Daly and Daly

[2007] FamCA 149

FAMILY COURT OF AUSTRALIA

DALY & DALY [2007] FamCA 149

FAMILY LAW - CHILDREN – INTERIM PROCEEDINGS – Proceedings finalised by Consent Order in March 2006 – New Allegation of Sexual Abuse – Application by Mother to suspend Order – Application by father for Contravention

Family Law Act 1975 (Cth) ss 60B, 60CC

APPLICANT: MR DALY

RESPONDENT: MRS DALY

FILE NUMBER: MLF 546 of 2005

DATE DELIVERED: 12 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bryant CJ

HEARING DATE: 12 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ambrose

SOLICITOR FOR THE APPLICANT: Coulter Roache

COUNSEL FOR THE RESPONDENT: Ms Trevisiol

SOLICITOR FOR THE RESPONDENT: Ingpen & Bent

Orders

(1)The parties attend upon an appointment with a Family Consultant pursuant to section 11F of the Family Law Act 1975 (Cth) and attend any further appointments as the Family Consultant considers necessary.

(2)The Application of the Father for Final Orders filed 14 December 2006, the Father’s Application for Contravention filed on 14 December 2006 and the Mother’s Response to an Application for Final Orders filed 12 January 2007 be adjourned for hearing and conducted as a Less Adversarial Trial in accordance with Practice Direction No.2 of 2006 before me, the first day of the hearing to commence on 30 March 2007 at 10:00am.

(3)There be a telephone mention for directions for the hearing on 5 March 2007 at 9:30am.

(4)Pursuant to section 68L(2) of the Family Law Act 1975 (Cth) the children, a son born in October 1998 and a daughter born in June 2000, be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

(5)That forthwith upon appointment of the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

(6)That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

(7)On the interim application of the Mother contained in her response filed 12 January 2007, the orders in paragraph 4(g) of the Orders made on 27 March 2006 be suspended until further order.

(8)Until further order the father have contact with the said children on alternate weekends commencing on Saturday, 17 February 2007:

a.from midday Saturday until 5:00pm on Saturday; and

b.from 9:00am to 5:00pm Sunday.

(9)The orders as set out on 27 March 2006 otherwise remain in full force and effect.

1. The interim applications of the Mother and Father otherwise be dismissed.

1. That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Chief Justice delivered this day will for all publication and reporting purposes be referred to as Daly and Daly.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 546 of 2005

MR DALY

Applicant

And

MRS DALY

Respondent

REASONS FOR JUDGMENT

1. The applications that I have before me involve issues regarding contact between two young children and their father.  The short background to the matter is that on 27 March 2006, orders were made by consent in relation to the son aged 8 years and the daughter aged 6 years.  The orders provided for the children to live with the wife, who I will refer to in this judgment as the mother, and for her to have sole responsibility for decisions about their day‑to‑day care, welfare and development except when they are spending time with the father.

2. The father's contact was over a graduated period which commenced in April 2006 and took place initially at the B Contact Centre.  The contact progressed to unsupervised contact during day times and ultimately to overnight contact which was to commence in August 2006.  The orders also provided for contact on the children's birthdays, Father's Day, Christmas Day and by telephone, and provided for where the handovers for contact were to take place.

3. Prior to those Orders being made, there was a dispute between the parties which included the mother's concerns that the children had been sexually abused in some way by their father.  Clearly, by reason of the fact the orders were made by consent, the mother, at least in March last year, felt that there was no longer a risk to the children. 

4. The applications that I have before me today in the duty list commenced with an application by the father filed on 14 December 2006 alleging contravention of those orders by the mother.  He also filed an application seeking final orders in which he seeks to vary the orders for contact both on an interim and a final basis and, as he says, envisaged by notations in the original orders.  He also seeks, if the court finds the contravention to be proved or not, some make-up contact to make up for the periods in which he has not seen the children.

5. The mother responded to the application for final orders and also the interim orders by seeking, as far as final orders are concerned, that paragraphs 4(g) to (m) of the orders made on 27 March be discharged.  Those are the orders that effectively provide for contact to take place.  The mother, responding to an application in a case, seeks the same orders but a suspension rather than a discharge of those orders.  In short, on an interim basis the mother seeks that the father have no contact to the children.

6. The mother's material filed in support of her application makes it plain that the reason that she seeks to suspend and discharge the orders for contact is that she alleges that the father has sexually assaulted the daughter.  The father denies these allegations and I will turn in a moment to the evidence to support them and my analysis of that evidence.  As I have indicated in the short background that I have set out, the allegations that the daughter has been the subject of some sexual abuse by the father are not being made for the first time and there is some history of reporting to the Department of Human Services. 

