Cockyne and Cockyne
[2012] FamCA 449
•15 June 2012
FAMILY COURT OF AUSTRALIA
| COCKYNE & COCKYNE | [2012] FamCA 449 |
| FAMILY LAW – CHILDREN – parental responsibility – with whom children spend time and communicate – two children aged six and fours years - allegations by the mother of sexual abuse of the youngest child by the father and the father’s female flatmate – insufficient evidence to substantiate allegations – where the mother was unduly anxious about the children and was predisposed to perceive events affecting the children in a context of their exposure to the risk of some form of harm in the father’s care – relative unwillingness or incapacity of the mother to promote the children’s relationship with the father - finding father and his flatmate do not pose any unacceptable risk of sexual abuse to the children - where both children have a meaningful relationship with the father – presumption of equal shared parental responsibility applied – where practicality and the best interests of children dictate an arrangement for them to live primarily with the mother and spend substantial and significant time with the father – orders made for parties to have equal shared parental responsibility – orders made for children to live with the mother and to spend substantial and significant time with the father. |
| Evidence Act 1995 (Cth) s140 Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 69ZT |
| Goode & Goode (2006) FLC 93-286 |
| APPLICANT: | Ms Cockyne |
| RESPONDENT: | Mr Cockyne |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 2907 | of | 2011 |
| DATE DELIVERED: | 15 June 2012 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Justice Austin |
| HEARING DATE: | 21, 22, 23 & 24 May 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr M. Graham |
| SOLICITOR FOR THE APPLICANT: | Catalyst Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms D. Burns |
| SOLICITOR FOR THE RESPONDENT: | Penmans Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms K. O'Rourke |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
All former parenting orders relating to the children A Cockyne, born … May 2006, and O Cockyne, born … February 2008, (“the children”) are discharged.
The mother and father shall have equal shared parental responsibility for the children.
The children shall live with the mother.
The parties shall take all reasonable steps to ensure the children spend time with the father as follows, or as otherwise agreed:
(a)During New South Wales public school terms, each alternate weekend from 7.00 pm Friday until 5.00 pm Sunday, or 5.00 pm Monday if Monday is a public holiday, commencing on the first Friday of each school term.
(b)During New South Wales school holidays, except the Christmas school holidays, for the first half of such holidays.
(c)During the New South Wales Christmas school holidays, for the period of two weeks ending on the last Saturday of the holidays.
(d)From 9.00 am Christmas Eve until 3.00 pm Christmas Day in each even numbered year.
(e)From 3.00 pm Christmas Day 2013 until 5.00 pm on 2 January 2014, and each alternate year thereafter.
(f)From 9.00 am until 5.00 pm on Father’s Day.
Unless otherwise agreed, for the purpose of implementing Order 4 hereof the mother shall deliver the children to the home of the father at the commencement of the time to be spent by the children with him and the father shall deliver the children to the home of the mother at the conclusion of the time spent by the children with him.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:
(a)The father each Tuesday, Thursday and alternate Sunday when the children are living with the mother, between 7.00 pm and 7.30 pm, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time.
(b)The mother each Tuesday, Thursday and alternate Sunday when the children are spending time with the father, between 7.00 pm and 7.30 pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.
(c)The parent with whom they are not then staying, on the children’s birthdays, between 5.00 pm and 5.30 pm, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose, and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s calls on that number at that time.
The mother is restrained from causing or permitting the youngest child to attend any further counselling sessions with Dr C.
Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.
Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.
Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate.
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 parties shall forthwith enrol themselves to commence, and thereafter participate in and complete a post-separation parenting program, subject to the approval of that program by the Independent Children’s Lawyer.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 or compliance with Order 12 hereof, whichever is the latter.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cockyne & Cockyne 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: NCC 2907 of 2011
| Ms Cockyne |
Applicant
And
| Mr Cockyne |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
The two children who are the subject of these parenting proceedings are aged six and four years respectively.
The father wants both he and the mother to have equal shared parental responsibility for the children, for them to live with the mother, and for them to spend substantial and significant time with him.
The mother agrees to that proposal – provided the father did not sexually assault the youngest child and does not pose an unacceptable risk of sexual abuse to either child. The mother’s concern about the risk of such abuse posed by the father was therefore the focal point of the litigation.
Background
The parties married in November 2004 and their children were born in May 2006 and February 2008.
Separation occurred in March 2011, following which the mother and children remained in occupation of the former matrimonial home on the Central Coast of New South Wales. The father vacated the home and rented elsewhere on the Central Coast.
The children spent time with the father in the first few months following separation, but the parties are at odds about the frequency and ease of implementation of the arrangements. It is unnecessary to reach any concluded view about that area of controversy.
On 29 June 2011 the youngest child made a disclosure to the mother which the mother perceived to mean the child had been sexually assaulted by both the father and his female flatmate. The mother then refused to permit the children to spend any time with the father.
In August 2011 the mother relented and allowed the eldest child, but not the youngest child, to spend time with the father once per week, but only under supervised conditions. The mother withdrew from that arrangement in October 2011.[1]
[1] Family Report, par 11
These proceedings were commenced in November 2011 and shortly afterwards, on 16 November 2011, the parties agreed upon interim parenting orders which were to prevail until the proceedings could be allocated an interim hearing.
