Bradley & Bradley
[2009] FamCA 171
•17 March 2009
FAMILY COURT OF AUSTRALIA
| BRADLEY & BRADLEY | [2009] FamCA 171 |
| FAMILY LAW – CHILDREN – Unacceptable risk of abuse and international relocation – Whether father’s time with the children should be supervised and if so whether professionally supervised – NSW Department of Community Services intervened in proceedings FAMILY LAW – CHILDREN – parental responsibility – Presumption of equal shared parental responsibility does not apply due to alleged abuse – Also not in the best interests of the children – Mother to have sole parental responsibility |
| Family Law Act 1975 (Cth) Evidence Act (Cth) s 140 |
| B and B (1993) FLC 92-357 Johnson and Page [2007] FamCA 1235 M and M (1988) FLC 91-979 McCoy v Wessex [2007] FamCA 489 Briginshaw v Briginshaw (1938) 60 CLR 336 Napier and Hepburn (2006) FLC 93-303 S and R (1999) FLC 92-834 G & C [2006] FamCA 994 B v B (1993) FLC 92-357; 20 Fam LR 930 Re C and J (1996) 92-697 K v B (1994) FLC-92-478 AMS v AIF:AIF v AMS (1999) FLC 92-852 U v U (2002) FLC 93-112 Bolitho and Cohen (2005) FLC 93-244 A v A: A Relocation Case (2000) FLC 93-035 Morgan and Miles [2007] FamCA 1230 Taylor and Barker [2007] FamCA 1246 |
| APPLICANT: | Mr Bradley |
| RESPONDENT: | Ms Bradley |
| INTERVENOR | Director General |
| INDEPENDENT CHILDREN’S LAWYER |
| FILE NUMBER: | SYC | 2248 | of | 2008 |
| DATE DELIVERED: | 17 March 2009 |
| PLACE DELIVERED: | Parramatta |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 19-23 January 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr David Dura |
| SOLICITOR FOR THE APPLICANT: | McLachlan Thorpe Partners |
| COUNSEL FOR THE RESPONDENT | Ms Margaret Cleary |
| SOLICITOR FOR THE RESPONDENT: | Reid Family Lawyers |
| COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER | Ms Alexandra Wearne |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid Commission of New South Wales |
| COUNSEL FOR DEPARTMENT OF COMMUNITY SERVICES NEW SOUTH WALES | Mr Gregory Moore |
| SOLICITOR FOR DEPARTMENT OF COMMUNITY SERVICES NEW SOUTH WALES | Mr I V Knight, Crown Solicitor |
Orders
All previous parenting orders in relation to R and T are discharged.
Ms Bradley (“the mother”) have sole parental responsibility for the children, R born … December 2001 (“[R]”) and T born … October 2004 (“[T]”), subject to these orders.
The mother has sole and exclusive parental responsibility to apply for both Australian and Swedish passports for the children, without obtaining the consent of the father, Mr Bradley (“the father”).
The children live with the mother.
On or after 27 July 2009, the mother be permitted to remove the children from the Commonwealth of Australia and relocate their primary place of residence to Sweden.
Consequential orders that;
(a)the mother is permitted to travel internationally with the children R and T on or after 27 July 2009, for the purpose of that relocation; and
(b)the children be removed from the Airport Watch List (also known as PACE Alert System) as and from 27 July 2009.
The mother do all acts and things to ensure that the father receive timely information about the children’s progress at school, including:-
(a)copies of the children’s school reports, together with a written translation to English of same;
(b)copies of the children’s school photographs; and
(c)information about the children’s extra curricular activities and achievements, together with a written translation of same.
The mother will promptly notify the father of any major medical, dental or psychological treatment required or received by the children.
Forthwith upon her arrival in Sweden, the mother will arrange a referral for R to obtain protective behaviours counselling and she shall ensure that:
(a)R attend for such counselling as is recommended by such counsellor/s;
(b)The mother will do all acts and things necessary to authorise the protective behaviours counsellor to discuss the children’s progress in counselling with the father.
The mother will promptly notify the father in advance of any proposed change of residence of the children.
The children spend time with the father as follows:-
(a)from the date of this order until the day before the mother and children leave Australia to relocate to Sweden;
(i)During school term each Sunday from 9.00am to 5.00pm and each Wednesday from after school to 7.00pm, (excluding the mother’s day Sunday, and on that weekend the children spend time with the father from 9am to 5pm Saturday).
(ii)During the April 2009 school holidays, from 9.00am to 5.00pm on each day commencing Friday 10 April 2009 and concluding Saturday 17 April 2009;
(iii)During the July 2009 school holiday period from 9.00am to 5.00pm on each day commencing Saturday 11 July 2009 and concluding Saturday 25 July 2009.
(iv)All such times the children spend with the father to be supervised;
A.by the children’s paternal grandfather, or in his absence,
B.by Ms W, or in her absence
C.such other person or persons approved in writing by both parties,
D.Subject to and prior to any time being spent with the father, the father having caused to be filed at this court and served on the mother’s solicitor an affidavit containing undertakings to the court from such supervisor (which includes the paternal grandfather but not Ms W) not to leave either child unattended with the father at any time whilst the children are spending time with the father.
E.In the event that the parties are unable to agree on other supervisors, I give leave for the parties to have the matter re-listed before me on 2 days notice, such leave to remain available until 27 July 2009.
(b)Commencing 2010 and each year afterwards, in Australia (or Europe if the father resides in a European country other than Sweden) for a period of not less than two (2) consecutive weeks to coincide with the long European school holidays, such time to be facilitated as follows:-
(i)the mother will accompany the children to Australia (or such other European Country in which the father lives) .
(ii)the time will be spent in whichever city in Australia or Europe the father resides.
(iii)the mother will provide the father with sixty (60) days written notice of her intention to travel to Australia or otherwise, including the dates she and the children will be in Australia; and their contact details in Australia.
(iv)The children shall spend supervised time with the father at times and dates as agreed between the parties, and not less than on five (5) days out of every seven (7) days from between 9.00am and 5.00pm.
(v)failing agreement, then the children will spend time with the father as follows:
A. from the second day of the children’s arrival in Australia and for four (4) consecutive days from 9.00am to 5.00pm in the first seven (7) days of the children’s arrival; and
B. from 9.00am to 5.00pm for five (5) consecutive days in the following seven (7) day period, such time to conclude the second last day before the children are due to return to Sweden with their mother.
(vi)the children’s time with the father will be supervised by the paternal grandfather, or Ms W or other persons agreed to in writing by the parties or otherwise approved by a Court exercising jurisdiction under the Family Law Act.
(c)Commencing 2009 and each year afterwards, the children shall spend time with the father in Sweden for a period of not more than two (2) weeks. Such time to coincide with the children’s Swedish Christmas school holidays, such time to be facilitated as follows:-
(i)in G, Sweden.
(ii)by the father providing to the mother sixty (60) days written notice of his intention to travel to Sweden, including the dates he will be in Sweden; and his contact details in Sweden.
(iii)by the children spending supervised time with the father at times and dates as agreed between the parties, and not less than on five (5) days out of every seven (7) days from between 9.00am to 5.00pm.
(iv)failing agreement, then the children spend time with the father as follows:
A.from the second day after the father’s arrival in Sweden and for four (4) consecutive days from 9.00am to 5.00pm in the first seven (7) days of the father’s arrival; and
B.from 9.00am to 5.00pm for five (5) consecutive days in the following 7 day period, such time to conclude the second last day before the father is due to return to Australia, provided that such time is so arranged to ensure that the children are in the care of the mother for the entirety of 24 December; and spend time with the father from 9.00am to 5.00pm on Christmas Day.
(v)The children’s time with the father will be supervised by their paternal grandfather or in his absence the maternal grandmother, or such other person agreed to in writing by the parties.
(vi)In the event the father travels to Sweden, in addition to the times as otherwise provided for in these orders, the children shall spend supervised time with him in similar form and times as set applied from the date of these orders in Australia prior to 27 July 2009.
The father shall meet the costs of his travel to Sweden to see the children.
The mother with meet the costs of herself and the children travelling to Australia each to spend time with the father, and in that respect prior to the mother’s relocation of the children to Sweden IT IS ORDERED that the mother place into a bank account to be operated jointly by the father and mother the sum of $27,000.00. The mother is permitted to use this money to fund the cost of the children and her returning to Australia once a year in accordance with these orders AND the mother shall be entitled to withdraw from this account the sum of $9,000.00 per year for each of the next 3 years towards such cost.
The children will communicate with the father as follows:
(a)by telephone, Skype communication, or similar, such times to be agreed between the parties; and
(i)the father will have such electronic communication with the children two occasions per week; and
(ii)the children or either of them to have electronic communication with the father at any time they request such communication, having regard to time differences between Sweden and Australia;
(b) by email at any reasonable time; and
(c)by any other means agreed to between the parties and the mother be at liberty to be present and monitor this communication until such time that she is advised that it is inappropriate or unnecessary to do so by the children’s protective behaviours counsellor.
That for the purpose of the communication between the children and the father, the mother will, within fourteen (14) days of her arrival in Sweden, obtain a computer which has internet access installed, including a webcam, Skype and email addresses for the children.
That each party keep the other informed of their residential and email address and telephone numbers.
Pursuant to s.65DA(2) and s.62B, 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.
BY CONSENT AND within three (3) months of the date of these Orders the father pay to the Legal Aid Commission of NSW the sum of $4,617.50 by way of contribution to the costs of the Independent Children’s Lawyer.
