DARNELL & MAGNUSSON
[2018] FCCA 2813
•28 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DARNELL & MAGNUSSON | [2018] FCCA 2813 |
| Catchwords: FAMILY LAW – Interim arrangements for care of child aged nine – existing orders envisage child spending substantial and significant periods of time in care of the father – mother alleges child has made disclosure of physical and sexual abuse – mother seeks suspension of father’s time – application opposed by father – allegation denied – assessment of risk at interim stage – is risk of harm to child unacceptable if she spends time with father – what is proportionate response to degree of risk identified – questions to be asked – implications for child’s primary carer – best interests. |
| Legislation: Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 67Z, 67ZBB, 69ZW |
| Cases cited: Deiter & Deiter [2011] FamCAFC 82 B & B (1993) FLC 92-357 |
| Applicant: | MS DARNELL |
| Respondent: | MR MAGNUSSON |
| File Number: | ADC 3979 of 2012 |
| Judgment of: | Judge Brown |
| Hearing date: | 25 September 2018 |
| Date of Last Submission: | 25 September 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 28 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Ross |
| Solicitors for the Applicant: | Diane Myers Pty Ltd |
| Counsel for the Respondent: | Ms Cocks |
| Solicitors for the Respondent: | White Berman |
ORDERS
The parties competing interim applications be dismissed.
The orders of 29 January 2014 do continue.
Pursuant to section 69ZW of the Family Law Act, the Department for Child Protection are ordered to provide to the court on or before 26 November 2018 the following documents:
(a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;
(b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;
(c)any reports commissioned by the agency in the course of investigating a notification.
Pursuant to section 69ZW of the Family Law Act, SAPOL are ordered to provide to the court on or before 26 November 2018 the following documents:
(a)copies of any reports or notifications of child abuse allegations or allegations of family violence involving either of the parties MS DARNELL and MR MAGNUSSON or the infant child [X]; and
(b)the outcome or findings of any such investigations including antecedent reports for each of the parties.
Further consideration of the matter is adjourned to 3 December 2018 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Darnell & Magnusson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 3979 of 2012
| MS DARNELL |
Applicant
And
| MR MAGNUSSON |
Respondent
REASONS FOR JUDGMENT
Introduction
All cases involving allegations of sexual and physical abuse of a child are difficult and confronting. Those arising at the interim stage are particularly difficult, given the untested and limited nature of the evidence, likely to be available to the court, at an early stage of proceedings.
Ms Darnell and Mr Magnusson are the parents of [X], who was born on 2009. They were married in late 1996. Their marriage was not a happy one and was marked by frequent periods of separation. They finally separated in 2011, in difficult and emotional charged circumstances, during which Mr Magnusson commenced a relationship with his current partner, Ms N.
Against this background, the parties were engaged in protracted litigation in this court, between 2012 and 2014 regarding arrangements for [X]’s care and parenting and the division of their property. Their case was listed for final hearing but was resolved consensually on the day of trial. This followed the production of a detailed family report prepared by Ms R and several interim determinations.
The final orders in respect of [X]’s parenting made on 29 January 2014, envisaged the following:
·The parties had equal shared parental responsibility for [X];
·She would live with her mother;
·She would spend gradually increasing time with her father during 2014 and 2015;
·From 2016, she would spend from after school Friday until the commencement of school the following Monday with her father in one week of each term fortnight and from the conclusion of school on Monday until the commencement of school the following Wednesday in the other week of the fortnight;
·School holidays were to be divided from 2016 onwards.
[X] is a child with some special needs. She has been diagnosed with Autism. She was diagnosed with the condition in 2012. At this early stage of her development her main symptoms were described as delayed language development; little interest in her peers; sensory issues; and delayed play skills.
During the earlier proceedings, it was apparent that she was being treated by a speech pathologist, Dr V, who reported in January 2014, that although [X] had made significant progress, she was still in the 10th percentile in terms of her vocabulary skills when compared to her peers. Dr V considered that there was “a long way to go to bring [X]’s language skills up to school-readiness”.
Ms N is a significant person in [X]’s life. The two first met in October 2013. She and Mr Magnusson have two children together. They are [A] born 2014 and [B] born 2017. Until recently, [X] was spending five nights per fortnight in the home of her father, Ms N and her two half siblings. Clearly, Ms N was called upon to discharge some level of parental responsibility for [X].
Ms N and Ms Darnell have met on a handful of occasions. The last time being in the context of the final court hearing between the parties, at which Ms N was scheduled to be a witness. They have never had a coffee together or exchanged any view about [X] and her care. Due to their unhappy history together, there appears to be a vast chasm of mistrust between them. As a consequence of recent developments, it appears unlikely that this chasm can ever be bridged.
During the early part of the proceedings, Mr Magnusson spent only limited daytime with [X], subject to the supervision of his mother. This was due to allegations that Ms Darnell had made that he was a compromised parent, who had significant issues with drug and alcohol abuse. Initially, Mr Magnusson was also subject to a program of rigorous drug screen testing, which he passed satisfactorily.
From the father’s perspective, the allegations of drug abuse and other criticisms of his character were baseless and manufactured by the mother to ensure she maintained the upper hand over him, in respect of care arrangements for [X].
