Allery & Florence (No 2)

[2021] FCCA 1662

FEDERAL CIRCUIT COURT OF AUSTRALIA

Allery & Florence (No 2) [2021] FCCA 1662

File number:	DNC 479 of 2018
Judgment of:	JUDGE YOUNG
Date of judgment:	27 May 2021
Catchwords:	FAMILY LAW – parenting – concerning two children who are ten and eight years old – whether the children are at an unacceptable risk of harm in the mother’s care – where the Court previously made orders suspending the children’s time with the father due to allegations the father sexually assaulted the child – where there is no evidence the child was sexually assaulted by the father – where it appears the allegations made by the child were engendered or manipulated by the mother – Court satisfied the children are at an unacceptable risk of harm in the mother’s care.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	19
Date of hearing:	27 May 2021
Place:	Adelaide
Solicitor for the Applicant:	Ms Holtham of Story & Associates
Solicitor for the Respondent:	Ms Bowen of Bowen Lawyers
Solicitor for the Independent Children's Lawyer:	Ms Palavra of Northern Territory Legal Aid Commission

ORDERS

DNC 479 of 2018
BETWEEN:	MR ALLERY Applicant
AND:	MS FLORENCE Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	27 MAY 2021

THE COURT ORDERS THAT:

1.That the Orders at paragraphs 5 – 8 of the Orders made on 3 July 2020 be suspended.

2.That the children X born 2011 and Y born 2012 (“the children”) live with the father.

3.The parties are to forthwith:

(a)contact Contact Centre D to arrange an appointment for assessment for suitability for supervised time;

(b)attend the assessment;

(c)comply with any appointments made by the Contact Centre for supervised time;

(d)comply with all reasonable rules of the Contact Centre; and

(e)comply with all reasonable requests or directions of the staff of the Contact Centre, including any request to vary times and/or location.

4.Upon acceptance into Contact Centre D, the children are to spend supervised time with the mother at the Contact Centre on dates and times to be nominated by the Contact Centre.

5.That pursuant to the recommendation of Ms E contained in the excerpt of her Investigation and Assessment Report the mother and father engage with the Territory Families, Housing and Communities Strengthening Families programme for ongoing intervention and safety planning in order to ensure the children’s safety, care, welfare and developmental needs are met.

6.Pursuant to section 69ZW of the Family Law Act 1975 the Department of Territory Families, Housing and Communities provide the Court with the following documents or information from 7 May 2021 to the date of the finalisation of Territory Families, Housing and Communities investigation and assessment of the current open case:

(a)copies of any notifications regarding abuse allegations arising or relating to the children X born 2011 and Y born 2012;

(b)any assessments or investigations into such abuse allegations;

(c)the outcome or findings of any such assessments and investigations; and

(d)copies of any reports received by Department for Child Protection (Territory Families) in the course of investigating any such notifications.

7.That neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the (Department for Child Protection SA) (Territory Families, Housing and Communities) without the Courts leave.

8.That copies of the Psychological Assessment Report of the mother and the Family Report be provided to the Territory Families, Housing and Communities by the Independent Children’s Lawyer.

9.That the listing of this matter in the trial call-over list on 1 October 2021 at 2:15pm be vacated.

10.That the proceedings are adjourned to the trial call-over list on 6 December 2021 at 11:00am.

11.The parties no less than seven (7) days prior to the call-over date provide to the Court:

(a)A brief Summary of Argument including Minute of Orders sought; and

(b)A Trial plan indicating estimated length of trial sought and witnesses relied upon at trial

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Allery & Florence (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is a parenting matter concerning two children:  X, who is ten years old and Y, who is eight years old.  In 2018, the father commenced proceedings in this Court following concerns raised by Territory Families that the children were at risk of emotional harm in their mother’s care. 