BY CONSENT AND within three (3) months of the date of the mother receiving her share of the parties’ property settlement, she pay to the Legal Aid Commission of NSW the sum of $6,267.50 by way of contribution to the costs of the Independent Children’s Lawyer.
The appointment of the Independent Children’s Lawyer be discharged as and from 27 July 2009 unless otherwise extended by a court exercising jurisdiction under the Family law Act.
This matter be removed from the list of cases requiring determination.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgement under the pseudonym Bradley & Bradley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: SYC 2248 of 2008
| MR BRADLEY |
Applicant
And
| MS BRADLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Bradley and Ms Bradley had been in a relationship since about 1996 or 1997, they married in May 1999. They have two children, R aged 7 and T aged 4. The father and mother separated on 26 February 2008 in the most challenging of circumstances.
The father and mother are in dispute as to whether the children at risk of abuse when in the care of the father, the time the children should spend with the father and whether the mother can relocate to Sweden with the children.
It will be of cold comfort to the parents, particularly the father, but I should reiterate that the determinations in this case are difficult and finely balanced. The court was left with a decision which on one hand could leave a child or children in the care of a potential sexual abuser and on the other hand could deprive the children of a loving and caring father, in circumstances where the children may be living on the other side of the world.
On 26 February 2008 R made a disclosure to her mother that her father had touched her murran[1]. The mother reported the disclosure to the Department of Community Services (DOCS) that day and the disclosure was investigated.
[1]This is a Swedish word which is equivalent to the slang word ‘fanny’ and relating to the vagina.
DOCS are a party to these proceedings.
An interim ex parte apprehended violence order was made and the father moved out of the family home that same day. The parties have been separated since that time. The children did not see the father for many months after this disclosure.
Since separation the mother has expressed a desire to return to her homeland, Sweden and to live in that Country with the children.
In terms of the allegation of sexual abuse, the issue is whether there is an unacceptable risk of sexual abuse. It is submitted by DOCS, the Independent Children’s Lawyer and the mother that the inappropriate contact was intentional and as such there is an unacceptable risk of sexual abuse of R by her father.
The father’s case is that if there was contact between his hand and the child’s murran it was accidental and in the context of the normal interaction between a parent and a child.
Any statement of fact in these reasons is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.
Issues
The issues are;
· To determine whether R or T are at unacceptable risk of abuse in the unsupervised care of the father.
· The determination of parental responsibility.
· Consequent upon that determination to determine the time the children spent with the father and the nature and extent of other communication between the children and the father.
· If there is a finding of unacceptable risk there is no issue that the father should spend time and communicate with the children provided the time is supervised. There is the question of the appropriate supervisor for face to face time between the children and the father, including whether the children’s paternal grandfather is a suitable supervisor.
· To determine whether the mother should be permitted to relocate the residence of the children with her to Sweden. This is in circumstances where the mother will not relocate to Sweden without the children.
· To determine what further counselling, if any, should be put in place for the children or either of them.
· To determine when and if supervision should cease.
I have determined that I should not make a positive finding that there was or was not inappropriate contact. This finding accords with the submissions of the mother, Independent Children’s Lawyer and DOCS. On the evidence, I am unable to make a positive finding that the contact between the father’s hand and the child’s murran was intentional or an inadvertent or accidental touching. The initial question must then be whether there is an unacceptable risk of abuse to the children or either of them.
These proceeding were commenced by the father on 18 April 2008 and as such are conducted under the provisions of Division 12A of Part VII of the Family Law Act (‘the Act”). The hearing of the proceedings was expedited by its inclusion in the Magellan case management process. The NSW Department of Community Services intervened in the proceedings.
Background
The father is aged 46 and the mother 36. Both parents are in good health.
After the disclosure on 26 February 2008 an ex-parte interim apprehended violence order was made. On 25 March 2008 that order was made a final order, operating for 12 months. The order was made by consent and without admission.
In June 2008 Dr S, a Consultant Child Psychiatrist, was appointed as the single expert to prepare a report for the Court in these proceedings.[2]
[2] Exhibit ICL 2.
On 20 August 2008 interim parenting orders were made which provided that the children spend three hours per week with the father, such time to be supervised.
There was no issue that the mother is and has at all times been the children’s’ primary carer and that this arrangement should continue into the future.
Likewise it was not in issue that the children had a close and loving relationship with the father and there is a benefit to the children that this meaningful relationship should continue, provided it is safe for the children.
Evidence was given by both the father and the mother in these proceedings. Neither party were seriously shaken in their evidence and both gave evidence which was consistent.
The children’s paternal grandfather gave evidence in accordance with his affidavits. He gave evidence in a thoughtful and direct manner. He is a very taciturn man and was not fully aware of the allegations or the extent of the allegations against the father until this hearing.
The paternal grandfather said in his evidence, and I accept, that if he were supervising the children whilst with the father he would not leave the children alone with the father and look after them, their well-being being his upmost concern.
The paternal grandfather does not believe that the father has done any wrong and said that he would live with his son until he is proved innocent. That is a matter of some concern and of which I have had regard.
However, I am satisfied that if the paternal grandfather was given the responsibility of supervision of the children he would put the children’s interests ahead of his belief in the father.
Are the children at unacceptable risk of abuse in the unsupervised care of the father?
The approach in deciding a case involving an allegation of sexual abuse was considered by the High Court in M and M (1988) FLC 91-979. At page 77,080, the High Court said:
… the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.
The High Court recognised though that findings on the question of sexual abuse will have an important, perhaps a decisive impact on the resolution of the ultimate best interests issue.
As to the relevant standard of proof, the High Court comprising of Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ, emphasised that a judge should not make a positive finding that the allegation was true unless satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336.[3] Their Honours cited the well known passage of Dixon J (at p.362 of Briginshaw):
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
[3] M and M (1988) FLC 91-979 at 77,081.
In a subsequent case of S and R (1999) FLC 92-834 the Full Court of the Family Court warned that to establish a serious allegation such as sexual abuse, the “utmost caution” was needed, given the maker of the statement was a child who was not subjected to cross-examination and whose statement was incapable of being properly tested.
In the decision of Johnson and Page [2007] FamCA 1235 the Full Court considered the applicable standard of proof. At paragraph 69, the court cited with approval the approach taken by the Honourable John Fogarty in his paper entitled ‘Unacceptable Risk – A Return to Basics’ ((2006) 20 AJFL 249). In particular, the court said (at para 72):
We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.
These proceeding were governed by the provisions of Division 12A of Part VII of the Family Law Act (‘the Act”). Section 69ZT provides that some provisions of the Evidence Act do not apply. However, s140 of the Evidence Act does apply and it provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
I must then consider the allegations of sexual abuse on the balance of probabilities taking into account the matters in s 140 of the Evidence Act.
In M and M, (supra) the High Court acknowledged there would be many cases in which it was not possible for a judge to make a positive finding that sexual abuse had taken place. He or she would then need to determine if there was a risk of sexual abuse, and assess the magnitude of that risk.
The court went on to consider the magnitude of risk that would justify a judge in denying a parent access to a child, and concluded that the test was best expressed by saying that a court should not grant custody or access (now an order in relation to with whom a child will live, or spend time), if it would expose the child to “an unacceptable risk” of sexual abuse.
In B and B (1993) FLC 92-357 the Full Court referred to the “unacceptable risk” test in M and M, and added (at p. 79,778):
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.’ In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
In the Full Court decision of Napier and Hepburn (2006) FLC 93-303 the question of unacceptable risk was considered by Bryant CJ, Kay and Warnick JJ. Their Honours Bryant CJ and Kay J said:
79.The determination of whether the child may have been abused required some assessment to be made as to the father’s credit in relation to his strenuous denials that he has acted inappropriately with the child. The child’s evidence itself was incapable of being tested or necessarily being accurately interpreted. His Honour said that he was unable to reject the allegation as groundless. In doing so, he must by necessary implication have rejected the father’s strenuous denials, but nowhere does he explain why he has done so.
…
84.There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.
99.Absent there being any reason not to accept the father’s denials, we are not persuaded that the evidence reasonably leads to a conclusion that unsupervised contact poses an unacceptable risk of harm to J.
Their Honours also said:
82.What potential there was for these events to continue to occur if they had previously occurred in the past, might well be diminished by the bright lights that have been shone upon the parties and their conduct, in the course of these proceedings.
The determination of unacceptable risk exists remains a challenge for the trial judge.
In a decision of Brown J in McCoy v Wessex [2007] FamCA 489 Her Honour set out the legal principles involved in relation to allegations of sexual abuse.
Her Honour reviewed the law relating to unacceptable risk including the approach adopted by the Full Court in Napier and Hepburn (above) and Potter v Potter [2007] FamCA 350 and observed that:
The Full Court noted (at para 79) that the determination of the question of whether the child may have been abused required some assessment to be made of the father’s credit in relation to his strenuous denials that he had acted inappropriately with the child, and that even a finding to the allegations could not be rejected as groundless ought not lead inevitably to a finding of unacceptable risk.
What is clear is that trial judges have a significant obligation upon them to set out clearly the reasons why an assessment has been made as to the father’s credit in relation to his strenuous denials. I have endeavoured to do so in this case.
In this current case before me I need to determine whether there is an unacceptable risk to the child R or the children if they were to spend unsupervised time with the father.
