Buchanan & Buchanan
[2021] FamCA 546
•30 July 2021
FAMILY COURT OF AUSTRALIA
Buchanan & Buchanan [2021] FamCA 546
File number(s): TVC 1835 of 2020 Judgment of: BAUMANN J Date of judgment: 30 July 2021 Catchwords: FAMILY LAW – CHILDREN – discrete hearing as to risk – Where the mother contends that the father is an unacceptable risk of harm to one of the two children by reason of sexual abuse – where the father contends that he is not an unacceptable risk of sexual abuse – Where the Court finds the father is not an unacceptable risk of harm to the child by reason of sexual abuse Legislation: Family Law Act 1975 (Cth), ss 69ZQ, 69ZR,
Family Law Rules 2004 (Cth)
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336
M & M (1988) 166 CLR 69
Rodelgo & Blaine (2019) FLC 93-897
Stott & Holgar and Anor [2017] FamCAFC 152
Number of paragraphs: 35 Date of hearing: 12 and 13 July 2021 Place: Brisbane Counsel for the Applicant: Mr M Fellows Solicitor for the Applicant: McKays Family Law Counsel for the Respondent: Ms K Oakley Solicitor for the Respondent: J Hamilton & Associates ORDERS
TVC 1835 of 2020 BETWEEN: MR BUCHANAN
Applicant
AND: MS BUCHANAN
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
30 JULY 2021
THE COURT ORDERS:
1.That in circumstances where the Court finds that the father does not present as a risk to the child, Y born … 2017 by reason of sexual abuse, the proceedings are listed for Interim Hearing at 2.00pm on 19 August 2021 in the Family Court of Australia at Brisbane.
2.That each party shall file and serve by no later than 4.00pm on 16 August 2021 a minute of interim orders they seek for the next six (6) months.
3.That all parties have leave to appear by telephone on 19 August 2021 by using the Microsoft Teams telephone conferencing system as follows:
(a)They shall each telephone … by 1.55pm on 19 August 2021;
(b)They shall each then enter the pass code …; and
(c)Hold the line until the Court is ready to connect and proceed with the matter.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Buchanan & Buchanan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
The Applicant father, Mr Buchanan (aged 36 years), and the Respondent mother, Ms Buchanan (aged 39 years) cohabited since mid-2011 before finally separating in November 2019. Although they married in 2012 the couple are not yet divorced.
The parents were blessed with the birth of two children:
(a)X born in 2014 who is now seven years of age and attends B School; and
(b)Y born in 2017 who is now four years of age and attends C Childcare and D Kindergarten.
After separation, and with the assistance of lawyers and other persons, the parents were able to reach agreement as to the time the children would spend with the father - it being accepted the children would continue to live primarily with the mother. For the context of these Reasons it is not necessary to detail all the arrangements save to record that:
(a)the parenting plan which graduated time for the father, was never executed but was put broadly into effect;
(b)from approximately 17 July 2020 the parents facilitated the children spending each alternate weekend with the father from after school/kindergarten Friday to approximately 6.00pm Sunday;
(c)the mother had articulated concerns about the father’s excessive use of alcohol and, through her lawyer’s letter of 14 September 2020 (annexure “B1”) reiterated her requirement that:
it is a condition of the arrangement between the parties that your client [the father] does not drink alcohol whilst the children are in his care and if he does, that a responsible adult stays with him and supervises the children.
Our client instructs she does not want to prevent your client spending time with the children but she needs to ensure that they are safe. Our client hopes that there is agreement and a clear understanding about her concerns and the requirement for supervision. Your client’s parents and his sister have accommodated this arrangement.
There is no evidence the father formally “confirmed” the mother’s requirement for supervision and whilst no formal orders were in existence at this time as I will record below, the father was aware of the mother’s “requirement”;
(d)The children spent time with the father on the weekend commencing Friday, 23 October 2020 with the children returned to the mother at approximately 6.00pm on Sunday, 25 October 2020. The father lives with his parents and the contact took place at their home, however his parents were away that weekend and did not return until the afternoon of 25 October 2020. The father’s sister attended for an hour or so from 4.00pm on the Saturday and Sunday to attend to the animals on the property. The father says he consumed beers from around 3.30pm on Saturday, 24 October 2020;
(e)On 25 October 2020, after the children had returned to the mother’s care, the mother deposes to Y making certain statements which shocked the mother. Considering the focus of this discrete hearing, those initial disclosures and further comments made to others by Y are more closely analysed;
(f)On 25 October 2020, the mother ceased facilitating physical contact between the children and the father, prompting the father to commence proceedings in the Federal Circuit Court of Australia on 11 December 2020 seeking that the children spend time with him. The mother’s Response and supporting affidavit filed 3 February 2021 articulated the mother’s concerns and the basis for the interim orders she sought that any time between X and the father be supervised, and that time between Y and the father be “as agreed” but not prescribed;
(g)On 8 February 2021 Judge Demack conducted a contested interim hearing and on 11 February 2021 her Honour pronounced the following orders:
1.That the children X born … 2014 and Y born … 2017 (“the children”) live with the mother.
