Burridge and Yeats

[2016] FamCA 180

FAMILY COURT OF AUSTRALIA

BURRIDGE & YEATS [2016] FamCA 180

FAMILY LAW – CHILDREN – Sexual abuse allegations – Best interests of the child – Where the parties have two children together - Whether the older female child is at an unacceptable risk of sexual and/or emotional abuse in the father’s care – Whether an order for the father to have supervised time with the younger son would affect the siblings’ relationship – Where the father has a history of sexual and physical abuse from a young age – Where the child believes she has been sexually abused – Where the child has consistently refused to have unsupervised and supervised contact with the father – Where there is no chance of sustaining a parenting relationship between the two parents.

Family Law Act 1975 (Cth) ss 60CA, 60CC & 60I
Evidence Act 1995 (Cth) s 140

Briginshaw v Briginshaw (1938) 60 CLR 336
M v M (1988) 166 CLR 69
N and S  and the Separate Representative (1996) FLC 92-655
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT: Mr Burridge

RESPONDENT: Ms Yeats

INDEPENDENT CHILDREN’S LAWYER: Leisa Toomey

FILE NUMBER: BRC 1154 of 2013

DATE DELIVERED: 24 March 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE:

5, 6 and 7 November 2014

Last submissions received:
8 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Frizelle of Counsel

SOLICITOR FOR THE APPLICANT: Legal Aid Queensland

COUNSEL FOR THE RESPONDENT: Ms Harris of Counsel

SOLICITOR FOR THE RESPONDENT: Carroll Fairon Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Middleton of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Schultz Toomey O'Brien Solicitors

Orders

1. The children, B born … 2008 and C born … 2012, (“the children”) shall live with the mother.

2. IT IS DECLARED THAT the presumption of equal shared parental responsibility is rebutted in the best interests of the children.

3. The mother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the children.

4. The children shall not spend any time with the father nor communicate with him, save as may be agreed between the father and the mother from time to time.

5. The father shall be entitled to send letters, cards and/or gifts to the children for their birthdays and for Christmas each year if he so chooses, such to be sent to them at a postal address provided to him by the mother and kept current by the mother notifying him of any change to that postal address from time to time immediately as such change occurs.

6. The mother shall send the father a current photograph of the children and a letter reporting on their educational and social progress and development at least once each year, to a postal address provided to her by the father and kept current by the father notifying her of any change to that postal address from time to time immediately as such change occurs.

7. The Independent Children’s Lawyer shall, at her discretion, explain the outcome of these parenting proceedings to the children and once that has been done, she is discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burridge & Yeats has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1154 of 2013

Mr Burridge

Applicant

And

Ms Yeats

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. B and C are the subject children of this very troubling parenting orders dispute between their parents.  B will soon be eight years old.  C will soon be four years old.  They live with their mother and have done since they were born.  Their parents are in dispute about how and when these two children should spend time and communicate with their father.

2. The dispute arises particularly because the mother alleges that the father sexually abused B sometime in the period leading up to September 2012. The father denies that he did and wants the children to spend unsupervised time in his care.

3. Denied any time with the children from early September 2012 until early in 2013 by the mother who had the children in her full-time care, the father commenced proceedings in the Federal Circuit Court seeking time with the children.  Interim orders providing for the children to spend supervised time at a children’s contact centre with the father were made, an Independent Children’s Lawyer was appointed, and the matter was transferred to this Court. Two family reports were prepared by an experienced social worker in the course of readying the matter for trial.

4. The matter came on for trial before me in November 2014 and written submissions were delivered by December that same year. My judgment has been reserved ever since. As I have had to say so often in recent times, unfortunately, I regret that it has taken me this long to deliver my judgment in the matter. I attribute that to the obligation to hear and determine so many other equally complex matters in the period of time during which my judgment has been reserved. I regret the anxiety that I expect the parents may have experienced whilst waiting for this decision. The uncertainty such delay creates in the lives of these parties, their families, and, in particular, the lives of the subject children, is indeed regrettable.

The background facts

1. The mother was born in the United Kingdom in 1966 and will be 50 years old this year. The father was born in Australia in 1986 and will be 30 years old this year.

2. Before they ever met, both the mother and the father had very troubled lives. I consider it fair, though sad to say, that each of them has significant and troublesome personality vulnerabilities as a consequence. Those bear significantly on the outcome of this matter.

3. The mother was born to a large family and left home at a young age. By her account, she fell pregnant and had her first baby when very young, to a man who was older, a heavy drinker and a drug user. During a period of separation from him, she had her second child, Mr D, to another man. UK child welfare authorities became involved in the lives of the mother and her two children when it was discovered that her eighteen month old son, Mr D, had been seriously assaulted by his father.  After separation from that man, her third child, Ms E, was born to another man.

4. As I understand the evidence, the mother’s eldest child, a female child, was not raised by the mother after the intervention of the UK welfare authorities and that child’s father, whilst the mother and her second child, Mr D, and third child, Ms E, lived in a step-family relationship in the UK with another man who was the mother’s partner for around nine years.

5. In around 2000, the mother formed a new relationship with an Australian man who was in the UK. They married and she and Mr D and Ms E then moved with that man to Australia and began living in Region F of Queensland.

6. The mother’s relationship with that man is said to have featured a significant amount of family violence directed at the mother and her children by that man. Indeed, the mother’s son, Mr D, suffered again at the hands of a step-father. This time he suffered a broken arm as a young adolescent as a result of physical violence from his step-father. The step-father would not permit the boy to be taken to a doctor or the matter reported to welfare authorities. It was only discovered when the mother took the child to a doctor two weeks’ later and lied to the doctor about the aetiology of the injury. It seems the doctor doubted the story and did report it to authorities.

7. The Queensland Government Department responsible for child welfare (“the Department”) had concerns about the wellbeing of the mother’s two teenaged children brought to its attention in late 2004 and early 2005. The 2004 notification related to the assault on Mr D by his step-father that resulted in the broken arm. The 2005 notification related to concerns about disputation between the mother and her fourteen year old daughter who had left home and was considered by the Departmental officers to be placing herself at some risk in “self-selected accommodation arrangements”. In fact, later Departmental records from February 2013 record the mother’s daughter, Ms E, reporting to Departmental officers that she had been raped at the age of 14. There is no evidence as to who the alleged offender was.

