Artur and Mercasa (No. 2)

[2008] FamCA 1084

FAMILY COURT OF AUSTRALIA

ARTUR & MERCASA [2008] FamCA 1084

FAMILY LAW – CHILDREN – Living arrangements – Two girls 7 & 5 – Allegations of sexual abuse – Positive approach to judgment delivery – Positive finding no sexual or emotional abuse – Bitter dispute – Dedicated parents – Shared time and shared care remains viable and in children’s best interests

APPLICANT: Mr Artur

RESPONDENT: Ms Mercasa

INDEPENDENT CHILDREN’S LAWYER: Mary Lonergan

FILE NUMBER: MLC 13531 of 2007

DATE DELIVERED: 31 October 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Jordan J

HEARING DATE: 27-31 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs E A Benjamin

SOLICITOR FOR THE APPLICANT: Gadens Lawyers

COUNSEL FOR THE RESPONDENT: Mr R N Hoult

SOLICITOR FOR THE RESPONDENT: Hartleys Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Mr N.M. Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Victoria Legal Aid

Orders

1. That all extant children’s Orders be discharged.

2. That the parties have equal shared responsibility for the children of the marriage, E born … December 2001 and S born … October 2003 (“ the children ”).

3. That the children spend time and live with each of the parties as follows:

   (a)on a week about arrangement, commencing at the conclusion of school Friday to the conclusion of school the following Friday;

   (b)that the Father have the first week commencing 31 October 2008 and the Mother the week commencing 7 November 2008;

   (c)for half of all school holidays on a week about basis in the same cycle as paragraph (b) above SAVE AND UNLESS agreed to in writing for longer holiday times;

   (d)from 10.00 am to 6.00 pm Mother’s Day and Father’s Day in the event such occasions do not coincide with paragraphs 3(a) and (b) herein; and

   (e)at such further or other times as may be agreed between the parties.

4. That the children spend time with the Father from 12.00 pm 24 December 2008 to 6.00 pm 25 December 2008 and each alternate year thereafter, and the Mother have the children from 6.00 pm 25 December 2008 to 6.00 pm 26 December 2008 and each alternate year thereafter.

5. That the Father and the Mother communicate with the children when not in their care by telephone as follows:

   (a)each Tuesday and Thursday evening, from 4.00 pm to 4.30 pm;

   (b)on any other week night the children may elect to telephone the other parent; and

   (c)the other parent ensure that the children are available during the prescribed telephone periods.

6. That each party keep the other informed of their current residential address and telephone (including mobile telephone) contact details, and notify the other party in the event of any change of those details at least 21 (twenty-one) days prior to any change.

7. That the Father and the Mother be restrained by himself/herself, servants or agents from:

   (a)discussing these or any other Court proceedings involving the Father and/or the Mother with the children or either of them or in the presence or hearing of either of them;

   (b)denigrating the Father and/or the Mother to E and S or either of them in any manner whatsoever;

   (c)allowing any other person to discuss with E and S or either of them these proceedings and discussing these proceedings within their hearing or presence;

   (d)removing the residence of the children or either of them from a radius of 20 (twenty) kilometres from the D area;

   (e)allowing any other person to engage in conduct prohibited by this Order; and

8. That the Mother be restrained by herself, servants or agents from:

   (a)taking E and S or either of them to any medical practitioner, psychologist, social worker, counsellor or family therapist without first obtaining the Father’s approval save for normal childhood ailments when the Mother be allowed to take the children to a General Medical Practitioner;

   (b)removing or transferring E’s enrolment from the S Primary School or S’s enrolment at D Pre-School without first obtaining the Father’s approval;

   (c)discussing these proceedings and the allegations made by her with any parent(s) of the children at the school(s) at which the children may attend from time to time.

9. That the parties deposit with the Registry Manager of the Family Court of Australia at Melbourne any passports of E (female) born … December 2001 and S (female) born … October 2003, and that such passports not be released to the parties without the written consent of both parties at least 30 (thirty) days prior to their release.

