Carbirne and Jetton
[2013] FamCA 310
FAMILY COURT OF AUSTRALIA
| CARBIRNE & JETTON | [2013] FamCA 310 |
| FAMILY LAW – CHILDREN – Magellan proceedings – With whom a child lives – Best interests of children – Allegations of child sexual abuse involving one of the parties’ children – Discussion of the meaning of unacceptable risk – Finding on the balance of probabilities that the father did not sexually abuse the child – Finding that there is no unacceptable risk of the child spending unsupervised time with the father – Where it is in the children’s best interest for the parties to have equal shared parental responsibility – Where it is appropriate for the child to slowly be reintroduced to the father culminating in spending the same amount of time with the father that the siblings will spend with the father including overnight time and substantial and significant time. |
| Family Law Act 1975 (Cth) ss 60CC, 60B, 61DA, 65DAA MRR v GR (2010) 263 ALR 368 N&S (1996) FLC 92-665 |
| APPLICANT: | Mr Carbirne |
| RESPONDENT: | Ms Jetton |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 2221 | of | 2009 |
| DATE DELIVERED: | 26 April 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 10, 11, 12, 13, 14 December 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cook |
| SOLICITOR FOR THE APPLICANT: | Bankstown Legal |
| SOLICITOR FOR THE RESPONDENT: | Ms Jetton appeared on her own behalf |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Falloon |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O’Donnell |
Orders
That all existing orders in relation to the children
L born on … August 2001
R born on … March 2004
M born on … May 2005
(“the children”) are discharged.
That the father and mother have equal shared parental responsibility for the children.
That the children live with the mother.
That L and R spend time with the father as follows:
4.1from the conclusion of school on Thursday until the commencement of school on Tuesday in each alternate week during term time
4.2from the conclusion of school on Tuesday until the commencement of school on Wednesday in each other week during school term time
4.3for one half of all school holidays, being the first half in odd-numbered years and the second half in even-numbered years unless otherwise agreed by the parties
4.4from 9:00am until 5:00pm on Fathers Day in the event that they are not otherwise in his care pursuant to these orders
4.5for a period of two hours on each child’s birthday, being from 12:00noon until 2:00pm on a non-school day and from 3:30pm until 5:30pm on a school day in the event that they are not otherwise in his care pursuant to these orders unless otherwise agreed by the parties
4.6from 5:00pm on Christmas Eve until 12:00noon on Christmas Day in years when they are spending time with the mother for the first half of the Christmas school holidays unless the parties agree otherwise
4.7at such other times as the parties may agree.
That M spend time with the father as follows:
5.1from 10:00am until 2:00pm on each Sunday when L and R are in his care pursuant to order 4.2 for a period of one month from the date of these orders
5.2thereafter, from 10:00am until 6:00pm on each Sunday when L and R are in his care pursuant to order 4.2 until the September/October 2013 school holidays, being the first week thereof unless otherwise agreed by the parties
5.3thereafter, at times simultaneously with L and R in accordance with order 4.
That the children return to the care of the mother, if they are otherwise spending time with the father pursuant to these orders as follows:
6.1from 9:00am until 5:00pm on Mothers Day in the event that they are not otherwise in her care pursuant to these orders
6.2from 5:00pm on Christmas Eve until 12:00noon on Christmas Day in years when they are spending the first half of the Christmas school holidays with the father unless the parties agree otherwise
6.3for a period of two hours on each child’s birthday, being from 12:00noon until 2:00pm on a non-school day and from 3:30pm until 5:30pm in the event that they are not otherwise in her care pursuant to these orders unless otherwise agreed by the parties.
That the parties cause the continuation of therapy as provided by the interim orders of 14 December 2012 for so long as that practitioner deems appropriate and that they each pay one half of that person’s professional fees.
That the mother is restrained from allowing the children any contact of whatever nature with Mr B.
That the parties are restrained from discussing with the children or in their presence the court proceedings involving Mr B.
That the parties cause changeovers for the purpose of implementation of these orders to occur at the children’s schools or the C Shop at Suburb D.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all material produced on subpoena be returned.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carbirne & Jetton 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 SYDNEY |
FILE NUMBER: SYC 2221 of 2009
| Mr Carbirne |
Applicant
And
| Ms Jetton |
Respondent
REASONS FOR JUDGMENT
the proceedings
Mr Carbirne, (“the father”) and Ms Jetton, (“the mother”) are the parents of three children:
L born in August 2001 (11)
R born in March 2004 (9)
M born in May 2005 (7) (“the children”)
The father and the mother cannot agree as to arrangements for the care of their children.
The applicant father proposed that the children live with him and that he have the sole parental responsibility. The children would spend time with the mother each alternate weekend from Friday afternoon until Sunday evening; for half of all school holidays and on special occasions. In an Amended Initiating Application filed on 26 July 2011 the father had sought orders that the parties have equal shared parental responsibility and that the children live with each of them in a week-about arrangement. The Family Consultant reported that the father implied to her in June 2012 that the children spend only supervised time with the mother.
The respondent mother proposed that the children live with her and that the parties have equal shared parental responsibility. The boys would spend time with the father from Wednesday afternoon until Monday morning in each alternate week and, presumably, during school holidays and on special occasions. The mother proposed that M be reintroduced to the father on a graduated basis, as they have spent no time together since March 2012. In her Response filed on 19 September 2011 the mother had sought orders that the children live with her and that she have sole parental responsibility. She sought orders “pending the outcome of the Notice of Risk Application” that the children spend time with the father each alternate weekend and for half of all school holidays.
The Independent Children’s Lawyer (“the ICL”) proposed that the parties have equal shared parental responsibility and that the children ultimately live with each of the mother and father in a week-about arrangement. M would be gradually reintroduced to the father, over a period of approximately one school term, and thereafter she too would live with each parent in a week-about arrangement.
As noted, M has spent no time with the father since approximately March 2012. On 29 May 2012 the parties consented to interim orders which suspended M’s time with the father. The boys recommenced spending time with him in late March/early April 2012. The arrangement appears to be that they spend time with him on alternate weekends from Thursday afternoon until Monday morning; each other Tuesday night and during school holidays.
Two major events created difficulties in the children’s spending time with the father. Firstly, the mother alleged that the father sexually abused M. Secondly, in February 2012 the mother’s then partner, Mr B, was charged with attempted murder of the father. I will examine the evidence relating to these issues below.
Background
The father was born in 1964 and is presently 48 years of age. The mother was born in 1973 and is currently 39 years of age. They began to live together in about February 1999 and married in November 1999. They separated on 12 February 2008, when the father left the former matrimonial home and the children remained with the mother.
The father has three adult children Ms E, Ms F and Mr G, from a prior marriage. They are presently aged about 28, 22 and 19 years. The mother has no children other than L, R and M.
When the parties met they were both employed by a government agency. The father’s career path shifted in June 2002, when he suffered spinal injuries from a work incident. He was medically retired in 2004 but re-entered the paid workforce in 2007. His most recent employment was as a caseworker/support coordinator with Organisation H. He has been unable to work since the attempted murder incident and is presently undergoing trauma counselling. The mother has continued in her employment with the government agency.