8. The mother sent Ms E back to the UK to live with her father around this time. She remained there for about nine months before returning to live in Australia after her father is said to have “lost control”, with Ms E “drinking heavily” and “self-harming”.

9. The mother is recorded as reporting breaking up with her husband and having ended their marriage in or around November 2006. She began seeing a counsellor to assist her with emotional difficulties she attributes to having suffered domestic violence at the hands of her former husband. However, shortly thereafter, she began a relationship with the father in this case. She was 40 years of age and he was 20 years of age at the time and he was one of her son’s friends.

10. The father had also had a relatively turbulent childhood. At some point in the father’s early childhood, his biological father was imprisoned. There was no evidence as to the offence he had committed that led to that. The father’s mother had re-partnered and the father and his younger sister lived with their mother and her new partner, Mr G, and his son, Mr H. Mr H was about 10 years older than the father.  

11. The paternal grandmother was a victim of child sexual abuse.  Her brother, as an adult, had also been convicted of child sexual abuse. The father also suffered repeated sexual abuse as a young child as the victim of his older, adolescent step-brother, Mr H. This included being made to fellate his step-brother at least every couple of months until he (the father) was about 11 years old. His step-brother left home at that stage. The father never reported the repeated abuse to his mother or any other person as the step-brother had threatened him that if he did he would take his own father (who the father loved dearly) away.  

12. The paternal grandmother and the father were both the subject of notifications to the Department in early 2007 in respect to the wellbeing of the father’s younger sister. There were reports of physical fighting between the father and his sister. However, the Departmental investigation of those matters determined the notified concerns to be unsubstantiated.

13. The father, who worked in a trade, was a heavy drug user, smoking marijuana on a regular basis. He had a falling out with his mother in mid-2007 at around the time that he commenced the relationship with the mother in this case. He was not working at that time. He asserted that the falling out was to do with his relationship with the mother because she was much older than him and his mother did not approve of that fact. He did agree that he had been in a relationship with another young woman who was living with him at his mother’s place at the time that the relationship with the mother in this case began. Leaving her at that time may have also contributed to his mother’s disapproval.

14. The mother, after separation from her husband in late 2006, had sexual relations with two other of her teenaged son’s young friends in the months before commencing the relationship with the father in this case. The father and the mother’s son were friends who regularly used marijuana together. The father had visited the rental apartment the mother and her two teenaged children shared on a number of occasions in 2006 and early 2007, smoking marijuana with the mother’s son and her daughter, with the mother’s knowledge and acquiescence.

15. The mother and the father commenced a sexual relationship just after the mother’s daughter’s (E) 16^th birthday party in, 2007. That party was hosted by the mother on a boat, and it seems that alcohol and marijuana were openly consumed by teenagers who were not yet 18 years of age with the mother’s apparent knowledge and approval. The father stayed at the mother’s apartment in I Town after the party, and began sharing her bedroom, whilst her teenaged son (who was 17 years old) and daughter (who was 16 years old) shared another bedroom. The mother, 20 years older than the father at the time, asserts that, against her will, the 20 year old father wore down her defences over a few days, to the point where she was so tired that she simply succumbed to his sexual advances and they entered into a relationship in which they remained for two years before their first separation.

16. In those two years, the child, B was conceived and born.

17. There was evidence that in the early years of their relationship, the father got into fights at nightclubs on at least two occasions when out with the mother. He asserted that she would flirt with other men in front of him and that he would be provoked into fighting them as a result. On one occasion, he was arrested and spent the night in a police watch house and was convicted of drunk and disorderly behaviour. At trial, the father blamed the mother for this and denied that he was a violent person. He had been ordered to do an anger management course as a consequence of his conviction and did attend it. It did not seem to have had the desired impact upon him though.

18. The mother flew to the UK in June, 2009, so as to spend time with her sick father. She took B with her and the father remained in Australia. There was conflict between the mother and the father about that. The maternal grandfather passed away before the mother arrived in the UK, but she and B remained there for a few weeks.

19. Upon the mother’s return to Australia, the mother alleges that the father disclosed to her that he had sexual relations with another young woman whilst the mother was away. The mother and her children asserted that this young woman was only 15 years old at the time. The father asserted that he believed she was 18 at the time. The matter of the young woman’s age at the time was not proven at the trial, but I had serious doubts that she was 18 at the time or that the father really believed she was. In any event, the father denied that he had a sexual relationship with her whilst the mother was away or that he had told the mother that he had. I had serious doubts about the veracity of that denial, too.

20. However it happened, the mother and the father separated for a few days during which the father returned to his mother’s home. They then reconciled quickly thereafter. There is no dispute that the father told the mother after those days of reconciliation that his older step-brother had sexually abused him over a period of time when he was a little boy (around five years of age) and his brother was an adolescent. As already observed, the father revealed at trial that such sex abuse included being forced to perform oral sex on his older step-brother. The father had never told anyone about it and has never had any counselling or therapy to help him deal with it psychologically.

21. The mother alleged far more than that, though. She said that the father had, in those same days, confessed to her that he had first become sexually active when he was only nine years of age, that he had been sexually active with his own sister as a child, and that he had a history of sexual relationships with younger girls, including 10-11 year old girls when he was an 18 year old, and that on an occasion when he was in the bath with their baby daughter, B, that she had innocently put her mouth on his penis and that he had experienced an erection. The mother said that the father vowed to her that nothing more than that had happened at that time. The mother said that the father had “promised her” that if she stayed in a relationship with him that he would never “sexually harm” their daughter and that he would let her know if he ever “felt that way” towards B. The mother said, having heard all of that, she nevertheless agreed to reconcile and let him live with her and B again.

22. The father denied most of those allegations, but admitted having told the mother when she pressed him about whether he ever had sexual feelings for their daughter, B, that he would tell the mother straight away if he ever did.

23. The mother said that she then became “protective” of B for she “feared that he [the father] would indecently deal with the child” if she (the mother) did not stay with him.  The mother swore in an affidavit on 27 May 2013 that she:

    …accepted more and more of [the father’s] violent and demeaning behaviour because each time I moved to separate from him he threatened that he would get “joint custody” of her and I could not live with the thought that he would be alone with her.  