2.That both parties are to do all acts and things as are necessary to undergo the intake required by the E Contact Centre within seven (7) days of today’s date.
3.That the children spend supervised time with the father at the E Contact Centre as soon as the Contact Centre has an ability to accommodate the parties and for such period of time as the Centre can make available, but no less than once weekly.
4.That both parents be equally responsible for the costs associated with the father spending time with the children at the E Contact Centre.
5.That both parents are to comply with any procedure and follow any policy as directed by the E Contact Centre.
6.That both of the children communicate with the father by telephone each Monday and Friday from 6.00pm with the father to initiate the call to the mother’s mobile phone.
7.That the mother is not to take either child to a psychologist or therapist however described unless she has the written consent of the father to do so.
8.That pursuant to Rule 8.02 of the Federal Circuit Court Rules 2001, these proceedings be transferred to the Family Court of Australia at Townsville to be listed on a date to be advised with a request that this matter be considered for inclusion in the Magellan List.
(h)Time commenced at the E Contact Centre on 24 February 2021, however whilst X has attended all scheduled visits (15 in total since commencement), Y has only had contact with the father on seven occasions;
(i)After transfer to this Court, pursuant to an Application in a Case field 22 April 2021, the father sought that, pursuant to r 10.13 of the Family Law Rules 2004 (Cth) (“the Rules”), a discrete hearing be conducted to determine whether the father was an unacceptable risk of sexual abuse in respect of the child Y. The mother agreed with that discrete hearing taking place, resulting in an Order made by consent on 8 June 2021 listing the matter for a discrete hearing in Townsville for two days commencing 12 July 2021. At that discrete hearing, Mr Fellows of Counsel represented the father and Ms Oakley of Counsel represented the mother. All witnesses relied upon, including the parents, were the subject of cross-examination.
THE FINDINGS SOUGHT
A discrete hearing was ordered pursuant to the power to do so under the Family Law Act 1975 (Cth) (“the Act”) (ss 69ZQ and 69ZR) and the Rules as recently considered by the Full Court in Rodelgo & Blaine (2019) FLC 93-897.
At the conclusion of the evidence, neither experienced Counsel maintained a position, set out in their respective case outlines, that the Court make a positive finding that the child Y had, or had not, been the subject of an act of sexual abuse perpetrated upon her by the father on the weekend of 24/25 October 2020.
Rather, and sensibly in light of the clear jurisprudence in this area, the father sought a finding that he is not an unacceptable risk of sexual abuse of the child Y or the child X. The mother sought a finding in her case outline that the father “presents as an unacceptable risk of harm to Y born … 2017 by reason of sexual abuse”, however by final oral submissions sought the finding extend to the child X as well.
Apart from the material identified in the parties’ case outlines, further documents were tendered during the hearing, including a number of documents produced under subpoena by Queensland Police Service; F Hospital; G Medical Centre; Department of Children, Youth Justice and Multicultural Affairs (“the Department”); H Education Service; C Childcare and the E Contact Service.
All witnesses were the subject of cross-examination either in person, by Microsoft Teams or by telephone.
FACTUAL FINDINGS RELEVANT TO THE ALLEGATION OF UNACCEPTABLE RISK OF SEXUAL ABUSE
In circumstances where High Court authority makes it clear that the role of this Court is quite different to that undertaken by a Court exercising criminal jurisdiction (see M & M (1988) 166 CLR 69), the Court is not required to determine if a particular act of sexual abuse occurred. However, with the consequences even for a finding of unacceptable risk so serious, the Court is required to carefully analyse and give “real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm” (see Stott & Holgar and Anor [2017] FamCAFC 152 at [34] to [38] and the further authorities mentioned in that discussion of principles).
Before making findings as required, it is appropriate that I deal with the strenuously argued submission of Counsel for the mother, that essentially the father has given untruthful evidence and should not be believed when he denies that he touched Y inappropriately. Although, as I set out, the father in the witness box presented as a much less confident and articulate witness than the mother, and further where, as set out in these Reasons, some of the inconsistencies and unexplained issues are a concern (from both sides), I do not make the absolute finding sought by the mother about the father’s credit. I return to this issue at the conclusion of these Reasons.
Statements of fact hereafter should be construed as findings of fact.
I am satisfied that the marriage was deteriorating well before the final separation. I am not able, on the evidence tested at this time, to determine whether the father’s broad assertion that the relationship was “difficult” for about two years before it ended is an accurate timeline – considering that in the absence of a certain specific event during the relationship, deterioration is a creeping condition.
