CARNEGIE & GINTER
[2013] FamCA 331
•13 May 2013
FAMILY COURT OF AUSTRALIA
| CARNEGIE & GINTER | [2013] FamCA 331 |
| FAMILY LAW – CHILDREN – child’s living arrangements – where the child lives with the father – where the child initially spends limited supervised time with the mother, but expanding over a year to unsupervised substantial and significant time – where the child has a meaningful relationship with both parents – where the child is not at risk of psychological or physical harm by exposure to family violence or abuse in the care of either parent – where parenting orders reverse the child’s former residence – where the mother could not support the child’s relationship with the father and was less able to support the child’s emotional needs – where the father supported the child’s emotional needs – where the child’s residence with the father was less likely to lead to the institution of further proceedings – where the mother continued to hold a genuine but erroneous belief the father had sexually abused the child – where it was probable the mother would continue to interrogate the child about the child’s experiences with the father FAMILY LAW – CHILDREN – Parental Responsibility – allocation of sole parental responsibility to the father – where the evidence rebutted the presumption of equal shared parental responsibility FAMILY LAW – CHILD ABUSE – Allegations of sexual and physical abuse – finding on the balance of probabilities that there was no sexual abuse of the child by either the father or paternal grandmother – finding that the child was not exposed to an unacceptable risk of harm through sexual abuse by either the father or paternal grandmother – finding on the balance of probabilities that the father did not physically abuse the child – finding that the child was not exposed to an unacceptable risk of harm through physical abuse by the father FAMILY LAW – EVIDENCE – Application of the rules of evidence to the determination of allegations of child abuse in proceedings conducted pursuant to Part VII Division 12A of the Family Law Act (Cth) FAMILY LAW – COSTS – Costs reserved |
| Crimes Act 1900 (NSW) s 61AA Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011(Cth) Evidence Act 1995 (Cth) s 135 and s 140 |
| Amador & Amador (2010) 43 Fam LR 268 Johnson v Page (2007) FLC 93-344 Goode & Goode (2006) FLC 93-286 Jacks & Samson (2008) FLC 93-387 Johnson v Page (2007) FLC 93-344 M v M (1988) 166 CLR 69 Magill v Magill (2006) 226 CLR 551 Maluka v Maluka (2011) FLC 93-464 Marriage of B & B (1993) FLC 92-357 Marriage of L & T (1999) 25 Fam LR 590 Marriage of Paskandy (2005) 33 Fam LR 509 McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 MRR v GR (2010) 240 CLR 461 Napier & Hepburn (2006) FLC 93-303 Potter & Potter (2007) FLC 93-326 U v U (2002) 211 CLR 238 Vlug v Poulos (1997) FLC 92-778 |
| APPLICANT: | Ms Carnegie |
| RESPONDENT: | Mr Ginter |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Drylie, Legal Aid NSW |
| FILE NUMBER: | SYC | 7894 | of | 2009 |
| DATE DELIVERED: | 13 May 2013 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 15, 16, 17, 18 & 19 April 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr P Davies |
| SOLICITOR FOR THE APPLICANT: | Richardson Legal |
| COUNSEL FOR THE RESPONDENT: | Mr W Tregilgas |
| SOLICITOR FOR THE RESPONDENT: | Aubrey Brown Partners |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Not Applicable |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms K O'Rourke, Legal Aid NSW |
Orders
All former orders relating to the child B, born … October 2006, (“the child”) are discharged.
The father shall have sole parental responsibility for the child.
The child shall live with the father.
The parties shall each take all reasonable steps to ensure the child spends time with the mother as follows, or as otherwise agreed:
(a)Up to and including Friday 1 November 2013, each Saturday for a period not exceeding three hours, which time is to be supervised in accordance with Order 6 hereof.
(b)From Saturday 2 November 2013 up to and including Thursday 10 April 2014:
(i)Each weekend from 9.00 am Saturday until 4.00 pm Sunday; and
(ii)From 3.00 pm Christmas Day until 3.00 pm Boxing Day.
(c)From Friday 11 April 2014 onwards:
(i)During New South Wales public school terms, each alternate weekend from the conclusion of school or 3.30 pm Friday (whichever is the earlier) until 5.00 pm Sunday, commencing on the first Friday of each term;
(ii)During New South Wales school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year; and
(iii)During the New South Wales Christmas school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.
Order 4(c) is suspended during the following periods:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day, and with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in even numbered years, with the same arrangements in reverse in odd numbered years; and
(b)Between 5.00 pm Saturday and 5.00 pm Sunday on each Mother’s Day and Father’s Day weekends, during which periods the child shall spend time with the mother on the Mother’s Day weekend and with the father on Father’s Day weekend.
For the purpose of implementation of Order 4(a) hereof:
(a)The supervisor of the time spent by the child with the mother shall be staff at C Centre D Town, Ms E, or some other person or entity nominated by that organisation or person, in that order of priority (“the supervisor”).
(b)Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor.
(c)In the event of disagreement between the parties, the father shall do all such things necessary to engage the supervisor.
(d)The time that is to be spent by the child with the mother each Saturday shall commence and conclude at the time designated by the supervisor.
(e)The venue at which the time is to be spent by the child with the mother shall be designated by the supervisor.
(f)The parties shall pay in equal shares any costs due to the supervisor.
(g)The father shall cause the delivery of the child to, and the collection of the child from, the supervisor at the commencement and conclusion of the time spent by the child with the mother.
(h)If on an occasion that the child is due to spend time with the mother that time together cannot be accommodated by the supervisor the time that the child would otherwise have spent with the mother shall be made-up at another time as close to the original time as can be arranged.
(i)The parties shall comply with all reasonable requests and directions of the supervisor.
(j)Leave is granted to the parties to provide to the supervisor a sealed copy of these orders.
For the duration of operation of Order 4(a) hereof the mother is restrained from entering upon or approaching within 100 metres of the school attended by the child and leave is granted to the father to furnish a sealed copy of these orders to the principal of that school.
For the purpose of implementing orders 4(b), 4(c) and 5 hereof:
(a)The New South Wales public school holidays are deemed to commence at the conclusion of school on the last day of school term, the holidays are deemed to end on the last day preceding the day upon which the child is due to return to school, and the mid point is the day halfway between those first and last days; and
(b)The party with whom the child is to live or spend time shall collect the child:
(i)From school, whenever such time is to commence following the conclusion of school during school term, or
(ii)From the other party or his/her nominee at the residence of the other party whenever such time is to commence at a time other than the conclusion of school during school term.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:
(a)The mother each Tuesday and Thursday when the child is living with the father, between 6.30 pm and 7.00 pm, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure that the child is able to receive the mother’s calls on that number at that time.
(b)The father each Tuesday and Thursday when the child is spending time with the mother, between 6.30 pm and 7.00 pm, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother, and the mother shall ensure that the child is able to receive the father’s calls on that number at that time.
(c)The parent with whom she is not then staying, on the child’s birthdays, between 6.30 pm and 7.00 pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose, and the parent with whom the child is staying shall ensure that the child is able to receive the other parent’s calls on that number at that time.
Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.
Each party is restrained from causing or permitting the child to be privy to any discussion concerning the allegations made in or prior to these proceedings of her sexual and/or physical abuse.
The father shall authorise and request the principal of any school attended by the child to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the child.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
The mother shall forthwith enrol herself to commence and thereafter participate in and complete a post-separation parenting program and then provide evidence of her completion of the program to the father.
Leave is granted to the parties to provide to any counsellor retained to counsel either the mother or the child copies of:
(a) These orders;
(b) The reasons for judgment; and
(c) The Family Report dated 18 January 2013.
In the event of either party’s future notification to the police or a prescribed child welfare authority that the child has been or is the subject of actual or potential abuse, the notifying party shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made, copies of:
(a)These orders;
(b)The reasons for judgment; and
(c)The Family Report dated 18 January 2013.
Within seven days hereof the father shall cause the child to be delivered to the Director of Child Dispute Services at the Newcastle registry of the Family Court of Australia to have explained to her the effect of these orders, and if deemed appropriate by the Director, the reasons for such orders.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Costs are reserved for 28 days.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carnegie & Ginter 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 NEWCASTLE |
FILE NUMBER: SYC 7894 of 2009
| Ms Carnegie |
Applicant
And
| Mr Ginter |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings reached agreement in February 2011 about the parenting orders that best suited the needs of their only child. Their agreement provided for the child to initially live primarily with the mother, but spend substantial amounts of time with the father and eventually live with the parties for equal time on weekly rotations.
Unfortunately, the parties’ co-operation did not endure beyond the following year. The mother ceased compliance with the orders in September 2012 when she formed a belief that the child had been sexually abused by the father and perhaps also by the paternal grandmother.
The parties ventilated numerous other grievances about one another during the proceedings, but the pivotal issue was the allegation of sexual abuse. The mother was insistent the father had sexually abused the child and she was at continuing risk of sexual abuse in his care, which necessitated revision of the former orders and the imposition of permanent supervision upon any time the child spent with the father.
The allegations of sexual abuse were refuted by both the father and paternal grandmother. The father sought a reversal of the child’s residence on the basis that the mother’s fervent belief in the false allegations prevented her from allowing the child to enjoy a meaningful relationship with him, thereby causing the child emotional harm.
Background
The child of the parties was born in October 2006. She is now six years of age.
The orders formerly agreed between the parties in February 2011 essentially made provision for:
a)The parties to have equal shared parental responsibility for the child;
b)The child’s living arrangements to change incrementally over a period of little less than four years; the regime commencing with the child living primarily with the mother and spending time with the father on alternate weekends, on one overnight visit each week, and during portions of school holidays, and culminating with the child living with each party for equal time on a week-about basis;
c)The child having frequent telephone communication with the parties; and
d)The parties’ mutual involvement in the child’s sporting, cultural and extra-curricular activities.
Those orders operated reasonably successfully until September 2012 when the child made representations to the mother about the manner in which she was bathed in the father’s household by both the paternal grandmother and the father that led the mother to believe she had been sexually abused.
The mother therefore ceased compliance with the existing parenting orders by preventing the child from spending time with the father and shortly afterwards commenced proceedings by filing her Initiating Application.
