Aloka & Brian

[2021] FamCA 95

FAMILY COURT OF AUSTRALIA

Aloka & Brian [2021] FamCA 95

File number(s):

BRC 9725 of 2015

Judgment of:

BAUMANN J

Date of judgment:

4 March 2021

Catchwords:

FAMILY LAW – CHILDREN – discrete hearing as to the allegation that the father presents as an unacceptable risk of harm to the child by reason of sexual abuse – where the Court finds that the father does not present as an unacceptable risk to the child by reason of sexual abuse.

Legislation:

Family Law Act 1975 (Cth) ss 69ZQ, 69ZR

Family Law Rules 2004 (Cth)

Cases cited:

M & M (1988) 166 CLR 69

Rodelgo & Blaine (2019) FLC 93-897

Stott & Holgar and Anor [2017] FamCAFC 152

Number of paragraphs:

39

Date of hearing:

25-26 February 2021

Place:

Brisbane

Counsel for the Applicant:

Mr G Shoebridge

Solicitor for the Applicant:

MCG Legal

Respondent:

Self-represented

Counsel for the Independent Children's Lawyer:

Ms K Carmody

Solicitor for the Independent Children's Lawyer:

Legal Aid Queensland

ORDERS

BRC 9725 of 2015

BETWEEN:

MR ALOKA

Applicant

AND:

MS BRIAN
Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	4 MARCH 2021

THE COURT ORDERS THAT:

1.That these proceedings remain listed for Interim Hearing at 11.00am on … March 2021 in the Family Court of Australia at Brisbane.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

BAUMANN J:

INTRODUCTION

1. The Applicant father Mr Aloka and the Respondent mother Ms Brian cohabited from February 2008 and separated in June 2015.

2. Their son X was born in 2014 and was therefore less than six months old at the time of separation. After proceedings were commenced in October 2015 by the father there were a number of Court events and Orders. Whilst the child has always lived primarily with the mother the history reveals that despite final Orders made by consent on 13 May 2016 that provided for the child to spend regular day time with the father, overnight time was not to commence until 16 December 2016, when the child turned two years of age.

3. Before overnight time was to commence, the mother filed an Application in effect asserting the child was not “ready” for overnight time at that time and for a further period of nearly two years a number of Orders varied the length and frequency of the child’s day time contact with the father.

4. It was not until after further final Orders were made by Judge Demack (by consent) on 24 August 2018 that X began to commence alternate weekend and overnight time, initially from 10.00am Saturday to 6.00pm Sunday.

5. It is relevant to note that although overnight time had not commenced, since October 2017, the child had spent three days a fortnight with the father, concluding at 7.00pm – and this necessitated the child being fed and bathed by his father, who returned the child to the mother in his pyjamas.

6. After the mother says the child made some comments to her parents and herself commencing on 27 September 2018, the mother says she formed a belief that the father was sexually abusing the child. However that belief, as set out below, seemed to vary at times and overnight time was resumed until around 16 May 2019 when the mother ceased all contact.

7. The father quickly recommenced proceedings, and a Judge of the Federal Circuit Court of Australia made an Order for one hour of supervised time each week on 18 November 2019 based it seems clear on the mother’s assertion the child had been sexually abused. The Applications were transferred to the Family Court of Australia however the continued belief of the mother (and her family) that X was at risk of sexual abuse in the father’s care has caused the Court to act cautiously until the evidence could be properly tested.

8. Such testing took place over two days on 25 and 26 February 2021, when a discrete hearing proceeded before me, having been listed on 5 November 2020. At the time of listing, all parties were legally represented, however the mother’s lawyers withdrew around 9 December 2020. At the discrete hearing, Mr Shoebridge of Counsel appeared for the father; Ms Carmody of Counsel appeared for the Independent Children’s Lawyer (“ICL”) and the mother represented herself.

9. After two days of evidence and hearing final submissions, the Court expressed its finding that the father was not an unacceptable risk to the child by reason of sexual abuse and indicated that Reasons would be published within the next seven days. These are those Reasons.

   THE FINDINGS SOUGHT

10. A discrete hearing was ordered pursuant to the power to do so under the Family Law Act 1975 (Cth) (ss 69ZQ and 69ZR) and the Family Law Rules 2004 (Cth) and as recently considered by the Full Court in Rodelgo & Blaine (2019) FLC 93-897.

11. The father sought a finding that he does not present any unacceptable risk of harm to the child by reason of sexual abuse. The ICL sought the same finding of no unacceptable risk.

