CANTERE & WILTON-STOTE

[2015] FCCA 549

FEDERAL CIRCUIT COURT OF AUSTRALIA

CANTERE & WILTON-STOTE [2015] FCCA 549

Catchwords:
FAMILY LAW – Children – complaints by the three children of the parties’ relationship that the father had inappropriately touched them on their vaginal area – whether two previous independent complaints by minors that they had been the victims of inappropriate sexual conduct on the part of the father should be admitted into evidence – ruling that the evidence should not be admitted – finding that allowing the children to spend time with the father would expose them to an unacceptable risk of sexual abuse.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 69ZT(1), 67ZT(3)
Evidence Act 1995 (Cth), ss.55(1), 97, 135

M & M (1988) 166 CLR 69; (1988) FLC 91-979

Applicant: MR CANTERE

Respondent: MS WILTON-STOTE

File Number: ADC 3119 of 2013

Judgment of: Judge Brewster

Hearing dates: 10, 11, 12 & 13 February 2015

Date of Last Submission: 13 February 2015

Delivered at: Canberra

Delivered on: 13 March 2015

REPRESENTATION

Counsel for the Applicant: Ms Read

Solicitors for the Applicant: Legal Services Commission of South Australia

Counsel for the Respondent: Mr Hill

Solicitors for the Respondent: Elizabeth Fleming & Associates

Counsel for the Independent Children’s Lawyer: Mr Hemsley

Solicitors for the Independent Children’s Lawyer: Hume Taylor & Co

ORDERS

1. That all previous orders in relation to the children X born (omitted) 2006, Y born (omitted) 2007 and Z born (omitted) 2009 be discharged.

2. That the mother have sole parental responsibility with respect to the children.

3. That the children live with the mother.

4. That the father is restrained from being in an area within 50 kilometres of the (omitted) Post Office.

IT IS NOTED that publication of this judgment under the pseudonym Cantere & Wilton-Stote is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3119 of 2013

MR CANTERE

Applicant

And

MS WILTON-STOTE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter involves a dispute between the parties as to the arrangements which should apply with respect to their three children.  These children are X who was born (omitted) 2006 and is therefore aged 8, Y who was born on (omitted) 2007 who is therefore aged 7 and Z who was born on (omitted) 2009 and is therefore aged 5.

Background

1. The parties commenced a relationship in about 2004 and separated in October 2011.  On separation the children remained with the mother but spent time with the father.  The mother refused to allow the father to see the children after November 2013 when they made allegations which I will presently discuss. 

2. The parties are from Adelaide and the father has at all times lived in Adelaide.  The mother left Adelaide in early 2014 taking the children with her.  She ultimately ended up in the (omitted) area on the New South Wales South Coast.  She proposes that orders be made which would permit her to remain on the South Coast.  She seeks orders that she have sole parental responsibility for the children and that there be no orders made as to their spending time with or communicating with the father. 

3. The father seeks orders that would require the mother to return with the children to Adelaide or, if she decided not to return, that the children be returned to Adelaide and live with him.  If the mother returns to Adelaide he does not seek a residence order but seeks orders permitting him to spend time with the children. 

4. The matter has had an unfortunate history.  When the mother left Adelaide she did not inform the father of her whereabouts.  He had taken no steps to obtain court orders after the mother had refused to allow him to see the children from November 2013.  Instead he sought that the parties attend counselling.  Theoretically this was required before he could approach the court but I imagine that the requirement would have been waived if an application had been filed.  In any event counselling did not proceed and the father filed an application in the Adelaide Registry of this court on 20 March 2014.  The matter came before Judge Mead on 19 June 2014.  Her Honour refused the father’s application that the mother be required to return to Adelaide and transferred the proceedings to the Canberra Registry of the court.  The matter came before Judge Hughes in Canberra and ultimately a date for final hearing was set commencing 10 February 2015 before me.

5. In the meantime the father appealed Judge Mead’s decision to transfer the matter to Canberra.  That appeal was successful and the matter was returned to the Adelaide Registry.  As I had been allocated time to hear it commencing 10 February in Canberra I heard it instead in Adelaide. 

Discussion

1. Central to this case, and indeed in reality the only issue in the case, is the issue of sexual abuse of the children on the part of the father.  It appears to be common ground that were I to find that there was an unacceptable risk that if the children spent time with the father they might be the subject of sexual abuse I should not make orders requiring the mother to return to Adelaide or make any orders as to the children spending time with the father.