Interim parenting orders were not made until some months later on 19 December 2012. At that time, with the consent of the parties, many of the orders made in February 2011 were suspended and fresh provision was made for the child to spend time with the father frequently, subject to supervision by the paternal grandmother.
On 8 March 2013, the parties agreed the child should continue to spend time with the father under the supervision of the paternal grandmother each Wednesday and each alternate weekend, albeit not overnight.
The interim orders made in December 2012 and March 2013 were implemented without incident until the final trial in April 2013.
Proposal and primary evidence of mother
The mother sought the orders set out in her Further Amended Initiating Application filed on 13 March 2013, which provided for her to have sole parental responsibility for the child, for the child to live with her, and for the child to spend time with the father during daylight hours on alternate weekends and during school holidays, subject to supervision by the paternal grandmother.
The mother relied upon:
a)Her affidavit filed on 5 April 2013;
b)The affidavit of the maternal grandmother, Ms F, filed on 11 April 2013;
c)The affidavit of Ms G filed on 5 April 2013;
d)The affidavit of Mr H filed on 5 April 2013; and
e)The affidavit of the maternal aunt, Ms I, filed on 4 April 2013.
The mother also adduced evidence from Ms J, who was served with a subpoena to give evidence. An unsworn affidavit, which had previously been compiled for her in draft format, was adopted by her and tendered as an exhibit.[1]
[1] Exhibit M1
In the course of the proceedings a procedural order was made pursuant to s 69ZT(3) of the Family Law Act 1975 (Cth) (“the Act”) for the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) to apply to all evidence adduced in the proceedings relating to the alleged abuse of the child.[2]
[2] Order 4 made on 8 March 2013
That order was made with the consent of the mother, presumably because she acknowledged the father’s alleged sexual abuse of the child, by improperly manipulating her genitals, and more specifically by digitally penetrating her vagina, constituted serious criminal conduct if proven. In such circumstances the “exceptional circumstances” that warrant application of s 69ZT(3) are apt to exist (see Amador & Amador (2010) 43 Fam LR 268 at [93]; Johnson v Page (2007) FLC 93-344 at [83]).
Although the father sought that the provisions of the Evidence Act apply more broadly to the whole of the evidence adduced in the proceedings, that application was rejected. The Court is at liberty to apply one, some, or all of the ordinarily excluded parts of the Evidence Act to one, some, or all of the issues in the proceedings (see Maluka v Maluka (2011) FLC 93-464 at [121]-[123]). Application of the rules of evidence to only that evidence touching upon the central issue in the proceedings was a sensible way to manage the preparation and presentation of the parties’ cases.
Large tranches of the mother’s affidavit material did not survive objection. The evidentiary objections were determined and ex tempore reasons provided. There were two main bases upon which the evidence was found inadmissible.
Firstly, the evidence relating to allegations of the child’s sexual and/or physical abuse was rejected unless it complied with the Evidence Act, by reason of the application of s 69ZT(3) of the Act.
Secondly, significant tracts of the mother’s affidavit material related to historical allegations, antecedent to the parenting orders formerly made in February 2011. Such evidence could have little, if any, relevance to the current proceedings because any prior concerns held by the mother about the father and the child must have merged in those orders. For the mother to have then consented to orders which provided for the parties to share parental responsibility for the child and for the child to spend substantial amounts of unsupervised time in the care of the father she must have abandoned any prior concerns about the probity of the father’s care of the child. It was, of course, incongruous for the mother to contend otherwise.
Moreover, such historical evidence of misdeeds by the father was highly controversial in the former proceedings. The father refuted the mother’s allegations and was rightfully entitled to consider the allegations against him were forsaken when those proceedings culminated in orders designating his extensive involvement in the child’s life. In such circumstances, the probative value of such evidence in the current proceedings was substantially outweighed by the danger that reception of the evidence would cause or result in an undue waste of time, since the father would then necessarily need to traverse each of those old controversial allegations. Section 135(c) of the Evidence Act therefore applied to exclude such evidence. That section of the Evidence Act applies to all evidence adduced in child-related proceedings under Part VII of the Act, even when s 69ZT(1) of the Act ordinarily applies.
Proposal and primary evidence of father
The father sought the orders set out within his Further Amended Response filed on 22 March 2013, which provided for him to have sole parental responsibility for the child, for the child to live with him, and for the child to spend time with the mother one evening each week, each alternate weekend, and for one week in each school holiday period.
During final submissions the father tendered a minute of the supplementary order he sought,[3] which proposed the imposition of supervision upon the child’s visits with the mother, consonantly with the final evidence of the Family Consultant.
[3] Exhibit F3
The father relied upon the affidavits filed on 5 April 2013 by both him and the paternal grandmother, Ms K.
Proposal of independent children’s lawyer
The Independent Children’s Lawyer did not propose any orders prior to the commencement of the trial, but did indicate acceptance of the evaluation and recommendations of the Family Consultant set out in the Family Report dated 18 January 2013.
The Family Consultant’s evidence in cross-examination was even more stridently expressed than it was in her Family Report. Ultimately, she unequivocally recommended that the child live with the father and that the time spent by the child with the mother should be supervised – at least temporarily and potentially permanently. The Independent Children’s Lawyer adopted those final recommendations and proposed orders largely consistent with those proposed by the father, which involved at least temporary supervision of the child’s visits with the mother.[4]
[4] Exhibit ICL6
The Independent Children’s Lawyer sought and was granted leave at the commencement of the trial to rely upon the affidavits of Ms L and Mr M, both of which were filed on 15 April 2013, conditional upon those witnesses being available for cross-examination. That interlocutory decision was made with the consent of the father over the objection of the mother.
Ms L and Mr M were school teachers who refuted discrete facts alleged by the mother and her sister about the child. Although the evidence was belatedly served upon the mother, the lateness was due to the factual issue only becoming apparent upon service of the mother’s affidavit material, which itself was only served shortly before the trial. The mother’s legal representatives had several days during the trial within which to take instructions and formulate cross-examination of those two witnesses so any prejudice to the mother caused by the lateness of the evidence was ameliorated, if not eradicated.
The mother’s counsel sought leave to adduce fresh oral evidence-in-chief from the mother to address the affidavit evidence of Ms L and Mr M, but that leave was refused. The evidence of Ms L and Mr M was adduced solely to meet and refute a small portion of the mother’s affidavit dealing with incidents at the child’s school. The mother had already dealt with that issue in her affidavit so there was no persuasive reason to afford her the chance to simply supplement her original evidence.
Additional evidence
With the consent of the parties and the Independent Children’s Lawyer, the following evidence was also adduced:
a)The Family Report dated 18 January 2013 prepared by the Family Consultant in these proceedings;
b)The Family Report dated 19 January 2011 prepared by the Family Consultant in the former proceedings between the parties, which ended with the consent orders made in February 2011,[5] it being suggested by the Family Consultant that the earlier report be read;[6] and
c)The Magellan Report dated 28 November 2012 furnished to the Court by the NSW Department of Family and Community Services (“the Department”).[7]
[5] Exhibit ICL1
[6] Family Report, para 4
[7] Exhibit ICL2
Although the Family Consultant who authored the Family Report in January 2013 was cross-examined, the Family Consultant in the former proceedings and the author of the Magellan Report were not.
Applicable legal principles
Orders in respect of children are regulated under Part VII of the Act, in which the meaning of a “parenting order” is defined (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
These proceedings were commenced on 25 September 2012 and so the amendments to the Act, and in particular to s 60CC thereof, wrought by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 now apply (see Schedule 1, items 44 and 45).
Alleged sexual abuse
The mother’s belief in the child’s sexual abuse arises from conversations she had with the child on two occasions – the first on 7 September 2012 and the second on 17 September 2012.
On Friday 7 September 2012, during the course of casual conversation about the child’s experiences at the father’s home, the following conversation occurred between the child and mother:[8]
[8] Mother’s affidavit, para 6
Child: When I am at dad’s, [Ms K] [the paternal grandmother] washes me on my fanny and I don’t like it. She uses soap and it hurts.
Mother: Does she use the face cloth?
Child: No, she just uses her hand and soap.
Mother: What about Daddy, does he let you wash yourself?
Child: No, he washes my fanny with his hand too.
Mother: Does he use a face cloth?
Child: No.
For the sake of accuracy, it was common ground that the child used the word “fanny” to refer to her genitals.
As would be apparent from dispassionate evaluation of such conversation, nothing said by the child could reasonably be construed as sinister. She merely reported that the paternal grandmother and father had both washed her genitals while she was in their care. It would have been quite impossible for her genitals to be washed by anything other than a hand, whether it was hers or theirs. It could not have been done with an elbow or a foot. Nor could the use or not of a face cloth dictate whether the bathing process was inappropriately sexualised or entirely innocent, despite the mother’s belief to the contrary.
Over a week later, on Monday 17 September 2012, the mother and child were conversing about the weekend she had just spent with the father and how her time with the parties would be divided over the upcoming school holidays. The child became distressed as the conversation ensued as follows:[9]
[9] Mother’s affidavit, para 11(a)
Child: I don’t want to go Mum, I don’t want to go to Dad’s.
Mother: [the child], you need to tell me why you don’t want to go to Dad’s.
Child: I just don’t want to go Mum.
Mother: I don’t understand, you need to tell me why you don’t want to go.
Child: I don’t like the way Daddy washed me in the bath.
At that point, the child had divulged nothing more than she had over a week before on 7 September 2012. Nevertheless, the mother professed “grave concerns” about what she had heard the child say,[10] which could only be because she was willing to think the worst about the father in connection with the child. That inference was vindicated by the mother’s admission in cross-examination that she has remained concerned about the prospect of the father’s sexual abuse of the child ever since she became suspicious of such abuse in about 2009, which was a feature of the former parenting proceedings.
[10] Mother’s affidavit, para 11(e)
In fact, the mother’s concern was so grave she decided to try and induce the child to repeat the disclosure while she recorded it by video so she would have unimpeachable evidence of the conversation.[11] The mother therefore video-taped her subsequent conversation with the child that evening, both in the bathroom and later while having dinner on a couch.[12]
[11] Mother’s affidavit, paras 11(b), 11(e)
[12] Mother’s affidavit, para 11(k)
That was not the first time the mother had resorted to the use of video recording as a means of collating evidence for potential use in litigation between the parties. She had previously done so in March 2011 because of her alleged concerns about the child’s safety.[13]
[13] Mother’s affidavit, para 94(v)
The audio-visual footage taken of the child by the mother in both March 2011 and September 2012 was adduced in evidence[14] and played in open Court. It was also viewed independently by the Family Consultant prior to her cross-examination.