I do accept however that the father’s use of alcohol during the relationship was a factor of extreme concern to the mother and the father’s attendances at his General Practitioner on 23 December 2015; 14 November 2016 and 17 July 2017 (put to him in cross-examination) reveal admissions at those times (some four to five years ago) of excessive alcohol use. The evidence of the father’s current use of alcohol; its frequency and its effect is, at this time as a general proposition, not certain – nor was it a focus of the discrete risk hearing. It is likely a matter for another day.
That the mother maintains her concerns about the father’s use of alcohol is apparent from not only the way the mother ran her case, but is manifest in the letter of 14 September 2020 and in particular the “pre text’ telephone call conducted by the mother and secretly recorded without the father’s knowledge on 27 October 2020.
However I infer from the evidence that the mother did genuinely support and facilitate time between the children and the father, made a little more difficult by his work roster and availability, such that neither party saw the need to bring any legal proceedings or to seek defined parenting orders, until after time ceased. The Court makes no finding about whether or not the father’s assertion that he has completed post separation CDC testing with satisfactory results, is correct or not, nor whether that alone satisfies the mother’s concerns. Her continued expressed concerns would suggest not.
What is not controversial is that there is no evidence at all that the mother identified or expressed any concerns about the child Y being at risk of sexual abuse by the father during the relationship or after separation in November 2019 until the statements made – for first time – to the mother by Y on 25 October 2020.
In that respect, I accept the father's evidence that he has, as required particularly since separation, on many occasions assisted Y with toileting; bathing (including drying of her genitals) and applying cream, as required. None of this evidence is remarkable, particularly when the evidence is that this child has regularly suffered urinary tract infections and had symptoms of vulvovaginitis. Although I accept the degree of “soreness” or discomfort which this child may experience could vary, it is an issue that at least is exacerbated by her regular “accidents”. The mother, alert to these issues and the need for the father to have ample stocks of both underwear and/or nappies, is reflected in the evidence. Furthermore, on Thursday 22 October 2020, the mother attended with Y at the child’s General Practitioner when the symptoms of vulvovaginitis were “recorded” and it appears the doctor prescribed “add vinegar to bath, worm and regular cleaning advised”. The mother deposes to orally advising the father of the doctor’s advice, which I accept.
On the basis of the evidence so far, when the child Y commenced her time with the father on Friday, 23 October 2020, he knew that he had to be alert to Y’s needs and symptoms. I accept, during the visit that the father attended to assisting Y with bathing (including the use of a towel to dry or clean her genitalia), as well as changing her from urine affected underwear because of little accidents during the weekend.
The confirmed evidence of the father and his neighbour Ms J persuade me that during the weekend, whilst using the newly installed seesaw, Y came to a thudding stop when K (the cousin aged 10) got off the other end. Such an accident is a well-known consequence of seesaw use. Ms J says, and I accept, that she both observed the incident and witnessed Y “let out a scream”. She saw the father give Y “hugs and cuddles until she settled down”. The father confirms that he comforted the child – thought about applying ice, but that the child recovered and went on playing. To the extent that the paternal grandmother seems to have provided some information to Ms J about the date of her observations, this does not cause me to disbelieve Ms J as a truthful witness.
In this regard however, Ms J, under cross-examination about the circumstances leading to her signing an affidavit, confirmed that on 1 February 2021 she provided a statement (Exhibit 7) however she recounted a conversation she had with the father after the allegations by the mother were better understood (on a date uncertain) when the father made statements to her, in effect that:
(a)he was going to Court after Y had been for a “rape test”; and
(b)the child had bruising “apparently”.
The comment that the child had “bruising” lead Ms J to connect any bruising with the seesaw incident. She also regarded the allegation that the mother was taking the father to Court because he was accused of “raping” his child, as a “load of rubbish”.
I propose to deal with other contentions raised by Counsel for the mother about the father’s use of alcohol on a weekend when he knew his parents were not present (contrary to the mother’s stated “requirement”), leading to a conclusion that ‘he had something to hide” and took advantage of the situation to abuse his daughter.
THE EVIDENCE AND CONTEXT OF STATEMENTS BY Y
Before I assess chronologically a number of events that took place after 6.00pm on 25 October 2020, I find, as the mother’s evidence made clear, that at the time of the hearing and shortly after the initial disclosure, the mother had formed the belief that the father had sexually abused Y and that he is capable of doing so in the future. I agree with Ms Oakley that her strength of belief – be it 99% or 100% - matters little. The early position and view she took was not only because she believes the statements she heard from her then three and a half year old daughter but, without seeking to give the father any real opportunity to discuss the issue with her, she proceeded down the immediate pathway described next.