12. The mother did not file a case outline however her evidence was to the effect that she believes her son and therefore believes the father did something and is a risk. Her final statement to the Court was “I want to keep X safe”.

13. The parties were the subject of cross-examination as was the father’s current partner Ms B. The father and Ms B are the parents of Y, born in 2020 (now nine months of age). The mother’s parents Mr C Brian and Ms D Brian were cross-examined in person whilst the mother’s current partner Mr E was cross-examined by telephone. The ICL produced a “Tender Bundle” (marked Exhibit 4) and the family report writer Ms F, was not required by the Court for cross-examination. Subsequent to the hearing, and before these Reasons were published, I viewed the s 93A interviews conducted by police of X on 25 October 2018; 14 November 2018 and 31 July 2019. Helpfully, an aide memoire being a partial transcript of the interviews was prepared by the ICL, and tendered as Exhibit 2.

    FACTUAL FINDINGS RELEVANT TO THE ALLEGATION OF UNACCEPTABLE RISK OF SEXUAL ABUSE

14. In circumstances where High Court authority makes it clear that the role of this Court is quite different to that undertaken by a Court exercising criminal jurisdiction (see M & M (1988) 166 CLR 69) I sought to explain to the mother that the Court is not required to determine if a particular act of sexual abuse occurred. However, with the consequences even for a finding of unacceptable risk so serious, the Court is required to carefully analyse and give “real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm” (see Stott & Holgar and Anor [2017] FamCAFC 152 at [34] to [38] and the further authorities mentioned in that discussion of principles).

15. Statements of fact which follow should be construed as findings of fact.

16. Although this cross cultural relationship between the Country G born father (aged 47) and the Australian born mother (aged 33) resulted in a marriage, by separating with some conflict when the child was still a baby, neither party has actually observed the other party parent the child as he got older. That lack of observation coupled with tensions between the mother’s parents and the father which were clear on the evidence, meant that the mother (who lived for much of the time post separation with her parents) was reliant upon and supported by her parents and their beliefs, I find, influenced her beliefs.

17. The history of Orders from separation to at least the Orders of 24 August 2018 reveal a cautious and gradual approach being adopted. There is no suggestion, when the final consent Orders were made that there was any concerns the mother had about the child being at risk in the father’s unsupervised care. It does, in hindsight, appear the mother did still have concerns about whether the child would cope with overnight time. He was almost four years of age, but the mother says the child was at times unsettled and this only got worse when overnight time commenced in early September 2018.

18. Sadly the communication between the parents even in August 2018 was not always effective. What is not in dispute is that continuing since October 2017 the child had been spending:

    (a)each alternate Saturday from 11.00am to 7.00pm and Sunday from 12 noon to 7.00pm; and

    (b)in the off week, on Wednesday from 1.30pm to 7.00pm;

    in the father’s care.

19. Over this period of nearly 10 months, the father says, and I accept, he used his best endeavours to ensure X was showered and put into his pyjamas. In his affidavit filed 8 August 2018, the father expressed at paragraphs 49 to 54 concerns X was expressing to him about:

    (a)being slightly anxious around bath time and that “one of Mr E’s children has pushed his head under the water in the bath”;

    (b)being “dunked” by a big wave after he had been taken on Mr E’s surf board; and

    (c)being increasingly anxious at changeovers and asking “am I going to be going to [my grandparent’s] house, not Mr E’s house” as he expressed to the father his wish to return to his grandparents’ home not the mother’s partner’s home.

20. At that time the father expressed (at paragraph 56) his concern that the mother had “unilaterally relocated to H City to live with Mr E and his four children”.

21. I accept the father’s evidence that he noticed some increased anxiousness in the child and I do not discount that the change in living arrangements undertaken by the mother would be an unsettling change for X who had substantially lived in the home of his grandparents since separation, as an only child.

22. Whilst I understand why the mother was probably less than open with the father about her new relationship and living arrangements, even her father told the police the child lived with them on a 50/50 basis. I accept the grandfather’s statement to police could be interpreted as X being in their home at least 50% of the time. However the mother’s evidence (and that in part of her partner Mr E), is that they have been in a relationship since March 2018 and between that time and September 2019, the mother (often accompanied by X) stayed at Mr E’s house regularly. Mr E has four infant children from two previous marriages, aged 14, 12, 10 and 7 years and X now sleeps in bunks in a room shared with the 10 year old child, when that child is in Mr E’s care.