The evidence
The mother asserted that on 26 February 2008 R disclosed to the mother she had been sexually abused that morning by the father. That allegation needs to be contextualised.
The mother gave evidence in accordance with her affidavits[4] that the parties had been living together since early 1997; they married in Sweden in 1999 but had lived in Australia most of the time of their relationship.
[4] Filed the 29 April 2008, 14 August 2008 and 5 January 2009.
Overall the mother believed the marriage was happy. I interpose and note that the father said that this had not been the case for the previous three months before February 2008 in the context that the father’s unhappiness may have loomed larger in his mind that that of the mother. On balance, I accept the mother’s evidence that she regarded the marriage as happy and fulfilling at that time.
Up to 26 February 2008, the mother had no criticism of the father as a dad. The primary care giver of the children was and continues to be the mother. The father worked long hours but when at home was significantly involved with the children and they have a good and loving relationship with him.
The mother provides a positive picture of the father in her affidavit and observes that the children miss him. Since August/September 2008 the children have been spending supervised time with the father.
The mother’s evidence was thoughtful and considered and I gave it considerable weight.
As to the evidence of the mother she was particularly impressive. She was sceptical at the time the disclosure was made on 26 February 2008 and her immediate reaction, which I accept, was to talk to the father. Since that time with the further disclosures by R her views have changed and she now genuinely believes that the father abused R.
The February 2008 disclosure
The mother alleges that in the morning of 26 February 2008 the child R came into the bed where the mother and father were sleeping. At that time R was wearing a pyjama top, shorts and undies. The child remained in bed when the mother went for a walk at about 5.30am. The father and the child remained in bed asleep.
It had been the previous habit of both parents to sleep naked, although in recent times before February 2008 the mother had begun wearing underclothes and singlet to bed.
The mother said when she returned from the walk the father was getting ready for work and R came out of the bedroom wearing only her pyjama top. Initially the mother said she did not think much of it but shortly after the father went to work a conversation took place between R and the mother in the following terms;
Mother [R], where’s your undies? Why do you not have your pyjama pants and undies on?
[R]Daddy took them off.
MotherWhy would daddy take them off?
[R]Daddy was touching my murran. I was touching Dad’s snoppen (a slang Swedish word for ‘willy’ as in penis).
MotherDid he have undies on?
[R]No
Mother What happens to daddy’s snoppen when you touched it?
[R]Nothing, I like it when he’s in my murran.
MotherHis fingers?
[R]Yes.
Mother Daddy is actually not allowed to touch you murran. We need to talk to daddy.
[R]Please don’t. He actually said it’s a secret and we shouldn’t tell mamma, and [you’re] not supposed to tell secrets.
MotherDoes he do it often?
[R]No, ….. yes actually
MotherWhen?
[R]I don’t know.[5]
[5] Paragraph 22 on page 5 of the mother’s affidavit filed the 5 January 2009.
The child then complained of being sick and the mother decided to keep her home from school. The mother made notes of the conversation. The mother was an impressive witness and I am satisfied that the disclosure alleged by her to be made by the child in fact took place and that it was as she described it. That does not mean that I find that the events claimed by R took place, for they are very much in issue.
The mother’s initial reaction was conflict and confusion and then the subsequent development of a belief that it was true.
The father’s said he may have accidentally touched the outside of his daughter’s murran. He has, all times asserted that the touching, if it occurred, was accidental.
In some ways the father’s approach to this is confirmed by the letter he sent to the mother a few days later, when he says that he will need to be more ‘strict’ in the future[6].
[6] Exhibit C.
The father’s evidence in respect of those events is contained in his affidavit filed 18 April 2008 and more particularly in his affidavit filed 14 August 2008.
The father’s evidence is that at approximately 3.00pm on the 26 February 2008 he received a telephone call from the mother saying to him “how could you?” and telling him that he would be served with an apprehended violence order that the police would be coming to see him. The father says he was confused as he did not understand what the mother was talking about and was shocked by the conversation.[7] Upon returning home that evening after work he was served with an AVO (Apprehended Violence Order). He says the AVO alleged that he had behaved in a sexually inappropriate manner towards R, which he denied.
[7] Paragraphs 18 and 19 of the father’s affidavit filed 14 August 2008.
The father provided a statement to the police[8] and wrote to the mother in relation to the events.[9]
[8] Ibid at paragraph 23.
[9] Exhibit M C.
In the statement to the police the father says that he was in bed with the mother on the morning of the 26 February 2008. He was naked and R came and joined them in bed. The mother went for a walk and R asked him to tickle her on the back, which he did. He says he was dozing off R wanted him to tickle her again. He tickled her tummy until he drifted off to sleep. He says some time later she grabbed his hand and asked him to tickle her. He began tickling her, but was not quite awake, when he realised it was not on her stomach but on her leg. He stopped tickling her telling he had to get up and she gave him a hug high on his chest and got out of bed.[10] During the course of these events, the father says R asked him to “put his penis away”. There is no allegation that his penis was erect and the father’ evidence was that he pushed his penis between his legs to hide it.
[10] Exhibit D 2.
This has to be seen in the context that nudity, in this household, was considered appropriate. The father says that he may have accidentally touched the outside of his daughter’s murran when he tickled her leg.
The visit to Ms O’s home on 26 February 2008
The mother was upset by R’s disclosure and contacted a friend, Ms O. The mother and R subsequently, that morning, went to the O family house. Ms O is a New South Wales Police Officer and she, quite correctly, advised the mother to contact DOCS. The mother telephoned DOCS was advised by an officer of DOCS to move out of the home. Later that day the mother was contacted by a DOCS officer and arrangements were made for R to be interviewed that afternoon. R was that day interviewed by a Joint Investigation Response Team (JIRT) comprising DOCS and NSW Police Officers. After participating in that process the mother was told she was not allowed to go home and that the police would obtain an apprehended violence order against the father, which they did. Since the disclosure by R on 26 February 2008 the parents have not lived together.
The medical examination by Dr Z
The next day R was requested by DOCS staff to undergo an intimate physical examination by Dr Z. This examination did not reveal any physical evidence of sexual abuse.
Dr Z summarised her observations as follows:-
[R] is a six year old who disclosed an episode of genital fondling by her father the day prior to the examination. She had no genital symptoms to suggest any acute injuries. Her genital examination was normal. This is an expected finding in relation to the allegations of fondling.[11]
[11] Page 3 paragraph 3 of Annexure B of the affidavit of Dr Z filed the 11 August 2008.
There is an issue at the time of this examination about conversations that took place.
The mother says that when she and R saw Dr Z, the doctor said to R[12]:-
I am going to look at your bottom.
[12] Annexure A of mother’s affidavit (paragraph 46 page 41).
The child responded:
But that is not where he touched me
The mother then said:-
It was murran wasn’t it?
The child then responded:-
Yes
The mother pre-supposed that answer.
There are a number of parts to this. Firstly there is the issue of the mother leading R as to where she was touched. There is no doubt the question by the mother presupposed the answer and it was leading in terms of R being touched on the murran. What is also clear is that R disclosed to the doctor that she has been inappropriately touched.
An affidavit was provided by Ms H[13] who was present at the medical assessment of R. She had no recollection of the disclosure allegedly made by R while she was being examined by the doctor.
[13] Filed the 20 January 2009.
She said:-
I do not recollect, and have not recorded in the file notes, any comments made by [R] during the assessment that “Daddy didn’t touch me on the bottom, he touched my vagina” or words of a similar nature. While I do not deny that [R] may have said words of that nature, my usual practice would have been, if that had occurred, to make a file note regarding that comment.[14]
[14] Paragraph 12 page 5 of the affidavit of Ms H filed the 20 January 2008.
On balance, I prefer the recollection of the mother.
The earlier disclosure made when the child was aged about 3.
On 27 February 2008, at about the time when R was to be physically examined by Dr Z, the mother recalled an earlier disclosure by R. The mother informed the DOCS officer that when she was about 3, R had said to the mother:-
Daddy’s touching my murran.[15]
[15] Statement of mother to police dated 29 February 2008 annexure “A” of the mother’s affidavit filed the 14 August 2008.
This disclosure was made in 2004 or 2005. On the day it was made the mother raised the disclosure the father. The father denied any inappropriate touching and said that he would have touched the child in the context of changing nappies and putting on cream etc. The mother said to the father:-
I am going to keep and eye on you. I feel worried that I can’t trust you.[16]
[16] Ibid.
The father said:-
I haven’t done anything wrong but I can understand it is difficult for you.[17]
[17] Ibid.
The mother kept an eye the father and did not at that time notice anything was going on. The incident was not remembered by the mother until 27 February 2008. The mother’s response to the disclosure was appropriate. She raised it with the father, said she would monitor it and was then vigilant. Nothing further occurred between that time and 26 February, and the mother lost the incident from her immediate memory.
In his interview with Dr S (“the single expert”) the father said he recalled the incident vividly, it is reported;[18]
He [the father] was reading to [R] in bed when she was about three. The next day his wife said [R] has said that he touched her when he was reading to her. He said that he could not recall what had happened but he was quite sure he hadn’t. He said that his wife was very upset but no issues about it seemed to come up subsequently.
[18] Page 15 second paragraph of Dr S’s report June 2008.
The father did not dispute this part of the single experts report when he addressed it in his affidavit filed 14 August 2008.