24. The mother and father and B and Ms E (the mother’s daughter), moved to K Town, a very small town to the west of J Town, in Region F in August 2010. The mother and her adult daughter complain that the father continued to abuse drugs whilst at K Town, including hallucinogenic mushrooms picked locally. The father does not deny that, but asserts that the mother and her daughter went with him to the fields, helped him pick the mushrooms, boiled them up and consumed the liquid with him when he did. I consider that more likely than not to be true.

25. The family came to the attention of the police and the Department again in February, 2011. The mother asserts that the father had “unlawfully taken [her] motor car yet again” one day and that on his return home he admitted to smoking marijuana and having sex with another woman in and on the car. She asserts that when she expressed her displeasure to him, he assaulted her and told her they were finished. They had a serious physical altercation and the mother’s daughter, Ms E, got involved in it as well. The father left the home and walked into town and called his mother to come and pick him up. The mother, in the meantime, called the police and the ambulance.

26. The police report of the incident records the version of events that police officers took from the mother at the scene on the night of the events. They record that the father hit the mother on the head and that she fell to the ground after which he then jumped on top of her and continued to hit her around the head. They record that Ms E then got involved and the mother began to fight back. They record that the father was even violent towards Ms E. Some injuries to the mother were noted but the ambulance did not transport her to hospital. The police record that the child, B, was in her bedroom at the time of the incident and did not witness what happened.

27. The father, for his part, swore that as soon as he walked into the home that evening, the mother began accusing him of having an affair and began verbally abusing him. He said she then hit him in the mouth with a closed fist. He said he then grabbed his phone and wallet and went to leave, and as he was doing so, the mother ran after him, hitting him again in the face with a closed fist. He said he went out to the veranda and when the mother came after him, he pushed her away from him, such that she hit her head on the veranda post, before grabbing an umbrella and hitting him with that. He then said he sat on top of the mother to restrain her. That resulted in the intervention of the mother’s daughter in the dispute and the father said that she kicked him in the face. The father claims he then left.

28. I consider that there is likely to be truth as well as falsehood in the account of each of the mother and the father in respect of this incident. I found it impossible to believe all of what each of them said in their affidavit and oral evidence at trial about this matter and others.

1. The police sought a family violence order against the father in the Gympie Magistrates Court and the father consented to an order being made against him for twelve months without admission. He had moved back to Region F to live at L Town.

2. The couple stayed in touch, though, and the father got to spend time with B from time to time by agreement with the mother. The mother would insist that such time be in her presence. The father says that is because the mother wanted to be with him. The father asserts that the mother was always suggesting to him that they renew their relationship and that she would let him see B if he spent time with her too. I am satisfied that is true.  

3. There is no dispute that soon thereafter the mother, B and Ms E all moved back to M Town to live and that the father helped them make that move, driving them and some of their possessions to M Town from K Town.

4. The father asserts that one day around then, the mother called him in a hysterical state telling him that she could not handle B and asking him to come and take her. They arranged to meet at a shopping centre at I Town, he said. He asserts that when he met them, the mother was calm and not hysterical and asked him to go back to M Town with them. He said he did and that he had dinner with them before going home. He gave this as an example of the mother seeking him out to spend time with him despite their separation and although she had a family violence protection order against him.

5. In June 2011, more domestic violence occurred between the couple. The father asserts the mother called him and arranged to pick him up from a place in N Town to take him back to her place at M Town. The father says that they stopped on the side of the O Highway and had sexual intercourse in the mother’s car on the way home. The father then went back to the mother’s rental apartment in M Town and saw B. A little while later the mother and the father got into an argument that became a fight. It involved the father’s mobile phone. He was receiving text messages on the phone which apparently made the mother jealous. He asserts that she grabbed his phone ran into the toilet and then threw his phone into the toilet, after which she retrieved it and then threw it into the bathroom vanity basin smashing it.

6. The father asserts that he went to leave the apartment and then the mother picked up a heavy crystal rock and threw it at him. It just missed him and hit the wall, leaving a dent in the wall. The father says he went to get his bag from the mother’s car and the mother locked him out of the apartment and took B next door to the neighbour’s place. The father said he just wanted to get his wallet and smashed phone and leave, so he grabbed the sliding door and broke it out of its frame to gain access to the place. He says the mother was screaming at him that she had called the police, so he decided to wait for them to arrive and tell them what had happened. The police attended.

7. After that incident, the father was charged with breaching the family violence order that was in place. He was also charged with wilful damage. He pleaded guilty and told the Court his version of events. He was convicted but with no conviction being recorded and he was fined $500 and ordered to pay restitution to fix the door. The family violence order against him was amended to include a provision that he not attend at any address where the mother was residing.  

8. Unsurprisingly, the mother gave a different version of the events. She asserted that she had picked the father up at 2:00 am on the day of the incident after he had called her to come and get him. She said they had driven to M Town where they arrived at about 4:00 am. Although she agrees that they had sexual intercourse in her car on the journey back to M Town, the mother asserts that the father had “forced himself on [her]”. She said they stayed up talking and went to bed at 6:30 am to be woken by B at about 9:00 am. She said that the father took a phone call and went outside to answer it. When he came inside, she said he seemed worried and upset. She said that he then went into the toilet.  She said that she received a text message on her phone whilst the father was in the toilet and he called out to her from the toilet asking her who had texted her. She said she went to the toilet to hug and reassure the father it was just Telstra and no one else. She said as she went to hug him their arms collided and his phone fell into the toilet. She said he then fished his phone out of the toilet and began shouting obscenities at her. She said that he pushed her and the back of her head hit the toilet door frame. She shouted at him to get out of her house. She said that he then hit her across the left side of her face with his right hand and it knocked her back into the toilet. She said that he then started smashing his phone on the vanity and shouting at her, blaming her for the loss of his phone.

9. She said that they then struggled; she broke his neck chain and fell on the floor. She said she then managed to get up and flee out of the apartment into the neighbour’s place. She said that he then picked up the crystal and threw it at her. She said she felt it skim her head and heard it hit the wall. She said that she asked the neighbours to call the police and she saw the father struggling with the door to get back inside the apartment after she locked it. The police attended soon after.