2. I will discuss the evidence which is claimed by the mother to justify a finding of unacceptable risk in due course.  The first matter I address however is the admissibility of two other complaints made against the father with respect to sexual abuse of minors. 

3. The first of these occurred when the father was 16 years of age.  The alleged victim was 5 years of age.  The victim stated that the father had “wee-ed” into her bath and that his “wee was white, like glue”.

4. These allegations were investigated by police but a decision was made that the matter would not proceed.  The material from the police that was tendered was in the nature of a summary only.  It was said in that material that there were many inconsistencies in the alleged victim’s story and further that the alleged victim was the subject of a bitter dispute as to which of her parents she should live with.  The father was a member of the alleged victim’s household and it was suggested that the child’s father may have coached her to make these allegations in order to bolster his case.  It has to be said however that the way the child described the matter was striking and did not contain any age inappropriate words.

5. The second allegation was made by the mother’s sister Ms C.  She said that she had been sexually abused by the father when she was about 14 years of age.  The father was an adult at the time.  Again no action was taken as a result of this.

6. The issue arises as to whether these two incidents are admissible as evidence against the father.  The father’s counsel submitted that they should be disregarded.  However she did not elaborate on why this should be so.

7. In deciding whether this evidence should be admitted in the case I propose to adopt a five step process. The first step will be to ascertain if the evidence is relevant. If it is not relevant then it is not admissible. If it is relevant the next step is to determine if there is any provision of the Evidence Act which would exclude it. If the answer to this is yes the next step is to determine if that provision is one that has been excluded by section 69ZT(1) of the Family Law Act. If the answer to that is yes then the next question is whether the court should nevertheless decide to apply the excluded provision under section 67ZT(3). If the answer to this is no the final step is to consider whether there is any other provision of the Evidence Act which has not been excluded which would bear on the issue of admissibility.

8. I will deal with each of these in turn.

Is the evidence relevant?

1. Section 55(1) of the Evidence Act provides that evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

2. In my view the evidence is relevant.  I imagine the vast majority of people go through life without having a single allegation made against them of sexual abuse of a minor.  It is striking that in this case there have been two such allegations apart from the allegations concerning the children in this case.  In my view this could rationally affect the probability of the fact at issue in this case, that is whether or not there is an unacceptable risk that the father may sexually abuse the children in this case.

Is the evidence inadmissible by reason of a provision of the Evidence Act?

1. In my view, under the Evidence Act, the previous allegations are not admissible as evidence in this case. The admissibility of these allegations is governed by section 97 of the Evidence Act. This addresses what is called the tendency rule. To paraphrase section 97 it states that evidence that a person has a tendency to act in a particular way (in this case to sexually abuse minors) is not admissible unless the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the parties seeking to adduce the evidence, have significant probative value.

2. In my opinion the previous allegations do not pass the test of significant probative value.  The first case involved a very young child and it was said that there were many inconsistencies in her account.  Moreover the father was only 16 years old and one would have to be cautious in assuming that the sexual tendencies of a 16 year old would necessarily carry through into adulthood.  Insofar as the mother’s sister is concerned it appears that she was a very troubled child.  She did not give evidence in the case before me.  In my opinion the previous allegations do not have significant probative value and are therefore inadmissible. 

Is section 97 of the Evidence Act abrogated by section 69ZT of the Family Law Act?

1. Section 69ZT(1)(c) provides that Part 3.6 of the Evidence Act does not apply to child-related proceedings. Section 97 falls within Part 3.6 and is therefore excluded.

Should the court exercise its powers to nevertheless apply section 97?

1. Section 69ZT(3) provides that notwithstanding the exclusion of parts of the Evidence Act the court may apply one of the excluded provisions if, inter alia, it is satisfied that the circumstances are exceptional. In my view the circumstances here are not exceptional.

Is there any other non-excluded provision of the Evidence Act that might bear on the admissibility of the evidence?