The allegations of sexual abuse first arose on 20 December 2009, when the mother observed that M’s vaginal area was “very red and inflamed” after she returned from time with the father. According to the mother, M complained that the father touched and hurt her in the genital area. After a JIRT investigation found the allegations to be unsubstantiated, the children’s time with the father resumed in accordance with interim orders made by consent on 23 June 2009 and 1 September 2009.
According to the mother, M continued to complain to her of inappropriate touching by the father during 2010, 2011 and 2012. She filed a Notice of Risk of Abuse on 2 November 2011 and an Application in a Case on 11 April 2012. By that Application she sought to suspend the interim parenting orders, with M to have no contact with the father and L and R to spend only supervised time with him.
JIRT officers interviewed M on 23 December 2009 and 4 June 2012. Each of these investigations found that the allegations of sexual abuse were unsubstantiated. I will examine below the evidence relevant to the issue of sexual abuse of M by the father.
At the commencement of the trial I enquired of the mother, who was unrepresented, whether she sought a finding that the father sexually abused M. She informed me that she did “not necessarily” seek such an outcome. As noted, by the end of the trial her position was that M should be reintroduced to the father on a graduated basis. She sought that a supervisor be present during this process but my clear impression was that her purpose was to provide reassurance to M rather than to protect her from a risk of harm. A significant issue in the proceedings was whether the mother currently believes that M was sexually abused by the father. I will examine the evidence relevant to this issue below in these reasons.
A significant factual issue in the proceedings was whether the mother had prior knowledge of Mr B’s intention to murder the father and the extent, if at all, that she was complicit in his crime. There are obvious implications for the mother’s ongoing relationship with the children if she was, in fact, complicit in or condoned Mr B’s crime against their father.
The mother firmly and categorically denied that she had any prior knowledge of or involvement in Mr B’s crime. She maintained that she has terminated her relationship with him. I will examine the evidence relevant to these issues below in these reasons.
On the last day of the trial, the ICL provided a Minute of Proposed Orders. The parents agreed that I should make interim orders in terms of paragraphs 6 to 15 inclusive thereof and I did so on 13 December 2012. These orders provided as follows:
6.The parents shall within seven days, each do all things necessary to obtain from Child Dispute Services at the Family Court Sydney a list of at least three child psychologists who may be available to:
a) Commence child and family therapy with the three children at the earliest available date, and
b) Provide feedback and assistance to the parents in regard to appropriate strategies to assist the parents with the management of the children’s behaviour, and the children’s emotional and psychological health.
7.The parents shall, within seven days of obtaining the contact details of such child psychologists, do all things necessary steps to make an appointment with the chosen child psychologist for an intake assessment with such chosen child psychologist, and do all things and take all steps to ensure the children’s attendance on the chosen child psychologist at the earliest available date.
8.Each parent shall pay one half of the fees for the nominated child psychologist.
9.The father and mother shall each do all things necessary to ensure that the three children attend with the child psychologist as frequently as recommended by that psychologist, and shall ensure that they comply with any and all referrals made by that psychologist.
10.The parents are hereby injuncted and restrained from:
a) permitting or allowing any other third person to accompany them or the children to any consultation or appointment with the child psychologist unless at the specific request of the child psychologist, or
b) discussing the therapy program provided by the child psychologist with any other person or persons in the presence or hearing of the children.
11.The Independent Children’s Lawyer (“ICL”) is authorised to provide to the child psychologist, upon notice being given by the parents of the name and contact details of the child psychologist to the ICL:
a) a copy of these orders
b) a copy of the Family Report of [Ms J] dated 5 July 2012
c) a copy of the Project Magellan Report dated 12 March 2012
d) a copy of the records of the JIRT interviews with the child M on 4 June 2012
12.Neither parent shall discuss these proceedings with the children or any of them; nor shall they discuss the proceedings in the presence of the children, nor shall the parents permit any other person to discuss these proceedings with the children or in the presence of the children, and shall immediately take all reasonable and necessary steps to remove the children from any place where other persons are discussing these proceedings.
13.Both parents are hereby injuncted and restrained from arranging for the children or any of them to attend upon [Ms K] or any other counsellor, psychiatrist or psychologist or therapist other than the child psychologist referred to in these orders.
14.The mother and father are hereby injuncted and restrained from allowing or permitting the children to have any contact or communication whatsoever with [Mr B] at any time, and shall not permit any other person to bring the children into contact with [Mr B] or to have any communication with [Mr B] whatsoever.
15.The parents are injuncted and restrained from discussing the court proceedings in relation to [Mr B] with the children or any of them, or in the presence of the children, nor shall the parents permit any other person to discuss [Mr B] or the court proceeding concerning [Mr B] with the children and shall immediately take all reasonable and necessary steps to remove the children from any place where other persons are discussing [Mr B] or the court proceedings related to him.
Approach To These Proceedings
In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests.
The Court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:
[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …
A leading decision on the approach of the court to allegations of sexual abuse of children is that of the High Court of Australia in M and M (1988) 166 CLR 69. Their Honours said (at page 76):
…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…
and at page 75:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
In M and M (at pp 76-77) the High Court identified the relevant standard of proof in these terms:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362. There Dixon J said:
‘The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
The “Briginshaw test” is now encapsulated in section 140 of the Evidence Act 1995 (Cth), which provides:
140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.
The High Court in M and M addressed the issue of “unacceptable risk” of sexual abuse and said (at page 77):
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the “the unacceptable risk test”, and said:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
The Full Court in W and W cited with approval the following passage from the judgment of Fogarty J in N and S (1996) FLC 92-665:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
I would respectfully observe that this series of questions is a useful, practical tool for a court to utilise in assessing whether there exists an “unacceptable risk” of sexual abuse of a child.
The Evidence and Witnesses
The applicant father relied upon affidavits sworn by himself and his sister, Ms A. The respondent mother relied on affidavits of herself and her father, Mr I. With the exception of Mr I, all of these witnesses gave oral evidence.
The mother called evidence from Ms K, a counsellor who has been involved with M since 28 June 2012. With all due respect, Ms K’s evidence caused me considerable alarm as to the impact on M of her involvement with the child. At the end of the trial the parents agreed to orders which put an end to Ms K’s engagement with the child. I will refer to Ms K’s evidence below in these reasons.
I had the assistance of a Magellan report dated 12 March 2012, which detailed the involvement of the then Department of Family and Community Services with the parents and children to that point. As noted above, there was a second investigation by a JIRT team in June 2012.
I had the benefit of a Family Report dated 5 July 2012 prepared by Ms J. The Family Consultant gave oral evidence in response to questions by the mother and counsel for the father and the ICL.
The Allegations of Sexual Abuse
In her affidavit sworn on 18 September 2011 the mother gave an account of M’s first complaint to her of inappropriate touching by the father on 20 December 2009. She deposed:
7.To the best of my knowledge around 7:40pm that evening I gave [M] her wash down, prior to this she was very emotional and clingy to me and in my opinion she appeared to be quite distressed.