Accordingly, the early dynamic of the proceedings was characterised by the father’s assertion that the mother was intent on disrupting his relationship with [X] because of her bitterness arising from his relationship with Ms N and as a consequence of her own emotional neediness. On the other hand, Ms Darnell characterised herself as a sensitive and caring parent, who was only intent on protecting [X] from an angry and drug compromised parent.[1]
[1] See Family Consultant Memorandum to Court dated 5 March 2013.
It was in this context that Ms R was asked to compile a family assessment. She is an experienced psychologist, who practices particularly in the area of relationship breakdown. She has a special interest in autistic children. Her report was instrumental in the parties being able to reach agreement in 2014 regarding [X]’s parenting arrangements.
In her report dated 8 July 2013, Ms R observed as follows:
·[X] had a meaningful level of relationship with each of her parents;
·[X] had a positive attachment with each of her parents;
·[X] had made positive progress under Dr V’s care in her communication;
·Ms Darnell presented as highly anxious and distressed at the prospect of being separated from [X];
·[X] was a much loved child and her daily physical needs were being met by each of her parents;
·At the time of the report when [X] was about four years of age, she was noted to be functioning in the range of a 2to 3 year old child;
·Ms R recommended counselling for both parents – the father for anger and communication issues vis-à-vis his relationship with the mother; the mother to address anxiety;
·She further recommended a continued cautious approach with a gradual introduction of overnight time.
The current proceedings were instituted by the mother on 17 September 2018 and, on her application, given an urgent hearing on 25 September 2018, which coincided with a busy first directions list, which contained another 25 matters. This is indicative of the pressures to which the court is subject.
The interim hearing required was accommodated late on the afternoon of 25 September. Due to the lateness of the hour and the complexity of the issues arising, it was not possible for the matter to be disposed of by way of ex tempore reasons.
The reason for the urgency is Ms Darnell alleges that on 14 September 2018, [X] disclosed to her that she had been subject to repeated sexual assaults at the hands of Ms N and had also been physically and verbally abused and neglected by her over very many years.
Clearly, notwithstanding the pressures of business upon it, the court was not in a position to ignore such serious allegations. Mr Magnusson personally had not had time to prepare his own answering documentation and file it in accordance with the court’s directive. His counsel, Ms Cocks sought to hand it to me. In addition, Ms N had not been able to prepare an affidavit of her own evidence due to constraints of time.
It was Ms Darnell’s position that the court needed to act expeditiously to suspend the orders pursuant to which [X] spend time with her father. On the other hand, Mr Magnusson vehemently denied that there was any substance to the allegations, which he believed were either maliciously motivated or founded in some deluded or misguided notion of the mother.
In these circumstances, he contended that it would constitute both a grave misjustice for him and represent a threat to [X]’s best interests, if the child’s relationship with him and her other siblings was subject to a significant level of disruption. Accordingly, for different but related reasons, both parties wanted their case dealt with quickly. I am satisfied that it has been so prioritised.
Pursuant to the provisions of section 67ZBB of the Family Law Act[2] the court is direct to take prompt action in relation to allegations of child abuse and deal with the issues raised by such allegation as expeditiously as possible. In these circumstances, I elected to take oral evidence from Ms N. I appreciate her evidence was not subject to cross examination or any detailed scrutiny.
[2] Herein after referred to “the Act”
The allegations of abuse
Abuse, in respect of a child, is defined by section 4(1) of the Act. It means:
“(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
Pursuant to section 67Z, a person alleging abuse of a child in relevant proceedings must file a notice setting out the particulars of the abuse to which the child in question has been subjected to. In this case Ms Darnell filed a notice alleging the following particulars of [X]’s abuse:
·That the child alleges she had been repeatedly physically and sexually abused by the father’s partner;
·The child alleges that she has been locked naked in the laundry in the dark for hours on end and has also been forced to stand naked in the backyard in extreme weather conditions for hours at a time, without food or water. She is not allowed to go to the toilet during these periods;
·The child alleges that she has been indecently and sexually assaulted by the father’s partner and had naked photos of her posted on internet sites;
·The child has been physically assaulted having her arm violently twisted and pulled by the father’s partner;
·On 11 September 2018 the father’s partner allegedly punched the child in the stomach with a closed fist;
·The father was aware of the abuse being perpetrated by his partner and did not intervene;
·The child alleges that the father and his partner have a tumultuous relationship and that the father usually drives off after they argue, leaving the child with the father’s partner which is when the abuse occurs.
Mr Magnusson, through his counsel characterises these allegations as being so lurid and extreme in nature as to be beyond the bounds of probability. He and Ms N vehemently deny subjecting [X] to such heinous crimes. Both assert that they love [X] and would do nothing to harm her.
In his response, he seek orders that would see [X] coming into his immediate care and having no or limited time with her mother. In his affidavit, he asserts that the evidence available indicates that it is more likely than not that [X] has been subject to some form of emotional manipulation emanating from her mother, which has caused her to parrot these allegations against Ms N, which she ([X]) does not understand, given her current level of cognitive development.
