B and S

FEDERAL MAGISTRATES OF AUSTRALIA

B & S [2001] FMCA fam 112

CHILDREN – Contact – Alleged sexual abuse – Mother’s belief in abuse – Section 60B Family Law Act 1975.

Re David (1997) 92-776
Sedgley & Sedgley (1995) FLC 92623
Irvine & Irvine (1995) FLC 92624
Re Andrew 1996 FLC 92692

Applicant:

E M B

Respondent:

S A S

File No:

ZH2174 of 2001

Delivered on:

9 August 2001

Delivered at:

Devonport

Hearing Date:

26, 27 & 28 June 2001

Judgment of:

Roberts FM

REPRESENTATION

Counsel for the Applicant:

Mr. Barclay

Solicitors for the Applicant:

Temple-smith Barclay

Counsel for the Respondent:

Ms. Rofe with Ms. Turner

Solicitors for the Respondent:

Legal Aid Commission of Tasmania

Counsel for Child Representative: Mr. McVeity

Solicitors Child Representative: McVeity & Associates

ORDERS

That Order No. 1 of the Orders of this Court made 12 April 2001 be and is hereby discharged.
That the Orders of the Family Court of Australia of 6 July 1999 be and are hereby discharged.
That the child S R S born 6 September 1997 (“the child”) reside with
E M B (“the mother”).
That the mother have responsibility for the day to day care, welfare and development of the child.
That the parties share responsibility for the long term care, welfare and development of the child.
That S A S (“the father”) have contact with the child as follows:
b)Each alternate weekend from Friday at 5.00 p.m. until Sunday at 5.00 p.m. commencing on Friday 24 July 2001.
c)On the child’s birthday for a period of three hours from 4.00 p.m. to 7.00 p.m.
d)On Father’s Day if that occurs on a non-contact weekend from 10.00 a.m. until 5.00 p.m.
e)From 3.00 p.m. on 25 December until 3.00 p.m. on 26 December in 2001 and in alternate years thereafter
f)From 3.00 p.m. on 24 December until 3.00 p.m. on 25 December in 2002 and in alternate years thereafter
g)Commencing in 2002 and in alternate years thereafter from 10.00 a.m. on Good Friday until 5.00 p.m. on Easter Monday
That in the event that Mother’s Day falls on a contact weekend provided for in sub paragraph (a) of Order No. 6 hereof such contact will end at 10.00 a.m. on the Sunday of that weekend.
That the collection and return of the child in relation to all contact hereby ordered shall take place at the Burnie Police Station.
That save as to costs all extant applications be otherwise dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DEVONPORT

ZH2174 of 2001

E M B

Applicant

And

S A S

Respondent

REASONS FOR JUDGMENT

Applications and previous orders

The parties in this matter are E M B (“the mother”) and S A S (“the father”).
On 6 July 1999 orders were made by the consent of the parties in the Family Court of Australia which provided for the parties’ child S R S born 6 September 1997 (“the child”) to reside with the mother. By the same orders, the father was to have contact with the child for a period of six months for two weekends out of every three from Saturday at 10.00 a.m. until Sunday at 5.00 p.m. and commencing on 21 January 2000 each alternate weekend from Friday at 5.00 p.m. until Sunday at 6.00 p.m. In addition, provision was made for him to have contact with the child on special occasions such as Father’s Day, Easter, Christmas and the child’s birthday.
On 8 March 2001 the mother filed an application seeking orders that the father have no contact. That application included an interim application and on 12 April 2001, I made orders which, inter alia, suspended the father’s contact with the child. Those Orders were made on the basis of the papers before me at the time and not upon any findings in relation to disputed facts.
The father has filed a Response seeking that the mother’s application be dismissed and seeking additional contact.
The applications for final orders came on for hearing before me on 26, 27 and 28 June 2001.

The evidence

The mother swore an affidavit on 8 June 2001, which also incorporated an affidavit which she had sworn on 7 March 2001. She was cross-examined.
The mother was supported by her own mother, V M R (“the maternal grandmother”) who swore an affidavit on 8 June 2001 which also incorporated her earlier affidavit sworn 7 March 2001. The maternal grandmother was also cross-examined.
The father swore an affidavit on 12 June 2001, which incorporated his earlier affidavit sworn 3 April 2001. He was cross-examined.
The father’s mother, N S (“the paternal grandmother”) swore an affidavit on 12 June 2001. She was cross-examined.
The father’s fiance, K M S also swore an affidavit. However, it was discovered that she was not yet eighteen years old and permission was sought for her to reswear that affidavit and give evidence. I granted that permission and made appropriate orders allowing her to give that evidence and be cross-examined.

