the mother made the following remark: “I am ashamed that you are the father of my daughter”.  He says that that gave rise to him flinging his laptop to the ground.  The mother denied having made that remark or anything like it.  She says that the father was enraged but that it was not caused by anything she had said.  I am not in a position to make any specific findings about the extent to which the mother contributed to the father’s behaviour.  Whatever she said; his reaction was inappropriate and must have been frightening to both the mother and the child.  She said that she and the child were in the dining room adjacent to the kitchen and family room where the laptop was thrown.  She called the police.  The father waited calmly for the police outside of the home.  Subsequently, he pleaded guilty to the charge of malicious damage.  It was clear that she would have been prepared to give evidence against him if he had not.  The fact that the mother was holding the child when the father behaved in this extremely angry fashion, as I have indicated, must have been frightening to some degree but he appears to have calmed down immediately afterwards.  There is no history of violence in the relationship.  The parties give competing accounts about how it came about that the mother was struck by [sic] father whilst he was driving and she was in the passenger seat on an occasion in Victoria and I am unable to make any specific findings about whether the father was exercising a form of self-defence on that occasion.  But incidents of this kind were isolated.  The relationship, after all, subsisted for approximately six years in Melbourne.
62.	Arranging for the intervention of the police in the way the mother did was probably very unhelpful.  It certainly poisoned the relationship between the parties thereafter.  There was in the mother arranging for the involvement of the police on that occasion as there was in 2008 (I will come to that in a moment) an element of manipulative behaviour on her part.  She does not appear to have balanced the effects of introducing the police to the relationship she had with the father of her child, against the extent to which it would make relations between them and their communication in relation to the child more problematic.
63.	The Apprehended Violence Order kept the father away from his own home for twelve months.  It needs to be noted that he did not oppose the making of a final order.  I do not accept the mother’s evidence that she sought that order because she was concerned that if she did not the Department of Children’s Services in New South Wales would have in some way intervened to remove the child from an abusive environment.  That was clearly never going to happen.  The mother’s evidence in that regard was pious and self-serving.
64.	The property from which the father was excluded by the operation of the Apprehended Violence Order was one that had been purchased with his money, although the mother was on the title.  Without reference to him, she permits her brother and mother to move into her home shortly following his departure.  She arranges for his furniture to be returned to Victoria over his objections.  It is not until May 2007 she begins to contribute to the mortgage repayments notwithstanding her occupation of the property.  She does not seek any financial contribution to the mortgage from her family members.
65.	The father, of course, suggested that in the later part of 2007 he agreed to go to anger management therapy as the quid pro quo for the mother agreeing to seek assistance in relation to issues of money matters.
66.	The mother has seen a psychologist since the parties separated but she says it was in relation to dealing with issues relating to the break up of the relationship and to gain assistance in dealing of the effect of the throwing of the laptop incident upon her.
67.	Seeking counselling following the break up of a relationship is hardly controversial but I have a great deal of difficulty in accepting that the throwing of the laptop to the floor, as angry and as frightening as that could have been at the time, was a matter that required therapeutic assistance.  The co-habitation between the parties at the home between January and March 2008 was obviously unhappy.  There was enough evidence in the form of SMS communications between the parties and in the evidence of the father (which I accepted on this point) for me to find that the mother was prepared for him to exercise responsibilities for the care of the child when she was unexpectedly detained at her employment.  The father modified his working hours to enable him [sic] collect the child from day care centre in any event.  The mother’s working hours since the last separation of the parties are such that she has to call upon the assistance of her mother and of Mr [M] from time to time in terms of their exercising responsibility for the child.  She is a parent who also has a full time job.  Assistance from another person is obviously necessary from time to time.  In any event, in March 2008 after an argument which seems to have been precipitated refusing (sic) to fall in with the father’s request that she return home on an urgent basis to enable him to attend to his own work duties, the parties separate.  The mother once again, I find, without any reasonable grounds for doing so, involves the police in the disputation.  This time the apprehended violence order she seeks is refused by the Court.
68.	She ought to have reflected upon the extent to which an apprehended violence order would complicate matters especially given her insistence at that time that any time the father spent with the child be supervised by her.  The dynamics of the father having an opportunity to spend time with the child is not a matter she takes into account in her decisions to involve the police in the domestic disputation of the parties.
69.	The second apprehended violence order application was only made by the police in or about May 2008 after what I find to be significant lobbying by them of the mother for them to do so.  It was dismissed by the … Local Court in July 2008.
Events following the first parenting proceedings
60.	Following the first parenting proceedings and prior to the date of the sexual assault allegations, it is the father’s case that the mother continued to be reluctant to support the child’s relationship with him. In his affidavit he says that the mother cancelled the child’s time with him on seven occasions between August and December 2009, on 15 occasions in 2010 and on four occasions in 2011. It is the mother’s case that she only cancelled such time when there was a genuine reason such as the child’s illness. 
61.	I am of the view that there were occasions when the mother failed to produce the child to the father so that they could spend time together without a reasonable excuse. For example, on three occasions the mother cancelled the child’s time with her father at around the time of the birth of her second child. The mother agreed under cross-examination that the father had offered to pick the child up at this time but the mother said that the contact time did not go ahead because she wasn’t “feeling up to producing her” and the child was very emotional. On another occasion the father saw the child with her grandmother out in a shopping centre on a day on which the mother had said that the child was too sick to spend time with him.
62.	The mother also gave evidence in her affidavit and particularly under cross-examination of allowing the child a great deal of autonomy in relation to spending additional time with the father outside the orders and that the child had an understanding of “court ordered time” which, in my view, was inappropriate for a child of her age. The mother also gave evidence of the child making her own choice to adopt the mother’s husband’s surname in addition to her own and that it had not occurred to the mother to consult with the child’s father about this matter as it was “[the child’s] choice”. I formed the impression that the mother inappropriately, given the child’s age, allowed the child to make decisions relating to her relationship with her father. These decisions were, in fact, a reflection of the way the mother felt about the relationship between the child and the father.
63.	It is the mother’s position that the relationship between her and the father was at times quite cooperative. She relies upon the undisputed evidence that she provided assistance to the paternal grandmother in the care of the paternal grandfather as his health deteriorated and he was required to enter a nursing home, especially when the father and the paternal grandmother visited Europe in March to May 2011. The mother also relies upon some of the text message communication with the father which is cordial.
64.	The father did not agree that there was a reasonable level of trust between him and the mother in 2010 and 2011 and attaches particular weight upon an SMS message that the mother sent to him which he interpreted as a threat relevant to the later allegations of sexual assault. It is not disputed that the mother sent a text message to the father on 27 June 2010 in the following terms:
Baseless rantings yet again. You need professional help. You continue raving about things when you still have everything [the child] and I owned. I am not debating you a proven liar in texts. My daughter tells me you hurt her regularly so don’t go playing that game [father’s first name]. I have proof of whatever  I need to prove when I choose to do so. Do not continue to contact me in this manner. 
65.	Under cross-examination the mother said that this text message was a reference to the child having complained that the father had smacked her. She denied that it was a warning to the father that “if he got out of line” she would make the allegation that was made in 2011.
66.	The mother suggests generally that the child was reluctant to see the father and expressed this to her from time to time. The father does not dispute that the child appeared reluctant in the mother’s presence at changeover time but says that the reluctance dissipated as soon as the mother left.
67.	The paternal grandmother also gives evidence of a conversation she had with the child to support the father’s contention that the mother did not support the relationship between the child and the father.  She said that when the child was “three and a bit” the child told her that she was not allowed to kiss the father and if she did her mother said she “would put her out and she would never see the mother and the brother”. 
68.	It is the father’s position that the mother’s lack of support for his relationship with the child prior to the first parenting proceedings, after the first parenting proceedings (as discussed in paragraphs 60 - 67) and after he ceased spending time with the child is evidence that the mother has alienated the child from him. He also relies to a great degree in this regard upon the opinion of Dr MM that the child has been alienated by the mother against him. It is the mother’s contention that the child was reluctant to spend time with the father prior to the sexual assault allegations and that this reluctance understandably intensified following the sexual assault. Dr MM’s opinion that the child has been alienated from the father, results from his assessment of the parties in the context of those allegations. In these circumstances, the parents’ contentions about alienation must be considered alongside the sexual assault allegations.
The sexual assault allegations
69.	It is the mother’s allegation that on 20 September 2011, the father sexually and violently assaulted the child by licking her vaginal area, putting salt and ice on her vaginal area, inserting his finger in her vagina and anus, forcing the child to stand up and dragging her back when she attempted to crawl away and bruising and choking her. The mother also contends that the father took photographs of the child naked and of the child’s genital area in about 2011 and forced the child to view these images on his computer. The father denies abusing the child sexually or in any other manner on these or any other occasions.
20 September 2011
70.	According to the father’s affidavit he collected the child from her childcare centre at about 3:45 pm on 20 September 2011.  After playing for about an hour in a local park he then took the child home where his mother and father were both present.  At home he took the child to the media space, an open area between two bedrooms on the first floor and put on a movie for her.  He then went out to buy particular chips that the child likes from the supermarket and while he was gone his mother was downstairs at the home in case the child needed her.  The father said he arrived back home at about 5:45 pm and went upstairs, gave the child the chips to eat and saw that she was still watching her movie.  He then went downstairs to prepare the child’s dinner and took it up to her to eat.  The father then finished cooking his own meal and about 10 minutes later joined the child in the media area and ate his dinner there with her.  He said his mother came up to check that the child was actually eating her dinner.  The father said that the mother arrived at about 7:00 pm to collect the child and that he cannot remember anything notable occurring at that changeover.  
71.	Under cross-examination the father remained firm about all of his evidence, and he was not challenged about matters such as time events occurred, his trip to the supermarket and the like.
72.	The father denied all aspects of the alleged assault upon the child.  He confirmed that his parents were at home at all times and said that when he and the child were in the media space watching television his mother came up to see them as she liked spending time with her granddaughter.  Overall, the father described his time with the child on 20 September 2011 as uneventful.  
73.	The father was cross-examined by the ICL about the technology required for the child to watch movies such as on the day on which the alleged events occurred.  He said that he had downloaded a number of Barbie movies to his computer and an external hard drive and had to navigate on the computer between files using a remote control to identify the correct movie.  The father said that the child did not have the capacity to read the directories and know which buttons to press in order to put a movie on for herself. He was asked whether it may have been possible for the child to have connected to an external hard drive on his computer (where pornographic material was stored) on the night in question when he was absent at the shops. He said that he did not believe that the child had the capacity to have done so.  He explained that this would have required the child to stop the movie, unplug the computer, choose a particular external hard drive, plug it in and to have developed the capacity to navigate and click on items. She also would need to have the capacity to unplug the hard drive and plug back in the original movie [which she was still watching when he returned]. 
74.	The paternal grandmother corroborates the father’s version of the events of 20 September. She also says that she is aware that it has been alleged that her son sexually abused her granddaughter on 20 September 2011 and that she and her husband witnessed him doing that.  The grandmother described this as “a preposterous and wicked lie” and said that if such an event had occurred she would have called the police immediately and had her son charged herself as she cannot understand how paedophiles could abuse young children and finds the crime disgusting.  
75.	In her affidavit, the mother says that when she went to collect the child from the father on 20 September the child was walking slowly down the stairs, had her arm across her stomach and complained that her tummy hurt. She also says that the child walked past the father and did not kiss him when requested to do so.  The child did not have any dinner when they arrived home, put on her pyjamas and went to bed without a shower. She said that other family members noticed over the next couple of days that the child was moody. 
76.	When asked about the child holding her arm across her stomach when she was collected the mother agreed that the child and other family members had had gastro the week before and had been taken to the doctor. She agreed she was not too surprised about the child complaining she had a sore tummy. The mother agreed that she had some involvement in the showering of the child each day following 20 September and she did not observe any bruising or anything on the child’s body when she was undressed.
24 September 2011
77.	The mother says that on the following Saturday, 24 September, when she took the child to the father’s house the child said she did not want to go and was clingy and reluctant. The father agrees that the child was reluctant to come across to him.  He said that the mother took about 10 minutes to say goodbye to the child.  After the mother left, the father said that he and the child went upstairs and started playing an electronic game.  After they had been happily playing together the front door bell rang and the father found that the mother had returned to the house with a couple of jackets that she had forgotten to bring earlier.  
78.	The father and child then went on an outing with the father’s friend and his two children for a few hours and returned home at about 2:00 pm. The father’s friend who accompanied the father and the child on the outing gave evidence that on that day the child was affectionate and comfortable with her father and at no time was quiet, reserved or withdrawn or acted differently to the way she acted on previous outings.
79.	When they arrived home on 24 September, the father says he set up a movie for the child to watch and had a nap while his mother cared for the child.  The child and the paternal grandmother decorated a cake together as a surprise for the father.  The father then says he made dinner for the child, they ate upstairs in front of the TV and after dinner he assisted the child to have a bath and helped her to change into her pyjamas. At 7:00 pm the father said he rang the mother on the speaker phone and the child said goodnight to her and others at the mother’s household. He put the child to bed at about 8:30 pm after telling her a number of bedtime stories. After he had kissed the child goodnight she requested another goodnight kiss.  
25 September 2011
80.	The following day the father says the mother arrived to pick the child up at about 9:30 am.  The father described the mother as arriving “with a real attitude” and that she said to the child “now you’re going to spend time with your real family”.  When told it was a celebration day and that the child had helped with a cake the mother said nothing.  The father says that he did not want to create a situation in front of the child so he telephoned the mother about an hour later and said “[Mother’s first name], at handover and handback you came with a real attitude.  Could you please not do that in future” to which the mother replied “Fuck you” and hung up on him.  The father said that the mother sent the following SMS at 10:18 am:
I ask that you have my child clean and dressed ready to go when she is due to be picked up.  She had yesterday’s clothes on and jam down the front of her.  You had not even made sure her top was wiped or her mouth clean.  I always make every effort to make sure [V] is dressed in appropriate clothing for any activities I am aware of you taking her to.  I even made the effort to call back yesterday with two warm coats in case you did proceed to take her to Luna Park.  It seems that having her ready and looking au (sic) least clean is beyond you.  Do not ever call me again and tell me about my so called attitude.
81.	The father said that at 11:12 am he responded with the following SMS:
Oh dear, [mother’s first name], I dismiss what you have written.  Please, in future, provide full change of clothes for the child to avoid her having to wear any items twice.  Also please don’t abuse me in front of my daughter.  It isn’t healthy for her and not becoming of you.  I don’t appreciate you saying “f*ck you” to me when I am sure [V] was in hearing distance.  [V] had an excellent time with us again this weekend.  Tell her I love her and that I got Little Big Planet from the shops for us to play with in the future.  Also, that we’ll play more with … on Tuesday.  Cheers [father’s first name]. 
82.	The father remained firm as to the events of 24 and 25 September and his mother corroborated his account.
83.	The mother says that on 25 September, when she attended the father’s house to collect the child she noticed that the child was dressed in the same clothes as the day before and that her hair was untidy. 
84.	The mother says that subsequently her mother made comments about the child’s untidy state of dress and that when they arrived home the mother’s husband also asked the child why her clothes were so grubby. The mother then says:
[The child] did not reply and [Mr M] asked her the same question again. She said something but I could not hear her. I said Sorry [V] what was that? [The child] said I don’t want to get undressed in front of Daddy …. I didn’t want to be naked I said Why? [The child] said Because he licked my fanty
85.	The mother says that the following then occurred:
I knew that [the child] was talking about her vagina as ‘fanty’ is one of the words we use for vagina, it is a word my mother uses. [The child] used her head and mouth making a licking motion, thrusting her tongue as she said ‘because he licked my fanty’. I said When did this happen? [The child] said Last time I was there, not last night I said Do you mean Tuesday? She said Yes, mummy, a couple of days ago I said Where were you when this happened? She said Upstairs in the lounge room we were watching Island Princess I said Who were you watching Island Princess with? She said Daddy … I said Was there anyone else in the room with you? [The child] said No, just daddy …. He licked my fanty on the inside and on the outside I said How did he do that? She said He was putting his hands under my bottom and trying to get my dress up. I kept wiggling so he couldn’t. He stood up, stood in front of me and I tried to crawl away. He pulled me back. [The child] pointed to her right thigh area and said He pushed me back on the sofa and pulled my pants down.