10. Again, I consider there is truth and falsehood to varying degrees within each of the versions of the mother and the father. I do not consider it necessary to state exactly what parts of each parent’s story are correct and which parts are false, save that I am satisfied that the mother threw the father’s phone into the toilet and then smashed it.

11. The father says the mother would not permit him to spend time with B after that day but would let him telephone her and speak with her.

12. The father then contacted the Legal Aid Office about parenting issues and mediation was convened by the Legal Aid Office on 30^th August 2011. The mother and the father attended that mediation and a parenting agreement was reached and entered into between them. They agreed that B would continue to live with the mother but would start spending time with the father that would build quickly to two days and one night in one week and three days and two nights each other week. There was absolutely no mention of any requirement for supervision. There was nothing about the agreement that suggested the mother was concerned for the safety of the child in her father’s unsupervised care.

13. Immediately after that mediation, the mother drove the father home to his place at P Town, went inside with him and had sexual intercourse with him. Their son, C, was conceived on that occasion.

14. On 28^th November 2011, Departmental officers made an unannounced home visit to the mother’s home to discuss issues of concern with her, particularly arising from the June incident of violence that had occurred between the mother and the father. The mother is recorded as again having told the officers that the father’s phone fell into the toilet by accident. She is also recorded as having denied that she threw the crystal rock at the father. She is not recorded as having made any suggestion that he was a danger or a risk to the child.

15. The father said that he was supportive of the mother’s pregnancy through the latter part of 2011 and early 2012 and that he attended some medical appointments with her during that time. The mother disputes that.

16. The mother’s daughter, Ms E, had a baby in March 2012. Another woman with whom the father had been having a relationship in 2011 also gave birth to the father’s second child, Q, in 2012. The mother gave birth to the father’s third child, C, in May 2012. The father drove both Ms E and the mother to the hospital on the days that they gave birth to their babies.

17. There is no dispute between the mother and the father that they carried on a sexual relationship and the father continued to see his two children of their relationship for several weeks in the middle of 2012. The mother says they were spending several nights per week together at this time. She said she was making an effort to reconcile with the father.  It is not in dispute that the mother let him have the two children in his care, even overnight, at the place he shared with his own mother in P Town without the mother being present from time to time during this period. Clearly, though, he did not have B with him in accordance with the terms set out in the parenting agreement they had reached in August the year before.

18. The mother said that she took the children to the father’s place on 24 August 2012 and that after they put the children to bed she stayed talking to the father until around 11:00 pm. She said that the father was making her feel increasingly unwanted and when she told him that she would take the children home and “call the night off” he told her to leave the children. She said as she left she told him he had to give up “the drugs” and focus on her and the children or the relationship would be over. She said that the next day she messaged him asking him how he felt about her “ultimatum” and their relationship and that he responded telling her that they were not together in a relationship any more.

19. The father and the mother continued to text each other though. On 27^th August 2012, the mother sent the father a message saying “I was talking about being together with the children ... we don’t have to be together…”. The father responded “I can’t do that [Ms Yeats], everyone iv spoke to about it agrees … It won’t work and will damage the kids”.

20. The mother responded to that with “How? ... It’s damaging them the way it is? …What makes others so wise have they done it?” the father responded with, “Bottom line is no … Reason being I don’t want them to think were together while Iv got someone in the next room ya know” the mother then said “Ok… Well yeah I understand that would be a problem… You told me the children were all that mattered … so I assumed you would see women at their place…”.

21. The relationship between the mother and the father actually ended finally and quite dramatically in early September 2012.

22. The father said that he collected the two children from the mother on Friday 31^st August 2012 to have them with him for the weekend. He said that he understood the arrangement was for the mother to pick them up from him on the following Sunday afternoon.

23. The mother texted the father on Sunday 2^nd September and asked him if he was going to go with B to a Father’s Day event at her kindy. She was encouraging him to go with B. He said that he would not be going.

24. The father said that he called the mother on the Sunday afternoon to ask when she was going to pick the children up and she told him that she was sick and was not going to pick them up as she could not look after them. He said that he asked the mother if he could get his sister to go around to the mother’s house to pick up the car seat so that his sister could mind the children whilst he went to work. He said that the mother “flipped out” and started screaming that she did not want anyone going around there or she would call the police.

25. The mother sent him a text message not long before 11:00 pm on Sunday night, the 3^rd September 2012 reminding him that B had school at 9:00 am the next day. The father sent a text back at around 11:30 pm saying “if I have to take her she won’t be going”.  He later asserted that was because he did not have a car seat for the child.

26. The father said that the mother did not collect the children from him until Wednesday night, 5^th September 2012. The mother disputed that and adduced further text messages between them that support a finding that she actually collected the children from the father on Tuesday evening, 4^th September 2012.

27. The mother next contacted the father on either Friday 7^th or Saturday 8^th September and asked him if he would care for the children overnight on Saturday night 8^th September, so that she and her daughter, Ms E, could go out together. He said he agreed to that but no firm arrangements were made about the time the mother would drop the children to him.

28. The father sent the mother a text message just before 8:00 pm on that Saturday to let her know that he had a friend at his place. The mother texted back and said “female I take it ...”. He responded, “yea better you know isn’t it … But were just waitin for [Mr R]”. The mother then texted “what about our agreement of no girlfriends or boyfriends around our children?” the father responded, “she’s not a friend in that sense”. The mother responded, “sex partners then, is it in that sense?” the father responded, “no”. Then a touch later, he sent another message saying, “even if she was”. The mother then sent him another one saying, “you shouldn’t have anyone around the kids I don’t, your supposed to be a father when you have them I don’t have anyone around other than family”. He then texted, “you have had [Mr S] … And others ... Anyway”. The mother then responded, “only [Mr S] … And [D] my son was with him...”. He texted back again, “I know u have anyway But I don’t care As I said she’s a friend And don’t forget I’m doing you a favour so can go out so yea…”. The mother responded again with, “I havent I swear … You shouldnt have lots of people and children”. Then another from the mother, “around our children”.  He responded, “I’m not”.  The mother texted back, “[Ms T], [Ms U], [Ms V] and others”. The father responded, “yea well [Ms V] was alright”. He then texted again, “anyway as I said were just waiting for [Mr R]”. It was then 8:30 pm. The mother and the father had clearly, through their text messaging, raised the level of their emotions about each other, before they even saw each other that night.

