Banks and Loffler
[2018] FamCA 62
•12 February 2018
FAMILY COURT OF AUSTRALIA
| BANKS & LOFFLER | [2018] FamCA 62 |
| FAMILY LAW – CHILDREN – With whom a child lives with and spends time – Where there are allegations of family violence and sexual assault and abuse – Where the mother asserts that the father poses an unacceptable risk to the parties’ child – Where the father has not spent any time with the child in over a year – Where the mother will not permit the child to see the father – Whether the father poses an unacceptable risk to the child – Where there is insufficient evidence as to whether the father assaulted the parties’ child – Where there are allegations that the father assaulted the mother’s child of a previous marriage – Whether the father should spend time with the parties’ child – Where the Independent Children’s Lawyer supports the proposition that the mother have sole parental responsibility for the child – Where the parties agree that shared parental responsibility is untenable |
| Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(2A), 60CC(3), 69ZT | |
| Baglio & Baglio (2013) FamCA 105 Briginshaw v Briginshaw [1938] HCA 34 Cotton & Cotton (1983) FLC 91-330 Dennison & Wang [2010] FamCAFC 182 Loddington & Derringford (No 2) [2008] FamCA 925 Mazorski v Albright [2007] FamCA 520 S & R (1999) FLC 92-834 Sampson & Sampson (1977) FLC 90-253 Sawant & Karanth [2014] FamCAFC 235 Sigley & Evor [2011] FamCAFC 22 | |
| APPLICANT: | Mr Banks |
| RESPONDENT: | Ms Loffler |
| INDEPENDENT CHILDREN’S LAWYER: | Brendan Bowler |
| FILE NUMBER: | ADC | 2014 | of | 2014 |
| DATE DELIVERED: | 12 February 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 22 - 26, 29 - 30 May 2017, 5 - 7 July 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: |
| SOLICITOR FOR THE APPLICANT: | Litigant in Person |
| COUNSEL FOR THE RESPONDENT: | Mr Lindsay |
| SOLICITOR FOR THE RESPONDENT: | SE Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Cocks |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Hume Taylor & Co |
Orders
That the mother have sole parental responsibility for B born … 2011 (“the child”).
That the said child live with the mother.
That the mother:-
(a)provide the father with a copy of each of the child’s school and kindergarten reports within seven (7) days of receipt of same;
(b)provide an appropriate authority to the child’s school to enable the father to contact the school directly and to obtain such information as may be reasonably available in respect of the child;
(c)advise the father as soon as applicable and in any event within twenty four (24) hours of the child:-
(i)being diagnosed with a serious or ongoing medical condition;
(ii)suffering an injury or condition requiring hospitalisation;
(d)provide the father with a current photograph of the child at least once in each six (6) month period with the photograph to be an original colour photograph which clearly depicts the child’s head and face;
(e) keep the father informed of the address at which the child resides.
That the father keep the mother informed of his address and contact details.
That the mother provide details of any medical practitioner, health professional, counsellor, therapist or allied health professional (“the practitioner”) to which the child attends and shall authorise the said practitioner to provide the father with all information pertaining to the child as may be reasonably requested by him at his sole expense.
That the father be permitted to forward gifts and correspondence to the child to coincide with his birthday and Christmas and that the mother will ensure that any correspondence and gift are given to the child, with the child to be informed that any such correspondence and gift have been provided by the father.
That upon the child reaching ten (10) years of age and should the child thereafter seek to communicate or make contact with the father or shall express any wish to see the father THEN the mother shall forthwith contact the father and advise him of such request.
That the appointment of the Independent Children’s Lawyer be discharged.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Banks & Loffler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 2014 of 2014
| Mr Banks |
Applicant
And
| Ms Loffler |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Mr Banks (“The father”) and Ms Loffler (“the mother”) are the parents of B (“the child”) born in 2011. The proceedings relate to the parental responsibility of the child and time spent between the child and the father.
By Amended Initiating Application filed 14 February 2017, the father seeks orders for equal shared parental responsibility. Additionally, the father seeks that the child live with the mother and spend time with him each alternate weekend until the commencement of school the following Monday and for half of the school holidays. He otherwise seeks orders that he be notified of any medical emergency relating to the child, any change of the child’s residential address and an injunction restraining the mother form denigrating the father or discussing legal proceedings in the child’s presence.
The mother filed an Amended Response on 26 April 2017 seeking sole parental responsibility for the child and that the child live with the mother. Notably, she sought no orders for the child to spend time with the father.
During the proceedings, the father conceded that shared parental responsibility was untenable and ultimately that the parent with whom the child lives shall have sole parental responsibility.
The mother is totally opposed to the father spending any time with the child. She believes that the father sexually interfered with her daughter, C, and the child during the parties’ relationship and poses an unacceptable risk to the child.
The documents relied upon by the father:-
a)Amended Initiating Application filed 14 February 2017;
b)Trial affidavit filed 27 February 2017;
c)Affidavit filed 11 May 2017;
d)Affidavit filed 19 May 2017;
e)Affidavit of Ms Wills (“paternal grandmother”) filed 20 February 2017;
f)Case outline filed 19 May 2017.
The documents relied upon by the mother:-
a)Amended Response to Initiating Application filed 26 April 2017;
b)Trial affidavit filed 26 April 2017;
c)Affidavit filed 5 September 2014;
d)Affidavit filed 11 December 2014;
e)Affidavit filed 10 August 2015;
f)Affidavit of Ms I filed 4 October 2016.
The documents relied upon by the Independent Children’s Lawyer (“ICL”):-
a)Trial Affidavit filed 9 May 2017;
b)Family Report dated 9 August 2016.