It is not in issue that R’s first disclosure was made in about 2004 or 2005. It is not in issue that the child’s disclosure it was raised by the mother with the father. Counsel for the father, at one stage, submitted that the disclosure was not of inappropriate touching. However, based on what the father told the single expert was clearly an allegation of inappropriate touching. I am satisfied that the disclosure was one of inappropriate touching. I am likewise satisfied that the father denied such inappropriate touching at the time, and he continues to do so.
DOCS officers expressed concern that the mother did not tell them about the earlier disclosure on 26 February 2008. I have no concerns about that delay as there was no issue that such earlier disclosure had been made and it was to the mother’s credit that she did not recall it until the following day.
In addition when each of the disclosures was made by R they were appropriately acted upon by the mother.
The mother was subsequently warned by officers of DOCS that they have powers to remove the children from the mother’s care if she allowed them to see the father. The mother was informed by DOCS officers that they had to feel absolutely certain that the mother would not allow such contact.
On the available evidence, I do not make either a positive or negative finding that inappropriate touching occurred at that time. I am satisfied a disclosure was made
The father went on to tell the single expert that the mother did not seem to have a preoccupation with child sex abuse or related matters.
The JIRT Interview
The mother made a statement to the police setting out her recollections of the disclosure made by R on 26 February 2008.
Evidence was given by Ms M,[19] a senior child protection case worker employed by the New South Wales Department of Community Services.
[19] Affidavit of Ms M filed the 16 May 2008.
A view was formed by the Department after disclosure of the risk to the child was high and that it was not changed after the JIRT’s investigations. The direct face to face interview was between R and Ms M.
The child did not make any disclosures until such time as it was put to her directly. Whilst I understand the need to take that approach I am concerned as to the value of the disclosures in those circumstances. I accept that Ms M adopted an objective approach and did not initially put to the child the alleged disclosure.
The direct disclosure made eventually put to R into the interview (which in all ran well over an hour). The interview was conducted after a traumatic day for R and in circumstances where she had seen her mother quite distressed over a long period of time.
Ms M had four issues to which she was trying to illicit information from R during the interview.
1. That the father had touched the child’s murran.
2. That the father had R touch his penis.
3. That the father had placed two fingers into her (R’s) murran.
4. The question of the secret.
At about question 372 Ms M determined, after discussions with a police officer, that they had not achieved any or repeated any disclosures. From there on the questions were more direct. In terms of the keeping of the secret R remained with her view that the only secret was the special waterfall that she and her father had found.
Ms M endeavoured to be direct and it was only when question 411 was answered that a disclosure was made.
Counsel for the father observed that up until this time R had said on eleven occasions that the father had not touched her private parts.
In question 426 R asserted the first touching was that day which was inconsistent with what she said later.
In questions 482 and 483 R denied touching her father’s penis and the direct questions in relation to that and in relation to him placing his fingers in her murran were not put in the same form as the touching.
The mother was cross-examined in relation to R’s statement to the JIRT team and acknowledges there were times when R was not truthful. There were other times when R was truthful. In particular whether what her view of R becoming truthful, after it was disclosed that the interviewer was aware of the statement she had made to the mother earlier that day and then saying that it didn’t happen at all. The information taken from the child in that interview was led from the child and is in many ways concerning.
R says in her initial disclosure to the mother that the father removed her pants and knickers. She tells the JIRT interviewer two things, that they were “pulled down down down” and that she tried to take them down and she pulled them up, and then in another area said she took them off. I have some concerns about the JIRT interview as to the leading questions towards the conclusion of the lengthy session and the time of the session itself.
In the JIRT interview it is of concern at question 237 there is a disclosure by the child of the removal of the pants which was ingenuous as reported by the single expert. This is supported at questions 254 and 267 and indirectly questions 270 to 275, the father pulling down the child’s pants and the child pulling them up again. The child feeling uncomfortable because of the “furry ouchy stuff” on her bottom.
Question 314 related to a jumping tickling game and I have made comments about this elsewhere in my reasons.
There are also numerous denial of any wrongdoing by the father to the interviewer. Whilst I do have some concerns about the JIRT interview, I do give it some weight, especially in terms of ingenious behaviours referred to by the single expert.
Subsequent disclosures and other concerns
R has made other disclosures since that time, she has expressed the pleasure she had from the father allegedly touching her.
The mother gave evidence, which I accept that the child had a pre-disposition to masturbation. The mother was concerned that R had masturbated as a very young child, the mother often saw redness around the child’s clitoris. In addition the child sometimes had a rash that was irregularly visible. This rash has ceased since February 2008. I make no adverse finding in respect of the father in this regard, but it is part of the material before me in determining risk to the child or children.
R had also told the mother that when she showered with the father he tickled her and said “whoops” on a number of occasions as he touched her inappropriately.[20] That disclosure was made sometime between 26 February 2008 and August 2008.
[20] Page 13 of Dr S’s report dated the 20 June 2008.
Ms O gave evidence in accordance with her affidavit. She relates a disclosure by R to her daughter after February 2008 and in circumstances where the effect of the catastrophe had impacted upon all members of the family. She says R said words to the effect:-
Well, he’d done some things so he can’t live with me anymore. He was liking me too much and he was sitting too close.[21]
[21] Paragraph 10 page 3 of the affidavit of Ms O filed the 19 January 2009.
Ms O says her daughter said;
“oh does he fancy you” and [R] said “yes”…… “my dads been bad and that’s why I can’t see him”.[22]
[22] Ibid.
Ms W also relates a disclosure by R to her that the father had done something “bad to her” that he had “touched her” which was why he was “no longer living with them”.[23]
[23] Ibid paragraph 9 page 2.
At paragraph 88 of the mother’s affidavit filed the 5 January 2009 the child is reported to have said;
….I don’t think daddy’s telling me the truth. He said he was tickling my hip but he touched my murran.
I accept that the mother heard this disclosure that the child has continued to make disclosures which are set out at paragraph 82 of the mother’s affidavit.
The mother’s present view about the allegations of abuse
I find that the mother’s belief that R has been sexually abused is genuine. The mother will accept the decision I make but her evidence was, which I accept, that she will always believe that the father had sexually abused R.
The mother puts the interests of the children before her own. It is clear from the evidence that she was shocked by the disclosure and wanted to have it clarified by the father. The mother was concerned that the father may have minimised the disclosure. The mother relied upon the advice, guidance and at some levels threats of the DOCS officers.
The mother’s evidence is that if the children were with the father for longer periods she would find it difficult to manage bearing in mind her beliefs.
The mother has now come to the conclusion that the father was “grooming” R. This has an element of re-construction. The mother had initially told a counsellor that the father was not a “daddy sort of dad” and she had to “push him with [R]”. She had to push him into spending single time with R and reading to her at night.
I am concerned about the evidence of the mother in relation to the grooming as I indicated earlier. On the evidence it seems the father did have a special relationship with R but this was encouraged and promoted by the mother.
I am not satisfied there evidence of grooming by the father in respect of R.
The child’s counsellor
Ms K gave evidence in accordance with her proof of evidence[24]. Also tendered were her files[25]. Ms K is a specialist child protection worker in Northern Sydney Child Protection Service. Her qualifications are not challenged.
[24] Exhibit M1.
[25] Exhibit M2.
Her task was to provide an assessment of the psychological and behaviour of the alleged sexual abuse to determine her therapeutic needs.
R met Ms K on 20 March 2008. R was defensive in terms of the allegations of sexual abuse. In her second last session in August 2008 R made a disclosure to Ms K. This was in the context of this being the last meeting with the counsellor and in the context of R having requested no further involvement.
Ms K was not provided with any significant material in terms of the mother’s statement to the police or R’s statement to the JIRT. It was not her role to investigate or determine the allegations. It seemed from the material that she accepted that the allegations were established and she did not discuss the allegations with the child except when the child raised it in the last session.
Ms K said R had made it clear she did not want to come back and that she continues to feel guilty about the disclosure.
Ms K is concerned that R may not report if she was inappropriately touched by the father. In terms of the counselling Ms K was cautious about the progress, if any, which had been made.
The evidence of Ms K was not assisted either way. It could be indicative of a child who had been subject to sexual abuse or a child who had been caught up in the vortex of the events that followed on 26 February 2008. It is of weight in terms of the risks to R into the future.
The Single Expert
The single expert gave evidence in accordance with his report. His qualifications were not in issue and his evidence was not impeached by any of the parties in cross-examination. The single expert said a clear statement of certainty of risk could not be made in this case because the details of the incident were revealed by “leading questions and ingenuous slips, and opinions on demeanour consistent with the allegations and attempt to cover up about it”.[26] However, his view was that they did raise “the level of concern above a threshold”[27] which he would regard as an unacceptable risk. This evidence was given in the context that the question of unacceptable risk was for the court to determine not the expert.
[26] Paragraph 2 page 23 of Dr S’s report dated the 20 June 2008.
[27] Ibid.
Further his evidence was that risks to R were “reasonably clear cut……”[28] and that the best way to protect her from the risk of abuse was for her to be separated from the father or properly supervised.[29] He went onto say that it was difficult to know if T was at risk from his father, as there was no evidence that the father had “interfered” with him, but said this could have been successfully concealed. [30] However, he did note that a “man whose orientation is basically heterosexual could be expected to pose a significantly higher risk to his female children than to his male children”.[31] I accept this evidence.
[28] Ibid at paragraph 3.
[29] Ibid.
[30] Ibid.
[31] Ibid.