The temporary orders provided for the children to live with the mother and for only the eldest child to spend time with the father for two hours each Sunday under the supervision of the maternal grandfather. The father was restrained from contacting or approaching the youngest child. Similarly, the orders provided for the eldest child but not the youngest child to communicate with the father by telephone.
The interim hearing was to proceed on 21 December 2011, but was averted by the parties agreement to further interim orders providing for the discharge of the orders made on 16 November 2011 concerning the time spent by the eldest child with the father and the restraint upon any interaction between the youngest child and the father, and replacement with orders requiring both children to spend supervised time with the father for four hours each Sunday.
The principal supervisor under the agreed orders was the maternal grandfather, but he withdrew his voluntary services in January 2012 causing interruption to the interaction between the children and the father. The children resumed spending time with the father at the Central Coast Contact Centre in March 2012.[2]
[2] Family Report, par 10
The father still lives on the Central Coast.[3] The mother and children now live with the maternal grandparents in the Lake Macquarie region, having moved there in October 2011 following sale of the former matrimonial home on the Central Coast.[4]
[3] Family Report, par 13
[4] Family Report, par 14; Mother’s affidavit, pars 86-87
The parties’ homes are separated by driving time of approximately one hour.[5]
[5] Family Report, par 15
In readiness for the trial the mother deposed in her affidavit:[6]
I also know that the children need their Father in their lives and were it not for the allegations and disclosures [of sexual assault] made herein I would have had no hesitations in entering into Consent Orders with [the father] regarding him having regular time and communicating with [the children].
[6] Mother’s affidavit, par 128
The mother’s counsel announced at the commencement of the trial that no positive finding was sought to the effect that the father had sexually assaulted the youngest child in the past. Instead, the mother sought only a finding the father constituted an unacceptable risk of sexual abuse to the children. On that basis, the father did not apply under s 69ZT(3) of the Family Law Act 1975 (Cth) (“the Act”) to invoke the rules of evidence concerning any aspect of the evidence adduced in the trial.
Proposal and primary evidence of the mother
The mother’s proposal was set out in her Application filed on 9 November 2011. Her proposal was submitted in the alternative, depending upon whether the Court found the father constituted an unacceptable risk of harm to the children.
In the event of a finding that he did, the mother proposed his excision from their lives (Order 4).
In the event of a finding that he did not, the mother proposed the children spend time with him each alternate weekend, during school holiday periods, and on Father’s Day (Orders 2.1-2.5) and that the children communicate with him regularly by telephone (Order 2.6). During cross-examination the mother said she would endorse the father’s proposed orders, subject to minor modifications, if the Court found he posed no unacceptable risk of abuse to the children.
The mother has always asserted the children should continue to live with her. Although she made no proposal about the allocation of parental responsibility, her conditional adoption of the father’s proposal entailed her agreement to allocation of equal shared parental responsibility.
The mother relied upon the affidavits filed by her and the maternal grandmother on 9 March 2012.
Proposal and primary evidence of the father
The father pressed for the orders set out in two separate minutes of orders tendered by him during the trial.[7] With one notable exception, the orders were not at significant variance from those earlier proposed in his Response filed on 2 December 2011.
[7] Exhibits F1, F16
The orders set out in the two separate minutes of orders tendered by the father provided generally for:
a)The parties to have equal shared parental responsibility for the children (Orders 1, 6, and 7);
b)The children to live with the mother (Order 2);
c)The children to spend time with the father each alternate weekend, for two weeks in the Christmas school holidays, for one week in each of the other school holiday periods (Order 3), and on other special occasions (Order 4);
d)The children to communicate with the father by telephone several times each week (Order 4.8);
e)Restraint of the parties from allowing the children to be exposed to denigration of them (Order 9);
f)Requirement of the mother to seek out psychological therapy (Order 10); and
g)Restraint of the mother from allowing the youngest child to attend further sessions with her psychologist (Order 11).
The abandonment of the orders set out in the father’s Response meant the father no longer pressed his original proposal for an order compelling the mother’s return to live with the children on the Central Coast and her restraint from moving their residence again. When the father spoke with the Family Consultant in April 2012 he was reconsidering the appropriateness of such a proposal.[8]
[8] Family Report, par 18
The father relied upon his affidavit filed on 21 March 2012 and the affidavit of his flatmate, Ms T, filed on 5 December 2011.
Proposal and evidence of the independent children’s lawyer
The Independent Children’s Lawyer refrained from proposing any orders at the commencement of trial, indicating only that she accepted the opinions and recommendations of the Family Consultant.
The Family Consultant prepared a memorandum on 12 December 2011 and a Family Report on 16 April 2012. The contents of the Family Report were adopted by the Family Consultant on affidavit, but the contents of the earlier memorandum were not. She adopted the contents of both documents when she gave evidence.
The Independent Children’s Lawyer sought and was granted leave, with the consent of the parties, to adduce evidence from the treating psychologist of the youngest child, Dr C. That psychologist prepared a proof of evidence, which she adopted in evidence, and was tendered.[9]
[9] Exhibit ICL1
During final submissions the Independent Children’s Lawyer indicated general support for the orders proposed by the father, it being asserted the father did not pose any unacceptable risk of abuse to the children.
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 if there are reasonable grounds to believe that a parent has engaged in abuse of the child or 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 legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about 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 spending equal, or alternatively, substantial and significant time with each of the parents (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.