Chronology
1972
Mother born
1976
Father born
1988 – 1992
Father lives with relatives
1991
Father completes year 11
1992
Paternal grandmother ends relationship with Mr T
1992 – 1994
Father lives with paternal grandmother in Brisbane
1994
Paternal grandmother relocates to Adelaide, father remains in Brisbane
2000 – 2004
Father in a relationship with Ms U
2002
Father’s daughter V is born
2004
Father relocates from Brisbane to Adelaide
November 2009
Parties commence a relationship
June 2010 – 2011
Parties reside at W Street, Suburb Q
2011
Parties reside at Y Street, Suburb Q
2011
Child B born
1 May 2012
Parties resided at Z Street, Suburb R
16 March 2014
Parties separate
16 March 2014
Altercation between parties – father pushes mother
17 March 2014
Father issued with an interim intervention order listing the mother as a protected person
18 May 2014
C is interviewed by South Australia Police in respect of allegations made against the father
June 2014
Father files commences proceedings to spend time with the child
6 July 2014
Father charged with persistent sexual exploitation of a child
14 July 2015
Criminal proceedings against father commence
2015
Criminal proceedings concluded with a “nolle prosequi” being entered
27 August 2015
First orders providing for the father to spend time with the child at a children’s contact centre
September 2015
Mother failed to make child available to spend time with the father at a children’s contact centre
13 November 2015
Warrant issued for mother’s arrest to bring her before the Family Court of Australia
16 – 17 January 2016
The mother takes the child to the Children’s Contact Centre for two scheduled supervised visits with the father. The father does not see the child.
28 January 2016
Children’s Contact Centre suspends the father’s time with the child in light of information received that criminal proceedings were still pending
4 March 2016 – 20 March 2016
Father spends 6 supervised visits with child, each for two hours in duration
26 March 2016 – 10 September 2016
Father spends time with child each Saturday from 10 am until 4 pm
21 June 2016
Paternal grandmother withdraws as a party to the proceedings
15 November 2016
Orders made for the father to spend each Saturday from 10 am until 4 pm with the child supervised by paternal grandmother, Mr F or Ms G
25 November 2016
Mother files an appeal – appealing the father’s time with the child pursuant to orders of 15 November 2016
1 February 2017
Father’s time with child is suspended pending outcome of the appeal
22 May 2017
Family Court trial commenced
5 June 2017
Appeal abandoned due to mother’s failure to file appeal books
7 July 2017
Family Court trial concluded
Background
The father was born in 1976 and was 41 years of age at the time of trial. His occupation is a tradesman although at the time of trial he was unemployed due to an injury to his ankle. He resides in Suburb BB, South Australia. The mother was born in 1972 and was 44 years of age at the time of trial. She is engaged in home duties and resides in South Australia.
The parties met in 2009 and commenced a relationship in November of that year. In 2010 the parties began living together. The parties separated on 17 March 2014.
There is one child of the relationship.
The father has a daughter, V, from a previous relationship. V was born in 2002 (age 15) and resides with her mother, Ms U, in Brisbane.
During trial, the father conceded that he has not spent time with V since 2012.
The mother has children from previous relationships, namely:-
a)EE born in 1996 (age 21);
b)DD born in 1998 (age 19);
c)C born in 2002 (age 15).
At the time of trial, three of the mother’s children resided with her including the subject child.
The father last spent time with the child on 10 September 2016.
Neither party had re-partnered at the date of trial.
The mother believes that the father has sexually interfered both with her daughter, C and the child. She says that from the time C was 8 years old until 11 years old, the father would sexually abuse C under the pretence of reading her a bedtime story. She further believes that whilst caring for the child on 15 October 2012, the father caused a medical emergency to the child whereby the foreskin of his penis retracted and could not be returned to normal. Upon the mother taking the child to a number of medical practitioners, the condition was ultimately diagnosed as paraphimosis.
The father categorically denies any impropriety with C. He acknowledges there was an occasion where the child’s foreskin was stretched back over his penis but denies this was due to his inappropriate touching.
The parties originally resided in a rental property at W Street, Suburb Q. Around 2011 when the child was born the parties relocated to Y Street, Suburb Q. In May 2012, the parties relocated to Z Street, Suburb R.
The parties separated on 16 March 2014 after the father pushed the mother away from the child. The father alleges the mother was drunk and was the first to initiate family violence on that occasion. She subsequently telephoned the police who attended at the property.
On 17 March 2014 the father was issued with an interim intervention order listing the mother as a protected person. This was finalised on 18 September 2014 listing the mother as a protected person with no admission by the father. The father was also charged with aggravated assault and those charges were subsequently withdrawn on 18 September 2014 due to insufficient evidence.
On 17 May 2014, Officer L attended at the mother’s property to report that he was investigating claims C had been sexually assaulted by the father. The mother confronted C about the disclosure the following day and the two attended Suburb Q Police Station that afternoon. C subsequently attended at the Police Station on the evening of 28 May 2014 and made a further disclosure. The Records of Police Interviews are exhibit “6” of the proceedings.
On 6 July 2014, the father was charged with persistent sexual exploitation of a child between 12 February 2010 and 4 May 2014. The matter proceeded to the District Court. Annexure “Mr Banks 15” of the father’s trial affidavit particularises the alleged conduct of sexual exploitation including:-
a)The father inserting his penis in C’s vagina on multiple occasions;
b)The father inserting his fingers in C’s vagina on multiple occasions;
c)The father licking C’s vagina on multiple occasions;
d)The father touching C’s vagina using an object;
e)The father touching C’s chest area.
The criminal proceedings commenced in mid-2015 and concluded shortly after when the Director of Public Prosecutions entered a nolle prosequi.
The mother states she did not know the details of the disclosures made by C to police, nor has she viewed subpoenaed SAPOL material in an attempt to avoid “tainting” her evidence for any criminal charges that may be reopened against the father.
The Family Court proceedings were commenced in June 2014 when the father filed an Initiating Application seeking significant and substantial time with the child. The mother’s position throughout these proceedings has been to vehemently oppose the father spending any time with the child.
At the commencement of the proceedings, the paternal grandmother was also a party to the proceedings. She withdrew on 21 June 2016 and has continued to support the father’s case. The paternal grandmother was a witness for the father in these proceedings.
An Independent Children’s Lawyer was appointed on 17 September 2014 and the matter was transferred to the Family Court of Australia.
As a result of the criminal charges against the father, orders for the father to spend time with the child were not made until 27 August 2015. Orders were made for the father (and the paternal grandmother at the father’s election) at the Suburb D Children’s Contact Centre on 19 September 2015 and 20 September 2015 for a period not exceeding 2 hours on each occasion and thereafter for four weekly sessions.