The single expert discussed the effects of sexual abuse in children and said it could be associated with other forms of harm to children. At paragraph 4 on page 23 he observes :-
….some fathers are sexually predatory in a primary and impulsive and visceral way, being prepared to assault females of almost any age to gratify a sexual need. Sexual assault at such a primitive level is often associated with other forms of impulsive behaviour which is harmful to children, including physical and verbal violence. Such men often have very poor relationships with their children, who are basically in fear of the next outburst, sexual, verbal or physical.
At the other end of the spectrum are men whose sexual abuse of their children is much more in the form of a seduction and depends on the maintenance of a bond of affection between them. This pattern is also more often associated with what has been described as “grooming” behaviour. Such men are often very caring with their daughters, favouring them over their other children. In such cases the risk of other forms of harm are quite different. Firstly, the risk of physical and verbal violence is relatively low. Secondly, the process of indoctrination into sexually compliant behaviour is associated with a form of corruption of children’s values. While this process may be confined to the child who is the victim of the assaults, other children can also be contaminated with dysfunctional value systems which are communicated in an apparently pro-social way. Among other things, in the longer term these values may contribute to the children in turn growing up with little or no respect for the rights and personal integrity of others and/or can be vulnerable to entering into abusive relationships as a victim when they are grown and not protecting their own children.
The single expert’s concerns on pages 22 and 23 of his report, referred to above, gives rise to concerns about the disclosures made by R in the context of the disclosures by the mother and all of the other facts in this case.
The single expert was also concerned about R’s behaviour, avoidance of the alleged incident during the JIRT interview and changes in her demeanour in that interview. It is of some weight. The child has not recanted where she could have done so.
The child told the mother she was lying in the JIRT interview in not repeating the disclosure, because R did not want the father to leave. The single expert says of the child;[32]
I note that the JIRT has taken the view that the interview, conducted on the day of the alleged events, were not support of prosecution as the apparent more detailed disclosures had been “led”, but that the matter was not going to be finalised at that point as it was possible [R] might be able to make clearer and more definitive disclosure when she was somewhat older. It goes without saying of course it is also possible on the same basis where she might make a subsequent statement which would in effect exonerate her father, although such statement could be attributed to the effects of grooming, falsification in order to spend time with her father.
[32] Paragraph 1 page 21 of Dr S’s report dated 20 June 2008.
The single expert believed that if I was satisfied there was an unacceptable risk there would need to be supervision of face to face time. That supervision would need to be carefully considered because of the need to retain the relationship between the child and the father.
The single expert was cross-examined as to when supervision of the time the children spent with the father should cease. The single expert gave a general response but could not be specific so far ahead in the life of R. This court can not put in place arrangements that far ahead, bearing in mind that state of the evidence.
In terms of the communication between the child and the father by telephone, Skype and the like the single expert said there ought to be some initial supervision, but after that his evidence was that the mother was a ‘steady’ sort of person and she would be able to manage that aspect. I accept that evidence.
The single expert gave evidence as to the qualifications for a supervisor. Questions were endeavoured to be asked as to whether the paternal grandfather would fall into that category, however, that is a matter for my determination.
The single expert said that supervision should remain in place and that its continuation would need to wait to such time as R is able to self protect and there was confidence that she would disclose. He could not be specific at this time, as to that time, but he believed the mother was well placed to know when that time was safe. After having seen and heard the mother, I agree with his assessment.
The single expert thought well of the mother in terms of her skills as a mother, which accorded with my views. He observed that the child was fidgety during the JIRT interview which may well have been either tiredness or concern about the nature of the questions.
Discussion
The disclosure on 26 February 2008 was not sought by the mother, it arose in the circumstances where the mother asked R why she was not wearing her pyjama pants and knickers. I accept that R from time to time did not wear pyjama pants and knickers. There is a conflict in what is said by the father and what is said by R in terms of the removal of the knickers. The father’s evidence is that R had on pyjama pants and knickers and went to the bathroom and came back not wearing them. The pants and knickers were found later by the mother in the bed.
I make no finding that the father did or did not remove R’s knickers on 26 February 2009.
I find that there is no evidence of the father having an undue interest in children and I accept the evidence of the single expert that the “Pied Piper” type of behaviour asserted by the mother with regard to the father is normal behaviour.
The Independent Children’s Lawyer and counsel for the mother say that the tickling game was an opportunity for the father to blur the boundaries between play and inappropriate behaviour. The tickling game was played by both parents and was not objected to by the mother. The father played a tickling game with R where he tickled her tummy and then her legs but steered clear of her private parts. I am not satisfied that the “jumping tickling game” is any way indicative of abuse. Quite the contrary it seems to me where it shows the father was careful in terms of how he tickled the child.
However, I am concerned about the disclosure made to the single expert. At page 13 of his report he observes:
I asked her if [R] had said anything else of relevance to her since February 26th. She said that she demonstrated to [the mother] in the shower how he had (stroked) and tickled her hips and that when he did touch her, he would say “woops”.
The father asserts that this did not occur. But it is a further disclosure by the child of the blurring of behaviour. Much has been said about the value of the JIRT interview. It must be seen in the context of an interview of a relatively young child. The child made false statements in that interview and made positive statements in that interview. It was the submission of the father that no weight out to be given to that interview. I disagree.
The mother says that R was very close to the father and would have initially denied his behaviour to protect the father.
I am satisfied that on 26 February 2008 R must have realised her disclosure was significant. She could not have otherwise done so bearing in mind the reaction to her mother. I find that she was nervous, had vomited in the car as her mother drove from the family home to the home of Ms O and I accept the evidence of Ms O that R was nervous. R could not but have picked up the mother’s anxiety, and I accept the evidence of the mother that R was attuned to her moods and reactions.
Further, at the time of the interview R had been up since early that morning and in circumstances of great stress. The child was sick that day and the interview went for well over an hour.
I am concerned by the evidence about the ingenious hand movements (the two fingers) in the JIRT interview, referred to by the single expert. Although that evidence must be seen in the context that the child may well have been masturbating and that was her sense of how that was done, likewise it is possible it could be an accurate recollection of the child as to what happened.
The child often displayed redness and/or a rash around her clitoris which has not occurred since February 2008.
The child’s response to counselling with Ms K is also troubling. R’s defensiveness, her reluctance to attend, her disorganisation and regression are concerning. I am satisfied that the child believes that her father has done something bad to her and she has a conflicted loyalty as a consequence to that (either true or mistaken) belief. It is of significance that the child has not recanted in the circumstances where it must be apparent to her that her disclosure has had a significant impact on the family. I accept that the child feels guilt and perhaps responsibility for the events that followed the February 2008 disclosure.
I am concerned that R at present is unable to self-protect. She has the conflict with the love for her father, and it is possible that as a consequence of her knowledge of the impact of this disclosure that if there was inappropriate behaviour, she may not disclose.
In November 2008 the child said of the counselling that:-
I like craft but private talks are hard.[33]
[33] M2 page 2 paragraph 1 of the notes of Ms K dated the 21 November 2008.
The Counsellor said;
[R] can tell her mother if she wants to come back for more counselling. [R] agreed to this. The counsellor said she told [R] that she has noticed that she seems more confident in talking about the hard stuff.[34]
[34] Ibid.
The Independent Children’s lawyer submitted that this was all the counsellor could really do with the child because of her unwillingness to engage in counselling.
I give some weight to the statement of the child to the single expert when the child said “she remembered how it felt”. And when the single expert reported;
She kind of liked it and part of it she did not like.[35]
[35] Page 9 paragraph 8 of Dr S report dated 20 June 2008.
It was of concern to the single expert that the child express a liking of the alleged touching, and this predicated against further disclosures.
The father’s denials were strong and consistent. He ought not to be criticised for his letter of 29 February 2009. I give no weight to the submissions of the mother and Independent Children’s Lawyer that the father’s description of the touching allegedly contained or implied in this letter was an admission by him of inappropriate touching of R.
The father’s expression of not being strong enough was clearly in the context of not telling the child to put on her pyjama pants and underpants and perhaps being too accommodating of the children (this in many ways reflects the evidence of the mother who says the father wanted to be the player but not be parent with all of the broader implications that that involves).
I accept the submission of the Independent Children’s Lawyer that the mother is not malicious or mischievous and that the allegation is not in any way associated with home sickness or her desire to return to live in Sweden.
The mother considered alternative explanations, she acted appropriately to protect the child and put the child’s interests above her own. She was concerned that if she spoke with the father on that day she may be persuaded out of what was (in her mind) a clear disclosure.
I accept the evidence of the single expert that if the father did act inappropriately with the child, and a finding of unacceptable risk is made, it is less likely that he would offend in the future.
There is no test in finding an unacceptable risk. I need to and I have deeply considered the evidence, and I looked at the past to consider the future. The submissions of the mother were the nature of the events to look at who had made the allegations in particular the mother’s knowledge of the child from 6.00am on 26 February 2008. I do not discount the JIRT interview.
It was submitted that the child may well have been seeking the mother’s approval in making and continuing to make disclosures. I do not think this is the case.
Paragraph 82 of the mother’s affidavit R says:-
Why is what daddy did so bad?
The child was not looking for praise.
Paragraph 88 of the mother’s affidavit is a question where there is no seeking of praise by R.
Paragraph 92, of the same affidavit, was not indicative of R seeking praise.
Disclosures have been made by the child to the single expert. These are set out in his report. At page 15 point 6 of the report where R is reported to say:-
….the father was the one touched her and that she had not touched him,
Similarly at page 15 point 7 where R is reported to say:-
…..she worries he might touch her, but then she told me that she was not really worried he would do it because he only does it when people cannot see them in bed.