1. As things now stand the evidence is admissible. It is relevant and the exclusionary provisions of section 97 of the Evidence Act do not apply. However in my view the court should apply section 135 of the Evidence Act and exclude the evidence of prior complaints. That section is not excluded by section 69ZT of the Family Law Act. Paraphrasing section 135 it provides that the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. I am conscious that child-related proceedings are not purely proceedings inter partes but nevertheless the father has a major stake in play in this case. The decision which I have made to exclude him from the life of his children is a grave decision indeed. It was apparent from his evidence in the case that my decision will have a devastating effect on him. In my view the evidence would be unfairly prejudicial to him. In this respect I have regard to the matters which would have caused me to apply section 97. And the father was at a grave forensic disadvantage. His counsel could not cross examine either of the complainants with a view to discrediting their allegations. Of course involving the first of the complainants in the case was out of the question for a number of reasons but Ms C could have been called as a witness. She was not and so I am unable to form any conclusions as to her reliability.

2. I therefore exclude the evidence of prior complaints.

3. I now turn to the relevant parts of the Family Law Act.

4. Section 60CA of the Family Law Act requires that in resolving this matter I must treat the best interests of the children as the paramount consideration. Section 60CC of the Act sets out a number of matters which I am to consider when deciding what orders would be in the best interests of the children. I shall discuss this section shortly. The backdrop to this exercise is found in section 60B of the Act. This section sets out the objects of the Act insofar as it addresses children’s matters and the principles underlying those objects. Of relevance in this case is section 60B(1)(a) which provides that one of the objects of the Act is to ensure that the best interests of children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.

5. I turn now to section 60CC.

6. That section divides the considerations into primary considerations and additional considerations.  There are two primary considerations.  The first is the benefit to the children of having a meaningful relationship with both of their parents.  In this case it is the benefit to the children of having a meaningful relationship with their father which is at issue.

7. The second primary consideration is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

8. Section 60CC(2A) provides that in applying these considerations I am to give greater weight to the second of them, that is the need to protect children from harm.

9. These considerations pull in opposite directions. In the great majority of cases it is very much in a child’s best interests to have a meaningful relationship with both parents. But it is also vital to protect children. Whilst these are primary considerations they would not normally “trump” the additional considerations which are set out in section 60CC(3). However in this case in my view the need to protect the children is paramount and the case will be decided on this issue. Nevertheless I shall discuss each of the additional considerations.

10. Paragraph (a) of section 60CC(3) requires me to consider any views expressed by the children and any factors (such as their maturity or level of understanding) that I think relevant to the weight that should be given to any views.

11. The court has had the benefit of a Family Report prepared by Family Consultant Ms M.  Under the heading “The Children And Their Relationships” Ms M reports as follows:

    48. The mother reported the children had understood they were to spend time with the father during this assessment and that they were anxious and frightened prior to attending the interviews. The children were observed to be initially apprehensive.  After it was explained that they would not be seeing their father they were observed to relax and began to take an interest in their surroundings.

    49. The children presented as bright, energetic, friendly and talkative.  When it came to being interviewed X initially did not wish to talk without her mother present and clung to her.  The mother remained with the children while the Family Consultant explained the process to them.  All the children were interviewed individually and Z volunteered to be first to be interviewed.

    Z

    50. Z is nearly 5 years of age and has attended preschool in 2014.  She appears to enjoy her school and is looking forward to attending the same school with her older sisters in 2015.  She believes she attended the interview “because we have to see Mr Cantere (her father).”

    51. Z’s comments were brief and unsophisticated as is expected in a child of her young age.  Her comments indicate she is comfortable and settled in her current living arrangements.  She said when spending time with her mother she enjoys “lying in bed with her in the morning”, their dog and stated they have already put up their Christmas tree.  Asked her favourite toy Z stated “the home that we live in right now” and added “Dad doesn’t know where we live”. Z was observed to interact with her mother in a warm, comfortable and positive manner and stated that she wants her mother to care for her if she feels worried, unwell or frightened.

    52. Asked about spending time with her father, Z stated that “I don’t spend time with Dad because he’s mean” and this is because “he touches our mini.”  It is understood from the interview with the mother and forensic report that the children use this term to refer to their genital area.  Z reported no specific memories of spending time with her father.  She recalled that her paternal grandfather would yell at her father and the father’s brother when they spent time at the grandfather’s home.

    53. Z’s wishes for her family were “that we could be a family, Mummy and my sisters” and that she could be a mermaid.

    Y

    54. Y had celebrated her seventh birthday the previous day and stated that she had a party with her mother and sisters.  She presented as friendly and talkative.  She said she is in Year 1 at school and her favourite activity is “skipping.”  Y drew a picture of her family which included her mother and the three children.

    55. Y’s comments about spending time with her mother were positive and like Z stated that she looks to her mother for comfort and care if she feels worried, unwell or frightened.  Of her home she said “it has a nice backyard.”  She stated when spending time with her mother she feels “happy when I am at home with Mummy.”