On 13 November 2015 a warrant was ordered for the mother’s arrest to bring the mother before this court. The mother was arrested on 4 December 2015.
On 10 December 2015 orders were made that the father spend supervised time with the child at the Suburb D Children’s Contact Centre on 16 January 2016, 17 January 2016, 31 January 2016, 7 February 2016, 14 February 2016 and 20 February 2016 for a period not exceeding 2 hours on each occasion. Due to the criminal proceedings only the first two supervised visits were attempted. The mother brought the child to the Children’s Contact Centre, however the father was not able to see or interact with the child during either visit. The observations of those supervised contact visits are annexure “BMB1” of the ICL’s trial affidavit.
I varied the father’s time with the child by orders made 5 February 2016 whereby the father was to spend time with the child for up to 2 hours each week on no less than 6 occasions in the presence of the supervisor, Ms S.
The father spent supervised time with the child on 4, 6, 10, 11, 18 and 20 March 2016 for two hour periods. A Summary of Supervised Contact was prepared by Ms S and is annexure “BMB3” of the ICL’s trial affidavit.
On 24 March 2016, I made orders that the child spend time with the father each Saturday between 10 am and 4 pm commencing 26 March 2016. This continued each Saturday until 10 September 2016.
On 15 November 2016, I made orders for the child to live with the mother and spend time with the father each Saturday between 10 am and 4 pm provided that such time was supervised by the paternal grandmother or Mr F or Ms G.
The mother filed an appeal to the orders, SOA100/2016, and subsequently the operation of the orders providing for the father’s time with the child was stayed pending the determination of the appeal. The appeal was abandoned on 5 June 2017 as the mother failed to file any appeal books.
Accordingly, the orders of 15 November 2016 as amended by the order of 1 February 2017 staying the father’s time with the child were current.
A section 62G Family Report was ordered on 1 July 2016. The report was prepared by Ms CC and produced 9 August 2016. The family consultant interviewed the parties independently and then each party interacting with the child, including the paternal grandmother interacting with the child during the father’s observation. The father was observed as being age appropriate with the child and the mother’s interaction was observed as being generally positive.
In her evaluation, the family consultant recorded that there was “no indication that these parties will be able to develop a cooperative co-parenting relationship in the suggested time frame, or indeed in any time frame”. If the father does not pose a risk to the child, the family consultant recommended the child spend every second weekend with the father until 5 pm Sunday and 5 day periods during school holidays. If the father is a risk to the child, the family consultant recommended that the child live with the mother and spend no time with the father.
The proceedings came before me for trial on 22 – 26 May 2017, 29 – 30 May 2017 and 5 – 7 July 2017 for final hearing.
Currently, the father spends no time with the child. It remains the mother’s position that the father poses an unacceptable risk to the child and there should be no time.
Evidence
The Father
The father relies upon his trial affidavit filed 27 February 2017 together with an extensive affidavit in reply filed 11 May 2017. Whilst he was unable to sustain comprehensive cross examination of the mother and other witnesses, his trial preparation was nonetheless adequate, there was general compliance with trial directions and it could not be said that the thrust of his case was unclear and not put forcefully.
The father was clearly aware of the focus of the mother’s case. She argues that the father presents as an unacceptable risk. The mother considers that the most significant evidence in support of her assertion are disclosures made by her daughter C that involved the touching of C’s vagina, digital penetration with C being admonished not to disclose the ongoing abuse.
As further support for the contention that the father presents as an unacceptable risk, the mother relies upon the evidence of Ms I as contained in her affidavit of 15 September 2016. Ms I is the father’s step-sister. Notwithstanding that at trial she was 37 years of age, her affidavit contains her recollection of alleged abuse between 1988 and 1994.
In somewhat unusual circumstance but relevant to whether the father presented as a risk of abuse to the child and therefore interim orders that would enable the father to spend time with the child should not be made, Ms I was called to give evidence and was the subject of extensive cross examination. A preliminary consideration of her evidence is contained in an earlier judgment delivered 15 November 2016. Ms I did not give further evidence during the trial. The high water mark of her evidence was capable of clear understanding by the husband.
Whilst likely to be more prejudicial than probative, the father was aware that it would be alleged that he had a dysfunctional relationship with his daughter V being the child of his relationship with Ms U.
The mother also alleges that on 15 October 2012 the father interfered with the child’s foreskin such as to create or cause a condition known as “paraphimosis”. In broad terms the condition requires urgent attention arising from the retraction of the foreskin which then remains trapped behind the head of the penis and is unable to return to its original position.
Whilst the mother considers that there may have been a sexual explanation for the father causing the child’s foreskin to be retracted, the reliance on the incident is to reinforce the mother’s contention that the father’s explanation of how the condition was caused whilst in his care was implausible and justifies her mistrust of him.
The tenor of the father’s evidence is to refute the specific allegations of sexual abuse of C, his step-sister, his daughter V and the subject child.
He further denies that there was any action on his part which would constitute family violence directed to either the mother, her children or the child. He raises the spectre of the mother having a history of alcohol abuse and of resultant violent conduct. He specifically denies that the events that led to separation in March 2014 were in any way a consequence of his behaviour.
The father refers to a close attachment and involvement with the child during the period of cohabitation from December 2011 to separation in March 2014.
During periods of the mother’s employment, the arrangements within their household necessitated the child being cared for by the father in the mother’s absence.
He describes his relationship with the child as close and affectionate and considers that his care was shared equally by the parties.
The father would also assist in the care and supervision of C and he attests to a good relationship with the mother’s two elder children EE and DD.
The father’s history of supervised, unsupervised and observed interaction with the child is largely uncontroversial. The child last saw the father on 10 September 2016.
Under cross examination, the father agreed that the child had suffered a medical incident involving his foreskin. He could not remember but did not think that the child was still in nappies as at October 2012. He confirmed that the mother was at work and the child was under his sole care and supervision.