Best interests of the children – primary considerations
Section 60CC(2)(a)
The mother readily concedes the father loves both children and both children love him.[10]
[10] Mother’s affidavit, pars 15, 128; Family Report, par 41
The Family Consultant also witnessed the children interact with the father in a loving way in both December 2011 and April 2012[11] and she confirmed the children had responded similarly towards the father in recent supervised contact sessions.[12] The Family Consultant formed the opinion the children enjoy strong relationships with the father, despite the interruption of their regular interaction with him caused by the sexual assault allegations.[13]
[11] Memorandum, pages 5-6; Family Report, pars 70-77
[12] Family Report, par 78
[13] Family Report, par 106
I conclude the children each have meaningful relationships with the father from which they will each continue to derive benefit. The only reason they ought not continue to spend substantial and significant time with the father is if, as the mother fears, the father poses a risk of physical or psychological harm to them through sexual abuse. That issue is addressed under s 60CC(2)(b) of the Act.
Section 60CC(2)(b)
The mother’s belief about the father’s sexual abuse of the youngest child arose from her perception of the statements and the physical demonstration made by the child to her on the evening of 29 June 2011, at which time it should be remembered the youngest child was barely three years of age.
The children were in bed together at the mother’s home that evening at around 8.30 pm. They were awake when the mother went into the bedroom to check on them. Relevantly, the mother’s description of what then occurred is set out in her affidavit as follows:[14]
Mother: Why have you got [your pants] off?
Child: Daddy taught us how to.
(the mother helped the youngest child put her pants back on)
Child: Daddy and [Ms T] [father’s friend] play tickle tickle games.
(the youngest child then demonstrated a tickling motion with the fingers of each hand, starting at the top of her head and working down the sides of her face and body to her groin. The mother asserted she observed the child to then push two fingers “into her vagina in a penetrating fashion”, but on the outside of her pyjamas, as though she was masturbating).
[14] Mother’s affidavit, pars 25-29
The mother conceded the eldest child, who saw and heard the youngest child’s description, then said in response “She’s making this up” and “[the youngest child] is making up stories”, but the mother also alleged the youngest child protested the truth of her revelation.[15]
[15] Mother’s affidavit, pars 28-29
Notwithstanding the note of caution sounded by the eldest child, the mother immediately feared the youngest child had been sexually assaulted by the digital penetration of her vagina by the father and his female flatmate.
There can be no doubt about the mother’s belief concerning the complicity of the father’s flatmate in the abuse. The mother squarely told the Family Consultant in December 2011 she believed the flatmate had sexually abused the youngest child,[16] and again in April 2012 that the youngest child was at risk of harm in the flatmate’s home.[17]
[16] Memorandum, page 6
[17] Family Report, par 42
The mother was shocked by the youngest child’s revelation – so shocked she had to leave the room for some little while to compose herself.
The mother summoned the maternal grandmother for the express purpose of her being a witness to the revelation.[18] The maternal grandmother told the child:
Mummy asked me to listen to what you have been saying. Would you please tell me what you told her?
[18] Maternal grandmother’s affidavit, pars 22, 24
By that stage the youngest child was hiding beneath the bed clothes and had to be coaxed out.[19] In all probability the child was aware that what she had already explained to the mother had caused the mother distress and was important enough to warrant involvement by the maternal grandmother. It would have been very difficult for the youngest child to then resist the pressure for repetition and resile from what she had first said and demonstrated.
[19] Maternal grandmother’s affidavit, pars 23-24
In response to the maternal grandmother’s request the youngest child then kneeled on the bed and demonstrated to the maternal grandmother, even “more frantically”, similar hand movements to those she had earlier demonstrated to the mother. During the course of the demonstration the child said “Daddy and [Ms T] do this to me…tickle, tickle, tickle, tickle” and “Tickle me under there”, at which point she touched her genitals.[20]
[20] Maternal grandmother’s affidavit, par 26
The eldest child repeated to the maternal grandmother that the youngest child was “making up stories” and again the youngest child protested the truth of her report.[21] Possibly the youngest child was telling the truth, but equally she may simply have been adhering to a false story to save face.
[21] Maternal grandmother’s affidavit, par 27
Significantly, the eldest child’s denials of the truth of the youngest child’s statements were not confined to the moments following the youngest child’s disclosure to the mother and maternal grandmother. Rather they have been steadfastly maintained ever since. The eldest child repeated the denials to the maternal grandmother many weeks later[22] and even many months later.[23] He also maintained the denials when he spoke with the Family Consultant in December 2011 and, when confronted with that fact, the mother admitted to the Family Consultant the eldest child had “made the same comments to her from the beginning”,[24] and further, she was aware he did not believe the allegations.[25]
[22] Maternal grandmother’s affidavit, par 49
[23] Maternal grandmother’s affidavit, par 61
[24] Memorandum, pages 3-4
[25] Memorandum, page 7
Even as recently as February 2012 the eldest child was protesting to the maternal grandmother the youngest child was “making up the biggest whopper of a story in the world”.[26] The eldest child’s consistent rejection of the youngest child’s allegations has not seemingly influenced the mother and maternal grandmother to exercise much caution in reposing unconditional faith in the youngest child. Given the eldest child was in the company of the youngest child whenever she visited with the father, one might have thought his repeated disavowal of the youngest child’s story may have been given greater credence by the mother and maternal grandmother.