I said Then what happened? She said He put his hands on my legs. [The child] put her hands on the inside of her thighs and opened her legs. She said He licked my fanty on the inside and the outside. I said Then what? She said He did that for a while until his mummy came upstairs. I said Then what happened? She said Nana … said, ‘what are you doing to that child?’ Daddy … said ‘I’m licking her.’ Nana … said ‘get away from her and pull up her clothes.’ She made daddy sit at the other end of the sofa. They were yelling and saying their own words.
I said Were they talking in [a European language]? She said Yes I said Then what happened? She said Daddy … said it was 7 hours and then you came. I said Anything else happen? She said My tummy hurt. I said Yes.
86.	The mother said that she told the child that she was safe and then said:
I need to talk to people who do a job like me and they may want to talk to you.  Those people they work with the police.  This is not your fault.  [The child] said Oh good, when can I talk to the police?
87.	The mother said she then took the child upstairs, washed her face and brushed her teeth and put her in clean clothes. She then contacted her boss at DOCS.  The mother then rang her mother and told her of the child’s complaint and asked her mother to come over.  On the same afternoon the mother said she contacted the DOCS helpline to report the child’s disclosure and also disclosed that she was an employee of the Department to ensure that her colleagues who were attached to the relevant Joint Investigation Response Team (JIRT) were not involved in the investigation.  
88.	The maternal grandmother also gave evidence that she observed the child to be dishevelled and grubby on 25 September 2011. According to her statement she later received a phone call from the mother (on her way to lunch) in which the mother told her that the child had disclosed that the father had sexually assaulted her. According to the grandmother’s affidavit when she arrived at the mother’s home at about 3:30 pm the child said to her words to the effect of “[The father] licked my fante nanny and it made me feel yucky mum’s getting the police.”
89.	Under cross-examination the mother denied sending the father a message which included the words “Fuck you”.  She agreed she had sent a message to the father at 10.18 am from the pharmacy which she went to after picking the child up before going to her mother’s.  Although her mother commented about the state of the child’s dress the mother agreed that the child made no disclosure at her mother’s house.  
90.	The mother said that the child made the disclosure about the sexual assault in the afternoon at about 12 o’clock. When taken to her evidence at the criminal trial when she said the disclosure was on Sunday evening she said that (this evidence) was incorrect. 
91.	The mother also asserted under cross-examination that the child had alleged that the father choked her when she made her disclosure on 25 September and said that it was “an oversight” not to have put it in her police statement. 
92.	The mother agreed that she did not ask the child on 25 September after her disclosure if she was hurt, if there were any scratches or bruises and she did not look for injuries.  When the mother changed the child’s clothes after the disclosure she also did not look for bruises, scratches or marks.  The mother also agreed that she did not take the child to the doctor the following day as the child did not complain of pain and or about being hurt. She also agreed she did not see bruises on 25, 26 or 27 September, nor did the child complain about soreness or pain on those dates. 
93.	The mother was cross-examined at length about her evidence that the child was wearing the same clothes on Sunday 25 September as she had been wearing on Saturday 24 September. The issue of the child’s clothing on the day of the disclosure is a matter of significance as it is the mother’s case that questions about the child’s clothes triggered the disclosure.
94.	The mother was shown a photograph with a time and date stamp of 2.00pm 24 September 2011, apparently of the child’s reflection in a television. She agreed that the child was wearing different clothes to those in which she was dressed on 24 and 25 September. The mother was later shown a photograph which bore a date and time stamp indicating that it was taken on Saturday night [24 September 2011]. She agreed that it depicted the child wearing her pyjamas and was taken in the media area of the father’s home.  
95.	When cross-examined about her understanding of the different clothes the child had worn over the 24 hour period, and the child not wanting to be naked in front of her father, the mother said that she had also asked the child questions about bathing on the previous night. The mother agreed that this conversation was relevant to the investigation and believed that she had told the police about it. When shown her police statement, the mother agreed that it did not include this conversation.
96.	The mother’s husband, Mr M, said that on a non-specified date in September 2011 he saw the mother and child return home from time with the father and observed that the child’s hair was messy and her clothes looked grubby. In his affidavit his account of the child’s disclosure is virtually identical to the mother’s version. He described the child as crying and trembling as she made the disclosure.
September 28 – bruising and disclosure
97.	The child attended childcare on 28 September 2011 and sustained an accidental injury which caused her to receive some bruising to her shin.
98.	On the same evening the mother said she also observed bruises on the child’s lower back at bath time.  She said she saw bruises around waist height about the size of a twenty cent piece and a cluster of linear bruises on the child’s right thigh and two linear bruises on her left and right hip.  The mother says that the child pointed to areas on her back and legs to indicate where she was sore and she asked the child how she received the bruises.  The child said I think that is from when daddy … grabbed me.  The mother said the following conversation then occurred:
Mother	I need to take photos of you because you have some bruises – to show the police, just in case they fade more.  They are nothing yucky, it is just to take photos to show the police. 
Child			They are not like the ones that daddy … takes of me
Mother	What kind of photos does does daddy … take of you?
Child	He takes photos of me naked of my fanty and bum.  Is bum a swear word?
Mother	Bum is just a casual word.  It is ok to use bum or bottom.  Are you in the bath when he takes photos?  How do you know he took photos of your fanty and bottom?
Child	They are not in the bath he showed them to me.  Others have my face and I am naked.  He showed me them.  He has them on his computer.  
Mother	Was there anyone else in the room when he took photos of you?
Child			No
Mother	Has he done that once or more times?
Child			Lots of times mummy, I don’t like it
Mother	Where are these photos [V], when does he show them to you where are they?
Child			On his computer
Mother	Which computer the laptop, the ipad or something else?
Child			The laptop I think the black one
	
99.	The mother said she then took 18 photographs of the child’s bruises and said It’s not ok to take photos of your fanty or bottom.  If anything like that happens again you can tell me.  The photos I have taken are for the police and once we have done that they will be destroyed. She said there was no further conversation. 
100.	The mother agreed under cross-examination that bruises implied that the child had suffered physical harm but agreed that she did not take the child to the doctor after she observed the bruises. She also agreed that on that day [28 September] the child had had a tripping accident at her childcare centre. The mother said that she did not find out what had happened other than read the initial report which outlined an injury [to the child’s shin]. The mother did not go back to the childcare centre and ask about other bruises because the child had already told her how they had come about.
101.	The mother said that the only other person who saw the bruises on the child’s body was the examining doctor, Dr H. 
JIRT Interview and medical examination – 30 September 2011
102.	On 30 September the child was interviewed by JIRT. In the course of that interview the following questions were asked and answers given:
Q63	O.K. All right. So, [V], can you tell why you’ve come to speak to me today?
A	Because my daddy choked me on the throat.
Q64	Because your daddy choked you on the throat.
A	Yep.	
Q65	When did that happen?
A 	On Tuesday, and I was wearing a dress. That’s why.
…	
Q68	…Can you tell me everything from the start to the end about what happened?	
A	And he licked me.	
Q69	And he licked you. Where did he lick you?	
A	Here.
Q70	[08:53] O.K. And what do you call that?
A	Fanny.	
Q71	Fanny. O.K.
A	And he putted ice on my fanny too.
Q72	He put ice on your fanny too.
A	And he putted ice, actually he putted salt in my fanny and on my um, oh, in my mouth too and it stinged. And he putted his finger in my bottom.	
Q73	Ah hmm.
A	And um, he um, um, and he um, and he um, put the um, ah, ah, I don’t know the answer.
	…
103.	When asked if anything else happened the child said:
A	- - -his mummy and his daddy was in the room and the um, and she, and she said um, “Stop licking her fanny.” That’s what the mummy said and then…..um…..um, a little while later he stopped and he put my pants, and he pulled my um, leggings back up and my knickers back up.
104.	When asked when this had happened the child said “on Tuesday”. She was then asked:	
Q80		[11.56] Do you remember what Tuesday?
A	Last Tuesday, only one Tuesday ‘cause, and he didn’t see a photo or, he didn’t see anything else happen to a child.
Q81		Pardon?	
A	He didn’t see anything else happen to a child but, and he didn’t even see a photo of a man or a lady do that to a child. He didn’t see that. He just thinked about doing that.
105.	She was then asked: 

Q97	All right. So do you remember what happened on, what did you do on the Tuesday that this happened?
A	Um, I was watching The Island Princess.
Q98	O.K.	
A	Then he makeded me stand up and he holded me um, from the hips like that and I had bruises on my back and on my bottom and on my legs.
Q99		Ah hmm. O.K. So tell me everything- - -
A		And - - -
Q100		[14.41] O.K. So you were watching The Island Princess.
A	Yep. And then he said stand up but I kept sitting down ‘cause I didn’t know what he was going to do to me so I just kept sitting up but he turned, but he turned, but he switched it off and after that he um, and then the mummy stayed there a bit longer so he didn’t do that to me again.
Q101		O.K. So you were watching The Island Princess
A		Yep	
Q102	Yep. Do you remember what, if it was in the morning or the night-time or the afternoon or something else?
A		I, he picks me up at 3 o’clock - - - 
Q103		Ah hmm.
A		- - - and I stay there until mummy picks me up.
		…
Q119	...O.K. So when you were watching The Island Princess was that in the morning, the afternoon or the night-time?
A	Um, The Island Princess takes a while.
Q120	[17.45] Ah hmm.
A	And then um, and I stayed there until night-time.
Q121	O.K.
A	And then um, he um, I asked him to put a different one on and he put a different one on but he falled asleep …

106.	She was then asked:
Q124	What room in the house were you watching it, The Island Princess on?
A		Upstairs in the lounge room.	
Q125	Upstairs in the lounge room. And who was there with you when started watching The Island Princess?
A	Just daddy …
Q126	Just daddy ...
A	And I was watching, and I was eating some orange chippies.
Q127	Eating orange chippies. O.K. So when you said to me before that he said for you to stand up - - -
A	Yeah.
Q127	- - - and you kept sitting up, was that at the beginning of the movie, the end of the movie or something else?
A	Huh?
Q128	When daddy asked you to stand up was that at the beginning of the movie or something else?
A	The beginning.
…
Q152	That’s O.K. All right. O.K. So you said to me before that he licked you on your fanny. Yeah. O.K. So what happened before he licked you on your fanny?
A	Um, nothing. He just said stand up then he licked my fanny, pulleded my um, leggings down and my knickers and pulled my T-shirt up and then he um, um, and then he um, then he start licking my fanny.
…
Q158	O.K. So when you said that daddy pulled your leggings down and pulled your T-shirt up were you sitting or standing or something else when he did that?
A	Standing, then he did that when he pulleded my leggings down.
Q159	O.K. And where did he pull your leggings down to?
A	(NO AUDIBLE REPLY)
Q160	[24.14] And what part, what, what do you call that part?
A	Um - - -
Q161	What do you call that?
A	Ankle.
Q162	Ankle. O.K. So after he pulled your leggings down and your knickers down to your ankles and he pulled your T-shirt up what did he do then?
A	Um, started licking my fanny.
Q163	O.K. And when you say licking your fanny, what part of his body was he licking your fanny with?
A	Um, his tongue.
Q164	His tongue. O.K. And were you sitting or were you standing when was licking your fanny with his tongue?
A	Um - - -
Q165	Licking your fanny with his tongue.	
A	Standing ….. and he did that. And that’s, and I had a sore belly because he done that to me.
Q166	O.K.
A	And he did this and that and all the way down to my feet, here.
Q167	O.K. So what was he doing with, what, what part of his body was he doing that with?
A	Um, his hands did that.
Q168	Ah hmm.
A	And his tongue was doing that.	
…
Q175	Just there. O.K. All right. And how long did he lick your fanny for?
A	About - - -
Q176	Do you know how long?
A	Yep. Um, seven hours.
Q177	Seven hours. O.K. All right. Was anybody else in the room when daddy was licking your fanny?
A	(NO AUDIBLE REPLY)
Q178	Who was in the room?
A	His mummy and his daddy, when he did all those stuff that I said.
Q179	So his mummy and daddy were in the room when he was licking your fanny. Whereabouts were they?
A	Um, near the stairs.
Q180	[27.12] O.K. Could you see them?
A	Uh-huh, yep.
…
Q187	That’s O.K. Was his mummy and daddy upstairs on (sic) downstairs when this happened?
A	Upstairs
Q188	Upstairs.
A	But…they just wanted to ask daddy a question.
Q189	O.K. All right. And did daddy say anything to you when he was licking your fanny?
A	No. But he said something to his mummy. He said um, and mummy said to daddy …, “What are you doing to that girl?” And he said, “Licking her fanny”…..
Q190	[29.09] O.K. And you said to me before that, what did it feel like when he was licking your fanny, what could you feel?
A	Um, his tongue and he said to look at his tongue but I looked, but I didn’t like it so I just looked away.
Q191	O.K. All right. Did he say anything else to you when he was doing that?
A	Uh-huh, but he bringeded some salt but I hided in my bedroom.
Q192	He what, sorry?
A	I hided in my bedroom.
Q193	What did you hide?
A	I hide in my bedroom.
Q194	O.K. All right.
A	And I was against the door so he couldn’t come in.
Q195	O.K. And you said to me before that he put ice on your fanny too.
A	And - - -
Q196	When did he do that?
A	And salt in my fanny too.
Q197	Yeah. When did he do that?
A	On the Tuesday.
Q198	Was this when he was licking your fanny or is this another time?
A	When he was licking my fanny, the same day.
Q199	Yeah. And what did he do with the ice?
A	And salt.	
Q200	[30.19] Ah hmm.
A	He um, put it here and there but I…..
Q201	O.K. Where did he get the ice from?
A	Um, downstairs in the fridge.
Q202	O.K. So was this, did he put the ice on your fanny around when he was licking your fanny?
A	Mmm - - -
Q203	Or is this another time?
A	The same day.
Q204	The same day. O.K. So when did he go downstairs to get the ice?
A	Um, after he licked my fanny.
Q205	Ah hmm.
A	Then he, then I hid, then I closed my door, then I did that, like, that’s the door and then I did that and he couldn’t come in.
Q206	O.K. O.K. So, so when, how did daddy, what made daddy stop licking your fanny in the lounge room?
…
A	He just thinked, stop licking her in the lounge room.
Q208	O.K. All right. And then from the lounge room where did you go, what happened then?
A	I went to my bedroom.
Q209	You went to your bedroom.
A	It’s near the bathroom.
Q210	[31.43] It’s near the - - -
A	Where the bath is.
Q211	Yep. And then what happened then?
A	He camed upstairs and I could hear and quickly shut the door.
Q212	Ah hmm.
A	And then um, then um, he tried to open it but I um, didn’t let him open it. That’s why I did that.
Q213	Ah hmm. And then what happened?
A	Then um, I opened it quietly then he was downstairs then I said, “Stop. Don’t do that to me again.” Then I smacked him and punched him.
…
Q221	Ah hmm. So did daddy put his finger in your bottom after he licked your fanny or before?
A	Um, after he licked my fanny.
Q222	Ah hmm.
A	Then he um…me then putted his finger in my mouth.
Q223	O.K. And what could you feel when daddy put his finger in your bottom?
A	He ….. he um, he has hair on his fingers.
Q224	Ah hmm.
A	And um, he um, and his skin.
Q225	Ah hmm.
A	And that’s all that I could feel.
…
Q237	After that happened. O.K. And what happened when they, when they came in they said that, who said that, his mum or his dad?
A	You mean stop licking her fanny?
Q238	Ah hmm.
A	His mum.	
Q239	His mum
A	‘Cause his dad’s getting very old.
Q240	[36.10] Ah hmm.
A	He’s sick.
Q241	And what happened when his mum said that?
A	Um, he said, “I’ll never stop doing that.” But he did a few hours later.