By reference to paragraphs 107, 108 and 109 of the mother’s trial affidavit, the mother contends that she spoke to the father during the day and was told that there was no need for her to return home earlier than was anticipated. The mother says that the father met her on the driveway and told her that something was clearly wrong with the child’s penis. The father denies both conversations.
He does agree that when he looked at the child’s penis it appeared red and swollen. He said he had not previously seen the child’s penis until he was shown it by the mother. He alleges that he expressed his concern about the child and the need for the child to seek medical attention.
The focus of the cross examination was to emphasise the inherent improbability of the father’s evidence that he was not the cause of the child’s foreskin being retracted and his belief that the child may have been bitten on the penis by an insect and that there was some action on the part of the child to lessen the discomfort.
Whilst it was not the father’s initial explanation, he placed reliance on the postulation of the general practitioner that an insect bite may have caused the trauma. The father’s recollection that there may have been ants in the vicinity of the child whilst he was at play.
The father was challenged as to his explanation of how the child’s foreskin may have become retracted and it was put to him that the obvious explanation was consistent with the use of too much force by either a parent, a caregiver or a medical practitioner, but inconsistent with it being caused by an insect bite.
The father continued to deny any assertion that he had been the cause of the condition.
The father conceded that he had suffered from long-standing depression and that at times he had used marijuana as a coping mechanism. The father’s evidence is that any marijuana use by him was by way of medicinal and not by way of recreational application.
Whilst there is some evidence pertaining to the deleterious consequences of the father’s depression, it was not contended by the mother that this alone presented as a sufficient risk that would support the mother’s proposal that the child spend no time with the father.
The father’s cross examination was interrupted by submissions in respect of the production pursuant to a subpoena of records of interview made by C on 18 and 28 May 2014 in relation to the father being charged with persistent sexual exploitation of C contrary to s 50(1) of the Criminal Law Consolidation Act.
The investigating officer was Officer L attached to Suburb Q Police. The record of interview in both DVD and written form became exhibits “11” and “6” respectively in the proceedings. The DVD of the two records of interview were viewed without objection by the Commissioner of Police.
In his trial affidavit at paragraph 501 to 519, the father asserts that the mother had a dysfunctional relationship with C and had placed her at “the bottom of the pecking order” with clear preference for her older siblings. The father considered that the mother was opposed to C having any relationship with her father and in a similar manner sought to manipulate and influence C to concoct false allegations of sexual assault involving the father.
When speaking to the family consultant, the father denied that there was any motivation for him to sexually abuse C and rather, to the contrary that they had a special relationship that was the focus of the mother’s anger and a possible explanation for her manipulation of C in circumstances where the allegations devoid of substance would ensure that there could be no ongoing relationship with her.
Following separation the father was served with an Intervention Order and he complained that it took seven weeks before he could attend at the house with police supervision to collect his belongings.
The father could not offer any explanation as to why C made the allegations in the circumstances in which they first arose, namely, to a friend and then to a teacher.
The father did agree that on occasions C would get into his bed and he would read her a story. He denied that this was at his instigation and emphasised that not only was the mother aware of the practice but continued with her knowledge and tacit consent.
He agreed that on some nights he would go into C’s bedroom and read a book to her.
It seems that from the very early stages of the parties’ relationship the father would attend the mother’s home and read to the children.
Whilst he agreed that when he read to C both he and C were often under the covers, he denied that he took the opportunity to sexually assault her.
The father was asked to consider the mother’s evidence in paragraphs 92 to 94 of her trial affidavit. It was her recollection that the father would go into C’s bedroom to read to her and that this practice continued, although not with any regularity. The mother agreed with the father that C and the father enjoyed reading a book titled “A Dog’s Life”. They are not in agreement as to whether C’s bedroom door was open or closed.
The mother’s evidence is that she would often open both the hallway door and the bedroom door but that the father would close the door. Whilst she felt uncomfortable about the practice, she did not stop it.
The father denied that he was ever told to keep the bedroom door open or that he ever deliberately closed the door. He did agree that from time to time the door would be closed but this was more to do with the difficulty in keeping the door open rather than any action on his part.
At paragraph 97 the mother alleged that the father had acquired a vibrator which she described as “small, purple and faelic (sic) shaped”.
The mother alleges that in 2012 on one occasion or more the father returned to the parties’ main bedroom following him having been in C’s bedroom wearing a dressing gown with the vibrator in a pocket.
The potential significance of the evidence in respect of a vibrator is found in the record of interview with C where she alleges that the father had assaulted her with a personal device purple in colour and what looked like two (balls) testicles at one end.
At a point in the father’s evidence he attended with a personal device that whilst not the actual device referred to by the mother and possibly C was nonetheless a similar device. It was uncontroversial that the device promoted by the father was a personal massager of fairly large dimension with two spheres at one end which presumably administered the massage by way of vibration.
The father denies that it was an object either intended or used in the course of sexual interplay. In summary he says it was not a vibrator, but rather a more innocent personal massaging device without sexual connotation.
At paragraph 361 the father talks of his relationship with his daughter V. He refers to spending significant time with V when he and V’s mother lived in the same state and whilst he agrees that after leaving Brisbane on 1 February 2005 his time with V has been irregular, the times when V did come to Adelaide he would spend extended time during the Christmas school holidays and for a few days that may coincide with other school holidays and Easter. He argues that whilst he has had limited contact and no physical interaction with V since late December 2011 until these proceedings were instituted; there has never been any allegation that he had sexually assaulted or physically abused his daughter.
The father was challenged in respect of his relationship with V. He agreed that when V was 18 months old he took her from the mother’s care without her consent and brought her to Adelaide remaining with the paternal grandmother.
After the last visit in 2012, it was put to the father that V did not want to spend time with him again and that he received a phone call from V’s mother alleging that V had rung her in tears and had told her that she wanted to come home because something had happened.
He did not agree with the proposition and whilst an allegation without detail is unlikely to be given any weight, the father was clear in his denial that anything of a sexual or physical nature had occurred during the visit.
The father agreed that he had not seen V but was not convincing in his explanation as to why he did not try to either see or communicate with V.