[26] Maternal grandmother’s affidavit, par 61
The maternal grandmother did briefly wonder whether the story had been fabricated,[27] and so apparently did the mother, because she initially telephoned Lifeline for advice and then contacted her own psychologist the following morning for an urgent appointment to seek advice about whether the disclosure was genuine or fabricated.[28] The mother alleged she was convinced by advice received from the psychologist that her suspicion was justified,[29] after which it seems both the mother and maternal grandmother dispensed with any prior doubts about the veracity of the youngest child’s reports. Their belief has been unshakeable ever since.
[27] Maternal grandmother’s affidavit, par 31
[28] Mother’s affidavit, par 32
[29] Mother’s affidavit, par 32
Immediately following the mother’s appointment with her psychologist on 30 June 2011 she contacted police and the children were then both interviewed the next day by police officers. The mother believed the police officers were from the NSW Joint Investigation Response Team (“JIRT”),[30] but the Family Consultant was doubtful they were JIRT officers. It is unnecessary to decide.
[30] Mother’s affidavit, pars 33-37
The tendered police records reveal the children made no disclosure of sexual activity when interviewed at length. The children only described tickling games with the father which caused the police no concern of any sexual impropriety.[31]
[31] Exhibit F6
The mother was told by police of the outcome of their interviews with the children, but it did not abate her concern. The mother was also told by police of their opinion the children had not been abused by the father, that she had misconstrued the game described by the youngest child, and their investigation was terminated.[32]
[32] Exhibit F6; Family Report, par 9
The NSW Department of Family and Community Services similarly determined not to investigate the allegations.[33]
[33] Family Report, par 8
Aside from the eldest child’s persistent repudiation of the allegation and the doubts of the police and the Department, there are numerous other components of the evidence which bear adversely upon the reliability of the youngest child’s purported story of sexual abuse.
On 29 June 2011, in response to direct questioning by the maternal grandmother, the children said the father taught them not to wear pants to bed.[34] However, when interviewed by police only two days later on 1 July 2011 the children conversely said that both they and the father slept in pyjamas at his home,[35] just as the father deposed without contradiction in these proceedings.[36] The mother has paid no heed to that curious inconsistency, which suggests a degree of unreliability about representations made by the children.
[34] Maternal grandmother’s affidavit, pars 28-30
[35] Exhibit F6
[36] Father’s affidavit, par 59
The father consistently denied the allegations of impropriety to the police,[37] the mother,[38] the Family Consultant,[39] in his affidavit,[40] and during his cross-examination. His evidence was credible and persuasive.
[37] Exhibit F6
[38] Mother’s affidavit, pars 60, 82
[39] Memorandum, page 6
[40] Father’s affidavit, pars 58-59
Inculpation of the father’s flatmate is integral to both the youngest child’s story and the mother’s allegations of impropriety. The allegations were expressly refuted by the father’s flatmate, both in her affidavit[41] and during cross-examination. She also proved to be an impressive witness. She is not a party to the proceedings so there was no obligation upon her to attend Court and expose herself to incrimination through cross-examination. Nor did she owe any particular allegiance to the father, who is no more than a friend as a consequence of him boarding in her home. The flatmate clearly had no consciousness of guilt and exhibited no bias in the father’s favour.
[41] Ms T’s affidavit, pars 14, 19
The children only stayed overnight with the father at his home, when his flatmate could possibly have been present, on approximately six occasions in the time elapsed between separation in March 2011 and the events on 29 June 2011. The first of those overnight visits occurred on 29 April 2011 and the last on 4 June 2011. Although the children were introduced to the father’s flatmate on the first of those occasions, the flatmate was otherwise not present at the home during the evenings the children slept over and on those nights the children slept alone in a separate bed from the father.[42] The flatmate credibly denied her participation in the father’s tickling games with the children on the few occasions she was present in the home with them.
[42] Father’s affidavit, pars 22-31; Ms T’s affidavit, pars 8-11
There obviously was a window of opportunity for the father and his flatmate to molest the youngest child, but it was very narrow. Acceptance of the integrity of the allegations of sexual abuse necessarily entails rejection of the evidence given by the father and his flatmate, but I do not accept the submission made by the mother’s counsel that they lacked veracity. Quite the contrary.
There were other aspects of the evidence that the mother apparently considered tended to support the validity of her beliefs, for otherwise the evidence would not have been adduced, but careful scrutiny of that evidence does not support her conclusions. Indeed, her counsel must accept that is so because no submission was made in reliance upon much of the subject evidence as proof of the alleged unacceptable risk of abuse. Nonetheless, the evidence should be addressed and explained.
The mother and maternal grandmother were concerned about the youngest child’s behavioural changes during 2011 but those changes are, objectively, no less attributable to the enormous ructions which occurred in her life at that time than to the allegations of her sexual assault. The attribution of the child’s behavioural changes to the father’s sexual assault is merely reflective of the maternal family’s search for corroborative evidence.