8. I laid [M] down on my bed removed her clothing with the intention to place her pyjamas on her, I asked her to lift her legs so I could clean her private parts and place a pull up on her. When she lifted her legs I noticed she had a bit of poo in her bum cheeks which was extremely unusual for her. I asked her to keep her legs up in the air while I got the baby wipes from the bathroom.
9. I came back and cleaned the poo away and I noticed her vagina was very red and inflamed. I asked [M], “Why is your vagina so red (I may have used the term punani at that time)” [M] replied “Daddy touched my private parts like this, and hurt me.” She used a hand gesture like a duck beak opening and closing. I asked her to repeat this and she said and did exactly the same thing.
In her affidavit the mother recounted that she then summoned the maternal grandmother. She also fetched two of M’s dolls and “asked her to show Mummy and Grandma on [a doll] what happened”. The mother deposed:
13. I then asked [M] to show me what happened on [the other doll], [M] took hold of [the doll] turned her upside down and grabbed the area between the dolls legs in the duck beak way she showed me earlier. [M] was very quick when she did this and she would not look Mum or myself in the face.
The mother’s affidavit recounted that she then summoned her father and asked the child to “show [him] what had happened”. M refused and became increasingly distressed and in need of comfort from the mother.
The mother then deposed that she and the maternal grandparents decided to inform child protection authorities of M’s statements and actions. Before she telephoned DOCS the mother again questioned the child. She deposed:
16. Before I made any phone calls I returned to [M] and asked her if she was definitely sure that this had happened to her because it is very serious. [M] looked at me and she was so sad when she said “Daddy did hurt me on the private parts”.
The mother’s affidavit recounted that the maternal grandmother telephoned some friends, Ms N and Mr O, who quickly arrived at the home. The mother’s brother Mr P and another friend, Ms Q, were present throughout these events.
The mother then deposed that two police officers arrived at the home at about 10:00pm and took a statement from her. Approximately one hour later a detective came to the premises and questioned the mother. He took the clothes which the child was wearing when she returned from her time with the father.
The mother deposed that she, the maternal grandmother, Ms N and Ms Q all accompanied M to Suburb D Hospital on the following day. The mother stated in her affidavit:
23. [M] and I went with the Doctor and Mum, [Ms N] and [Ms Q] waited for us. The doctor informed me that her vagina was very red and inflamed. She also had abrasions at 11 and 1 (like a clock face) on either side of her vagina. I was informed that her hymen was intact.
On 23 December 2009 M was interviewed by JIRT officers. The following exchanges, inter alia, occurred during the interview:
When questioned again about why she came into the office she said, “We had to come here because dad did something to me.”
Q.What did dad do?
A.I don’t know.
Q.Why don’t you know?
A.Cause once I talked about it to mum and I don’t know the other bits.
Q.Tell me what you talked about with mum?
A.About dad pulling my private part.
[M] was asked “when” her dad pulled her private part and she nominated Wednesday “when we had a day off school, a blue Wednesday.”
[M] was asked “where” the incident happened and she nominated a park that contained a train, house and some bushes.
[M] was questioned about her private part and asked if she had any other names for it. She was unable to provide a name. The body chart of a female was used and [M] nominated the vagina area and drew a circle. She stated her private part is used to do “poos and wees”. She stated her grandmother calls it her “toosh”.
[M] then said, “then my friends came back and I still had my pants on”. When asked what happened next she said, “then I had to go to the doctors when I came back from daddy’s house.
Q.What happened after the kids were playing in the bushes?
A.We went to [Y’s] house.
Q.You told me before that your friends were playing in the bushes, and then you said to me that your dad had to pull on your private part. Tell me more about that?
A.I don’t know some other bits.
Q.Ok, so why don’t you know the other bits?
A.Cause I did it on my dollies
Q.Yeah. But I want you to tell me what happened at the park?
A.I don’t know.
After attempts were made to extract more detailed information from [M] about the alleged abuse event she was asked, “I want you to tell me about the part when you said that your dad had to pull on your private part. Can you tell me about that?
A.I don’t know the first bit, and the second bit and the last bit.
Q.Ok, well you tell me what bits you do know about that. You tell me what happened.
([M] then told a story about a person called [S], the story didn’t make sense.)
Q.Tell me about the part when your dad had to pull on your private part?
A. I can’t remember.
Q. Tell me how he pulled your private part?
A. I don’t know some bits or the other bits.
Q. How come you don’t know some bits or the other bits?
A. Because I haven’t been here before to tell you.
Q. But if it really happened to you, then it means you would know what happened? So can you tell me?
A. Um, he wanted to do all the other bits to hurt me.
Q. Ok, tell me about the other bits to hurt you.
A. Um, he wanted to do his favourite place with me, cuddle me, each other cause we love each other.
Q. Who loves each other?
A. Me and daddy, fingers crossed, dada
Q. I want you to tell me about when you’re at the park, and the kids went and played in the bushes…tell me what happened next?
A. I want mumma…and then we came back to go to our house, to dadda’s house, cause I want mumma now, mumma.
Q. Remember how I have been asking you about when your dad had to pull your private part, and you said you can’t remember, can you tell me why you can’t remember?
A. Because when my mum and dad broked up…that was because when my mum and dad broked up.
Q. So, you told me before that you couldn’t remember about when your dad had to pull on your private part. Did someone tell you that your dad pulled on your private part?
A. Yeah…mumma did. I want mumma now.
Q. What did mummy tell you?
A. I don’t know.
Q. Tell me what mummy said to you?
A. Did he really want to do that to you and I said yes.
Q. So, did your daddy really pull on your private part? Or, did someone just tell you that your daddy pulled on your private part.
A. Daddy did
Q. Well, can you tell me what he did.
A. I can’t remember the some bits.
Q. Can you remember little bits?
A. He camed over with [T] and [Y] and they didn’t know what we had to do…
Q. Why did your dad pull on your private part?
A. Maybe he just wanted too… cause I didn’t see cause I had my head off. I didn’t hear him say didn’t pull my private part.
Q. Did you see him pull your private part?
A. No, cause I had my head down…itching.
Q. So when you had your head down, what were you looking at?
A. I was itching my feet
Q. What happened when you were itching your feet
A. The he…tree…he put leaves across me…the other feet…it made all marks. Sores on feet from scratch things….
Q. What was your dad putting on your feet?
A. Suncream.”
JIRT officers spoke to the father, who strongly denied that he had acted improperly toward M in any way. He said that he and the child had been at a beach on 20 December 2009 and that his then girlfriend and other adults were present at all times.
JIRT officers concluded that M was not sexually abused by the father. They reported:
Of concern, [M] would say she doesn’t remember the abuse event, doesn’t know what happened and of most concern, at one point she says she didn’t see the abuse event. [M] talks about her mum and dad’s separation and her feelings of not wanting to ‘leave’ her mother. It is unclear why she has thoughts of having to ‘leave’ her mother. When questioned if someone told her to say the words, “dad pulled my private part” [M] replied, “Yeah…Mumma”.
There is no evidence that the abuse event occurred and when put into context with the ongoing Family Law Court proceedings and apparent animosity between the feuding mother and father, the report presents as suspicious at the very least.