Q242	He did it a few hours later?
A	He stopped doing it a few hours later.
…
Q245	Yep. O.K. So you said to me before that, that your dad, he choked you on the throat, yeah.
A	And I, and he did that.
Q246	O.K.
A	And I couldn’t speak.
Q247	All right. So when did daddy do that?
A	Um, the same Tuesday.
Q248	Yeah. Was that before he licked your fanny or after he licked your fanny?
A	Um, after he, um, um, after he put his finger in my bottom.
Q249	Ah hmm. And did daddy say anything to you when he choked you?
A	Uh-uh.
Q250	[37.38] No. What, why, why did he do that?
A	Because he wanted to hurt me and he’s a very bad man.
Q251	Ah hmm. And how did that make you feel when he choked you?
A	Sick	
Q252	Sick. Yeah. So what was your body doing when he choked you?
A	Just standing there like this.
Q253	Ah hmm. Could you feel, when you said it made you feel sick what, where, where did you feel sick?
A	(NO AUDIBLE REPLY)
Q254	In the tummy.
A	And I vomit at Happy Days because he made me so sick.
Q255	Mmm.
A	I couldn’t even, and I couldn’t, I could speak but I, but I nearly couldn’t.
…
Q292	O.K. All right. O.K. So [the celebration day] was on the Friday, did this happen on the Tuesday after [the celebration day] or before [the celebration day]?
A	Um, after [the celebration day]
…
Q301	No. O.K. So have you told anyone about what happened?
A	No.
Q302	With your dad, have you, who have you told?
A	Nobody.
…
Q306	A truth. O.K. Well, someone told me that your mum knows that your dad licked your fanny.
A	Uh-huh.
Q307	Yeah. Who told your mum?
A	I don’t know.
107.	The mother says that at the end of the interview the JIRT officers told her the child’s disclosure was “along the lines” of the disclosure she had made on 25 September.  The JIRT officers gave her a brief summary of the child’s interview but did not tell her individual facts. The mother was extensively cross-examined about whether she showed the photographs of the bruises to JIRT officers and told them of the child’s further disclosure of 28 September on 30 September. Although the cross-examination was somewhat confusing, ultimately the mother said that she did not tell police about the child’s disclosure on 28 September because police had not asked her for her statement on that date. She remained adamant that she had shown JIRT investigators the photographs she had taken of the bruising.
108.	At the end of the interview the child and her mother went to the hospital for the child to have a medical examination.
109.	Dr H, the examining doctor, did not give evidence in the proceedings but the expert certificate she prepared under s 177 of the Evidence Act for the purposes of the criminal proceedings which was produced under subpoena was relied upon. That expert certificate includes the following:
5. History from accompanying adult, mother : (In the presence of Dr [H]) (emphasis in original)
[The child’s] father has weekly contact on Tuesday and every second weekend.
“On 20 September, when I picked her up she told me that she had a sore tummy. I was not concerned. She did not vomit. She did not disclose anything till Sunday night after weekend contact with the father. I noticed she had dirty clothes.”
“When questioned about the dirty clothes, she said that she did not want to undress in front of daddy. She said daddy licked her ‘fanny’. She also said that daddy pushed her legs apart. On Tuesday night, …[her father] tried to wiggle the finger under her dress. He lifted her dress up. He had put salt on his finger, He put finger into her vagina and into the anus.”
“[The child] also said that her father put the hand on her neck until she could not breathe. Last night I saw her bruise on the buttock. She also told me that her father stroke her vagina sometimes in the past.”
		6. History from child: (emphasis in original)
		There is no history from the child.
110.	According to the doctor’s records, three small bruises were observed on the front surface of the child’s lower legs, a bruise was observed just above the right groin with a small linear bruise just below it. The doctor also observed two bruises on the lower back above each of the child’s buttocks. 
111.	The mother was cross-examined at length about the extent of the child’s complaint to her at the time of the medical examination on 30 September and matters relating to that examination.
112.	The mother agreed that she had provided the history to Dr H. She said that when she provided the history, she did not know what the child had said in the JIRT interview. When asked why she had told Dr H that “[the child] did not disclose anything until Sunday night after the weekend” the mother said that she did not think that they were her words and added that Dr H’s English is not very good. The mother said that disclosure “certainly was not in the evening”.
113.	The mother confirmed under cross-examination that at the time of the examination the child had not disclosed to her that the father had put salt on the child’s vagina or that he had his finger into her anus. The mother agreed that she had told Dr H about the father putting salt on his finger and putting his finger into her vagina and her anus if that was in Dr H’s notes. When asked how she could have told Dr H this information on 30 September the mother said that she may have been wrong about the date (of that disclosure). 
114.	The mother ultimately agreed that she was in error in saying that the child did not tell her about the salt until 9 October and said that up until the day she was cross-examined she had not realised she was in error.
115.	The mother was also cross-examined about having told Dr H on 30 September 2011 that the father had previously touched the child. She agreed that she had told this to the doctor but also said that it was likely that the child made the disclosure about earlier touching sometime after 30 September 2011.
Events following 30 September 2011and further disclosures
116.	In the week following the 30 September JIRT interview the mother says that the child was unsettled. She did not send the child to childcare on 4 October and sent the father a text telling him that she was still ill. On that day the mother took the child to see a general practitioner and following the appointment she and the child encountered the paternal grandmother in a coffee shop. The paternal grandmother asked the child for a kiss and hug but the child refused which the mother thought was unusual.
117.	According to a statement of the police officer responsible for the case, the mother contacted her on 7 October 2011 concerning the child having made further disclosures. The mother said under cross-examination she was sure she did not contact the police officer on this date.
118.	On Sunday 9 October 2011 at bedtime the mother says that she had the following conversation with the child:
Child: I can’t stop thinking about the yucky things daddy … did to me.
Mother: you have to stop thinking about it [V]…you’ve told us what happened…you can talk about it with your counsellor…she is the best person to help.
Child: [The father] put salt on my fanty.
Mother: How do you know it was salt?
Child: It was white. He put it into my fanty and it stung. He put his finger inside my fanty and my bum. Then he made me lick his finger. It tasted salty. 
Mother: When did it happen?
Child: On that Tuesday mummy.
119.	On 10 October 2011 the mother says she received a text message from her mother which said:
Something I meant to tell you yesterday re [V] and her laptop. The Dora one. [S] realised it had flat batteries and put some in for [B] to use. Showed it to [V] who responded “no nana take them out don’t want to use it. I’ll let you know when I can.” Obviously distressed by it and I think is to do with her association and [the father] and his computers – god only knows what he has shown her on them. Thought you need to know to mention it to …[the child’s counsellor] today. Will you get a chance to discuss it with her away from [v] or write it down to give it to her to read. Just a reminder that if you say anything much to [the counsellor] in front of [V] it can be construed that you talk in front of her to [sic]. (I know you know this but just a reminder to be careful cos if they put [the counsellor] on the stand at anytime she needs to be able to say you two haven’t spoken in front of [V] about what happened.) Hope u r feeling ok yourself love mum xx.
120.	On 10 October 2011 the mother says she contacted Detective G about what the child had disclosed to S (the maternal grandmother’s partner) about the computer. The mother said that on the same afternoon when she and the child were on the way to the counselling they had the following conversation:
Mother: Nana [S] mentioned something happened with your Dora computer on the weekend, that you didn’t feel happy to use it. When Nan offered to put batteries in for you. Can you tell me more about that [V].
Child: I don’t want to use computers mummy.
Mother: Why don’t you want to use computers?
Child: Daddy … has photos of me that he keeps on his computer.
Mother: What kind of photos?
Child: He takes photos of my fanty and my bum. Sometimes they have my face on them. 
Mother: How do you know the photos are of your bum and fanty?
Child: because he shows them to me and says ‘look how beautiful you are’.
Mother: Has he only taken photos of you like that once?
Child: Lots of times
Mother: The Dora computer is just a toy
Child: I don’t like it. It reminds me of him showing me those pictures
121.	The mother said that at the end of the child’s counselling session she had a conversation with the counsellor about this disclosure in the child’s absence.
Second JIRT interview
122.	On 11 October 2011 the child was again interviewed by JIRT.
123.	The transcript of the interview includes the following:
Q19	O.K. Someone told me that you don’t want to use your Dora computer anymore.
A	Because Nanna…because Nanna [S] offered me and it maked me think he tooked pictures of me naked.
Q20	[02.36] O.K. So I need to write down what you’re saying, O.K. because it’s very important. So because Nanna [S], what was after that?
A	Offered me, “do you want to put batteries in?”.
Q21	Do you want to put batteries in, yeah.
A 	And I didn’t. And then, I, and then I thinkded, um, about daddy …, um, taking photos of me naked.
Q22	What made you think of daddy … taking you, taking photos of you naked and your Dora computer?
A	Because, what do you mean about that?
Q23	Well why don’t you want to use Dora computer anymore?
A	Because it maked me think of him taking pictures of me naked.
Q24	Yeah.
A	And then he putted them on his iPod. I can’t say it properly though.
124.	The child then corrected herself and referred to the photos being on a computer and then the following questions were asked:
Q31	Computer. And it’s black? And when did you see those photos?
A	Tuesday
Q32	On Tuesday. Is that the same day you told [L] about what happened?
A	Yep.
Q33	O.K. And what did you see on, on the computer, on the iPod, the black one. What did you see?
A	Um, me naked. My face.
Q34	Yeah.
A	And this part.
Q35	Yeah. Do you have another name for that? What’s that called?
A	Fante
Q36	And what’s your fante for?
A	Doing wees
125.	The child then said that there were two photographs and was then asked the following:
Q45	Yeah. Do you know when those photos were taken?
A	Uh-uh.
Q46	O.K. Were you standing up or sitting down or something else?
A	Standing up. He was holding me like this.
Q47	Is that when he took the photo or something else?
A	When he lickded my fanny.
Q48	O.K.
A	And he putted something in it.
Q49	Yeah. And that’s the one that we, you spoke to [L] about?
A	(NO AUDIBLE REPLY)
Q50	[06.53] Yeah?
A	And it hurt.
Q51	O.K. On, you know how you said it happened on the Tuesday, has daddy … done this on a different day as well, or only on the Tuesday?
A	Only on the Tuesday.
126.	Later the following questions and answers were given:
Q81	O.K. And when, when you saw the photos on the - - -
A	And he choked me.
Q82	Yeah, that’s what you told - - -
A	Like that.
Q82	--- from when you told [L] last time?
A	(NO AUDIBLE REPLY)
Q83	Yeah?
A	And then he putted his finger in here.
Q84	Yeah.	
A	And he putted his finger in here.
Q85	O.K.
A	And my Nanna, um, we ….. and then we went to um, a café and she offered me, “Do you want a, um, uh, a hug?” and I said “No”. But then she didn’t but she gived [GG] a hug, a kiss and a hug to [GG].
Q86	O.K.
A	‘Cause I didn’t want one. And she ….. um, she ….., she didn’t have her own voice, but then other times when I say “No”, she gives me a hug, when I say “No”.
127.	Later, the following questions and answers were given	:
Q99	And when you saw the photo on the computer, where was, where was Nanny?
A	I, um, she wented to ask a question to daddy … and my Pop, but when she camed upstairs, she found he was, um, doing that, licking my fanny. She said, “What are you doing to that girl?”
Q100	[14.40] Mmm.
A	And then he said, “Licking her fanny”. And then, he um, and I want him to go to gaol.
Q101	O.K. Who’s telling you to say that?
A	Nobody.
Q102	Why do you want him to go to gaol?	
A	Because he’s a bad man.
Q103	When you saw the photo, was that on the same day that he touched your fanny or a different day?
A	The same day.
Q104	And where was, where was Nanny when you looked at the photo on the computer?
A	Downstairs.
128.	The mother was cross-examined at length about the child’s disclosures that she said occurred on 9 October, the text message from her mother concerning the child’s conversation about the computer and the further disclosure from the child on 10 November. 
129.	The mother was reminded of the evidence she had given at the trial when she said that according to her own notes, the conversation containing this disclosure had occurred on “the 9th” but she didn’t have a month [written] next to it and “maybe they [the notes] should’ve said the 29th”. The mother agreed that when she referred to her “notes” when giving evidence at the father’s criminal trial that she was referring to some hand-written notes in a notebook that she wrote in as things happened. The mother was asked to produce that notebook on the following court day but the matter does not appear to have been later pursued. 
Disclosure of earlier sexual misconduct
130.	According to the mother’s affidavit “later in 2011” the following occurred:
[The child] looked a bit down and I sat on the bed and put her next to me and gave her a hug. I said: are you thinking about yukky stuff again [V]? She said yes… I said do you want to talk about that? She said not really… I said do you remember when you had that redness on your fanty a long time ago and you used to say it was sore…remember we put cream on it. [The child] said yes mummy I do. I said I asked you then was anyone touching you and you said no. Was that the truth? [The child] said no mummy Daddy … was touching me. I said touching you? What do you mean? [The child] said: putting his fingers down my pants and stroking my fanty...it used to get sore from that. [The child] took my left arm and wrapped it around behind her back waist. She said he put his hand down my pants and rubbed me. If anyone came he just moved his hands and kept cuddling me. I said so when I asked you back then ‘was anyone touching you?’ and you told me ‘no’ why couldn’t you tell me the truth then? [The child] said: Daddy … said if I told anybody he would come to our house and take me away…he would kill Papa, and you, and my baby brother and then he would kill me. 
131.	In an earlier part of her affidavit the mother said that in around September 2009 (when the child was just three) the child had some problems with redness on her genital area. In her affidavit the mother only refers to her surprise at the child’s reaction when she was taken to the doctor who proposed taking a vaginal swab. The mother relates that the child jumped off the examination table and ran over to the sink and crouched down and refused to allow the doctor to do the swab. The mother does not say that she had any concerns about possible sexual abuse at this time or had any conversation concerning this issue.
132.	Under cross-examination the mother maintained that the earlier conversation occurred at the time the child previously had the genital redness (September 2009). She said that the 2009 event had been playing on her mind since the child’s disclosure. The mother denied that this alleged conversation in which she asked “was anyone touching you” was suggestive or leading. The mother maintained that the conversation between herself and the child concerning the earlier touching and the father’s alleged threat occurred in late 2011 after the JIRT interview and the 9 October disclosure. She said that when she initiated this conversation the child immediately said that she recalled “that redness [on her fante a long time ago]”. The mother agreed that her questioning of the child in late 2011 might be considered leading and also said that she did not find it unusual or strange that her daughter who was five could immediately recall a conversation from when she was three years old.
Execution of search warrant and criminal charges
133.	On 13 October 2011 a search warrant was executed at the father’s home and various items were seized including computer equipment, hard-drive, CDs and the like. The search warrant which was served on the father indicated that the applicant police officer had reasonable grounds for believing the things to be seized under the warrant “are connected with the offences of sexual intercourse with a person under the age of 10 and possess child abuse material.”
134.	 During the download of one of the father’s external hard-drives, police records indicate that “a series of animated child abuse pictures were located. These pictures depict children engaging in sexual activity with adults. There are ten images in a comic form called “Jabcomix” and 136 images in a comic series called “AyPapi”. No naked or pornographic photographs of any child were located on the father’s computer equipment.
Supervised time with the father
135.	On 15 December 2011 orders were made for the father to spend time with the child supervised by a private supervision service on five occasions in December 2011 and January 2012.
136.	The first of these contact events occurred on 19 December 2011. The father describes a positive experience with he and the child interacting well. Initially they coloured in together at McDonalds where the changeover occurred and then both rode their scooters together at a park. The father then says he offered to take the child back to his home to which the child agreed. At their home the paternal grandmother hugged the child and the father and child spent time together in the media area watching a movie. The father said that he sat next to the child on the sofa at her invitation. The child then requested to play outside in the backyard. 