The major changes in the youngest child’s life in the months following the parties’ separation can be easily catalogued. Her interaction with the father was firstly curtailed after separation and then severed completely after 29 June 2011, she was often moved between the former matrimonial home on the Central Coast and the maternal grandparent’s home in the Lake Macquarie region after 29 June 2011, the mother removed her from pre-school in July 2011, she was moved from the former matrimonial home to live permanently with the maternal grandparents in the Lake Macquarie region in October 2011, she was enrolled to attend a new pre-school on the Central Coast at about that same time, and the mother later commenced a relationship with a new partner in December 2011 and began occasionally staying over at his home with the children. Changes of that magnitude would likely affect any child, let alone one as young as the youngest child, and could rationally account for the child’s regressive behaviour about which the mother and maternal grandmother were so concerned. The Family Consultant agreed that was so.
The mother adduced evidence of numerous occasions after 29 June 2011 when the youngest child made comments which seemingly reinforced her initial disclosure. For example, on 5 July 2011 she suggested the father grabbed her on the vagina,[43] on the weekend of 16 July 2011 she remarked it was “not good when someone touches your bits”,[44] on 15 September 2011 she said the father’s flatmate had touched her “privates”,[45] and on 11 February 2012 she said “[the flatmate] and Daddy hurt my bits”.[46] Although the mother inferred such statements were clear confirmation of the past sexual abuse committed by the father and his flatmate, the evidence of the child’s psychologist, Dr C, and the Family Consultant invited a quite different conclusion.
[43] Mother’s affidavit, par 42
[44] Mother’s affidavit, par 51
[45] Mother’s affidavit, par 73; Maternal grandmother’s affidavit, par 53; Exhibit M1
[46] Maternal grandmother’s affidavit, par 61
Firstly, children of such tender age as the youngest child have very short memories. Dr C and the Family Consultant both confirmed the memories of children that young can be limited to only days in duration. They have very limited ability to accurately recall details of events that occurred weeks and months before.
The youngest child did not see the father or his flatmate after the long weekend in early June 2011 until she again met the father in early December 2011. When the youngest child made her report to the mother on 29 June 2011 she could only possibly have been alleging an incident which was already several weeks past. By the time she made the above remarks in September 2011 she had not seen or spoken with either the father or his flatmate for over three months. By February 2012 she had resumed spending time with the father, but only under supervised conditions in which she could not possibly have been abused again, so her asserted recollection was then at least nine months old. Her ability to consistently recall having been improperly touched by them on her genitals so long before is highly questionable.
Secondly, in cross-examination the mother conceded the youngest child was aware the comments she made about the father to the mother on 29 June 2011 had caused a significant change to her relationship with the father. Following the events of 29 June 2011 the child was permanently immersed in an atmosphere within the maternal family of fervent belief in the father’s guilt. The mother admitted it was possible the youngest child had overheard adult discussion in her household about the father and the alleged sexual abuse. In fact, the mother took her to Dr C in April 2012 specifically to talk about the father, meaning she must have discussed the father directly with the child in advance of the appointment.[47] The topic was therefore still being discussed in the mother’s home nearly a year after the initial disclosure. In addition to the negativity about the father within the mother’s home, the child was privy to explanations given by the mother about her sexual abuse by the father to Dr C from July 2011 onwards because, as Dr C admitted, the child was present in the room whenever the mother imparted information to her. The mother also took the youngest child to see a paediatrician in early August 2011 at which time she informed the paediatrician of the sexual assault allegations in the presence of the child.
[47] Exhibit ICL1, par 22
Dr C and the Family Consultant both agreed that children as young as the youngest child are vulnerable to suggestion and their memories can be contaminated or moulded by information received afterwards. It would be unsurprising for the youngest child to adopt her revelation on 29 June 2011 as a “memory” if it was thereafter repeatedly reinforced as factual truth by the mother and maternal grandmother. In such circumstances, subsequent repetition of the same or similar allegations by the child would not be corroborative at all.
The mother was also concerned by a drawing made by the child in Dr C’s rooms on 27 March 2012.[48] The drawing was made by the youngest child immediately following her discussion with Dr C about having seen her father at the contact centre,[49] so it is objectively unsurprising the child then drew a picture representing herself and the father. Despite such an apparently benign context, Dr C considered the drawing was “concerning”.
[48] Exhibit ICL4
[49] Exhibit ICL1, par 24
Dr C was cross-examined about why she adopted such an attitude towards the drawing and was impelled to make numerous concessions which undermined the reliability of her evidence. She conceded the drawing was the only “explicit concerning thing” she had witnessed in her sessions with the child, even though she asked nothing of the child about the drawing other than to identify the two figures in the drawing as the youngest child and the father. She also resiled from her statement the child had “quite deliberately” drawn the two figures “lying down”, conceded the physical connection of the two figures in the drawing could have been an “accidental feature” of the drawing, conceded she did not really know what the drawing depicted, and acknowledged she had never stated it was evidence of the child’s sexual assault. The last of those concessions was particularly salient because it was implicit from Dr C’s evidence-in-chief that she did impute sexual abuse of the child, or at least a strong suspicion of it, from the contents of the drawing.
In light of such evidence little weight can be fairly reposed in the statements of suspicion expressed by Dr C in her evidence-in-chief[50] and the similar past statements attributed to her by the mother.[51]
[50] Exhibit ICL1, pars 23-29
[51] Mother’s affidavit, pars 44, 48, 72
On any objective appraisal the drawing is not necessarily sexualised at all. The Family Consultant certainly did not interpret the drawing in any sinister way. Although the mother said she perceived the drawing as a depiction of the father touching the child on the genitals, she agreed with the proposition that others who were unfamiliar with the child may not perceive the drawing in that way.