[14] Mother’s affidavit, Annexures A and I
The evidence contained in the mother’s affidavit about the conversation that occurred between her and the child on 17 September 2012 is distilled from her attempt to transcribe the audible conversation on the video footage, and most significantly, represents only selected portions thereof. Self-evidently, the best evidence of what was actually said and what actually occurred at that time is the video footage itself.
That evening the mother placed the child in the bath and filmed her with the video recorder. The child was aware of the video camera being pointed at her and asked the mother whether she was being taped, implying some alarm on her part. The mother tried to allay the child’s apprehension about being taped, by falsely telling her she was not being filmed and recorded.[15] Although the mother believed the child was successfully re-assured,[16] the mother’s uncorroborated belief does not prove the fact for several reasons: the child was aware the mother had video-taped her in the past, was suspicious about the video camera being in the bathroom on this occasion, and was aware that it thereafter remained pointed at her while she spoke with the mother.
[15] Mother’s affidavit, para 11(c)
[16] Mother’s affidavit, para 11(d)
The mother then deliberately engaged the child in further conversation about the paternal grandmother washing her at the father’s home. Relevantly, the conversation proceeded as follows:[17]
[17] Mother’s affidavit, paras 11(f)-11(j)
Mother:So, you know how we were talking the other day about [Ms K] washing you when you’re at Daddy’s house? Can you tell Mummy how [Ms K] washes you?
Child: She scrubs my fanny.
Mother: How did she scrub your fanny?
Child: With her hand and soap.
Mother: Can you show me how she does that?
Child: I don’t want to.
Mother: Why don’t you want to?
Child: I don’t know why.
Obviously, the child had said nothing salacious or new. It was hardly surprising that the paternal grandmother washed the child in the bath, which process would naturally include washing the child’s genitals. All young children are washed in the bath or the shower, and often by grandparents.
Their conversation relevantly continued:
Mother: Ok, well can you show me what bits she washes?
Child: In the middle.
Mother: On the outside?
Child: Yes.
The mother said that during that part of the discussion the child “indicated her vagina with her hand”,[18] but that description is apt to mislead. The “vagina” is an internal female organ, whereas the “vulva” is the external genitalia. Without digitally penetrating herself, and that certainly did not occur, the child could not have “indicated her vagina”. The video footage depicted the child actually gesturing to her “vulva”, which she rubbed up and down with her flattened hand. The mother was asked in cross-examination about her use of the term “vagina”, which term she conceded she uses to generically describe female genitalia, including both the vagina and vulva.
[18] Mother’s affidavit, para 11(g)
The mother was pressing the child for answers and the child must have known she was being pressured for information. The mother agreed in cross-examination that her questioning of the child was “persistent”, but that admission or description hardly conveys the contextual reality. The degree of pressure exerted by the mother upon the child is only really discernable from the video footage, which in aggregation ran for some 45 minutes. Taking into account the age and maturity of the child and the imbalance of power in her relationship with the mother, the pressure was so immense and relentless that the child would need to have been defiantly obdurate to resist.
The mother pressed on with the interrogation, notwithstanding the child’s discomfort and the innocuous explanation she had already given the mother of being washed on the outside of her genitals by the paternal grandmother:
Mother: So [the child], I just want to ask you, you know how we were talking about [Ms K] washing you when you are at Daddy’s, and you explained to me how she washes you, I need you to show me. It’s ok. I just need you to show me.
Child: (the child shook her head in the negative) I need to go to the toilet.
Mother: Ok, can you quickly show me how [Ms K] washes you? Does she wash outside or inside your fanny?
(the child nodded)
The mother’s interpretation of the child’s responses at that point are not necessarily reliable because the video footage disclosed the conversation was then occurring at a suddenly accelerated pace, the child had adopted an odd caricature voice, and she was contorting her body as if to indicate her impatience and resistance to continuation of the conversation. At other points in the video the child tried to deflect the mother’s questions by changing the subject to talk about the colour of the father’s car, her toys, and the tooth fairy.
Leaving aside the difficulty of accurately interpreting the child’s verbal and physical responses, even if the child’s nod was indeed an affirmative answer to the mother’s question about being washed “outside or inside her fanny”, her response was ambiguous because she had been asked to respond to two alternatives of being washed either “inside” or “outside” her “fanny”. Her affirmation may have been of either alternative or perhaps of both of them. Even if her nod could fairly be construed as affirmation that the paternal grandmother had washed “inside” her genitals, she had already immediately beforehand told the mother that the paternal grandmother washed the “outside” of her genitals, thereby introducing an element of inconsistency in the story.
As is not in doubt, the subject of the conversation to this point was only the paternal grandmother, not the father. The mother conceded in cross-examination that she was the one who “steered” the child’s attention to the father. She did so at that point in the conversation as follows:
Mother: Does Daddy wash you?
Child: Yep.
Mother: With a face washer or with his hand?
Child: No, no, he uses his hand.
Mother: What does he do with his hand? You show Mummy what he does.
The mother alleged the child then demonstrated a motion with both hands rubbing or touching her “vagina”.[19] Again, that is a misleading description as the child did not penetrate herself during the demonstration. She actually demonstrated the surface of her vulva being rubbed or touched with a flattened hand, which interpretation is vindicated by the mother’s next question of the child, which the mother would not have asked unless it also represented her interpretation:
Mother: On the outside of your fanny?
[19] Mother’s affidavit, para 11(i)
The child did not respond verbally to the question. The mother described her physical response in the following way:[20]
[The child] shook her head in the negative. [The child] made a gesture with her hand with her middle finger and moving her hand and finger up and down in front of her vagina.
[20] Mother’s affidavit, para 11(i)
The mother then pressed the child for a repeated demonstration, which she described as follows:[21]
[21] Mother’s affidavit, para 11(j)
Mother: Show Mummy what he does baby.
Child: He wipes in the middle of it.
(the child indicated by holding her hands and gesturing to the mother with her hands)
Child: Outside.
Mother: Just show Mummy quickly, it’s very important.
Child: In there and out there, and just there.
(the child indicated with her hand and fingers towards her vagina, gesturing pointing to the inside and the outside (sic))
Again, the references by the mother at those points in her affidavit to the child’s “vagina” are incorrect. The video footage pertaining to those parts of the conversation showed the child gesturing towards her vulva and groin. Her hand was flattened at all times when she touched herself, except briefly when she described being “wipe[d] in the middle”, at which point her middle finger was momentarily extended at an angle from her other fingers. A fair and objective observation of the child’s demonstration did not demand an interpretation that the child intended to imply penetration of her vagina by the separation of her middle finger from her other fingers.
It is certainly not necessarily mischievous for a parent such as the mother to have her curiosity piqued by such a description and demonstration, which could reasonably arouse apprehension. However, neither should the description or demonstration necessarily be considered sinister, to the exclusion of other benign interpretations. What was required at that point was objective evaluation, not impulsive pessimistic assumption. Unfortunately, such objectivity was beyond the mother’s capacity. Her enduring suspicion of the father pre-disposed her to construe the child’s statements about him adversely.
Notwithstanding the mother’s pessimism, several ameliorating facts are clear from her own evidence, without even considering other exculpatory evidence:
a)The child’s revelations were initially all about the paternal grandmother, with no complaint made about the father. It was the mother who directed the child’s attention to the father.
b)The child said and demonstrated on several occasions that she was touched on the outside of her genitals, which is consistent with her being innocently bathed by either the paternal grandmother or the father.
c)The child was resistant to discuss the matter and enormous pressure was exerted upon her by the mother to provide additional information. The child was also informed the content of the conversation was important to the mother, which was otherwise apparent to the child from the presence of the video camera in the bathroom and lounge room. In such circumstances the child would probably have felt the need to provide extra information each time she was pressed for more so as not to disappoint the mother. The Family Consultant described the process in cross-examination as follows:
The child was trying to come up with the correct answer to satisfy the mother.
d)The answers given by the child that could possibly imply sexual impropriety were elicited by the mother asking leading questions.
e)The child’s demonstrations, as depicted on the video footage, were equivocal and do not corroborate the mother’s belief that the child’s vagina was digitally penetrated.
f)Even the parts of the child’s conversation and demonstration that could conceivably be a basis for implication she was touched inside her genitals did not necessarily mean her vagina was penetrated. It remains plausible and consistent that, when referring to being “wipe[d] in the middle”, the child was describing an adult hand washing either along or between her labia majora, rather than her being penetrated. It would not be sexually abusive to wash the fold between the child’s labia majora, just as it would not be sexually abusive to wash the cleft between the child’s buttocks. Neither the vagina nor the anus needs to be penetrated or fondled in that process.
The mother nevertheless construed the child’s representations to mean she had been sexually abused and decided to terminate the child’s interaction with the father and to report the matter to the Department for investigation.[22] Reports were made on 21 and 26 September 2012, but the Department closed the investigation soon after on 4 October 2012 without taking any further action.[23]
[22] Family Report, para 19
[23] Magellan Report, pages 3-4
Despite the disinterest of the Department, and apparently also the initial disinterest of the police,[24] arrangements were subsequently made for the child to be interviewed by police on 14 February 2013. Those arrangements were made following the mother’s direct contact with police in November 2012.
[24] Family Report, page 3 (para (g)), para 34
The parties and the child consulted with the Family Consultant in these proceedings in January 2013, prior to the child’s interview by police in February 2013. The Family Consultant considered any further interview of the child about her revelations in September 2012 would be counter-productive. That was because of the lapse of time since the disclosures were made and the child’s “repeated exposure to inappropriate questioning” in the interim, which would likely “contaminate or alter” her memories.[25] She considered it “unlikely” that any further interview of the child would properly reveal whether she had been sexually abused.[26]
[25] Family Report, page 3 (paras (e) and (g))
[26] Family Report, para 116
Alerted to the Family Consultant’s opinion, the father and Independent Children’s Lawyer both proposed deferment of the police interview until the police were furnished with copies of the Family Report and Magellan Report, but the interview proceeded on 14 February 2013 nonetheless.[27]
[27] Mother’s affidavit, paras 29-31; Father’s affidavit, paras 15.1, 62-66; Exhibit F2
The child made no disclosure to the police during the formally recorded interview, which lasted for over an hour.[28] The police officer explained in cross-examination that, before she interrupted the interview to confer again with the mother, the non-leading questions she posed to the child elicited no disclosure of sexual impropriety. When she resumed the interview she intentionally altered her technique to ask leading questions of the child, which still failed to elicit any disclosure from the child.
