Dixon and Barnes & Ors
[2013] FamCA 12
FAMILY COURT OF AUSTRALIA
DIXON & BARNES AND ORS [2013] FamCA 12
FAMILY LAW - CHILDREN – Magellan – Where there are allegations of sexual abuse – where the allegations of sexual abuse have been ‘substantiated’ by child protection authorities – where there is no finding of sexual abuse
FAMILY LAW - CHILDREN – With whom a child lives with – where there are two children with two different fathers – where there is serious family violence – where the maternal grandmother has intervened – where one of the paternal grandmothers has intervened – whether it is in the best interests of the children to live with the maternal grandmother – where it is held not to be in the best interests of the children to live with the maternal grandmother - where it is not in the best interests of the children to live with the mother
Family Law Act 1975 s 60B(1), s 60CA, s 60CC, s 60CC(2), s 60CC(3)(m) and s 65DAC(2)
M and M (1988) 166 CLR 69
Marsden and Winch (No. 3) [2007] FamCA 1364
N and S and the Separate Representative (1996) FLC 92-655
Brigenshaw v Brigenshaw (1938) 60 CLR 336
Goode and Goode (2006) FLC 93-286
MRR and GR [2010] HCA 4
APPLICANT: Ms Dixon
1st RESPONDENT: Ms Barnes
2nd RESPONDENT: Ms Davies
3rd RESPONDENT: Mr Riley
4th RESPONDENT: Ms Martin
INDEPENDENT CHILDREN’S LAWYER: Berck & Associates
FILE NUMBER: BRC 6 of 2010
DATE DELIVERED: 25 January 2013
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Forrest J
HEARING DATE: 22-26 & 29 August 2011 REPRESENTATION
FOR THE APPLICANT: Ms Dixon in person
FOR THE 1ST RESPONDENT: Ms Barnes in person
COUNSEL FOR THE 2ND RESPONDENT: Mr Alexander
SOLICITOR FOR THE 2ND RESPONDENT: Legal Aid Queensland FOR THE 3RD RESPONDENT: Mr Riley in person
FOR THE 4TH RESPONDENT: Ms Martin in person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Carlton
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Berck & Associates Orders
(1)That all previous parenting orders be discharged.
PARENTING OF THE CHILD D (“D”), BORN … MAY, 2003
(2)That the father, Mr Davies, shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended) (“the Act”)) in respect of D, save that the father shall, prior to making the sole ultimate decision about any such issue:
(a)Advise the mother in writing of the decision intended to be made;
(b)Seek the mother’s written response in relation thereto;
(c)Consider, by reference to the best interests of the child, any such response prior to making any such decision; and
(d)Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
(3)That D shall live with the father in Sydney.
(4)That D shall spend time with and communicate with her mother at all times as may be agreed between the mother and the father in writing, but failing agreement then as follows:
(a)The father is to bring D to Brisbane, at his expense, for two single weeks per year in the NSW school holidays, and the mother is to spend time with D in those weeks as follows:
(i)With D alone for one single day in each of these weeks from 9am to 5pm;
(ii)With D at the same time as she has the child C (“C”) in her care from 9am to 5pm for 4 days in each of those weeks
with D to be delivered to and collected from her mother’s home at the commencement and conclusion of such time;
(b)That in the event the mother travels to Sydney, and provided she gives the father fourteen (14) days notice in writing, D shall spend time with her mother from 9am to 5 pm on any weekend or school holiday day the mother nominates, the mother to collect D from and return her to the father’s home on such days;
(c)By telephone or webcam/skype (if available) each Tuesday and Thursday between 6:00pm and 7:00pm (New South Wales time) with the mother to initiate such communication and the father to ensure that D speaks to her mother with privacy; and
(d)By telephone between 6:00pm and 7:00pm (New South Wales time) on D’s birthday, and the mother’s birthday, Mother’s day and Christmas Day with the father to initiate those calls by D to her mother.
