Cobb and Courteney-Wells
[2010] FamCA 1038
•19 October 2010
FAMILY COURT OF AUSTRALIA
| COBB & COURTENEY-WELLS | [2010] FamCA 1038 |
| FAMILY LAW – PARENTING PROCEEDINGS – Father’s application for primary care of parties’ three children and that the mother spend time with them on a supervised basis – Father also seeks orders precluding children from having any contact with their mother’s partner – Mother and ICL seek that children reside with mother and see father four times a year on a supervised basis – Father found to have an implacable and unshakable belief that the children have been abused by the mother and her partner – Allegations of abuse not found made out to the requisite civil standard – Court satisfied that the father has fuelled children to make such allegations as they have, and has maintained closed mind to the possibility that the mother and/or her partner may not be guilty of any abuse or other improper or inappropriate conduct – Court of the opinion that it is in the children’s best interests for mother to have sole parental responsibility for children and father to have contact fortnightly for up to three hours, supervised by Interrelate – Court satisfied that only by ordering supervisions on ongoing basis could children’s relationship with father be maintained without risking undermining of children’s relationship with mother |
| Family Law Act 1975 (Cth) Part VII ss 60B(2), 60CA, 60CC, 61DA(4), 65DAA |
| APPLICANT: | Mr Cobb |
| RESPONDENT: | Ms Courteney-Wells |
| INTERVENOR: | Department of Human Services |
| INDEPENDENT CHILDREN’S LAWYER: | Lee Dalton & Associates |
| FILE NUMBER: | DUC | 31 | of | 2009 |
| DATE DELIVERED: | 19 October 2010 |
| PLACE DELIVERED: | Dubbo |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 19 October 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Berry |
| SOLICITOR FOR THE APPLICANT: | Peacockes Lawyers |
| COUNSEL FOR THE RESPONDENT: | Self-represented |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Dalton |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Lee Dalton & Associates |
| COUNSEL FOR THE INTERVENOR: | Mr Levy |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitor |
Orders
That all previous and existing parenting orders with respect to the children L born … February 2003, H born … February 2003 and E born … March 2004 be and are hereby discharged.
That Ms Courteney-Wells (“the mother”) have sole parental responsibility for the said children.
That Mr Cobb (“the father”) spend time with the said children for up to three hours in each two week period.
That the time spent by the father be:
(a)At such times and for such periods as are available at Interrelate Family Centre (“Interrelate”).
(b)To take place at the premises of and be supervised by Interrelate.
(c)That the father meet the costs of Interrelate in supervising and facilitating his time with the children.
(d)That the father forthwith contact Interrelate and thereafter undertake all intake procedures required by them.
(e)That the father comply with all codes of conduct and/or rules of Interrelate.
That the mother deliver the children to Interrelate at the beginning of the father’s time and pick them up from there at the end at times to be arranged between Interrelate and the mother.
That the mother forthwith contact Interrelate and thereafter undertake all intake procedures required by them.
That the mother will:
(a)Notify the Intervener of any change of address or telephone number for herself and the children within 24 hours of any change occurring and at the same time supply details of her or the children’s new address or telephone number.
(b)Ensure the children attend school regularly.
(c)Continue the children’s counselling with Ms P or Interrelate Family Centre for as long as Ms O or Interrelate may recommend.
(d)Forthwith contact Child Protection Counselling Service (CPCS) (previously known as PANOC) and:
(i)advise them of the making of these orders;
(ii)Reactivate the referral made on 24 March 2010;
(iii)Comply with all their requirements including any requirement which involves the children or the children’s attendance.
(e)Authorise Ms O, Interrelate Family Centre and CPCS to supply the Intervener with such information as it may reasonably request at its cost.
That the father only attend the schools attended by the said children when invited to do so by the school or the children’s mother, or on any “open days” held by such schools.
That costs be reserved.
That documents produced on subpoena be returned to the entity producing same by the solicitor for the party who caused such documents to be produced.
IT IS NOTED that publication of this judgment under the pseudonym Cobb & Courteney-Wells is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT DUBBO |
FILE NUMBER: DUC 31 OF 2009
| MR COBB |
Applicant
And
| MS COURTENEY-WELLS |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
And
| DEPARTMENT OF HUMAN SERVICES |
Intervenor
REASONS FOR JUDGMENT
The proceedings before the Court relate to the parenting orders with respect to three children of the previous relationship of the parties to the proceedings, who are the natural parents of those three children and to whom I shall refer as “the mother” and “the father”. The three children the subject of the proceedings are L and H, who were both born in February 2003, and E who was born in March 2004. It would be readily apparent that the twins, L and H, are seven years of age and that E is six years of age.
The parties to the proceedings and the positions adopted by them can briefly be referred to so as to give a context to what follows. The father seeks that the children reside with him and that the mother spends time with them on a supervised basis. The father seeks, as I understand his proposal, that orders be made which preclude the children from having any contact with their mother’s partner, Ms Courteney.
The mother’s position throughout has sensibly, in the circumstances, been to adopt the stance taken by counsel for the Department of Human Services, to whom I shall refer in these reasons as “the Department”. The Department’s stance has been throughout the proceedings that the children should live with the mother and that they should spend time on a supervised basis with their father; albeit that should occur, the Department submits, on only four occasions a year and be in the nature of what has been described during the course of evidence as recognition contact. That is to say, it is asserted that the father should see the children on a basis which is acknowledged by the Department to do little more than enable the children to continue to recognise their father, and know who he is.
The Independent Children's Lawyer, to whom I shall refer as “the ICL”, sought, in essence, save with one significant difference, the orders sought by the Department. The significant difference was that the ICL sought that the supervised contact occur on a fortnightly basis for two hours. Counsel for the father, in his concluding submissions yesterday, sought a series of forms of alternate relief in the event that the father’s application that the children live with him did not find favour with the Court.
It is common ground and sensibly so, that the party with whom the children are to live should have an order for sole parental responsibility. Any preservation of the statutory presumption of joint parental responsibility would be unlikely to be effective in practice, highly likely to be detrimental to the welfare of the children and almost inevitably lead to further court proceedings.
The issue of credit assumes significance in the case in different ways. As is not in doubt, a major and probably the major factual issue in the case is whether the children or any of them have or has been sexually or physically abused whilst in the care of the mother and her partner, Ms Courteney. Both the mother and Ms Courteney deny any impropriety or inappropriate behaviour towards any of the children. Their credit, accordingly, becomes focal in relation to determining whether or not the abuse allegations are proved. That is because there is no other direct or circumstantial evidence capable of imparting upon the probabilities.
Each of the mother and Ms Courteney presented for cross-examination. Each was cross-examined extensively by experienced counsel, including experienced counsel representing the father. Nothing emerging from the evidence of either the mother or Ms Courteney provides a rational basis for rejecting their denials of impropriety or inappropriate behaviour. Nor, to the extent that a finding of unacceptable risk has perhaps been urged upon the Court by counsel for the father, does anything emerging from the evidence of the mother or Ms Courteney provide support for concluding the existence of such a risk.
Determining the abuse allegations does not ultimately fall solely to determining the question of the credibility of the mother and/or Ms Courteney. As will be seen, there is a dearth of evidence that might reasonably be expected according to expert witnesses who testified in the case, and an absence of other circumstantial evidence which is relevant to determining guilt or otherwise in relation to the allegations of abuse. Objectively, on no rational forensic basis could it be said that anything said by the mother or Ms Courteney during their evidence at trial, any inconsistencies that may have occurred in the course of either the evidence of each of them, or inconsistencies between the evidence of the mother and Ms Courteney, provides a rational basis for rejecting their denials of guilt.
The credit of the father is, in a sense, relevant but, in the strict sense of credibility, is probably not particularly relevant. The Court is satisfied, on the balance of probabilities, that the father genuinely believes, or has come to believe over time, that the children, or at least one or perhaps more of them, have been, are being and/or are likely to be abused by the mother and/or Ms Courteney. As will be seen, whilst that is or has become the father’s genuine belief, for reasons which will be detailed, the Court does not find his allegations of abuse made out to the requisite civil standard.
As will also be seen, the fact that the father has the implacable and unshakable belief that he does in the guilt of the mother and/or Ms Courteney, requires consideration in determining the proceedings. The evidence of the father is thus relevant at two levels. First, to the extent that it might be suggested or implied that the father has manufactured the allegations of abuse, the Court does not accept that such is the case. To the extent that the father may have encouraged the children to make allegations, the Court is not persuaded that he has done so at a conscious level, although the Court is satisfied on the evidence that the father has fuelled in the children the inclination to make such allegations as they have, and has maintained throughout, an increasingly closed mind, to the possibility that the mother and/or her partner may not be guilty of any abuse or other improper or inappropriate conduct.