Dr U conducted a medical examination of M on 21 December 2009. Her notes (exhibit 7) stated inter alia:
There was increased redness of the vestibule and on either side were superficial abrasions about 2-3mm long.
Dr U opined:
The mother of this 4 year old girl has alleged that the child reported that her father hurt her genital area by ‘pulling her private parts’ while she was on an access visit the previous day.
The child has been formally interviewed by has not made any disclosure nor expressed any reluctance to visit her father again.
Ano-genital medical examination was mildly abnormal in that there was increased vulval redness and an abrasion on either side of the vestibule (the entrance to the vaginal opening). Vulval redness (erythematic) is generally regarded as non-specific in causation, particularly if it is generalized and symmetrical. It is possible that these abrasions are due to digital interference, but they could also be due to sand from the beach getting inside the child’s pants and irritating the vulva.
The Magellan report (exhibit 2) noted six allegations of “risk of sexual harm” between 3 March 2010 and 19 September 2011, five of which occurred in 2010. In her affidavit sworn on 3 April 2012 (exhibit 12) the mother deposed that M had “grown more reluctant to spend time with the father” during the preceding “several months”. The mother deposed that the child refused to get out of bed, cried, screamed and objected to entering her car on mornings when the father was due to collect her from school.
The mother deposed that she decided during the week of 22 February 2012 that she would not send M to school on days when the father was due to collect her. She deposed further that on 20 March 2012 she decided to keep R at home on days when the father was due to collect him from the school. Records of Town V Primary School (exhibit 10) indicated that M was absent on an “unjustified” basis on 29 occasions between 31 January 2012 and 26 October 2012. R was absent on an “unjustified” basis 20 times between 31 January 2012 and 26 October 2012.
In June 2012 the maternal grandmother reported complaints by M of inappropriate touching on the part of the father to the Department of Family and Community Services (“FaCS”). M was again interviewed by JIRT officers on 4 June 2012. A full record of this interview was in evidence (exhibit 9) and ran to some 381 questions. In an assessment report JIRT officers wrote:
[M] participated in an interview on 4/6/2012 and disclosed sexual abuse by her n/f on multiple occasions. [M] was not able to provide a consistent version of events as when she was questioned to gather further clarifying information her version would change continually. Discrepancies included how many times she had been assaulted, where the assaults occurred, what she was wearing at the time of the assaults.
Due to JIRT officers being confused about what she had done the previous day – Sunday. [M] provided a complex story about how she and her mother went to her school and spent the day with her reading teacher and had bought a hot dog from a corner shop at [Town V] prior to going to the school. [M] then left the interviewing room and went and sat with the grandmother whilst JIRT officers spoke with the mother. The mother was informed about [M’s] interview and the inconsistencies that were noted whilst speaking with her. The mother was then asked what she and [M] had done the previous day. The mother stated that [M] was not feeling well so she stayed home with the grandmother and the mother stated that she went to work. The mother stated that she called to check on [M] and was informed that she was getting worse so she left work early to be with her. The mother stated that [M] did not go to her school or to the shop at [Town V] and [M] was brought back into the interview suite. [M] was then questioned in the presence of the mother what she had done the previous day. [M] then began wailing uncontrollably (no tears) and was acting hysterically. [M] refused to speak and investigators wrote on a piece of paper the letter “T” for truth and “L” for lie. [M] was asked the following questions:
“Did you really go to school yesterday?” [M] circled “L” for lie.
“Did dad really touch your private behind the tree?” [M] circled “L”.
“Did something happen in your room?” [M] circled “T” for truth.
“Did something happen in dad’s room?” [M] circled “T”.
Investigators again tried to speak with [M] who refused so investigators wrote on paper “I want to or I do not want to” meaning if she wanted to see the father or not see the father. [M] circled “I don’t want to”.
[M] was asked if she had made up the information that she provided to us during the interview, [M] still would not engage in conversation and investigators wrote on the piece of paper “I made some things up and I did not make some things up”. [M] circled “I made some things up”. [M] was asked if she made the things up because she did not want to go to the father’s house and wrote Yes or No on the paper. [M] circled yes. [M] was then asked to write down on the paper why she did not want to go to the father’s home. [M] wrote “Because he slaps me”.
The mother was provided a list of psychologists that would benefit [M] as investigators were concerned due to [M’s] initial disclosure of being sexually assaulted. Whilst investigators do not believe the [M] has been sexually assaulted it is of concern that [M] has the knowledge that contact will be suspended if she states this information.
I share the concerns expressed by officers who conducted the two JIRT investigations and agree with their conclusions that the father did not sexually abuse M. The child’s interviews lacked specific complaints and significant details of the alleged abuse. She referred to conversations with the mother about the alleged abuse. In June 2012 the child admitted to the interviewers that she had told lies.
It was concerning that seven adults were involved in the events of 20 December 2009 and that four of those people accompanied M to a medical examination on the following day. It seems to me to be likely that this high-pressure atmosphere was the genesis of a belief on M’s part that the father has harmed her and that she should be fearful of him.
In her final submissions the mother said: “I have not continued to make sexual allegations. It is all about the December 2009 allegation and [M] repeating it.” The mother thus stated clearly that, in her view, there were no fresh allegations of sexual abuse after December 2009.
For these reasons, I am satisfied to the requisite standard, and I find, that the father did not sexually abuse M in December 2009 or at any other time. I am satisfied, and I find, that there exists no unacceptable risk of sexual abuse if the child is placed in his unsupervised care.
A significant issue in these proceedings is the mother’s current attitude to the father and the allegations of sexual abuse. Her affidavit of 18 September 2011 clearly suggested that, at that time, she believed that the father sexually abused M on 20 December 2009.
In her affidavit of 3 April 2012 the mother acknowledged that FaCS officers decided to take no action in relation to the allegations of sexual abuse. She deposed:
15. I am aware that a Magellan report has been prepared in these proceedings. The Department of Family and Community Services have determined that notwithstanding that a doctor’s examination shows small abrasions to [M’s] vagina, the medical evidence on its own could not support an allegation of sexual abuse and that the Department will not be pursuing any action against [the father] in respect of this matter.
In this affidavit the mother appeared to express more widely based concerns as to M’s safety and wellbeing in the unsupervised care of the father. She referred to “deep concerns for [M’s] safety whilst she in the father’s care” and a deterioration in this child’s “attitude to him and spending time with him”.
On 5 July 2012 the Family Consultant reported: “[The mother] said that she firmly believes that [the father] did sexually abuse [M]”. In her oral evidence the mother said “I would not have used the word ‘firmly’”. The mother was asked about this paragraph of the Family Report by counsel for the ICL. She said:
Initially the police convinced me that nothing happened but [M] kept going on about it and someone had to back her up. My dream is for her to change her mind and say it was all made up. I am trying to get to the bottom of why she is lying. I knew from the JIRT interview on 4 June 2012 that [M] lied sometimes.
In her affidavit of 31 October 2012 the mother stated that she was “prepared for [M] to be reintroduced to the father”. She deposed:
26. I have had to think seriously about the impending case concerning my children. [M] is still afraid to be with her father but I am willing to agree to have her slowly reintroduced to [the father] in a supervised way so that [M] can grow to care for her father again and they can have a relationship.