    56. Of spending time with her father, Y stated “he let us stay up very late and he gave us lots of lollies and we watched TV” in contrast with her paternal grandfather who “gave us lots of healthy food from his veggie patch.”  She stated she did not want to see her father again “because he touches our minis” and “because he is mean to Mummy, even when he was at our house (lived with them), Dad locked Mum out of the door and Dad yelled at Mum lots of times.”  Asked if she had received any written notes from her father, Y stated “nothing to us or Mum.  He hasn’t said sorry to Mum once.  He should say sorry for being mean and yelling at her.”

    57. Y indicated that when spending time with her father she feels “angry, because he is very mean and I don’t want any junk food, I want healthy food from grandad” and “sad because he says stuff about Mummy that’s very rude, that makes me cry.”  She stated “I don’t like him anymore” and “I don’t want to talk to him on the phone.”  Y’s wishes for her family included “that Daddy was nice, that we had a new Daddy, and that Mummy would love him and be proud every day in her life.”

    X

    58. X is eight years of age and is in Year 2 at school.  Asked who was in her family she stated “me, Dad, Mummy, Y and Z.”  Asked to draw a picture of her family the drawing included her mother, herself and her two sisters.  X’s comments about spending time with her mother were positive and she enjoys painting and drawing with crayons and texta colours.  She indicated that she looks to her mother for care and said “she would hug us lots.”  She said she felt “happy, wiggly and excited” when spending time with her mother because she “plays with me lots of times.”

    59. Asked about spending time with her father, X made no positive comments and stated “he never played with us; he would lie in bed and send messages to Mum.”  She continued “he never was nice to Mum.  He used to yell at Mum and hurt her.”  She stated that when there was fighting her mother would tell her to “stay away.”  She indicated that her father “used to give us lots of chips, nothing healthy … Grandpa did.”  She said that her father and paternal grandfather “let us stay up late until I fell asleep… Mum doesn’t do that.”

    60. X stated that her father was “mean” to her.  Asked how he was mean, X became indecisive and looked away then said “he never talked to us.  I said Dad 1000 times and he doesn’t listen.”  She said when she spends time with her father she feels “angry because sometimes he swears at me a lot”, “sad because I asked him to play with me and he says no” and “frightened, when he scares me, when I don’t do stuff.”

    61. Asked about spending time with her father or having telephone contact, X said “I don’t know.”  Of not having spent time with her father in the last 12 months, X stated that “it feels weird; you have no Dad and didn’t even get one in your life.”  She indicated she did not miss spending time with her father.

1. I note the statements by Z and Y that the father touched their “minis”. 

2. One of the problems in this case is that the report was compiled in December 2014, more than a year after the children last saw their father and it may be that their memories of him are shaped by the environment in which they have lived since.  I need not take the views of the children into account except to observe there is nothing in them that would cause me to reconsider the orders I have made.

3. Paragraph (b) requires me to consider the nature of the relationship of the children with each of their parents.  In this case it is the relationship of the children with the father that is significant. 

4. Ms M was at a disadvantage in assessing the nature of the father’s relationship with the children because the interview with him was conducted by Ms M in Canberra whilst he was in Adelaide.  A face to face session with the children was therefore not possible.  Ms M reports that:

   69.    …The children believed they would be spending time with their father as part of the assessment process and exhibited anxiety about the prospect.  Until the children were reassured that they would not be required to spend time with the father they did not relax and remained on edge.  X was observed to be initially unwilling to leave her mother’s side and Y was quiet and reserved. 

5. Again there is only limited use to which I can put Ms M’s observations.  The comments I made when addressing the children’s views apply.

6. Paragraph (c) requires me to consider the extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children, spending time with the children and communicating with the children.

7. In this case it is the extent to which the father has done these things which is relevant.  It is fair to say that he has never abandoned the children.  Whenever he could he has spent time with them and he did not acquiesce in the present situation. 

8. Paragraph (ca) requires me to consider the extent to which each of the children’s parents have fulfilled, or failed to fulfil their obligation to maintain the children.  In this case it is the extent to which the father has fulfilled this obligation that is relevant.  He is not employed and is unable to pay significant child support.  I need not rely on this paragraph.

9. Paragraph (d) requires me to consider the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents.  In this case it is separation from the mother that is relevant.  As I have indicated the father does not seek a change in residential arrangements for the children and I need not consider this paragraph.