The second respect in which the father’s evidence assumes relevance is the extent to which he is objectively likely to be able to put the allegations behind him if, as will be explained during the course of these reasons, the Court does not find those allegations proved. In the course of his evidence the father expressed the intention, if his allegations are not found proved after this trial, of putting the allegations behind him and moving on with his life and his relationship with the children in the absence of the vigilance which the evidence suggests he has demonstrated over the past two years. Whilst the Court accepts that the father may genuinely intend to do that, the Court is not persuaded that he has that capacity. In referring to evidence later in these reasons, matters will be touched upon which provide the foundation for that conclusion. Of particular significance in that regard is the expert psychiatric opinion evidence of Dr W, the expert psychological opinion evidence of Mr A, and the evidence of statements by the father as recently as June 2010 to the Interrelate Family Centre. They are found in Director General’s exhibit 6, in these proceedings.
The evidence of the father’s parents is potentially relevant in the context of credit but, as a reading of their evidence would reveal, ultimately determining the proceedings does not involve making any particular finding with respect to the credibility of the father’s parents. In short, their evidence reveals a belief in the accuracy or veracity of the allegations made by the father, and an absence of willingness to accept that the allegations may not be true, or at least a healthy scepticism in that regard.
As Dr W identified yesterday, the significance of the father’s parents as potential supervisors of any time the father spends with the children, whatever the context in which that occurs, is dependent upon their ability to influence the father to refrain from agitating his concerns about abuse or possible abuse with the children. It follows logically that where persons in the position of the father’s parents have no doubt that the allegations made by their son are true and that the denials of the children’s mother and her partner are untrue, there can not be the necessary vigilance to render them effective contact supervisors.
Ms N, who may or may not be the father’s partner, can be similarly regarded except, perhaps, that her evidence reveals some other elements of partisanship which provide an additional or possibly independent basis for declining to find that she would be a suitable supervisor of any time the children spend with their father. Not insignificantly, the evidence of none of the father’s parents or Ms N sheds any light on the allegations of abuse or any light conducive to a finding in the terms sought by the father.
The Court recorded a moment ago that Ms N may or may not be the father’s partner. Quite a deal of documentary material before the Court going back some years so describes Ms N, although neither she nor the father would agree in the course of evidence at trial that such was the case. Ultimately, probably little turns on that in the light of other matters to which reference will be made but, in short, were it material to do so, the Court would have some misgivings about making an order that the children primarily reside with the father, given the contradictory evidence as to the nature of the relationship which he has with Ms N. That is so, given that Ms N appears to be a significant figure in the father’s proposal for the care of the children.
Where the evidence of the father and that of the mother and Ms Courteney is in conflict, in the absence of documentary evidence or other circumstantial evidence impacting upon the probabilities, the Court prefers the evidence of the mother and Ms Courteney to that of the father.
Some dates and events provide useful background to the proceedings and they are essentially the following.
Ms N was born in 1960. She is 50 years of age. The father was born in 1962. He is 48 years of age. The mother was born in 1976. She is 33 years of age. Ms Courteney was born in 1963. She is 47 years of age. In about 2001, the father and mother commenced cohabiting in a de facto relationship. By that time, the father had two children of a prior relationship, as did the mother. In September 1994 and again, as a result of twin births, the mother’s children, Y and T, who are now 16 years of age, were born.
The father’s children of a prior relationship do not appear to have ever been part of the household of the father and mother or to have been or become significant in the father’s life or his arrangements. Y and T have at all material times lived with the mother. As noted earlier, in February 2003 and then in March 2004, the three children of the relationship of the father and mother were born. The parties had separated in about September 2003.
Not long after separation, either late in 2003 or early 2004, for present purposes it matters not which, the mother and Ms Courteney commenced to live in a de facto relationship. That relationship continues to this day. It will be immediately apparent that the relationship between the mother and Ms Courteney, despite whatever turbulence it has encountered, has endured for far longer than did the relationship between the father and the mother.
Shortly after the parties separated, the father commenced proceedings in the Local Court, that occurring on or about 29 October 2003. Those proceedings were transferred to the Family Court at Parramatta. On 10 November 2003, an AVO was made by the Local Court in favour of the mother. The father was the subject of that order. On 18 February 2004, interim parenting orders were made in the Family Court at Parramatta by then Judicial Registrar Halligan.
In March 2004, further orders were made in the Family Court at Parramatta for L and H to live with the mother and for the father to have contact from 9.00 am until 5.00 pm on Wednesdays and Saturdays. A week later, E was born. Contact between the children and the father ceased in about July 2004 and did not resume until mid to late 2005. Notwithstanding that, on 30 July 2004, final orders were made for the children to live with the mother and have contact with the father alternate weekend commencing March 2006, from 9.00 am Saturday until 5.00 pm Sunday, plus half school holidays commencing March 2008.
An order was made for the children to each take the surname Wells-Cobb. On 11 October 2005, the father commenced further parenting proceedings and on 2 December 2005. Orders were then made by the local Court in Dubbo providing that the children live with the mother and that the father’s contact with the children gradually increase to alternate weekends and half holidays commencing February 2008. Thereafter, the acrimonious relationship between the parents continued throughout 2007 and in early 2008 the father became concerned or commenced to express concerns about the physical wellbeing of the twins and to the possibility of E having been sexually abused.
In May 2008 the father took the children to police. In June 2008 the father took the children to see a priest. He, in the same month, took E to Dr U and in July, again took the children to another priest. In July 2008 the father also took the children to see a counsellor about possible abuse. He then, in August, took the children to police in relation to his concerns about possible abuse of them.
Thereafter, there was correspondence, between the father with DOCS and his local member of parliament. On 29 August 2008 the father spoke to a sexual assault counsellor at B Hospital. The children were presented for a medical examination the following day. No adverse findings were made. The father filed the application which gave rise to the present proceedings on 18 November 2008.
The children were interviewed at the Police Station in December 2008. At that time, having regard to the record on interview, it can be said that two of the children made statements which provided some foundation for the father’s concerns although, as is apparent from reading them, they provided no forensic basis upon which the police, DOCS or the JIRT officers could have reasonably moved a Court, either under this legislation or a state Court under the Children’s Care and Protection legislation.
On 19 July 2009, the father took E to the B Hospital, where a sexual abuse counsellor, Ms G, saw E. Ms G formed the view, as is recorded in documents to which reference will later be made, that the allegations had substance and referred the matter to DOCS.
The father did not, during 2009, spend any significant time with the children. During the course of this year and through the involvement of the Department, the father has seen the children in a supervised context, the most recent occasion of which the Court is aware and has any evidence about, being in June of this year.
The Court has had before it a great deal of documentary evidence relating particularly to the allegations of abuse. As is not uncommon, the evidence before the Court in this case can be summarised as being uncorroborated allegations by one or more of the children. There is, unsurprisingly, no medical evidence which is capable of corroborating the father’s allegations. There is an absence of circumstantial evidence corroborating the allegations.
As noted earlier, the allegations are denied and the denials by the mother and her partner are not able to be rejected, having regard to the evidence. As will be seen, the circumstances in which the complaints have been made do give rise to a concern as to their reliability. There is other evidence which suggests the possibility of innocent explanations for statements which appear to be concerning. There is an absence of evidence which the expert evidence suggests would be likely to have been available if the allegations of abuse had substance.
The father’s concern expressed to various people at various times for at least the past two years now has been that his allegations have not been either taken seriously or investigated properly. The difficulty the evidence reveals in this case is that, absent proof that nothing did happen, the father is unlikely to accept that such is the case and is likely to continue to blame the system, whether it be the Court, DOCS, the police or a combination of those bodies, for the absence of a positive finding in the terms he believes to be warranted.
It is not in doubt that proving that something did not happen is generally a difficult thing to do. In the circumstances of this case, it is impossible for the mother to prove that neither she nor her partner abused any of the children or acted inappropriately towards them. They simply can not. That is a hurdle that they can not possibly get over. That, of course, tends to reinforce the father’s feelings in relation to their asserted guilt. His inability to contemplate that what the children say may in some way be referable to their perception of what he might wish to hear, or to imaginative and exaggerated accounts of things which may have occurred in the playground at school or in somebody’s home may provide an innocent explanation. The father is unable to countenance that possibility.