In these circumstances, he contends that it is the mother who represents an abuse risk to the child because she is intent on manipulating the child to mouth falsehoods against him which has the potential to cause [X] to suffer some form of emotional harm. He has also filed a Notice of Risk, which is in the following terms:
·The father asserts that the mother has fabricated allegations of physical and sexual abuse on the part of the father’s partner and communicating those allegations to the child to encourage a complaint;
·The child is exposed to ongoing abuse by adopting the mother’s fabricated allegations;
·The father asserts that the child has been subject to repeating false allegations made about the father – such allegations being fabricated by the mother;
·The father asserts that this behaviour is unbalanced and parentally irresponsible;
·The child remains exposed to the risk of fabricated allegations made against the father whilst the child is with the mother.
In the alternative, Mr Magnusson seeks the immediate reinstatement of the current regime for [X]’s time with him. Ms Darnell proposes that the time be suspended whilst further evidence is gathered. This would entail the production of documents from SAPOL and the Department of Child Protection pursuant to section 69ZW of the Act and [X] being subject to a private forensic investigation, including some form of interview with her to ascertain what, if anything, has happened to her.
In this context, it needs to be indicated that Ms Darnell has made a complaint to SAPOL of misconduct against Ms N involving [X]. As a consequence of this complaint, both Mr Magnusson and Ms N have been interviewed by police officers and their respective mobile telephones examined, with no incriminating material found. This happened on 15 September 2018.
In addition, [X] herself has been interviewed by child protection officers. This happened on 16 September 2018. I have not been provided with details of what she said other than that, on 22 September 2018, Brevet Sergeant E informed both Mr Magnusson and Ms Darnell that neither SAPOL nor Child Protective Services would be taking any further action in respect of the matter and certainly no charges are envisaged.
[X] has not been medically examined. As such, no evidence has been found of any assault on her person. Apart from her alleged disclosures to her mother, there is no other evidence of her having been mistreated or abused. There is no evidence of any further disclosures to any person apart from Ms Darnell. No physical evidence has been found of disturbing photographs.
However, Ms Darnell alleges that the child has been suffering disturbed sleep of late and is resistant to displays of physical affection. She is described as being clingy and going backward at school and in her therapy. She is said to be behaving oddly in the shower and does not want to go to swim therapy. The mother alleges that [X] does not want to go to her father’s home.
Ms Darnell asserts that it is possible, in some way, that Mr Magnusson and Ms N anticipated the police investigation and so were able to delete incriminating material from their phones. Ms N has denied that this was the case. It is her position that she suffered extreme shock when police came unannounced to her home on Saturday evening, whilst she was cooking dinner, and told her they wished to interview her and Mr Magnusson.
In her originating affidavit, Ms Darnell deposed as follows:
“The investigation is ongoing. The Police are taking the matter extremely seriously. They have arranged for someone from the medical division of Child Protection Department to do a physical examination.” [3]
[3] See mother’s affidavit filed 17 September 2018 at [44]
Ms Darnell seems patently mistaken in this assertion. It is her case that [X] wrote a letter, in her own hand, detailing the abuse she had suffered at Ms N’s hands. This letter was not alluded to in her affidavit. She explains the omission on the basis that it was taken by police and only returned to her later, after the decision not to investigate further had been made.
Mr Magnusson is deeply suspicious of the provenance of this letter and asserts that it is in a language of a level of sophistication which is beyond [X]’s capacity at present. In addition, to both Ms Darnell and in the letter, [X] is said to have asserted that she has been raped by Ms N. Again, it is Mr Magnusson’s position that [X] does not have any realistic concept of what is meant by rape and it is not a word likely to be in her everyday vocabulary.
It is Ms Darnell’s position, as it was in the earlier proceedings, that she is only doing what any parent would do who observes an emotionally distressed child who is not coping with her current situation. In these circumstances, she is fearful that the police may have conducted a cursory examination of the evidence and have not properly interviewed [X].
It is in these circumstances, she seeks to review the official documentation to see if contains some obvious omissions. More significantly, she wants some other suitably qualified expert to interview [X] about what she alleges the child has disclosed to her both verbally and in her letter.
Mr Magnusson sees it as a cut and dried case. The mother is either misguided or malicious. He fears that it would be abusive of [X] to subject her to a further form of forensic examination and such an intervention may very well run the risk of further muddying the waters, in respect of the issues arising in the case, in circumstances in which determinative proof of the truth of the allegations, one way or the other, is likely to be impossible, if it ever was, to be collated.
It is beyond the scope of these proceedings to determine definitively whether or not [X] has been sexually abused. As I will explain in due course, in cases involving allegations of sexual abuse of a young child, who is developmentally immature, it is very often the case that such a child is unable to provide a clear narrative of what has happened. Rather, the court must focus on [X]’s best interests, as the paramount or most important concern.
Necessarily, this exercise must focus on the degree of risk, which may arise for [X] if she is exposed to a person who may wish to use her as a source of sexual gratification. At the same time, there may also be significant risks of [X] suffering emotional harm, if a potentially beneficial relationship for her is either severed or artificially curtailed, on the basis of an imprecise or uncertain level of risk.
Necessarily, this hearing also takes place against a background of high emotion. The parties do not trust one another and their capacity to communicate about issues to do with [X], previously extremely limited, is now nil. All concerned should bear in mind that, at this stage, I am not making final orders in respect of [X]’s care nor am I in a position to make significant findings of fact about issues in dispute between the parties.