29. The father said the mother and her daughter, Ms E, arrived at his place at about 9:30 pm, dressed up to go out. He said the mother walked up to the front door and opened it and walked straight into the house and towards his bedroom. He said she walked passed him and said nothing to him. She was carrying the baby boy and had B with her. He said hello to B and then followed the mother into his bedroom. The mother’s daughter, Ms E, waited outside. The father said her baby was in the taxi, too. The mother conceded at trial that she, Ms E, 4 year old B and the two babies had travelled in a taxi without a child’s car seat for B or baby capsules for the two babies.

30. The father said the mother threw the baby on to his bed and grabbed his friend, who was lying in the bed, by the hair. The mother then grabbed the father’s hairdryer and started hitting his friend with it. He said he picked up the baby and took him into the lounge room, but that B was in the corner of his bedroom, screaming and crying. He said that he then ran back into his bedroom and grabbed the mother around the shoulders to drag her off his friend. As he dragged her off, she was gripping his friend’s hair, so both the mother and the friend fell from the bed onto the floor. He said that the mother was screaming obscenities and vulgarities at him and his friend. The father said Ms E heard the commotion and came into the bedroom. He said the mother eventually let his friend’s hair go and the friend immediately left the house. The father rang the police.

31. The father said he heard a smash in his bedroom and went in to see that the mother had smashed his TV set onto the floorboards of his room. The mother had blood on her leg and there was blood on the TV. The father said that the mother found a marijuana pipe and a bowl with some marijuana in it and when the police arrived she immediately handed those to the police and said to them “here, here’s his bong and drugs”. Police called for additional police to come and about ten police officers and a police dog unit arrived and searched the house. The father said that the police found no other drugs in the home and eventually left. The father was not charged with any offences but was referred to a drug diversion program by police.

32. The mother said that on the night of Saturday 8th August 2012, when she arrived at the father’s place, aware that he had a woman there with him, she took the sleeping baby into the father’s bedroom. She said the light was off and she leaned over to put the baby down on the bed and a body moved under a doona on the other side of the bed. She said that she “did not know what it was and was not expecting a person to be in that bed”. She said the room smelt strongly of marijuana. She said that she “tried to stop the doona from falling over [her] sleeping son.” She said that a person under the doona was about to roll onto her baby so she tried to stop the person and as she did she unwittingly grabbed a handful of the person’s hair and then realised it was a woman as the father had turned the light on. She said the father took the baby out of the room.

33. The mother said the woman started hitting out at her and she merely tried to stop her. She said that the father came back into the room and started to twist the mother’s arm. The mother said that she was shouting for the father to get the drugs out and get the woman out or she would take the children home. She said the father then shoved or hit her in the back and grabbed her left leg and was pulling it, shouting at her to get out. She said the other woman grabbed the hairdryer and was hitting her with it, prompting her to grab it from her.

34. The mother said she next remembers being in the living room with the other woman on top of her and that Ms E ran in and shouted at the other woman to get off her. She said the other woman ran out of the house and that she then went into the bedroom to get her things and she tripped over the TV which was on the floor. She does not say anything about the TV smashing.  She said that the father called the police. The mother did not give a statement to police, saying she just wanted to get the children home. She concedes the police did not charge the father with a drug offence or with any breach of the family violence order.

35. The police records note that police were called at about 10:25 pm on that Saturday night. Police noticed the front door screen damaged and a TV in the father’s bedroom smashed on the floor. The police records note a story, taken by the police on the night, consistent with the father’s evidence to this Court, save that it records that the mother pulled the TV off the cupboard during the struggle and not after. The records note the mother gave the police the marijuana she said she had located in the father’s bedroom. Police seized a waterpipe, a grinder and less than 1 gram of marijuana. Police noted that there was a family violence order in place preventing the father going to the mother’s home. The records also note that the father told police there had been other domestic violence that he had not reported and that he expected that domestic violence would continue as he has “access to the children every second weekend and there is usually arguments”.

36. I am satisfied that the events of that night occurred more in accord with the father’s version than the mother’s. I am satisfied that in a fit of jealousy, the mother started to assault the woman who she found in the father’s bed, fully expecting her to be there when she arrived at his house.

37. The mother attended at her local medical practice in the afternoon of Sunday 9^th September 2012. She presented to the doctor with B in her care. The doctor’s notes record that the mother told her she was assaulted the night before by her “ex partner and his girlfriend”. The doctor’s notes record that the doctor observed two abrasions on the mother’s right knee, each being about 2 cm by 2 cm in size. She observed a swollen right foot and toes and some bruising on one of her calf muscles, consistent with the mother having been held by another person. She also noticed a scratch above the mothers’ right knee and a 3 cm by 3 cm abrasion of the elbow. She noticed the mother complained of pain above her coccyx. The doctor’s notes record that an x-ray was requested and the mother’s wounds were cleaned and dressed.

1. The doctor’s notes entered in the practice’s records pertaining to the child, B, reflect that the mother told the doctor that same day that she was worried that her “ex partner” is physically abusing B and, perhaps, even sexually abusing her. The doctor records that the mother told her that her “ex partner” is 26 years old and a heavy marijuana user. The child was not interviewed or examined. She was observed to be very active and energetic, running around the room and climbing and said to have a “good relationship with her mother”. The notes suggest that the doctor was going to write a letter to the Department and the mother was told that if she was not contacted by the Department within 10 days then she was to recontact the doctor.

2. On the same file is a copy of the letter written by the doctor (Dr W) to the Department that same day. It says:

   Thank you for seeing this girl. Mum is worried re safety of daughter, spends ½ nights a week with father. He is a heavy marijuana smoker and child tells mum he blows the smoke in her face and slaps her across the head. Mum is also concerned re possibility of sexual abuse, mentioned a purple fruit that he was putting it inside her, child using word humungous and used hand actions to indicate her vagina, this was while mum was bathing her a few weeks ago. Mum was also allegedly assaulted by ex partner and his girlfriend last night and [B] witnessed most of this. Please see and investigate.