This Court could not, on the evidence before it, rationally find, applying the civil standard of proof, either that the allegations against the mother and her partner have been established or that, in some way, the evidence provides a sufficient basis for finding that the mother and/or her partner constitute an unacceptable risk to the physical and psychological safety of the children.
It is appropriate to refer briefly to the evidence which has been tendered. As noted earlier, Ms G, on 19 July 2009, formed the view that if they return to their mother’s and mother’s female partner’s home the children would again be at risk of further sexual assault according to their self-disclosures to her, prepared a report which she forwarded to DOCS. That report is exhibit AF2, tendered in the father’s case.
The document records that on 19 July 2009, “the father and the three children arrived at [B] Hospital where, according to Ms G, the father explained to the counsellor that [E] had made numerous disclosures to him about [E’s] mother’s lesbian partner, [Ms Courteney], touching his private parts and getting him to lick her private parts. He told me that this has been going on for about 12 months. He has contacted JIRT. DOCS have also been involved, yet he has not received a satisfactory outcome due to [E] refusing to disclose the assaults to the JIRT team”.
E did make disclosures to the JIRT team in December 2008. A record of that interview is amongst the documentation to which reference will shortly be made. There follows in Ms G’s report, a recording which, it is clear, was a conversation between Ms G and the father; the father recounting and Ms G replicating in direct speech what was said by the father to have been said to him on 18 July 2009.
The child, E, was then interviewed by Ms G. During the course of that interview, Ms G asked what was the “least best” part of staying at his mother’s home, to which E replied, “When she makes me kiss her wee”. There followed conversation during the course of which E was asked, “Do your brothers see her doing it?” to which E replied, “No, because she does it in the lounge room on a mattress. Mum and [Ms Courteney] both make me do it to them and they play with my wee”.
Then Ms G recorded a conversation which she had with the child, H. She asked H what was the “least best” part of staying at his mother’s, to which he is reported to have replied, “[Ms Courteney] plays with [E’s] privates”. Ms G then asked, “When did this happen?” to which H replied, “A long time ago in someone’s room and then another time when they were sleeping in the lounge room”.
Ms G then asked further questions, one of which was, “How did you see it in the lounge room if you all sleep together in your room?” to which H is reported as having replied, “I got up because I heard soft talking twice and I wanted to see what was going on”. When asked whether he had seen this any other time, H is reported to have replied, “It hasn’t stopped since then. It’s still happening. [Ms Courteney] and [E] still sleep together every night”.
The evidence establishes that E has shared a bed with his mother and with Ms Courteney at times. That is potentially a source of, or a possible reason for some of the allegations that have been made, but by no means does that necessarily provide an innocent explanation. L was asked about sleeping arrangements, during the course of which he said, “[E] sleeps in the lounge on the mattress”. During the course of evidence, the mother and Ms Courteney both gave evidence in relation to the matters stated by the children with respect to sleeping arrangements.
After discussion then about travel arrangements on a bus, L volunteered to Ms G that he did not like being at his mother’s house. She was mean, that she, “Yells at my face and hits me,” clarifying that the mother hit L on the face using a ruler, having done this, “Fifteen times”. Curiously, L stated that he had not told his father about that as his father would get angry at him. L also asserted that the mother had slapped E across the face for telling lies. L, when asked a second time whether there was anything else that he wanted to say or whether he had said everything he wished to, volunteered, “[Ms Courteney] and mum both touch [E’s] private parts”.
When asked when he saw Ms Courteney and his mother touching E’s private parts, L replied, “In the lounge room. She was touching him when he had his PJs on”. When asked whether that was on the outside or the inside of his PJs, L replied, “On the outside, where his privates are”. When asked whether he had told his father, L replied, “Yes, every time I saw him”, that he had made that complaint.
Exhibit AF1 was the medical examination by Dr Z on 30 August 2008. It does not impact upon the probabilities of any of the allegations recounted by Ms G having substance. Also tendered in the father’s case, the criminal antecedents of the mother. Dr W, in his report, expressed some quite significant concerns about alcohol and violence in the mother’s household. Quite apart from the absence of any evidence emerging in cross-examination supportive of making adverse findings about the mother with respect to violence or alcohol, her criminal antecedents reveal, regrettably, some offences involving driving with middle range prescribed concentration of alcohol, some language matters, some property matters and goods in custody, none of which is recent or, on balance, relevant to the parenting capacity of the mother.
Counsel for the ICL tendered documents produced by New South Wales Police. Exhibit ICL1 provides a summary of matters in which the mother has been involved, using that term loosely, either as a person of interest or an alleged victim. Beyond providing some support for the mother’s attitude to yet further Court proceedings involving or instigated by the father, that summary does not impact negatively upon the mother.
The records produced by the New South Wales Police Service and forming part of Exhibit ICL1 relate to an incident at the children’s School on 3 July 2009. Police attended at the school on that day, which was an open day at the school. Police records show the father speaking to one of the children, who was described in the police record as a child at risk, or CAR, and saying words to the effect of, “You need to tell your teachers what your mum is doing to - passage deleted. If you don’t, I’m going to go to gaol and this will be the last time you see me”.
There seems no reason to doubt that the father said those words to police on that occasion. Why he did is curious, but it does provide some explanation for why the children might subsequently have made disclosures. Indeed, on that day, according to the police, the child at risk told police he was very upset, and did not want his dad to go to gaol. When questioned what his father told the child at risk he needed to tell the teachers, the child at risk replied, “Mum is still touching - blank - in the private places”, and did not want to tell the informant or police anything further.
Not surprisingly, the police record that during this interview, the child at risk was much more distressed at the fact his father may be going to gaol, than the fact his mother was allegedly touched CAR 3. There is little doubt that CAR or CAR 3 is the child, E, and that the child CAR who was speaking to police was one of the twins. The police then detailed the history of the matter to that date and referred the matter to DOCS.
The records also show that the father attended Dubbo Police Station on 2 April 2009 and the matters which are there recorded, save with respect to the police to their judgment of the father, are relevant only to the point of establishing the father’s persistence in pursuing his complaints against the mother. So too does the record of a visit by the father to the police station at Dubbo it would appear on 10 October 2008 when, again, the father reiterated his desire to make an allegation of indecent assault on his three children as he was not getting anywhere with JIRT.
The father, during the course of that interview, referred to a meeting he had with DOCS on 3 September 2008 and to his assertions that DOCS were liars and that when the matter ended up before a judge in the Family Law Court, both DOCS and police would have a lot of explaining to do. He also, apparently, indicated that when the children turned 16, litigation on their behalf would be likely against the Police Department and DOCS.
The father also reported to police that two ministers had sat in his lounge room and listened to his child’s disclosure. They, presumably, were ministers of religion rather than ministers of the Crown. Whatever they were, neither of them gave evidence at trial before this Court, and there is no evidence that any of those ministers referred any matter to DOCS. The records also show attendances by the father at Dubbo police and/or JIRT on 4 September and 9 September 2008. These too convey the father’s concern and his dissatisfaction with the standard of response he was receiving from DOCS and JIRT. The same is true of the father’s attendance on 2 September 2008.
On 1 August 2008, the father again attended at the police station. He reiterated the complaints which he had previously made. The police again referred this matter to DOCS. There follows, albeit earlier in time, entries relating to attendances by the father at the Dubbo police station: 7 July 2008, 19 June 2008, 9 May 2008, 13 May 2008 and 1 May 2008. The entries related to the possible abuse of the children of the parties.
There were unrelated incidents in terms of the allegations but involving other contretemps between the father and the mother recorded in early entries in the police records. The effect of these is that there has been an ongoing and very unfortunate acrimonious relationship between the parties. The police records over the years, which are referred to in ICL1, which go back as early in time as June 2000, amply demonstrate that proposition.
The ICL tendered two other documents. One related to the criminal antecedents of Ms N. The other was a letter written by her to the mother, none of which assumes significance for present purposes. The Director General tendered a number of police records too. The first of those, exhibit DGI, related to an interview the father had with the police in Dubbo on 9 May 2008. At that stage and, indeed, in the exhibit to which reference will be made immediately after referring to this document, the father is reported as having had concerns in relation to his four year old son, E, who he believed may have been sexually abused by Ms Courteney.
The document records that the father had a concern that the child, E, was being sexually abused, as the alleged victim had told him that Ms Courteney had been sleeping in the victim’s bed on occasions and may have been touching him inappropriately. The father was reported as having had those concerns for a couple of months. Nothing emerging from that interview advances the father’s allegations, although it is clear that, at least according to the police records in May 2008, the father’s concerns were couched in less certain terms than has been the case in recent times.