The mother described in her affidavit a conversation with M about the prospect of a reintroduction of time with the father. She stated:
I said to her on Friday 26 October 2012 in a conversation the following: ‘[M] I think we might get you to see Daddy just a little bit so that you can learn to be happy with him. She replied I don’t have to stay all night? I replied No just a little short time with Daddy and not overnight. She replied okay.’
[M] then walked away and looked like she was thinking about it. In the past she might have cried but I was pleased she did not cry when I brought the subject up.
In this affidavit the mother outlined her objective for the future parenting of the children as follows:
27. I am also willing to go to psychotherapy/counselling with [the father] so that he and I can talk through our issues and learn to respect one another so that we can both parent our children successfully and try to avoid the pitfalls of not being able to communicate with the other person properly. I wish the children to be able to feel comfortable with both [the father] and I and know that we are both there for them.
In her oral evidence the mother made these statements inter alia:
I made a lot of mistakes in how I handled it.
[M] saw and heard my reaction – quite possibly she reacted to that.
Having read the [subpoenaed material] I still don’t know if it happened, if it is in her mind.
I have asked [the father] if it could have been accidental – I am not adverse to that, I hope it was an accidental heavy rub for example.
I am hung drawn and quartered if I did nothing and condemned if I did something.
I had to believe the authorities when they said I had to move on from this.
Of course I had a doubt in my head – that doubt will never leave me.
This period of time has been traumatic for both [the father] and me.
To move forward I have to let go of the past.
In the last six months I have grown up about ten years.
If [the father] did touch her I don’t believe he would ever do it again.
I knew from the JIRT interview on 4/12/2012 that [M] lied sometimes.
During the father’s cross-examination by the mother, who was unrepresented, she offered an apology to him and explained that she felt obliged to take action in relation to M’s complaints of improper conduct on his part. The father said “I agree that a parent has a moral responsibility to report to the authorities when a child complains about being hurt.”
My contemporaneous impression was that the mother’s apology was sincere and accepted as such by the father. In her final submissions counsel for the ICL said that she “considers that the dialogue between the mother and father represents a turning point”. I reject the submission of counsel for the father that “there is overwhelming evidence that the mother’s apparent softening of attitude” should not be taken seriously. In my view this submission flies in the face of the nature of this exchange between the parties. Further, I find it difficult to reconcile this submission with the mother’s encouragement of M to recommence spending time with the father.
The Family Consultant was taken to the mother’s account in her affidavit of 31 October 2012 of her conversation with M concerning the prospect of seeing her father and the child’s reaction to that suggestion. She said “a change in the mother’s attitude would account for the change in [M] from screaming, et cetera, to saying ‘okay’ at the prospect of seeing the father”.
As noted, seven adults were present on 20 December 2009 and four people accompanied her to a medical examination on the following day. As indicated, I consider that these circumstances placed M under pressure, in terms of the allegations of sexual abuse. M then received counselling from Ms W on five occasions in 2010, after the JIRT interview of 23 December 2009. The evidence did not reveal the purpose of or content of these counselling sessions but I can only assume that the theme was the alleged sexual abuse. It seems to me to be likely that this counselling reinforced in M a belief that the father had hurt her and that she should be fearful of him.
I am of the view that Ms K’s involvement with the mother and M has been counter-productive and probably damaging to the child. M began to see Ms K on 28 June 2012, after the second JIRT interview on 4 June 2012. The mother said that JIRT officers advised her that M should see a counsellor and provided a list of suitable therapists. The JIRT report confirmed this evidence.
None of the people on the list of recommendations had available appointments but internet links led to other therapists, including Ms K. Perhaps unsurprisingly, Ms K could see M at short notice. I have no doubt that the mother acted in good faith and in what she perceived to be M’s best interests when she engaged Ms K as her therapist.
Regrettably, the evidence left little room for doubt that Ms K has formed a firm view that M was sexually abused by the father. In her oral evidence she said:
It is correct that she could not have this condition unless there were more than two incidents of sexual abuse. Please don’t discount the JIRT investigation. Why was the vagina red? Why were there abrasions at eleven o’clock and one o’clock?
Ms K said further:
We also have the JIRT investigation with a red vagina and cuts.
The “condition” to which Ms K referred was said to be “dissociation” triggered by alleged sexual abuse. Ms K has a Masters Degree in Counselling but no qualifications in psychology or psychiatry. In her oral evidence she conceded “I am not permitted to diagnose” and asserted “I have not said that she has a dissociative identity disorder or even a dissociative disorder not otherwise identified”. Whether or not Ms K diagnosed any dissociative disorder, it certainly appeared that she holds a strong belief that M suffers from such a condition.
Ms K’s notes (exhibit 3) began to make reference to “dissociation” on 30 July 2012. On 13 August 2012 she requested that the mother complete a “child dissociative checklist” which yielded a score of 23 for M. In her oral evidence Ms K said: “A score of 24.5 indicates a dissociative identity disorder and a score above 12 is of concern”.
Despite her protestations that she is not permitted to make diagnoses, Ms K seems to have formed the view that M is “dissociating” as a consequence of sexual abuse by the father. In her oral evidence she said: “now we are really getting signs of associative disorder, there are three [of M]. Three states are unfolding in her brain. I have observed a fourth but I have no evidence. I can tell which of the four parts are talking to me.”
Ms K agreed in cross-examination that “a lot of psychiatrists do not believe that dissociative disorder exists. The very few who do have attended my training.” She described herself as “one of the experts on dissociation in Australia. Ten percent of my caseload is dissociative.”
Concerningly, Ms K took it upon herself to discuss these proceedings with M on 5 December 2012. Her notes for that date read, inter alia: “discussed court and showed photos of inside courtroom. Where people sit. Witness box, etc. Discussed the judge who makes the decision.” In her oral evidence Ms K said: “I thought she should be told about the forthcoming court case to alleviate her worry. I thought this was necessary because she has a lot of worries.”
With due respect to Ms K, I am unconvinced that M derived any benefit from a discussion concerning litigation between her parents. It seems to me that her level of anxiety was probably enhanced, rather than reduced, by Ms K’s actions.
The Family Consultant read Ms K’s notes and made these comments: “[Ms K] should stop. [Her file indicates]:
· [M] was not spoken to alone
· the bent of the therapeutic relationship is that she has been sexually assaulted
· I am aghast that she forced [M] to recount the story
· I don’t understand why she talked about court – that would not have helped
· this form of counselling should not continue.”
The Family Consultant said also: “[Ms K’s] notes of 16 July 2012 suggest the belief that abuse has occurred.”
It appears to me that circumstances have combined to reinforce in M a belief that her father has hurt her and that there is good reason for her to be afraid of him. It is most unfortunate that Ms K has taken up this view and incorporated the issue of sexual abuse into her sessions with M.
In my view, it is to the mother’s credit that she reached a point where she was able to have a positive discussion with M about a recommencement of time with the father on 26 October 2012. I accept the mother’s evidence that the imminence of the trial caused her to consider very seriously her position in relation to the children’s time with the father. That conversation, her proposal for a reintroduction of time for M with the father, her consent to the disengagement of Ms K and therapy by an appropriately qualified person, her apology to the father and her evidence as to her wish to “move on” persuade me that she no longer holds a belief that the child was sexually abused. I am satisfied, and I find, that the mother no longer harbours a belief that the father sexually abused M.