(5)That D shall spend time with and communicate with her maternal grandmother, Ms Dixon, at all times as may be agreed between the father and the maternal grandmother in writing, but failing agreement, as follows:
(a) When D is in Brisbane in accordance with paragraph 4 hereof, for two half days in each such week at a recognised contact centre, and at her expense, with D to be delivered to and collected from the centre by her father at the commencement of and conclusion of such allotted time;
(b) That in the event the maternal grandmother travels to Sydney, and provided she gives the father fourteen (14) days notice in writing, D shall spend time with her maternal grandmother for a one half day period at a recognised contact centre, at her expense, and provided D has no prior school or social arrangements at that time;
(c) That for the purposes of the maternal grandmother spending time with D, the father shall deliver D to the agreed contact centre and collect D from that centre at the commencement and conclusion of the maternal grandmother’s allotted time;
(d) That the father and the maternal grandmother shall do all things necessary and required of them to register with and be able to use an agreed recognised contact centre in Brisbane and/or in Sydney for the purposes of D spending time with the maternal grandmother pursuant to these orders;
(e) By telephone each second Wednesday between 6:00pm and 7:00pm (New South Wales time) with the maternal grandmother to initiate such communication and the father to ensure that D speaks to her maternal grandmother with privacy; and
(f) By telephone between 6:30 pm and 7:30pm (New South Wales time) on D’s birthday and Christmas Day with the maternal grandmother to initiate such communication and the father to ensure that D speaks to her maternal grandmother with privacy.
(6)D shall be able to communicate with C at all reasonable times by webcam/ skype (if such technology is available to them) or telephone.
(7)The mother, father and maternal grandmother must keep each other informed of their landline and mobile telephone numbers and their residential address and must notify the other parties of any change of those in writing within forty eight (48) hours of such change occurring.
(8)The father shall notify the mother of the name and address of the school D attends and the names and addresses of any doctors and allied health care practitioners D attends and this Order is authority for the mother to obtain, at her expense, from any school D attends all information, records, files, reports, photographs and like documents that parents are permitted to obtain and from any doctors and allied health care practitioners D attends, all information, written or oral, that parents are permitted to obtain.
(9)Each of the father, the mother and the maternal grandmother shall notify the other in the event of serious injury to, serious illness or hospitalisation of D whilst in their respective care.
(10)The mother and the father and the maternal grandmother are hereby restrained from exposing D to any form of domestic violence or inappropriate sexual behaviour.
(11)The mother and the father are hereby restrained from excessive consumption of alcohol, such that it would be unlawful for them to drive a motor vehicle on a public road in Australia, whilst D is in their respective care.
(12)The mother and the father shall not use or be under the influence of any illegal drug whilst D is in their respective care.
(13)The mother, the father and the maternal grandmother shall not denigrate, or permit any other person to denigrate any of the other parties to or in the presence of, or within hearing of, D.
(14)The mother, the father and the maternal grandmother shall not discuss these court proceedings, or any of the matters raised within them, with D.
(15)The mother and the father and the maternal grandmother shall not transport, or permit others to transport D in a motor vehicle which is unregistered or uninsured or un-roadworthy or which is driven by a person without an appropriate licence.
(16)The mother, the father and the maternal grandmother shall not use physical means to discipline D.
(17)That the father shall contact D’s last school and that school’s guidance officer and the persons responsible for the … program D was involved in and obtain a report and recommendations from them to provide to D’s new school in Sydney.
(18)That the mother is permitted, when she is in Sydney, to attend any school functions, parent/teacher interviews, sport days and any other school activities at D’s school that parents are welcome by the school to attend.
(19)That the father shall take D to a paediatrician within thirty (30) days to have her assessed in relation to whether she has ADHD and he shall provide the mother with a copy of the written assessment, and the father shall follow the recommendations of the paediatrician regarding treatment recommended by him or her, if any.
(20)That the father shall within twenty one (21) days, obtain a referral for D from his general practitioner to a suitably experienced child and adolescent psychiatrist and then forthwith make an appointment for D to attend upon that psychiatrist and the father shall ensure that all treatment and recommendations made by that psychiatrist, including recommendations for counselling or psychotherapy, be undertaken.
(21)The father shall provide that psychiatrist, and any counsellor or psychotherapist D is referred to by that psychiatrist with the following documents:
(a) The Magellan Reports dated 8 July, 2010 and 16 August, 2011 from the Queensland Department of Community Services;
(b) The reports of Family Consultant, Ms M filed 15 September, 2010 and 3 August, 2011; and
(c) These Orders and the Reasons for Judgment in this matter when they become available.