Exhibit DG2 refers to the father’s attendance at Dubbo police station on 2 May and records:
The father being concerned that some form of sexual abuse may be occurring; however, has no evidence to support it.
The father’s interview with police on 1 August 2008, exhibit DG3, contains a record of the father’s attendance in the following terms:
The father stated that his sons wished to tell police something. The father then went to his vehicle and brought all three children to the police station and when the children spoke to police, [E] stated to police that [Ms Courteney]…makes me touch her down there.
The child was reported as indicating his general area, and stating that this happened “a lot”.
L is recorded as having then approached the counter and informed police that he had seen Ms Courteney in the victim’s bed a number of times and that he had seen Ms Courteney making the victim touch her.
The father was interviewed by officers of the Greater Western Area Health Service in September 2008 and the record of those interviews became DG4. During the course of those interviews, the father, having had explained to him how the Department investigated complaints of the kind he was making, said, “I want you to question my kids about the sexual assault”. According to the report, after being told further things about the DOCS procedure, the father proceeded to walk out and say, “That’s not fucking any good. I’m going to document this and you will be sorry when it comes up in Court when he is 14 years old”.
The Department recorded its intentions to follow-up on the complaint and on 25 September 2008, in the course of a conversation with him, the father said, “What do I have to do? Go and shoot the ex and the partner?” The Director General also tendered in evidence, the report of Dr Z to which reference has earlier been made, exhibit DG5, and the Director General tendered a report prepared at the request of the father. This report, not surprisingly perhaps, was not tendered in the father’s case. The undated report of Ms D, a psychologist practicing in Dubbo, referred to having interviewed the father on two occasions and seen the children once when they were in his care. In the course of clinical interviews with E, no disclosure of anything in the nature of abuse was recorded, although the father apparently reported that he had told a doctor that Ms Courteney made E touch his private parts after dad and the doctor asked him.
Ms D recorded that the matter of significance was that the suggestion is that L told the doctor what he was reported as having told him, after dad and doctor asked him. As the balance of the report reveals, there were no other disclosures which led Ms D either to refer the matter to DOCS or to take other steps herself.
Under the heading “Recommendations”, Ms D reiterated that either L or the father, again not being entirely clear:
…has alleged that [E] is the victim of abuse as witnessed by his brothers. Appropriate professionals have been noted.
It was also recorded:
It is difficult to ascertain the veracity of the children’s experiences because without direct questioning they do not affirm the abuse.
Ms D also recorded that there were concerns regarding E’s attainment of developmental milestones, especially in reference to speech development which may impact on his ability to relay his experiences.
There were also reference to the father’s ratings on the PAI or personality assessment inventory, which recorded motivation:
His interest in and motivation for treatment is below average in comparison to adults who are seen in a therapeutic setting.
Ms D was of the opinion that paediatric intervention for E would be useful and that it may be useful for DOCS to monitor the situation.
A document tendered by counsel for the Director General, which assumes considerable significance, was provided by Interrelate and it refers to comments reportedly made the father on 4 June this year; that is to say, during the course of the proceedings. The father denies having made the statements recorded in the two pages which comprise exhibit DG7, or at least the damaging statements. The Court prefers the evidence of the Interrelate officer who made those recordings to that of the father. What appears are serious matters. There is no motive for the person who recorded those matters to have done so without very considerable attention to their accuracy, and no motivation for recklessly making the allegations has been suggested. The notes of 4 June record the father raising a number of issues that he wanted to address. One of them related to how appropriately the children were dressed, having regard to the weather. One related to a dental matter, and the third recorded that the father stated that one of the contact workers accompanied E to the bathroom. The father said that it took them at least 10 minutes and that when they returned, E stated, “It just dribbled”. The father was reported as advising that in the past, due to the action of his ex-partner, E had a sore, red penis which resulted in an infection. The unlikelihood of a contact supervisor not making some record or some referral in the circumstances of a case such as this in the event of there being anything untoward with E’s toileting on that occasion is readily apparent.
More significant, however, is the note of a phone call made by the father on 8 June with respect to contact scheduled for 9 June. When told that contact could not occur on the 9th but would instead be on the 16th because, the father stated, that he would see Interrelate and DOCS in Court and that he has had, “Enough of this shit.” The father made further statements about why it was that Ms Courteney could do an intake but …, presumably a reference to Ms N, could not. The father then stated, “Yeah, she ([Ms Courteney]) would bring him, [E], as she sits him in the front seat which [Ms P] has seen and rubs his cock. That’s why he’s sitting in the front seat, so she can rub his dick”. Not surprisingly, the coordinator said to the father at that point, “That is enough”. The father persisted, “Did your contact workers write down about [E] stating that his cock was sore and red from the rubbing?” The father also stated, “Two of your workers took him to the toilet and when he came back, [E] stated he only did a dribble and, said my cock is red and sore from the rubbing”.
Quite apart from the inconsistency between what the father said on the two occasions, it is again highly improbable, given the nature of their contact with him and the circumstances of this case, of which they would at least have had some knowledge of, the Interrelate workers would have simply left matters go if anything of the kind the father was there alleging had occurred, or been said by E.
The improbability of Ms Courteney or the mother or either of them having done anything of the kind alleged during the course of the proceedings in a public place in a motor vehicle travelling to a contact centre at which E would have been likely to report any such actions is obvious. The mother was not cross-examined to suggest that E suffered any of the conditions there described. Nor was Ms Courteney cross-examined to suggest that she had done anything of the kind alleged by the father.
Exhibit DG9 is identical terms to the father’s exhibit relating to the report of Ms G. On 10 December 2008, at the children’s School, each of the three children was interviewed. Records of those interviews became exhibit DG11. During the course of lengthy questioning, and that is not said critically of those who undertook the questioning, L made no relevant disclosures. During the course of his interview, E did ultimately make some disclosures to the police and JIRT officers with whom he was speaking.
And at question 344, Mr X, who appears to have been a DOCS officer or the like, said, “Did I hear you say something about kids hurting kids or did you say something about some kids hurt kids?” Whether or not that had happened earlier in the interview and the Court has not found such reference, which is not to say it is not there, E replied, “Yep”. He was then asked question 345, “What did you say?” Answer, “Touching me on privates”. Question 346, “They’re touching privates?” “Yes”. “Who’s who? Who was touching privates?” “I don’t know. Somebody else was. Not to me, to [H]. Not to [L], just to [H]”. “Not to [L] or [H]?” Answer, “Just to me”.
The conversation continued in similar vein for a few more questions, whereupon E said, “And I banged him in the head and they never come back”. There was more discussion about that and at about question 356 it was clarified that this happened at school. The conversation continued through further questions, during the course of which, at about question 409, there was a reference to “noodle”. The conversation continued and the interview concluded.
To the extent that that could be said to constitute any evidence of a disclosure, the Court could not accept that it provides an evidentiary foundation for a finding of actual or potential abuse. When read in context, and with respect to E, who was then a very young child, the inconsistencies in what he said, the difficulty of knowing just what it was that he was saying or trying to say, all would, in the mind of an objective observer, fail to provide any support for any allegations of abuse of him.
There followed the record of interview with the child, H, and at about question 123, when asked what he loved about going to his father’s, H replied, “Because [Ms Courteney] doesn’t touch my little brother’s privates”. He reiterated when his answer was put back to him as a question, “[Ms Courteney]. I just told you”. He then went on to say, “I see things - what adults touch little kids privates on their computer, mum’s computer”. He then proceeded to describe the mother having a camera somewhere, which was in some way connected with the computer. At question 136, H reiterated that he loved going to his father’s place “because [Ms Courteney] doesn’t touch your little brother’s privates”. He clarified, of course, that Ms Courteney was his mother’s partner.
During the course of subsequent questions and answers, at question 145 H was asked to tell those interviewing him everything that happened that he saw from the beginning to the end. He then said, “[E] was watching TV while [Ms Courteney] came into his room. I told [E] to kick her in the privates but he didn’t and then [Ms Courteney] hopped into his bed. Then [Ms Courteney] starts playing with [E’s] privates and that’s all”. When asked where he was when he saw this, [H] replied, “In my bed. In my bed on the other side”.