Whilst the father’s explanation was that the confluence of his personal circumstance conspired to explain the absence of any attempt at communication rang hollow, ultimately I consider there is little or no evidence to the state of the father’s relationship with V to the current proceedings.
The parties lived in three separate houses during the period of cohabitation. From June 2010 to 21 May 2011 they lived at W Street, Suburb Q (“W Street”). From 21 May 2011 to 4 May 2012 they lived at Y Street, Suburb Q (“Y Street”) and thereafter until separation in March 2014 they lived at Z Street, Suburb R (“Z Street”).
By reference to C’s first record of interview, she was asked in which premises she had been the subject of sexual assault by the father. She replied that it had occurred at W Street, Y Street and Z Street.
At question 273 of the transcript she was asked what she could remember of alleged sexual abuse by the father happening at W Street. C’s response at answer 274 was that when going to bed she would ask her mother to give her a cuddle and a kiss and then the father and “that’s when he did it”.
The following extract of the record of interview was put to the father:-
274.AIt was when I was going to bed and I would ask Mum to give me a cuddle and kiss goodnight and then [Mr Banks] and that’s when he did it.
275.Q Yep.
276.AAnd he would stay there for about 20 minutes. Sometimes when we were at [Z Street] umm, or [Y Street], she would ask if [Mr Banks] was in my room and I would say ‘Yes’
277.Q SO when you said at [Y Street], ohh Y Street.
278.AAnd she would ask what he was doing and I’d say that he was listening to me read, because sometimes I would read.
279.Q Yep.
280.A Because we had a book.
281.Q Alright, so were you reading to [Mr Banks]?
282.A Yes.
283.Q Yep. Was there anything that happened at [Y Street]?
284.A Yes.
285.Q Can you tell me about what happened there?
286.A It was the same, as [W Street].
287.Q So whereabouts were you?
288.A In my room in my bed at night.
289.Q And who else was there?
290.A Everyone, the same, my Mum, [EE], [DD] and [B].
291.Q OK so [B] was around then?
292.AWell he was around – we moved house from [W Street] because Mum got pregnant so we needed a bigger house so we moved there and I’m not sure of the first time was when [B], I don’t think so, I’m not sure.
293.Q So what happened there?
294.AHe would come, one time I would pretend that I was asleep and he closed the window, the curtain and then he put his penis in my mouth.
295.QWhereabouts were you in your room?
296.AIn my bed because I was pretending to be asleep.
297.QOK, and how did [Mr Banks] come to be in your room?
298.AIt was after he’d, I’d read to him, and he’d done it then – and then he left and it was later at night and he came back.
299.QDo you remember what book you read to him?
300.AUmm, ‘….
301.Q ‘…. So what you’re saying is that you read to him ‘…’, he left your room, came back a bit later and then he put his penis into your mouth. Alright.
302.AHe would do it while I was reading too.
303.QHow old do you think you were then, when you were at [Y Street]?
304.A9.
305.QYou were 9. Do you….Sorry; your birthday was in …, what date in …?
306.AThe ....
The father denied that he had ever spoken inappropriately to C or engaged her in oral sex. The issue of “inappropriate conversation” arises from the mother’s allegations that the father would often engage in inappropriate conversations with C.
In response to a question seeking C’s recollection of other times of sexual abuse that had occurred at W Street the following appears:-
426.AWell, there was a time in the afternoon and he, I was wearing my nightie ‘cause it was about 5.30 and he asked me at night if I could wear no undies.
427.Q Yep.
428.A And then I did wear undies to bed.
429.Q Yep. What happened?
430.A He took them off.
431.Q Who are we talking about?
432.A [Mr Banks].
433.Q And where did this happen?
434.AIn my room, in my bed at night. And all the times that it’s happened, not all the times, but most of them, my mum and my sister and my two brothers were in the house.
435.QDo you know where they were when this happened, this third incident?
436.AJust probably in their rooms, can’t remember every detail though.
437.QSo the third incident, you said it happened in the afternoon, about 5.30, [Mr Banks] had asked you to wear no undies to bed but you did wear undies and then you were in your room in your bed at night-time. Do you know how old you would’ve been then?
438.A8.
439.QAnd you were still at what house?
440.A[W Street], kinda keep skipping times, it’s hard for me to remember.
The father denied that there had ever been an occasion when he asked C to remove or not wear underwear. The father was strongly pressed to admit that he had engaged in sexual assault of C but remained adamant that he did not. Whilst asked to speculate as to why C would have made up these stories with what appeared to be considerable detail, the father’s only and probably reasonable response was to continue his denial.
At answer 584 C said that she was aware of the massager having seen it in her mother and the father’s bedroom. She did not understand what it had been used for and had asked the father what it was. She is recorded as alleging that he touched the massager to the outside of her vagina. In addition, she alleged that his fingers also touched her inside her vagina and that it continued for the time it was taken to read one or two chapters of the book.
The father also denied that there was any occasion when he lifted C and touched her vagina through her clothing.
When asked whether she was guessing as to the presence of her mother, brothers and sisters she responded that she was guessing but that it was an educated guess.
The father denied that there was any occasion when he intentionally took the opportunity to touch C on the vagina.
The father agreed that C gave significant detail in her recitation of the alleged sexual assault. In particular he was asked to consider C’s response commencing with the following question.
447.Q When you were living at W St?
448.A Yep.
449.QTell me about the incident where you were asked to not wear any undies, what happened that night?
450.AUmm, he would take my undies off and lick my vagina and put his penis in my vagina and feel my vagina.
451.QIt’s important when I speak to you about each incident, do you remember all of those things happening on that incident. What’s the first thing that happened on that night?
452.AHe would feel my vagina and I would read.
453.QSo you were reading when that happened?
454.AMmm.
455.QWere you still wearing underwear then?
456.ANo. He asked me if I liked it, what he was doing and I didn’t know ‘cause I didn’t but I was scared so I didn’t really answer, I pretended not to hear and I kept reading.
457.QWhat happened then – he was feeling your vagina and you didn’t have any underwear on and was it an outside touch?
458.AInside
459.QInside. And what did he use?
460.AHis fingers.