2. The particular circumstance that gave rise to that concern is one that is dealt with in the affidavit material. The mother alleged, in about April 2018, that she had observed her father, Mr F, acting strangely with X.  X, at that stage, would have been approximately eight years old.  The mother said that the maternal grandfather was with X and X only had a t-shirt on and was not wearing any underwear. The mother said X later disclosed to her that Mr F had been taking photographs on his phone of her genitals.  That resulted in a report to police and the police investigated that matter.  The outcome was that the police found no evidence of photographs on Mr F’s phone and he denied any inappropriate behaviour.  The mother had said that Mr F had the opportunity to delete the photographs from his phone.  That issue was not particularly explored further than that, however, it is noted that the police found no evidence of wrongdoing. 

3. It is of very considerable significance that Mr F was sentenced in December 1987 to a lengthy period of imprisonment in relation to two counts under the Criminal Code of carnal knowledge of the mother in this proceeding. The mother was then 12 years old. I have been referred to the remarks of the Northern Territory Court of Criminal Appeal which dealt with an appeal against sentence by Mr F.

4. The background circumstances described by the Court of Criminal Appeal are of two shocking instances of rape of a child.  It is not in question that the mother was the victim of extremely serious crimes at the hands of her own father. This is a case about whether X and Y are at risk of harm in their mother’s care. One of the questions that arises in this case is why, having a regard to the circumstances, it could be imagined that any child was safe in the presence of Mr F. I give that as background because it becomes relevant to what followed. 

5. Territory Families were concerned about the truth of the allegations and were concerned that the allegation relating to X may have been false. Territory Families were concerned that the children were at risk of emotional harm from their mother by reason of false claims.  That issue is at the heart of this matter. 

6. Soon after the proceeding was filed, the parties agreed on consent orders that saw the children live with the mother and the mother relocate to Town G.  If the father relocated to Town G, the children would then spend equal time with the parents.  Effectively, what has happened is that until March of this year the children lived in an equal care arrangement with the parties. 

7. On 15 March 2021, the mother made an application to the Court that the time arrangements under the 2018 orders be suspended and that the children live with her.  She did so on the basis of an allegation that X had disclosed to a gynaecologist, Dr B (or B, the spelling is inconsistent throughout the affidavit material), on 12 March 2021 that she had been sexually assaulted by the father.  I will read the relevant paragraph of the mother’s affidavit:

   During the appointment, X said words to the effect of: “I think Dad is doing something to me.”  Dr B deemed it appropriate to report the matter to the police, SARC and Territory Families for investigation.  Dr B provided urgent referral for X to attend with a specialist paediatrician at Sexual Assault Referral Centre for forensic examination due to X’s disclosure of vaginal bleeding.

8. I should add that the claim that saw X attending on Dr B in the first instance was a claim that while X was in the father’s care she experienced vaginal bleeding.  Following Dr B’s examination of X he said that he did not detect any blood; he detected no abnormality. He said, as the child was prepubertal, it could not be explained by menstruation.  It appears that there is no evidence of vaginal bleeding at all. 

9. These events led to an examination of the child at the Sexual Assault Referral Centre.  As I understand it, the examination involved an internal examination of the child with a view to obtain any evidence of sexual assault.  The materials make it clear that there was no evidence of sexual assault found.

10. That, in turn, led to a child forensic interview of X on 21 April 2021 conducted by a specialist police unit – the Child Abuse Task Force.  I will not read the entirety of the report, but the conclusion following the child forensic investigation was that there was no evidence that the child had been sexually assaulted by the father or anyone else.  The police officer who prepared the report of some three and a half pages referred to a number of very concerning issues.  They were that the child’s narrative of events was internally inconsistent, vague, and inconsistent with the general presentation that might be expected of a child who had been the victim of sexual assault. There were also other clear indications that the child was fabricating, at least aspects of the story, if not the entirety of it.  The investigating officer did not believe the child.

11. That, in turn, led to the preparation of a report by Territory Families. It is a lengthy report. I do not propose to repeat it in its entirety. However, in short, Territory Families found that both X and Y had experienced “cumulative emotional harm” and that the mother was responsible for this. Territory Families also found that the mother constituted a “continuing significant risk to the child”.  Various recommendations were made that there be a continuing intervention by Territory Families in the Strengthening Families Program and there be a safety network and comprehensive safety planning.  Various other steps were recommended as well. 