There was then questioning about whose bed E and Ms Courteney were in and at question 148, H indicated that they were in E’s bed. There followed questioning about beds, bedrooms and the like and some suggestion about drawing a diagram. Whether or not one ever was is unclear and there is no diagram attached to the documentation. Some pages later in the record of interview, the question was asked, H having volunteered that Ms Courteney tells lies, how he knew that. To question 258 he replied, “Because my dad tells me”.
The child was then asked, “When did dad say that [Ms Courteney] tells lies?” question 260 “Nearly every time I go there”. The conversation continued for some pages and at around question 300, the computer in the mother’s home again came up. During the course of an answer to question 301, “What do you see on the computer?” H said, “People touching, grownups touching little kids’ privates”. There was then questioning about where the computer was and when asked where it was, “It was in an office,” said by H, question 304, to be, “In an office in my room”.
When asked what he saw, he reiterated that it had been on his mother’s computer and that it had been grownups touching kids’ private parts. When asked question 312, “Who is using the computer when you see these things?” H replied, “My mum and when she hops on the computer she is naked. I always see that but I don’t know why and it happens all the time, what I just told you”. When asked how he knew that his mother had been naked when thus using the computer, he replied, question 313, “Well, because I see her naked”. The questions continued in relation to the details of the computer but no further disclosures emerged.
Reading the interviews in their totality it is apparent why neither DOCS nor the police nor JIRT was able to take any action, either criminal or pursuant to the Child Protection laws, and why the Director General’s stand has been as it has in these proceedings. By the same token, in fairness to the father, it can be better understood, when regard is had to those records of interview, why the father has struggled, as clearly he has, to accept that, whatever the truth of the matter, the evidence does not establish, on balance, that the allegations have substance.
The Court has had the benefit of expert evidence from Mr A, a child psychologist and from Dr W, a psychiatrist. Each of those experts was cross-examined. The cross-examination of neither of them provides any rational basis for rejecting or discounting the expert opinion evidence given by them. In the course of his report, Mr Q touched on a number of matters which have assumed significance at trial. He recorded that:
The father was in no doubt that [E’s] disclosures were valid and that he honestly believed them. He claimed [E] repeats the allegations to him periodically and he claimed [H] has also reported witnessing the sexual abuse occurring to [E].
As the evidence to which reference has been made makes clear, whilst there have been many more occasions when there have been no disclosures than there have been occasions when there have, and whilst when they have been made the disclosures have been in such terms and contexts as to render reliance upon them problematic, the reality is that the father was correct, there had been complaints by E about abuse and by H about witnessing them.
Mr A recorded a range of concerns relating to the physical and emotional environment provided for the children by their mother. The evidence before this Court does not establish any basis for concern with respect to the physical and emotional environment provided for the children by their mother. The evidence of the mother and Ms Courteney, the way they gave their evidence, their candour in giving evidence, and the circumstantial evidence leave the Court comfortably satisfied that they provide for the children a stable and emotionally and intellectually rewarding environment and have done so in difficult circumstances for a long time.
None of the complaints agitated by the father, and recorded in paragraph 10 of Mr A’s report, finds a factual underpinning in the evidence before this Court. The father recorded what is undoubtedly correct, that the relationship between himself and the mother was non-existent. There is serious emotional tension and acrimony between them. Curiously, the father believes that to be entirely attributable to the mother and her partner, and denies any responsibility for the current abysmal state of the parental relationship. The evidence leaves not the slightest room for doubt that, in the ways that Dr W particularly identified by reference to the personalities of the parties, there is fault on both sides. It is probably unhelpful to suggest where the balance of fault lies, but it is abundantly clear that the father’s unshakable belief in the guilt of the mother, and his relentless attempts to prove that guilt have exacerbated the relationship between the mother and father. It is to be remembered that the mother, has now had two years of investigation of these complaints by various bodies. Indeed, it is difficult to suggest any relevant avenue of inquiry which has not been undertaken. The father’s initial position was that time spent by the mother with the children not be supervised, although it should occur in the absence of Ms Courteney. As noted earlier, by the present time and, indeed, the commencement of trial, the father’s position was that the mother’s time should be supervised.
Before Mr A, the mother undoubtedly presented in a way which was potentially to her considerable detriment. He recorded that:
She presented as angry, unhappy, passively aggressive, spoke angrily about the repeated harassment or process abuse she believes the father has caused her over the years. She expressed her disapproval of the legal system’s complicity in this continued process abuse.
Variations on the same theme were expressed in paragraphs 19, 20, 21 of Mr A’s report.
Without doubting the accuracy of Mr Q’s reporting of the mother’s presentation before him, before this Court the mother, who represented herself, albeit she sensibly largely nailed her colours to the Director General’s mast, presented as a balanced, intelligent, sensitive and insightful person. Whether someone spoke to her and that caused the mother to present differently before this Court to how she did before Mr A or not, is not clear. The Court is comforted by the knowledge that three experienced legal practitioners cross-examined the mother.
Throughout her presentation, the mother revealed a capacity to rise above her understandable animosity towards the father in the interests of the children. The same can not be said, regrettably, of the father in the reverse context. Mr A identified the central theme of the matter as the allegations of abuse of E by Ms Courteney and, to a lesser extent, the mother as well. He recorded, accurately, that the allegations had been investigated by the various bodies identified. He referred to the father’s reporting of the allegations to the various people identified in paragraph 31 and then sagely recorded:
Clearly something doesn’t add up.
Mr A then said that although it was always possible that the appropriate agencies had come to an incorrect conclusion, that is unlikely with the wealth of information which the father believes they have available to them. He discussed at paragraph 34 the possibility of “rogue operators” but rejected, and sensibly so, that possibility. Mr A then explored the father’s expectations of the trial which was, at that time, pending. With respect to him, he very accurately recorded both the realities of life and the father’s perceptions of the process which would take place at trial.
It can be said that no stone has been left unturned in the pursuit of the truth, with respect to the father’s allegations. All relevant authorities and professionals who could have been involved have been. The extent of the disclosures and perhaps, more significantly, the absence of disclosures on the abundance of occasions when disclosures have been possible, the background to the making of the disclosures that were made and the father’s, perhaps unwitting, involvement in the contamination of those disclosures, together with some other matters to which Dr W specifically referred yesterday, leave no room for thinking, as the father may continue to, that in some way there is more out there that the system has failed to pursue and present. The Court is not persuaded that such is the case.
Mr A recorded that:
The father’s belief that the sexual abuse allegations are true appear to be so entrenched that it seems there is almost nothing, if any such evidence could even be found, that could dissuade the father from believing that it was not occurring. The strengths of the father’s beliefs about the sexual abuse may be entirely validating by the evidence.
That has not happened. On no view of the evidence have the father’s views been validated, much less entirely validated.
Mr A expressed a concern about the strength and resilience of the father’s views about this issue in the event that they are not supported by the evidence. The father’s views are not supported by the evidence. The evidence does not even give rise to suspicion, much less proof that there has been inappropriate behaviour on the part of the mother and/or her partner towards any of the children.
The concern is, as Mr A identified and Dr W also identified, what follows from that; the likelihood being that the father will simply, to use the colloquial, just not let go of these allegations. The concern is that the father won’t give up, no matter what the Court says, despite, the Court accepts, his desire to do so. Mr A identified a number of reasons why he had concerns about E’s disclosures and the likely veracity of them. The Court has touched on some of these, but in paragraphs 39, 40 and 41 Mr A provides explanations which the evidence before the Court suggests to be well-founded.
Some of these have been referred to. They include the making of the disclosures in the presence of the father in the main or in circumstances closely following upon the father having been with the children and said things to them which were likely to influence what they might have said, and have made it likely that they would say things that they would perceive he would like to hear. The absence of disclosure, and absence of conduct identified by Mr A are also significant matters.
There is strong cross collateral support for Mr A’s evidence in the evidence of Dr W, and for the evidence of Dr W in the evidence of Mr A. There is absolutely no suggestion that, to use the colloquial, they put their heads together. Indeed, the evidence does not, as the Court recalls, suggest that they have ever even met or spoken about this case.
It is unlikely, if E was being abused in anything like the manner alleged and with anything like the frequency alleged, that this would not have come out in some way; either by way of disclosure to a teacher, inappropriate behaviour in the playground or something of that kind. Similar observations apply with respect to H if he had actually seen what he appears to have suggested that he has. As noted earlier, there are potentially innocent explanations suggested by the evidence. The father is unable to accept the possibility of any of those.