Legal principles applicable
The central issue, in the case, at this stage, centres on child protection issues. However, as I have already pointed out, at this interim stage and perhaps even after a final hearing, the court will not be in a position to make definitive findings as to whether or not [X] has been subject to some form of sexual abuse or exploitation.
Notwithstanding these evidentiary difficulties, arising at the interim stage, the court must still nonetheless make a decision and put in place the orders, which it considers will best regulate the situation, so far as [X] is concerned, according to the relevant principles contained in the Family Law Act 1975 (the Act).
In this context, it is clear that the court is required to consider child protection issues, in its decision making processes, and should not defer its responsibility, in this regard, because of deficiencies in the evidence before it or, more importantly, because it is not in a position to resolve definitively controversies arising between the parties, including in respect of potential child abuse issues.
In Deiter & Deiter[4] the Full Court said as follows:
“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”
[4] See Deiter & Deiter [2011] FamCAFC 82 at [61]
In SS v AH[5] the Full Court indicated, in the context of discussing the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned as follows:
“Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
[5] See SS v AH [2010] FamCAFC 13 at [100]
In Eaby & Speelman[6] the Full Court endorsed this approach as enabling “the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.” In essence, the court is not in a position to ignore child protection issues, merely because those issues are incapable of definite resolution, at the interim stage. This is the position in the matter currently before the court.
[6] See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19]
With those strictures in mind, I turn now to the specific provisions, within the Act, dealing with the making of parenting orders and the relevance of allegations of abuse to such orders. It is to be noted that although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.
In deciding to whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].
The matters which the court must take into account in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.
There are two primary considerations, which are as follows:
a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
As indicated above, in Deiter, the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it. These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; and, as in the present case, the risk of a child being exposed to a person’s sexual behaviour or more seriously the child being sexually assaulted or used as an object of sexual gratification.
In M & M,[7] a case which is factually congruent with the current matter, because it deals with an allegation of sexual abuse, the High Court formulated a test, which has since been referred to as the “unacceptable risk test” as means of balancing the benefits arising for a child of interacting with a parent with possible detriments arising from exposure to that parent. Essentially the court should not grant time to a parent with a child, if the situation envisaged would expose the child concerned to an unacceptable risk suffering some form of harm or abuse.
[7] See M & M (1988) FLC 91-979 at page 77,081
In the current case, I must analyse the evidence available to me relating to the various concerns raised by Ms Darnell to determine the degree of risk arising for [X] of spending time with her father. If, after this analysis, I consider any such risk to be unacceptably high, I should not countenance [X] spending time with her father in such circumstances. The standard of proof applicable to the assessment of risk, in this context, is the ordinary civil standard.[8]
[8] See B & B (1988) FLC 91- 957 at 76,935
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [9]
[9] Slater & Light [2013] FamCAFC 4 at [37]
Cases involving allegations of sexual abuse are particularly difficult. Given the context, in which such allegations arise, which very often include a child of tender years, whose verbal and cognitive skills are not fully developed; where there is a lack of corroborating physical evidence; and the only witnesses to the alleged abuse are the victim and the alleged perpetrator concerned; it may not be possible for the court to make a definitive finding, one way or another, whether sexual abuse did or did not occur. All these factors arise in the current case, with the child’s disclosure to Ms Darnell being the precipitating factor, in [X] being withdrawn from her father.
Nonetheless, notwithstanding these difficulties, the court must attempt to analyse, as best it can, all the available evidence, because the consequences of getting the case wrong are potentially horrifying. On the one hand, the potential detriment to a child, of being subjected to sexual abuse, represents:
“…the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, in both the short and long term, can be devastating.”[10]
[10] Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892 at [94]
On the hand, it may be equally emotionally devastating to a child to deprive him or her of a living and worthwhile relationship, with a parent, on the basis of a risk which is nebulous or elusive in nature, but may remain very real and concrete in the mind of the other parent concerned.
In addition, in some cases, allegations of sexual abuse (and subsequent allegations that some manipulation of a child has occurred in order to secure some form of damaging disclosure) occur in the aftermath of relationship breakdown or where the parents concerned communicate poorly, if at all, because of antipathy and suspicion.
For obvious reasons, such circumstances provide fertile ground in which words or actions can be misconceived, misunderstood or indeed be manipulated. Regrettably, it is also not unknown for allegations of sexual abuse to be made for tactical or mischievous reasons. It may be difficult to differentiate between these various scenarios and in some cases there may be a conflation of them.
As Fogarty J said in N&S and the Separate Representative:
“…courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”[11]
[11] See Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W (supra) at [95]
In W and W [Abuse allegations: unacceptable risk][12] the Full Court summarised a number of authorities dealing with abuse allegations. In particular, the Full Court approved the comments of Fogarty J in N & S and the Separate Representative[13]:
“Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often by required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations for the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
[12] W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
[13] See N & S and the Separate Representative (supra) at page 82,713-82,714
In the current case, I will endeavour to analyse the available evidence and pose to myself these types of question. However, this approach, at this current stage of proceedings, is not without its difficulties, given I am not able, as yet, to examine the primary documents which played a part in SAPOL’s decision not to take the matter further. In addition, I do not have any current and up to date assessment of [X]’s level of intellectual development and language skills.