12. I asked Ms Holtham, counsel for the father, to point to any evidence that demonstrated that the allegations made by X were manipulated or engendered by the mother or in any other way a product of the mother’s behaviour rather than being genuine.  Counsel pointed to numerous pieces of evidence.  One was at page 17 of the materials annexed to Ms Holtham’s affidavit filed on 5 May 2021. It was reported in the Territory Families inquiry that X’s school principal had stated that:

    X recently made comment that her dad touched her below and that she didn’t want to stay with her dad anymore – she also said that her mum told me to tell me.

    That reference to “me” being, of course, to the principal.  Unfortunately, the date of the report is unclear from the materials before me. Counsel also pointed to some further material from the child forensic interview where the mother is quoted as saying, “If this…” – and I interpolate “this” to mean the allegation – “is not true, then I won’t be happy;  I think something is going on there.”  Ms Holtham also pointed to the affidavit filed by the mother on 15 March 2021, in support of her application. I read the relevant paragraph above. 

13. A further affidavit was filed by the mother on 13 April 2021. This followed the production of materials from Dr B which made it clear that X had said nothing directly to Dr B about her father. What was said by the mother in the affidavit filed on 13 April 2021 was a quite different story.  Paragraph 3 of the mother’s affidavit states:

    I took X to the gynaecologist (Dr B) to check her for the bleeding.  During the consultation, Dr B asked me to wait outside with X whilst he called the paediatrician to make an urgent appointment for X.  When I was waiting with X outside she told me, “I think Dad is doing things to me.”  When Dr B called us back into his surgery, I told him what X had said to me. 

    The paragraph continues.  By that stage the doctor’s notes had been produced and it was clear from the note that X said nothing directly to Dr B rather that the remark was made by the mother claiming that X had said words to that effect. 

14. In my view, there is a serious inconsistency between those two affidavits.  If it were, for example, the case that the solicitor preparing the affidavits had made an error in recording her instructions, I would have expected that error to have been referred to in the second affidavit.  However, the second affidavit is silent.  In my view, the two statements are inconsistent.  Ms Bowen, counsel for the mother, tried to reconcile them by simply saying that it was true, in the first affidavit, that during the appointment X had said those words to the mother. I do not accept that submission.  In my view, the ordinary interpretation of the first affidavit is that X said the words during the appointment to the doctor. 

15. Ms Holtham points to those matters and says there has to be a very serious suspicion that the mother has engendered false complaints by X.  Ms Holtham says her lack of frankness in applying to the Court reinforces that suspicion.  I accept those submissions. 

16. The circumstances of this case are that there is a strong suspicion of the mother engendering false complaints of sexual assault against the father, the mother’s lack of frankness in seeking an urgent suspension of orders before this Court and the conclusions of Territory Families that both children were at risk in the mother’s care. Both the Independent Children’s Lawyer and Ms Holtham, for the father, submit that, in all the circumstances it leads inexorably to the inference that there is an unacceptable risk of emotional harm to the children remaining in the mother’s care by reason of the engendered or manipulated complaints of sexual assault against the father. It was further submitted that this unacceptable risk of harm exists in all circumstances other than formally supervised circumstances. 

17. I accept those submissions and I propose to make the orders as presently sought by the Independent Children’s Lawyer. These orders provide for the suspension of the current orders, an order for the children to live with the father until further order, an order that the children will spend supervised time with the mother at a Children’s Contact Centre at times and on conditions as may be acceptable to the Children’s Contact Centre, and that, otherwise, the mother and the father engage in the processes of counselling, and psychological assessment. 

18. I also propose to make an order for a Family Report to be released on a date to be advised. 

19. I propose to put the matter into trial callover on 6 December 2021 at 11:00am.  I have not dealt with this issue, however, I am satisfied that, having regard to all of these matters, it may be the case that there would be a change in the current orders and the parenting arrangements for these children.  When I say “the current arrangements”, I mean the operative final orders which were made in 2018 and provide for equal shared care.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       21 July 2021