Mr A went on to record what he regarded as several troubling observations with respect to the mother. Whilst the Court’s findings in this matter are overwhelmingly more favourable to the mother than to the father, it ought not be thought that the Court takes the view that the mother has nothing to answer for in terms of the dynamics of the problematic relationship between herself and the father.
The matter of significance, however, is that in the cauldron of the trial, the mother, as has Ms Courteney, appears to have, whether by maturation, thought or whatever, moved on in terms of their capacity to make things work in the interests of the children and to rise above their understandable antipathy towards the father. The mother, in fairness to her, has not sought to suggest that the children have other than a good relationship with the father, or that he is not important in their lives, or that they ought not have a relationship with him. Her sole and abiding point, and understandably so, has been that she just wishes that the father would get on with life with his sons as sons and cease his relentless pursuit of allegations which he knows he can not prove and which she knows are not true.
The conclusions and recommendations in Mr A’s report focussed the issues for trial very helpfully and it is unnecessary to restate them in full, except to say that if the Court, as Mr A recorded, paragraph 53:
If the Court took a different view from [the father] in relation to the sexual abuse allegations, serious concerns would arise. In that, the father’s abiding belief could become an emotionally negative and destabilising influence from which the children may need to be protected.
Mr A identified that it would be up to the father to choose how he managed an adverse outcome, but it would be hoped he would ensure that his emotional influence supported and nurtured the children, including their relationships with their mother and Ms Courteney. The Court has real reservations, supported to a great extent by the evidence of Dr W, as to the father’s ability to accept an adverse outcome and move on and cease to pursue these allegations.
The father’s belief that he holds no responsibility whatsoever for the poor relationship between himself and the mother, which is a quite unrealistic view, is also troubling, as Mr A recorded, and represented a serious failure of judgment on the father’s part.
Dr W referred in his report to Ms D’s report which he said he received in, or it appears to be dated 11 July 2008. Where he got that from is not entirely clear but it does seem to give that a time frame which is not apparent on the face of the report. Dr W, at page 14 and 15, subparagraph (e), Psychiatric History, set out a number of matters which emerge from the report of Ms D. In cross-examination, Dr W said that although he and Ms D came from different perspectives, namely the psychiatric in his case, the psychological in Ms D’s case, her conclusions appeared to be sound and consistent with his own observations. Dr W reiterated that the father lacked insight into his shortcomings.
Dr W further reported in his written report, at page 29 under the heading “Conclusions” and “Recommendations”, that H needed counselling, for about six months, Dr W said in oral evidence, irrespective of where he was living, that L seemed to be a more robust child and that E was also a fairly robust child by nature, “But, of course, he has been much more directly involved in his father’s preoccupation. This seems to have settled down more recently with the interruption in the visits than the imposition of supervision”.
Dr W reported that the children appear to have quite a warm and apparently reasonable relationship with both parents, but that the children became unsettled when their parents were in the vicinity of each other. That is undoubtedly an astute observation. Dr W did not have regard to the views of the children, given the pressure they have been under for the past 20 months, and he recorded that:
Neither parent had a satisfactory attitude to their obligations, duties and responsibilities as parents.
In his report, Dr W was quite critical, no doubt with good cause, having regard to the mother’s presentation at the time, of the mother in relation to matters of alcohol and violence in her home. The Court, having heard evidence in relation to these matters, seen the witnesses, observed their demeanour and also had regard to the circumstantial evidence, is able to make a more benign finding with respect to each of those topics and the mother than was Dr W.
It is unlikely, given the cross-examination of the mother, the preparation, the documentation and the thoroughness of the agitation of the issues before this Court, that if the mother and/or Ms Courteney had skeletons in the closet of the kind that suggested themselves to Dr W when he interviewed the mother, the Court would not have heard evidence of those things. As noted earlier, the absence of evidence is often more significant than its presence and, in a number of respects, that is undoubtedly so in this case.
Dr W referred to parenting capacity and recorded what he considered to be the shortcomings of each of the parents. But at page 31, line 3, and following in that first full paragraph, Dr W recorded a number of concerning matters with respect to the capacity of the father.
In cross-examination yesterday, Dr W said some further things about that, to which reference will shortly be made. As noted a few moments ago, the evidence before this Court, whilst not suggesting that the mother could never, on occasion, be a highly volatile and aggressive person and, at times, given to excessive consumption of alcohol, does not support a finding in those terms, with respect to any of those descriptions.
A matter of significance also which, not surprisingly, has been overshadowed the allegations in these proceedings, is that no one suggests that the mother’s teenage children of a prior relationship, who are now aged 16, and have been parented by the mother before or from virtually the time she became an adult and have been successfully raised, it seems, with little assistance from others, has been taken into account. How that could have occurred in the absence of considerable parenting skill on the mother particularly over the difficult years which have followed since 2003 is difficult to suggest. Those children have at all times lived in the environment in which the alleged abuse has occurred.
Dr W said in his evidence the past is the best indicator of the future, albeit he said that with respect to the father. That maxim is also applicable to the mother and it is of considerable significance that nowhere in these proceedings has it ever been suggested that, despite the extraordinary abuse that is asserted to occur in full view of anyone wishing to see it in the mother’s home, it has never been suggested by Y or T that anything of that kind occurs. Nor is there anything in their behaviour which suggests that they have been raised in a household where such unacceptable and deplorable conduct occurs.
That is part of the broader theme, of course, that wherever one looks, as Dr W reminded the Court yesterday, there is simply no evidence of either acting out, disclosing to or otherwise behaving in a way that might suggest the likelihood of abuse in the home of any of the five children to whom the evidence in this case has referred.
Dr W, in oral evidence, referred to the stable framework which he thought Ms Courteney provided in the household of herself, the mother and the children.
In his report, Ms Courteney was described as providing the “scaffolding” for the family structure, albeit probably along a fairly authoritarian line when she is present. The Court was left with the clear impression that Ms Courteney is a figure of stability and, with respect to her, appears to have been very successful in the male dominated world of business and she does set boundaries. The Court is left in little doubt about that, but equally, it wonders why that is necessarily a bad thing. Dr W did not appear to ultimately suggest that it was.
The picture emerges quite clearly of a caring and affectionate relationship between the mother and Ms Courteney, which has stood the test of time and the test of very trying circumstances over a long time. Indeed, for the bulk of the time the mother and Ms Courteney have been together, there have been issues, to put it mildly, involving the father. Dr W also, at page 32, third paragraph, commencing at about point 5, referred to what does seem to distinguish the parents and is a matter to which reference has earlier been made in the context of alcohol and the Court’s conclusions about that.
Dr W, at page 33, referred to his concern that the father was untested as a parent which, indeed, he is. Moreover, just what his arrangements would be is less than clear because, for whatever reasons, he and Ms N have not been entirely forthcoming about their relationship and how they would look after the children if they lived with them or their father. Dr W was also concerned that the father’s:
…vendetta against the mother will continue and she will experience the same difficulties spending time with the children that he has over the years.
It is difficult to see how, given the strength of the father’s belief in the guilt of the mother, that Dr W could be wrong about that. Dr W continued at page 34, from the top of the page throughout that page, to chronicle his concerns about the father and what is likely to happen in the future. The evidence before the Court provides substantial factual underpinning for the concerns Dr W there expressed about the father.
As noted previously, to the extent that Dr W concluded the mother to have been guilty of aggressive and intemperate behaviour, particularly during relatively frequent incidents of intoxication, it hardly seems surprising that the father could have considerable doubts about her parenting abilities. The evidence does not establish either the facts as suggested in that passage of Dr W’s report or that the father really has had such complaints or concerns.
It is not insignificant that, despite seven years of vigilance, the father has been able to present so little outside the often restated allegations of abuse in relation to the mother’s parenting skills. Given the father’s vigilance and its longevity, it is unlikely that if the mother had blotted her escutcheon in any significant way over the past seven years the Court would not have heard far more about it than it has.
In oral evidence, Dr W reiterated that the children loved their father and that he did not suggest that they should not spend time with him. Dr W was not enthusiastic about the Director General’s proposal of four occasions a year of recognition contact. Dr W’s view was that the arrangement should be more substantial than that, if possible, and that the children needed to have contact with their father and know him as a key part of their lives. There is no specific expert opinion evidence of which the Court is conscious in this regard, but common sense suggests that, quite apart from the fact that the father is the children’s father, given that they live with their mother and their mother’s female partner and that they are male children, some significant exposure to an appropriate male role model would be to their benefit.