461.QSo you said fingers, do you know how many fingers?
462.AIt was I think just one, but then sometimes it would be 2 or 3 (inaudible words)
463.QSo 3.
464.AYeah, oh no sometimes 4.
465.QSo what happened then?
466.AHe licked his finger first.
467.QYou said he sorry.
468.AHe licked his finger first before and then he touched me in the vagina.
469.QAt some stage he took his fingers out of your vagina, what happened then?
470.AHe licked it.
The father strongly denied the allegations.
The focus of the cross examination then turned to the record of interview given by C on 28 May 2014. It is recorded that following a conversation with C’s mother there were further allegations that she wished to record which occurred at a time when the father was living at FF Town and before he commenced cohabitation with the mother at W Street.
The father agreed that there had been an occasion when C had a sleepover at the cottage in which he resided. He was cleaning up the cottage prior to moving out and agreed that C had stayed over on one night and had slept on his couch. They watched movies, but he denies that he took the opportunity to touch her vagina.
The father did admit that there were occasions when he massaged C following her involvement in an end of year gymnastics competition. He records that C had a shower and that he had massaged her but whilst she was clothed in a nightgown and underwear.
At paragraph 144 the mother alleges that during an argument the father became angry at her indication that she wanted to separate and end the relationship and threw a serving bowl full of spaghetti onto the floor. Whilst the father recalls that there were arguments between the parties, he denies specifically throwing the food onto the floor, any incident of family violence other than heated arguments with the mother and in particular that he used or directed offensive language towards her.
The father was cross examined in respect of the allegations made by Ms I that she had been the subject of sexual assault.
The father’s evidence is that his mother commenced cohabitation with Mr T on in 1979. Ms I was born in 1980. The father’s mother and Mr T separated on 23 January 1992. On 28 January 1994 the paternal grandmother and her children, including Ms I but not the father, leave Queensland.
The father had a dysfunctional relationship with Mr T. He alleges that Mr T was abusive towards him and physically violent. Whatever issues existed between the father and Mr T, the circumstances were sufficiently dire that at age 12 and in about September 1988 he lived with his aunt and uncle at HH Town for grades 9, 10 and 11.
Whilst the father did return to the home on a few occasions, I find that from late 1988 until early 1992 the father had little to do with his mother or his siblings.
The principal inconsistency with the evidence of Ms I is that she alleges that the abuse occurred between 1988 and 1994 when the father allegedly lived in the household. Ms I’s chronology of when the father was a resident in her home is entirely inaccurate. She alleges that the first occasion that the father sexually assaulted her was in or about 1987 when she was seven years of age and the father around eleven years of age. She is clear that it occurred before the father had returned to the home as opposed to his evidence that he was at home until September 1988.
Under cross examination by counsel for the ICL the father was shown a floor plan of the Y Street property and he agreed that it was accurate. The floor plan displayed that the hallway had a door separating that space from the living areas of the house.
The father’s evidence was that the hallway door closed by itself and accordingly he bought a doorstop in order to keep the door open. The father agreed that thereafter it would have taken a deliberate action to close the door.
The father was shown a photograph of a massage device and confirmed his earlier evidence that he had never used this device on C.
The father’s evidence was that the only massage activity undertaken by the father was when he massaged C following her gymnastic competition.
The father agreed that he last spent time with the child on 10 September 2016. Notwithstanding the orders sought by him, he conceded that there needed to be a more graduated approach to reintroduce the child to him given the relatively long interruption to their relationship. The father agreed that the parties have no ability to communicate with each other and are entirely mistrustful. Notwithstanding the orders initially sought by him, the father accepted that equal shared parental responsibility was not really a possibility given that the parties could not engage with any communication that would be child-focussed.
The father agreed that the mother considered him to be a paedophile and a sexual predator.
Whilst the father had spent numerous periods of unsupervised time with the child, it had occurred mostly at his mother’s home and he had never had a sleepover.
Notwithstanding those concessions, he considered that his mother’s home was entirely appropriate and consisted of four bedrooms and a sleep-out. The father and his youngest brother Mr II live with the paternal grandmother at her northern suburb home. .
In terms of the father’s marijuana consumption, he had recently ceased using marijuana either in the pursuit of medical relief or recreationally.
The father maintained that whilst he had been under the bedcovers when reading to C, the mother was aware of the practice and never made any adverse comment.
Both W Street and Y Street were relatively small in floor plan and the children’s rooms, but in particular C’s and DD’s bedrooms were close to each other and in reality only a few steps apart.
The father’s attitude towards the mother has ameliorated to some extent. The father was initially angry with her particularly given his assessment that she had influenced C to make allegations of sexual assault against him resulting in charges of sexual exploitation, but now his attitude is one of frustration rather than anger.
During the father’s evidence leave was granted for him to rely upon a further affidavit of 19 May 2017 which annexed subpoenaed documents from JJ Group outlining observations of observed interaction.
Whilst the father’s evidence in respect of the circumstances surrounding the child’s retracted foreskin was unconvincing, he remained consistent in his denial of any sexual abuse of C. His evidence was convincing in his denial of any allegation that he sexually abused or assaulted his step-sister.
Ms P
Ms P was a relief teacher at C’s primary school in May 2014.
C was known to the teacher. The teacher was broadly aware of the father and C’s mother.
She observed that C was a quiet and reserved child and impressed as a hard worker and talented in English.
At recess time on 8 May 2014 C and another student Ms O approached her. C handed a piece of paper to the teacher which said “[Mr Banks] raped me”. C’s note forms part of exhibit “7” in the proceedings.
Following a discussion with her supervisor, the teacher then had a private conversation with C who told her that the father had raped her and that it had occurred multiple times when she was aged eight to ten years. Noting that C was born in 2002, the relevant period falls between 2010 and 2012.
There is some uncertainty as to the exact words used by C. The teacher provided a witness statement on 11 August 2014 as part of the police investigation. The statement forms part of exhibit “7”.
The statement records that the teacher “made notes of some specific questions” that she asked C as follows:-
I said, “Did he touch you on the breast.”
She said, “Yes.”
I said, “Did he touch you on the vagina?”