10. Paragraph (e) requires me to consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.

11. It is common ground that if the mother were to remain on the South Coast and the father in Adelaide neither could afford to travel for the purpose of the children seeing their father.  However given the orders I have made this is academic.

12. Paragraph (f) requires me to consider the capacity of each of the children’s parents to provide for the needs of the children, including emotional and intellectual needs.  I need not have regard to this paragraph.  My decision that the father should not spend time with or communicate with the children is not made because of any lack of capacity on his part.

13. Paragraph (g) refers to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of their parents, and any other characteristics of the children that I think relevant.  I need not rely on this paragraph.

14. Paragraph (h) refers to Aboriginal or Torres Strait Islander culture and is not relevant.

15. Paragraph (i) refers to the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents.  I need not rely on this paragraph.

16. Paragraph (j) refers to any family violence involving the children or a member of the children’s family.  Allegations of violence on the part of the father have been made by the mother but I need make no finding on them.  I suspect that, as will become apparent, given that she greatly exaggerated the number of times the police were called to the parties’ residence, her allegations in this respect, even if based on fact, were also exaggerated.  However this case hangs on other considerations.

17. Paragraph (k) refers to family violence orders and is irrelevant.

18. Paragraph (l) requires me to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.  Obviously if I acceded to the father’s application there might be further litigation if further disclosures were made by the children.  However I need not have regard to this paragraph.

19. Paragraph (m) refers to any other fact or circumstance that I think relevant.  Such facts or circumstances will emerge in the balance of this judgment.

20. The allegations that the father has sexually abused the three children arose in this way.  The mother says that in about May 2012 her mother told her that Ms C had told her that the father had touched and kissed her since she was 14.  This motivated the mother to ask Y, who happened to be in the home at the time, whether anything had ever happened to her.  The mother says that Y replied with words to the effect “Daddy used to come into my room from the computer room and he would look at my minnie and touch it and open it up and play with his willie and then pee in his hands”.

21. As is apparent from Ms M’s report the term “minnie” refers to the girls’ vaginal area.

22. The mother reported the matter to the police and this culminated in the South Australian Child Protection Services investigating the matter.  Its report dated 18 May 2012 contains the following information.

23. In relation to an interview with the mother the report says:

    She provided information that was consistent with the concerns contained in the Families SA Intake dated 24th of October 2011.  Ms Wilton-Stote reported that she began questioning Y (sic) about the possibility that Mr Cantere had touched her vagina, after Ms Wilton-Stote’s 16 year old half-sister, Ms C allegedly made a disclosure to Ms B that Mr Cantere had been engaging her in sexual activity.  Ms Wilton-Stote stated that she asked Y (sic) directly whether her father had touched her vagina and whether he had touched X’s vagina, which Y (sic) agreed had occurred.  Y (sic) allegedly agreed that it had “hurt”, and also reported said she had seen Mr Cantere touch his own penis which “wee” had come out of.  Furthermore, Y (sic) reportedly said to her mother that Mr Cantere had bought her chocolate.  Ms Wilton-Stote described Y’s (sic)  affect at the time as “happy” and “smiley”, and said that Y’s (sic) emotional state or behaviour was not different following that discussion.

    …

    Ms Wilton-Stote stated that she had “doubts” regarding the truthfulness of Y’s (sic) disclosure for several reasons.  Firstly, Ms Wilton-Stote described how she had previously said to X and Y (sic) that if they ever ran away from her, that the “mean man” would take them, “touch their mini” and that “it would hurt”.  She reported that when she mentioned the “mean man” to the children, they became scared and ran inside the house.  Ms Wilton-Stote said that she knew she should not have used that strategy to avert them from running away from her, and appeared somewhat embarrassed when telling the clinicians.  She reported that when she was approximately 5–6 years old, that she had been almost kidnapped by a woman from the side of a road. 

    Furthermore, Ms Wilton-Stote reported that the children had seen Mr Cantere “wee” many times in their back garden and said that all the family members were often “nude” around the house.  She did not believe that the children had been exposed to any sexual activity between the parents.  However, she stated that they may have briefly seen some pornographic material.  Additionally, Ms Wilton-Stote expressed concern that Y often lied.