She must have taken the view initially and her view is maintained to this day, that not only is there no innocent explanation that could cause the child to make these statements or that the statements are embellished or not accurate, but importantly, the person who she has willingly facilitated and supported having time with both children is capable of the significant sexual abuse of Y she believes has occurred, for his sexual gratification. This is in circumstances where apart from the suggestion that X when using or accessing the father's mobile phone, had seen some adult nudity (not suggested by the mother to have been in any way encouraged by the father or other than accidental), the mother makes no allegations that the father engages in any behaviour of paedophilia; has not demonstrated an interest in child sexual images or behaviour or, as Mr Fellows broadly described it, engaged in abhorrent sexual conduct. There is no evidence before the Court of such concerns.
I now turn specifically to the statements made and other contextual events:
(a)Exhibit 6 is a sequence of text messages between the parents beginning at 17.52 on Thursday, 22 October 2020. For the purpose of this discrete hearing, at 17.41 on 25 October 2020 the father tells the mother he will return the children by “leaving here in 5 minutes”. The mother says the father returned the children to her around 6.00pm. There were text exchanges between 18.25 and 18.39 on Sunday, 25 October 2020 – with no comments of significance;
(b)It follows therefore, that the statements recorded at paragraphs 36 and 37 of the mother’s affidavit could not have occurred before approximately 6.40pm. Paragraphs 36 to 37 of the mother’s affidavit filed 2 July 2021 are as follows:
36. I was sitting on the lounge with Y and X at about 6.30pm. We were having a move night. I have an ‘L’ shape lounge and the 3 of us were sitting on the lounge together. X was on one side of me and Y on the other.
37. Y lifted up my dress and started to use her finger and poked my vagina and on my pubic bone. I stopped and said “What are you doing? We don’t do that”. Y said “My Dad does that”. I explained to her that no-one was allowed to touch her private parts. Y said “My wee-wee is sore. Dad puts his finger in my wee-wee and he gets his finger and puts it in there”. She was pointing at her vagina. Y repeated herself.
(c)I can infer from the mother’s evidence that almost immediately after the child’s statement the mother decided to video the child with her mobile phone. The mother however (at paragraph 38) says “Y kept repeating what she said to me” but gives no details of what she said or what the child’s actual words were in either response or repeated;
(d)The mother’s recording, for which a transcript is given at paragraph 40, is marked Exhibit 2 (goes for 23 seconds); is blurry but commences with the child exposing her genitals and appearing to put her fingers in that area. Even though the mother says a critical word is “undiscernible” from the recording, I assume the mother was unable to understand the word of her daughter sitting next to her. The transcript at paragraph 40 is as follows:
Y – “He (indiscernible) my wee-wee like this”
Y lifts up her dress and pulls her underpants aside, exposes her genitals and put her fingers on her vulva.
Ms Buchanan – “Who?”
Y – “Daddy”
Ms Buchanan – “Why?”
Y – “Cause he naughty. I said not to do this and he doed (sic) it”.
X – “I can’t hold it” (in the background)
Ms Buchanan – “Did you say stop it?
Y – nods
X – “I can’t hold this, I can’t hold this”.
(e)The mother sounded distressed, however there is no clear evidence of the questioning leading up to the statements made by the child to the mother before she began to record – noting the child commenced by saying to the mother “my wee-wee is sore”. After the video recording ceased, seemingly because X who was doing the “splits” near the mother and could not “hold it”, the mother says Y said “Daddy pats me on the bum” and “he also puts his finger up there”. It is unclear if the child was asserting the father was putting his finger into her anus. At paragraph 42, the mother kept questioning the child, including the clearly leading question, “I asked her what Daddy does” to which Y replied “He put his finger in my wee-wee, in there when I sleep”. The mother’s statements reveal further questioning occurred but it is very difficult to be satisfied of the context of the questioning and how long it continued;
(f)I accept that the mother was shocked and upset. However the evidence reveals that after these conversations, the mother, believing her child, immediately formed a belief the father had sexually abused Y and not only did she need to be protected from him, but that she needed to get justice for Y;
(g)It is unclear when the mother sent the video to the mobile phone of the maternal grandmother, Ms L. The short video is not time stamped. The mother does not say when it was sent, but it was clearly after an initial telephone call on the evening after the children retuned, between the mother and the maternal grandmother. This is because the maternal grandmother, Ms L confirmed in cross-examination that in her initial telephone discussion with the mother, sometime around 6.30pm and 7.00pm, all the mother told her was that “Y was complaining of a sore wee-wee”. On this evidence, which I accept, the mother must have telephoned the maternal grandmother after the first comment by Y but before the video was taken. This suggests a perhaps significant unexplained gap between the two disclosures of Y (remembering the mother does not say she even spoke to her mother at that time initially). Whilst in cross-examination the maternal grandmother was invited by the Bench to look at her telephone data and ascertain when she received the video from the mother, no information has been produced by the mother in her case to assist in this query;
(h)This possible unexplained “gap” in the mother’s evidence becomes important when it is seen in the context of what happened next. The mother says she sent the video, but the evidence is that whenever the video was sent, the maternal grandmother did not become aware of it for some time as (I infer after the initial telephone call) the maternal grandmother left her mobile outside and was not aware until she had it back in her possession that the video had been sent and there were a number of missed calls from her daughter. The maternal grandmother, in cross-examination, said she first saw the video at 10.00pm;
(i)However this is inconsistent with the mother’s evidence (at paragraph 44) that her mother, she believes, first saw the video on the same phone she was ringing, and after doing so said “No that is not right, that is not Y”. Where the mother says, after speaking with her mother she called the “house doctor” who arrived at about 9.45pm, this conversation must have taken place much earlier than 10.00pm to allow a mobile doctor to be called and to arrive. I have no evidence or notes from the home doctor, but accept the evidence she was directed to go to the F Hospital Emergency Department that evening after the doctor saw “the video”. The mother arranged for the maternal grandmother to come over to care for the sleeping X so she could take Y to the hospital;
(j)I have no direct evidence from any medical staff at the hospital but the hospital notes are part of the tender bundle (Exhibit 9). I have read those notes and record the following relevant entries:
(i)The examination conducted at 13.30 hours on 26 October 2020 (but not sure if this was 1.30am as the mother elected to remain in the hospital);
(ii)The summary of findings are difficult to read however I interpret them, as best I can, as:
(A)general examination normal;
(B)5mm circular, yellow bruise…region;
(C)5-10mm circular bruise left shin;
(D)Colposcopy examination; no abnormality detected; no disruption to hymen; no injuries noted.