7. There are, accordingly, three matters that are before me on an interim basis, and the first thing I need to do is to consider how those applications are to be dealt with.  They are, in order of the date of filing:

   a)the father's application that the mother be dealt with for breach of the orders,

   b)the father’s application to vary the orders on an interim basis by increasing the contact; and

   c)the mother's application on an interim basis to suspend the orders pending a final hearing. 

8. To a significant degree, the contravention application will be affected by findings that are made in relation to the mother's allegations.  If, for example, the allegations were found to have some substance, then it is likely that the mother would have a defence to the alleged breaches.

9. I should add that even if the allegations are not found to have any substance, if it were ultimately found that the mother generally believed them, then that might also have some effect, but the practical effect of the allegations and their denial is that in my view, prior to any contravention application being dealt with, the court will need to deal with the applications themselves.  This is best done at a final hearing and I will make some comment in the course of these reasons about when that can take place.  What I have to determine today, however, is the father's interim application for an increase in the contact and the mother's interim application to suspend the contact. 

10. The matters concerning the children arise under Part VII of the Family Law Act which deals with parenting orders. Ultimately, any decision in relation to parenting orders must be made in the best interests of the child or children as provided in s 60CA of the act. The act provides a framework in which that decision must be made, and in deciding what is in a child's best interests the court must consider the primary considerations set out in s 60CC(2); namely:

    a)the benefit to the child of having a meaningful relationship with each of the child's parents; and

    b)the need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.

11. The court must also consider, to the extent relevant, the matters in s 60CC(3), (4) and (4A).  The objects and principles from which part VII are to be applied are clearly set out in s 60B(2).  The principles in particular provide that except when it is, or would be, contrary to a child's best interests:

    a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;

    b)children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development;

    c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

    d)parents should agree about the future parenting of their children; and

    e)children have a right to enjoy their culture.

12. Given the allegations in this case and the manner in which the case has  been presented, the main factors that I will have to consider are the primary considerations in section 60CC(2) which are:

    a)the benefit to the children of having a meaningful relationship with both parents; and

    b)the need to protect them from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.

13. It is clear that the father would assert in this case that it is subsection (a), the benefit of them having a meaningful relationship with him, that is important, and from the mother's position she would assert that that is inconsistent with the protection of the children from abuse.  They are the two significant matters with which I must deal, and in relation to which I must assess the evidence.

14. As I am dealing with the matter on an interim basis, I can make no findings about the evidence, at least the evidence of the parties, without hearing from them and having them subject to cross-examination and, to the extent to which the parties wish it, some consideration of the evidence which has been tendered in the form of notes from the Department of Human Services, doctors who have examined the daughter and the police who have conducted interviews with her and with the parties.  Nevertheless, the evidence before me does enable me to make some findings, albeit that they are findings of an interim nature only. 

15. I now turn to consider the evidence that is before me.  In particular, I am considering of course whether or not I should suspend existing orders and whether or not I should vary them by increasing the contact.  Apart from the evidence of the parties, the evidence consists mainly of the police file and of the file of the Department of Human Services.  Both of the files were tendered without objection.

16. The police file indicates that Senior Constable M has been largely responsible for contact with the mother and for the investigations that the police have conducted.  It seems that the mother contacted the police on 4 November 2006, stating that she believed that the daughter was "still being sexually abused by ex-husband when she is on access".  The mother provided to Senior Constable M the tape from an MP3 player allegedly providing disclosures which were said to have been made in May 2006 after a visit to the Werribee Zoo.  These disclosures seem to have been in relation to the children masturbating together.

17. The mother informed Senior Constable M that the daughter had been seeing a psychologist for a six-week period and there were again "nil disclosures".  Senior Constable M listened to the MP3 tape and noted "very leading questions put to children being found masturbating together," "nil child disclosures re subject by father," "a suggestion by the mother that the subject had been touched on the vagina by the father in the bath".  The child was seen by a general practitioner, Dr P, who referred her to a paediatrician.  Neither of the doctors found evidence which would of itself support that abuse had occurred, but particularly Dr S in his letter says that it could not be excluded.  I will come to Dr S's letter in a moment.

18. The police file indicates that the mother told Senior Constable M that when the daughter was examined by Dr S, she had told her that the cut to her vagina which was the commencement of the concerns, or apparent concerns, had been done herself.  The mother says then that having left Dr S's office, the child then told her in the car that her father had done it. 

19. The mother also told the police that after she had received notification from the father's lawyers of a potential contravention application, she had a conversation with daughter who had told her that her father had touched her vagina with two fingers and hurt her.  There are some other disclosures made only at that point to the mother, which in my view were somewhat equivocal, indicating that whatever injury, if any, had been occasioned to her vagina had been done by the father.

20. The police then conducted an interview with the child which, in accordance with the Evidence Act 1958 (Vic), was video and audiotaped. The police report notes that the child disclosed an offence of indecent act with a child under 16 years where the father had touched her vagina, "accidentally causing my scratch". Senior Constable M interviewed the father who denied having sexually abused the child in any form.