Also at page 16 of the report at point 3 where R is reported to say:-
He does it and keeps doing it.
The single expert said he asked her what she meant and R replied “Touching my murran”. R clearly feels guilty and responsible, again the child is resistant to counselling and was at one stage worried about the father’s anger. She was reflective about the incident and worries about the love of her father.
Before the disclosure on 26 February 2008 the mother said she was in a relatively happy marriage, there was no mistrust, no hyper-vigilance. The father’s view of the marriage was that up to November 2007 the marriage was strong without any significant difficulties. He says there were difficulties in the marriage between November 2007 and February 2008, arising from the mother’s long term wishes to return to live in Sweden. The father said that the mother was not looking for a reason to move to Sweden although both parties concede that a move to Sweden was something that the mother considered from time to time.
As I have said earlier, I prefer the evidence of the mother and I find that it is not a factor in the disclosure on 26 February 2008 or subsequent evidence by the mother of disclosures by R.
The Independent Children’s Lawyer submitted that the children were at unacceptable risk. She said the starting point was the disclosure made when the child was three. There is no prior antipathy against the father by the mother.
The father says both parents acted appropriately and neither generated into adversarial approaches, they endeavoured to deal with this difficulty well.
In the JIRT interview the child denied the disclosure eleven times until the direct report was put to her although the child later said she had lied because “she did not want her daddy to leave”.
Counsel for the father submitted that any disclosure made by the child following the discussion with the mother on the 26 February 2008 could not be accepted and/or relied upon as a result of their contamination. He relied upon the caution exercised by the single expert in relation what weight should be attached to the JIRT interview. In particular he relied upon the observations of the single expert at paragraph two, page 23 of the report where he says:-
Details revealed by leading questions and ingenuous slips and opinions on demeanour consistent with the allegations attempts to cover up about it, do not, in my view, enable a clear statement of certainty of risk.
Further he submitted that during his evidence, when asked “of the material that he had seen since preparing the report, the DVD of the father’s interview with the police, the updating of affidavit material, the updated notes of Ms [K], [Mr B], the other affidavits of witnesses”, the single expert was still unable to make a clear statement as to risk. Counsel submitted on this basis I was not able to make a finding of unacceptable risk. I have considered that submission and I do not accept it.
In relation to the touching incident on the 26 February counsel for the father submitted, that if it was intentional he would have hardly tucked his penis between his legs so she did not come into contact with it. He would have allowed the child to have done so, because that would have been his intent so far as abusing R, but this was not the case. The father adjusted his behaviour so that the child did not come into contact with his penis.
In relation to the disclosure when R was three years old, counsel for the father submits it is impossible for me to determine whether or not what R said to the mother was in fact a disclosure of inappropriate contact or whether it was a description of the father simply undertaking normal parenting duties. He says the mother’s recollection of these events is unclear, as to the circumstances of when the child said this to the mother or whether there was any further conversation about it. However, counsel for the father submitted, what was clear was that since the alleged disclosure the mother had requested that the father play a greater role in the parenting of the children. He says if the mother did have concerns one would assume she would be cautious in allowing the father to have opportunities of being alone with R since then.
Counsel for the father also submitted that if I accepted the touching was accidental, as the father alleges, I would not be able to find there was a culture of each of them telling the other in respect of issues surrounding nudity, in those sorts of matters. He there is no evidence that the mother, post the child telling her what he did when she was three years old, changed her behaviour on her stance or her attitude on nudity in the home. He says it was only that in about September/October 2007 that she started wearing bed clothes because the child had complained she did not like her pubic hair touching her. He says there was nothing to suggest there were any concerns raised by the mother about the father’s conduct in the home prior to February 2008, post the child making those comments to the mother when she was about three years old.
Further, he says it is not consistent with any pattern of grooming or pattern of the father engaging in private activities with the child to the exclusion of the mother. In fact, he says the mother’s evidence was that she was urging the father to participate in activities with just the father.
There is no evidence of grooming. The father acknowledged that there could have been accidental touching. In terms of assessing the future risk, there is risk, bearing in mind all of the matters set out and I do not accept the submission of the Independent Children’s Lawyer that there are no future risks.
The Full Court in the decision of Napier and Hepburn (2006) FLC 93-303 said at paragraph 91:-
That brings us back to the need for the trial judge to have focused not only on the magnitude of the harm to which the risk related but on a likelihood of the conduct complained of occurring in the future. Sometimes it is a very uneasy balance, but the denials of the alleged perpetrator of the alleged past abuse cannot be ignored and must be evaluated.
There is the disclosure of the child to Ms L and Miss O. Paragraph 4 of Ms L’s and paragraph 9 of Ms O’s affidavit.
I am satisfied that the child has in part supported the disclosure in the JIRT interview.
The Independent Children’s Lawyer submitted that the father’s denials in his letter of the 29 February 2009 were of concern. She said the detail around removing R’s hand from her belly and putting it on his penis was worrying, because why would the father respond to it if nobody has ever suggested it to him. She went onto say it was of further concern that at page 2 of the letter the father says:-
Do I have a problem, maybe, maybe not being strict enough and giving in makes me weak. Am I prepared to find out if I have a problem, absolutely and I will take any action I am advised to take.
As I have said earlier, I do not give this any weight.
Counsel for the Department of Community Services submitted there was unacceptable risk and said that I ought not disregard the JIRT interview.
Counsel for the Department also submitted that if you accepted the father removed R’s underpants and pyjama pants, it is further evidence that the father’s behaviour was not accidental. Because the evidence is that when R came into bed she was wearing her underpants and when the mother left to go for her walk R was wearing her underpants. R’s underpants were found in the bed. I make no finding about how R came to be without her pants.
The father acknowledges that there was an issue raised when R was about three in substantially the same terms as the mother. The father is somewhat ambivalent about the mother’s motives. The mother had, prior to this allegation and after this allegation, expressed a desire to return to live in Sweden.
The father thinks that in some way the allegation may be related to the mother’s desire to move but said it was not precipitated by that desire.
There was no meaningful evidence of any consequence to support this assertion. I am satisfied whilst that the mother did not form an intention to relocate permanently to Sweden until after the events of February 2008. The mother certainly had discussions with the father from time to time about living in Sweden but this is in the context where she accepted that the parties were living in Australia and she was living in what she regarded as a happy marriage in Australia up to February 2008.
I find that the mother wishes to return to Sweden but that these disclosures did not precipitate or arise out of that wish.
The mother took steps to protect her children notwithstanding her love of the father. That was the appropriate response by her. The Department of Community Services, who are often the subject of public criticism, adopted a very child focused and child protective approach in this case.
I have read the report by the single expert in relation to the father and he rightly observes:-[36]
Details revealed by leading questions and ingenuous slips, and opinions on demeanour consistent with the allegations and an attempt to cover up about it, do not in my view enable a clear statement of certainty of risk. However in my view in this case they do raise the level of concern about the threshold which I would regard as unacceptable risk if the court forms a view that inappropriate contact was not simply accidental, as is argued by [the father].
[36] Page 23 Dr S’s report dated the 20 June 2008.
I agree with the single expert’s analyse.
I am satisfied on balance that the father touched R’s murran on the morning of 26 February 2008. I am unable to determine whether it was accidental or not. I am not prepared to make a positive finding that it was or was not sexual abuse.
The father saw a psychologist Ms N in March 2008 which she said arose from him being depressed and shocked following the events of 26 February 2008. The material and cross-examination do no more than to confirm that he was distressed and very unhappy with those events. During that time the father also attended Relationships Australia.
It is troubling that, in the note from Ms H[37], Ms H expressed a view that they believed one hundred per cent that the child had been abused. It is a troubling determination in the light of the disclosures made that day.
[37] Tab 16 28 Feb 2008.
There was some implied criticism of the mother that she required the child to undergo a physical examination. This was clearly the part of the case plan by the Department. The mother ought not be criticised for that.
The mother mentioned some concerns she had about the computer material and the police did not undertake a forensic search of the computers, and as such I give it no weight.
The evidence of the single expert was that if the father had been abusing R he would likely fall into the spectrum of “men whose sexual abuse is more in the form of seduction and where there is grooming”.[38]
[38] Page 23 Paragraph 5 of Dr S’s report dated 20 June 2008.
The history given by the father does not provide anything specific to give rise to a previous position of abuse nor is there anything which shows that the mother could be cavalier in terms of her evidence, in fact quite the contrary.
There is an issue in relation to the father’s letter of 29 February 2008[39] where he says:-
Yes I have moved [R’s] hand off her belly so I can tickle her, not onto my snop (penis).
[39] Exhibit M C.
It was put that this was in response to an allegation that had not been made to the police to him in specific form, nor the mother, nor in the apprehended violence documents. I am not overly troubled by this.
The single expert, like me, struggled with the factual platform in this case. On page 22 and 23 of his report he says:-
Turning to the allegations themselves, I pointed out leading elements in interviews, particularly when the more clear-cut “disclosures” are made. However bearing in mind [R’s] very strong love of the father, the fact that she is bright and I am sure that she picked up that touching on her private parts was a wrong thing as soon as she told her mother what happened, and it appears to me that she has thrown a great deal of energy into avoiding the subject in general and any affirmation that the section of the central elements of it to others, while at the same time there seems to have been some “leakage” of either an ingenuous type or without thinking, I am concerned that she did in fact offer a truthful account at the outset.