Ms Darnell’s evidence was hastily prepared. She has not given any additional oral evidence in the case. In the earlier proceedings, she was described as extremely anxious by Ms R. This was the manner in which she present in court during the current proceedings.
As yet, she has not provided any evidence, expert or otherwise, to indicate how she would cope emotionally, if the court determines [X] should spend some time with her father at this stage. It is to be expected, however, that she would greet such an outcome with dismay. It is clear that the parties do not trust one another and have not communicated, face to face, for a number of years.
Such a state of affairs, for obvious reasons, does not lend itself to parents working through issues together, with a view to identifying why [X] has behaved in the way, in which it is said she has and arranging an appropriate response for such behaviour. Certainly, in court, she presented in a highly anxious manner. The parties have no way of dissipating the conflict and mistrust between them. In such circumstances, it seems inevitable that each will assume the worst possible behaviour and motivations on the part of the other.
In B and B [14] the Full Court said as follows:
“…It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.”
[14] B & B (1993) FLC 92-357 at 79,780
Accordingly, in this case, the risk to [X] is multifaceted and complex, comprising of the following elements, which remain inchoate:
·the risk of Ms N exploiting [X] sexually in future;
·the risk that [X] has been physically and emotionally abused by Ms N;
·the risk that [X] is fearful of her father and Ms N, because of some form of their previous conduct towards her, which will result in the child sustaining some form of psychological harm if she is exposed to them again;
·the risk that [X] will either lose or have unduly confined, for no proper reason, an otherwise worthwhile and loving relationship with her father, Ms N, [A] and [B];
·the risk that Ms Darnell genuinely but erroneously believes Ms N has sexually abused [X], in which circumstances, if the child spends time with her father, it will render Ms Darnell anxious and insecure and so compromise her psychological equilibrium with implications for her capacity to parent [X] adequately;
·the risk Ms Darnell is intent on destroying [X]’s relationship with her father because of her longstanding malice for Ms N and because of this is willing to alienate the child and manipulate [X] against her father, which has the potential to cause her great and lasting psychological harm;
·the risk that Ms Darnell is suffering some form of mental infirmity which renders her liable to delusions, which in turn may influence [X] and distort her view of the world at large, again occasioning her emotional harm.
These risks are different in nature and, as a consequence, are likely to call for different responses. The difficulty being that the court is not as yet able to identify definitively which risks are real and which are not. In addition, although unlikely, it is not beyond the bounds of possibility that Ms Darnell will concede that she is innocently mistaken and matters will return to their former equilibrium.
The evidence
Once again, I stress my acceptance of the fact that the mother’s affidavit has been hurriedly prepared, in an atmosphere of heightened emotion. Notwithstanding these factors, some aspects of her evidence left me with a sense of disquiet, for the following reasons.
Firstly, Ms Darnell has not placed into any context whatsoever [X]’s disclosures to her. Essentially, I do not know where and in what circumstances [X] is alleged to have disclosed these very disturbing allegations.
Secondly, the mother has not attempted to provide any verbatim account of what [X] said to her in precise terms. Rather, she speaks of the child making disclosures of repeated sexual assaults. Essentially, in her affidavit, there is no evidence of the child’s actual words or the emotional affect, which surrounded them.
Thirdly, Ms Darnell makes reference to a disclosure on 15 August 2018, which was a significant period before she sought to involve police. This is described as being the first disclosure. It arose in the context of the child allegedly being extremely sensitive to those around her and spending unusually long periods of time in the toilet. In addition, the child is reported to have expressed some degree of dissatisfaction about the sandwiches prepared for her by Ms N.
In this context, Ms Darnell deposes that the child disclosed to her that she was being “subjected to serious abuse at the father’s house”. Again, no context is provided and no attempt is made to express the disclosures in [X]’s phraseology. In addition, Ms Darnell concedes that it was she, rather than [X], who initiated the alleged disclosure conversation.
Fourthly, in the more recent disclosure allegedly made on 14 September 2018, Ms Darnell alleges that [X] disclosed that Ms N had started sexually abusing her when she was two years of age.
If this is true, it relates to a period prior to [X] and Ms N having met one another. In addition, for obvious reasons, one is inclined to have reservations that [X] would be able to recall events involving her when she was two years of age.
Ms Darnell further deposes that on the evening of 14 September, [X] began to open up with her about what she described as rapes. In this context, the child apparently described being mistreated by Ms N in the absence of her father. In this context, she is said to have said “Dad did not protect me”.
These more recent allegations reflect what is attributed to [X] in her letter. I have some concerns about the nature of this letter, which was not initially provided by the mother, but has more recently been provided to the court by her. In this letter, which is obviously written in an immature hand, [X] is alleged to have written as follows:
“Ms N raped me She took my clothes off meanly and hard on my skin when I said no and told her to stop.
She has been raping me since I was 3.
She takes pictures of me crying with no clothes on.
She puts a love heart on the picture and puts the Pictures on the internet for bad people who like children to see.