3. The records of the Department show that on 10^th September 2012, the Regional Intake Service of the Department received a notification that appears to be the notification from Dr W. The Department’s records also reflect that the police notified the Department on Tuesday 11^th September 2012 of what had happened at the father’s place on the Saturday night. The version notified to the Department by the police was completely in accord with the father’s version of events given to the police. 

4. The father said that he sent the mother a text message the following weekend asking to see the children and he did not get a reply.  He said that after that when he would ask for time with the children he received texts saying “not while you are with druggie whores”. He said he received about one hundred text messages from the mother with similar content.

5. The father said that he then started getting text messages from the mother in which she started saying that he had been doing things to B. He said that the mother did not mention in the texts the things she was asserting he had been doing. She would not let him see B though.

6. The father said he did recall that the mother called him on one occasion and told him that the child had said he had “stuck purple fruit inside B”. He said that he was shocked and expressed vehement denial and repulsion at the thought. He said that although he could not remember the date of the phone call, it was after the incident in his home on Saturday night, 8^th September 2012. He gave no particular reason for his belief of that. I consider it more likely than not that, having regard to the fact that the mother reported that assertion to her doctor on 9^th September 2012, and told the doctor B had made the statement about the purple fruit in the bath a few weeks’ prior, that the phone call in which the mother told the father of this alleged disclosure from the child did actually occur prior to the 8^th September, 2012.

7. The father said that he obtained legal advice from the Legal Aid Office on 27^th  September 2012 about trying to see B and C again and another mediation was to be arranged.

8. The father and the mother continued to text each other.  On November 5^th 2012, the mother texted the father at around 11:30 pm saying “She says she hates you…Im hoping she will feel different”. The father responded saying “She will”. The mother responded again saying “I don’t know it took me ages last time to get her to be nice to you… It was before that night ... Don’t you remember? She mags me to take her home, and cries to me when I phone her and asks me to come and get her.” The mother sent another text straight after saying “Nags”. The father wrote in reply “That’s because she misses you [Ms Yeats] that’s all”.

9. The mother then sent another saying “I don’t think she will like you if you make her stay 4 days…?”. The mother then sent him another text saying “Curious why did you have a go at [Ms U] for calling me?” The father responded “It will settle out ok, anyway I got to sleep I have work”. The mother responded “Ok I’m tired and want to go to bed too … so when do we finish discussion…?” The father did not respond.

10. On 8^th November 2012, the mother texted the father at around 8:30 am. She simply said “hello”. He responded straight away with “Hi [Ms Yeats] Wats up”. He then texted again saying “how is [B] and [C]”. The mother responds simply saying “We were discussing the children”. There is no evidence of further exchange of texts that day.

11. Mediation was scheduled for 12^th November 2012, but the mother refused to attend and a certificate allowing the father to commence these Court proceedings was provided to him pursuant to s 60I of the Family Law Act by Legal Aid Queensland. It detailed that mediation could not occur due to the mother’s refusal or failure to attend.

12. On the afternoon of 21^st November 2012, the mother notified the police that she had concerns for the safety of the child, B, whilst she was with the father. The police records reflect complaint from the mother that the child has disclosed to the mother that the father blows marijuana smoke in her face and slaps her in the head. Further, the notes reflect complaint that the child had disclosed that her father has a purple fruit that he puts inside her and that the father had placed his hand on his penis and she had then put her hand on his hand to help “daddy’s doodle grow”. This is the very first reference to any disclosures other than the purple fruit disclosure.

13. On 28^th November 2012, a Departmental officer telephoned the mother to arrange an interview with the child, B. The officer recorded the mother telling her the following:

    ·In 2009, she had returned from Britain to find the father in bed with a 15 year old girl who he had started having sex with when she was 11 years old;

    ·That after that event, the father disclosed to her that he had been sexually abused himself from age 3 until 9 by his step-brother, that he had sexually abused his sister’s friend and his younger sister when he was either 9 or 11 years of age.

    ·That the father’s sister denies it occurring but had stated that she did witness the father abuse her friend;

    ·That at age 18, the father had sex with numerous 11 year old girls;

    ·The father’s uncle was imprisoned in Melbourne for sexually abusing children;

    ·That the father’s mother disclosed that she was sexually abused as a child by her uncle;

    ·That she had confronted the father about whether he had sexually abused B and that he had responded by saying that he had very strong urges;

    ·That in hindsight, the mother said she was wary of the father even before being made aware of his history as he used to say it was his job to shower/bath B and he would shut the door;

    ·That after the father disclosed his history to her she became very worried;

    ·That in August 2012 she had seen a video on the father’s phone in which he was laying on the bed watching B dance “provocatively” (though fully clothed) and the camera view was of B and only up to his (I presume this is a typographical error and is meant to say “her”) waist;

    ·That B has a fascination with doodles (which is the word she uses to describe “penises”) and had said that her father had painted her a picture of his doodle;

    ·That she has not allowed the children to spend any time with the father since the incident on 8^th September 2012.

14. On 5^th December 2012, a police officer and a Departmental officer attended at the mother’s home to interview the child, B. The Department’s records include a note that says “upon arrival at the home [B] greeted us at the front door and stated “my dad is mean, he makes me touch his doodle”. Police and Departmental records reflect that the child was interviewed and stated that her father was mean and let her touch “his bum and his friends”. When asked to provide more detail of this the notes record that the child stated that her father was mean and did not like her polar bear and her bed. She would not return to the subject of touching. Several attempts were said to have been made to re-divert her attention but she was “unable to give an intelligible account of any specific occurrence.”

15. The notes record that the mother was spoken to after the interview. The mother is recorded as reporting having been told by the child that she had helped her daddy’s doodle grow and that this had caused her concern due to other conversations with the child. Police record that the mother told them that she had confronted the father when the child told her about a purple fruit that daddy put inside her and that the father had denied this allegation. The mother told the police that the father had told her about being sexually abused as a child and that he has admitted to her previously that he does have sexual feelings and urges when he is around children including B. The notes record that the Department would continue to work with the family and arrange counselling for the child and the mother. The police record reflects a decision not to take any further action due to the age of the child and her “being unable to disclose or particularise any particular incident”. However, Departmental notes record that the mother became visibly upset when advised by the Departmental officer and the police officer that considering all of the information she had provided “there is a high likelihood that [the father] has sexually abused [B] and that she is at high risk of future abuse if she was allowed unsupervised contact with him”.