Details revealed by leading questions and ingenuous slips, and opinions on demeanour consistent of the allegations and an attempt to cover up about it, do not in my view enable a clear statement of certainty as to risk [I agree with this proposition].
However in my view in this case they do raise a level of concern about the threshold which I would have regard as unacceptable risk if the Court also forms a view that inappropriate contact was not simply accidental, as is argued by [the father].
After considering all of the evidence and the risks into the future, I am satisfied that there is an unacceptable risk to the child of being abused by the father and as such the child should not spend unsupervised time with him.
This must apply to both children, firstly because not to do so would expose R to possible further consequences in her seeing herself as being punished for the disclosure. In addition it has the capacity to impact on the relationship between the siblings. There is evidence that R has said to her brother that she is loved more because she was abused.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.
The object of Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles set out in s60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of the parents of a child has complete but several parental responsibility for their child pursuant to s61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s61DA of the Act. Section 61DA is part of the amendments and became operative on 1 July 2006. The section provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[40] for the child. The section provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in s61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in s65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
[40] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There will be a detrimental effect on the relationship of the child and the father by virtue of this decision. Their relationship was a good relationship and was stagnated even by the best arrangements of supervised time.
I refer to the matters set out later in these reasons regarding the advantages and disadvantages of the children relocating to Sweden or remaining in Sydney.
However, counsel for the mother submits, both children have already had to make significant adjustments and that a move to Sweden is likely to be a positive one, because the children have a well established loving relationship with their maternal grandmother and cousins.[51]
[51] Paragraph 60CC(3)(d) of page 17 of the Case Outline Document of the mother dated the 15 January 2009.
I believe that the impact on the children of their move to Sweden will be a beneficial one. The accommodation, employment for the mother, and the emotional support of the mother’s family significantly outweigh those available to her and the children in Australia. If I allow the move to Sweden the children would be separated from their father.
However supervised visits will be in place and there will be sufficient funding for these visits.
Section 60CC(3)(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
There will be practical difficulties with regard to the children spending time with and communicating with the father bearing in mind the geographical difficulties of the mother residing in Sweden and the father residing in Australia.
In a broader sense there are issues about whether the parties can fund the two trips per year. It seems to me that the parties do have some assets and their property although it is not clear as to the precise amount but they are relatively significant and I propose to direct the mother to put aside into a trust account the sum of $27,000.00 to meet the cost of her returning to Australia once a year into the future. The mother can spend up to $9,000.00 from that fund in each of the next three years to fund the return of the children to Australia. I note that the mother acknowledges that any child support payable by the father can be set off against his travel to Sweden to visit the children.
Whilst the father’s job is at some risk at the moment bearing in mind the appointment of a receiver to his employer, his work history is such that I am confident that he is likely to remain in full time employment into the future albeit it is possible it will be at a lower income than that that he is currently receiving.
The mother is proposing that the children have regular Skype and video contact with the father although the single expert says it would be probably better two or three times per week. This would initially be supervised by either the mother or their maternal grandmother from Sweden. The mother is the primary carer, although I accept the father is significantly involved in the lives of the children and that they love him dearly.
The difficulties will also arise out of the need for supervision. However, I will put in place orders that allow for the paternal grandfather to supervise the time the children are to spend with the father when they spend time with him in Australia.
It would not be appropriate for T to spend unsupervised time with the father and R’s time to be supervised as it would be seen by her as punishing her for making a disclosure. The single expert also concluded that similar orders should apply to both children if the court found that the “likelihood the father had assaulted [R] exceeded the requisite threshold:[52] Further his view was that this would minimise the risk and effectively contain the time T spent with his father to ensure that the particular values were not passed on.[53]
[52] Ibid at paragraph 7.
[53] Ibid.
I am concerned and have had regard to the evidence of the single expert[54] that the children will miss their father desperately if the mother goes to Sweden. The children will have at least two visits with the father per year which will be extensive.
[54] Page 19 and 20 of Dr W’s report dated 20 June 2008.
I intend to expand the time the children spend with their father between now and when they leave for Sweden in late July 2009.
I anticipate when the mother returns to Australia in the June/July holidays from 2010 onwards that there will be no overnight time at least for the next few years but that day time can be supervised by the paternal grandfather.
The mother’s arrangements for the time the father spends with the children in Sweden are:-
for periods up to two weeks, during the day on the days he is in Sweden, (taking into account school and extra curricular commitments) but not less than from between 4.00pm until 8.00pm each day, such time to be supervised by a member of the mother’s family or other person as agreed between the parties.[55]
[55] Ibid at paragraph 9 on page 5.
I approve of those and I will make orders accordingly.
Section 60CC(3)(f) the capacity of:
each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Both parents have the capacity to provide for the needs of the children including their emotional and intellectual needs. However, this must be seen as subject to the findings I have made with regard to the father in terms of the risk he poses to the child. This is supported by the evidence of the single expert who observers:-[56]
Setting aside the allegations of sexual abuse, I formed the view that both parents have been capable and dedicated. They had agreed on a division of labour with [the father] working long hours and [the mother] maintaining major part time employment and doing much of the day-to day parenting. They did a great deal together as a family, including quite a range of outdoor activities. This has been converted into what appears to have been quite a cohesive family unit with the exceptions of some tensions within the parents’ relationship, which seemed to have been managed in a relatively low-conflict way, and the children seemed to have developed a strong and deep attachment to both their parents.
[56] Ibid at paragraph 5 on page 20.
Further, counsel for the mother submits “that the mother has shown a capacity to meet [R’s] needs in the most difficult of circumstances, including supporting her through interviews, counselling, medical examination and supervised with the father. Likewise she has helped [T] through his distress over his parent’s separation and has protected him from the details of the allegations involving his father and sister”. I adopt that submission.[57]
Section 60CC(3)(f) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
[57] Paragraph 3 on page 18 of the mother’s Case Outline Document dated the 15 January 2009.
The children have both and Australian and Swedish cultural heritage whether they are living in either Country.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I am satisfied that the mother has demonstrated an appropriate attitude to the child and to her responsibilities of parenthood. When R made the disclosure to the mother on the 26 February 2008 the mother considered alternative explanations. She acted bona fides to protect the child and put the child’s interests above hers.
Despite the allegations the mother provides a positive picture of the father in her affidavit and observes the children miss him. She has continued to promote their relationship with the father and since the August/September 2008 the children have been spending supervised time with the father.
The mother has also shown a capacity to meet the children’s needs which I have discussed elsewhere in these reasons.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
There are no issues of domestic violence in these proceedings with the exception of the issues of the allegations of sexual abuse which have been discussed earlier in these reasons.
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
On the 28 of February 2008 the mother obtained an apprehended violence order against the father to prevent him from returning to the former matrimonial home. The order provides protection for R and is due to expire in March 2009.
The apprehended violence order was put in place at the suggestion of DOCS officers and in the circumstances of the disclosures on 26 February 2008 which have been discussed earlier.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
If I put in place orders, which allow for the development of unsupervised time, it would not be protective of R. There is the possibility that R would fail to disclose inappropriate behaviour because of the impact such a disclosure would conflict with the love she has for her father. The mother’s evidence was that the child would need further counselling as the counselling to date has not met the needs of providing sufficient protective devices for the child. There is further risk to the child as she describes the alleged abuse as desirable.
I will now set out my considerations in respect of the section 60CC(2) factors. In considering the primary factors I have had regard to all the other factors. I have had regard to all of the evidence in relation to each of the factors and the interaction between those factors in considering the extent to which the children will benefit from having a meaningful relationship with their parents and the need to protect the children from physical or psychological harm or exposed to abuse neglect or family violence.
Section 60CC(2)(a)
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
I am satisfied that a “meaningful relationship” can be retained between the father and the two children, whether I commit the mother’s relocation to Sweden or she remains in Sydney. There is a good relationship in place at the present time. The mother had worked hard to develop this up until February 2008. In her proposals and in her evidence I am satisfied that she will continue to do so. In the circumstances of my findings of unacceptable risk, and consequent ongoing need for supervision, it will be difficult form the father to have a ‘normal’ relationship with the children whether they are in Australia or Sweden.
The mother did not allow contact between the children and the father between February 2008 and August /September 2008 on the advice and under the threats of the DOCS. When orders were put in place by the court she complied with these orders.
I am satisfied there is a benefit to both children of having a meaningful relationship with the father and that it ought to continue into the future.
There is no issue that there ought to be a meaningful relationship between the children and both parents. If it were not for my concerns about the father being an unacceptable risk to the children in terms of spending unsupervised time with them, I would have made an order for shared parental responsibility.
Section 60CC(2)(b)
(b)the need to protect the child from physical or psychological harm from being subjected to, exposed to, abuse, neglect or family violence;
This is one of the major issues in relation to these proceedings. I have discussed in detail, earlier in these reasons my concerns in finding that R is at unacceptable risk of abuse in the unsupervised care of the father. The only way this can be properly dealt with is by way of supervision (which I intend to put in place) and the nature of supervision and my determination that at this stage and probably for years to come it would be inappropriate for R to spend overnight time with the father.
The orders I will put in place will protect the children from being exposed to physical or psychological harm but enable them to continue and have a meaningful relationship with the father.
Section 60CC(4) of the Act
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
I have had regard to the events that have happened and the circumstances that have existed since separation occurred in February 2008.
I have made orders that the children spend supervised time with the father both in Sweden and Australia.