[28] Affidavit of Ms G, Annexure A (paras 5-12)
The child and mother then departed. However, as a consequence of a subsequent discussion between them, the child was returned to the police and a different story was provided by the child to the police.
Relevantly, the mother said the child told her in the car on departure:[29]
Dad told me to lie to the Police and say that he uses a washer to wash my vagina and not his hand, or he will go to gaol, and I don’t want him to go to gaol.
[29] Mother’s affidavit, para 31
When the child was re-introduced to the police officer their conversation relevantly included the following:[30]
[30] Affidavit of Ms G, Annexure A (para 14)
Officer: [The child] your mum just told me what happened in her car just then can you tell me what happened (sic)?
Child: I told her that I didn’t say anything because dad told me not to.
Officer: What do you mean?
Child: My dad said don’t tell the police I used my fingers tell them I used the washer (sic).
…
Officer: When you said he used a washer not his fingers what did you mean by that?
Child: He used his fingers not the washer when he washed me.
Officer: Washed you where?
Child: On my vagina.
Officer: Where were you when this happened?
Child: In the bath.
Officer: When did this happen?
Child:I was three years, four five (sic).
Officer: When was the last time?
Child: Kindy after I turned six.
Officer: When he touched you where on the vagina was it?
Child: Outside and inside.
…
Officer: [The child] why didn’t you tell me this in our interview?
Child: I forgot and dad told me don’t tell the police I used me fingers tell them I used the washer (sic).
The police officer informed both the child and the mother that another formally recorded interview with the child might be arranged.[31] However, some months have now elapsed and that has not occurred. Nor has the father been requested to participate in any police interview and he has not been charged with any offence.[32]
[31] Affidavit of Ms G, Annexure A (paras 14-15)
[32] Father’s affidavit, para 15.1
Lest it not be plain, the following observations should be made about the events on 14 February 2013.
Firstly, the child initially said nothing of interest to police, even when asked deliberately leading questions. The child only recanted and implicated the father in possible sexual impropriety following her conversation with the mother. Knowing the child had divulged nothing to police that inculpated the father, the mother initiated that conversation with the admonition “the most important thing is to tell the truth” and concluded it by saying “you need to tell the Police lady the truth”.[33] The mother conceded in cross-examination that her conversation with the child was an inducement for the child to say something more to police. As the Family Consultant logically observed, the child would likely have perceived the mother’s expectation that she should offer some explanation for why she had initially said nothing about the father to the police.
[33] Mother’s affidavit, para 31
Secondly, the child was first to use the word “vagina” in conversations with the mother and the police officer that day, which word the police officer adopted during the second interview. She did not use the word “fanny”. The mother explained in cross-examination that at some point between September 2012 and February 2013 the child had asked and she had explained that the proper terminology for her genitals was “vagina” rather than “fanny”. In January 2013 the child also engaged the maternal grandmother in a conversation about being touched on the “front” of her “bottom” by the father.[34] The child therefore intermittently participated with members of the maternal family in conversations related to her genitals, thereby perpetuating her genitals as a current topic of interest. Those facts tend to bear out the Family Consultant’s conclusion that the child appeared to have been “prepared” for the interview with her in January 2013, it being clear to her that the child had discussed the sexual assault allegations with “a number of significant adults in her life”,[35] which contributed to the child’s stress.[36]
[34] Family Report, Appendix A; Maternal grandmother’s affidavit, para 4
[35] Family Report, page 3 (para (f)), para 96
[36] Family Report, para 41
Thirdly, the child initially spoke to the police officer of being touched “on” – not “in” – the “vagina”. The child’s subsequent answer about being touched “outside and inside” the “vagina” was equivocal. Knowing that the child used the word “vagina” to include a reference to her vulva, any imputation of sexuality depends upon whether her use of the word “inside” was intended by her to mean she was washed inside her vagina or only inside her labia majora, and her intention is not discernable from the evidence. The child’s description to the police officer of being bathed by the father without a washer or face cloth is inconsequential.
Fourthly, even if the child’s report to the mother and the police about the father’s conduct was true, the deceit attributed to the father is his coercion of the child to falsely say he bathed her with a washer rather than with his naked hand. It is not suggested the father coerced the child to say he had not sexually abused the child when in fact he had. While it would of course have been deceitful for the father to exert pressure on the child to lie at all, it is conceivable the father asked the child to lie about his use of a washer during her bathing only to remove any chance of the mother, police, or the Court wrongly inferring his sexual impropriety from that one piece of evidence if no sexual impropriety had actually occurred. If that is what in fact happened, it would not mean the father sexually assaulted the child, it would just mean the father acted reprehensibly as a parent by imploring her to lie.
Fifthly, it is also conceivable the child was untruthful or inaccurate. Care must still be exercised in attributing credibility to the child’s disclosure because she told the police officer the last such incident occurred when she was in “kindy [kindergarten]” after she had “turned six [years of age]”. The child was at school in kindergarten during 2012, but did not attain six years of age until … October 2012. The mother stopped the child from seeing the father over a month beforehand on 17 September 2012 and she did not allow her to resume seeing the father until interim orders were made on 19 December 2012, and only then under supervised conditions. The child did not therefore spend any time with the father when the two pre-conditions of being in kindergarten and being six years of age applied. Consequently, at least that part of her story must have been false.
Lastly, when asked by the police officer why she did not divulge that information in the earlier interview, the child’s first response was that she forgot. Her other explanation was that she lied because she was asked to do so by the father. Those two explanations are fundamentally incompatible because, if she was conscious of the need to lie in accordance with pressure exerted by the father, she had not forgotten either the facts or his importunity. Because one of those explanations was necessarily false, the child must therefore have been untruthful when she offered them both.
Obviously, if at least some parts of the child’s story are known to be false, the remainder of her story must have its reliability evaluated with some degree of care. Moreover, any general propensity of the child to be untruthful or inaccurate also affects the reliability of her representations, and there are numerous other examples of the child’s unreliability to be found in the evidence.
In September 2012 the child told the mother that when staying at the father’s home he puts her to bed at night and locks the door, leaving her in darkness.[37] The father gave unchallenged evidence that the internal doors at his home have no locks, he used to leave the child’s bedroom door ajar, and he used a night light for the child. Obviously, if the father’s evidence is accepted, as it logically can be, the child’s statements to the mother were false.
[37] Mother’s affidavit, para 6(c)
In December 2012 the child admitted to the mother she lied to the father when she told him she wished to live with him.[38] If the child’s statement to the mother was true then her prior contrary statement to the father was deliberately false. On the other hand, if she had not said any such thing to the father then the child’s statement to the mother was deliberately false.
[38] Mother’s affidavit, para 14(c)
During that same conversation in December 2012 the child reported to the mother that the father saw her at school and segregated her from teachers so that they could speak privately.[39] The child’s version of the event was refuted by the school principal.[40] The mother acknowledged that the versions of the child and school principal were incompatible, but insisted the child’s version would be correct. I prefer to accept the version offered by the school principal, whose version is ostensibly independent and impartial. Acceptance of his evidence means that the child’s version was probably factually false.
[39] Mother’s affidavit, para 14(a)
[40] Affidavit of Mr M, paras 8-10
In January 2013 the child told the mother she was prepared to lie to her about the manner in which she had injured her foot, because the father asked her to do so.[41]
[41] Mother’s affidavit, para 41
In January 2013 the Family Consultant reported that the child told her “my mum says I am not allowed to sleep at daddy’s because he is naughty at night time”.[42] The mother denied in cross-examination that she had ever said such a thing to the child. If the mother’s evidence is to be accepted as correct it necessarily means that the child’s statement to the Family Consultant was untruthful. Of course, the reverse may also be the case. If the child’s statement to the Family Consultant was true then the mother’s denial was false.
[42] Family Report, para 102
In early February 2013 the mother believes the child lied to her about who had written in her homework diary.[43]
[43] Mother’s affidavit, para 121
Leaving aside for one moment the child’s motivation to lie, the mother evidently knows the child is prepared to do so when she perceives the need. That inevitably means the literal truth of her representations must be scrutinised with great care before they are accepted as both truthful and accurate. That truism is fundamentally inconsistent with the mother’s case, which depends entirely upon the reliability of the child as a historian. The mother’s case is simply thus: because the child said so, it must be correct. But when the mother knows the child is prone to unreliability it is illogical for her to adhere so stridently to the truth and accuracy of the child’s statements.
It must be remembered the child is still now only six years of age. She is under enormous pressure to meet the demands of both parties and her loyalty is divided between them. I accept the Family Consultant’s opinion that the child has been placed in the invidious position of “having to meet the needs of the parents rather than having her own needs identified and met”.[44] It is therefore unsurprising that the child capitulates to the stress and provides to adults the information that she perceives they expect or want to hear. The poignancy of her predicament was illustrated by her candid comment to the Family Consultant:[45]
Sometimes they [the parents] are good and sometimes they are angry with each other and that makes me sad.
[44] Family Report, para 39
[45] Family Report, para 96
I accept as correct the Family Consultant’s opinion that the child’s sadness is more probably due to the ongoing parental conflict rather than her subjection to the trauma of sexual abuse.[46]
[46] Family Report, para 108
The mother’s case of sexual abuse is even more illogical and debased by her differential attitudes to the father and paternal grandmother. She was insistent the father had sexually abused the child but was equivocal about the paternal grandmother, notwithstanding that the child’s explanations in respect of how each of them bathed her were almost identical. The child’s initial report to the mother, which caused the mother such “grave concern”, was exclusively about the paternal grandmother. The father was not even mentioned by the child until the mother later deliberately turned the conversation to him.