16. Police and the mother arranged for the mother to do a pretext phone call to the father and that was conducted on the 13^th December, 2012. The evidence is that the father made no admissions to the mother during that call.

17. The mother and the father were texting each other that same morning, 13^th December 2012. It could have been the mother was preparing for the pretext call that was to be made later that day. The father asked “what has [B] been saying?” The mother responded “Remember what she said about what you did with the purple fruit, well she said a lot more that I need to ask you..”. The texts continue with the father making no admissions and with the mother suggesting they talk later and the father agreeing to that proposition. The mother says she will call after about 12:30 pm.

18. Police notes record that after the pretext telephone call on that day the mother then immediately presented to the Department and reported that as she was putting the child in the car at the police station after that pretext phone call she had a conversation with the child in which the mother said to the child “Daddy said you lied”. The mother reported that the child’s response was “no, I didn’t. Daddy put his doodle in my face and it splattered on my face and I tasted it”. The mother reported that the child also said words to the effect of “he used pink lotion on my bottom and it tingled”.

19. Departmental notes record that the mother reported that the child said that her daddy had put pink lotion on her and that when her mother asked her if it was because the child was sore, she said “no, the cream tickled”. The notes record that the mother reported the child then said “her dad put her (which I presume must be a typographical error and was meant to say “his”) doodle in her bum and minnie”. The mother is reported to have said that B identified the pink lotion not to be the nappy cream but “the one daddy has in his room”. The mother said she asked the child if it hurt and the child had said that it hurt a lot and that her father had then slapped her for crying. The mother is recorded as having said that she and the father used to use a pink lubricant during sexual activity, which tingled. The mother is recorded as having said that she is not making up the allegations as she needs the father to have the children so she can have a break.

20. B was then interviewed again in a video recorded interview which took place at the I Town police station. That video was played and admitted into evidence at the trial. After the early part of the interview in which the interviewers build rapport, the child is asked if she can tell the interviewers what she has come to talk to them about that day. Immediately, she said “because my dad have been so naughty”. She is then asked to tell everything about her dad being so naughty and is asked to start at the beginning.

21. The child responds with “mm, then he float me up his doodle. Then get me some pink lotion.” Interviewer then says “Some pink lotion?” and the child says “and my minnie and bum”. The interviewer then says “and then what happened?” The child responds “my eyes got all stingy cause I’ve been looking at dad so much.” The interviewer then says “and then what happened?” The child says “then I broke his clothes”. The police officer says “what was that?” The child says “I broke his clothes.”  

22. The child is asked “then what happened next?” She says “he started to get meaner and meaner.” The interviewer then says “can you tell me more about him getting meaner and meaner?” The child says “and then he started throwing me some mud, with water and sun and water, but not sun.” The interviewer says “water?” The child says “yeah and sun.”

23. The interviewer then asks “did anything else happen?” The child says “no”. The interviewer says “No? So you mentioned something about pink lotion. Can you tell me all about the pink lotion?” The child says “yeah. And then he started throwing me …(pause)... I can’t do it. I keep laughing. I laugh like this hahaha.”

24. She was then asked “okay. So you said something about the pink lotion and then you said stinging?” The child says “yep, my eyes.” The interviewer says “stinging your eyes”. The child says “yeah”. The interviewer says “what was stinging your eyes?” The child says “Daddy’s wet clothes”. 

25. A little later the child is asked again “can you tell me, can you describe, can you tell me all about the pink lotion?” The child says “I don’t know what happened, I just say pink lotion, pink lotion.” When she was asked what happened to the pink lotion she said “it got destroyed”. When asked how it got destroyed she says “Because daddy got it mean and mean. It was only for his… to clean your hair, not for minnie or bum and doodles.” When asked to tell more about the minnie and bum and doodles, the child just changes the subject to another completely unrelated topic about the room they are in for interview.

26. When asked if she told her mother something in the car park that day she said “yeah”. When asked what she had told her mother she said “I said I can’t do anything before I’m grown up. Grown up stuff.”   When pressed again on what she had told her mother that day she said “I told her don’t destroy her heart.” The child is then unable to be brought back to the subjects of interest to the interviewers and talks about other things and the interviewers terminate the interview.

27. Police records note that the father was interviewed at the I Town police station on 20^th December 2012. He was offered the opportunity to participate in a recorded interview but declined.  A police officer and a Departmental officer spoke with the father about the matter nevertheless.

28. The father said in evidence that he was informed by the police officer that day that the mother had made the following allegations:

    a)That he had inserted purple fruit into B;

    b)That he was putting lubricant on B’s bum; and

    c)That he was making B touch him “until he grew”.

29. The father also said he was asked about an incident alleged to have happened when B was two years old, where it was alleged the father has called the mother into the bathroom to take B from him as he had become aroused whilst showering B. The father said that he denied the allegations put to him.

30. The police and Departmental notes record that police asked the father about allegations made by the mother that he had expressed to her his sexual interest in children, including his own daughter, and that he denied such a conversation had ever occurred.

31. The police notes record that the “report is unfounded as the investigation indicates that it is highly doubtful that the offence has occurred”.

32. The mother and the father continued to text each other even after that time.

33. On 31st December 2012, the mother sent a text message to the father. It was argumentative and critical of the father, without reference to any of the allegations. The father responded “Go away … Got it … understand u can have the kids just fuck off I hate you more than I can possibly express So just go away”. The text communication deteriorates further into vitriol, with the mother concluding by returning to referencing the allegations of sexual abuse of B.

34. The father gave evidence that the mother texted him again on 5th January 2013 at just before 6:00 am saying “[B] is really upset and sad and seems scared of you, and don’t understand why you hurt her the way you did…, (neither do I)..., so I told her you were ill because I didn’t know what else to say…! and she said she wants us to make you better … I don’t know how you feel”. The father said the mother sent another text at 6:13 am that day saying “I want to believe you love [B] like a daughter and I want to believe you didn’t consciously mean to do those things to her, I wanted you in her life and to be her dad, I enjoyed the break when you had both children on your days.. I hoped you would never hurt her in that way”.