The issues

The mother’s case can be summarised as follows:
b)That the father does not have the capacity to care for the child properly because of:
i)The alleged sexual abuse of the child;
ii)Verbal and physical abuse of the mother;
iii)Lack of experience.
c)The mother’s alleged belief that the father has sexually abused the child and the consequent effect upon her own capacity to parent the child.
In relation to the alleged sexual abuse of the child, the evidence of the mother and the maternal grandmother can be summarised as follows:
a)In or about the beginning of 2001 after the father had been exercising unsupervised contact to the child for about six months, the child came home and said that her father had been playing with her “fan fan”, which is the name used by them for the child’s vagina. (I should say at this point that although the mother states that it is a name used for the child’s vagina, it seems more likely that they generally mean her “private parts”.)
b)Shortly after that incident the mother went to the child’s bedroom and found her under a chair with her pants down in a pool of urine. She was also concerned at that time that the child was doing strange things such as “weeing around or on the toilet as opposed to in it and putting toilet paper in her underpants.”
c)For approximately the next six months the child made regular disclosures that her father had been touching her “fan fan”.
d)On 17 February 2001 while the maternal grandmother was reading to the child, the child indicated that her father had been touching her “fan fan”.
e)On 18 February 2001 the child made a disclosure to the maternal grandmother to the effect “Daddy touched my bum, he then touched my “fan fan” and put his finger up there and made a hole”.
f)On approximately 24 March 2001 the child told the mother that the paternal grandmother “was putting clothes away and she seen Daddy play with my “fan fan” and she whacked him and kicked him and told him not to do that to my little girl”.
After hearing all the evidence and perusing the file from the Department of Community and Health Services (Children’s Protective Services) that was produced pursuant to Subpoena, I am of the view that the allegation of sexual abuse on the part of the father has been blown out of all proportion. The child may well have told her mother that her father had touched her in her genital area. However, I am sure that it was an innocent remark that was immediately taken out of context by the mother. I am also sure that this has been repeated by the mother and the maternal grandmother so often in front of the child that she is now saying what they expect to hear. During the hearing, I commented that I had gained the impression that the child was now playing to her audience. I still hold that very clear impression.
The mother is extremely bitter about the father and I have no doubt that she would prefer to have him out of her life completely. She has now married and I am sure that she feels that in her husband she has found a far more appropriate father figure for her child.
I am surprised that the mother did not have her husband give any evidence on her behalf.
The mother’s solicitors wrote to the Department of Community & Health Services to ask about progress of the Department’s enquiries into this matter. That letter was sent on 6 April 2001. On 11 April 2001 the Department’s solicitor wrote to the mother’s solicitor stating that the allegations concerning sexual abuse of the child were inconclusive and the Department did not intend to take any action or commence any proceedings concerning the child. The solicitor did point out that the Department was concerned about the emotional effects upon the child of continuing allegations of sexual abuse. I am also concerned about that.
Although Re David (1997) 92-776 has more extreme facts, the mother could learn some lessons from a reading of that case.
The mother says that she believes that the child’s “disclosures” in relation to sexual abuse are true and she says at paragraph 13 of her trial affidavit that she believes that the father has done what the child says “because I believe he is capable of doing these things, from the way he treated me during our relationship”.
She then details over the next twenty five paragraphs of her affidavit allegations of physical abuse, verbal abuse, sexual abuse and general controlling behaviour, which was generally denied by the father.
I was not impressed by those allegations and I am of the view that the mother has exaggerated the father’s behaviour towards her in order to improve her case.
It is also of particular significance that all these alleged incidents occurred before the mother consented to the Orders of 6 July 1999.
I found the father’s own mother to be a reliable witness and I believe her evidence that there was virtually no opportunity for the father to have perpetrated any sexual abuse against the child. Further, I accept her evidence that the alleged incident referred to in paragraph 12(f) of these reasons did not occur. I accept her evidence that she would not have been helping and supporting her son if anything like that had occurred.
Although the maternal grandmother produced an exercise book that purported to be a diary of occurrences in relation to contact, I was not greatly helped by that document. In the main, it was self-serving and in parts entries for a particular date were written in as many as three different coloured pens. I therefore find it hard to believe that the diary is a contemporaneous record of events.
I am unimpressed by the mother’s argument that the father lacks a capacity to care for the child because of a general lack of experience in the past. If that argument was taken to its logical conclusion, a parent with little or no experience in parenting would never be granted contact because the parent would never be able to gain the necessary experience. However, in this case, I accept the evidence of the father’s own mother who states that he relates well to the child and to the children and stepchildren of his siblings.
It is also part of the mother’s case that the mother’s belief in the father’s sexual abuse of the child effects her own capacity to parent the child. In this regard, I was referred to the decisions in Sedgley & Sedgley (1995) FLC 92623, Irvine & Irvine (1995) FLC 92624 and Re Andrew (1996) FLC 92692.
It is clear however, that the evidence does not support this. The mother was questioned skilfully by the Child Representative in relation to this and it is clear that there is no evidence of any stress upon the mother affecting her ability to care for the child. I accept the submission of the Child Representative that the mother’s argument in this regard is not sustainable.
The mother also raises a concern that the father “continues to go with young girls”. Given the allegation of sexual abuse, this is clearly a concern that must be explored.
When the father and the mother first met, he was eighteen years old and she was fourteen years old. Certainly she was young at the time, but so was he.
He is now twenty-five years old and he has just become engaged to marry a young lady who is only sixteen years old. (Refer to paragraph 10 of these reasons). The father’s fiancee gave evidence and she was cross-examined. Although she is clearly quite young, she impresses as being mature beyond her years. She has two brothers aged eleven years and ten years, and a sister aged six years. I accept her evidence that she is actively involved in supporting her father in the care of those siblings.
Although she has only met the child in this case briefly on one occasion, I am sure that she will act appropriately and she will assist the father in his care of the child when he has contact.
A principle enshrined in Section 60B of the Family Law Act 1975 is that children have a right of contact, on a regular basis, with both their parents “except when it is or would be contrary to a child’s best interests”.
The Child Representative submitted that I would need to make a finding that it was not in the best interests of the child in this case for that principle not to apply. Given the above, I can make no such finding. Indeed, I find that the child’s interests will be better served by contact resuming as soon as possible. The child is currently being deprived of the positive experience of contact with the father and his wider family and I can see no reason why that deprivation should continue.
Further, I agree with the submission of the Child Representative that there is no need for any supervision of contact.
The father is seeking an increase in contact over and above that provided for in the Orders of 6 July 1999. I do not find that he has made out a case that supports an increase at this stage. However, that does not preclude his contact with the child being increased at some stage in the future.
For convenience, I will discharge the Orders of 6 July 1999 and remake orders in similar terms.

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

Associate:

Date: 9^th August, 2001

[2001] FMCAfam 112

8 October 2001