Paying no regard at all to the similarity of the child’s representations about the father and paternal grandmother, and without discarding her residual concerns that the paternal grandmother had sexually abused the child, the mother agreed to use of the paternal grandmother as a suitable supervisor of the child while visiting the father. She agreed to interim orders to that effect in December 2012.[47] Even now, supervision by the paternal grandmother remains her solution to the risk she perceives in the child’s continuing interaction with the father.[48] The mother had no alternative but to admit the inconsistency of her position, which inconsistency was so acute as to be absurd, unless of course the mother is not as convinced about the veracity of the sexual abuse allegations as she contends.
[47] Order 1.3 made on 19 December 2012
[48] Further Amended Application, Order 11
The illogicality of the mother’s proposal for the paternal grandmother to be a perpetual supervisor is compounded by her asserted belief that the paternal grandmother “tends to do whatever she is told to do by the father”, which includes “covering” for him.[49] If those beliefs, asserted by the mother to the Family Consultant, are true then her proposal is quite bizarre.
[49] Family Report, para 51
Aside from the curiosities about the child’s representations and the mother’s belief in them, there is the evidence of the father and paternal grandmother to consider.
The father consistently denied the allegations of sexual impropriety. He did so to the Family Consultant,[50] in his affidavit,[51] and during his cross-examination. The father’s denials in cross-examination were forthright and convincing.
[50] Family Report, para 79
[51] Father’s affidavit, paras 15, 18, 19, 20
The father explained how he had formerly bathed with the child, both before and after the parties’ separation, which included washing the child’s genitals, sometimes without using a face cloth. However, he alleged ceasing washing the child’s genitals at all once the mother’s past allegations of sexual abuse against him were agitated as an issue in March 2010 in the former proceedings between them. There was, however, a contradiction between his evidence and that of the paternal grandmother, who said that she had seen the father bath the child’s genitals with a face cloth up to and including 2011, just prior to her commencement of school in 2012.
It is instructive to recall that in the child’s interview with police in February 2013 she told the officer the father had washed her vagina when she was “three years, four five”. She attained the ages of three in 2009, four in 2010, and five in 2011. To that extent, the child’s report to police was partially consistent with the father’s evidence and wholly consistent with the paternal grandmother’s evidence about washing her genitals at those times in the past. If the child’s report to police in February 2013 was actually about historical events over past years then any imputation of sexual irregularity must surely abate.
The paternal grandmother also denied the allegation that she had acted in any sexualised way with the child to the Family Consultant,[52] in her affidavit,[53] and during her cross-examination. I also accept the genuineness of her denials.
[52] Family Report, para 74
[53] Paternal grandmother’s affidavit, paras 25-26
However, I find it difficult to accept the totality of the evidence given by the father and paternal grandmother. They were each anxious to convince that they had not touched the child’s genitals at all for a protracted period, even in circumstances when it would have been innocuous for them to have done so, such as during the child’s bathing and to preserve her hygiene. That evidence cannot be conveniently reconciled with the child’s representations, which imply that she was bathed, including on the genitals, by both the father and paternal grandmother up until more recent times. The father also denied that he ever washed the child’s genitals with his naked hand, insisting that even when he refrained from using a face cloth he ensured that a bar of soap separated his hand from the surface of the child’s vulva. The child’s explanation of being washed on the genitals with a hand and soap seem a much more realistic and likely scenario than the father’s asserted vigilance to avoid any physical contact between his hand and the child’s genitals, which vigilance seemed artificial and unnecessary.
I am left with the impression that such extensive disavowals were offered to guard against any risk the Court would erroneously sustain the allegations of sexual abuse merely because the father and paternal grandmother adopted a more relaxed attitude than the mother to intimate physical contact with the child’s body. Nevertheless, reluctance to accept the totality of their evidence does not mean their denials of sexual impropriety cannot be accepted as truthful and accurate.
I similarly have reservations about some aspects of the mother’s evidence. While I accept the accuracy of the mother’s evidence about the statements made to her by the child and also the honesty of her belief in the occurrence of some form of sexual abuse of the child, her reliability was found wanting on other issues. For example, the child reported to the Family Consultant in January 2013 that the mother told her she was not allowed to sleep at the father’s home because “he is naughty at night time”,[54] but the mother denied saying any such thing to the child. I accept the truth of the child’s innocent revelation in preference to the mother’s denial, in circumstances where the mother would be aware how saying that to the child would reflect adversely upon her. As another example, the mother denied the police officer told her about the nature of the child’s belated disclosures after the final interview on 14 February 2013, but the police officer said she certainly did. The police officer also denied she told the mother that the father knew the date of the interview, contrary to the mother’s evidence.[55] I prefer the evidence of the independent and impartial police officer to that of the mother. Nevertheless, those instances of dishonesty by the mother do not impugn the entirety of her evidence.
[54] Family Report, para 102
[55] Mother’s affidavit, para 29
Impeachment of a witness’ credit on one issue does not necessarily impeach the witness’ credit on all issues. The court is at liberty to accept all, some, or none of the evidence given by a witness (see McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9). Although I accept the mother harbours a genuine belief in the father’s sexual abuse of the child, I also accept the genuineness of the father’s denial. The same may be said of the paternal grandmother.
Evaluation of the totality of the evidence in the context of both binding legal principles (see M v M (1988) 166 CLR 69; Napier & Hepburn (2006) FLC 93-303; Potter & Potter (2007) FLC 93-326; Johnson v Page (2007) FLC 93-344) and the burden of proof which governs evidence touching upon allegations of serious misconduct (s 140 Evidence Act) leads me to conclude that neither the father nor the paternal grandmother sexually abused the child. That conclusion is consistent with the submissions of the father and Independent Children’s Lawyer. The mother did not ultimately submit for any such positive finding, so she too must have recognised that the evidence did not support it.
Most probably the allegations of sexual abuse are an admixture of deliberate and innocent misrepresentation by the child, misinterpretation by the mother, and an atmosphere of distrust and suspicion between the parties.
Whether or not some form of sexualised impropriety did occur in the past, the prospect of its recurrence must be regarded as remote. This litigation has been a harrowing process for the parties and the father and paternal grandmother must have been chastened by it. Reason suggests they are liable to be hyper-vigilant about the manner of their personal contact with the child in the future. In addition, the child continues to mature and has been educated in “protective behaviours”[56] so she is more likely to be attuned to and guard against sexualised physical interaction. Consequently, I am not satisfied the child is at unacceptable risk of sexual abuse by either the father or paternal grandmother. That conclusion is also consistent with the submissions of the father and Independent Children’s Lawyer. I reject the mother’s submission to the contrary.
[56] Family Report, para 47
Alleged physical abuse
The issue of the child’s alleged physical abuse was not foreshadowed by the mother and it did not really arise until final submissions. No mention was made of it in the Form 4 Notice of Abuse filed by the mother in September 2012, no report of it was made to the Department,[57] and the issue was barely touched in cross-examination.
[57] Magellan Report
It was ultimately contended that a finding of the father’s physical abuse of the child could be premised on:
a)The father’s alleged mistreatment of the child on or about 19 March 2011,[58] and again on another occasion in December 2011;[59] and
b)The evidence of Ms J.[60]
[58] Mother’s affidavit, para 94
[59] Maternal grandmother’s affidavit, para 16
[60] Exhibit M1
I reject the submission, for reasons which appear below. I find that the father did not physically abuse the child. Moreover, I find that he does not pose any risk of such abuse to the child.
The mother’s asserted belief in the father’s physical abuse of the child on or about 19 March 2011 arises entirely from reports made to her by third parties, who were not witnesses, about both the content and volume of conversation heard emanating from the father’s house. It was that incident which led the mother to video tape her conversation with the child on 20 March 2011 when she returned to the mother’s home. In flat contradiction of the hearsay reports to the mother, the video disclosed the child’s innocent denials of the mother’s non-leading and leading questions about what had occurred. The child said:
No. I wasn’t crying.
I was doing nothing. Just playing.
I didn’t cry.
I said “No Daddy. I don’t want that thank you.
At one point in their conversation, following importunity of the type previously described, the child said the father had smacked her and simultaneously gestured to her right thigh. Assuming for the moment the child accurately described what the father did to her, there is no evidence at all about how hard the smack was delivered, nor the reason for which it was delivered. Although some (perhaps many) would disagree with its morality, it is still lawful and permissible to administer physical discipline to a child for misbehaviour (see s 61AA Crimes Act 1900 (NSW)). The state of the evidence therefore renders it impossible to find that the father assaulted the child and, with relevance to this particular incident, without any assault the definition of “abuse” under the Act (s 4(1)) is not fulfilled.
The incident in December 2011 entailed disagreement between the father and maternal grandmother on an occasion when the child was exchanged between them. The father gave a rather more benign version of the incident when cross-examined about it, but even acceptance of the maternal grandmother’s more aggravated version of the incident is insufficient to prove the child was physically abused by the father. The child was the focal point of a heated argument between the father and maternal grandmother, but she was not the subject of “abuse”.
Imagining for the moment that the above analysis of the incidents in March and December 2011 was erroneous and the child was “abused”, it is significant that the mother took no contemporaneous remedial action in relation to either incident. Instead, she continued to implement the parenting regime agreed between the parties in February 2011. She can hardly persuasively assert that such incidents now assume profound significance in the analysis of the child’s best interests when she failed to do anything about those events at or about the time of their occurrence
The mother’s purported reliance upon the evidence of Ms J is also misconceived. Ms J gave evidence of two instances in which the father vented his anger with the child. One involved the father admitting to her that he “lost it” with the child and “dragged her to her room” by her arm. The other involved the father “screaming” in the child’s face.[61] Curiously, Ms J did not mention those incidents in the formal statement she made for the police on 16 December 2012, in which statement she was invited to set out her concerns about the father.[62] She made that statement at the request of police,[63] who were then in the process of investigating the mother’s complaints against the father of stalking her and sexually abusing the child.[64]
[61] Exhibit M1, paras 14, 16
[62] Father’s affidavit, Annexure E
[63] Exhibit M1, paras 26-27
[64] Mother’s affidavit, para 24, Annexure C
By her own admission, notwithstanding the concerns she currently asserts about the father, Ms J maintained her friendship with him from March 2011[65] until she made her police statement in December 2012. Her currently expressed concerns are seemingly irreconcilable with the favourable sentiments she previously expressed to the father, which implied her desire for an enduring relationship with him and his ongoing involvement in her own child’s life.[66]
[65] Exhibit M1, para 3
[66] Father’s affidavit, paras 33-37
Ms J rebuffed the father’s request for assistance in this litigation and she also resiled from her commitment to assist the mother, as she refused to execute the affidavit drafted for her, thereby necessitating her service with a subpoena. In all probability, Ms J realised she had immersed herself in the lives of both parties and had lost the detachment which is integral to the reliability of any independent witness, but when compelled to attend Court under subpoena, felt obliged to adopt the contents of her draft affidavit to save her embarrassment. I was left with the impression that her evidence should only be accepted cautiously, particularly when she conceded important chronological errors in her police statement.