10. That if any passport so deposited is issued by a country other than Australia, the Registry Manager must forward to the diplomatic representative of that country in Australia a copy of these Orders, the relevant passport and a request on behalf of the Court that the passport not be released pending further determination of the proceedings before the Court.

11. That the Registry Manager must hold any Australian passport so deposited in safe custody until further order.

IT IS ORDERED UNTIL FURTHER ORDER

1. That both parties be restrained from removing, attempting to remove, or causing or permitting the removal or attempted removal of the children, E (female) born … December 2001 and S (female) born … October 2003, or either of them, from the Commonwealth of Australia.

2. That the Marshal and all Officers of the Australian Federal Police and the Police Officers of the States and Territories are requested and authorised to give effect to these Orders.

IT IS REQUESTED UNTIL FURTHER ORDER

1. That the Australian Federal Police maintain the names of the children on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia.

IT IS ORDERED UNTIL FURTHER ORDER

1. That the Mother, Ms Mercasa, be restrained from renewing the passports of E (female) born … December 2001 and S (female) born … October 2003 upon their expiry or obtaining any additional passport in the said children’s names.

IT IS FURTHER ORDERED

1. That each party additionally permit the children to telephone the parent with whom they are not living at such times as they may reasonably request.

2. That during the school term at the commencement of the parties’ time with the children, changeovers shall occur at the children’s schools, and for other changeovers the Mother shall collect the children at the commencement of her time from the Father and the children shall be collected by the Father from the Mother’s home at the conclusion of her time.

3. That both parties be permitted to attend all such school activities, including parent/teacher interviews, concerts and working bees, at which parents normally attend and in the event the other parent is unaware of such activity, they shall inform the other of same.  Both parties be at liberty to obtain copies of all school reports, newsletters, etc at their own expense.

4. That a communication book be established and exchanged with the children’s changeovers on each occasion, and either party shall note in the said communication book relevant matters pertaining to the children and their care.

5. That E and S or either of them attend upon Dr N for counselling with respect to the effect of the separation of their parents upon them as she may direct, the costs of such counselling to be at the parties’ shared equal expense, and such counselling to conclude as advised by Dr N.

6. That in the event either party is unable to care for the children in excess of 2 (two) days and 2 (two) nights, the children shall be returned to the other parent for the balance of the time the absentee parent is unable to care.

7. That copies of these Orders be provided to:

   (a)S Primary School;

   (b)Victoria Police;

   (c)Department of Human Services; and

   (d)     Dr N.

8. That all previous orders be discharged.

9. That all extant matters be dismissed.

10. That the Independent Children’s Lawyer be dismissed.

11. That pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

12. Certify for Counsel.

IT IS NOTED that publication of this judgment under the pseudonym Artur & Mercasa is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 13531 of 2007

MR ARTUR

Applicant

And

MS MERCASA

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This case has been unique at a number of levels in my experience and it has now evoked from me what will be a unique approach to the judgment delivery process. 

2. I had prepared a detailed judgment which included a comprehensive review of the evidence and of the conduct of each of the parties.  I appreciate that my essential role is to adjudicate upon matters in dispute, to make determinations in relation to those matters and to provide reasons.  I understand that it is not the responsibility of the Court and its Judges to assume some family therapy role. 

3. Having said that, in my view, it is also important in this jurisdiction, above all others, to strive to ensure that justice should be administered without unnecessary rancour and with sensitivity to the dignity of the parties and with an eye to the reality that parents leave proceedings with ongoing mutual obligations and responsibilities to their children.  It is not in the best interests of their children to see their parents carry forward from litigation the burden of gratuitous criticisms. 

4. This hearing has been challenging for all concerned and all but debilitating for the parties themselves.  I do not know if I have previously encountered the rawness of emotions and the depth of feeling displayed in this matter. 

5. The parties give the appearance of being financially and emotionally spent and I cannot imagine that they have any interest in, or capacity to pursue further litigation.  Therefore, hopefully, one of the traditional purposes of extensive reasons does not exist.  I can only hope I do not prove to be mistaken in that regard. 