23. I have provided this history to demonstrate, in my view, the failure by the mother to consider any other factors for the child’s claimed “night terrors” and unsettled behaviour other than the commencement of overnight time with the father. In circumstances where the mother seeks to rely upon her view that X presented in this way because he was sexually abused by the father, I find otherwise.

24. The number of disruptions to the child’s relationship with the father; the apparent ease in which the mother has introduced her new partner and his four children and the loss of stability likely to have been offered in the grandparents’ home are all more likely, in my assessment, to be factors that have contributed to the adjustments X as a very young child has been forced to make.

25. I will now turn to the evidence of disclosures that the mother says found her belief that the child has been sexually abused by the father. In undertaking the following analysis, I do not, at this stage, make a finding that the mother and her parents have “fabricated” the stories told or falsely sworn affidavits. However, as I will now explain, in my assessment many of the comments made are more likely to be representations of a child misinterpreting normal parental practices; or simply bizarre stories or comments simply not plausible; or a misconstruing of certain behaviour in a young, immature way. The following paragraphs do not attempt to deal with every alleged disclosure, but set the scene adequately:

    (a)for nearly 12 months before September 2018, the father, in his household on three occasions a fortnight was returning X to the mother showered, fed and clothed in his pyjamas. No disclosures were made suggesting any inappropriate touching or behaviour of a sexualised nature by the father towards X. Had there been any such concerns, the mother would not have consented to overnight time commencing immediately from the August 2018 Order;

    (b)the disclosure, initially to the grandfather and then the grandmother, caused an immediate overreaction by them, which the mother then adopted. The words said to have been spoken by the child followed this path:

    (i)on observing the grandfather in the shower, the child says: “your wee wee’s like a lollipop”;

    (ii)this comment “horrified” the grandfather who immediately drew a sinister link that, in my view, coloured the following statements;

    (iii)the child then says: “is my wee wee a lollipop”, “Daddy says lick don’t bite” and “Daddy puts chocolate sauce on my wee wee”;

    (iv)the grandfather said to the grandmother “Oh god. Something is going on. X is being abused. I am going to make some calls”;

    (c)as with all the evidence of all disclosures, the context where the disclosure took place; and what (if any) comments or discussion preceded the alleged comment is missing in the affidavits relied upon by the mother and her parents. This adds to the vagueness of the asserted comments. That the affidavits were prepared by a legal practitioner without apparently any reference to these basic contextual facts is disappointing. Although the mother says at time she kept diaries, and after she was given a chance to find them overnight, the mother says they could not be found. My concerns about the lack of context – and who said what to who – only increases when the actions of the grandparents in P City (referred to below) are considered;

    (d)the grandfather called police on 27 September 2018 and also spoke to “J Services” (see Exhibit 4 – Bundle 1). Further complaints were raised with the police who undertook three separate s 93A interviews. The interviews reveal a little boy easily distracted; capable of bizarre disconnected answers to careful questioning by the police officers and who made few clear disclosures with rarely any understandable context. The initial interview caused the police to inform the mother and her family by 31 October 2018 that no police action would be taken. The mother’s evidence suggests she was disappointed the police found insufficient evidence to charge the father;

    (e)the initial s 93A interview shows a little boy unable to keep still and clearly disengaged. Concerningly the interview starts, without prompting, with his comment “Daddy smacks me”. No further disclosures were made and despite questioning for nearly 40 minutes no further disclosures are made;

    (f)as a result of the father’s Application to resume contact, the matter was listed before Judge Turner on 14 November 2018. The mother was required to be in Court on that day. I accept that she instructed her lawyers then appearing for her, to inform Judge Turner that the mother “no longer pressed” her concerns about sexual abuse in the father’s care, and her Honour then dismissed the Application by the father;

    (g)serious questions still exist as to whether the mother intentionally misled the Court on 14 November 2018 and whether at that date she had honestly and genuinely formed the belief that the child was not at risk in the father’s care. Certainly her actions in thereafter returning to the obligations to make the child available to the father suggest a change in her position;

    (h)however, the actions of her parents at that time create some genuine issues of concern. Although, as I will discuss, some of X’s comments seem to become more bizarre after the initial s 93A interview, there is little doubt in my mind that the grandparents felt “something had gone on” in the father’s home and they wanted to prove it. The grandmother at paragraphs 131 to 148 of her affidavit deposes to the trip to P City, and I find that:

    (i)the trip between 7-11 November 2018, whilst possibly planned as a “fun holiday” for X had a more sinister purpose. The trip was to finish three days before the hearing on 14 November 2018 earlier mentioned;