The maternal grandmother gave evidence of observing the child manipulate her own genitals on a number of occasions around mid 2011.[52] The maternal grandmother would only have adduced that evidence if she considered it relevant. Presumably she believed the child acted that way because she had been sexually abused. The link is possible, but the evidence falls far short of proving the probability of the link. Feasibly, the child was simply exploring her own body through curiosity, or perhaps she found comfort in holding or manipulating her genitals, or perhaps she was itching an irritation.
[52] Maternal grandmother’s affidavit, pars 36, 37, 39
There was plenty of evidence about the child suffering from reddened and irritated skin in her genital region from well prior to the child’s disclosures on 29 June 2011. Such evidence was given by the maternal grandmother in her affidavit[53] and by the mother in cross-examination. The mother described it as a “long-standing” problem for which she had previously been examined for urinary tract infection. The mother earlier told the Family Consultant the child had often presented with reddened genitalia.[54] The mother accepted there could be many innocent explanations for reddened genitalia and her counsel subsequently conceded the Court could not draw any inference about sexual assault from evidence of reddened genitals.
[53] Maternal grandmother’s affidavit, pars 6-9
[54] Memorandum, page 7
The mother made some notes of her recollection about the revelations made to her on the evening of 29 June 2011,[55] but she was unable to recall whether she made the notes later that night or early the next morning. Irrespective, with one exception, the notes were made contemporaneously while events were fresh in her memory. The mother conceded that some of her notes pertaining to the events of 29 June 2011 were written in ink of a different colour and she could not remember whether that portion of the notes was made contemporaneously or at some time later.
[55] Exhibit F13
There are some differences between her notes and the contents of her affidavit filed on 9 March 2012, which transposed portions of her first affidavit prepared and filed in November 2011 some five months after the events. Despite the doubts expressed by the father and Independent Children’s Lawyer about the mother’s honesty because of those differences, I am not persuaded the mother fabricated her account of events on 29 June 2011. The differences are not so significant or pronounced. The reports she made to both the police[56] and her psychologist[57] on 30 June 2011 are reasonably similar to the account given by the mother in her affidavit. It is more likely the relatively minor differences in the version provided in the mother’s affidavit are due to either or both an innocent failure to record notes which were sufficiently comprehensive and explicit or to some erosion of memory and her attempted reconstruction of it.
[56] Exhibit F6
[57] Exhibit F11
In cross-examination the mother denied she had a “worse case scenario attitude” at the time of the revelations, denied she may have misinterpreted what she saw and heard, and denied she jumped to a “misconceived conclusion” about what she saw and heard.
The mother consulted both her general practitioner and psychologist over the year preceding the events of 29 June 2012 in relation to depression, stress and anxiety.[58] The father’s counsel submitted an inference should therefore be drawn that, notwithstanding the mother’s denials in cross-examination, she did jump to “misconceived conclusions”. Perhaps the mother did impulsively misconstrue what she saw and heard from the youngest child, but mere evidence of the mother’s sufferance of anxiety falls well short of proving she misconstrued the youngest child’s report in the absence of other factual evidence.
[58] Exhibits F2, F3, F4, F5, F7, F8, F9, F12
There was, however, other factual evidence which lends some weight to the father’s submission. The mother tried to control many aspects of the children’s interaction with the father following separation. Initially she did not let the children see the father outside of the former matrimonial home. When she later agreed to let the children stay overnight it firstly had to occur in the former matrimonial home.[59] The mother later permitted the children to stay with the father overnight at his home, but only after the father capitulated to her demand that the children sleep in his bed and he slept on the floor.[60] The asserted reason for the agreement about sleeping arrangements was the mother’s concern that the children were “looked after”.[61] The mother was displeased when she later learned from the children they had slept in the bed of the father’s flatmate,[62] even though she conceded in cross-examination she had no reason to be concerned for their safety as a consequence.
[59] Mother’s affidavit, par 15; Father’s affidavit, pars 15-19
[60] Mother’s affidavit, par 16; Father’s affidavit, par 22
[61] Mother’s affidavit, par 19
[62] Mother’s affidavit, par 19
I accept the submissions by the mother and Independent Children’s Lawyer that the mother was unduly anxious about the children and was pre-disposed to perceive events affecting them in a context of their exposure to the risk of some form of harm in the father’s care.
The youngest child’s report of being tickled by both the father and his flatmate was possibly an innocent explanation of a game that the mother misconstrued, just as the police and father believe. Plausibly, in any vigorous tickling game the child could have been inadvertently touched in the vicinity of her genitals, and there can be little doubt from the Family Consultant’s observations that the children play vigorously and boisterously with the father.[63]
[63] Family Report, pars 70-76
However, ultimately, I conclude it is unlikely the mother misconstrued the youngest child’s report. I accept the mother’s evidence that the child did provide an explanation on 29 June 2011 about being tickled by the father and his flatmate, during which explanation the child manipulated her genitals in a way that was inconsistent with an inference she was tickled innocently or accidentally on that part of her anatomy.
The eldest child was moved to repeatedly deny the truth of the youngest child’s report over a long period, so he too must have appreciated the gravity of the allegation.