Suffice to say, even if accepted at its highest, Ms J’s evidence does not necessarily prove the father’s physical abuse of the child. Parents often lose their temper with their children, raise the volume of their voice and physically escort children to their rooms, but not every such instance amounts to “abuse”. Taking account of the undoubted quality of the bond between the child and the father, and allowing for the fact that I am not prepared to accept Ms J’s evidence at its highest, I consider it quite unlikely the father abused the child in the manner implied by Ms J.
Best interests of the child (s 60CC)
Primary considerations (s 60CC(2),(2A))
Given the finding that neither the father nor the paternal grandmother poses an unacceptable risk of sexual or physical abuse to the child, there is no need to take any steps to protect the child from either physical or psychological harm caused through her exposure to such abuse by the father.
The corollary of rejection of the mother’s allegations of the father’s past or prospective sexual abuse of the child is the spectre of her psychological abuse of the child. The definition of “abuse” that now appears in the Act, which applies in these proceedings, includes “causing the child to suffer serious psychological harm”. It was contended by both the father and the Independent Children’s Lawyer that the mother’s behaviour, both in relation to the prosecution of the spurious sexual abuse allegations and more generally, caused the child to suffer serious psychological harm so as to amount to “abuse” as defined.
There could be no doubt the mother has subjected the child to extraordinary pressure to reject the father, irrespective of whether she can objectively appreciate that is the effect of her behaviour. While the child has certainly been stressed as a consequence, there is no evidence to reasonably prove the child has already suffered “serious psychological harm”. Rather, the import of the Family Consultant’s evidence is that such serious harm will inevitably ensue if action is not now taken to avert that outcome. Given the present absence of evidence of the child’s sufferance of “serious psychological harm” the mother’s behaviour cannot yet be properly designated as “abuse” of the child. The consequence of that finding is that the mother’s behaviour should be considered in the context of her parenting capacity under s 60CC(3) of the Act, rather than as “abuse” from which the child requires protection as a primary consideration under s 60CC(2)(b) of the Act. Nonetheless, it is a compelling consideration in the outcome of the litigation.
It was not ultimately contended by either party that the child was at risk of any harm through exposure or subjection to family violence. Although the mother adduced a surfeit of evidence about being stalked and threatened by the father, it was ultimately conceded by her counsel that the issue of family violence was only a “minor part” of the factual matrix and had no material influence upon the Court’s determinations about the allocation of parental responsibility, with whom the child would live, and the circumstances under which the child would spend time with the non-residential parent. I do not therefore intend untangling the parties’ incompatible evidence on the issue.
No issue arose in the proceedings about any neglect of the child.
Consequently, the only “primary” consideration of relevance in these proceedings is the benefit the child will derive from enjoying meaningful relationships with both parties.
The child has a loving relationship with both parties and also with members of the maternal and paternal families. That is obvious from what she says and how she acts.[67] The mother was impelled to concede in cross-examination “I am sure she [the child] loves her father”.
[67] Family Report, paras 97, 101, 107
Despite the mother’s belief otherwise, the child is plainly not frightened of or intimidated by the father.[68] She openly expressed her view to the Family Consultant that she would like to spend more time with the father – “like before”[69] – which must have been a reference to the parenting regime which applied under the orders made in February 2011.
[68] Family Report, para 101
[69] Family Report, para 104
It is vital that steps be taken to ensure the child continues to benefit from the meaningful relationship she enjoys with the father, just as with the mother.
Additional considerations (s 60CC(3))
There was no complaint made by the father about the mother’s capacity to meet the child’s physical and intellectual needs. In that regard she has done an admirable job. Rather, the father’s criticism of the mother related to her impaired capacity to meet the child’s emotional needs, as evidenced by the perpetual climate of anxiety about the father within the mother’s household, which compromises the child’s valuable relationship with him.
The mother believed that the child’s behaviour in making adverse reports to and about the parties and being withdrawn or emotional at the times of her exchange between the parties was attributable to the child’s sexual abuse. The Family Consultant explained to her that such behaviour was consistent with, and perhaps even more readily attributable to, normal child development and the ongoing parental conflict, but the mother was resistant to that explanation.[70]
[70] Family Report, para 49
The mother has an unshakeable belief the child was sexually abused by the father, and perhaps also by the paternal grandmother, and the child is fearful of both of them. The mother gave that impression to the Family Consultant[71] and she repeatedly made comments of the same ilk throughout her evidence. Her implacable views are shared by both maternal grandparents and the maternal aunt.[72]
[71] Family Report, para 43
[72] Family Report, paras 58, 61, 67
In such circumstances, the Family Consultant must surely be correct when she opined:[73]
The message that [the child] is receiving on an ongoing basis is that “Daddy was naughty” and “mean to her” and that it is dangerous to be with him. At [the child’s] developmental age she does not have the capacity for abstract thought – things are seen in terms of black and white. This means that if the significant adults in her life are continually telling her that something is so, it must be true; if one parent is right, then the other parent must be wrong – both can’t be right.
[73] Family Report, para 41
The mother’s sincerest preference was for the child to have no interaction with the father at all,[74] which suggests the Family Consultant was probably correct to conclude she places little value in the child’s relationship with the father.[75] It is therefore irresistible for the mother to provide information to the child which is critical of the father, such as telling her she is “not allowed to sleep at daddy’s because he is naughty at night time” and that when she is in the bath he “washes [her] in parts that he shouldn’t”.[76]
[74] Family Report, para 44, 51
[75] Family Report, para 113
[76] Family Report, para 102
The antipathy towards the father within the mother’s sphere of influence is exemplified by the child repeatedly creating pieces of prose to explain her supposed dislike of the father. She did so with the paternal grandmother on 9 January 2013[77] and with the mother on 15, 16, and 20 February 2013.[78] While the mother and maternal grandmother may believe the child spontaneously resorted to that strategy to express her true feelings, I accept the contrary opinion of the Family Consultant that it is highly improbable the child would have done so unless she felt she was under substantial pressure to demonstrate in some more tangible way why she preferred the mother to the father in order to satisfy the mother and maternal family members.
[77] Maternal grandmother’s affidavit, para 4(iii)
[78] Mother’s affidavit, paras 15, 32, 33
The note written by the child for the maternal grandmother on 9 January 2013 accused the father of smacking her for no reason “20 times” one day when she was “2 years old” and professed her “hate” for the father.[79] Self-evidently it is nonsense the child hates the father because she undoubtedly loves him very much. It is also inconceivable that the father smacked her 20 times on an occasion when she was only two years of age. The maternal grandmother’s failure to pause for one moment to consider the absurdity of the child’s written claims is indicative of the distrust that has pervaded the relationship between the maternal and paternal families.
[79] Maternal grandmother’s affidavit, Annexure B
Similarly, when the child conferred with the Family Consultant on 15 January 2013 she said she broke her wrist when she was two years of age, which accident was the father’s fault.[80] Given her age, the child could not have known such misfortune was the father’s fault. Either the maternal family informed her of it or she voluntarily attributed blame to him because of the pressure she felt to be critical of him at any opportunity.
[80] Family Report, para 101
The Family Consultant explained that currently validated social science establishes children of the child’s age probably do not even have any actual memories of events that occur at age two, and moreover, they are susceptible to having their memories moulded by suggestion.
When faced with such pressure it is hardly surprising the child demonstrates some resistance to seeing the father. Her behaviour is a response to the load of expectation upon her. The mother must know or reasonably suspect as much. She is aware the child has feigned illness to justify her resistance.[81]
[81] Mother’s affidavit, para 10
The simple fact is the child is reluctant to be parted from either party as she is conscious of the acute conflict between them and realises the chance of its occurrence is most pronounced at the time of her movements between their households. The mother was aware from her discussions with the Family Consultant in the former proceedings in November 2010 that the child was then becoming aware of “her family situation”.[82] The situation is worse now. The child has occasionally had to be prised from the mother by the maternal aunt,[83] but once with the father she adores the time she spends with him and adopts tactics to delay her return to the mother,[84] which was witnessed by the Family Consultant.[85]
[82] Family Report 19/1/11, para 15
[83] Affidavit of Ms I, para 12
[84] Family Report, para 70
[85] Family Report, para 107
Aside from the allegations of sexual and physical abuse, which have already been rejected, there was no suggestion of impairment in the father’s capacity to meet the child’s emotional needs. Rather, the mother’s contention was that the father’s vocational commitments precluded his primary care of the child.
Despite the mother’s reservations in that regard, the father is capable of assuming the role of primary carer for the child. He is self-employed and his business entails significant amounts of time working on his computer at home at night when the child would be in bed. When he is required to visit customers away from his home he is able to rely upon the paternal grandmother, who lives close by, to assist in his care of the child.[86] The mother agreed to final parenting orders in February 2011 that provided for the child to live with the father for equal time by January 2015, so his capacity to care for the child on a full-time basis was not a concern she harboured at that point in time. His circumstances have not changed since then so it is difficult to understand why the mother now makes it an issue.
[86] Family Report, para 85
The father has, in the recent past, travelled frequently to Sydney or Canberra for business purposes. The mother contended that was the hallmark of his business and was incompatible with being a full-time carer for a young child. However, as the father logically observed, he travelled regularly because he did not then have the responsibility of primary care for the child and was able to do so. He would not do so in the future if he was the child’s primary carer. The flexibility of the father’s vocational commitments is demonstrated by the fact that he is able to make time to surf at local beaches most days.