(The children are nakid)
She screams in my face and I cry.
She pulls and twists my arms every day.
She said to me this it was that my behavior and attityde stinks
She locked me in a dark room which was the laundry everyday for many hours with no food or drink.
She made me keep secrets and She said my mims a lier.
She punched me in the stomach really hard”
It is likely to be imprudent for a person in my position to attempt some exercise in paediatric semantics. I am not qualified to do so. However, certain things strike me about the letter. Firstly, the allegation of rape does not involve any obviously sexual element. It is provided in the context of the child being undressed roughly. Again, the allegation is that this raping has been occurring over last six years or so of the child’s life but apparently has not been disclosed earlier before her.
It is also unclear how she would know that pictures have been placed on the internet for bad people to see. It is also Mr Magnusson’s view that [X] is not a child with any sophisticated knowledge of punctuation, such as the use of brackets.
Finally, in my view, I would be naive to ignore the conflicted nature of the parties’ relationship. There is simply no trust between them and, as a consequence, no capacity for them to discuss the possible reasons for any aberrant behaviour displayed by [X] and so attribute or at least discuss some innocent explanation to them.
Rather, the first Mr Magnusson knew of these allegations was when police came to his home and later, Ms Darnell’s solicitor wrote to him indicating that [X] would not be made available to spend time with her father.
It is Mr Magnusson’s evidence that Brevet Sergeant E informed him that it was his view that, in her alleged disclosures, [X] was “using language beyond her ability which is generally considered coaching”.
In addition, he did not consider that [X] understood what was meant by the expression “rape”. Further, Sergeant E disclosed to Mr Magnusson that he had spoken to [X]’s medical advisors which had caused him to doubt the validity of the disclosures made[15].
[15] See father’s affidavit sworn 24 May 2018 at [6.6.2]
It is also Mr Magnusson’s evidence that he believes Ms Darnell is likely to be an unreliable witness on a number of basis. Firstly, he asserts that she has previously made unfounded allegations about the safety of [X], both in his care and that of another individual, namely, Dr V, which indicates that she is capable of acting either vindictively or irrationally.
In this context, Mr Magnusson recounts an instant, which allegedly took place in mid-2015, when he inadvertently ran into Ms Darnell in a rooftop bar one evening. He asserts that the mother behaved in a confrontational manner towards him, which was highly embarrassing and is indicative of her pathological attitude towards him.
Later, at 1:45am the following morning, police came to his home alleging that a complaint had been made of the child being left home alone. Mr Magnusson believes the only person who could have made this complaint is Ms Darnell.
During the earlier proceedings, Ms Darnell enlisted Dr V as one of her witnesses. In this context, she (Dr V) was critical of some aspects of Mr Magnusson’s behaviour and strongly supportive of the mother as a protective and appropriate parent.
In this context, it is Mr Magnusson’s evidence that he has subsequently been advised that the mother and Dr V fell out as a consequence of Ms Darnell alleging that Dr V had sexually abused [X] during one of the child’s speech therapy sessions.
In this context, he has provided a letter from Dr V to Ms Darnell dated 26 October 2015, in which the former protests her innocence to the latter and indicates that she would “not harm one hair” on [X]’s head. In her letter, Dr V wrote as follows:
“I can’t imagine who has planted such an idea in [X]’s head. It is obviously hurt me and confused me very, very deeply because it is the opposite of everything I stand for.
…I have always had great affection for you too Ms Darnell and I am so very, very sorry to hear that you have been troubled by this completely unbelievable accusation. I am so sorry that you won’t continue to be part of our ‘family’ any longer.” [16]
[16] Ibid at Annexure 1
Mr Magnusson asserts his opinion that Ms Darnell has coached [X] to fabricate her disclosures for the following reasons:
· The Mother did not choose to contact him between 15 August and 14 September 2018 in respect of any of the alleged disclosures;
· This is notwithstanding the court orders which require the parties to communicate directly with one another by email, in respect of all issues to do with [X]’s care, welfare and development, particularly in the context of emergencies;
· The mother has previously not been slow to raise issues of concern to her about his involvement with [X];
· Notwithstanding the serious allegations, the mother continued [X] to continue to spend time with him regularly;
· Rape is not a word within [X]’s comprehension and is not a word used in his household;
· He doubts the probity of the words Dad did not protect me, which have been attributed to [X];
· The allegations only concern Ms N and are asserted to have occurred whilst he is personally away from home. It is his evidence that Ms N works only on weekends and accordingly, there is no opportunity for [X] to be left in her sole care for any significant period of time, which would theoretically allowed for the alleged abuse to have occurred;
· It is implausible that [A], who is aged four, would have repeatedly reported abuse to his father who had taken no notice. In this context, Mr Magnusson points to the fact that Ms Darnell has never met [A].
Mr Magnusson describes [X] as a child whose social skills are a challenge due to her autism. However, he is also very proud that she has been able to attend a mainstream school and has attained satisfactory progress there. In this context, he points to the fact that he has never received feedback from any of [X]’s teachers to suggest that her behaviour, at school, in any way unacceptable or concerning.
In these circumstances, he asserts that it is bordering on the impossible to assert that a child that had been subjected to the protracted and serious incidents of abuse would not have come to the attention of the school authorities, at some earlier stage.