(22)That the mother and the father shall not:
(a) allow D to have any contact with Mr Riley;
(b) permit D to communicate with Mr Riley; and
(c) allow any third party to bring D into any form of contact with Mr Riley;
unless such contact or communication is recommended by the psychiatrist who D sees, or the counsellor or psychotherapist who D sees on referral from the psychiatrist.
(23)That notwithstanding any other provision of these Orders there is to be no contact between the maternal grandmother and D for a period of six (6) weeks from the date hereof.
(24)The Independent Children’s Lawyer shall supply to NSW Department of Community Services the following documents:
(a) The Magellan Reports dated 8 July, 2010 and 16 August, 2011 from the Queensland Department of Community Services.
(b) The reports of Family Consultant, Ms M filed 15 September, 2010 and 3 August, 2011; and
(c) These Orders and the Reasons for Judgment in this matter when they become available.
PARENTING OF THE CHILD C, BORN 24 AUGUST, 2008
(25)That the paternal grandmother, Ms Martin and the father, Mr Riley shall have equal shared parental responsibility for the child C in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended) (“the Act”) save that they shall, prior to making a decision about any such issue:
(a) Advise the mother in writing of the decision intended to be made;
(b) Seek the mother’s written response in relation thereto;
(c) Consider, by reference to the best interests of the child, any such response prior to making any such decision; and
(d) Advise the mother in writing as soon as reasonably practicable of their ultimate decision.
(26)That the child, C shall live with the paternal grandmother and the father is at liberty to also reside in the paternal grandmother’s home with the child.
(27)That C shall spend time with and communicate with the mother at all reasonable times as agreed between the paternal grandmother, the father and the mother and if there is no agreement then as follows:
(a)By telephone and webcam/skype (if available) communication at all reasonable times;
(b)Each alternate weekend from 9am to 5pm Saturday and 9am to 5pm Sunday until such time as C starts school then at those times on each alternate weekend during school term;
(c)From when C enters Grade 1, for up to one half of the Queensland gazetted school holidays on a daily basis from 9 am to 5 pm;
(d) From 9 am to 5 pm on Mothers Day;
(e)For 3 hours on C’s birthday, if it is a school day and for one half day if C is not in school or it is a weekend; and
(f)From 9 am to 1 pm on 25 December in odd numbered years, and from 1 pm to 5 pm in even numbered years.
(28)That C shall spend time with and communicate with the maternal grandmother, Ms Dixon, at all times as agreed between the paternal grandmother, the Father and the maternal grandmother in writing, but failing agreement, as follows:
(a)In the event that the maternal grandmother travels to Brisbane and provided she gives the paternal grandmother, the father and the mother fourteen (14) days notice in writing, for a one half day period at a recognised contact centre, at her expense;
(b) That for the purposes of the maternal grandmother spending time with C, the paternal grandmother or the father shall deliver C to the agreed contact centre and shall collect C from that centre at the commencement and conclusion of the maternal grandmother’s allotted time.
(c) That the paternal grandmother, the father and the maternal grandmother shall do all things necessary and required of them to register with and be able to use an agreed recognised contact centre in Brisbane for the purposes of C spending time with the maternal grandmother pursuant to these orders.
(d)By telephone each alternate Wednesday between 6:00pm and 7:00pm; and
(e)By telephone between 6:00pm and 7:00pm on C’s birthday and Christmas Day.
(29)That C shall be able to communicate with D at all reasonable times by telephone and webcam/skype (if available).
(30)The paternal grandmother, the mother, the father and the maternal grandmother shall keep each other informed of their landline and mobile telephone numbers and their residential address and must notify each of the others in writing within forty eight (48) hours of any change to those.
(31)The paternal grandmother and the father shall notify the mother of the name and address of any school or day care provider C attends and the names and addresses of any doctors and allied health care practitioners C attends and this Order is authority for the mother to obtain, at her expense, from any school or day care provider C attends all information, records, files, reports, photographs and like documents that parents are permitted to obtain and from any doctors and allied health care practitioners C attends all information, written or oral, that parents are permitted to obtain.
(32)Each of the paternal grandmother, the father, the mother and the maternal grandmother shall notify the other in the event of serious injury to, serious illness or hospitalisation of C whilst in their respective care.