Notwithstanding the child’s primary residence with the mother to this point, the father has still taken an active role in the child’s education, volunteering at her school in a number of parental activities.[87] There is no reason to think he cannot continue to do so.
[87] Family Report, paras 9, 82
There is currently no family violence order in existence. The police issued a provisional apprehended violence order against the father for the protection of the child and the mother on 12 November 2012 when they began actively investigating the mother’s allegations of the father’s sexual abuse of the child.[88] It is an agreed fact the provisional order was discharged by the Local Court of NSW on 10 December 2012, and although the matter was listed for final hearing before the Local Court of NSW on 26 April 2013,[89] the complaint was withdrawn and dismissed prior to the appointed hearing date.
[88] Mother’s affidavit, Annexure C
[89] Mother’s affidavit, para 28
Parenting orders
Since there is no finding that either parent engaged in abuse of the child the presumption of equal shared parental responsibility is not displaced pursuant to s 61DA(2)(a) of the Act
In light of the concessions made by the mother’s counsel about the inconsequential nature of the evidence pertaining to potential family violence, I decline to affirmatively find that the father engaged in family violence. The presumption of equal shared parental responsibility is not therefore displaced by any finding under s 61DA(2)(b) of the Act.
I am, however, satisfied that the presumption of equal shared parental responsibility is rebutted by the evidence which demonstrates the child’s best interests would not be served by the parties having equal shared parental responsibility for her (s 61DA(4)). Such a conclusion is uncontroversial. The parties both sought sole parental responsibility for themselves,[90] the Family Consultant considered parental responsibility for the child should be allocated solely to the party with whom the child lives,[91] and the Independent Children’s Lawyer agreed.[92]
[90] Further Amended Application, Order 2; Further Amended Response, Order 2
[91] Family Report, para 118
[92] Exhibit ICL6, Order 2
No doubt the parties have in the past demonstrated their capacity to consult with one another and to negotiate issues of significance to the child, but these proceedings represent a watershed. The mother has a burning belief the father sexually abused the child, which view she conceded she will never discard. The father genuinely believes the mother maliciously orchestrated the allegations, because he cannot countenance the child voluntarily making the statements reported by the mother. Although the father told the Family Consultant he was willing to share parental responsibility, he was pessimistic about the mother’s reciprocal willingness.[93] The father expressed those sentiments before he filed his Further Amended Response seeking sole parental responsibility and before he heard the mother’s evidence in these proceedings.
[93] Family Report, para 38
The parties’ positions are now entrenched and irreconcilable. Neither will likely recover the ability to courteously consult the other and negotiate with goodwill, as the law would require of them if they were allocated equal shared parental responsibility (s 65DAC). The only feasible outcome is for the residential parent to have sole parental responsibility for the child, just as the Family Consultant recommended.
Since equal shared parental responsibility is not allocated, the Court is not obliged to consider outcomes under which the child lives for “equal time” with one parent, or alternatively, lives primarily with one parent and spends “substantial and significant time” with the other (s 65DAA). One of those two alternatives may still result, but the Court is not mandated to consider them in that order, nor before any other parenting regime is considered.
The clear recommendation of the Family Consultant was that:[94]
Given the ongoing conflict, lack of trust and poor communication between the parents, this matter is ill-suited to a shared care parenting arrangement and [she] would not support a continuation of the Consent Orders made in February 2011.
[94] Family Report, para 40, 118
The parties obviously agree. Their respective applications are at considerable variance from the agreement they struck in February 2011. Both suggest a new parenting regime under which the child lives primarily with one parent and spends much less time than before with the other. The Independent Children’s Lawyer endorsed such an outcome, adopting the father’s proposal that the child live primarily with him. Consideration must therefore turn to which party offers the child the better residential option.
I accept the Family Consultant’s opinions about the nature of the child’s attachment relationships with both parties. Although challenged about her views in cross-examination, she did not modify them in any tangible way, asserting the child’s attachment relationship with the mother appears to be “anxious”, whereas the child’s attachment relationship with the father appears to be “fairly secure”.[95] Although the Family Consultant accepted the mother’s counsel’s criticism of not comprehensively citing in the Family Report the reasons for her conclusion about the child’s anxiety with the mother, such an inference was open.
[95] Family Report, para 110
Without seeking to be exhaustive, the evidentiary foundation for such an inference comprises: the mother admitting she was unable to keep the child settled while cohabiting with Mr H; the child sleeping with the mother in the mother’s bed for a period of months between the termination of her cohabitation with Mr H in June 2012 and the time of the child’s revelations in September 2012; the repeated episodes of “separation anxiety” experienced by the child when separating temporarily from the mother; the child’s sensitivity to, and perhaps even pre-occupation with, the mother’s feelings, as described by the Family Consultant; and the child’s willingness to produce written documents for the mother and maternal grandmother about the father’s infamy. The mother’s counsel conceded the inference of an anxious attachment between the child and mother was open, but instead contended the inference should not have been drawn. I reject that submission. The Family Consultant’s evidence was logical and persuasive. In almost all respects her conclusions were borne out by the evidence adduced at trial.
The Family Consultant considered the father was capable of “providing the child with the security and reassurance that she needs to regulate her emotions and manage her behaviour”,[96] but by comparison the mother presented as “having poor boundaries and a tendency to confuse her needs with the needs of the child”.[97] The consequence of that dynamic is that the child is in “great danger” of developing an “enmeshed relationship” with the mother, which would surely be emotionally damaging for her in the manner described by the Family Consultant.[98] In particular, it will likely result in her alignment with the mother and deterioration of her relationship with, and perhaps even estrangement from, the father.[99]
[96] Family Report, para 110
[97] Family Report, para 113
[98] Family Report, para 113
[99] Family Report, para 115
Some characteristics of such enmeshment are already apparent. The child is seemingly as attuned to the mother’s feelings as her own. She told the Family Consultant “Mum really does misses me when I am at my dad’s (sic)”.[100] The child’s statement is unsurprising because the mother repeatedly told her so on the video footage. The mother had little option but to admit in cross-examination the video she took in March 2011 really showed her impressing her feelings upon the child rather than allowing the child to discuss her own.
[100] Family Report, para 103
The Family Consultant said she found the video footage “very enlightening and disturbing” and said of the mother’s presentation on the video footage:
The mother’s whole technique was disconcerting. I found myself wondering who cannot be separated from who here?
The video would make a really good training video for what not to do.
During the video footage the mother repeatedly made statements to the child that, if not by design, would still condition the child to the idea that the father’s home was a dangerous environment. She said to the child such things as:
You don’t like it at Daddy’s?
You want to be at Mummy’s?
I will look after you. You can ring me any time. You can ask Daddy to phone me.
I will check on you all the time.
It seems evident that if the child remains living with the mother she is at serious risk of losing her valuable relationship with the father. Remembering that her retention of the benefit of that relationship is a primary consideration in these proceedings, prospective restructure of the child’s residential arrangements is necessarily a feature of the proceedings.
On the other hand, if the child moves to live with the father, there is no evidence to suggest the child’s relationship with the mother would suffer the same fate. It is likely she could retain her meaningful relationships with both parents if she lives with the father. As the High Court recognised as self-evidently true, apart from cases of abusive relationships, children benefit from the development of good relationships with both their parents (see U v U (2002) 211 CLR 238 at 285-286).
For those reasons, despite the child’s historical primary residence with the mother, the Family Consultant clearly foreshadowed the potential need for the child to live with the father instead. The Family Consultant said:
It may also be necessary to consider a change of residency at this time.[101]
and:
If the Court should find that the sexual assault allegations are not substantiated then it is suggested that there should be no requirement for supervision and that Parenting Arrangements will need to be re-examined in order to arrive at an arrangement that will better suit the needs of the child.[102]
[101] Family Report, para 115
[102] Family Report, para 118
Although the Family Consultant’s views about a reversal of residence were seemingly carefully expressed in the Family Report as only a potentiality, her views were more candidly expressed in cross-examination. She said at the time she compiled the Family Report she actually considered a change of residence was needed. Having since read the parties’ affidavit material and viewed the video footage, her views were only galvanised. Not only did she consider the child should be removed from the mother to live with the father, she thought serious consideration was required of both curtailment and supervision of the time spent by the child with the mother.
There is of course another reason which properly compels consideration of reversal of the child’s residence. If the child continues to live with the mother and spend unsupervised time with the father there is every chance the parties will again find themselves in this same predicament; where interrogation of the child by the mother results in some disclosure the mother interprets to mean the child was sexually abused by the father causing another disintegration of the parenting arrangements. That occurred the first time after the parties’ separation in 2009, leading to the former proceedings which were settled. It occurred a second time in 2012, which was the genesis of these proceedings. The mother said she has never abandoned her belief of the father’s sexual abuse of the child since 2009, believes in her “heart of hearts” that the current allegations of the father’s sexual abuse of the child are true, believes the father will sexually abuse the child again if he is presented with the opportunity, and that she will continue to worry in the future about the child’s safety when she is in the care of the father. In the face of such evidence, it is a reasonable inference that another break down in orthodox parenting arrangements, such as those that previously applied under the orders made in February 2011, would be inevitable if the child remains resident with the mother.
It was contended for the mother that she had been able to suppress her concerns about the father’s sexual abuse of the child in the past and abide by the orders made in February 2011, which demonstrated her capacity to do so again. However, I reject that submission. As the Family Consultant correctly observed when that proposition was put to her for comment in cross-examination, the mother’s underlying concerns about the father percolated to the surface once the child made a disclosure to her in September 2012 which she regarded as satisfactorily clear. The mother’s suspicion of the father is too deep-seated to pretend it will dissipate upon this Court now finding her fears are unfounded.
That conclusion is vindicated by the mother’s own evidence and the opinion of the Family Consultant. The mother said she will never discard her belief in the father’s turpitude, irrespective of the Court’s findings. As the Family Consultant opined, it is probable the mother would continue to interrogate the child about her experiences with the father, whether it be for the forensic purpose of garnering evidence to prove his abuse of the child or simply to satisfy her own curiosity about whether instances of abuse are continuing. I accept as correct the Family Consultant’s view that it is beyond the mother’s capacity to return and adhere to a parenting regime under which the child lives with her and spends substantial amounts of unsupervised time with the father.