137.	While they were playing in the backyard the mother contacted the supervisor by telephone numerous times. The mother complained that she had seen the supervisor’s car in the father’s driveway and said that this was not in accordance with the agreement reached at Court. The father telephoned his lawyer and was informed that he was not prohibited from taking the child to his home. The father says that the supervisor told him that the mother demanded that he return the child to her home and that if they did not leave the father’s home right away that the mother would cancel all future contacts. The father then agreed with the supervisor’s suggestion that they leave the home. They then went to the park and as it was raining spent the last 30 minutes of the time at McDonalds. 
138.	According to the mother on this day the child was very unsettled, tearful and sullen prior to spending time with the father. She says that after handing the child over to the supervisor she drove past the father’s home on her way to her mother’s home and saw the supervisor’s car in the driveway at the father’s home. She says that she was extremely upset and worried about the child and rang JIRT and told them what was happening and they advised her to call the supervisor and tell her to take the child away from the home. 
139.	The mother says that she rang and sent text messages to the supervisor numerous times and describes herself as “frantic”. She says that she did not consent to the time [with the father] at the home. She says that after collecting the child and putting her in the car she had the following conversation with the supervisor:
Mother: 	I am really upset that you took [V] back there. You told me she would be safe…you knew that I did not want her to go there
Supervisor: 	[V] appeared to be quite okay…She was fine.
Mother: 	I’m still really worried…don’t you know anything about grooming and accommodation in children.
The mother subsequently sent an email to the professional supervision service complaining about the supervisor. 
140.	The written report of the supervisor for this day describes the mother as presenting as a “very concerning and highly emotional mother” and records that half of the contact time was spent dealing with issues the mother created. The supervisor describes the mother as arriving late, being reluctant to leave the child and almost on the verge of tears and contacting her by telephone and text message on a number of occasions to question the fact that the child had been taken to the father’s home. The supervisor was required to speak to the father’s counsel directly to obtain confirmation that there was no restraint on the child spending time with the father at the father’s home. The supervisor described the father as ‘hypervigilant’ but said he spoke in a calm manner, attended to the child’s needs regarding food or drinks and provided age appropriate activities. The supervisor described the child in the following terms:
[She] presented as a quiet little girl that was quite confident in what she wanted to do and who would do it for her. She was friendly and chatted, and was content to do her own thing. She would accept or reject suggestions for activities with her father. She spent her time happily playing with her dolls and colouring books, she laughed and smiled with her father, she chatted to him when he wasn’t distracted by other concerns. She made no spontaneous attempt to go near him, but also showed no concerns that he was there and vocalised her joy at seeing him again. 
141.	The supervisor said that the mother told her in a text message “I am reporting this to my lawyer and JIRT” which the supervisor interpreted as a subtle threat. She also said that the mother spoke openly of her dislike of and concerns about the father in the presence of the child, and spent 30 minutes “telling [her] off” in front of the child at the end of contact. She said of significance the mother said to her quite loudly “you know his mother walked in on him and caught him he was licking [V’s] vagina” in the presence of the child. 
142.	On 23 December 2011 (the second visit) following changeover, a new supervisor told the father that the child wanted to go to the park first which they did. After playing for a while they again went to the father’s home where the paternal grandmother had put up a Christmas tree and bought Christmas presents for the child which the child opened. After playing for a while the father says the child requested to watch a movie in the media area and asked for him to sit next to her. Following the movie the child requested to play with the father at the home. The father said that he was concerned that the child would be 10 minutes late for changeover at the end but as the time together had commenced late the supervisor reassured him that this would not be a problem.
143.	The mother describes that on this occasion the child was very reluctant and resistant to see her father but agreed to go with the supervisor. The mother said that she was very distressed with the disorganisation that surrounded the arrangements and was very worried and “quite distraught” about the child being delivered late at the end of the time. The mother says that the supervisor explained that as contact started late it finished later, and the supervisor told her that the time had taken place at the park and the father’s home. The mother said that when she asked questions about the child being taken to the father’s home she was crying. She said that the following conversation occurred:
Supervisor:	You don’t need to be upset…we even went back into the bedroom and she was okay.
Mother: 	What do you mean back into the bedroom? Is that where you think the assault took place?
Supervisor:	Well yes…didn’t it?
Mother: 	No it did not. It happened up in the loft loungeroom with the blue sofas.
[the supervisor was quiet and she looked away.]
Mother:	Is that where contact has just taken place all afternoon?
Supervisor:	Well yes…mostly
Mother:	You haven’t kept my daughter safe
Maternal grandmother: I’m a counsellor in this area…it is extremely distressing to be taken to the scene of the abuse…it can be retraumatising.
Supervisor:	Are you telling me how to do my job
Mother: 	Well I am very concerned about the way that you are doing your job.
144.	According to the records of the supervisor on this occasion the conversation regarding the contact occurring at the father’s home and this being the location of the abuse, occurred at changeover at the commencement of the time event. The supervisor recorded that this conversation occurred in the presence of the child and also involved the maternal grandmother.  Reference was made to (the location) “where the abuse had occurred”, the presence of the paternal grandmother during the abuse, the father being the perpetrator and that it would be “very destructive for the child” to go to the home. The supervisor describes the mother as an “upset melodramatic mother” who spoke openly about the court case, alleged abuse and her issues with the father in the presence of the child and that much of the visit was spent dealing with the issues the mother had created. 
145.	So far as the child’s conduct at this contact event is concerned, the supervisor records her as being very subdued in the mother’s presence and stating that she did not want to go to contact and was clinging to her mother. Initially, in the presence of the mother, the child pushed the father away when he attempted to give the child a hug. The supervisor describes the child as immediately becoming more animated and starting to chat as soon as they drove away from the changeover. The father is described as being nervous and asking permission from the child for everything. The supervisor records that he was able to enjoy the time he had with the child as the child was relaxed with him and her grandparents. She notes that the child chatted to the father “as they watched the movie together and showed no concerns regarding the lounge room or any other room in the house.” The supervisor records that at the end of this time event the mother berated and verbally attacked her on her return in the presence of the child. It is recorded that the mother told the supervisor that she would be making a complaint about her.
146.	The mother says that the child was very unsettled in her sleep that night and had a nightmare, and for the next three weeks wet the bed and said on numerous occasions that she did not want to go [to the father]. The mother said that she continued to communicate with the supervision service by email and telephone about her concerns that the workers had an apparent lack of training and experience in sexual assault and trauma. The records of the supervision service indicate that the mother complained about a number of matters including the professionalism of the supervisors.
147.	On 2 January 2012 the mother attended for changeover with the child and her mother was also present for what was to be the third contact event. She says that when the same supervisor from the first occasion parked the car and approached them the child refused to leave the car. The child was unable to be encouraged to get out of the car. 
148.	The supervisor’s records for this day indicate that when the mother attended late for changeover the supervisor went over to the car but the child refused to get out. The records indicate that the mother told the supervisor in the presence of the child that the child had had trouble sleeping at night due to having thoughts going around in her head about “what he had done to [her]” although the mother said she had spent all morning talking to the child about the impending visit and the child was insisting she did not want to go. The records indicate that the supervisor spoke briefly to the child who refused to leave the car and that the mother invited the child to tell the supervisor why she didn’t want to go. The child said “because I can’t sleep because I think about what he did to me (or words to that effect)”. The supervisor records that when she told the mother that as the child had refused to come to the visits, it was in her view likely that she would refuse all future contact and she didn’t think there was any point in continuing with the other contacts, the mother seemed “delighted”.
149.	The mother says that later that night she and the child had a conversation about the child’s refusal to get out of the car. She said that the child explained that her reluctance was due to a threat the father had made on the previous occasion (23 December) as follows:
Child:	When we were ready to leave I got into [supervisor’s] car and she let daddy … put the harness on me and give me a hug.
Mother: 	Why were you uncomfortable [V]?
Child:	Daddy … whispered to me “you told on me I’ll make you pay”
Mother:	Is that why you didn’t want to go today? Were you scared?
Child: 	Yes
150.	The orders made by Collier J on 15 December 2011 provided for a specific number of contact occasions with the father and granted liberty to all parties and the ICL to relist the matter upon 72 hours in the event of any difficulty. The matter had been adjourned for mention on 9 February 2012 following the five contact events.  The mother agreed that she did not bring the matter back to Court even though she knew she was under an obligation to comply with the court orders, and the AVO made on 13 January 2012 did not suspend the family law orders. The mother agreed that the JIRT team and herself were of the view that the Family Court orders providing for the child to spend time with her father placed the child at risk.
151.	On 27 February 2012 the father attended a police station at the request of police and was interviewed. He was arrested and charged with two counts of aggravated sexual assault and two counts of common assault on the child and possession of child abuse material. 
Father’s evidence about child abuse material (pornography)
152.	The father gives no account of the issue of pornography in his affidavit other than to say that one of the matters to which the search warrant executed on 13 October 2011 related, was possession of child abuse material, that he stood trial for charges including one count of possessing child abuse material and that the DPP no billed this charge. It is not clear from the father’s affidavit whether he denies the possession of the material and/or denied that the images he had on his computer were child abuse material or any other details about the basis upon which he denied the allegation. 
153.	A great deal of cross-examination of the father concerned his use of pornography and the child pornography charge. Ultimately it became clear that the father’s position is that the images he possessed were not child abuse material and he did not possess them as he has not accessed them. 
154.	The ICL prepared a Memo which was provided to Dr MM for his consideration on this issue which contained an agreed extract of evidence given by the father during cross-examination. The agreed evidence was as follows:
•	The father is a computer specialist
•	The father views pornography on a frequency of once per week, sometimes more often, sometimes less often.
•	The pornography viewed by the father involves sexual activity between consenting adults. The pornography has involved images either involving humans or cartoon images.
•	The father only seeks out pornography involving consenting adults OR cartoon/comic images depicting characters intended to be over the age of 18 years.
•	The process by which the father accessed/stored pornography is as follows:
-	Using his laptop, the father navigates to websites (“the websites”) he knows or believes to contain pornography.
-	The father downloads material from the websites directly to his laptop.
-	Upon downloading the material, the father transfers it to a specific external hard drive which he reserves for storing pornography.
-	After having transferred the pornography to his external hard drive, the father deletes the material from his laptop.
•	The websites were ones the father believed and trusted to not host ‘inappropriate’ pornography, including but not limited to ‘child pornography’.
•	The father based his trust upon disclaimers the websites carried and upon ‘reviews’ he had read.
•	The father had four other external hard drives upon which he stored other non-pornographic material such as Hollywood movies, TV shows and music files.
•	In about February 2010 the father asserted he routinely downloaded many files from the internet which he did not ever open.
•	The father stated he is a “hoarder” and that this is a vice and “I recognise I have a compulsion to download things off the internet”
•	In about February 2010 the father navigated to a website known as ‘Kickass’ which was a website he had previously visited. It was a website from which he had previously downloaded many movies, TV shows and music files.
•	The father trusted the ‘Kickass’ website for at least three reasons:
1.	It had a disclaimer that it did not host any inappropriate or illegal material;
2.	He had researched the site and believed it to be ‘safe’;
3.	Whilst he could not preview the material downloaded from the Kickass website, the Kickass website carried reviews by other users which did not suggest the material was inappropriate.
•	In the February 2010 period, the father downloaded a series of material (“the 2010 downloads”) which he asserts he did not ever open. Included in the 2010 downloads were a bundle of material which were later the subject of enquiry by the police (“the suspect bundle”)
•	The father expected that within the 2010 downloads, there would be material which was pornographic in nature. The father did not expect there would be inappropriate pornographic material such as images depicting children engaged in sexual activity with adults.
•	Following his normal pattern, the father moved the 2010 downloads onto external hard drives. Thereafter:
-	parts of the 2010 downloads which the father expected to contain pornography were moved onto the external hard drive reserved for pornography. This included the suspect bundle.
-	parts of the 2010 downloads which the father expected did not contain pornography were moved onto other external hard drives.
•	In October 2011, after the alleged sexual assault, the police executed a search warrant upon the father’s home and removed a quantity of computer equipment and devices. This equipment included the five external hard drives.
•	In January 2012 the police analysed the hard drives and determined that a particular hard drive contained the suspect bundle. The suspect bundle was alleged to have contained a mix of animations and cartoon images depicting children in sexual activity with adults.
•	The father asserted that whilst he accepted he had likely downloaded the suspect bundle:
-	at the time of the download, he was unaware of the nature or content of the suspect bundle;
-	he did not ever open the files in the suspect bundle;
•	The father gave evidence that the only cartoon/comic he had viewed of a pornographic nature was a comic depicting adult characters, specifically ‘super heroes’, engaged in sex together.
-	each file contained in the suspect bundle appeared to have a creation date of 7 February 2010.
-	each file contained in the suspect bundle appeared to have a ‘last access’ date of 13 February 2010;
-	the ‘last access’ date of 13 February 2010 may be a reflection of:
•	the date the files were ‘transferred’ onto the external hard drive (rather than being physically opened); or
•	the date an anti-virus program ‘checked’ the files.
-	The father stated he did use an anti-virus program however owing to the way in which it operated and the random frequency of connecting the external hard drive to his computer, he was unable to say whether that program had been used on the external hard drives.
•	The report of the father’s analyst appears consistent with the father’s evidence that:
-	the suspect bundle was downloaded amongst a larger batch of material in the 2010 download.
-	he had not ever opened any file in the suspect bundle.
•	The report of the father’s analyst left open the possibility that the father had opened and viewed the suspect bundle at a time between it being downloaded and the time it was transferred to external hard drive.
Father’s criminal trial
155.	The father gives no details in his affidavit concerning his criminal trial other than that he was acquitted of the sexual assault and assault charges and that the DPP directed that no further proceedings be taken with respect to the possession of child abuse material. 
156.	The mother also does not address the criminal trial and the child’s participation as a witness in her affidavit. Details of the child’s experience in connection with the criminal trial were revealed under cross-examination.
157.	Under cross-examination the mother said that an explanation of the trial process had been given to the child a week or two prior to the trial and that the child had participated in the trial over three days. The mother did not agree that the child had been distressed giving evidence but was “stressed” and the witness assistance officer told her that the child was finding it “a bit hard going”. 
158.	The mother agreed that after the child had finished giving evidence she told her that she was “really proud of [her]” and said “you’re a good girl”. The mother gave an account of informing the child of the outcome of the trial which included the following:
Basically, as soon as I arrived back at my mum’s, which is where [the child] was, she knew that that was the final day, or was expected to be the final day, and she asked me was it “all finished now, mum?” and I said, “Yes, it is.”  And she asked me – I think words to the effect of “did I win”, and I said, “What do you mean, darling?” and she said, “Is daddy … going to the dungeon?”  And I said – and that’s what she means by jail – and I said, “No, darling, he’s not.  The jury decided that there wasn’t enough evidence to say he did it, and so he was found what they say is called not guilty.”  And she was really upset about that.  Well, she cried and got really angry and said, “Why didn’t they believe me?  Why didn’t they believe you?”  And I explained to her that that’s a very, very serious thing that has been said, and that for someone to be locked up and have their freedom taken away, that they can’t do the normal things that people do everyday, that that’s a really, really serious thing and that a jury needs to be absolutely certain that someone has done it and have absolutely no doubt that someone has done it to actually make that happen, and that in this case the jury wasn’t absolutely certain that it had happened.  And she said, “They think I’m a liar.”  And I explained to her that, no, it wasn’t about whether she had lied, it was about them needing to know without any doubts, without any kinds of uncertainty, that it had actually happened to her the way we say – not just that it had, but the way we said.  And she said to me that, “They didn’t believe me.”  And I said, “I don’t know what they did or didn’t believe.  That wasn’t explained to us.  It’s simply that Daddy has not been found guilty.”  And she then talked about [the paternal grandmother], that “Nanna … saw, she saw.  Didn’t she go and tell them?”  And I said, “Nanna … said that she didn’t see anything and that it didn’t happen and that daddy is a good daddy and he hasn’t done anything.”  And it has basically been since then that she has felt really angry with [the paternal grandmother] and doesn’t want to go. 
159.	The mother agreed that it was upsetting to recall and that on the drive home [from court] she was in tears. She said: 
I didn’t know how I was going to explain it to her, because I just didn’t know how I could tell her, and the next thing she asked was “Are they going to make me see my daddy and he’s going to hurt me again”.