That benefit must be referrable to the appropriateness of the role model. Dr W was of the opinion that the father’s conduct could constitute systems abuse if he can not substantiate the basis of his complaints. The most charitable view the Court can take is that in the absence of a hearing at which those representing him could throw everything they had into the fight in an endeavour to prove that his concerns have substance, the father can not be criticised for not abandoning those concerns. The evidence suggests however that no matter what was or was not presented in this trial, anything short of the finding the father wants will not be seen by him as the system having done the job. He is likely, the evidence reveals, although he perhaps wishes it were otherwise, to struggle to cease to maintain the rage.
Dr W gave some helpful evidence about the probabilities of the abuse and to briefly refer to that, it included the absence of the elder twins making any complaint or otherwise in any way suggesting that the allegations have substance. It is Dr W’s evidence and common sense both suggest, that it is highly improbable that if anything of the kind asserted to be occurring with the boys in their mother’s household was happening, somehow or other that would not have emerged either through the elder twins, one of the children to a school counsellor, a teacher, another child who reported it to a parent, inappropriate behaviour of a sexualised or other kind. It is as though these allegations have been made in a complete vacuum.
Dr W was also concerned, apart from the absence of complaints or behaviour supportive of the allegations being true, about the father’s observations of the children, the father’s involvement of the children in the making of the allegations. He reiterated that the observations he made of L and H were not what he would have expected if the allegations with respect to E were true. Dr W explained that he would not expect those boys to be happy as they are in the mother’s home if that abuse was occurring.
Moreover, E did not display behaviour of the kind that would be expected from a child who was being abused in the way alleged. Dr W explained if E was being abused in the ways alleged by the father, it would be expected to show in his behaviour. It is to be remembered that there has been in excess of two and a half years since the father became concerned, almost two years since disclosures were made at the Police Station in December 2008.
Dr W further said there was a high likelihood that E would have acted out in his behaviour somewhere along the line if the allegations were true. It is, of course, a matter of record that there is no suggestion that E has. Dr W further suggested that the multiple inquiries which have been made could reasonably have been expected to have revealed something supportive of the father’s claims if they were true and he would be surprised if the allegations were true and the inquiries had not yielded anything.
Dr W was clear that he was not able to conclude that any abuse had occurred, although the climate which existed was one which could readily have led to allegations being made, rather than allegations being true. Dr W was not surprisingly concerned when the contents of exhibit DG6, that is the father’s statements in June this year to Interrelate, were conveyed to him. They reinforced his impression that the father was given to impulsive and reckless behaviour.
Dr W gave evidence supportive of the Court’s conclusion that neither the father’s parents nor Ms N were or was or any of them was a suitable supervisor for contact. Dr W said that, “The father and Ms [N] bounce off each other with these ideas.” Having seen and heard Ms N, there is little doubt that, in the absence of any forensic basis upon which she could do so, Ms N would actively support the father’s concerns and his agitation of them.
Dr W said that he could not predict when the father might come to terms with an adverse outcome in terms of his allegations. He reiterated the father’s capacity for impulsiveness and recklessness and that it was conceivable that the father would, if having unsupervised time with the children, in those circumstances be likely to do and say things which could undermine the children’s relationship with their mother and her partner and, in turn, that relationship. The Court is in little doubt that unsupervised contact at this time would be likely to have a significantly adverse impact upon the mother’s parenting capacity and, thus, the welfare of the children.
Dr W said, as noted earlier, that the father was likely to continue to maintain the rage (not his words) as the past was the best predictor of the future. The Court accepts, having regard to the evidence of Dr W and the other evidence to which reference has been made, that although the father may wish it otherwise, he lacks the capacity to take on the chin an adverse decision with respect to his allegations, such is the enormity of the investment he has in them at this time.
The Court, having by that time heard all of the lay evidence over a series of days in cross-examination of him, raised with Dr W two topics in the hope that there might be some way of averting the very unsatisfactory outcome of potentially years of supervised contact. There were two ways the Court perceived that outcome may have been averted. The first was whether the children would in the foreseeable future be of an age and maturity where they could themselves basically tell their father to leave the allegations of abuse alone and stop, to use the colloquial, flogging a dead horse with the allegations.
Dr W’s expert opinion evidence provided no joy there although, as counsel for the father pointed out, he did appear to say in answers to questions from the Court, that perhaps in two or three years time the boys would be likely to have that maturity, whilst suggesting something a bit different later, whether that be at the start of high school at perhaps 12 years of age or teenage years. Whatever Dr W ultimately intended to convey, on no view of his answers could the Court provide a date by reference to the boys’ ages at which supervision would cease to be required.
The other way the Court contemplated perhaps being able to ultimately facilitate an end to supervision was if there was a recognised course of counselling or therapy which could assist the father to accept the adverse decision and move on. Dr W was able to provide no comfort there; his evidence being that there was no counselling or therapy of which he was aware that would be effective to do that.
In cross-examination by the ICL, the third possible avenue of escape, as it were, was also effectively shut down; Dr W attesting that no counselling that the children could have or undergo would be effective to enable them to resist the father’s lobbying or urgings with respect to abuse.
The proceedings are governed by Part VII of the Family Law Act 1975 (Cth) “the Act”. As noted earlier and as all counsel in the trial have sensibly acknowledged, the findings with respect to the allegations of abuse against the mother are pivotal to, if not decisive of, the question of with whom the children should live.
As is also apparent, if positive findings were made in terms of the alleged abuse then, and as Mr A noted last year in his report, the father’s stance would have been vindicated. As everyone has recognised, however, if the father’s allegations were not found established, it would not be the case that he could simply walk away from the implications of his persistence with those allegations. His likely reaction in the future would become a matter of significance. It is not, nor has the Court approached it as a single issue or two issue case, although the two issues just referred to overshadow everything else.
The case must still, as the High Court has made clear, be determined by reference to the statutory provisions and they are contained in Part VII of the Act. The first of those is s 60B, the objectives of the Act. The first of those objectives is that children have the benefit of both their parents having a meaningful involvement in their lives, subject to the important words which follow:
…to the maximum extent consistent with the best interests of the child.
There is no doubt in this case that, other things being equal, the children would benefit from having far more time with the father and in quite different circumstances to those which the Court is going to order. The reason the Court is not able, in this case, to maximise the potential benefit for the children of a meaningful involvement in their lives of their father is that so doing would not, on the evidence before this Court, be consistent with their best interests. It might be consistent with the best interests of their father but, regrettably for him, that his not what the legislation requires.
The second objective which is relevant in this case is to protect the children from physical or psychological harm, from being abused or exposed to abuse, neglect or family violence. The Court is not persuaded that for the children to continue to reside with their mother would be to expose them to any of those risks.
On the other hand, the time the children spend with their father in order to protect them from the risk of psychological or emotional, at least neglect, if not abuse, is a matter which looms large in the proceedings, given that the evidence before the Court establishes on the balance of probabilities that the father is likely to continue to lobby, to agitate, to seek to forensically advance his abuse allegations, notwithstanding that after a trial of those issues the Court and, indeed, all of the experts who have ever had anything to do with the allegations, have not found them proved.
It is an objective of the Act to ensure that children receive adequate and proper parenting to help them achieve their full potential. There is a nexus between that objective and the matter just referred to in relation to the father and that is this. The mother has the capacity, the demonstrated capacity to provide adequate and proper parenting to help the children to achieve their full potential in life. The Court must be careful in the circumstances of this case, given the adverse findings made with respect to the father’s capacity to refrain from continuing to re-agitate allegations of abuse, which are no more substantiated now than they were when first made.
The father could diminish the adequate and proper parenting available to be provided by their mother if he was simply to have the children on an unsupervised basis; at least, unless and until something major changes in terms of his capacity to overcome his need to agitate and re-agitate and go on agitating his allegations of abuse in the interests of the children. The third objective is to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. The mother has the capacity to do that. That capacity, the evidence suggests, is likely to be diminished if, and only if, she is subjected to more of what the evidence reveals in relation to the allegations of abuse made by the father.
There are other principles underlying the objects. They appear in s 60B(2). It is unnecessary to refer to those in detail, save to record that each and every one of those is expressly stated to be viewed in the light of a child’s best interests, or to not apply when it would be contrary to a child’s best interests. These include the sharing of duties, the future of children and matters of that kind.
It is then appropriate to refer to s 60CA, which makes the children’s best interests the paramount consideration, and s 60CC, which sets out the matters to which the Court must have regard when determining the best interests of children.