She said, “Yes.”
I said, “Did he touch you with his sexual organs, penis?”
She said, “Yes.”
I said, “In vagina?”
She said, “Yes.”
I said, “In mouth?”
She said, “Yes.”
The teacher recorded that C did not show any emotion when reciting the detail. C was neither crying nor appeared upset.
Under cross examination Ms P’s evidence remained consistent with her witness statement and notes. She reaffirmed her observation that C did not appear sad, distressed, anxious or withdrawn. There were no displays of sexualised behaviour.
She agreed that her questions were “closed” and said that this was necessary because C appeared reluctant to give any narrative. It was her suggestion to C that C might find it easier if she asked questions.
The teacher was not aware of any other child who had been alleging sexual abuse by a parent.
Officer L
Mr F is a police officer. He was the investigating officer in respect of the charges laid against the father. His involvement commenced on 12 May 2014 as a response to a child abuse report that the father may have sexually assaulted C.
The police officer undertook a record of interview with C on 18 May 2014. C attended with her mother. The record of interview as recorded on DVD and was subsequently transcribed.
A further record of interview was conducted on 28 May 2014 following an indication that there were further matters that C wished to speak of.
The father’s premises and motor vehicle were searched. His mobile phone was forensically examined and following a truncated record of interview the father was charged under s 50 of the Criminal Law Consolidation Act with persistent sexual exploitation of a child.
Under cross examination, the police officer confirmed that notes were taken by him on 16 March 2015, 27 March 2015 and 10 July 2015. There is particular focus on notes made on 16 May 2015 (proofing notes).
The police officer confirmed that C had refused a medical examination.
The police officer met the mother for the first time on 17 May 2014. The only details kept of that conversation were the mother’s personal details. Notwithstanding the mother’s request to understand why C was to be interviewed, the police officer considered that at that stage there was less potential to contaminate the evidence if the mother was not advised of the full nature of the allegations.
On 16 May 2015 the police officer received a telephone call from C requesting that the case go to court. His notes are instructive:-
·Have to shift house now because I won’t talk about it. Not safe there.
·Have to get rid of dog, (had 3 weeks).
·Mum hadn’t prepared C for proofing. Last proofing V wouldn’t speak about assault.
·This proofing arranged again.
·C clearly didn’t want to speak about it.
·Spoke to C by herself. Stated her Mum had told her off for not speaking about it and that because she didn’t they would have to shift house because they were not ‘safe’ and that C would have to get rid of the dog (only had for 3 weeks).
·V said she didn’t want to talk about it again and asked why we couldn’t use video (ROI).
In the proofing notes of a meeting with the mother, her sister, C, a Crown Prosecutor, the police officer and the allocated child protection worker, C indicated immediately that she did not want to talk about the allegations. The mother is recorded to have told C that she may not wish to talk further about the matter but that she would do so. C is recorded to have said that she didn’t want to “practice”. When speaking to C the solicitor and child protection worker were concerned that she was receiving pressure from her mother to speak to them and that she was worried about that. C confirmed that her mother and aunt were placing pressure on her and the following note was made:-
[C] does not know what her decision would be regarding giving evidence at Trial if it was free of her mums wishes for her to proceed.
The solicitor and worker recorded that “it is apparent that [C] has been rebuked for not talking about the allegations today”.
The notes further record that C was observed to have been visibly upset and crying because of the pressure that had apparently been applied by the mother and aunt.
The notes record significant contention between the mother, the aunt and the solicitor and worker about their decision to support C’s reluctance to be proofed.
The police officer was asked to consider the questions put to C by her teacher and agreed that they were leading and had the real potential to contaminate or taint C’s evidence.
At Annexure “16” to the father’s trial affidavit he annexes the judgment of the Trial Judge in the District Court in respect of an application by the prosecution to tender the records of interview of C pursuant to s 34CA of the Evidence Act (SA). The question was whether discretion to admit the evidence should be exercised and His Honour considered that it would be inappropriate to allow tender of the transcript and accordingly the application was refused.
It appears from the judgment that His Honour was significantly influenced by the meeting on 16 March 2015.
His Honour’s reasons are conveniently summarised at line 30 of the judgment in the following terms:-
On their face, the statements have some probative value but, on my reading of M, BJ, insufficient of themselves for the prosecution to prove its case. C’s reluctance to descend into detail is puzzling because, as I said before, the events she was being asked to recall had occurred relatively recently. When combined with the subsequent events, her statements that she remembered little, and the severe and inappropriate pressure from her mother in the context of bitter Family Court proceedings on other issues, I am left with grave concerns about the probative value of her statements. If they are admitted under s 34CA, and [C] behaves in a similar way when cross-examined (assuming she has the capacity to give evidence under s 9), the statements to the police officer will achieve a prominence in the eyes of the jury that is not warranted, in my view, in view of their lack of specificity, thus presenting, in my view, a danger of quite severe prejudice to the accused.
Ms Wills
The father’s mother relied upon her affidavit filed 20 February 2017.
The father and his brother have lived with their mother from July 2014 to the present.
She is aware of the allegations made by C and was present during the District Court proceedings.
She is supportive of her son and does not countenance that there could be any veracity in C’s allegations.
She holds significant qualifications in education and currently holds a permanent teaching position in a secondary school.
She is aware of one occasion when C stayed overnight with the father in order to attend a calisthenics competition whilst the mother was away. She was also informed that C had stayed overnight with the father in his FF Town residence before he commenced cohabitation with the mother.
The paternal grandmother was able to provide a clear history of where she and the family lived from the time that she moved interstate in December 1986. Her evidence is consistent with the father’s history of having spent little time with the family until his mother and step-father separate in January 1992.
In 1987 the family moved to Suburb KK, Brisbane and under cross examination she confirmed that the father left the home in 1988 and lived initially with his grandmother and step-grandfather and then with an aunt and uncle.
The paternal grandmother remembers the occasion of Ms I falling out of a tree and hurting her ankle. She was clear that the father was not at home and any suggestion that the father had interfered with Ms I at that time is not correct.