Ms N was, for understandable reasons, a nervous witness. She did not anticipate that she would be called by me to give her response to the allegations of child support levelled at her. However, in my view, she acquitted herself well in the witness box and presented as credible and honest. I certainly found her to be so.
She appeared, at first blush, utterly conventional in her attitudes and, like Ms Darnell herself, to be an attractive and well-dressed person in her forties. In my assessment, she appeared entirely honest and straight forward. She categorically denied doing anything inappropriate towards [X] and indicated that she loved her dearly.
In this context, I appreciate that witnesses frequently lie on oath, often very convincingly, and as such, I would be naïve to think that sworn evidence, of itself, provides a window into the heart or mind of any human being. In addition, at this juncture, there is no other independent evidence available to challenge Ms N’s account.
Necessarily, as a consequence of its nature, humanity is capable of throwing up endless surprises and unanticipated aberrations from the norm of ordinary human behaviour. As such, I cannot rule it as being impossible that Ms N is not as she appears but rather is some form of human monster, who is outside the ordinary norms of human behaviour.
However, at this stage, the opportunity for me to have some form of formal dialogue with Ms N, whilst she was under oath, is likely to provide me with the best tool available to assess her bona fides and insight into caring for a child such as [X]. In this context, I note that Ms Darnell herself has elected not to try and make such an assessment personally; whilst Sergeant E has apparently done so, in the context of the discharge of his professional duties.
In this context, Ms N described being totally surprised by the visit of police to her home. She indicated that four officers attended – two male police officers and two female child protection officers. She herself was interviewed for between 45 minutes to an hour. Mr Magnusson was spoken to separately to her. I accept this evidence. As such, it does not seem to me that the police approached the complaint made to them in a tokenistic manner.
Ms N works as a (occupation omitted) at a (employer omitted). She deposed that she found [X] to be a happy child, who was easy to get along with. Due to her special needs, Ms N described a child who was diffident in social situations and who was unsophisticated in her use of language, answering questions monosyllabically.
As previously indicated, Ms N indicated that she had met Ms Darnell on two or three occasions, for short periods of time, the last of which was at court in 2014. She conceded that her difficult relationship with Ms Darnell was a product of their shared history. Previously, she would have welcomed the opportunity to develop some rapprochement with her but now considered any future dialogue between the two was impossible.
In closing, I asked Ms N what she thought she would say to [X] the next time she saw her. She said she would say “We’ve missed you.” This seemed to me to be a heartfelt statement. In this context, Ms N indicated that [A] had been enquiring of her where [X] was.
My overall assessment of Ms N was that she was a kind and loving person, who was deeply shocked at the allegations of impropriety levelled against her. She seemed to be a sensitive and insightful parent. She has never been in trouble with the authorities before. She denied any issues with substance abuse.
Conclusions
It is now necessary for me to attempt to characterise the degree of risk, likely to arise for [X] of both spending time in her father’s household, in the short to medium term and of having her relationship with her father, Ms N and half siblings interrupted for a period of possibly weeks or months. In particular, I must endeavour to determine whether any particular risk posed for [X] is an unacceptable one for me to countenance on her behalf.
One’s natural inclination, when confronted with allegations that a child has been exposed to the persistent cruelty, neglect and exploitation, as alleged by the mother, is disbelief that an adult could behave in such a disgusting and despicable fashion towards a child.
However, the sad reality is that parents and others do sexually abuse their children and expose them to all manner of sexual aberrancy. In addition, individual placed in a position of trust for children do, on occasions, assault their charges and subject them to inappropriate, even sadistic behaviour. As a consequence, the court must remain vigilant in respect of all allegations of sexual abuse and neglect, no matter how seemingly improbable.
As with the majority of parenting cases, arising at the interim stage, the present matter falls for determination by reference to the two primary considerations, arising in section 60CC, noting the priority to be given to protective concerns.
However, in my view, this priority does not mean that the court should not give some level of consideration to the benefits, which a child is likely to derive, from having a meaningful level of relationship with a parent. The aim of the legislation is to ensure that the court does not overlook issues of protection because of an undue emphasis on parental relationships.
I have endeavoured to give the matters raised by Ms Darnell my real and substantial consideration. I am well aware that her allegations arise in the context of a truncated interim hearing, in which necessarily the evidence available to me is limited. However, in my view, I would be remiss if I did not attempt to make some assessment of the degree of risk arising but rather elected to defer that consideration to another time.
In addition, in my view, in such an approach might result in [X]’s relationship with her father being subjected to unwarranted pressures and interruption, when it is highly possible that any such adjournment will not produce any further probative evidence. In this context, it is highly significant that the SAPOL and child protection inquiries have been concluded and a decision made that there is no case to answer, in respect of criminal allegations made against Ms N.
In this context, I am gravely concerned that to delay the father’s resumption of time with [X] would serve no useful forensic purpose but be potentially emotionally detrimental for [X]. I reach this conclusion because SAPOL and the Department of Child Protection have gathered evidence and elected not to proceed further. In these circumstances, it seem to me to improbable that any documents, produced pursuant to section 69ZW, will indicate that either department has overlooked some salient piece of evidence.