6. In other respects, I have taken the view that I can both meet my obligations, whilst at the same time give to these parties and their children the best prospects of moving forward and provide the children the best prospects of enjoying positive relations with each of their parents. 

7. I hasten to add that my efforts at a more constructive approach to the decision‑making process have not influenced my findings in the very important issues involved in this case.  Rather, once I reached conclusions with a firm conviction, I have chosen to modify the way I explain my decision. 

8. In a broad sense, the applications of the parties relate to the living and care arrangements for their daughters, E, born in December 2001, and S born in October 2003.  More specifically, at the core of this case, are allegations by the mother that the father has, in the past, sexually abused his daughters and that they remain at risk from him in the future.  The father denies those allegations and contends that the mother has fabricated her claims for her own purposes and has, in the process, exposed the children to emotional and psychological harm. 

9. The allegations in this case are so serious and so fundamental as to really overwhelm any of the other traditional considerations which usually apply in children's matters.  Quite appropriately, counsel for each of the parties and for the Independent Children's Lawyer have conducted this case on a narrow basis, focusing on such matters. 

10. The catalyst to the allegations and this litigation surrounds events occurring on 22 November 2007, and they do require some little explanation.  As I understand it, the family had been on an outing during the day and the girls were complaining of some itchiness around their genital or anal regions.  I gather this was not uncommon, in that the girls did experience some difficulties in that regard.  I should record that the father is a medical practitioner by occupation and a practice had emerged within the family to usually have the father attend to such matters, so that he could ascertain the nature of the problem and provide the girls with appropriate treatment. 

11. On the evening of 22 November, in accordance with that practice, the father took the girls upstairs and, in the process of preparing them for bed, examined E and applied some cream to an inflamed area around her anus.  The mother was downstairs and she heard her daughter screaming.  She rushed upstairs and observed that E was crying and upset.  The child was heard to say to her mother, "Daddy put his finger in my bum and hurt me." 

12. That description is largely common ground between the parties.  The father said that, at that point, he noticed signs of alarm on the mother's face and assumed that she had jumped to the conclusion that he was being charged by his daughter of having abused her.  The father, observing the mother's reaction, said words to the following effect to his daughter, either, "You are a liar.  I didn't do anything to you," or, "[E], don't lie.  I just put cream on your bum."  It appears that the parties then had a discussion, which quickly descended into an argument and the father left the room.  The mother questioned her daughter again and she repeated her assertions. 

13. In his evidence before me, the father provided an explanation.  He says that there is a simple one.  He says that what E described was exactly what she felt.  He says that he did apply cream around her anal area.  He said that, in order to do so, he spread his daughter's cheeks.  He advises that the application of this particular cream can cause initial pain and discomfort.  He says that his interpretation of his daughter's complaint is that, to her, the whole of the bottom including her cheeks is her bum and that, by applying cream with his index finger on the flesh on the inside of the cheeks of her bottom and around the anal region, this would obviously be perceived and described by E in terms of, "Daddy put his finger in my bum and hurt me." 

14. It has been agreed by those conducting the case, and ultimately conceded by the father himself in his evidence before me, that, given the events as they unfolded on that night, it was understandable that the mother may have been concerned about the prospect that what E was describing may have been abusive.  It was further conceded by the father, if she had that concern, it was not unreasonable for the mother to approach the authorities to seek their assistance.  His criticism of the mother is that, notwithstanding subsequently receiving information which should have reassured her, she has persisted with the allegations and, in particular, has compounded the matter by falsely raising a series of escalating assertions designed to further damage him and to achieve her ultimate objective of alienation.  In the circumstances, each of the parents stands charged with most serious allegations before me. 

15. Whether proceeding with this matter on a more formal basis or in the way I am now intending, I do need to simply confirm to the parties that this is a family law case, it is not a criminal case designed to determine the guilt or innocence of the parties, and it certainly is not a case about punishment and retribution.  This is, and remains, a case about the welfare of two young children. 