In coming to the conclusions in these proceedings I have reflected on all of the evidence to consider the extent to which the children’s parents have fulfilled or have failed to fulfil their responsibilities as parents as set out in s60CC(4). In having regard to all of the material before me and all of the findings of fact I determine that in my view the best interest of the children are served by the orders set out at the commencement of these reasons.
Nothing new arises out of the considerations of the matters in s60CC(4) and (4)(A) which have not already been discussed in detail in these reasons. I have dealt with almost all of those issues in these reasons so far.
The father has maintained the children financially to the extent where he encouraged the mother to remain in the former matrimonial home. The mother did not do so as she wanted to spend more time with the children and did not wish to spend her life maintaining the home.
I accept her evidence in that regard.
I will now evaluate the competing proposals of the parties in respect of the mother’s application to relocate to Sweden with the children.
Factors in support of relocation to Sweden
The mother is Swedish; she was born in Sweden and spent most of her early life in Sweden. She moved to Australia shortly before her marriage to the husband.
The children have been regular visitors to Sweden and have a great deal to do with their extended maternal family. The children speak to the maternal grandmother about once a week and with their maternal aunt and uncle about once a month, although they communicate via email more frequently. The children’s maternal grandmother has travelled to Australia on four occasions, the most recent was following the separation of the parties. The children have a close relationship with the extended family, especially their cousins, and are excited about the prospect of living in Sweden[58]. They will be in close proximity to their maternal family and would have a greater opportunity to explore that culture in depth and enjoy the extended family if they return to live in Sweden.
[58] Paragraphs 100 and 101 of the mother’s affidavit filed 5 January 2009.
The mother would have a secure financial support from her family and in employment.
The mother will no longer be alone as she will have the emotional support of the maternal family, her mother, her brother, sister and great grandmother, and also the assistance they can provide her in respect of the care of the children if necessary.[59] If they were to remain in Australia the children would be in before and after school care five days per week as the mother would have to work full time to be able to meet their essential expenses.[60]
[59] Ibid at paragraphs 98 and 99.
[60] Ibid at paragraphs 84 and 85.
The move to Sweden would offer a good lifestyle to the children and the mother. The mother’s evidence is that housing is more affordable in Sweden, than Australia, and that she and the children will be able to stay with her mother until she can arrange suitable accommodation.[61] At paragraph 95 of her affidavit the mother says “I estimate that if I was to obtain a reasonable property settlement from Australia, meaning I could rehouse without a mortgage, that I would only need to work two to three days per week”.
[61] Ibid at paragraphs 91 and 92.
Financially the mother would be in a better position because family allowance is not asset or means tested so she would receive approximately $400.00 per week (until the children turn 16). She would also receive free hospital medical and dental treatment for the children until they turn and rental assistance in the sum of $412.00 per month if the mother worked two days per week.[62]
[62] Ibid at paragraphs 95 and 96.
In terms of relocation the mother has work available, through her existing company, approximately forty five minutes from where she would live.
There are other advantages to relocating both the children will be bi-lingual, (they are partly bi-lingual already) and all education is free. It is likely that the children will be bi-lingual if they reside in either Country.
Relocating would help the mother manage her life which she believes is in ruins after these events.
The mother’s emotional security would also be secured by being removed from someone she regards as having abused one of her children. I am satisfied that emotional security is necessary for her to fully function as the principal carer of these children.
Although the mother has developed a life in Australia it has been in the context of a relationship with the husband. She is far more isolated in Australia and would be likely to be hypervigilant in terms of any times the father spends with the children.
I am satisfied that the father will be able to have regular contact with the children by letters, cards, gifts, emails, web cam, Skype etc. The father is able to see the children physically at least twice per year and I am satisfied, bearing in mind his previous working history, that he would be able to afford a trip to Sweden each year and I am satisfied that the mother would comply with orders to return to Australia once per year bearing in mind her improved financial circumstances.
Notwithstanding the traumatic events of 26 February 2009 the mother has supported the children in seeing the father since August/September 2008. She has put forward sensible and sound plans for the father to see the children and have contact with the children notwithstanding the proposed move to Sweden.
The children would suffer from a loss of their relationship with their paternal grandfather although that relationship was not particularly strong prior to separation.
Arrangements have been made for the children to attend school in Sweden.
The Independent Children’s Lawyer supports and promotes the relocation to Sweden taking the view that it clearly represents the children’s best interests.
A move to Sweden acknowledges the mother’s right to freedom of movement.
Factors against relocation to Sweden
Counsel for the father submits the proposal of the mother to relocate to Sweden with the children is fraught with difficulty as to its implementation and practicality. The amount of time the father would spend time with the children will be diminished by the children relocating to Sweden. As a consequence his relationship with the children may deteriorate. This may not be the case as the father can move to Europe and his time in either Country will be limited because of the need for supervision.
The father’s financial ability to meet the costs of the children travelling to Australia and/or the funding of his costs of travelling to Sweden may be effected because of the uncertainty surrounding his employment.
There is a risk that the mother may not be able to meet the costs of travelling to Australia with the children on an ongoing basis.
The children’s relationship with their father is good but it will be stifled and reduced by virtue of the relocation.
The father’s ability to communicate with the children may be effected because it is contingent upon the mother’s continuing cooperation. Electronic communication via Skype, will be at irregular hours due to time differences, the children’s schooling and the father’s employment. This will make if difficult for the father to communicate with them.
The father also has concerns that the mother will not encourage the children to speak English. He says because he cannot speak Swedish his ability to communicate with them will be effected.
The children were both born in Australia and have spent most of their lives in Australia, apart from short trips overseas, and they may find it hard to adjust to new schools, culture and language and the loss of their current friendships and peers. The father believes this would only further compound the adjustments the children have already had to make in their lives because of the allegations of abuse, and would add to the distress the children would suffer as a result of not being able to spend time with him on a regular basis.
Finally counsel for the father submitted the mother’s proposed relocation would not be in the best interests of the children as it would result in the children not having meaningful access to both parents, and as a consequence the parents would not have the same capacity to assist the children with their general care, welfare and development.
It is not in dispute that the children would see far less of their father if they were to relocate to Sweden with the mother. However it will not be hugely less bearing in mind my findings of unacceptable risk and the needs for the father to see the children in a supervised way and the ability of the father to communicate with the children via electronic means including Skype and video contact on very regular occasions.
Conclusions.
Relocation disputes are notoriously difficult. I am satisfied in this case that it is in the children’s best interests for them to be permitted to relocate to Sweden with their mother.
To force the mother to remain in Australia and not relocate to Sweden would serve the father’s best interests but not necessarily those of the children. Whilst the interests of the father and the mother are important it is the interests of the children that is the paramount consideration.
I have weighed the advantages and disadvantages of the children remaining in Australia and relocating to Sweden. I am satisfied the mother will be in a comfortable secure and safe environment with her extended family in Sweden, this is not available to her in Australia.
The father will continue to have supervised time with the children and will see them and speak to them on electronic forms on regular basis. I am satisfied that whilst the relationship may have some difficulties and it may not grow as well as the father may like it will enable that strong relationship to remain. It may well fall well short of what the father wants.
I am satisfied that the mother will comply with the orders and that the children will have regular physical contact with the father.
By allowing the relocation to occur after July this year and by putting in place an arrangement whereby the father sees the children on very regular occasions, particularly over school holidays, I am satisfied that he will be able to secure and maintain the good relationship that he has with the children. The father should be able to see the children at the end of 2009 and then at least every six months thereafter.
Delaying the relocation until July 2009 will also provide a time for the children’s adjustment and move to Sweden including fitting into schools.
In allowing the mother’s application to relocate to Sweden I am satisfied this meets the best interests of these children in these particular circumstances and to refuse the mother’s application would not meet or satisfy their best interests.
The disclosure made on 26 February 2008 had a shattering impact on this family. The relationship between the parents, which both the mother and father asserted was a strong relationship,[63] came to an end.
[63] Albeit the father said that the relationship was having difficulties in the previous three months
The lives of the children changed irrevocably, R (wrongly) believes that it was her fault, the mother has a deep and abiding belief that the father sexually abused R, the father believes that he is the victim of a false accusation of sexual abuse.
The children no longer reside in their home and the impact is such that the father is not even able to take the children swimming even if supervised.
The children miss their father. The family unit which was centred by the parents was the pivot upon which the mother remained in Australia. That pivot has come to an end.
There was evidence by the single expert as to the nature of the relationship between the children and the father. It is clearly a warm and loving relationship where the children have no fear of the father. The mother’s evidence was that R would need further counselling to provide her with the protective skills to ward of any inappropriate advances by the father. However, this has to be weighed against the possibility that R would fail to disclose inappropriate behaviour of the father because of the effect such a disclosure would have on her relationship with the father. It would conflict with the great love that she has for the father.
There was evidence that the mother is not concerned about T at this stage but has some concerns when he gets older.
If the children were to see the father on a regular basis they would need counselling and quality books on the difference between good and bad touching.
In addition I will order that the mother take steps to have R counselled and equipped in terms of protecting herself against sexual abuse.
For the reasons set out above and my findings that the there is an unacceptable risk to the children if they spend unsupervised time with the father, I consider that it is not in the children’s best interests that the spend equal, substantial or significant time with the father. I will be making orders that the children will spend supervised time with their father until such time as the mother believes it to be appropriate that it be unsupervised.
I certify that the preceding three hundred and eighty (380) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin
Legal Associate:
Date: 17 March 2009
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