(k)At 3.30am on 26 October 2020 whilst lying in the hospital bed with Y, the child started to suck the mother’s pointer finger and lick her face. There is no context for this action by the child but the response to the mother’s question about “why she was doing that” the child answered, “Daddy does that”; “Daddy licks my face”. It is noted that someone at the hospital wrote what the mother said Y told her, and although verbatim to the mother’s sworn evidence, it is not clear when the notes were recorded but it could have been at the time of the examination, not admission. This is unclear to the Court. The mother accepts that all medical testing did not provide any forensic evidence that the child had been sexually abused. I have no evidence about, for example, what type of force may be required to be detectable by the examinations conducted. Although the mother says (at paragraph 47) that she told the home doctor that Y’s vagina “looked red”, there is nothing in the hospital notes to confirm this was observed by staff;
(l)The mother provided a statement to Police (see annexure “B3”) on 26 October 2020 which is consistent with the evidence in her affidavit, however at paragraph 30 she stated:
30.I remember my mum telling me that she saw X on the veranda at their house with Y and he kept pulling his pants down and trying to poke her and grab her.
It is not clear when this occurred or how frequently, however it clearly occurred before 25 October 2020. This statement to Police by the mother also made the observation that X (who has been diagnosed with ADHD and is medicated) had become “quite aggressive over the last few months” and “has started to get quite sexual”, which she explained by her observation that “he was grabbing his penis and rubbing it up against her [Y] side of the leg and whenever he could get her. It was like he was groping her”;
(m)It seems that these observations were shared with Police on 26 October 2020 and her further statement (at paragraph 31) when talking about X that “I remember that there was a time he had his penis near her vagina and I stopped them and X said that “dad keeps on poking it”, as the basis for some of the questioning by the Police of X in the s 93A interview conducted at 12.20 on 26 October 2020. I have viewed the interview (Exhibit 1) in which, relevantly, X said:
(i)he had not observed anything happen with Y;
(ii)no one has poked his private parts;
(iii)he has not put his “doodle” near his sister’s private parts; and
(iv)he denied all questions about “inappropriate touching” to him or to Y (observed by him);
(n)By 27 October 2020, even the mother under cross-examination conceded that any evidence of sexual abuse of Y was “thin”, however in an attempt to entrap the father and at the direction of the Police, the mother at approximately 10.30am on 27 October 2020 made a telephone call to the father, which was recorded by Police at the Police station. This has been described as the “pre-text” call, and I have listened to the recording marked as Exhibit 3. The exchange (noting of course that the father had no idea he was being recorded) reveals:
(i)the mother said Y told her she had a sore wee-wee and that the father had “poked her in the wee-wee” which the father denied, explaining the seesaw incident;
(ii)he denied clearly and emphatically that he had patted Y on the bum “and put your finger up there” and he had “put your finger in it” (her vagina);
(iii)the mother told the father she took the child to the hospital on Sunday night “because she was in pain”. This appears to be an untruth on the earlier evidence. The mother took the child to the hospital to ascertain if there was any forensic evidence to support the allegation she believed that sexual abuse had occurred;
(iv)when the mother was unable to get any form of admission from the father, and the recording reveals tensions were rising, the mother moved her questioning to who was present at the home and had he been drinking. The father admitted to “like four beers in the afternoon” and that he was alone with the children;
(v)the mother persisted, saying things like “this isn’t something a kid makes up…I have a video”, to which the father replied, “yeah, I have no idea”, which he repeated despite continued accusations by the mother;
(vi)when the mother said “I’m looking for an answer here, as to why she is saying this” the father said “I don’t know. She tells me stuff about you”. When asked by the mother what does she say, the father replied “that she touches your wee-wee and does this and that I just take it as she’s talking shit”. The father in cross-examination admitted the child Y had never told him she had touched the mother’s vagina;
(vii)when the mother seemed unable to illicit any admission from the father, the mother then directed more than half of the conversation to the father’s drinking and his parents not being present, including “you agreed you had a drinking problem in mediation”; “you’re a different person when you drink”; “why could you not drink for one night?”; “you can’t even control yourself with that”; “you’re also not meant to drink around them but you have, so think about that”;
(viii)the father, with his frustration evident from his tone towards the end of the recorded phone call said “so you are implying that I’m fucking fiddling my daughter”, to which the mother replied:
What I’m saying is, you don’t keep any promises. Your parents weren’t there and you were drinking again. That was two conditions, okay?”