She denied any knowledge at the time of any allegation that Ms I made involving the father and considers that Ms I’s evidence may well be a reflection of Ms I seeking to implicate the father and the paternal grandmother in circumstances where it was alleged that her father had been violent and had caused the father to sustain a broken arm and a burst eardrum as part of ongoing family violence.
The paternal grandmother was not challenged as to her observation of a close and loving relationship between the father and the child and was present for each period of unsupervised and supervised visits from 26 March 2016.
The paternal grandmother gave her evidence in a clear and forthright fashion and whilst protective of the father, she presented as a truthful witness.
Ms U
The father and Ms U Banks are parents of V.
Ms U makes no direct allegation against the father other than her general mistrust of him following an incident where he retained V as a young child and brought her to Adelaide without Ms U’s knowledge or consent.
Whilst she confirms that V now expresses a strong refusal to see her father, her evidence is of little assistance in these proceedings.
The mother
The mother relies on her trial affidavit filed 26 April 2017. Her evidence was supplemented by her further evidence given at trial.
She gave evidence that following the injury to the child’s penis she questioned the father but was mistrustful of his response. Prior to the injury the child did not attend child care but after the incident he commenced child care in 2012. It was her reasoning that whilst she was at work the child was in a safe place.
The mother agreed that she did not make a direct allegation that the father had caused the injury to the child’s penis. Thereafter she was more careful and did her best to ensure that there were other children and adults with the child whilst she was at work.
She denied that she had a dysfunctional relationship with C’s father or that she described the child as evil.
She described C as a child who did not like change and agreed that during the time that the parties lived together, namely from about June 2010 to March or April 2014, C and the father seemed close. She would observe that he would massage her feet and legs, buy her lollies and presents and it was her impression that he preferred C to DD and EE.
She did agree that the father had assisted her two older children with work experience.
Consistent with the father’s evidence, the mother conceded that C had a healthy interest in gymnastics and appeared to excel.
She was a child both active at school and also in terms of extra-curricular activities.
Whatever maybe the mother’s misgivings now, she was prepared to concede that C never said that she didn’t want to spend time with the father. She also acknowledged that C did not want anyone else to read her favourite story to her other than the father.
The parties are in contention in that the father asserts that other books were read, whereas the mother considers that the only book she saw the father and C read together was “…”.
The mother agrees that C never complained of any abusive conduct by the father and there were no observations of adverse behaviour. There were no observations of C crying, being upset or displaying any sexualised or other overtly aggressive or unusual behaviour. She acknowledged that she had not received any adverse reports from C’s older siblings about any disturbing or odd behaviour.
The mother agreed that in May 2012 whilst the family lived in the Z Street property she had taken C to see a counsellor because of concerns that she had arising out of angry outbursts. There are no notes from the counsellor.
Following separation on 16 March 2014, the mother conceded that she did discuss some aspects of the parties’ separation with C but there were no details. The mother was keen to have the father out of her life and it is her evidence that he perpetrated family violence and was addicted to marijuana. She was also concerned at the ingestion of prescription antidepressant medication and recognised that the medication had deleterious side effects. She agreed that the father’s behaviour became aggressive, difficult and irritable whilst on the medication.
She denied any suggestion that she had in some way persuaded or forced C to tell her friend, the teacher and then the police of the allegations.
Under cross examination the father asked the mother to consider the photos comprised in Exhibit “15”. They are photographs that had been provided by the mother for use in the father’s prosecution.
The purpose of the mother being shown the photographs was to seek her agreement that they demonstrated a close and appropriate relationship between the father and C.
Contrary to the father’s expectations, the mother could find nothing innocuous with the photographs, but rather considered that they showed the father and C always touching. When asked to consider a photograph of C and the father at a local playground, the mother’s description was that it was:-
A creepy looking man with a little girl on his knee.
Whilst the photographs may be of little assistance to the father, it could not be said that they are in any way detrimental or sinister.
The mother considered that the photographs showed the father and C together in a number of social and other settings including an occasion when they were watching the Dalai Lama in Queensland.
The observations and gloss placed on the photographs by the mother for the trial are clearly matters of hindsight. At the time the photographs were taken there was no objection or issue raised and whilst the photographs do not disprove C’s allegations, there is nothing that can be drawn from the photographs to suggest that C was the victim of child abuse by the father.
The mother agreed that at least some of the photographs were most likely to have been taken by her.
Regrettably the parties have been in litigation since 2014. The child is now seven years of age and more than half of his life has been marred by the ongoing conflict and Court proceedings both in this Court and the other courts.
The evidence of the family consultant and submissions of the ICL is that the mother is intractable in her opposition of the father having a relationship with the child. The ICL is further concerned that any orders that the Court makes for the child to spend time with the father is likely to lead to further and entrenched litigation.
On balance I consider the best interests of the child are served by the litigation being brought to an end and the child being relieved of the potential for ongoing hostility, upset and distress.
CONCLUSION
I consider that it is in the best interests of the child that the father receives as much information about the child as is reasonable.
To the extent that the mother has secured the orders that she seeks, that should not be considered in any way providing corroboration for the unsubstantiated view of the father that she strongly maintains.
In circumstances where the father does not present as an unacceptable risk to the child, there is no good reason why he should not receive information in respect of the child’s education, health and development. Where the child resides should not be a mystery. It is hoped that at some stage in the future the child’s circumstances may be such that he will seek out his father and notwithstanding the mother’s attitude will seek to reinstate a relationship with him.
The father should be permitted to forward correspondence to the child on a regular basis together with gifts to celebrate the child’s birthday and Christmas. The mother will be obliged to contact the father in circumstances where the child may seek to contact or communicate with him.
Whilst there is no suggestion by the mother that she wishes to relocate the residence of the child from the Suburb Q area, nonetheless I propose the mother to disclose the address of the child and to give two months’ notice to the father of any intention to change the residence of the child and to provide details of any future address.
The orders will also discharge the appointment of the ICL.
I make orders as appear at the commencement of these reasons.
I certify that the preceding three hundred and twenty-three (323) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 12 February 2018.
Associate:
Date: 12 February 2018
Key Legal Topics
Areas of Law
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Family Law
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