    Ms Wilton-Stote said that Y (sic) and X had spoken of missing their father, and they continued to speak positively about Mr Cantere.  Ms Wilton-Stote also reported that Y (sic) and X had seen their father twice since the allegations arose, once for approximately ten minutes on Y’s (sic) birthday, and on another occasion when he did some cleaning at the home.  Ms Wilton-Stote thought Mr Cantere’s interactions with the children was “normal” and she did not notice any changes in the children’s behaviour at those times.  Ms Wilton-Stote said that the contact was supervised and she did not believe that Mr Cantere had a chance to speak to them about the allegations.  Ms Wilton-Stote expressed some sadness that the children might not be able to have a relationship with their father, as she did not have a relationship with her father. 

    In relation to emotional and behavioural changes, Ms Wilton-Stote stated she had not noticed any differences in their eating or toileting.  Y (sic) reportedly had some anxiety about sleeping in her bedroom alone, but had slept well since she had begun sharing a bedroom with X.  Ms Wilton-Stote said X had difficulty separating from her at the start of school most days, but that X interacted quite well with other children once she was there.

    Regarding genital symptoms, Ms Wilton-Stote reported that X had said that her vagina hurt on a number of occasions, but this had occurred before and after the allegations had arose.  Ms Wilton-Stote said X’s vagina often hurt after she had baths with shampoo in them.  Ms Wilton-Stote also explained how both children’s vaginas had been red in the past, which she took them to a GP for, and he recommended that she make sure the children wore underwear to prevent this from happening.

    Ms Wilton-Stote reported there had been previous allegations about Mr Cantere when he was 16 years old having sexually abused his father’s girlfriend’s 6 year old daughter.  Ms Wilton-Stote believed that the allegations arose in the context of a family court case, and that the child’s father had “coaxed” the child into making a disclosure. 

24. The investigator reported the following in relation to her interview with Y:

    The clinician used several lines of questioning to provide Y (sic) with opportunities to speak about what, if anything had happened to her in relation to the current allegations.  Y (sic) was asked questions about her experiences of different emotions and events which gave rise to these feelings.  Y (sic) was also shown pictures depicting an unclothed boy and a girl and asked to name parts of the body.  Y (sic) named the female genital area a “mini” and male genital area a “willy”.  Y (sic) was also asked to discuss various types of touches a child may receive, including hugs, kisses, tickles and smacks.  In addition, Y (sic) was questioned about receiving sexual touches or being engaged in sexual behaviour with another person.

    When asked about whether she has experienced a ‘rude’ or ‘yucky’ touch Y (sic) said “a yucky touch”, and immediately said, “Yucky lemons”.  When asked to clarify, Y (sic) provided an answer that could not be understood by the clinician.  Y (sic) said “don’t know” when asked where on her body she had a yucky touch and added “but poos are yucky”.

    When asked who had given her a ‘yucky’ touch Y (sic) said, “I don’t know, but Mr Cantere did”.  Y (sic) then added, “Mr Cantere had a not good idea”, and “(first word could not be understood) always gave you yucky touch, and play with your mini”.  When asked about the frequency, Y (sic) stated “it didn’t happen”, then said “let’s just colour in”.  When Y (sic) was asked to provide more detail about her comment about ‘minis’, she said “I don’t know”. 

    The clinician reminded Y (sic) that their role was to keep children safe, to which Y (sic) stated, “Z and X are safe with Mummy and Nanny”.  When asked if there was anyone that X was not safe with, Y (sic) said “no”.  When questioned specifically whether anything had happened to her ‘mini’, Y (sic) said “no”.  Regarding whether she had ever witnessed a ‘mini’ having been touched, Y (sic) said “no”.  When asked about secrets, Y (sic) reported “we have good secrets, not bad secrets”. 

    When asked further about Mr Cantere’s “not good ideas”, Y (sic) replied, “my Daddy has a willy”.  Regarding how she knew that, Y (sic) said, “My Mummy told me”.  When asked if she had ever had a touch to her bottom, Y (sic) said “no”.  Furthermore, Y (sic) said “no” when asked if there was anything she was scared to tell the clinician.  When asked whether she had experienced a ‘poke’, Y (sic) reported “no”. 