The maternal grandmother was also genuinely concerned by what she witnessed, but she only offers limited corroboration of the mother. By the time she became involved in the events of 29 June 2011 she was already on notice the mother suspected serious impropriety and was distressed by it. The maternal grandmother was therefore conditioned to adopt the same attitude. The maternal grandmother saw the child’s fingers flutter under her groin but could not see the child’s fingers in her crutch since the child was kneeling upright.[64] She did not see any attempted digital penetration of the child’s vagina, as graphically described by the mother. The maternal grandmother conceded the child’s use of the words “tickle me under there” was part of the nursery rhyme “Round and Round the Garden”, which even she had innocently recited with the child in the past without sexual connotation.
[64] Maternal grandmother’s affidavit, par 26
Whether the child touched her genitals during the explanation intending to represent that one or both of the father and his flatmate had deliberately manipulated her genitals in a sexually provocative way is, however, another question. Even if the child did intend by her explanation and demonstration to convey the deliberate and sexually provocative manipulation of her genitals, while the mother then had legitimate reason to be concerned, she did not pause to reflect upon the potential unreliability of the youngest child’s report.
I do not accept that the child’s explanation and demonstration, as described by the mother and maternal grandmother, was a truthful and accurate account by the child of her treatment at the hands of the father or his flatmate. The lack of veracity lies with the child, not the mother or maternal grandmother. It is unnecessary to speculate about the reasons why the child’s report was unreliable. It is sufficient merely to acknowledge its unreliability in the face of the countervailing evidence earlier described.
The mother’s perception of the child’s accusation was that the father, who had never previously given her any reason to think he was capable of such deviancy, had digitally penetrated the vagina of his three year old daughter, and further, allowed an adult female he had known for barely weeks to violate his daughter in precisely the same way. Such a depraved and startling revelation should have been reality-tested, but it was not. It was accepted as both factually accurate and truthful from the very beginning.
Despite the mutual but fleeting reservations held by the mother and maternal grandmother, they appear to now unwittingly reinforce one another’s belief in the occurrence of the sexual abuse.
The mother’s belief in the truth of the allegations ultimately hinges upon her acceptance of the literal truth of the youngest child’s representations. She said in cross-examination “because [the youngest child] said it I have to believe it.” Self-evidently, such a position is illogical. Young children do not always speak truthfully and it is a mistake to think otherwise. Sometimes they fantasise, imagine, and lie. That is the whimsy of such tender youth.
The maternal grandmother seemed to adopt the same approach as the mother, saying in cross-examination “According to [the youngest child] it did happen to her.” She made similar comments to the Family Consultant about her acceptance of the youngest child as truthful,[65] and her comments to the Family Consultant also betray her inclination to think the worst about the father.[66]
[65] Family Report, par 81
[66] Family Report, par 86
For reasons explained by the Family Consultant and Dr C, considerable caution must attend acceptance of the literal truth of statements made by very young children, particularly about historical events.
The mother’s alternate proposal for parenting orders enabling the children to spend substantial and significant time with the father was overt acknowledgement the Court may not find the father poses any risk of sexual abuse to the children. The mother therefore countenances the prospect of the Court reaching a different conclusion to her on the available evidence. The mother is obviously aware her belief in the risk posed by the father is not uniformly shared because the police and Department have already dismissed her concerns.
In assessing the evidence discussed above I have had regard for the principles established by the High Court and Full Court of the Family Court (see M & M (1988) 166 CLR 69 at 76-77; In the Marriage of B and B (1993) FLC 92-357 at 79,778; WK v SR (1997) FLC 92-787 at 84,694; Re W (Sex abuse: standard of proof) (2004) FLC 93-192 at 79,217-79,218; W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 at 79,910; Napier & Hepburn (2006) FLC 93-303 at 81,114-81,117; and Potter & Potter (2007) FLC 93-326 at 81,636-81,637; Johnson v Page (2007) FLC 93-344 at [65]-[68], [71]) and am conscious of the civil standard of proof (see s 140 Evidence Act 1995 (Cth)).
I am not satisfied the father poses any unacceptable risk of sexual abuse to the children. Nor am I satisfied the father’s flatmate poses any unacceptable risk of sexual abuse to the children.
The issue of neglect was irrelevant to these proceedings.
The mother made some complaint of the father reacting towards her after separation in a manner she perceived to be overbearing or intimidatory,[67] which the father denied.[68] But, in any event, the mother readily conceded in cross-examination such evidence had no bearing upon the parenting orders to be made for the children. The single issue of concern to the mother was her belief the father had sexually abused the youngest child and may do so again.
[67] Family Report, pars 4, 11, 45
[68] Family Report, pars 4, 25-26
Best interests of the children – additional considerations
The additional considerations influencing the Court’s determination of the children’s best interests are only of peripheral relevance in the context of this case. The mother’s counsel went so far as to describe the proceedings as a “one issue case” – a reference to the issue of risk of abuse already addressed under s 60CC(2)(b) of the Act. Consequently, s 60CC(3) can be addressed cursorily.
One factor of real relevance is the relative unwillingness or incapacity of the mother to promote the children’s relationships with the father.
The eldest child is aware that the mother is despondent about the prospect of the children spending time with the father.[69]
[69] Family Report, par 59
The Family Consultant said in the Family Report,[70] and confirmed during cross-examination, the youngest child does not now regard the father as part of her family, since the mother does not promote or acknowledge his role in the children’s lives.