Section 65DAA of the Act is a matter which assumes potential significance but ultimately does not in the circumstances of this case. Section 65DAA refers to the presumption in favour of equal shared parental responsibility and the consequences of that presumption being preserved. As noted earlier, no reference to the best interests of the children in this case could result in anything but an order for joint parental responsibility. The only way that an order for sole parental responsibility could be made would be as some kind of sop to the unsuccessful parent. That is not a legitimate basis for preserving the presumption. It is not in the best interests of the children to preserve the presumption and it is rebutted, pursuant to s 61DA(4) of the Act. That is largely because, as noted earlier, the parents can not cooperate and communicate. Moreover, the likelihood of the father continuing to maintain the rage with respect to the allegations of abuse and potentially undermine the mother’s parenting capacity and, thereby, the welfare of the children, provide compelling reasons for rebutting the presumption.
Section 60CC of the Act is relevant. The primary considerations have been addressed a short time ago. It is unnecessary to refer to them again. The additional considerations require consideration. The children’s views are not relevant, for the reason Dr W indicated. What is significant, perhaps, is that, notwithstanding the allegations made against the mother and her partner, at no time has any of the children, by behaviour or otherwise, indicated unhappiness, apprehension or anything of the kind in the mother’s household. There is an air of unreality about finding the allegations of abuse have substance, whilst on the other, having regard to the unchallenged evidence of three happy, reasonably well-adjusted - in the case of two - children and their general wellbeing in the mother’s home. The absence of adverse evidence in relation to schooling and matters of that kind are also relevant in that regard.
The nature of the children’s relationship with each parent and other persons is relevant. The mother has been the children’s primary carer throughout their lives. The father is an unknown quantity in that regard. His arrangements are unclear and, with respect to him, his evidence lacks candour in terms of exactly what they are. To sever or disturb, perhaps more correctly, the primary attachment of the children to their mother would be likely to be at considerable cost. So too would severing their attachment to their elder siblings, with whom they have lived all their lives and with Ms Courteney with whom, for all practical purposes, the children have lived for virtually all of their lives.
The children have never lived with Ms N. They have never been looked after by their father. The father’s history with his elder children of a prior relationship does not provide any comfort for him in terms of his likely capacity to provide for the children. Objectively, if, and only if, the allegations of abuse levelled at the mother and/or her partner were found proved, could the Court possibly contemplate changing the primary residence of the children to the father.
Subsection (c) is superficially neutral except that, notwithstanding all that has gone on, the mother still recognises the importance of a relationship between the children and their father and has not sought to terminate that relationship. Indeed, all she has sought to do is to create an environment in which the children can benefit from contact with their father without, so far as it can be avoided, being subjected to ongoing probing in relation to the father’s allegations.
The likely effect of change of circumstances is relevant. Objectively, it is difficult to imagine how, unless moving the children from their mother’s home removed them from abuse, there could be any possible benefit for the children in taking them from the only home and the only relationships which they have known all their lives and placing them in a situation which is completely untested and unknown. To reiterate, if, and only if, the allegations of abuse against the mother were proved, could a change of residence of these children be contemplated.
Subsection (e) is not relevant. Subsection (f) is. The mother has faults. There is no doubt about that. She recognised those in the course of her evidence, as did Ms Courteney. The father, on the other hand, quite apart from his unknown capacity to provide stable, consistent and effective parenting of the children, does have the very considerable disadvantage of his unshakable belief in the guilt of the mother and/or Ms Courteney, with respect to the alleged abuse of the children.
The maturity, lifestyle and background of the children are relevant. For all practical purposes, all their lives these children have known the household of their mother, Ms Courteney and their elder siblings. Just what their lifestyle would be with the father is unclear. For example, would they have any relationship with the older children of their father who are, after all, their siblings? What would their relationship with Ms N be? What is the relationship of Ms N and the father? The children’s relationship with their mother would not be assured. Again, at the risk of being needlessly repetitive, there is so much uncertainty on the father’s side that a change of residence could only be contemplated if leaving the children with their mother and Ms Courteney meant that they were to continue to be exposed to abuse or the risk of it.
The Court does not understand that either party identifies as an Aboriginal or Torres Strait Islander person. Subsection (h) does not appear to be relevant. Subsection (i) has largely been dealt with.
The one attitudinal matter, a matter relating to responsibilities, which looms large above all others in this case, is the father’s unshakable believe in the mother’s guilt and his probable inability to rise above that, notwithstanding that the Court has found the allegations unproven. What then, is in the best interests of the children? But for the Court’s inability to find that the father can put these allegations behind him and spend time with his children, enjoy their company, watch and help them grow and develop without consciously or otherwise maintaining the allegations, there is little doubt that he would spend time with the children unsupervised each alternate weekend and for half of school holidays.
Regrettably, the evidence leaves no scope for finding that such an order would be in the children’s best interests. Indeed, the evidence establishes that such an order would be likely to be to their detriment in numerous ways, leading right through to and including the very stable, enduring and essentially satisfactory relationship they have with their primary carers, their mother and their mother’s partner.
The primary consideration, or the paramount consideration the statute makes clear is the welfare of the children. Sometimes that means orders are made which may seem harsh or unfair to a parent. If that is the price for making orders in the best interests of the children, then the legislation makes clear that is what a Court must do. The Court has considered the possibility of, in effect, leaving a window of opportunity for the father. On balance, the Court is not persuaded to do other than make final orders. That is not to say that the door is thereby forever shut on the father. Nor is it to encourage him to bring another application at some future time.
Objectively, having regard to the expert opinion evidence of Dr W, to which reference was previously made, there is only one person capable, if he is capable, of changing circumstances so as to remove the necessity for contact to be supervised, and that person is the father. The evidence does not suggest that he is capable, at this time, of placing his own beliefs and feelings below the needs of his children in his hierarchy of thoughts.
Dr W’s evidence provides no rational basis for either finding that the father could undergo some therapy which would change that, or that the children could undergo, either by maturation or counselling, changes which would enable them to successfully resist the father’s lobbying. In the circumstances, although it may potentially mean supervision for years to come, and acknowledging that supervised contact for a few hours a fortnight is less than ideal, the alternative is even less ideal.
The Court can not, in the best interests of the children, do other than order supervised contact. Without wishing to either suggest what might be decided or fuel hopes in the father or apprehensions in the mother, objectively, if, in time, the father were able to convince the mother or a Court that he had moved on and was able to put these unsuccessful allegations behind him, the basis for continued supervision would dissolve. He may never be able to do that but the evidence precludes the Court from finding, at this time, either that he will or that he will be able to do so within a particular time.
The submission of counsel for the father that a sunset clause be put in the orders lacks an evidentiary foundation. The submission of the Director General that what is generally described as recognition contact only should be ordered does not, in the Court’s view, adequately reflect the objectives referred to in the Act. That is to say, it does not maximise the relationship between the father and the children or the meaningful role of the father in the children’s lives in a way that is consistent with the children’s best interests.
There is something in the submission of counsel for the ICL that it is in the children’s interests and, indeed, the mother’s interest to keep the father “inside the tent”, as that expression is generally used in politics. On balance, and whilst accepting that the outcome is less than desirable, the Court concludes that contact fortnightly for up to three hours, supervised by Interrelate on the terms and conditions imposed by Interrelate, is in the children’s best interests.
Rather than expose the mother and the children to the risk of the father seeking to see the children outside the context of those orders, the Court will, as foreshadowed during submissions, make an order that the father only attend the schools attended by the children when invited to do so by the school or the children’s mother or on any open days held by such schools. The formal orders will be handed down very shortly but, in essence, they provide that all previous parenting orders be discharged, that the mother have sole parental responsibility for the children, the father spend time with the children for up to three hours in each two week period on the terms and conditions basically determined by Interrelate. They are set out in the order.
The Court will order that the mother deliver the children to Interrelate at the beginning of the father’s time there and pick them up at the end of the time, as arranged by Interrelate and the mother. The mother is to contact Interrelate, undertake all intake procedures required by them. I omitted to mention that the father is to meet the costs of Interrelate in supervising. That is essentially because of the absence of anything resembling an appropriate level of child support being received by the mother.
To visit the cost of supervision on the mother, in those circumstances, particularly when the need for it arises solely from the findings the Court has made with respect to the father would be quite unjust and unfair. The Court will make a series of orders directed to the mother as sought by the Director General; in essence, relating to the children’s regular attendances at school, continued counselling with Ms O or Interrelate and matters of that kind.
I certify that the preceding one hundred and fifty seven (157) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 19 October 2010.
Associate:
Date: 4 November 2010
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