35. The father texted the mother back, asking her to stop messaging him and to stop contacting him. He told her to contact his lawyer if she wanted to talk to somebody. The mother kept texting him and asked him to think about his daughter. The father texted back and said he thinks about her all the time, again denying that he had done anything to her. The text messages from the mother kept coming. She said to him that she wished they could talk face to face. She told him she wanted him to get help from a psychologist or a psychiatrist and see the children in a supervised context. The father responded telling the mother that he considered she had done this to him because he did not want to be in a relationship any more. He told her he would not meet with her.

36. On 7^th January 2013, the father’s solicitor at the Legal Aid Office in I Town wrote a detailed letter to the mother asking her to comply with the existing parenting plan and to let the children spend time with their father.

37. On 8^th January 2013, the Department received another notification from someone who was described in Departmental notes as “very disorientated and had difficulty describing statements”. The notifier told the Department:

    ·The mother had received a letter that day from the father’s solicitor telling the mother to allow the father contact with the children;

    ·The mother does not want to allow such contact as she believes he has sexually abused B in the past;

    ·The mother feels as though she cannot protect her children and is considering giving the children to the Department;

    ·The notifier was confused about the process of investigation by the police and the Department but indicated the investigation was not thorough as the mother had not been interviewed;

    ·The notifier was confused as to how the police and the Department could not substantiate sexual abuse when there is evidence of it;

    ·That there was video mobile phone footage of B making disclosures about the father placing his penis in her mouth and “smacking” her with his “doodle”.

    ·That B had previously disclosed that the father had rubbed pink lotion on her minnie and bottom;

    ·That B had disclosed that she had woken up one night and her father’s doodle was in her mouth and that she said she could not talk and that it was down her throat;

    ·That there was evidence of sexual abuse in computer messages, described as Facebook messages between the father and a young girl;

    ·That the father has disclosed that he sexually abused his sister when he was nine and she was three or four and that he was also sleeping with younger girls (11 or 12) when he was 18.

1. With the utmost respect to the mother and the father, regretfully, I do not consider them capable, either individually or jointly, of being able to manage the parenting and co-parenting relationships, in all of the factual circumstances of this case, such that an ongoing regime of supervised visits even coupled with and conditional upon psychological and behavioural modification therapy for the mother, psychological and behavioural modification therapy for the father and psychological and behavioural modification therapy for the child, either in its own right or as a prelude to a possible introduction of unsupervised time for B with the father, would be in the child’s best interests.

2. Although the ICL, courageously made submissions that orders providing for what I have just referred to should be considered by the Court, sadly, I just do not consider that any positive outcomes for the child would be able to be achieved. I would expect such a process involving the father and mother in this case to fail. I do not consider they have the commitment or the capacity to see such therapy, as would be required, through to its conclusion. As disappointed as the father might be with the outcome, I will not order the child, B spend any time with her father, supervised or otherwise.

What of the child, C?

1. As for the child, C, there was opinion expressed by the family report writer that if there was a finding that there was no unacceptable risk of sexual abuse occurring, that he ought to be able to spend unsupervised time with his father. I have, however, found that there is an unacceptable risk of sexual abuse and/or emotional harm occurring to B if she is ordered to spend unsupervised time with her father and I have determined that I will not order her to spend any time with the father at all.

2. In such circumstances, it falls for me to consider whether C’s best interests (and indeed B’s best interests, too) are best served by making a parenting order that nevertheless requires C to spend time with his father, whether it be supervised or unsupervised.

3. Having made the unacceptable risk finding that I have, and conscious that B is likely to grow up believing that her father sexually abused her, experiencing reinforcement of that belief by her mother and her half-siblings, I do not consider that it is in C’s best interests or B’s best interests for C to have to continue to go and spend time with his father on an ongoing basis. Again, I do not accept that the parents could satisfactorily negotiate the nuances of the co-parenting regime in respect of C against the back drop of the dispute about the father’s alleged sexual abuse of B. Equally, I do not consider that the siblings, B and C, should have to negotiate their own sibling relationship around B’s belief that she has been sexually abused by their father at the same time as C is required to go and spend time with his father, be it supervised or unsupervised. I consider that could only have a negative or detrimental impact upon their sibling relationship as well as B’s and C’s own emotional well-being. I do not consider that to be in their best interests on a long-term basis.  

4. I have determined not to order that C spend any time with his father either.

5. My determination is not to be viewed as an endorsement of the parenting the mother has provided and continues to provide for B and C. As should be clear from my reasons so far, the mother’s care and parenting of these two young children, cannot be regarded as optimal, at least in my judgment. However, if these two young children are to have any reasonable prospect of sufficient stability in their lives to encourage their best possible development, I consider it is by being protected from the ongoing, high conflict between their parents that I am very confident would persist if I made any order for either of the two children to have an ongoing relationship with the father by spending time with him.

What orders should be made?

1. I do not consider it in the best interests of the two children to make an order that requires either of them to spend unsupervised or supervised time with the father in the future and, accordingly, I will not do so.

2. I am also of the view that the best interests of the two children are served by conferring sole parental responsibility upon their mother. I will make an order that does that.

3. I will not make any order that provides for communication between the children and the father, save for giving the father the right to send cards, letters or presents to the children for Christmas and their birthdays each year, if he chooses, to a postal address that the mother shall keep him informed of. I shall also order that the mother provide the father, at a postal address that he shall keep the mother informed of, an annual photograph of the children and a report as to their educational and social progress and development.

4. I consider such limited communication to be in the children’s best interests, particularly in the event that there is ever any change in the attitude of the mother to the prospect of the children having any sort of relationship with their father, or in the event that the children, when they are old enough and mature enough, wish to seek out and communicate with their father for their own purposes.

5. I will order that the ICL explain to the children the outcome of these proceedings, leaving how she does that to her discretion. Once that has been done, the ICL is discharged.

6. I make the orders set out at the commencement of these reasons. 

I certify that the preceding two hundred and eighty (280) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 March 2016.

Associate:  L. Bui

Date:  24 March 2016