More significantly, I am concerned that to subject [X] to some further form of forensic interview, a significant period after the first disclosures were allegedly made, in circumstances in which she has been withheld from her father and in which her mother is likely to be emotional overwrought, are unlikely to produce any useful evidence, in the context of these family law proceedings, other than to demonstrate the powerful emotional forces at play on [X] herself.
It is also relevant, I think, that [X] has already been interviewed. There are risk of her being interviewed again. It may represent a form of systems abuse for this child, who all agree has special needs and is not particularly adept at expressing herself linguistically, to be interviewed again.
Accordingly, in terms of establishing the degree of risk, that leaves the alleged disclosures themselves, in the absence of any other evidence to indicate the child has been subject to abuse. In this context, I turn to the considerations listed by Fogarty J in N & S.
In my view, the level of detail said to be provided by [X], is puzzling. The context is limited. There is nothing specifically sexual in the disclosures. The events complained of are alleged to have occurred regularly over many years. Yet no other indications of them have appeared to any other person involved in [X]’s life. There is no expert evidence to support them. They have been rejected by the authorities responsible for child protection in this state.
[X] is said to be displaying signs of emotional dysregulation. That may be so but it does not necessarily mean she has been systematically sexually abused and neglected over many years. It is possible that she may be reacting to some other stressful circumstance in her life, including the continuing acrimony between her parents. In this context, again in my view, it is significant that there is no expert evidence available, which has examined the possible origins of this behaviour.
It is also significant that Ms N resolutely refutes the allegation that she has utilised [X], in some way, as the subject of internet child pornography. She presented as an unexceptional wage earner, with no prior convictions, who works in a (employer omitted) on weekends. She is the mother of two other children. Otherwise, she has limited time alone with [X]. I concede it is possible that Ms N is a sophisticated liar, with sociopathic tendency, who is able to shield her activities from scrutiny with a cloak of apparent normalcy, but it does not seem probable.
In my view, it is also appropriate to examine the circumstances in which the disclosures arise. The parents concerned have had a highly dysfunctional relationship over many years. It has not improved over that time. The dysfunction stems from the emotionally laden situation leading to their separation. Ms N, the subject of the allegations, was central to that separation.
The evidence available to me indicates that [X] has a close and loving relationship with her father. Certainly that was the view of Ms R. I have no reason to consider that she does not have close relations with her half sibling also. Accordingly, in my view, there would need to be compelling evidence to justify these central relationships for [X] being disrupted for any lengthy period of time, given the benefits she is likely to derive from them.
Ms Darnell’s case is presented on the basis that she has little doubt that something is seriously amiss with [X] and the cause of this are events in the father’s household. She has had no personal exposure to this household for many years and is not in a position to say what occurs in it, from her knowledge. Her stance in the previous proceedings was to characterise Mr Magnusson as an aggressive and damaged person. She has not been able to make good these allegations, as yet. She compromised the earlier proceedings.
I accept that Ms Darnell is likely to be anxious by disposition. She is also the provider of more of [X]’s care than her father. In these circumstances, she is likely to respond in an emotionally labile fashion to any reinstatement of time spending arrangements for [X]. This is a factor which cannot be overlooked. But, in my view, it is one factor, amongst many, which are germane to [X]’s best interests and, in my assessment, it is not the most significant one.
The change of residence proposed by Mr Magnusson strikes me as being too much of a change of [X]’s circumstances, to be justifiable as being in her best interests at this stage. In any event, Mr Magnusson did not actively pursue this proposal at hearing. He accepts that it is likely to be a better outcome, at this stage, if the previous longstanding arrangements can be reinstated.
I agree. In my view, the risks arising in this case are inchoate and uncertain. However, although I am bound to act cautiously, at this early provisional stage, I have come to the conclusion that, given the nature of the allegations made by Ms Darnell, it would not represent an unacceptable risk for [X] if she resumes her time with her father forthwith.
Out of an abundance of caution, I will make the section 69ZW order sought by the mother. I do not propose that there be the private forensic interview with [X], proposed by Ms Darnell, pursuant to section 11F of the Act.
In my view, if necessary, it would be a more productive use of expert resources for a further family assessment report to be prepared focused on the dynamics of the parenting relationship between Mr Magnusson and Ms Darnell and its emotional implications for [X]. However, I do not propose to make such an order as it is possible that with the resolution of the interim aspect of the case, no further proceedings are warranted.
In conclusion, I reiterate it is not my role to determine definitively whether abuse did or did not occur. Given the circumstances of the case – particularly [X]’s tender years and the absence of any objective corroborating evidence supporting the allegations – it is likely to be the case that no-one will ever be able to determine what has occurred with one hundred per cent certainty. As such, the issue will quite possibly remain controversial for Mr Magnusson and Ms N, on the one hand; and Ms Darnell, on the other. But in my view, this unresolvable controversy does not form the basis to interrupt an otherwise meaningful and beneficial relationship for [X].
In these circumstances, I will direct that during the period of an adjournment, the previous orders be resumed. I will dismiss the parties’ competing interim applications and adjourn the proceedings to 3 December 2018.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 28 September 2018
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Standing
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Statutory Construction
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