160.	The mother agreed that the child’s resistance to seeing her father was impacted to some extent by the conversation relating to the verdict and referred to it as “a bad outcome, in terms of [the child] was hoping for”. 
161.	The mother agreed that she had a very detailed recollection of the conversations and that it was a very significant event but could not explained why it was not referred to in her affidavit and described it as an “oversight”. 
162.	The mother said that after the criminal hearing and after (at that stage) four days of evidence in the parenting hearing she did not think that there might be some problem with the credibility of the allegations made against the father and said she still believed the child’s account was true. 
Expert evidence
163.	Dr MM is the Chapter 15 Expert in this matter. He is a specialist psychiatrist and was awarded his Fellowship in 1992. He also holds a certificate in child psychiatry, lectures at the Faculty of Medicine at a University, is a supervisor and lecturer for Fellows in child psychology and the New South Wales Institute of Psychiatry as well as an examiner for the college. He has a particular interest in child, adolescent and family psychiatry and regularly presents at workshops and seminars for the medical fraternity and at legal conferences. He first interviewed members of the maternal and paternal families over two days in July 2013 and considered material filed by both parties, documents produced on subpoena, a previous Family Report, the transcript and audio recordings of the child’s evidence at the father’s criminal trial and the audio and video recordings of the child’s JIRT interviews. 
164.	Having regard to Dr MM’s expertise, the sources of information available to him and the appropriate concessions he made under cross-examination which occurred over many days, I accept his evidence and attach significant weight to it.
165.	In forming his opinion Dr MM first considered the context in which the allegations of sexual assault were made. In relation to this issue the doctor stated:
Despite the mother’s assertion that she had actively support the child’s relationship with the father, this was convincingly rebutted by the father who pointed to behaviour which had alienated him from his daughter.
166.	So far as the sexual assault allegations are concerned, the doctor opined the following:
The father’s defence and accumulated evidence was supportive of the view that he had been inappropriately accused. He provided convincing evidence of the positive relationship which he had previously shared with his daughter. Beyond the allegations and disclosure, there was little to suggest that the child had been a victim of child sexual abuse perpetrated by the father. The child’s views were seen to have developed in the context of discussions with her mother. 
167.	He went on to say: 
[The child’s] hostility towards her father had evolved in the context of her disclosure, the maternal family’s response, the suspension of contact and the stress associated with the criminal proceedings. The child had given evidence and viewed herself as in a battle with her father. She had been supported by her mother, whilst her father had been supported by the paternal grandmother. This resulted in a further polarisation of her views. Despite limitations in her memory of the alleged events, the child had the belief that she had been sexually assaulted by her father, that he was a bad man and that the paternal grandmother had failed to protect her. 
168.	The doctor was cross-examined at length about his opinion that there was little to suggest that the child had been a victim of child sexual abuse perpetrated by the father and that the child’s beliefs that she had been harmed in this way had developed in the context of discussions with her mother. He did not change his view.
169.	The doctor had viewed the recorded interviews by JIRT and noted that the child related the highly disturbing range of activities in a matter of fact manner, with a complete lack of emotional distress and gave frozen responses. He noted that she is seen to continue to draw while making the allegations. He said that the nature of the disclosure at a basic level raises questions about its validity.  He also said that as the “fairly bizarre” content was distressing and confronting and he would have expected the child to be distressed, perturbed and uncomfortable immediately after the events and when relating them. 
170.	The doctor opined that it was possible that the events did happen and the child had not responded in a typical fashion or that the events did not happen and that she had made them up, or that the events did not happen but she had observed something and built it into her own mind. 
171.	The expert also raised an additional possibility that is there is a clear record of the mother having been treated with narcotic analgesics at the time of the disclosure which have the capacity to alter one’s cognitive state. He felt this may have had some impact on the mother’s response and judgment. He opined that this combined with the lack of trust between the parents, the long history of conflict, the mother working in child protection and maternal grandmother working as a sexual assault counsellor together with some concerns that had been raised about the father could also explain the disclosure. The doctor considered the possibility that the child had been exposed unwittingly to pornography but believed that that was less likely in this case if it were accepted that the father went through the process he described with respect to storage of the pornography. 
172.	Overall the doctor said that he did not believe that the Court could rely upon the child’s evidence as reliable or accurate. His concerns were that the child had been identified as providing information that was not true within the JIRT interview. He was also of the view that she had formed her views in the context of discussions and that they have become more elaborate and concretised, which amplified the nature of her experience of something that happened years ago of which she now no longer has a true memory.
173.	The doctor was cross-examined about the mother’s evidence that in September 2011 when the child was five she recalled events that happened two years previously when she was three. The doctor opined that the child would not have any recall or memory of such an event and certainly wouldn’t have recall of whether she had lied. The doctor opined that when the child was five her discussion with her mother would have been very influenced by her perception of the mother’s statements and it may well be that she did not understand what the nature of the questions were about.  He said:
There is no possibility that that was an accurate representation of what happened at three, then recalls it [sic] at the age of five, and now being given the true story about what happened. And it is likely that if the conversation happened at the age of five that the child was simply responding to the mother to affirm what she knew her mother wanted her to say. 
He expressed the opinion that it was very problematic for the mother to have included that conversation in her affidavit, as given the mother’s training and experience, he would expect her to know that the conversation was simply not reliable and it indicated the mother’s lack of insight into her daughter’s circumstances. Also, to rely upon it in these proceedings he felt was an indication of her lack of judgment on her part.
174.	The doctor was cross-examined about the two supervised visits the child had with her father in December 2011, two months after the alleged events. Dr MM agreed that it was of relevance to the child’s presentation in the presence of the mother that she had been taken to sexual assault counselling immediately preceding each of the visits. He said that this would amplify the child’s narrative of the experience of the assault as perpetrated by the father and would amplify her anxiety and increase her clinginess. He said that if it were the case that the child had a happy and enjoyable time with her father at these visits it indicated that she had the capacity to overcome her difficulties and enjoy time with her father, separating that time from the narrative of sexual assault and being a victim in the father’s hands. The doctor was of the opinion that the mother’s concern that the father’s conduct on the first of those occasions amounted to “grooming” and that the supervisor was not trained or alive to those risks highlighted the mother’s hypervigilance to these issues, was an inappropriate use of the term “grooming” and the doctor questioned the mother’s judgment. 
175.	The doctor was cross-examined about the evidence the mother had given concerning the current circumstances in which the child living. This involved the mother and two children spending most of the week in the maternal grandmother’s home and the child’s care being shared with maternal family members. The mother’s husband Mr M had very little to do with the children on a daily basis, with at least part of the reason for this arrangement being a concern that he may be falsely accused of inappropriate conduct with the child. The doctor said that these arrangements raised questions about the child’s environment relating to trust and reliability. He said that there were clearly concerns about the role of father figures in the child’s life and issues of trust in the child’s family which suggested that the child was not being provided with a stable environment but an uncertain one and was exposed to recurrent experiences of separation and loss rather than a stable base. 
Events following November 2014 hearing
176.	On 13 November 2014 following the first nine hearing days the Court made orders by consent for the child to receive family therapy from an appropriately qualified therapist. After two joint therapy sessions the orders also provided for the child to spend some supervised time with her father. The parents were also to participate in family therapy and the purpose of the therapy was to assist the child in re-establishing her relationship with her father. It was intended that the resumed supervised contact visits would commence from Saturday 28 February 2015.
177.	Ms P, the therapist, is a registered forensic psychologist who holds a Master of Psychology and has particular expertise within the field of sexual abuse and especially intra-familial child sex abuse. 
178.	The therapist began seeing the father and child in individual sessions in late November 2014. The father initially saw the therapist alone on four occasions and the child saw the therapist alone on nine occasions prior to there being a single joint session on 9 February 2015.
179.	The focus of Ms P’s sessions with the father was to explore his capacity for managing his emotions in the event that contact with the child occurred. Ms P was of the opinion that the father proved himself to have adequate coping skills and was able to recognise the potential impact of his behaviour in a meeting with the child. As a step towards that contact the father agreed to prepare a card to be given to the child which the therapist described as age-appropriate, and child-focused. 
180.	The child initially expressed to the therapist a clear view that she did not want to see her father, who she referred to by his first name. The child held a strong belief that she was sexually abused by her father. The therapist said that she found the child easy to engage and that the child appeared comfortable in the sessions. Ms P said that in her early sessions the child acknowledged that she had wondered about her father from time to time but also recalled his alleged abuse of her which was distressing. 
181.	The therapist says in her report that although the child initially presented with a set view of her father as a “bad” person, by the third session she was “able to consider different sides to her father and she recalled some positive times that they had spent together”. She then looked at family photographs that the father had provided and did not demonstrate visible signs of distress, and then expressed willingness to receive a card from her father. 
182.	In the following session the therapist provided the child with a card and gifts from the father and described the child as appearing curious when receiving them. The child was described as surprised to receive a card from the father stating “I didn’t know that he loved me” and asked Ms P to thank her father for the card and asked the grandmother if she could make some further gifts for her. 
183.	Although the father did not keep a copy of his handwritten card to the child he had forwarded a draft to Ms P for her consideration. Subsequently Ms P compared the final version of that card with the draft prior to it being given to the child and noted that it was identical. A transcript of that draft:
Dear [V], This card is from your father.
Your father and Nanna … love you very much.
Your father and Nanna … miss you very much.
Your grandpa … also loved and missed you before he went to heaven.
Your Nanna and I really want you in our life.
Eventually, I would like to do all things that fathers do with their daughters. 
Take you and pick you up from school.
Take you and pick you up from karate.
Make you breakfast, lunch and dinner.
Tuck you into bed and tell you a bedtime story.
I understand you don’t remember much about me and your Nanna ...
I have been trying very hard to be in your life again. So, I don’t want you to think that I don’t love you because I haven’t seen you for so long. I understand that you want to feel safe when you are around me and Nanna ...
I want you to feel safe.
So, when we have time together, I want to do the things you want to do and go to the places you want to go.
If at any time you want to speak to your mother I’ll call her on my mobile and you can speak to her.
Before I stopped seeing you, you had a good friend called [K] who was a little older than you.
You went to Luna Park, the local park and the beach with her, me and her father, ... 
[K] has missed you very much as well.
You and her were good friends.
Nanna … has been making lots of loom bands for you.
With this letter, I also give you some loom bands that Nanna … made for you. You can keep whichever ones you want. Nanna … says you can keep them all if you like.
I want you to know that I have been trying very hard to be in your life again.
Lastly, I just want to say that you are a beautiful girl, and people have been telling me that you are also a very clever girl. I am proud that you are my daughter.
Love
Your father.
184.	In the final session with Dr MM on 31 March 2015, the doctor says (in his third report) that the mother discussed the card that the father had written for the child. She told Dr MM that she felt that the card was inappropriate and that she felt “sickened” by the father’s stated desire to bathe the child and put her to bed. The mother says in her further affidavit filed for the resumed hearing that she did recall reading something that she found to be inappropriate and that she thought it was “[The father] bathing [the child]” but said she was clear that she was not sure what the incident was. She says that upon reading the card again she acknowledged there was nothing in the card about the father bathing the child. Dr MM says in his third report that when the mother had a further discussion within him after he had met with the father and paternal grandmother, the mother confirmed her concern regarding the father’s card and was “absolutely certain” that he had said something about bathing or showering the child. When the transcript forwarded by Ms P was read to the mother she acknowledged that there was nothing untoward in the communication.
185.	Due to the Christmas break the child was not seen by the therapist for another three weeks after the card and presents had been given. At the next appointment the therapist says there was a discernible shift in relation to the child’s views towards her father and his gifts. The child told Ms P that she had a stomach ache following the last session and had ripped up the card and thrown it away but her mother had retrieved it from the bin. The child had brought back the presents and the torn up card to give back to the father. The child also used the session to write a card to the father asking that he leave her alone and outlining her wish to change her surname to “M”. The therapist describes the father as understandably distressed when the child returned the card and gifts.
186.	At the following session the child maintained her position and declined offers of further presents from the father and did not want to see photographs he provided. Although she remained resistant in the next session to meeting with her father she did agree to that meeting on certain conditions. The joint session was then held on 9 February 2015.
187.	Ms P described the father as managing himself appropriately in the one brief joint session but overall it did not go well. Ms P described the child as sitting with her head down and refusing to talk to her father and after approximately one minute the child sought a toilet break. After Ms P and the child returned to the room following the toilet break, on the child’s request the father was told three points that the child wanted Ms P to share with him, that is, that she will never love him, she wanted him to leave her alone and she wanted her toys back. The father indicated that he was sad to hear this, but said that he could understand her feelings. He reiterated that he loved her and had no interest in interfering in her relationship with her mother and family but wanted to be connected to her. Ms P observed that the child remained mute and avoided eye contact with him.
188.	At the child’s next individual session, Ms P detailed that the child said that she felt “sad and angry” and did not believe what her father had said to her. Ms P described the child as strongly resistant to a further meeting with the father and “immovable in her position”. Following this, the child had one further session in which she reiterated she had no wish for further contact with the father and said she did not think further individual sessions would be helpful.
189.	As noted above, the November 2014 orders further provided for the father to spend supervised time with the child commencing on 28 February 2015. There were three visits scheduled on 14 March, 28 March and 11 April 2015. The mother annexes records from the supervision service relating to these visits to her affidavit.
190.	On the first contact visit on 14 March 2015 the supervisor recorded that upon arriving the mother spoke to her away from the car and informed her that the child had said she did not want to see her father. The records further state that the mother became upset and started to cry, stating that she had done all she could and asked supervisor to talk to the child. The child told the supervisor that there was no way she was getting out of the [mother’s] car and that she never wanted to see the father again after what he did to her. The supervisor informed the father and upon return to the mother and the child, the mother told her that the child’s stomach was hurting and she needed to take her home after which the mother and child left.
191.	On the second scheduled visit on 28 March 2015, the supervisor described that the child was crying and that child told her that she knew she would be safe but did not want to see her father because of the things her father had done to her. The child refused the suggestion that the father come out to say hello to her and said that she had a sore tummy and that she needed to use the toilet. The mother and child departed the centre.
192.	On the last contact visit on 11 April, the supervisor records that she spoke to the child alone, who refused to go inside the centre to see the father and the suggestion that the father come to the car and say hi. The father’s legal representative then informed the ICL and the mother that the father would not be attempting to have any further visits with the child before the resumed hearing. 
Discussion and findings
Sexual abuse allegations
193.	In these proceedings the mother raises serious allegations of sexual abuse. It is submitted on her behalf that it is unnecessary for a finding to be made that the events occurred as alleged, but that if that finding is made the Court also will be satisfied that there an unacceptable risk of harm to the child if she were to have further contact with the father. Nonetheless it is submitted on behalf of the mother that it is open to the Court to make a finding that the events occurred as alleged. The ICL submits that the Court would not be satisfied that the sexual abuse occurred as alleged due to the significant issue of contamination surrounding the child’s evidence. The ICL also submits that there is not an unacceptable risk of sexual harm to the child posed by the father. It is submitted on behalf of the father that the Court should find that he did not sexually abuse the child as alleged and that orders for the child to live with the father would not expose the child to an unacceptable risk of further abuse.
194.	In my view, having regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk, it is appropriate to approach the matter by first determining whether I am satisfied that the sexual abuse did occur.
195.	One of the cases reviewed in Johnson & Page (a leading Full Court authority on this issue) is W & W (Abuse Allegations: Unacceptable Risk) where the Full Court noted at [111]:
We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.
196.	The first question therefore is whether I am satisfied that the allegations of sexual abuse alleged are proven, on the balance of probabilities taking into account the matters set out in s 140(2) of the Evidence Act 1995 (Cth).
197.	The first issue of critical significance is the child’s first disclosure which the mother says occurred on 25 September 2011. It appears beyond dispute that the mother did make a complaint to the Department of Community Services (“the Department”), as it was then known, which triggered the JIRT interview five days later, though curiously no Departmental document which records that complaint has been tendered. It is, in my view, of significance that prior to making that complaint, the mother says she telephoned her boss at the Department to discuss the child’s disclosure. The mother told Dr MM that she telephoned her boss to ask “do I really need to be reporting this” and that she was reassured by her boss that there was “definitely enough to make a report”. 