The call ended shortly after this exchange.
(o)After this call, and based on the evidence at that time, the Police informed the mother there was not enough evidence to take the matter further. Clearly the mother was disappointed by the Police assessment, as is reflected at least by her email to Police on 3 November 2020, which speaks for itself. In the face of the mother’s allegations against the Police process and lack of evidence; she demanded Y be interviewed on 5 November 2020 – 10 days after the first disclosure to the mother. I am satisfied that during this period in some way and at different times, it is more likely than not that the child and the mother had discussions about the father’s alleged conduct. As I will find later, I am not satisfied the mother “coached” the child – just that there was since 25 October 2020 a continuing narrative in the mother’s home (not every day) about the weekend of 24/25 October;
(p)Y was the subject of a s 93A interview on 5 November 2020. I have viewed the tape (Exhibit 1). It was disappointing to be told neither parent had actually seen the tape in circumstances where there were no restrictions imposed on them doing so. From this interview, I make the following relevant observations:
(i)Within moments of the interview beginning, and seemingly unprompted to any real extent, the child Y announced, “My dad has been touching my wee-wee”;
(ii)Having delivered that statement, the child became (and continued throughout the interview), to be easily distracted; unable to sit still as directed on the couch and often unresponsive. She was often difficult to understand. What followed thereafter during the interview which began at 10.20am and continued for 21 minutes approximately was a number of disconnected statements, including “I was at my daddy’s house and he touched my wee-wee”; “my daddy touched my wee-wee. He is naughty”; he “used his toe to touch my wee-wee. Not his hand, his toe”; “he put his finger there (pointing to her vagina) and I woke up”; “poppy and nanny were there when daddy touched me wee-wee”; “my daddy said not to tell anyone”;
(q)The Court has no direct evidence from the interviewing Police Officers, however the Queensland Police Service records:
During the interview Y interrupted the interview introductions with an immediate disclosure “my dads been touching my wee wee”. Throughout the interview she maintained this disclosure, referring to it 7 times throughout the interview but was unable to provide any further specific details around the acts. This is likely due to her age and cognitive development.
Y demonstrated the act of Daddy touching her wee wee on two occasions without prompting…[s]he then stated that her had had used his toe to touch her wee wee. When asked to name a hand (held up to her) she accurately said hand but still corrected the interviewer that Daddy had touched her with his toe which is contrary to her two demonstrations.
As a result, the Police concluded on the basis of the interview “at this time it is the belief of the interviewer that the interview is not of a standard required to commence criminal proceedings.
(r)Sometime in early December 2020, the child Y’s adult brother Mr M (aged 20 years) had a conversation with Y at the mother’s home and deposed, at paragraph 22 of his affidavit (affirmed 2 July 2021), that:
…I was playing and talking to Y while um was in the kitchen. X was there but not sitting with us. Y and I were talking and playing and Y said “Daddy was naughty. He hurt me.” Y repeated herself a few times. It was very confronting. She had never said anything like that before but I have heard her say it a few times since. Y said words to the effect that she was afraid to go back there (to Mr Buchanan’s house).
Mr M was the subject of cross-examination. He confirmed the mother had told him about her concerns and particularly that the “Police were taking no action”. He confirmed the statement from Y “came out of the blue”; was unable to provide any context about the discussions at the time or since, other than to say he was “listening to Y”. Although his evidence was vague in some respects, coupled with the evidence of the maternal grandmother, I am satisfied that the alleged events of 25 October 2020 have been at least the subject of a number of adult conversations;
(s)The mother’s new partner, Mr N, deposed in his affidavit affirmed 1 July 2021, to a conversation on 30 January 2021 at paragraph 11 that:
Y and I were eating lunch together and Y said “I don’t like my dad”. I said “Oh, ok. Why don’t you?” She said “He hurt me”. I said “oh, what happened?” She said “He touched my ‘wee-wee’” and I asked her when that happened and she said “I was sleeping”. I said “How many times?” and she said “Three times” and held up 3 fingers. I said “That is not a very nice thing to do”. She said “No, I don’t like him”. Y finished her snack and we did not speak about it again.