The mother lives with the maternal grandparents, although it seems that her father regularly stays at a coastal holiday house by himself. Ms I told the Family Consultant that “she can believe” that the father sexually assaulted M. The mother and the maternal grandmother have evidently discussed the prospect of M spending time with the father. The mother said in her oral evidence: “My mother and I are of the opinion that the children will have contact with [the father] and we will support the children.” At the least, this evidence satisfied me that the mother will ensure that the maternal grandmother accepts her view that the children should spend time with the father.
The maternal grandfather told the Family Consultant that he believes that the father touched M inappropriately but without sexual intent. I have no reasons to consider that he would impede a resumption in M’s relationship with the father.
Mr B’s Attack on the Father
In his affidavit of 5 December 2012 the father gave this account of the incident which occurred in February 2012:
15. As far as I can recall on the day of the [attempted murder] incident, being … February 2012, I had dropped all the children to their school at [Town V] and was returning home at about 9am.
16. I was driving through a roundabout intersection at [… and … Streets] at [Town V] driving an [Organisation H] vehicle and was looking to the left and then glanced to my right to continue through when I saw a white vehicle hurtling towards me from a distance of about 150 metres. The vehicle continued coming straight towards me and hit the front of my car on the driver side. I was in shock and saw the driver of the vehicle getting out of his car and running towards me carrying a [weapon] and shouting at me “you paedophile”. I then recognised that it was [Mr B] and that he was [attacking] me before I became unconscious. Later I realised that he was driving a Commodore that was owned by the respondent.
According to the father Mr B had previously accused him of paedophilia and made threats to his safety. He described an incident on M’s first day at school in these terms:
14. I have met [Mr B] numerous times since he started his relationship with the respondent in early 2010, mainly at the boys’ soccer events and at changeovers although I had barely spoken with him. There was one significant occasion in February 2011 when I went to the [Town V] Primary School to attend [M’s] first day at kindergarten. I attended with my daughter [Ms F] and [Mr B] was at the school with the respondent. He said to me “What the fuck are you doing here? I should belt your head in”. I ignored him but he continued and said to me, “You’re a fucking woman basher and you’re a fucking paedophile. I should fucking bash you”. He said this to me repeatedly in front of [Ms F]. I reported this to police and he was charged with intimidation.
According to a COPS entry dated 22 February 2012 (exhibit 8) Mr B admitted to police that he intended to kill the father on that day. In a Record of Interview he said that he intended to kill him by crashing into his motor vehicle, attacking him and then setting fire to his car. He said further “I hope he dies, and I don’t regret it and I will do my time”.
In her oral evidence the mother said that she and Mr B had an argument the night before the attack and she went to bed without speaking to him. The mother maintained that Mr B left in her car on the morning of the attack and that they did not speak to each other before his departure. I have no reason to doubt this evidence. That night, the children were in the care of the father.
The mother said that she decided to take a jumper to M on … February 2012 as it was a “hot/cold” day. She said that she was aware that the father did not have jumpers at his home. As she drove to Town X swimming pool, she saw her car and that of the father smashed on the side of the road.
The Family Consultant discussed this incident with the mother and reported:
21. [The mother] said that she had no idea that [Mr B] had planned to hurt [the father]. She said that the children were with [the father] the night before the incident and that [M] had been very upset about having to visit him. [The mother] said that she and [Mr B] had a ‘silly’ argument and went to bed not speaking to one another. She said that when she awoke the next morning she thought that [Mr B] had left for work. [The mother] said that she decided to drive a different route that day to attend the children’s school and then the school swimming carnival but on the way she happened upon the aftermath of the incident.
In her oral evidence the mother described a number of matters which she considered to be “wrong” in the Family Report. One such matter was the Family Consultant’s statement that she decided to take a different route on … February 2012. The mother said that she drove her usual route on that morning.
In her affidavit of 31 October 2012 the mother deposed “I am not involved in any way with the criminal acts of [Mr B] perpetrated against [the father] in February 2012”. In my view, the mother was completely unshaken in cross-examination on her denials that she had any prior knowledge of or involvement in Mr B’s attack on the father.
I reject the submission on behalf of the father that “the mother changed her mind about taking a jumper to [M] and came across the crime scene by accident”. The mother’s evidence, given at two stages of her cross-examination, was that M was not to attend the swimming carnival because she was under the age of eight years and that she wished to deliver items to the boys at the swimming pool. It seems to me to be logical that she could, simultaneously, intend to deliver a jumper to M at school and to give various items to the boys at the swimming pool. I do not accept that she “changed her mind” in any way.
I find that the mother had no knowledge of Mr B’s intention to perpetrate physical harm upon the father. I find that the mother had no involvement in Mr B’s attack on the father and that she in no way condoned his actions at any time.
In her affidavit of 3 April 2012 the mother stated “I am presently reviewing my relationship with [Mr B]”. In her affidavit of 31 October 2012 the mother deposed:
“16. I have ended the relationship with [Mr B] as I cannot fathom his actions against [the father]. I am upset that [Mr B] has hurt the children’s father and his criminal actions have placed my children and I in a horrible situation. I am embarrassed by [Mr B’s] deeds [due to my employment].
17. I did visit [Mr B] in prison late April/early May 2012 after obtaining special permission from my employer to do so. I went with my father. After that date, I went a few other times with my father. I stopped seeing [Mr B] in early June 2012 and told him that it was not right for me to have a relationship with him.”
The Family Consultant opined that the mother was “somewhat evasive about her relationship with [Mr B]” and reported that “she and her parents visit him regularly in gaol”. In her oral evidence the mother denied that she was “evasive” and described the process by which she terminated her relationship with Mr B.
The mother said “it took me a couple of months because I was in love with him”. She said also “I did not want to break up with him straight away because I knew he was a suicide risk”. I see nothing unreasonable about these sentiments on the part of the mother. She found herself in an extremely stressful and difficult situation which, in my view, she managed to the best of her ability.
The mother’s uncontradicted evidence was that contact was initiated when Mr B telephoned her from prison after his attack on the father and that she first visited him eight to ten weeks later. She said that she needed permission from her employer to visit Mr B. I have no reason to doubt this evidence.
On behalf of the father, criticism was directed at the mother because she took the children to visit Mr B in prison. In her oral evidence the mother said that she took the boys to see him once and the maternal grandmother accompanied them on one other visit. The mother said that she took M to see Mr B in gaol once and the maternal grandmother went with her on one additional occasion.
The mother explained that the children had a very close relationship with Mr B and that he “was there one day and gone the next”. Her uncontradicted evidence was that they told her they wanted to see him and L said that “he needed to know that [Mr B] is all right”. She said that the children are not afraid of gaols because they have been to one in relation to her employment. She conceded readily that R became frightened on one visit to Mr B when he saw a man in overalls with tattoos on his face.