    (ii)in the absence of the maternal grandfather the grandmother says X started disclosing things again. No context is offered for the disclosures set out at paragraph 138. However the grandmother says she “was determined to see what X would continue to disclose to me”;

    (iii)she says on “the spur of the moment” she picked up her phone to “try and have X recorded saying these utterly bizarre and strange things”. The recording has not been produced but, she described the recording she made as “unhelpful”;

    (iv)on the actual day the mother was in Court on 14 November, the grandparents presented the child and the “recording” to police. The police took no action and told the grandmother she obtained answers from X by asking “leading questions” (see Exhibit 4);

    (i)the second s 93A interview on 14 November 2018 shows a slightly less distracted boy for about the first 16 minutes, with the interview taking nearly 60 minutes. Similar to the first interview, almost immediately and in response to a question “where in Queensland is your home”, the child responds “Daddy smacks me”. Thereafter although the child repeats that allegation, he later in the interview (at approximately 26.29) says no one smacks him; he has never been smacked; and when asked directly did “Daddy smack you” he replied that it did not happen “no”. During this interview the child made bizarre statements to the police officer like:

    (i)“we were jumping on the moon” as an answer to a query about Daddy touching his private parts;

    (ii)when asked “where your private parts are” his response was “chocolate cake”;

    (iii)when exploring the grandmother’s allegations about “something” said about vegetables, he said he “don’t even know that” about the “broccoli” and later (at 45.32) after generally saying he did know what happened with vegetables he replied “nope” when asked “did anything happen with broccoli at Daddy’s house”; and

    (iv)despite again saying, out of the blue, as if in some way rehearsed “Daddy smacked my bum” (at 47.53), that had been preceded by constant denials by the child that no one had ever hurt him; no one had touched his private parts – at one stage loudly saying – no!

    (j)the mother and her parents ask the Court to accept that further disclosures were being made when the child’s overnight time with the father resumed and continued to around May 2019. Again little context for how any alleged comments were elicited is provided and, in my view on the evidence I find, with continual questioning of this little boy there is every likelihood his more bizarre comments reflected his desire to keep telling his grandparents and mother (all of whom I accept he loves deeply) something. I simply do not accept that:

    (i)the father put a pineapple up his anus;

    (ii)did a poo or wee on him; and

    (iii)“puts vegetables and food in my bottom to make it look yummy”.

    Other comments like the father “watches me on the toilet” and “looks at my poo in the toilet” seem nothing more than the child’s interpretation of fairly normal parental behaviour as a child goes through toilet training where accidents can happen and directions are required. On this topic, I am not at all satisfied, as the mother asserts, that the father abused the child when he went to the toilet during a supervised visit at K Contact Centre. I accept the father’s evidence that he did assist X at the toilet; the door to the cubicle was always open and that the supervisor Mr Q had a direct line of sight at all times;

    (k)by far the most concerning allegation is that made by the maternal grandmother that the father had raped the child “anally”. The disclosure is said to have been made whilst the child was shopping with the grandmother at N Shopping Centre. The evidence offered by this witness at paragraphs 201 to 213, if said, would be very confronting. The description of the father “rocking backwards and forward” is, I assume, meant to suggest a sexual act of such grossness that it is likely to have caused this little boy serious pain and injury. Yet there is no real evidence of either. It does not appear to have been reported to police until 31 July 2019. The Magellan report suggests they recorded a “child concern” report on 10 July 2019 through the mother’s Notice of Risk filed 4 July 2019 and referred the matter to police. Neither the Department (in respect of disclosures made to them) or the police took any action;

    (l)the last s 93A interview recorded on 31 July 2019 makes no disclosures of anything like this “anal rape”. Again relevantly in my view, without any question or prompting the child says about 90 seconds into the interview “Daddy’s in trouble”. He then makes many allegations of being hit; punching his head; punching his ear; throwing him in the garden; throwing him in the pool; putting a knuckle in his mouth but also makes statements such as; “we were playing a game”; “fun at Daddy’s”; “not really mean” and that Mummy “didn’t do anything to me” but he “feels safe at Daddy’s home”. My observation of X in this recording, some eight months after the first two interviews, is of a child more clearly spoken and much less distracted during the session that took just over 17 minutes; and

    (m)the mother seeks to rely upon some alleged disclosures made by the child to a psychologist Ms M and exchanges between Ms M and J Services. The ICL has tendered some records (see Exhibit 4 – Bundle 3) however there has been no way to test any opinions held by the psychologist, who clearly was engaged by the mother (and maternal grandmother) via a mental health plan prescribed on 4 March 2019. Ms M gave no evidence. Furthermore the notes offered at the commencement of the consultations (prepared by the maternal grandmother – who showed some reluctance under cross-examination before finally admitting it was her statement), was based on the clear belief that X had been sexually abused by the father. The grandmother’s frustration in not apparently being able to satisfy the Queensland Police, the Australian Federal Police, doctors, the Court or the Department about the abuse is clear from her five page statement, which ends with the comment: “I felt completely defeated”.