16. When examining these types of very serious issues, higher Courts have prescribed that trial Judges should be cautious about being drawn into making positive findings one way or another.  In this case, each of the parents levels serious allegations against the other.  I have not been distracted from the task of being cautious about making positive findings to the high standard prescribed simply because of my approach to this matter.  However, in this case, I have come to the view that I am, indeed, able to make positive findings, and in each case I do so with a strong conviction.  In this case, I think it is important for each of the parties and, more importantly, for their children, that I do proceed to make the positive findings I have reached in this case.

17. Firstly, I find that the father in these proceedings did not sexually abuse his daughter, E, on 22 November 2007.  I find that the father has never sexually abused either of his daughters in the ways alleged by the mother, or at all.  I accept his explanation for the events of 22 November 2007 without reservation.  His evidence and presentation before me were compelling. 

18. I have taken account of the concessions properly made by counsel for the mother in that regard and the reasons for it.  I take account of the unusual “no case” submission by counsel for the Independent Children's Lawyer and the basis for those submissions. 

19. I acknowledge the shame and indignity endured by the father having been wrongly accused of such a heinous crime.  I accept that that has been grossly exacerbated by the fact that he is a medical practitioner and the fact that he was exposed to the indignity of arrest in his surgery and the indignity of the subsequent restrictions on his time with his children. 

20. I accept that he has continued to be required to endure and deal with serious and escalating allegations, a process which continued even during the course of this trial.  I understand his anger, frustration and distress which, at times in the past, has apparently reached a point where he has questioned his own capacity to go on.  I understand why he now says he has lost all respect and trust for his wife and I understand why he says to this Court that he is unconcerned about his former wife's future well-being.

21. At the same time and notwithstanding those matters, I observe that he has demonstrated an acknowledgment of the importance of the mother to the future well-being of his children and the need for her to have meaningful involvement in the children's lives, notwithstanding his personal views.  His actions speak louder than words in that, notwithstanding what I have just described, he proposes to this Court that the children should spend at least substantial time with their mother. 

22. I accept at face value his assertions that he has in the past, and will continue in the future to remain encouraging of the prospect that, notwithstanding what has happened between them, it is his hope that the parents should be able to communicate in the future for the benefit of their children and to share responsibility for parenting.  His words and actions in the circumstances of this case, firstly, do him great credit and, secondly, are likely to serve his children well.

23. I now turn to the mother.  She too has been accused of most serious offences against her own children.  I have reached a firm view on the totality of the evidence that, since 22 November 2007, the mother has been burdened by a mistaken, but genuine belief, as to the father's conduct on the night of 22 November 2007 and that she wrongly assumed that it was abusive. 

24. I accept her evidence, which was to the effect that she was confronted with something of a Sophie's choice on that night.  She either had to believe what her daughter was describing, which she thought was abusive, or she had to believe her husband when he said E was lying.  The father's response was impulsive and ultimately compounded the situation.  I take the view that, from that point on, the mother has sought to respond in protective ways and in ways which were heightened by a growing concern that she may have failed to properly protect her daughters in the past.  

25. Thereafter, she has, herself, become enmeshed in a process of reconstruction of past events and has used an overly suspicious eye when viewing equivocal signs.  On all of the evidence, I take the view that she was predisposed to assume the worst after 22 November for a number of reasons, including the complete breakdown in trust between the parties which followed her genuine belief, pre-existing unhappiness in the relationship, different cultural backgrounds, strong religious beliefs, different attitudes to matters sexual and, it could be said, a somewhat narrower view than the husband of what might be regarded as normal or abnormal in adult sexual relations.

1. I conclude that the mother developed a preoccupation which impaired her judgment to the extent that she began to arrive at sometimes increasingly improbable explanations for everyday events.  Those difficulties were compounded further in the background of her genuine belief and determination to protect her daughters by being repeatedly told that there was insufficient evidence for others to act to assist her in her endeavours to protect the children. That, in turn, increased her anxiety and caused her to look for other things which were to cost her former husband dearly.