Mr N, a transport worker with two children, confirmed he visits the mother’s home but his work duties means he stays with the mother in City S on average one to two nights a week. He was cross-examined and gave no further context to the exchange on 30 January 2021 or how the subject arose. The questions he posed were, in my view, leading questions. It is hard to understand, in view of earlier statements by the child, how she came to an express view that the father had touched/hurt her three times. Certainly Mr N confirmed that the mother has expressed concerns to him that the father had sexually abused the child;
(t)I found the evidence of the mother’s friend since 2013, Ms O, interesting. Ms O says that on the afternoon of 7 February 2021 the mother and the children visited her home “for a belated birthday catch up”. As a good friend of the mother, I infer she had discussions of an adult nature with the mother around the incident on 24/25 October 2020 and the mother’s concerns. At some point in time, Ms O became aware that the parenting dispute was before the Court the next morning. It is unclear when Ms O was told about this – likely to have come from her good friend the mother.
At paragraphs 5 and 6 of her affidavit affirmed 1 July 2021, Ms O deposed to the following conversation with Y, which took place on the lounge in the presence of the mother, namely:
5.She said “We have balloons over at my dad’s house” and spoke to me about the water balloons. She then said “I don’t go to my dad’s house because he touched me on my wee-wee”. She said “I don’t like my dad, he hurt me”. I asked Y where her dad hurt her and she pointed to and put her hand over her vagina. She said “I was in daddy’s bed”.
6.I said “oh, that’s not good. No-one has the right to touch your private parts or hurt you”. Y looked sad and she hugged me.
Under cross-examination, Ms O, a therapist by training, failed to appreciate the leading nature of her questions – and frankly did not “fill the gaps” as to what she may have also said between the statements. When asked why she continued with the discussion, Ms O said that Y was speaking to her and “I care”. The mother must have provided details to Ms O of her solicitors, because that evening she chose to send an email to the solicitors with details of the conversation. I cannot entirely reject but do not specifically find at this stage, that Ms O was evidence gathering.
(u)The next concerning statement is recorded as having taken place on or about 17 February 2021 – less than a week after the Reasons for Judgment by Judge Demack were delivered on 11 February 2021, which may be only a coincidence. Nonetheless, teacher Ms P had Y in her class until the teacher left in May 2021.
Ms P affirmed in her affidavit on 2 July 2021 that there was an incident on 17 February 2021, which in oral testimony and under cross-examination was descried as an unprompted observation where the child Y “spread her legs apart and said my dad touches me here”.
This relatively young teacher was shocked by what she saw and heard, and immediately reported the observation to another more senior staff member who reported it to the Department. She said she informed the mother she had heard a disclosure by the child but did not give the mother details. Without anything being recorded in notes kept by the daycare provider, Ms P now deposes that she had observed “a drastic change in Y’s behaviour in the lead up to the disclosure she made” and further that Y had “regressed in going to the bathroom” and would have an “emotional meltdown” on occasions. Of course, Ms P would not be in any position to opine what was the cause of the child’s change in behaviour as she now says she observed;
(v)H Education Service records were produced on subpoena and form part of the father’s tender bundle (Exhibit 9). The notes provide context to the oral evidence given by teachers, Ms Q and Ms R, who gave their evidence by telephone, after complying with a subpoena to do so. The notes record the following statements:
(i)23 February 2021 – whilst sitting on the lap of Ms R and without any apparent discussion contextually, the child said “My Dad hurt my wee-wee”. Later that day, in a discussion with the mother at around 5.20pm, the mother disclosed that another day care provider had made a “student protection report” based on a disclosure Y had made at the service and that the mother shared with Ms Q that Y told her over the weekend “that she had told her kindergarten teacher about the disclosure”.
(ii)On the morning of 24 February 2021, Ms Q asked Y “you mentioned yesterday that your wee-wee was hurt, is it feeling ok today?” Y nodded in the affirmative.
(iii)The conversations with the mother on 23 February 2021 and 24 February 2021 appear to have been the catalyst for the report having been made to the Department of what was said by Y on 23 February 2021, where it is recorded that the mother “explained that she did not need to know what Y says, but it is important that it is reported”.
(iv)After the mother was told at approximately 3.10pm on 24 February 2021 that a disclosure had been made and reported to the school’ “Child Protection Unit”, with the mother recorded as responding with the comment that “she could provide us with a report of an open investigation that is being conducted by CPIU”.
The Court has not seen the said report available from CPIU, it is suggested, at 24 February 2021.