21. Some of the workers from B,  where supervised contact and handovers had taken place, were interviewed and indicated that no disclosures had been made.  Dr S's report was considered and discussed and noted as neither confirming nor excluding sexual abuse.  As far as the police are concerned, it would appear that they have taken the view that there is no evidence from which they could obtain a conviction and they are not proceeding with the matter.  I am told by counsel for the mother that she is appealing this decision.

22. Dr S's letter forms the main part of the medical evidence.  In a letter dated 24 January to Senior Constable M, she notes that she is aware of previous allegations of sexual abuse prior to the parents separating.  She indicates that she saw the daughter on 15 November 2006, accompanied by her mother, and she was told by the mother that there had been an incident that has concerned her where the children were found together in a "position of sexual intercourse".  The mother also expressed a concern about the daughter having sexually provocative and inappropriate behaviours.  She examined the daughter and noted that there was soiling present in her underwear.  She observed:

    The labia minora appeared pale and slightly inflamed.  There was a one‑centimetre linear red mark consistent with a healed scratch or possible abrasion from another source anteriorly.  The hymen was in normal limits for a child of this age.  My provisional diagnoses at this time was faecal soiling secondary to constipation, vulvavaginitis, and the possibility of a urinary tract infection was raised.  There was also the possibility of an underlying skin condition known as lichen sclerosis…

23. There was a suggestion that a urine sample might be obtained but this does not appear to have occurred.  She saw the daughter again on 21 December.  The findings on that occasion were of continuing vulvovaginitis.  She said:

    However, the appearance of the vaginal surfaces again raised the possibility of an underlying skin condition.  Once again I have reinforced the need for simple hygiene measures.  This time, a urine sample has been obtained, which, fortunately excludes the possibility of a urinary tract infection.

24. The doctor then concluded that she had been asked to examine the daughter, who was six, with a view to “the possibility of a vaginal injury with the possibility of sexual abuse raised in this context”.  She noted that she was aware of past allegations but "not of any evidence to substantiate findings of sexual abuse".  She observed that physical examination including genital examination indicated there was non-specific vulvovaginitis or inflammation of the vaginal tissue and she had raised the possibility that it might be an underlying skin condition known as lichen sclerosis.  She concluded by saying:

    My examination findings are `non-specific’ in that they do not confirm, or exclude, the possibility of sexual abuse.

25. When the mother first raised the question of sexual abuse in October she did so, she says, as a result of finding the daughter in front of the heater looking at her vagina.  The daughter, according to the mother, said that she had a scratch and pointed to her vagina.  The mother examined her and thought there was a scratch present.  She subsequently made an appointment for her to see the general practitioner who then referred her to Dr S.  Concerned that it might be sexual abuse, she contacted the G Sexual Offences and Child Abuse Unit and that is when she had the first discussion with Senior Constable M.

26. The mother asserts that on 21 December 2006, following the discussion with Dr S when the daughter could not say how she got the scratch, she told her mother that her father came in when she was having a bath when "[R] is out dancing."  R is the father's new partner.  Subsequently, she says that some comments were made by the daughter which suggested that the father was responsible for the scratch on her vagina.  On this basis the mother acknowledges that she stopped the contact between both children and the father from taking place because of her protective concerns about the daughter. 

27. There is nothing in the material to support any suggestion that there were protective concerns in relation to the son, but that is a matter that no doubt will be considered when the contravention application is heard.  There does not appear to have been any suggestion by the mother that the son should have continued to see the father, notwithstanding that there are no allegations in relation to concerns about his welfare on contact.

28. The mother, having raised these concerns, filed a Notice of Risk of Abuse and the Department of Human Services became involved.  As a result of the prior history of the parties that I have referred to, the department had previously had contact with the parties.  The department clearly took the mother's concerns seriously and made inquiries.  They were aware of the police file and the steps that had been taken by Senior Constable M.  They made inquiries, including inquiries of Dr S and of the headmaster and schoolteacher for the daughter.  Neither the headmaster nor the schoolteacher were able to note any unusual behaviour on the part of the daughter and indicated that she appeared to be progressing at school normally and happily.  The department ultimately concluded under the heading Safety Statement in their risk analysis:

    The Harm Consequence is assessed as CONCERNING as it is alleged that [the father] inserted his finger into the vagina of [the daughter], raising a concern for her sexual safety. 

    The Harm Probability is assessed as UNLIKELY.  The information presented for the current notification is the same information that was reported, and investigated, in November 2006.  The matter was investigated by the police and all parties were interviewed.  There was no direct evidence that the cut had been caused by a sexual assault, therefore there was no information to suggest that [the daughter] was at risk of sexual harm.  There has not been another notification since November 2006, and there have been no further concerns reported for the child.