The mother was criticised because she failed to take all of the children to visit the father in hospital after the attack. She took L to see him but claimed that R and M did not want to go to the hospital. She said that she did not think it in their best interests to force them to visit their father in hospital. The mother said that she wanted a “welfare worker” to “explain to the children what they would be seeing, knowing that [Mr B] had done it”.
The father’s sister, Ms A, swore an affidavit on 30 March 2012 in which she set out in detail conversations which she and her husband had with the mother immediately after the attempted murder incident. Ms A illegally recorded these conversations, as she did not tell the mother that she was using her mobile telephone for that purpose.
Ms A’s affidavit indicated that she repeatedly said to the mother “this is his weekend” and insisted that she bring the children to the hospital. The mother made repeated references to her wish that the children receive counselling to prepare them for seeing their father while he was suffering from injuries inflicted by Mr B.
I am inclined to agree with the Family Consultant’s view, as expressed in her oral evidence, that the mother “may not have felt very comfortable about going to the hospital”. The mother said “I felt that I was being ambushed by his family”. The Family Consultant conceded in her oral evidence “it could have been traumatic for the children to visit the father in hospital and it is only with hindsight that people can look back and say that this should have happened”.
This concession by the Family Consultant was somewhat at variance with the following passage in her report:
76. The children have been encouraged by their mother to maintain a relationship with [Mr B]. She has taken all three children to the gaol to visit [Mr B] but did not take [R] and [M] to see [the father] when he was in hospital. [The mother] said that [R] and [M] were afraid of visiting their father, yet the children told the Family Consultant that they were scared of going to the gaol. It would appear that [the mother] would encourage the children to do things that they are scared of if it is something that she wants them to do. The judgment in terms of who the children should have visited after the attack on [the father] is of concern.
In fact, the only reference in the Family Report to any child speaking of fear of visiting Mr B in prison came from M. The Family Consultant reported:
67. [M] did not talk about [Mr B] hurting her father but did say that she has visited him three times in gaol and that she was scared at first… (my emphasis)
She noted no statements by L or R to the effect that they were afraid of visiting Mr B in gaol. Rather, she reported that L told her that Mr B “had always been nice to him and it would be okay to see him again”. By the time of the Family Report interviews, the children had experienced the reality of visiting Mr B in prison.
I accept and find that the mother terminated her relationship with Mr B in June 2012 and that she has not since brought the children into contact with him. I am satisfied and I find that the children have not “been encouraged by their mother to maintain a relationship with [Mr B]”. In my view, it is easy with the benefit of hindsight for the father and his sister to criticise the way in which she dealt with the aftermath of the attempted murder incident. As noted the Family Consultant made this concession in her oral evidence.
The Best Interests of the Children: Section 60CC Considerations
Section 60CC(2): Primary Considerations
The proposals of each of the parties and the ICL logically imply a recognition that the children will benefit from a meaningful relationship with each of their parents. The mother and the father each softened their stance against the other and now propose that the children spend time with the other parent on an unsupervised basis.
It seemed to me that each of the parties is devoted to the children and want only the best for them. For reasons which appear below, I consider that they have made some unwise decisions in their approach to parenting in the past but I am satisfied that they are likely to adopt a more cooperative approach in the future. As indicated above, I am of the view that the mother’s apology to the father was sincere and accepted as such by him, despite the submissions of his counsel.
In my assessment, each of the parents has much to offer to the children in terms of love, guidance, support and role modelling. I consider that the children will benefit greatly from a significant presence in their lives of both their mother and father. They will derive a sense of security from a knowledge that both of their parents care greatly for them and are readily available with their support.
I have found that the father did not sexually abuse M. I find that there is no need to protect any of the children from physical or psychological harm as a consequence of exposure to abuse, neglect or family violence. It is abundantly clear, however, that the children would greatly benefit from a reduction in exposure to hostility between their parents.
Each of the parties alleged that the other subjected him or her to violence and abuse in the past. The father admitted to one instance of violence directed at the mother in 2008. He pleaded guilty to a charge of assault and was placed on a good behaviour bond for twelve months. Otherwise there was no corroborating evidence to support the mutual allegations of violence and abuse. In any event there has been no recent complaint of violence and, as indicated above, I am inclined to the view that the parties are likely to adopt a more conciliatory and cooperative approach to each other and their
co-parenting of the children in the future.
Section 60CC(3): Additional Considerations
L and R both told the Family Consultant that they would like to live with each of their parents in a week-about arrangement. Her view, however, was that their stated views should carry little weight. She reported:
72. [L] and [R] stated quite clearly that they would like equal time, week-about parenting arrangements. They said that they want this because it would be ‘fair’ to [the father] and to [the mother]. [R] and [L] appeared to feel the need to please or appease their parents rather than to put their own needs first. They each have limited insight into what such an arrangement might mean for their future care and appear to hope that being fair to [the father] and [the mother] will stop the conflict. It may also be that [L] and [R] do not perceive much difference between the pressures they are under in each home. Given the length of time and the level that the conflict has now reached between [the father] and [the mother], it is unlikely that such an arrangement would provide the relief that the children seek. Given their ages and limited insight into the potentially negative long term outcome of being exposed to their parents’ ongoing conflict, little weight should be attributed to their wishes.
M told the Family Consultant that she does not want to spend time with the father. As noted, however, she agreed to the mother’s suggestion on 26 October 2012 that she recommence spending time with him on a limited basis. I agree with the Family Consultant’s opinion that it is highly likely that this shift in M’s position is attributable to a change in the mother’s attitude and her expressed approval of resumption of time with the father.
L and R both enjoy a close, loving relationship with each of their parents. I am of the view that M’s relationship with the father could be re-established and that professional input would assist that process. I accept that the mother was genuine in her suggestion that “the children need their father” and that she is sincere in her stated wish that the parties “move on” from their conflict.
The Family Consultant was of the view that “[M] could relatively easily have a relationship with the father”. She opined “the difficulty is over what has happened in the last year and the relationship between the parents”. I accept that the mother genuinely wishes for M to re-establish her relationship with the father.
On 13 December 2012 I made a number of interim orders on the application of the ICL and with the consent of both parents. Two such orders provided that the parents arrange for family therapy at the earliest possible date. They agreed to choose a therapist from a list provided by the Family Consultant and each pay half of his or her fees. In my view, the mother’s consent to this proposal is a further indication that she is now prepared to support a re-establishment of M’s relationship with the father.
In his oral evidence the father said that the current child support assessment is $89 per month and his income consists of $2,650 per month “wage support”. He also receives $276 per fortnight by way of government benefit. He said that he is “determined to get back into the workforce in aged care or people with disabilities”. I am confident that he will return to paid employment, when he completes trauma counselling, and do his best to contribute to the financial support of the children.
The mother said in her oral evidence that she has resumed full employment with the government agency “to pay for the children”. Her income is approximately $90,000 gross per annum. Clearly, the mother makes a significant contribution to the financial support of the children.
It might reasonably be anticipated that the changes proposed by the father to M’s living arrangements would be highly distressing for her. He acknowledged this real prospect when he said “I have no doubt that [my proposal] would be traumatic for [M]”. He suggested that “she would get through it” with the assistance of a counsellor and reintroduction of activities which they previously enjoyed together. With the greatest of respect to the father, I had real concerns that he failed to appreciate the likely extent of M’s distress in the event of an immediate change in primary care.