25. The clinician reports the following in relation to her interview of X:

    The clinician used several lines of questioning to provide X with opportunities to speak about what, if anything, had happened to her in relation to the current allegations.  X was asked questions about her experiences of different emotions and events which gave rise to these feelings.  X was also shown pictures depicting an unclothed boy and girl and asked to name parts of the body, and she was asked to discuss various types of touches a child may receive, including hugs, kisses, tickles and smacks.  In addition, X was questioned about receiving sexual touches or being engaged in sexual behaviour with another person.  During the interview X did not make any disclosures to suggest she had experienced sexual abuse.  However, when discussing reasons why her father did not live with her anymore, X reported “he’s been a bit too much naughty”.  She was unable or unwilling to clarify this statement further. 

26. The report observes that when she was told that the investigation had not revealed evidence of sexual abuse the mother expressed relief.

27. No further action was taken with respect to these allegations.

28. Nothing more occurred until November 2013.  The mother says that some months before November 2013 Y said to her words to the effect “Daddy makes us sleep naked with him”.  She says she spoke to the father about this but he denied it.  She then says that sometime in November 2013 while she was getting the children ready for school she noticed while dressing Z that the skin around her vagina was red and irritated.  She asked Z why this was so and Z said to her words to the effect of “Mum, dad touches my minnie and smells it and looks at it”.  She asked Z “How many times has this happened?” and Z replied “every time mummy”.  She says that Y then said words to the effect of “Daddy does it to me too mummy”. 

29. It will be recalled that following these disclosures the mother refused to allow the father to see the children and that she ultimately left Adelaide. 

30. The mother reports that about June 2014 she was having a discussion with Z about her going to see a doctor because she was ill.  She says that X then said to Z words to the effect “don’t worry the doctor will give you a lolly” to which the mother said “when did you go to see the doctor?”  She says that X replied “when you took me to have my minnie checked.”  She went on “That reminded me that X had consistently had irritated skin around her vagina, so much so that I had an appointment to see the doctor about it.  I then said to X “You were always irritated at the same time as your sisters were and she said words to the effect of “I’ll tell you once I don’t want to tell you again” ”. 

31. The mother then said that she and X had a conversation to the following effect:

    X: “If daddy had done anything to the girls it would have happened when I was at Grandad’s house cleaning his dishes.”

    Me: “So, he would play with their minnies when you were cleaning the dishes?”

    X: “Yes, I knew if the girls weren’t out in the yard they would be in the bedroom playing with the girls minnies.”

    Me: “How did you know that?”

    X: “I would hide under his clothes on the drawers or behind the door”

    Me: “When would you come out?”

    X: “When he was finished or would go to sleep.”

    Me: “Why didn’t you tell me?”

    X: “He told me that if I told anyone they wouldn’t believe me, then I said to him “if you keep doing it I will scream””

32. The mother reports that Y was shaking her head at the time and she asked Y if what X was saying was not true.  She says that Y said words to the effect of “That is true mummy”.  She says she asked Y how the father had hurt her and she (Y) lay on her back and stuck her feet up in the air.  Y said words to the following effect “he makes us sit on his feet and smell and touch and play with our minnies”.

33. I am conscious of the fact that the third and fifth paragraphs do not appear to make sense.  This limits the reliance that can be placed on what X said.  On the other hand however it appears that the mother was setting out the words spoken by X verbatim as best she could recall them.  It is apparent that she did not attempt to re-draft the interview to make it more coherent.

34. The case for the father is effectively that either the mother had coached the children to make these allegations or that she had in some way so infected them with her attitude to the father and to child sexual abuse that what they recounted is totally unreliable and is not capable of founding a finding of unacceptable risk.  In particular the “mean man” issue was raised.  It will be recalled that the “mean man” issue arose in the South Australian Child Protection Services report.  It would seem that the mother is hyper vigilant about “stranger danger” and in evidence she gave a graphic and compelling account of the incident when she was accosted by a woman when she was very young.  She described how the woman offered her a $50 note as an inducement to get in her car.

35. There are serious credibility issues involving the mother.  She said for example that the police had been called to domestic disturbances in her home when she lived the father on “several” occasions.  She gave a figure of about twenty times when she was interviewed by Ms M.  The reality is that subpoenaed records show that the police were called three times and one of these incidents did not involve any allegations made against the father.  She also gave what I regarded as very unconvincing evidence as to the circumstances in which she lost her bond for houses she was renting.  She also had a very poor record of taking the children to school when they lived in Adelaide.  They were often absent and frequently late when they did attend school.  She ascribed her conduct in this respect to threats by the father that he would “kidnap” the children.  I reject this.  In my view the reason would have been that the mother’s life was out of control at the time and she was simply not coping.  She also said that when she reported the November allegations to a police officer at the (omitted) Police Station she was advised to leave Adelaide.  I believe it is most unlikely that such advice would have been given.  There are other examples.