198.	The mother’s supervisor at the Department was not called to give evidence and there is no record of the mother’s complaint to the Departmental helpline at the time. In my view, particularly as the mother is an experienced employee of the Department, it is difficult to accept that she required reassurance from her boss that the child’s disclosure needed to be reported. It seems inconceivable that she did not immediately appreciate this, if the disclosure was given in the terms she alleges. For this reason particularly close consideration must be given to the evidence of this disclosure.
199.	I am of the view that a number of inconsistencies are apparent in the various versions of the disclosure given in the mother’s trial affidavit, police statement, evidence at the criminal trial and under cross-examination in the hearing.
200.	In her affidavit the mother does not specify when the disclosure was made though she seems to suggest that it was made in the morning of 25 September 2011. The maternal grandmother says that the mother informed her of the child’s disclosure on her way to lunch. Under cross-examination in these proceedings the mother said that the disclosure occurred “in the afternoon at about 12 o’clock” but in the criminal trial the mother gave evidence that the disclosure was in the evening. 
201.	The mother also said under cross-examination that the child had disclosed to her on that first occasion that the father had choked her. This matter amounting to a serious assault does not appear in either the mother’s affidavit or in her police statement. 
202.	Mr M’s version of the conversation set out in his affidavit sworn three years after the event is in very similar terms to the mother. However, I do not regard his evidence as reliable for a number of reasons. First, he seemed to have very poor recall. Under cross-examination he was also vague and uncertain about many matters especially when pressed for details. He said that as a result of a motorcycle accident in 2006 he suffered “a permanent migraine every single day” “can’t sleep normal hours” and “sometimes can’t get up at all”. In answer to many questions Mr M said he “could not recall” and said the reason that he had stopped working around the time of B’s birth [September 2009] was because his memory was failing. 
203.	Mr M did not remember when asked, the day of the week the disclosure had occurred, and could not remember what the child was wearing, though he could remember that she was dirty and her clothes were grubby. He was able to recall the details of the conversation as contained in his affidavit very accurately but had poor recollection about virtually all other topics of cross-examination.
204.	Second, Mr M had previously given an account of the child’s disclosure in a police statement on 2 November 2012 which differs considerably to the affidavit account. When asked about the statement he had made to police, he said that he did not recall making it, though he subsequently agreed that he did. He agreed that his police statement had very little detail and did not include his current account of what the child had said on 25 September. Mr M was unclear when the statement had been made to police, why he had not made it earlier and said that the police had instructed him to concentrate on his interaction with the child rather than on the conversation. Ultimately he agreed that the only way the police had obtained a statement from him was through a subpoena. 
205.	Mr M’s police statement is very short, consisting of four paragraphs. In relation to the child’s disclosure it says:
Sometime late last year being 2011 I was at home at …, [the mother] went to pick [the child] up from [Mr De Silva’s]. [Mr De Silva] is [the child’s] natural father. They came home, I noticed [the child] was dirty. I said to [the child],
	“Why are you so dirty?”
I have not seen [the child] like this before, I was shocked. [The child] said,
	“Daddy … did something to me?”
I said,
	“What was it?”
[The child] said,
	“Daddy … did something to me?”
I said,
	“What?”
[The child] poked her tongue out and make a licking motion with her tongue. I said,
	“What do you mean about that?”
[The child] said,
	“Daddy … did yucky things to me.”
[The child] put her head down and started to cry. She started to tremble, she was shaking. I looked at [the mother] and said,
	“Talk to [V].”
[The mother] and [the child] walked off together. I did not ask her any more questions. [The mother] said,
	“Lets go upstairs.”
[The child] and [the mother] left the room.
206.	In my view it is likely that the version of the conversation given by Mr M to police reflects a more accurate account of the child’s disclosure than the version given in his affidavit. It was made at a time closer to the events in question, and it is consistent with the mother’s need to ask her boss whether it was sufficiently serious to be reported. I also find it difficult to accept that Mr M was capable of recalling any conversation three years after it occurred, especially when that conversation is much more detailed than the original version he gave, when on his own evidence he has such difficulties with his memory. I also observe that the affidavit version is virtually identical to the mother’s account.
207.	The maternal grandmother also says in her affidavit that the child made a disclosure to her in the afternoon of 25 September 2011 that her father had “licked her on the fante”, though this conversation is not referred to in the mother’s evidence. In my view, the maternal grandmother, Ms U, is a significant witness in that she corroborates the mother’s observations that the child was grubby and unkempt and that the child disclosed the sexual abuse by the father to her as well.  However, under cross-examination the maternal grandmother agreed that she had not provided a statement in the criminal proceedings against the father.
208.	When asked to repeat the child’s disclosure to her she said it was something like “Nanna nanna, Daddy … touched me, did some things, made me feel yucky” and that she said to the child “you’re a brave girl. I’m sure mummy will get the police to look after you”. 
209.	The maternal grandmother confirmed that she is a counsellor at a sexual assault service and that she has had 17 years’ experience in the field. When asked whether she thought that it would be necessary to involve the police as a result of the child’s disclosure, she said that she “hadn’t formed any kind of impression about that”. 
210.	The maternal grandmother said under cross-examination that the mother told her during the course of the day that the child had spontaneously said “Daddy … had touched her”. She did not recall that the mother told her that part of the disclosure was that the father had physically assaulted the child as well. 
211.	In my view the maternal grandmother’s oral evidence is consistent with a much more limited disclosure having been given by the child than as set out in the mother’s affidavit. The maternal grandmother did not remember the mother telling her that the child had disclosed that the father had physically assaulted her and the account of the child’s disclosure to her under cross-examination is similar to Mr M’s version in his police statement. Both accounts in my view are consistent with the mother being unsure that the disclosure was sufficiently serious for an investigation to be warranted.
212.	It is of great significance to the mother’s account that the child’s presentation was messy and dirty, as that fact is connected with the child’s assertion that she did not want to appear naked in her father’s presence which led to actual disclosure. In these circumstances, the conversation that the mother says that she had with the child expressing concern about bathing the night before the disclosure is also of significance. However, the mother did not include this conversation in her affidavit or statement to police which raises questions about whether it occurred.
213.	The father’s evidence of having bathed the child four days after the alleged abuse and the night before the disclosure was not challenged, and the mother also accepts that the child was clothed in different set of clothing and pyjamas on occasions throughout the 24 hour period preceding the disclosure. This unchallenged evidence is objectively inconsistent with the child saying that she did not want the father to see her naked and casts some doubt on the mother’s account of the entire disclosure.  The evidence that the child was dressed differently on the Saturday to the Sunday also casts doubt on the accuracy of the mother’s evidence that the child was dressed in the same clothing on both days which is crucial to the alleged disclosure.
214.	I am also not satisfied that the child did disclose to her mother on 25 September 2011 that her father had choked her. This is a particularly significant allegation of a physical assault and as the mother says, that the conversation “shocked her to the core” and she will never forget the words the child said. I cannot accept that it was simply an “oversight” to omit this complaint from her police statement as she asserts, or to omit it from her affidavit. Further, there is evidence that the mother was particularly attentive in presenting her children to a general practitioner regularly to seek medical attention when required, and she says that she did not take the child to the doctor following the disclosure as the child did not complain of pain and had not disclosed anything [that would require medical attention]. She also did not look for bruises, scratches or marks even though she says the child had disclosed that she was choked, her legs were forced apart and she was dragged back when she attempted to crawl away.
215.	Having regard to all of the evidence in relation to the child’s alleged conversation on 25 September 2011, I cannot be satisfied that the complaint was in the terms deposed to in the mother’s affidavit. I am satisfied that the child said something to the mother which caused the mother to feel some disquiet, and I infer from the fact that she had a discussion with her boss at the Department that she had some belief the disclosure related to sexual harm. However, I cannot accept that if the conversation had been in the terms she deposes to, there would have been any doubt in her mind that this amounted to a disclosure of sexual abuse. I am not assisted by notes which the mother suggested, at one point, may have been taken by her, nor the records of the Department’s helpline to which the mother says she made her disclosure. I infer from the fact that Mr M only provided a statement to police 14 months after the event and as a result of the subpoena that he was reluctant to provide such a statement and note that this statement is inconsistent with the mother’s evidence. I regard his police statement made closer to the events as more reliable than his affidavit for the reasons given.
216.	The next aspect of the evidence which requires close consideration is the child’s disclosures in the first JIRT interview on 30 September 2011. On this occasion, in addition to complaining that her father had licked her on the “fanny”, and made her stand up and that the paternal grandparents interrupted the father and asked him what he was doing, the child also alleged that the father had “choked her on the throat”, had put ice on her fanny, put salt in her fanny and her mouth and put his finger in her bottom.
217.	I accept the evidence of Dr MM as to the reliability of the child’s account and note that the child related what Dr MM described as “a highly disturbed range of activities” in a matter of fact manner with a complete absence of emotional distress. 
218.	Even taking into account the child’s age, there are a number of discrepancies and inconsistencies which in my view also indicate that the account may be unreliable. For example, the child says that the events happened on the same day that the father had his celebration cake, when it is not in dispute that the celebration was days later on September 24. Her account is also internally inconsistent, in that in some parts of the interview she asserts that the father stopped the abuse when the grandmother interrupted him but at other points in the interview says that the father continued notwithstanding the grandmother’s protestations. 
219.	There are also two demonstrable untruths told by the child. First she says she has not told anyone else about the complaint and did not know who had told her mother about it. The child also untruthfully says that the father choking her caused her to vomit at child care. Further, under cross-examination at the father’s trial the child agreed that she was not telling the truth when she said her father choked her. 
220.	It is also of significance in my view that in the first interview the child uses the word “fanny” rather than “fanty” to describe her genitals which is inconsistent with the mother’s statement about the language used by the child at the time.
221.	There are also a number of occasions where the child says something that is both unresponsive to the question and appears out of context, but is relevant in my view, to the context in which the child’s disclosures developed over time. For example, when asked “when did that happen”, the child said “on Tuesday” and added “and I was wearing a dress. That’s why”. In answer to the question “do you remember what Tuesday” the child said
Last Tuesday, only one Tuesday [and added unresponsively] ‘cause, and he didn’t see a photo or, he didn’t see anything else happen to a child.
	She went on to say:
	He didn’t see anything else happen to a child but, and he didn’t even see a photo of a man or a lady do that to a child. He didn’t see that. He just thinked about doing that.
222.	These answers are not only unresponsive but relate to important contextual issues surrounding the complaint such as whether the father had seen a “photo of something happening to a child” and the clothes she was wearing at the time of the incident which suggest, in my view, that the child had an awareness that these matters were of some significance. 
223.	I also find that there are also other indications that the mother had some prior discussion with the child about the content of the interview. For example, when the child was asked what it means to tell a lie, she said “mummy tells me that last night if she had um, a hat on and she didn’t and I said is that, and I said that’s a lie”. 
224.	Although the bizarre nature of the complaint is not necessarily inconsistent with the events having occurred, some aspects of the child’s disclosure are in my view, particularly unbelievable. For example, the child says that she could feel the hair on the father’s fingers when he put his finger in her bottom. She child also attributes particularly strange language to the grandmother when she alleges that the grandmother came into the room and asked the father what he was doing (“what are you doing to that girl”) and says that the grandmother herself also used the word “fanny”. It is also curious that the child referred to her grandmother as “the mummy.” In my opinion, as a result of my observations of the paternal grandmother who required an interpreter for the purposes of giving evidence, it is difficult to accept that she made the statements attributed to her by the child. 
225.	I am not satisfied that the child on 30 September 2011 accurately related events that had been perpetrated by the father to her nor that the child necessarily at that time believed that those events had occurred. 
226.	In my view there are a number of aspects of the mother’s conduct and conversation with Dr H in the course of the child’s medical examination on 30 September 2011 which give rise to adverse inferences about the mother’s credit and judgment and are relevant to the context in which the child’s disclosures emerged and developed over time and the formation of the child’s belief that she had been harmed by the father.
227.	The mother is unable to explain how Dr H, as part of the history given by the mother, records that the child had disclosed that the father had put salt on his finger and put his finger into her vagina and anus and put his hand on her neck until she could not breathe. The mother also could not explain why Dr H recorded that she told Dr H that the father had “stroked [the child’s] vagina sometimes in the past”.
228.	It is the mother’s case, according to her trial affidavit and police statement, that on 30 September the child had not told her about the salt, vaginal or anal penetration or the previous vaginal stroking at the time of the medical examination. It was variously contended by the mother that there were difficulties with Dr H’s English, that the examination was chaotic and that the source of this information may have come from the child herself or possibly even another person on the same day. However, ultimately the mother said that Dr H contemporaneously recorded what she had told her and that she “absolutely stood by” having told Dr H matters such as the prior sexual touching by the father. The mother said that she must have been in error about when the child told her about the salt or vaginal or anal penetration. She was unable to say when these disclosures occurred, even though as a matter of logic it must have been prior to 30 September. These particular complaints are, on the mother’s version, and of their nature, particularly serious and disturbing, and I cannot accept that she is unable to account for the circumstances in which she received this information prior to 30 September 2011. 
229.	I accept the mother’s evidence that she did inform the police of the bruising that she had observed on 28 September, but note that her description of the pattern of bruises is different to the medical evidence. The photographs she says she took on 28 September are not in evidence. It is in my view not to the mother’s credit that she accepts that only one of the bruises observed on the child is related to the child’s tripping accident at the child care centre, even though she did not make any further inquiries about the extent of the injury but accepted the explanation of her five year old child. It is also of significance that the first time she observed bruises to the child’s body was the same day that the child had an accident at child care.
230.	I accept that the mother had some conversation with police on 30 September following the JIRT interview and that she referred then to the child’s complaint that the father had taken photographs of her naked, but I am not satisfied that the child’s disclosure was in the terms alleged by the mother in her affidavit.
231.	Unfortunately, no records from police have been provided in relation to the mother’s various accounts of the child’s disclosures other than the mother’s police statements. The application for an AVO made some time later (in January 2012) is the only police document that provides some assistance. This application refers to a “debrief” held between the mother and JIRT officers following the JIRT interview on 30 September 2011 and states “during this [the child’s mother] stated [the child] had told her [the father] had taken photographs of her naked and showed her on his iPad.” This record is inconsistent with the mother’s evidence that she did not tell police on 30 September about the child’s disclosure that the father took photographs of her naked, and her explanation that the police had not asked her for her statement at that stage. The statement in that AVO application is consistent with the mother informing the police that the child had made such a complaint but is inconsistent in my view with the terms of that complaint that the father had taken photos of her “fante and bum” lots of times. In my view it is likely that if the child had made the disclosure in those terms and in the context of the mother findings bruises on her body which were consistent in her mind with allegations of serious assault, the mother would have informed the police of the terms of this disclosure on 30 September.
232.	Similar concerns arise about the mother’s reliability and the child’s more detailed and complex complaints of the abuse contained in the alleged disclosure by the child on 9 October of the father putting salt on her “fanny” and penetrating her vagina and anus and the child’s aversion towards computers due to the photographs the child complains the father took of her “fante and bum”.
233.	As discussed previously, the mother raises doubt in her own evidence as to whether the disclosures about the salt and digital and anal penetration did occur on 9 October 2011. Although this raises issues of the mother’s reliability, in my view it raises greater concerns about the credibility of the child’s account and the mother’s judgment in accepting the truthfulness of that account. While it is possible that the child did disclose to the mother at some point that the father put salt on and inside her vagina and put his finger inside her vagina and anus, in my view it is unreliable as evidence that those events actually occurred. I accept the evidence of Dr MM that the child’s disclosures emerged and developed in the context of a history of hostility towards the father, the maternal family’s response, the police interviews and the suspension of contact that the child otherwise had with her father.