(33)The paternal grandmother, the mother, the father and the maternal grandmother shall not expose C to any form of domestic violence or to inappropriate sexual behaviour.
(34)The paternal grandmother, the mother, the father and the maternal grandmother shall refrain from excessive consumption of alcohol, such that it would be unlawful for them to drive a motor vehicle on a public road in Australia, whilst C is in their care.
(35)The paternal grandmother, the mother, the father and the maternal grandmother shall not use, or be under the influence of, or expose C to others using or being under the influence, of any illegal drug, whilst C is in their care.
(36)The paternal grandmother, the mother, the father and the maternal grandmother shall not denigrate, or permit others to denigrate, any of the other parties to or in the presence of or within the hearing of C.
(37)The paternal grandmother, the mother, the father and the maternal grandmother shall not discuss these court proceedings, or any issue raised in them, with C.
(38)The paternal grandmother, the mother, the father and the maternal grandmother shall not transport or permit others to transport C in any motor vehicle which is unregistered or uninsured or un-roadworthy or which is not fitted with age and weight appropriate child restraints/child seats for C or which is driven by a person without the appropriate licence.
(39)The paternal grandmother, the mother, the father and the maternal grandmother shall not use physical means to discipline C.
(40)That the paternal grandmother, the father and the mother are all at liberty to attend school functions, sporting functions, parent/teacher interviews and any other school activities at any school C attends and any similar activities at any day care provider or kindergarten/pre-school that C attends.
(41)That notwithstanding any other provision of this Order there is to be no contact between the maternal grandmother and C for a period of six (6) weeks from the date of these Orders.
OTHER ORDERS
(42)That the father, Mr Davies, and the paternal grandmother, Ms Martin, keep each other informed as to their respective landline and mobile telephone numbers and advise the other within 48 hours of any change to same.
(43)That in the event that there is a dispute about the children or about the interpretation, implementation or enforcement of these orders, the parents, the maternal grandmother and the paternal grandmother, before making any further application to a Court, shall:
(a)either attend counselling or mediation with an organisation recognised under the Family Law Act1975 (as amended) or by the Commonwealth Attorney- General; or
(b)participate in family dispute resolution with a Family Relationship Centre or a person authorised under s 10G of the Family Law Act 1975 (as amended).
44.The Independent Children’s Lawyer shall supply to NSW Department of Community Services the following documents:
(a)The Magellan Reports dated 8 July, 2010 and 16 August, 2011 from the Queensland Department of Community Services;
(b)The reports of Family Consultant, Ms M filed 15 September, 2010 and 3 August, 2011; and
(c)These Orders and the Reasons for Judgment in this matter when they become available.
45.That the Independent Children’s Lawyer be discharged on the delivery of the Reasons for Judgment in this matter.
46.That Family Consultant, Ms M shall be responsible for informing the children of the decision of the Court.
47.That the second respondent father, Mr Davies, shall collect the child D from Ms M in the child care centre at such time as Ms M indicates is suitable.
48.That the fourth respondent paternal grandmother, Ms Martin, and the third respondent father, Mr Riley, shall collect C from Ms M in the child care centre at such time as Ms M indicates is suitable.
NOTATION
It is recommended:
(a) That the mother undertake counselling in respect of domestic violence and anger management;
(b) That the father Mr Davies undertake counselling in respect of domestic violence and anger management and his abuse of alcohol; and
(c) That the father Mr Riley undertake counselling in respect of domestic violence and anger management.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dixon & Barnes and Ors 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 BRISBANE FILE NUMBER: BRC 6 of 2010
Ms Dixon Applicant
And
Ms Barnes First Respondent
And
Mr Davies Second Respondent
And
Mr Riley Third Respondent
And
Ms Martin Fourth Respondent
REASONS FOR JUDGMENT
introduction
1.On 22 December 2011, I made parenting orders in respect of the two little girls, D, who is 9 years old and C, who is 4 years old. The girls are sisters who have the same mother but different fathers. My orders provide for D to live with her father in Sydney and for C to live with her paternal grandmother and her father in Brisbane. The orders also provide for each child to spend time with their mother and each other and also with their maternal grandmother.