36. I am conscious of the credibility gaps in the mother’s evidence.  I am also very conscious of the limitations of assessing a witness’ veracity from his or her appearance in the witness box.  The mother gave me the appearance of someone who was telling the truth but the fact that she has been shown not to have done so in many instances serves as a salutary warning to me that I should be very careful in accepting any part of the mother’s account.  Nevertheless the fact that someone does not tell the truth, or exaggerates, in relation to one area of their evidence does not of necessity mean that all their evidence must be rejected.  I accept her evidence when she relates the allegations made to her by the children.  Her conduct at the investigation conducted by South Australian Child Protection Services strikes me as relevant.  If she was motivated by animus towards the father and wished to make up a case of sexual abuse against him then her statements to the clinician about Y’s reliability and her relief that the investigations came to naught are not consistent with a person who has such a motivation.  It is notable that she did not believe the allegation that the father had ejaculated into the bath of the 5 year old child and was prepared to accept, indeed she formulated, a benign explanation for the “weeing” statement.  Furthermore I do not believe that she has infected the children in other ways.  In particular I do not believe that any reasonable nexus can be drawn between the “mean man” episode and the allegations made by the children.  Or at the least it is impossible to conclude that the “mean man” episode was responsible, in whole or in part, for the allegations.

1. I emphasise that in making my decision I am not making a finding that the father has sexually abused the children.  The evidence falls far short of that which would be required to make such a finding.  And indeed I am not required to make such a finding and should not do so unless it is necessary.  The test that I must apply is whether the children’s spending time with the father would expose them to an unacceptable risk of sexual abuse. 

2. In making my decision I do not overlook the fact that the allegations were made by young children who may not be reliable.  I am conscious that memories may be implanted in such children.  I note that the first statements made by Y were a result of direct questions asked of her by the mother.  A trained investigator would not have approached the matter in this way.  I note that when interviewed by the South Australian Child Protection Services X made no disclosures and the statement by Y about the touching of her “mini” was, in effect, retracted.

3. The authorities have used various phrases when attempting to define what is meant by the term “unacceptable risk”.  In the High Court case of M & M (1988) 166 CLR 69; (1988) FLC 91-979 the trial Judge made reference to having a “lingering doubt” as to the allegations of sexual abuse made against the father, that is a lingering doubt as to his innocence. For my part in this case I have more than a lingering doubt. I find the statements made by the children gravely concerning. They are in age appropriate terms. They do not give the appearance of being coached and in any event the mother’s reaction to the investigation is inconsistent with this theory. I do not consider the “mean man” explanation convincing. I am unable to find that the mother’s attitude has in some other way infected the children and is the explanation for their statements. I find that the children’s spending time with their father would expose them to an unacceptable risk of sexual abuse.

4. In making this finding I appreciate that Mr Hemsley, who appeared as the Independent Children’s Lawyer, formed a different view.  He recommended that I make orders which would require the mother to return to Adelaide and make orders as to the children spending unsupervised time with the father.  I have due regard to Mr Hemsley’s views but I do not share them.

5. In many cases such a finding would not dispose of the case.  In many cases where a finding of unacceptable risk is made an application is still made by the father to spend time with the children under supervision.  For this to occur it would require the mother to return to Adelaide.  The mother cannot afford to visit South Australia and in any event the travel time by bus (she travelled by bus to attend the hearing) would be punishing on both her and the children.  The father has made it quite clear that he cannot afford to travel to the South Coast, or to Canberra, for the purpose of having supervised time with the children.  I need not consider the alternative of requiring the mother to relocate to Adelaide to facilitate supervised time.  This aspect of the case was neither explored in evidence nor were submissions made about it.  It raises complicated issues.  Suffice to say that I would require a lot of persuading to make such an order.  In this respect I note that Ms M did not support an order being made requiring the mother to return to South Australia and her view was not based on the unacceptable risk issue.

6. I have therefore made orders which will permit the mother to remain on the South Coast.  I have made an order that she have sole parental responsibility for the children and that they live with her. I have made an order restraining the father from being in the South Coast area.  This is probably academic given his evidence but it may provide some comfort to the mother.  I got the clear impression that she found the prospect of being anywhere near the father quite stressful. 

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Brewster

Associate: 

Date:  13 March 2013