[70] Family Report, par 67
The ambivalence, and even opposition, demonstrated from time to time by the youngest child at times of transition between the parties is most likely her reaction to the conflict she perceives between the parties. That conclusion is evidenced by the manner in which she settles relatively swiftly with both parents once the transition is complete.
The eldest child repeatedly expressed to the Family Consultant his desire to see more of the father.[71] The youngest child also expressed her enjoyment about playing with the father.[72] The children should be able to develop their relationships with the father normally so as to derive the full measure of their benefit. The mother’s negativity about the father’s involvement in their lives should not be permitted to thwart that objective.
[71] Memorandum, pages 3-4; Family Report, pars 58, 61
[72] Memorandum, page 5
There are no family violence orders in existence. The order that was briefly obtained for the benefit of the mother on 14 June 2011,[73] and was extended provisionally on 30 June 2011,[74] was dismissed before the Local Court of NSW on 20 July 2011.[75]
[73] Exhibit ICL5
[74] Exhibit ICL6
[75] Father’s affidavit, pars 37, 46, 60; Mother’s affidavit, par 53
No other factors under s 60CC(3) of the Act were addressed as relevant by either the parties or the Independent Children’s Lawyer.
Parenting orders
There are no reasonable grounds to believe the father abused the youngest child. Nor are there any reasonable grounds to believe that the father engaged in family violence. Accordingly, the presumption of equal shared parental responsibility applies (s 61DA(2)). Even if it did not, both parties proposed they be allocated equal shared parental responsibility in the event the Court concluded the father did not pose any unacceptable risk of abuse to the children. In light of the earlier findings, the allocation of equal shared parental responsibility is an order that would meet the children’s best interests.
The Court is then obliged to consider whether the children should live with the parties for equal time. I conclude such an arrangement would not be practicable because neither party wants the children to spend an equal amount of time in the care of the father. The father works and could not presently care for the children as extensively as the mother.
It is however practicable and in the best interests of the children for them to live primarily with the mother and spend substantial and significant time with the father. That is the parties’ mutual proposal. That proposal is consistent with the recommendation of the Family Consultant,[76] given the Court’s finding the father does not pose an unacceptable risk of abuse to the children.
[76] Family Report, pars 104, 106, 113, 114
Orders are made reflecting the agreed proposal, albeit not in the precise terms sought by the father. No specific provision is made for interaction between the children and the parties on the children’s and the parties’ birthdays. The regime of time spent by the children with the father is extensive enough without introducing that degree of detail, particularly in circumstances where the parties’ households are some drive apart. They can agree otherwise if they wish.
The father proposed the parties exchange the children between them at a public venue, namely the McDonalds Restaurant at town E.[77] However, the mother no longer lives on the Central Coast and that nominated venue is no longer mutually convenient to the parties’ households. The mother proposed that the exchanges occur at their respective homes and the travelling be shared. I am attracted to the mother’s proposal as the burden is shared equitably and the children will see each parent taking or collecting them from the home of the other. Obviously the mother is no longer concerned about any violence or intimidation by the father so his motive for use of a public venue to protect himself against such allegations is now unnecessary.
[77] Exhibit F1, Order 5
The mother indicated at the commencement of the trial she intended to suggest minor amendments to the father’s proposal, but she did not subsequently do so other than in respect of the changeover venue, in which case I infer she abandoned any other proposed alterations.
The order for the children’s telephone communication with the father is more consistent with the Family Consultant’s recommendation[78] than the father’s proposal,[79] but the order permits the parties to agree otherwise.
[78] Family Report, par 116
[79] Exhibit F1, Order 4.8
The Family Consultant recommended the parties attend a post-separation parenting program.[80] Neither party dissented. It is a sensible suggestion and an order is made that they do so. Both parties want equal shared parental responsibility, both parties acknowledged current tension in their communication, and both parties expressed a desire for more harmonious communication. They may be assisted by participation in such a program.
[80] Family Report, par 115
The father’s counsel conceded the Court had no power to make the proposed unconditional final order compelling the mother to attend upon certain psychological therapy (see L v T (1999) FLC 92-875 at [49]-[60]; Jacks & Samson (2008) FLC 93-387 at [200]-[226]).[81]
[81] Exhibit F16, Order 10
I am persuaded to make the order proposed by the father restraining the mother from allowing the youngest child to attend any further counselling sessions with Dr C,[82] particularly when the mother did not argue against it. The evidence does not permit a finding the counselling has been of any real utility to the child and the father has been excluded from the process. Notwithstanding him enjoying the same measure of parental responsibility for the children as the mother (s 61C) he was not consulted about the youngest child’s commencement of counselling with Dr C and, although Dr C was content to discuss the youngest child’s counselling with the mother at length, she erroneously rebuffed the father’s attempts to procure information about the child.[83] The father did not need the mother’s authority to procure that information.[84] He was entitled to it. Making no order would simply serve to permit the perpetuation of that unsatisfactory situation.
[82] Exhibit F16, Order 11
[83] Family Report, par 30
[84] Mother’s affidavit, par 81
The other orders not specifically explained are uncontroversial.
I am satisfied the orders set out at the commencement of these reasons reflect the children’s best interests.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 15 June 2012.
Associate:
Date: 15 June 2012
Key Legal Topics
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Family Law
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