2.The hearing of the competing applications of the mother, the two fathers, C’s paternal grandmother and the girls’ maternal grandmother went for 6 days. An Independent Children’s Lawyer was also a party to the proceedings. The Director-General of the Queensland Department of Communities (Child Safety Services) (as the Department was then called), although requested by the Court to intervene in the proceedings, decided, for reasons not known to the Court, not to do so.
3.The case involved multiple issues of alleged sexual abuse, drug and alcohol abuse, chronic domestic violence, as well as fractured and toxic adult relationships. Despite this, at the end of the hearing, decisions about the living and parenting arrangements for the two little girls had to be made. None of the various alternatives proposed to the Court by the six parties stood out as being ideal and risk free for these two children. Notwithstanding the fact that the orders have the rather unfortunate result of separating the two sisters on a day to day basis, this is what I ultimately determined was the best outcome available to the Court in all the circumstances, bearing in mind the Court’s statutory obligation to regard the best interests of the children as the paramount consideration. These are my reasons for reaching that decision.
Some Background
4.The maternal grandmother, Ms Dixon, is 48 years of age. She had 3 children of a former marriage to a man with the surname Barnes. The youngest of those children, Ms Barnes, is now 29 years of age. She is the mother of the two girls who are the subjects of these proceedings. Ms Dixon is now married to Mr Dixon, a government employee. At the time of the trial she was living at Town A, on the northern outskirts of Brisbane. Mr Dixon was living in government accommodation in Brisbane. They both said they were separated but planned reconciliation with a posting to North Queensland that was pending for Mr Dixon at the time of the trial.
5.Mr Davies is 32 years of age. He is D’s father and he lives in Sydney with Ms B and her five children who range from 15 to 5 years of age. They are children of Ms B’s three prior relationships. She and Mr Davies have been living together since September 2009.
6.Mr Davies and Ms Barnes met in 1999/2000 and began living together in 2001. D was born in 2003. They spent some time living together in Sydney before moving to Brisbane. They separated in mid-2006 and Mr Davies returned to live in Sydney at that time. There was a lot of domestic violence between them when they were together as a couple.
7.Mr Riley is 30 years of age. He is C’s father. His mother, Ms Martin, was married to Mr Riley’s father, Mr Riley Senior, when Mr Riley was born. She later married a man with the surname Stevens and Mr Riley went by that name for most of his life. Ms Martin is now married to a man with the surname Martin and Mr Riley has reverted to the surname Riley.
8.Mr Riley was previously married and has an 8 year old son, E. Mr Riley and Ms Barnes commenced their relationship around 2007 and C was born in 2008. Although at the time of the trial, they claimed that they were no longer together, having separated in early 2010, I was not satisfied that their relationship was actually really over. They were clearly still spending a lot of time in each other’s company and I was quite satisfied that they still had strong feelings for each other. At that time, I considered it to be very probable that they would again take up cohabitation in the one residence.
9.There was evidence that Ms Dixon had been sexually abused by her mother and step-father as a child and that as a young adult she had voluntarily placed her three little children in foster-care for a short period of time, not being able to care for them. There was evidence that she used excessive physical discipline quite freely on her children as they grew up. There was also evidence of frequent conflict between her and Mr Dixon in more recent times, as well as completely unrestrained use of extremely foul and abusive language by Ms Dixon on a day to day basis, in her verbal and written communication with people. There was also evidence that Ms Barnes’ brother, Mr Barnes, suffers quite severely from a mental illness and was living in Ms Dixon’s home at the time of the trial.
10.Most of the negative evidence about Ms Dixon was put before the Court by her daughter, Ms Barnes. Although the two of them clearly have a continuing relationship, it is clearly extremely volatile and involves a lot of regular conflict between them. They certainly did not agree about a lot of matters dealt with in the evidence before the Court. Whilst I did not accept all of the evidence given by Ms Barnes in the proceedings, generally, where the evidence of Ms Barnes and Ms Dixon conflicted, I preferred the truthfulness of Ms Barnes’ accounts. Ms Dixon was a very unimpressive witness overall, sadly presenting as a very dysfunctional personality. Though impressing me as more credible than her mother, Ms Barnes, too, presented as a clearly dysfunctional personality. The impressions these two women left on me greatly influenced my ultimate determination that the best interests of the two little girls required them to be principally cared for by adults other than either of their mother or maternal grandmother.