In her oral evidence the Family Consultant acknowledged that the removal of M from the mother’s care would be “distressing” for her. She seemed to suggest that this step should be taken “only if the court found that she would be psychiatrically damaged by staying there”. Otherwise, the Family Consultant recommended that the children spend substantial and significant time with each parent. She gave this evidence after reading the mother’s affidavit of 31 October 2012, in which she set out her current proposals.
The Family Consultant recommended that M spend day periods only with the father initially but that she move into the same arrangement as the boys within six months. Essentially, this proposal was reflected in the Minute of Orders submitted by the ICL.
The father told the Family Consultant that he intended to move closer to the children’s school at Town V “if the children spend more time” with him. On 16 April 2013 he filed a Notice of Address for Service accompanied by an email to the Case Coordinator. These documents indicated that he has moved from Suburb Z to Suburb AA. Consequently, the homes of the parents and the children’s school are in adjacent suburbs in the Suburb D area.
In the past, each of the parties has engaged in conduct which would suggest an impaired capacity to provide for the children’s emotional needs. For example, in December 2010 the father took the boys to a police station and reported that Mr B had pushed and kicked them. The COPS entry (exhibit 8) noted that “[R’s] complaint was word for word” with that of [L]. The reporting police officer noted that it appeared to her that “the children may have been coached to say certain things by their father…in the event that it will work in his favour to gain full custody…”. It is obvious that the father put his needs ahead of those of the children on this occasion.
In her affidavit of 3 April 2012 the mother referred to an incident on 20 March 2012 at the children’s school. She deposed:
38. On 20 March 2012 [L] went to spend time with his Father on his own. The following morning I arrived at the school with [M] and [R] at 9.20. I was deliberately late so as to avoid running into [the father] in the playground when he was delivering [L] to school. However, as the children and I were getting out of the car [the father] pulled up in his car.
39. The children and I are all fearful of [the father] and I did not want an argument with him about why I was not sending [R] and [M] to him. I said to the children words to the effect of “quick run, run, run” and we ran into the school office area.
40. The school Principal was standing in the office area and realised immediately what was happening and ushered the children and I into her office and as she closed the door she said words to the effect of “sit in here quietly and I will deal with him”.
41. About fifteen minutes later she came back and confirmed that [the father] had left the school and that is was safe for the children and I to come out of her office and for the children to go to their classrooms. I understand from [Ms TT] that [L] was with his Father at the time.
This histrionic behaviour on the part of the mother does her little credit. On the other hand, as I have indicated several times, I accept that she has modified her stance towards the father in recent times. I reject the submission of counsel for the father that “far too much emphasis is being placed on this moving on”.
I accept the mother’s evidence that she considers that she “made many mistakes” in her dealings with the children and the father since the separation. I accept also that she gave serious consideration to the contents of the Family Report. In final submissions the mother said: “I spoke to the Family Consultant and said that I initially took her opinion quite harshly but I took her report home and it helped me change my mind”. The mother said also, and I accept, that she has benefitted from consultations with a psychologist in coming to terms recently with post-separation events.
The mother impressed me as a capable, intelligent and pragmatic woman. I doubt that she would be so foolish as to believe that a pretended change in her attitude toward the father would assist in retaining residence of the children. If she were to revert to her previous behaviour, the father could well initiate further proceedings.
The Presumption of Equal Shared Parental Responsibility
The mother and the ICL sought an order that the parties have equal shared parental responsibility for the children. The father sought an order that he have sole parental responsibility for major long term decisions.
I am not satisfied that there are reasonable grounds to believe that either parent has engaged in abuse of the child or family violence, such as to displace the presumption of equal shared parental responsibility. I am not satisfied that the presumption is rebutted by evidence that it would not be in the best interests of the children for the parties to have equal shared parental responsibility. In my view, the contrary proposition applies to the children. I consider that it would be in their best interests to be aware that both their mother and father are closely involved in making all major decisions concerning their education, health, extra-curricular activities and general welfare.
I will thus order that the parties have equal shared parental responsibility for the children. I am accordingly obliged to consider whether it would be in the children’s best interests, and reasonably practicable, for them to spend equal or substantial and significant time with each of their parents.
Conclusion
In my view, it would obviously be contrary to M’s best interests that she immediately be placed in a situation of spending equal time with each of her parents. I cannot envisage that she would cope with such an arrangement and nothing in the evidence suggested that there is any real prospect that she would do so. Both the Family Consultant and the ICL recommended that she be reintroduced to the father on a graduated basis.
The Family Consultant was of the view that, as soon as is possible for M, the children should spend time with each of their parents in identical arrangements. In her oral evidence she said: “there is no potential benefit to the boys in spending more time with the father than [M]. If she is treated differently it will reinforce that there is a need to do so.” In my view the current state of M’s relationship with the father militates strongly against the immediate imposition of an equal time arrangement for the children.
M has lived in the primary care of the mother since the separation of the parties in February 2008, when she was only two years of age. In my view, it would be highly disruptive and distressing for M if she were now to be suddenly separated from the mother.
The ICL’s proposal would see a week-about arrangement introduced for all three children in approximately July 2013. L and R would immediately begin to live with each parent in an equal time regime. I have real concerns as to whether the parents have yet reached a point where they could sustain an equal time arrangement. Effectively, they must learn to co-parent their children against a backdrop of allegations of child sexual abuse and a serious criminal assault on the father by the mother’s former partner. These concerns lead me to the conclusion that it is not reasonably practicable for the children to spend equal time with each parent.
Presently the boys spend time with the father from Thursday afternoon until Sunday evening in each alternate week and every other Tuesday night. They thus spend four nights per fortnight with the father during school term time. They also spend time with the father during school holidays and on special occasions.
The mother proposed that the boys spend time with the father from Wednesday afternoon until Monday morning in each alternate week. This proposal was based upon a minimisation of travel between the parents’ homes, which were then some 39 kilometres apart. That concern has been removed by the father’s relocation from Suburb Z to Suburb AA. The mother seemed to assume that the boys would continue to spend time with the father during school holidays and on special occasions. It appeared to be her position that M would ultimately share in these arrangements.
It seems to me that the proposals of both parents and the ICL fall within the definition of “substantial and significant time”. Ultimately the children will spend time with each parent on weekdays, weekends, special occasions and during holidays. Each parent will be involved in the children’s daily routine and share in events of significance.
The boys are accustomed to spending time with the father which falls within the parameters of the “substantial and significant” definition. It seems to me that it would be in the boys’ best interests that they spend additional time with the father during school terms. I consider that they would benefit from a greater opportunity for the father to be involved with their school life and extracurricular activities. I propose to order that the boys spend time with the father from Thursday afternoon until Tuesday morning each alternate week and each other Tuesday night. They will continue to spend school holiday periods and special occasions with the father.
It seems to me that the ICL offered a well-considered proposal for M’s reintroduction to the father. With some minor modifications, I will adopt that recommendation.
I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 26 April 2013.
Associate:
Date: April 2013
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Injunction
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