2. I accept the children have displayed some sexualised play, but it is impossible, in the circumstances of this case, to provide a complete explanation.  However, it follows from my earlier findings that I am satisfied that, whatever is behind the children's presentation, it is not as a consequence of them being victims of sexual abuse. 

3. In this case, it is difficult to know to what degree indeed the mother is, in fact, describing sexualised behaviour at all, given her preoccupation and slanted views on these matters.  However, to the extent that the behaviour is indeed sexual, in my view, it is hardly surprising, given the focus on matters sexual in relation to these children since 22 November 2007.  The environment has included multiple examinations, investigations and living in a home where the mother's anxiety about these matters would not be capable of suppression.

4. I accept that, objectively, some of the mother's behaviour has been harmful to the children and that they would have suffered from it.  However, I conclude that, at all times, the mother has sought to act protectively.  She did so, burdened by the mistaken belief that the father had perpetrated terrible abuse upon their children and she was, thereafter, handicapped by her predisposition and the mire that almost always confronts victims of sexual abuse and their carers. 

5. I specifically reject the notion that the events of 22 November 2007 were used by the mother as part of some premeditated plan to disenfranchise the father.  In other respects, I accept that the mother is a devoted and caring parent, who found herself in the middle of her own nightmare.  Everyone in this case has been greatly harmed by what has unfolded.

6. What of the future?  What can be salvaged from this wreckage?  Can these parents pick up the pieces and manage to recreate a positive future for their children?  We can imagine how difficult that will be, but I am sure it is everyone's hope that they can do so.  In my view, there is reason to be optimistic, notwithstanding the past.  The best evidence in that regard, in my view, are the two children in question.  Despite what they have been through, remarkably, the Court continues to deal with two delightful, generally happy children, who are doing well at school and socially.  Most importantly, despite what their parents have been through, they still have close, loving relations with each of their parents.  In my view, that must say something.  Necessarily, in my view, that is a great credit to the mother and the father.  Despite what they have endured and despite their attitude to one another, it almost necessarily follows, in my view, that they have been sufficiently sensitive to their children's welfare that they have enabled their children to be free to enjoy positive relations with the other parent.

7. Whilst the father's concerns about aspects of the mother's overreactions might be legitimate, I can assure him that my experience in cases where mothers hold a genuine belief about such grave matters, almost invariably include a pre-trial history of never-ending difficulties with contact, of obstruction, denials, refusals and terrorising the children in ways that make them afraid of their father and unable to enjoy proper relations with him.  In this case, the father himself says that the children run to him at the commencement of contact, they embrace him, they are physically affectionate, they have a wonderful time, they are reluctant to leave and they derive great benefit from their time with their father.  Whilst, obviously, that has much to do with the father's treatment of his children, such is their affection and love for him that it is impossible to escape the conclusion that the mother also needs to be given some credit in that regard.

8. In my view, further reason for optimism emerges from what is almost as overwhelming as the height of the emotions of these parents, and that is their shared love of their children.  They each display to me an absolute commitment to the welfare of their children, and my overwhelming impression is that, despite what they have been through, their strength of character, their strength of commitment as parents, their shared dedication to what is in the best interests of their children, is such that it will enable them to move beyond this and to re-focus on their children.  Obviously, damaged or destroyed trust may never be restored, but their shared interests in the welfare of their children make the proposals of the Independent Children's Lawyer and of Dr A viable, notwithstanding the past. 

9. In my view, given the qualities that these parents have, the ideal for these children is to have the opportunity to draw from their parents what they have to offer.  Their parents are different personalities and they will bring to bear different qualities, different experiences, and, in my view, these two children have the best prospects of reaching their full potential and having a happy life if they can receive from their parents, on a shared and largely equal basis, what they have to offer.  If the parents can make that work, and I hope they can, I believe there is every reason to believe that these children will grow to be fine young adults and able to enjoy a happy life. 

10. I wish the parents well and I propose to make orders in terms of the father’s minutes of proposed orders.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date:  12 January 2009