    DISCUSSION

1. It is accepted that young children of the age of X find it challenging to give clear context to some life events. This can lead to them being confused and to give responses which make no sense.

2. Any parent is entitled to be initially concerned when words are spoken which might suggest a child has been hurt or touched inappropriately. However, as a sensible and logical adult, a person is required to also apply a filter at times to words spoken and to reality test a comment by children. That adult should have a better capacity to understand time, place and opportunity.

3. In my assessment the initial statements made by X were more likely to be the innocent comments of a young boy – seeing his grandfather’s penis and connecting it with a “lollipop”. That his father may have told him that you lick a lollipop not bite it raises no immediate concerns.

4. However from that comment the overreaction of the mother and her parents began and has continued. The allegations – I find within the context of further questioning not only in P City but generally – caused this child to make even more bizarre statements. The mother says some were clearly “implausible” but, under cross-examination she found it difficult to accept some statements as “implausible”. In my assessment this difficulty arises from the belief the mother holds, supported by her mother in particular, that X has been abused by the father.

5. The constant response, when challenged as to any other evidence she had to support the allegations being true, was simply – “I believe my son” – as if not “believing” him was inconsistent with good parenting.

6. Many of the statements attributed to the child, coupled with many of the answers given to the police over three separate s 93A interviews, are bizarre and implausible and likely to be his young imagination running wild. Because I am satisfied he has been the subject of significant questioning in the mother’s household, it is likely his later statements have been contaminated by this questioning and an expectation by him to provide more statements.

7. The mother does not suggest, during the course of the parties’ relationship of nearly eight years as an intact couple, that the father had ever demonstrated unusual sexual practices or interests. During the nearly 12 months of regular bathing the child, no concerns were raised by the mother of a sexual nature. I have earlier identified the number of changes in this child’s environment that could have contributed to the mother observing the child being unsettled and/or experiencing night terrors. It is hardly also unusual for a child to be scared of the dark.

8. The Counsel for the father Mr Shoebridge submitted that I should hold “reservations” about the evidence given by the mother and maternal grandparents. I do on the topic of sexual abuse occurring in the father’s care. In this respect, I find the evidence of both the father’s partner Ms B and the mother’s partner believable – although understandably they supported the position adopted by their partner.

9. It is also proper to record that the father has consistently denied any inappropriate behaviour, both to the police and in many affidavits filed. He offered himself for cross-examination and was both consistent and plausible on these assertions.

10. In all respects, on this now tested evidence, I make a finding that the father does not pose an unacceptable risk to the child X by reason of sexual abuse.

    WHAT HAPPENS NEXT?

11. I indicated to the parties that the matter would be listed before me at 11.00am on 29 March 2021 for an interim determination as to what orders should be made in the best interests of X for at least the next six months. I am mindful that the Queensland school holidays commence on 1 April 2021 and I would expect discussions facilitated by the ICL Ms Smerdon about the interim orders to include some consideration of school holidays, Mother’s Day and Father’s Day at least.

12. Neither Mr Shoebridge or Ms Carmody sensibly sought a finding, at this stage, that the mother had “fabricated” the words said to be made by the child or that I should find the mother has shown she is unable to support and facilitate the child’s relationship with the father. That may be an issue which the father seeks to contend for at any future trial, if a trial is necessary, based on the line of questioning in cross-examination. I make no such finding at this stage.

13. In that regard, I am mindful that these parents (with the assistance of legal advisors), have in the past been able to reach final consent orders on at least two occasions. It may be, now that this overarching issue has been determined, that they are able to negotiate some sustainable long term orders which are in the best interests of the child. Both parents have re-partnered (they say happily), and X has a sibling Y who he is entitled to get to know better than has occurred to date. I do not ignore also the growing relationship X has formed with the parents new partners and their children from earlier relationships.

14. X is in no sense “under loved”, but whether with the painful history of this matter it is possible for the father and mother to develop a more trusting and communicative relationship for X, only time will tell. They are, I assess, capable of doing so.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.

Associate:

Dated:       4 March 2021