234.	In my opinion the conversation at around the same time when the mother says that the child recalled the earlier inappropriate touching in September 2009, can be considered in this context also. While I accept that the child may have made the complaint alleged, it arose from a highly suggestive lead given by the mother about an event she agrees had been playing on her mind. If it were said, it is not likely in my view to represent a genuine memory of the child and is likely to have been said by the child to affirm what she knew her mother wanted her to say. The conversation on 10 October (when the child is said to tell the mother she doesn’t want to use computers because it reminds her of the photographs the father keeps of her on his computer) was also prompted by the mother and occurred while she and the child were travelling to sexual assault counselling. I regard the mother prompting each of these conversations as reflecting particularly poorly on her judgment and credit in these proceedings. I also regard these conversations as very relevant to the issue of the context in which the child formed her belief that she had been sexually assaulted by the father.
235.	The next matter which requires close consideration is the child’s second JIRT interview on 11 October 2011. In my view this interview is as problematic as the first. The account the child gives is also unreliable for a number of reasons. In that interview the child says that the father had taken naked photographs of her on the one occasion when he “licked her fanny on the Tuesday” and said there were two such photographs. This is inconsistent with the two previous disclosures the mother says that the child made, that the father took many photographs of her on a number of occasions. 
236.	In the second interview the child again gave unresponsive answers which bore no relation to the questions asked, but were relevant to the greater family dynamics and the context of events that had occurred as a result of the abuse allegations. For example, when the questioner started to ask about the photos and said “when you saw the photos on that …” the child interrupted and said:
“and he choked me…and he putted his finger in here”
and then added:
“And my Nanna, um, we ….. and then we went to um, a café and she offered me, “Do you want a, um, uh, a hug?” and I said “No””
This appears to be a reference to the mother and child unexpectedly encountering the paternal grandmother in a café a few days before. The child also said the following:
Q99	And when you saw the photo on the computer, where was, where was Nanny?
A	I, um, she wanted to ask a question to daddy … and my Pop, but when she camed upstairs, she found he was, um, doing that, licking my fanny. She said, “What are you doing to that girl?”.
Q100	[14.40] Mmm.
A	And then he said, “Licking her fanny”. And then, he um, and I want him to go into gaol.
237.	Once again the child attributes unusual language to the grandmother. Also, in my view, an inference arises from the child’s reference to the father going to gaol, that the child has been exposed to discussions concerning the connection between the father’s conduct and the criminal justice system.
238.	The next incident of significance to a consideration of the sexual abuse allegation is the execution of the search warrant on the father’s premises and, in particular the fact that no naked photographs of the child were located. While it is possible that the father deleted them from his computer sometime between 20 September and 13 October 2011, it is more likely in my view, that the father did not take photographs of the child of this type. He had no reason to expect that police would execute a search warrant on his home and there is evidence that he was surprised by this event.
239.	Supervised time with the father then occurred on two occasions in December 2011. I accept the evidence of the father as to these events, as it is consistent with the records of each of the supervisors who are independent of the dispute and for that reason likely to be reliable. I find that the mother on each occasion arrived late, inappropriately discussed matters relating to the abuse allegation in the presence of the child, and was highly emotional and argumentative with the supervisors. Although the child was observed to be reluctant to leave in the presence of the mother, shortly after changeover she was chatty and happy and content in the company of the father.
240.	I do not accept that the father made the threats to the child as the mother alleges on 23 December 2011. I find it unbelievable that the father would whisper a threat in the child’s ear while in close proximity of the supervisor when he is described by both supervisors as “hypervigilant” and “nervous” at that time. It is inconceivable in my view that at a time when the police have executed a search warrant on his home in respect of child sexual assault, and supervised contact on limited occasions had been ordered, that he would make such a threat to the child. It is also of significance that the mother does not say that the child disclosed this alleged threat on the day it was said to have been made, but revealed it later as an explanation for why she did not wish to spend time with her father on the third contact event. I accept the supervisor’s notation as accurate, that the mother seemed “delighted” that future contact would be cancelled.
241.	It is in my view of significance that although Collier J on 15 December 2011 provided for a specific number of contact events and granted liberty to relist the matter in the event of difficulty, the mother did not bring the matter back to Court to seek to have the orders suspended. As previously indicated, the AVO made on 13 January 2012 did not suspend the family law orders but the mother was of the view that the orders providing for the child to spend time with the father placed the child at risk. I infer that she preferred to allow JIRT and police to take other steps available to those agencies rather than bring to the attention of the Family Court that the contact was not occurring.
242.	The next event of significance was the child’s participation as a witness in the father’s criminal trial in February 2013.
243.	I accept the description Dr MM gave that the child viewed herself in the criminal proceedings as “in a battle with her father” in which she had been supported by her mother and the father had been supported by the paternal grandmother and that this resulted in a further polarisation of her views. It is not to the mother’s credit that she omitted any account of the criminal trial in her affidavit, but I note that she openly conceded under cross-examination that the child was angry with the outcome, considered that she had not won, that the result was not the outcome that “the child was hoping for” and that the child connected the result with being required to see the father again and the father again hurting her.
244.	The next relevant factor in relation to the child’s circumstances was the evidence given by the mother under cross-examination that from about March 2014, the mother and the children were living in the maternal grandmother’s home and that they spent weekends only in the family home with Mr M. The extended maternal family was assisting the mother throughout this period in the care of her children and Mr M had very little to do with their day-to-day care, at least partly due to his concern that he may be falsely accused of something untoward with respect to the children. Dr MM’s opinion in relation to these parenting arrangements was that the child was being raised in an environment where there were concerns about the role of father figures and issues of trust in the child’s family.
245.	In my view, and accepting Dr MM’s evidence, there were particular features of the child’s experience from the time the allegations were made and which continued up until the date of the hearing, which are relevant to the formation of her view that the father had sexually assaulted her.  These features are the long history of conflict between the parents, the mother working in child protection and maternal grandmother working as a sexual assault counsellor, the mistrust relating to father figures and males in the household, the suspension of the child’s contact with her father, conversations by the mother and maternal grandmother in the child’s presence in which they discussed the sexual assault on the assumption that it was true and the child’s experience in the court process. I accept Dr MM’s opinion that the child’s belief arose in this context rather than being based on actual recollection of the events, especially as time progressed.
246.	The child’s account as related to the mother and given in the JIRT interviews and the mother’s evidence of the child’s complaint and her own observations are critical evidence of the sexual abuse allegations. In light of my findings about the reliability of that evidence, I am not satisfied on the balance of probabilities that the father abused the child as alleged.
247.	The absence of a positive finding that sexual abuse has occurred is not, of course, determinative. In accordance with the long line of authority as to this issue the questions to be determined are whether there is a risk of harm to the child if she were to have further contact with the father and whether the magnitude of that risk is “unacceptable”.
248.	Notwithstanding the absence of a positive finding, I am of the view that there is evidence to support a finding that there is some relevant risk of harm. First, there is the issue of the father’s use of pornography. It is in my view, not to the father’s credit that he failed to raise this issue in his affidavit, especially as he had been charged and the prosecution asserted that child abuse material had been located on his computer. In considering this issue in relation to the magnitude of risk, I cannot be satisfied, however, that he possessed any child pornography. Although he used pornography regularly and was obsessive in his collection of the material, I accept the evidence of Dr MM that the father’s level of pornography usage of itself is not a matter of concern in relation to an unacceptable risk of sexual harm.
249.	The nature and content of the child’s disclosure in her JIRT interviews must also be considered in determining whether the child would be at an unacceptable risk of harm if she spent time with the father, especially as Dr MM conceded that it was possible that the sexual abuse had occurred. For the reasons given earlier in this judgment, I am of the view that the child’s disclosures, although disturbing and bizarre in nature, are so problematic, especially in the context in which they developed, that no reliable inferences can be drawn from them.
250.	In these circumstances, I am of the view that the magnitude of risk associated with sexual abuse is small, rather than unacceptable. Accordingly, I am not of the view that there is an unacceptable risk that the father may harm the child sexually if the orders are made as sought by the father or the ICL.
Disruption of the relationship between the child and her father and alienation
251.	For the reasons given, I accept the opinion of Dr MM that the child’s views that she had been sexually assaulted by the father developed in the context of the particular features of the maternal household and the child’s particular experiences. Dr MM raised the possibility of direct coaching by the mother and much of the cross-examination of her centred on this possibility. I am not able to determine that the child was directly coached as opposed to influenced by the mother and the maternal household members in forming her view that she had been sexually assaulted and for this reason did not want to have a relationship with her father or paternal family members.
252.	However, although I cannot make a finding concerning the exact way in which the mother influenced the child, I accept that the child has been “alienated” from her father in the sense that Dr MM uses this term, as she is strongly aligned with her mother and does not have a relationship with her father, and that factors in the maternal household played a significant role in this alienation. 
The Law & Discussion
253.	The objects of Part VII of the Act and the principles underlying them set out in section 60B, form the framework for the part of the Act dealing with parenting.  
254.	The objects are to ensure that the best interests of children are met by:-
 (a)	ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)	protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)	ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)	ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
255.	The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests): 
(a)	children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)	children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)	parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)	parents should agree about the future parenting of their children; and
(e)	children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
256.	According to section 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.  
257.	Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations
258.	The primary considerations (under s 60CC(2)) are:-
a)	The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)	The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  
The benefit to the child of having a meaningful relationship with both parents
259.	The meaning of the phrase “meaningful relationship” is not defined in the Act.  The Full Court in McCall & Clark has approved the interpretation of the phrase by Brown J in Mazorski & Albright and has also agreed with the reasoning of Bennett J in G & C.  Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:	
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. 
260.	Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”
261.	The Full Court said in McCall & Clark (supra) at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests. 
262.	The ICL submits that there is a benefit to the child in this case of having a meaningful relationship with each of her parents. However, it is submitted by the ICL that there is no prospect of the child having a relationship with the father at the present time. While the ICL submits that there is a prospect she will develop a meaningful relationship with her father over time, this will be diminished by any order for the father to spend time with the child or an order that the child live with the father.
263.	The father also submits that there is a benefit to the child of having a meaningful relationship with both of her parents. It is submitted on his behalf that the child will only receive the benefit of a meaningful relationship with her father if she resides with him as envisaged under his proposed orders.
264.	The mother proposes orders which do not provide for the father to spend any time with the child and for the mother to hold sole parental responsibility. Although the issue was not directly addressed in submissions, it seems that it is the mother’s position that the child will not benefit from having a meaningful relationship with her father. 
265.	I am of the view that there is a benefit to the child of having a meaningful relationship with both of her parents. The mother has been her primary caregiver and principal attachment figure throughout her life and prior to the allegations of sexual assault in September 2011 it appears that the child shared a warm and rewarding relationship with her father. 
266.	The tenor of Dr MM’s evidence is that it is not possible for the child to have a meaningful relationship with her father given the current circumstances, rather than that there is no benefit to the child of having meaningful relationship with the father.
267.	Dr MM described the impact upon the child of losing her relationship with her father. He said that that loss:
will have an impact upon [the child’s] evolving sense of self because she will cut off and disavow the core part of who she is. In [the child’s] case this would be the father, her father’s [European] family, her relationship with the grandmother. It would relate to her ability to trust men, in general. And it would contribute to a black and white view of the world, [and] relationships. Rather than a more nuanced view of understanding that we all have [of] our strengths and weaknesses and that one can derive benefit from particular relationships, social networks, rather than view such networks as either “for me or against me”, or “on my side” or “on the other side”.
268.	Dr MM referred to evidence that the mother and child’s circumstances had changed since the first assessment. He said that if there had been a breakdown in the security of the relationship between the mother and her husband, Mr M was more impaired than the doctor has understood, there had been a lack of consistency and reliability within the family and there were no significant father figures or male figures in the child’s life, there may be the capacity for the father to re-emerge as a more reliable figure in her life. The doctor recommended that the meaningful relationship between the child and her father only be re-established, however, if the Court found that the child was not likely to be exposed to significant harm in the context of contact with her father and if therapeutic intervention was provided. It is to be remembered however that the therapeutic intervention was not successful in assisting the child to re-establish the relationship during the adjourned period.
269.	I am of the view that while the child would receive a benefit in having a meaningful relationship with her father, there are real challenges in crafting orders to foster that relationship at this time.
270.	The ICL’s proposed orders exclude from the mother’s exercise of sole parental responsibility the issue of the child’s name and restrain her from changing it to exclude the father’s name. They also require the mother to ensure that the child uses the father’s surname in common daily usage as her own, to keep the father informed in relation to other significant matters, and permit the father to obtain material in relation to the child’s progress at school. While these orders will not foster the child’s “meaningful” relationship with the father, they will ensure that the father is not completely excluded from the child’s life. Similarly the ICL’s proposed orders provide that the father be at liberty to forward birthday and Christmas cards and gifts to the child which the mother must provide to her. Significantly, in the event that the child wishes to communicate with, write to, or spend time with the father the ICL’s proposed order require that the mother facilitate such contact or time. 
The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
271.	Much of this case is concerned with this consideration, though for reasons I will come to shortly, in my view, it is not the determinative consideration. 
272.	It is the mother’s case that the child was sexually abused by the father or there is, at the very least, an unacceptable risk of harm to the child on this basis. If it were the case that I was satisfied that the child had been sexually abused by the father or that there was an unacceptable risk of harm on this basis the orders proposed by the mother would be appropriate and in the child’s best interests. However, for the reasons given, I am not satisfied that the child has been physically or sexually abused by the father or that there is an unacceptable risk of such harm to her if she were to spend time with or live with him on this basis.
273.	The proposal of the ICL is based on the evidence of Dr MM that there is an unacceptable risk of harm to the child from either living or spending time with the father for other reasons. Although this risk is one of psychological harm, as it does not arise from the child being subjected to or exposed to abuse, neglect or family violence in the father’s care, it will be dealt with later in these Reasons when considering the capacity of each of the parents to provide for the needs of the child.
274.	It is the father’s case that an unacceptable risk of psychological harm arises under any orders whereby the child remains living with the mother, as it is contended on his behalf that this risk arises from the child being subjected to emotional abuse by the mother. 
275.	The definition of “abuse” in relation to a child in the Act includes “causing the child to suffer serious psychological harm”. Dr MM agrees that if the Court found that the mother influenced the child to say that she had been sexually abused, and systems abuses followed that allegation, this would amount to “significant emotional abuse perpetrated by the mother”. 
276.	When considering the issue of influence of the mother, I do not find that she has directly coached the child to make the complaints of sexual abuse. Rather, I find that the child’s disclosures and belief that she had been sexually assaulted evolved in the context of a concerned mother and grandmother each having a professional background in child sexual assault, a high level of mistrust between the parties, an underlying lack of support by the mother for the child’s relationship with the father and a response from the authorities which involved the child retelling her experience on numerous occasions. Where the narrative of the child’s abuse experience developed in this way, rather as a result of direct coaching, a finding of emotional abuse is less clear cut.
277.	My findings do include that the mother did play a significant role in the child coming to believe that she was a victim of sexual abuse and in alienating the child from her father and paternal family. The child does require protection from this harm. However, an order which removes the child from her mother’s care as proposed by the father, is regarded as one which would be “highly distressing for the child” by Ms P and “overwhelming and traumatic” by Dr MM and must be approached with the greatest caution having regard to all of the relevant best interest considerations.
278.	So far as the additional considerations are concerned, I will only refer to those which in my view are relevant to this matter.
Additional considerations
Views of the child and factors related to weight
279.	The child has strongly and consistently expressed a view for at least two and a half years (from the time at which Dr MM interviewed her) that she feels happy residing with her mother and wants no further contact with the father or paternal grandmother. Her views are expressed in the context of a belief that she has been sexually assaulted by the father, that he is a bad man and that the paternal grandmother has failed to protect her. Apart from the two occasions in the course of family therapy in December 2014 when the child was open to seeing family photographs provided by the father, expressed willingness to receive a card and present from him and appeared curious about the paternal family, she has consistently asked that she be left alone by him.