According to the Family Consultant, the repercussions for the child in continuing to live with the mother would probably include her alignment with the mother as the perceived “needy” parent, the formation of an erroneous belief that she was the victim of sexual abuse by the father, and her use of the mother as a standard by which to model her own behaviour as an adolescent and adult. The concomitant effects would be the loss, or at least deterioration, of her relationship with the father and high levels of stress. That would surely deleteriously affect the child’s psychological health.
No doubt, change of the child’s residence from the mother will cause her short term grief. However, the Family Consultant said the child had shown some resilience and the father has proven his capacity as a supportive parent. The child will recover her emotional equilibrium and, as described by the Family Consultant, her residence with the father will be a “far better” outcome in the mid to long term.
Leaving the child to live with the mother, in conjunction with the imposition of an injunction precluding the mother’s interrogation of the child, would not be a satisfactory alternative. Aside from the difficulty of drafting a sufficiently prescriptive and enforceable restraint about precisely what the mother could and could not discuss with the child, the mother more importantly does not appreciate the significance of her role in the child’s interrogation. The mother disavowed her interrogation of the child at any time in the past and asserted she merely “followed her lead”,[103] which she seemingly genuinely believes. I prefer the Family Consultant’s interpretation that the mother certainly did lead the child’s discussions about the father. Given the mother’s erroneous but genuine belief, she would not likely be aware of her breach of any injunction designed to suppress that conduct. The imposition of a restraint upon the parties from discussing the sexual assault allegations with the child, as the Family Consultant recommended,[104] is a laudable objective but it will not be a sufficient bulwark to permit the child’s continued residence with the mother.
[103] Family Report, para 47
[104] Family Report, para 41
I am comfortably satisfied the evidence warrants a conclusion that the child’s best interests require her to live with the father.
The question that then needs to be addressed is the circumstances under which the child spends time with the mother.
The Family Consultant initially advised that the child should spend time with the mother on alternate weekends and during school holidays.[105] However, she reviewed that position in cross-examination. She considered the mother did not have the capacity to regulate the child’s emotions and expressed concern the mother would be able to contain her own emotions when with the child during visits of such frequency and duration.
[105] Family Report, para 118
The Family Consultant explained how the mother cannot differentiate the child’s feelings from her own. She mistakes her own feelings for how the child feels and the child then reads the mother’s feelings from her visual and verbal cues. In the view of the Family Consultant, that cycle can only be broken by the mother’s submission to therapy. She recommended that the mother establish contact with a local psychiatrist, whom she identified, who specialises in “attachment”.
The revised view of the Family Consultant, adopted by the Independent Children’s Lawyer, was that the mother should participate in such therapy and the time spent with her by the child should be supervised until the therapy has a discernibly positive effect upon her behaviour. In that eventuality, the Family Consultant envisaged the child could incrementally move to spending unsupervised time with the mother on alternate weekends and during school holidays.[106]
[106] Exhibit ICL6, Orders 5-9
The father took a different view. He adhered to his original proposal that the child immediately spend time with the mother on alternate weekends and during school holidays, but simply grafted a requirement for supervision on to those orders.[107]
[107] Exhibit F3
The mother did not engage that particular debate. She steadfastly maintained the child should live with her and spend supervised time with the father.
I am not persuaded in all respects by the proposal made by either the father or the Independent Children’s Lawyer.
Since I accept the Family Consultant’s opinion about the likelihood of the mother’s inability to contain her emotions and/or refrain from interrogating the child, the imposition of supervision is warranted for a finite period to guard against that risk. The period of supervision need not be too long because the mother will probably soon realise the child copes well and is well cared for by the father. Once that realisation is awakened in the mother her inclination to lose composure or interrogate the child will dissipate and the need for supervision will subside.
A period of six months supervision is imposed. The period is necessarily arbitrary because there was no evidence about its desirable duration. The need for temporary supervision necessarily means the amount of time the child spends with the mother will be restricted while it remains in place. I decline to make the period of supervision longer so as to avoid impingement of the valuable relationship the child enjoys with the mother.
It is inadvisable to use either the maternal grandparents or the maternal aunt as supervisors, just as the Family Consultant said, because they have identical views to the mother and reject the notion that any supervision is needed. It is notorious that free, and not always disinterested and wise, advice abounds in a family setting (see Magill v Magill (2006) 226 CLR 551 at 563) and aligned family members are not generally suitable supervisors (see Marriage of B & B (1993) FLC 92-357 at 79,780 – 79,781). The supervisors proposed by the Independent Children’s Lawyer and adopted by the father are appropriate. The Court was informed their services were available without delay.
Upon dispensation of the supervision, the child’s time with the mother will expand incrementally and culminate in a regime of alternate weekends, parts of school holidays, and other special occasions, which is capable of meeting the definition of “substantial and significant time” (s 65DAA(3)).
Although it is clearly desirable for the mother to seek out therapy of the type recommended by the Family Consultant, no order is made that she do so. The Court has no power to make any such order, unless her fulfilment of it is a pre-condition to the child spending time with her (see Marriage of L & T (1999) 25 Fam LR 590 at 603-606; Jacks & Samson (2008) FLC 93-387 at [200]-[226]). There is no justification for making her participation in the therapy a pre-condition of the child spending unsupervised time with her because it is important for the child’s emotional security that she has ongoing interaction with the mother irrespective.
There are other vices of the Independent Children’s Lawyer’s proposal. Firstly, the mother’s therapist would be required to compile a report about the mother’s progress, and in particular, express a value judgment about the mother’s “capacity to protect the child from emotional harm caused by her interactions with the child as depicted in the videos”. Only in the event of a positive opinion from the therapist would supervision be discharged. Otherwise the supervision would be permanent. Such a regime would be tantamount to the Court’s abdication of sole and exclusive jurisdiction to determine the parenting orders that meet the child’s best interests, because the power would be delegated to the mother’s therapist. Secondly, the requirement for production of such a report would convert the mother’s therapist from a therapeutic expert to a forensic one, which would place the therapist in an untenable position. Initially the therapist would need to form an allegiance with the mother for the benefit of her therapy, but then abandon that allegiance in favour of impartiality at the time the report is written. Pressure would no doubt be exerted by the mother for the compilation of a positive report as soon as possible. The therapeutic relationship would be ruined if the therapist resisted the mother’s entreaties, or alternatively, provided an unfavourable report.
The mother is an intelligent woman. The best course is to bank on her intelligence to absorb these reasons and the advice of the Family Consultant and to voluntarily seek out the therapy she needs. The duration of the supervision imposed by the orders is likely shorter than the duration of the therapy she needs, but if she acts quickly her therapy could be well under way by the time the supervision is discharged. The orders permit the mother to furnish copies of the Family Report, the orders and these reasons to any therapist she engages.
If the mother refuses to seek out and accept the therapy recommended, her behaviour with the child when unsupervised may be much like it was before. That would be disappointing, since the child would again become stressed, but at least the time she spends with the mother will then be in shorter bursts and her primary residence with the father will likely be a calming influence.
Other than during the initial period of supervision, the orders require the child to be exchanged between the parties either at school or at their homes. That arrangement is consistent with the proposals of both parties and the Independent Children’s Lawyer.
The parties both live in relatively close proximity to one another on the Coast of NSW. Their homes are separated by “only a few minutes drive”.[108] The orders do not therefore pose any practical difficulty or expense in implementation.
[108] Family Report, para 8
The father has already participated in numerous post-separation parenting programs. Although the mother has not, she was willing to do so and has already enrolled in such a program.[109] The Family Consultant recommended that the mother should attend a post-separation parenting program and it is sensible that she do so.[110] An order to that effect is made. To the extent that the Family Consultant recommended the parties’ mutual completion of some other parenting course which is not defined as a “post-separation parenting program”,[111] the Court has no power to order that they do so (s 65LA).
[109] Family Report, paras 3, 54; Mother’s affidavit, para 112
[110] Family Report, para 114, page 28 (recommendation II)
[111] Family Report, para 114, page 28 (recommendation III)
I adopt the proposal of the father and Independent Children’s Lawyer for the child to be presented to the Family Consultant or her nominee for explanation of the orders and, subject to the Family Consultant’s or nominee’s discretion, the reasons for the orders.[112]
[112] Exhibit ICL6, Order 4; Further Amended Response, Order 14
The Independent Children’s Lawyer proposed an order which prohibits the parties from “recording by any electronic means whatsoever” the child’s conversations.[113] I decline to make such an order, as it would preclude the child from being video-recorded in any circumstances when speaking with one of the parties, such as at birthday parties, Christmas, and the like. Such an unfettered incursion on the lives of the parties and the child is unjustifiable.
[113] Exhibit ICL6, Order 14
Restraint on further proceedings
Although the father sought an order restraining the mother from commencing any further proceedings under Part VII of the Act without the leave of the Court,[114] the issue was only briefly discussed in submissions.
[114] Further Amended Response, Order 13
The Court has limited statutory power to make an order of the type proposed by the father (s 118(1)(c)), but it should be exercised sparingly even when the circumstances for its invocation are present (see Marriage of Paskandy (2005) 33 Fam LR 509 at [63]).
Exercise of the power is conditional upon the Court being satisfied that these proceedings are frivolous or vexatious. No such submission was made. Nor could one have reasonably been made. The proceedings concerned evaluation of serious allegations which had the capacity to profoundly affect the remainder of the child’s minority. Since the pre-conditions for exercise of the power under s 118(1)(c) do not exist the power cannot be exercised and the order proposed by the father cannot be made.
There is considerable doubt about whether the Court has implied power to restrain the institution of proceedings in a broader context than is presently enabled by s 118 of the Act and the Family Law Rules2004 (Cth) (see Vlug v Poulos (1997) FLC 92-778 at 84,603-84,606). I do not intend to explore the unchartered territory of any such implied power in the absence of reasoned argument about its existence and source.
Costs
The father sought costs against the mother.[115] The issue of costs was not argued so an order is made reserving costs for 28 days. It will be necessary for an application to be made within that period if costs are still sought.
[115] Further Amended Response, Order 15
I certify that the preceding one hundred and ninety-three (193) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 13 May 2013.
Associate:
Date: 13 May 2013
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