(w)The disclosures mandatorily and properly reported to the Department was, it seems, the catalyst for interviews conducted on 18/19 May 2021 by officers of the Department. The Departmental records were subpoenaed and form part of Exhibit 9. No officer from the Department was called to give evidence, so the Court is limited to records produced under subpoena which, inter alia, reveal:
(i)On 18 May 2021 at 4.20pm the mother was interviewed and reported what her evidence has generally deposed to – although she made some further negative comments about the father;
(ii)On 19 May 2021 at 9.00am, two officers spoke with X. He reported that “…he and Y used to go to Dad’s house and one time Dad hurt Y when Y was sleeping…and Dad hurt Y by hitting her, but Dad never hurt him”;
(iii)On 19 May 2021 at 9.24am, the officers spoke with Y but noted that “Y’s speech is still developing and at times was difficult to understand what she was trying to say”. However she reported that she had not spoken to Police about someone touching her private parts”. When speaking further about seeing the father at a contact centre, the records reveal she said “that Dad scares her. Y then disclosed that Dad had touched her private parts and she had told her mum and also said she had spoken to Police”;
(iv)On 19 May 2021 at 10.30am the same officers spoke to the father and he repeated much of his evidence including his belief that the mother “had coached the children”. At the end of the interview the CSO let the father know “everything would be finalized and a letter to inform him of the outcome would be sent out.”
(x)On 31 May 2021 the father received a letter from the Department which detailed the outcome for both X and Y as “unsubstantiated – child not in need of protection”.
DISCUSSION ON THE EVIDENCE
Ms Oakley for the mother submits the statement of Y, immediately upon her return and repeated, should persuade me that something inappropriate occurred at the hands of the father on at least the weekend on 24/25 October 2020, even though the evidence is not clear as to entirely what happened; in what context; where it happened and when it precisely occurred. She sensibly acknowledges, as the s 93A interview confirms and as the experienced Department officers observed, Y’s speech is not fully developed and is difficult at times to understand.
To that should be added, in my assessment, very inconsistent statements other than to repeat that her father touched or hurt her wee-wee. References to the father’s toe doing the “touching” made little sense. At times the child says she was sleeping when it is said to have occurred. At times she says something happened three times and on other occasions not at all – but then either unprompted or out of any context available to the Court makes a statement of concern.
Ms Oakley says, on behalf of the mother, that the child effectively should be believed (as the mother firmly does) and that the inconsistencies in the father’s evidence (particularly about his level of drinking) should, on balance, persuade me that the father has “something to conceal”.
The mother has demonstrated a consistent and heightened concern from the first statement demonstrated by her taking the video and constant urging on Police to interview Y. The mother has left no stone unturned. I am not critical of the mother’s initial responses, however I am of the view that from that point the mother’s firm belief has not allowed her to retain, perhaps understandably, some objectivity. She is not able to accept, as I regard as being a real possibility on the evidence, that:
(a)this little girl, who was, at times, having difficulty with a urinary tract infection and wetting her pants, would have needed assistance from the father from time to time to keep clean;
(b)although comments like fingers “in” or “up” there – the mother believes both the child’s vagina and anus – are concerning, robust cleaning of a child could involve some touching;
(c)there is evidence that, as siblings, X and Y have been engaged in sexualised behaviour – not on its face beyond infantile exploration, but still likely to be confusing for a three year old child; and
(d)the child, I am satisfied, has heard adult conversations or been engaged in repeated discussions about her “wee-wee”, it being hurt or sore and her father being naughty or a risk since 25 October 2020. In making this finding I clearly record that the evidence does not establish, at this time, the mother has “coached” Y or X or has influenced Y deliberately. I accept that is the father’s belief – arising from his inability to explain Y’s comments when he says strenuously that nothing has ever occurred.
In all the circumstances, I make a finding that the father does not pose an unacceptable risk to Y by reason of sexual abuse – which was the focus of this discrete hearing.
It was, whilst no doubt on express instructions, an overreach by the mother to contend that the father posed an unacceptable risk to X by reason of sexual abuse. There is no evidence at all about that risk – and on every occasion X has been given to indicate if someone touches his “private parts”, he says emphatically “no”.
WHAT HAPPENS NEXT?
I accept that both the mother and the father raise other concerns against the other parent which might lead to findings about physical or emotional risk to these children – especially in the highly conflictual and low trust and respect environment the children have experienced over the recent months.
I propose, having made this important finding on the civil standard of proof but considering the serious nature and effect of the finding (see Briginshaw v Briginshaw (1938) 60 CLR 336) that an interim hearing to progress the children’s relationship for X and Y with their father (which has been significantly interrupted by the cause of events since October 2020) should be conducted.
The other issues in this case that at least have arisen during this discrete hearing suggest that the appointment for an Independent Children’s Lawyer should be considered. However, I am not prepared to delay an interim hearing until such an appointment is made – which could be some weeks.
Accordingly, I intend to make directions for an interim hearing when I deliver these Reasons.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 30 July 2021
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