280.	The child’s views are inextricably linked to her belief that she has been sexually harmed by the father and have come about in the context of influence of the mother as described. Her views are, of course, not necessarily consistent with her best interests, regardless of how strongly they are held. However, her views are very relevant to the opinions of Ms P and Dr MM which I accept, that removing her from her mother’s care and her support network and placing her with the father would be acutely distressing for her. I attach significant weight to her views as evidence of the likely impact upon her of the various parenting arrangements envisaged in the proposed orders. 
Nature of the child’s relationships 
281.	The mother has been the child’s primary caregiver and attachment figure throughout her life. Dr MM observed loving interactions between the child and her mother. The child also reported to Dr MM and was observed by him to have a loving relationship with other maternal family members including her stepfather, two nannas and younger brother.
282.	Dr MM describes the child as having been “alienated” from the father. He first raised this in his first report and was firmer in this opinion in his third report and under cross-examination. Under cross-examination the doctor explained that this is not a “pure” case of alienation but he uses the expression to describe that the child has no relationship with her father and is aligned with her mother. The doctor said that this was not pure alienation in that the absence of the child’s relationship with her father was not exclusively related to the actions of the mother, but he did identify the mother’s influence and alignment with the child as a very significant component. The doctor also said that the ambivalence the child showed about the possibility of engaging with the father in the course of family therapy indicates that this was not a pure alienation, but he continued to use the expression as a way of describing the absence of the child’s relationship with her father.
283.	By the time Dr MM saw the child on the last occasion she was seen to very strongly identify with her mother, saw her father as an abusive parent and was preoccupied with her account of being a victim of abuse. Both Dr MM and Ms P observed in the child a lack of capacity to consider that her father and paternal grandmother might love her.
284.	Dr MM described the paternal grandmother as a loving, caring grandmother who was very distressed by her family circumstances and very motivated to have a relationship with her granddaughter. This description is consistent with my observations and the impression I formed when she gave evidence in the proceedings.
The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
285.	As the proceedings in this matter were initiated prior to the June 2012 amendments, this is a best interest consideration. It is in any event, in my view, a significant matter in this case. 
286.	I am of the opinion that the mother is both unwilling and unable to facilitate and encourage the child having a close and continuing relationship with the father. Although the mother may have superficially at times expressed this willingness and demonstrated such an ability, such actions do not in my view indicate her underlying belief. 
287.	For the reasons given, I am satisfied that the mother has not ever genuinely supported the child having a relationship with her father.  After the first parenting proceedings and prior to the allegations of sexual abuse in September 2011, the mother did facilitate the relationship in the sense that she generally complied with the orders providing for the father to spend time with the child, but she did not actively promote it. 
288.	The mother has believed from the time the allegations were first made that the child has been sexually assaulted by the father, and consistent with her position, she has not facilitated and encouraged the continuing relationship with him since that time. I am satisfied on the basis of the supervision reports, the father’s evidence and the fact that the mother did not return to Court to have the orders changed, that she was highly distressed about the child spending time with the father in December 2011 and January 2012. Even though that time was supervised, she continued to believe that the father posed a threat to the child’s safety. The mother openly conceded under cross-examination that she (and the JIRT team) felt that the family law orders supporting the child’s relationship with the father were placing the child at risk.
289.	The mother made it clear at the resumed hearing in mid-2015 that she only consented in November 2014 to the interim orders providing for the reintroduction of the father to the child in a therapeutic context because she believed there was a very real risk that if she did not support the relationship the child may be removed from her care. She said that she did not give her consent to those orders on the basis that it was in the best interests of the child for the relationship with the father to be supported. 
290.	I accept the view of Dr MM that it is highly unlikely that the mother would change her view that the father represents a danger to the child. 
291.	I am also of the view that the father is unwilling and unable to facilitate and encourage a close and continuing relationship between the child and her mother. While he initially proposed orders for an increase in his time with the child leading to a shared care arrangement, when the proceedings were resumed after the adjournment, the father had changed his position and was seeking orders that the child live with him.
292.	The tenor of Dr MM’s evidence, which is consistent with the father’s approach in these proceedings, is that the father sees all of the events surrounding the loss of his relationship with his child as resulting from the behaviour of the mother and is very distressed by her actions. It would not be conceivable in these circumstances that the father would be either willing or able to support the child having a relationship with the person who he sees as having caused so much harm.
Likely effect of change in the child’s circumstances 
293.	In my view this consideration has the greatest significance in this case. As indicated earlier in these Reasons, much of the focus of the proceedings concerns the question of whether or not the child has been abused by the father and whether there is a risk of either ongoing sexual abuse at the hands of the father or emotional abuse at the hands of the mother. However, from the child’s perspective those matters are of less significance than the parenting arrangements in the future and the impact of any change in circumstances. Dr MM described this issue as follows:
I think that in terms of the nature of the findings with regard to the whole history, of course that will be of great significance to the parents, but in terms of the outcome with regard to what’s in [the child’s] best interests in terms of moving forward, I think it is of limited significance.
294.	Dr MM agreed with the proposition that there were discernible risks in each of the parents’ households, but a move for the child from the mother’s care to live with the father as proposed by him, would be a “cataclysmic event” and that is likely that the child would not ever “get beyond” the effects of such a change. 
295.	Dr MM is of the view that the father’s understanding of the events following the sexual abuse allegations and his proposals for the future focus on a preoccupation with alienation and emotional and psychological abuse perpetrated by the mother. The doctor says that in this context his proposal to remove the child from her abuser and protect her from further abuse makes absolute sense. However, the doctor opines that such a separation would remove the child not only from her mother, but her entire community, and the impact upon her would be disorganising and a source of significant distress. For this reason the doctor felt that moving the child from the mother to the father’s home posed an unacceptable risk to the child’s wellbeing. 
296.	The doctor described the father’s approach as a concrete response to a complex experience. He said that even if the child had been alienated in the way in which he used that expression, this was not the only dynamic impacting upon the child. He described the father’s proposal for the child as follows:
[It] doesn’t take into account the importance of the child’s other relationships, that this child is not simply a child who has been alienated, if, indeed, you know, the father is correct in his assertions, but [the child] is a child who lives within a community that her – the nature of her relationships not just with her mother, but with her sibling, with her maternal grandmothers, with her community at school and social and sporting and choir – that all of these are core aspects of her day to day experience, and to remove the child from all of that to specifically address the issue of alienation and – from the father’s views destructive allegations of sexual abuse…he is missing the importance of the other aspects of the child’s developmental experience, but it’s not the sole aspect of her experience, and, in fact one would hope is that other factors in her life would be of greater significance than whether particular events happened in September 2011 or not.
297.	Dr MM was of the opinion that due to her likely emotional distress, the child would be likely to exhibit behavioural resistance and opposition if she were moved to her father’s care. He felt that it would be a highly stressful experience for the child even if she had a pre-existing mature relationship with her father and he had the capacity to manage her distress and behaviour. It was the doctor’s opinion that this pre-existing mature relationship did not exist and that the father did not have this capacity. He was of the view that the father’s inability to manage the child would create additional trauma for her as well as the trauma of separation and loss from everything of significance in her life. 
298.	Dr MM said that if the child were moved to the father’s care she would also have the trauma of being placed in an environment where she has the very strong view that she has previously been mistreated and the expectation that she would be mistreated again. He felt that even if this anxiety would lessen over time which was possible, and she felt safe and the alienation gradually resolved, he was not of the view that the father had the capacity to manage the reestablishment of the relationships in the future in an emotionally mature manner. Dr MM agreed that at best the child may gain a relationship with her father but he was concerned that it would come at a very high costs to all other aspects of herself.
Capacity of each parent and any other person (including grandparent or other relative) to provide for the child’s needs including emotional and intellectual needs
299.	Dr MM outlined his concerns about the continuing emotional impact upon the child in the event that she remains living with her mother. He said there was “much to support the father’s view that the mother exhibited impaired moral reasoning and had acted in a fashion to alienate [the child] from him” which the doctor described as “obviously of concern”. Ongoing concerns for the child are that she may develop a similar lack of moral compass, have serious issues in her personal interactions, have unresolved anger and anxiety, continue to believe that her father had abused her and have issues related to trust regarding men.
300.	The doctor was cross-examined about some of the matters relating to the mother’s credibility such as her relationships in the workplace and challenges to others’ (seemingly well-founded) versions of events and asked whether these matters raised concerns about the mother’s capacity to care for the child. He said that the answers to cross-examination did raise many concerns about the mother’s judgment to respond appropriately and consistently in a reliable fashion. He said that similar concerns to the matters raised under cross-examination had also been evident in many other sources of information that were available to him during his assessment. He said that such recurrent concerns raise a pattern and that “goes to the mother’s personality [and] her capacity to have a secure sense of self and is particularly problematic in her role as a primary caregiver to her daughter” because the child will be very influenced by the mother’s interactions with others and in her interactions with the child. 
301.	The mother has also demonstrated that at times she has needed the support of her extended maternal family, in particular her mother, to manage the day-to-day care of her children. Historically, the father for a short time assisted her in the care of the child when she returned to full-time work, and cross-examination and her personnel records reveal that she has taken significant leave due to ill health. The mother has also been heavily medicated at times and at the time of the November proceedings had been living with her mother for most of the year while she recuperated from surgery. 
302.	Notwithstanding these concerns I am of the view that with the assistance of her extended family, the mother has demonstrated a capacity to meet the child’s physical and developmental needs. She was also not identified by Dr MM as having any psychiatric condition that would affect her capacity to parent the child. There is no evidentiary basis for the father’s proposed orders that deal with psychiatric treatment for the mother.
303.	A number of concerns relating to the father’s parenting capacity were identified by Dr MM. Firstly, he felt that it was likely that the father experienced an adjustment disorder with depressed mood which occurred in the context of a background of treatment-resistant irritable bowel syndrome and a diagnosis by a psychiatrist of an underlying depression which the father denied. The doctor identified, and the evidence in the proceedings supported, that the father had difficulty in recognising his experience of anxious and depressed mood and focussed instead on the physical symptoms of the irritable bowel syndrome. The doctor said that it was unfortunate that the father self-medicated with anti-depressant medication “which may have further amplified his mood and behavioural problems”.
304.	The doctor also identified that the father had limited social skills and opined at the resumed hearing that the question of Aspergers disorder may arise. A central feature of Aspergers is a lack of empathy which he felt was present in the father. As referred to earlier, the doctor was of the opinion that the father lack an appreciation of the importance of aspects of the child’s experience other than that she was alienated, and felt that the father focussed to a great degree on a lack of justice towards himself and that he had been wronged through the court proceedings and through the criminal justice proceedings. The doctor did concede however that this was a normal response in a situation where a person had in their view been wronged by the system.
305.	The doctor maintained that the father was emotionally immature and felt that his use of pornography and his describing gender on the basis of genitalia was also “odd” and demonstrated emotional immaturity. When interviewed by the doctor on the last occasion, the father said that he “couldn’t give a rat’s arse that [the mother] is [the child’s] mother, and I am [the child’s] father, that she has a vagina and I have a penis…I fail to see how a vagina trumps a penis”. The doctor said that these comments and the father’s extent of pornography use go to the emotional maturity of the father’s view of relationships and of gender which raise concerns particularly in the context of raising a daughter. 
306.	Dr MM also felt that the father lacked the psychological capacity to care for the child on a day-to-day basis and provide for the needs of the child’s emotional development. He opined that if the child were moved to his full-time care he would not have capacity to manage the likely emotional distress, behavioural resistance and opposition that the child would exhibit.
Maturity, sex, lifestyle and background (including culture and traditions)
307.	The child is a nine year old little girl of European heritage on her father’s side and British heritage on her mother’s side. Although she was exposed to the traditions associated with her European culture prior to the estrangement from her father and undoubtedly benefited from that, she has unfortunately lost the benefit of that culture since she has lost the relationship with her father and will not receive it under the proposed orders of the ICL or the mother.
308.	The child is well connected to her maternal family and appears to have significant social capital in her local community.
309.	Each of the child’s extended families has much to offer her and it is regrettable that each of the proposals in this case involve the child only being able to receive the benefits from one of the extended families due to the extreme circumstances in which she has been placed.
Attitude to the child and responsibilities of parenthood demonstrated by each parent
310.	Each of the parents has adopted a responsible attitude to parenthood consistent with the position that each adopts with respect to the allegations in this case.
311.	However, although each of the parents perceive themselves as focusing on the best interests of the child, in my view, each is focused to a greater extent on their own experience. The mother remains convinced that the child’s account of being sexually assaulted by the father is correct, notwithstanding the findings of the Judge in the District Court that the criminal proceedings against the father were inherently weak and the evidence in this case, particularly of the expert, Dr MM. The mother’s misinterpretation of the contents of the letter the father wrote to the child in December 2014 provides recent evidence that the mother continues to interpret events in a way which supports the narrative that the child was abused, even when this does not accord with reality. From the mother’s perspective, it is crucial for her to maintain this position, as if she accepts the alternative, she will need to confront the reality of how she has harmed the child. A child-focused mother would accept that she has harmed her child and assist her in recovering from that harm by promoting her relationship with the father.
312.	So far as the father is concerned, in my view, his sense of having been unjustly treated has played a more significant role in the proceedings than understanding the child’s experience. Dr MM agreed with the proposition that even if the father feels an enormous sense of injustice over what has happened in the past the only way (to assist the child) if he were truly child-focused, would be for him to accept [the doctor’s] recommendations that the child stay living with her mother and not have any contact with him unless it is on the child’s terms and in a safe neutral space. In other words, a child-focused father in his position would make a tactical retreat.
Parental responsibility
313.	Unless the Court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child. In Goode & Goode the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act.  The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly.  On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise. 
314.	Where the Court is to determine parental responsibility, the starting point is section 61DA.  This section 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 child’s parents to have equal shared parental responsibility for the child.  The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
315.	In this matter the ICL and mother seek that sole parental responsibility be allocated to the mother with whom it is proposed under their orders that the child will live. The only exception is in the ICL’s proposal that the mother not hold parental responsibility with respect to the child’s name. The father proposes that the parents share parental responsibility for the child.
316.	In my view, the presumption that it is in the best interests of the child for the parents to equally share parental responsibility is rebutted by evidence that it would not be in the child’s best interests for this to occur. There is no evidence that the parents have any capacity to jointly make any decisions in relation to the care and welfare of the child. They are diametrically opposed to one another and each regard the other parent to have acted seriously to the detriment of the child. The parents do not and cannot communicate with each other and the mother sees no benefit to the father providing any input into the child’s life. In these circumstances, it is not possible for the parents to jointly make decisions as would be required under an order of equal shared parental responsibility. In my view, the only arrangement that would meet the child’s best interests is for parental responsibility to be held by the parent with whom the child lives.
Conclusion 
317.	The thrust of the submissions made on behalf of the father are to the effect that the mother has emotionally abused the child and alienated her from him to the extent that her relationship with him has been destroyed. He has been falsely accused of heinous conduct which has had dire consequences for the child. The father would be justified in a position that it would be unjust for the Court to make the orders sought by the ICL and mother as they would reward the mother for her harmful conduct. However, there has been a consistent line of authority that the “justice” of the case between the parties must be subordinated to the child’s best interests and the Act is clear that the child’s best interests are paramount.
318.	This is a tragic case where the orders proposed by the ICL and mother, which are consistent with the opinion of the expert in the matter, will result in the child being denied of the benefit of a meaningful relationship with her father at the present and on the ICL’s case having a prospect of receiving that benefit in the future. Although this primary consideration is clearly an important one, the other considerations must also be taken into account.
319.	In my view, the likely impact of the change in circumstances upon the child must be given the greatest weight. The parents’ respective capacity is also a particularly significant consideration and the child’s views and the nature of her relationships must also be given due weight. That is not to say that the other considerations are disregarded.
320.	Taking all of the matters into account and giving most weight to those which are of greatest significance in these particular circumstances, I am of the view that the orders proposed by the ICL are in the best interests of the child in this matter.
321.	Accordingly, I make the orders set out at the forefront of these Reasons.

I certify that the preceding three hundred and twenty-one (321) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 30 October 2015.

Associate:  

Date:  30 October 2015