    There are no concerns for the IMMEDIATE SAFETY of either [the daughter] [sic] or [the son] and FUTURE RISK is assessed as LOW.

1. It is noted that there has not been another notification since November 2006, and there have been no further concerns reported for the child, I think it is fair to say in relation to that statement that is the case because no contact has been occurring since that time.  When the Department of Human Services wrote to the court in response to the subpoena, they said that:

   The allegations presented to the department via the form 4 were not new allegations and had been previously assessed as part of the notification received on 1 November 2006. 

2. I note that they are in fact the same set of allegations.

3. At that point in time a police investigation occurred and the outcome was that there was no direct evidence to suggest that the daughter was at risk of sexual harm.  As such, the department intends to take no further action and does not intend to intervene in the current Family Court proceedings.

4. As I said previously, I am not in a position today to make findings conclusively about the evidence and the effect of it, which will have to be done after a proper hearing when the parties are given an opportunity to give evidence and be heard and to cross-examine any witnesses who might be relevant to this matter.  What I can do today is analyse the evidence, such as it is, on the basis that that evidence is before me and is at this stage, because it relates to interim matters, unchallenged.

5. First, there is no medical evidence to support sexual abuse.  Secondly, there were no disclosures by the daughter to the child psychologist, to the doctors or the Department of Human Services.  There is no behaviour occurring at school which would indicate that there are any problems and there is no evidence of behaviour problems.  The child's comments to the mother, according to police, appear to be as a result of leading questions.  Specifically, the daughter seems to have told Dr S that the scratch to her vagina had been done by her but then subsequently, according to the mother, told her that the father had done it. 

6. The only comments to a third party appear on the video and audiotape interview between the daughter and the police.  There it appears to have been alleged that her father touched her vagina and accidentally caused the scratch.  Counsel for the mother has urged that the court should look at the tape before making any findings and I agree that before findings can be made in relation to this issue, conclusively at least, that tape would have to be viewed. 

7. I do accept that on the evidence before me to date there is one comment by the daughter to a third party which might indicate that something untoward had occurred.  In other respects the evidence leans towards there having been no sexual abuse by the father, but as this is an interim matter I am unable to conclusively determine that issue today. 

8. What I must do is apply the provisions of s 60CC(2), conflicting as they do between the benefit of having a meaningful relationship between the children and the father, and the need to protect the daughter from abuse.  Because of these two conflicting principles and the fact this is an interim hearing, I will have to do the best I can to ensure that, whilst giving effect to the need to have a meaningful relationship with her father, the daughter is also protected to the extent necessary until the court can properly determine the matter.

9. I am mindful also of the fact that there has been no contact between the father and the children since October.  I am mindful, because of the inability to make findings, that I must be more cautious on an interim basis than might be the case after a full hearing.  In a practical sense as well, it is likely that any contact that does occur will go more smoothly if the mother has less reason, in her mind at least, to be concerned about that contact. 

10. Having regard to the evidence and to those matters, and particularly to the primary considerations in s 60CC(2), I propose to order that contact take place on an unsupervised basis.  At the commencement of the proceedings I indicated to the parties that I thought that there were really three possibilities:  one was that the contact should take place, supervised at B; the second was that it should take place in accordance with the existing orders; the third was that it take place on something less than the existing orders, perhaps on a non-overnight basis; and I suppose there is in reality a fourth, that it be increased.

11. Until the court can draw firm conclusions from the evidence, in my view the court must lean in favour of some protective measures in relation to the daughter.  At the same time I am conscious of the need for a meaningful relationship with the father.  On the evidence as it is, it does not seem to me that it is necessary for there to be supervised contact at the B Contact Centre.  However, in the circumstances I do propose to vary the existing orders to provide that the contact not be on an overnight basis at this point.

12. As it is a matter which was filed after 1 July and therefore falls to be determined within Division 12A of the Family Law Act 1975 (Cth) which requires a less adversarial hearing. I propose to docket the matter to me and to fix the matter for a final hearing in accordance with Division 12A and with the court's procedures for a Less Adversarial Trial which are set out in Practice Direction No 2 of 2006. The first day for hearing will therefore be on 30 March. I will make a provision for there to be some telephone directions prior to that date so that the parties will know how to prepare for the first day.

13. I will order the appointment of an independent children's lawyer, as is sought by the mother and agreed by the father. There was an independent children's lawyer previously and in my view, in a case such as this, it would be of assistance to the best interests of the children. I propose to order that the parties attend with a family consultant pursuant to s 11F of the Act. When the question of directions is made by telephone, I will ensure that there is either a written report or that the family consultant is available to report at the hearing on the reportable appointments that have occurred.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Chief Justice Bryant

Associate: 

Date:   12 February 2007