11.Ms Barnes and Mr Davies were very young when they started living together. Ms Barnes was only about 17 or 18 and Mr Davies about 20 or 21. Although Mr Davies denied having assaulted Ms Barnes during their relationship, I do not accept his denials. New South Wales police records obtained by subpoena and put into evidence by the ICL, satisfy me that there were occasions when Mr Davies and Ms Barnes were involved in quite serious physical fights, including after D’s birth, when she was in their care. I have no doubt that Mr Davies perpetrated serious violence against Ms Barnes. Equally though, I find that Ms Barnes perpetrated violence against Mr Davies.
12.For a time, they lived in Brisbane with Mr and Ms Dixon. The circumstances surrounding their departure from the Dixon’s house was disputed. Ms Dixon asserts that it was because of their drug use in her home, whilst Ms Barnes and Mr Davies assert that it was related to unwanted sexual advances made towards Ms Barnes by Mr Dixon. I have no difficulty finding that Mr Davies and Ms Barnes used marijuana regularly throughout their relationship, but I do not consider that to be the sole reason for Ms Dixon asking them to leave. Ms Dixon herself has a past conviction for possession of the drug. Although Mr Dixon denied kissing Ms Barnes other than platonically, I am satisfied that Ms Dixon was concerned that there was more to the incident than that and that she asked her daughter and Mr Davies to leave her home primarily because of something that happened between Mr Dixon and Ms Barnes that made Ms Dixon unhappy.
13.In or around 2006/2007, not long after Ms Barnes and Mr Davies moved out of the Dixon’s home, they separated and Mr Davies returned to Sydney. When Mr Davies returned to Sydney he formed a relationship with another woman and Ms Barnes formed a relationship with Mr Riley. Mr Davies’ new relationship soon ended badly when he assaulted his partner after finding her engaged in sexual activity with another man. Mr Davies was convicted of assault occasioning actual bodily harm arising out of that and served a term of imprisonment for several months. He served that concurrently with a prison sentence for driving whilst disqualified, for which he was convicted. At the same time, he was also disqualified from holding a driver’s licence until 2019, having been disqualified from holding a licence several times before that for drink driving.
14.In the immediate aftermath of the separation from Ms Barnes, Mr Davies took no steps to have D live with him, clearly accepting Ms Barnes as D’s principal carer. However, he and Ms Barnes, despite the conflict that had permeated their relationship, were able to informally make parenting arrangements between them that permitted D to spend regular holiday time with Mr Davies in Sydney. That lasted until the Christmas school holidays in 2009/2010 when Mr Davies decided to retain D and not return her to Ms Barnes at the end of her holiday visit with him.
15.Mr Riley and Ms Barnes also had a relationship in which there was a significant amount of drug abuse and domestic violence between them. Queensland Police records and records of the Queensland Department of Child Safety (as it was then called) produced pursuant to subpoena and put into evidence by the ICL clearly show a pattern of serious domestic violence between the two of them. I consider it significant enough to set some of it out.
16.The records show that police were called to a fight between Mr Riley and Ms Barnes that took place in the presence of the children, E and D, in April 2008 when Ms Barnes was pregnant with C. They show that police were called to another incident between them in February 2009 in which property was damaged, punches were thrown and Ms Barnes alleged Mr Riley tried to strangle her. Apparently, according to the Police records, these events were witnessed by D and baby C.
17.Police were again called to another incident in April 2009. Property was again damaged and Mr Riley drove Ms Barnes’ car into a pole and they both scratched each other’s cars with their car keys. E, D and C were all present on this occasion. Domestic Violence Protection orders of two years duration were made on police applications for both parties at this time.
18.Police were called to another incident in July 2009 that involved Mr Riley, Ms Barnes, Ms Barnes’ brother, Mr Dixon and Mr Riley’s brother. There was a bit of a melee that day with all being involved in the violence whilst the children were present in the home. That incident arose out of a separation between Ms Barnes and Mr Riley and involved Mr Riley and his brother against Ms Barnes, Ms Barnes’ brother and Mr Dixon. Ms Dixon and her other daughter, Ms H, were also there and involved in that violence.
19.Police were called to yet another incident in October 2009 after receiving a report of fighting between Mr Riley and Ms Barnes.
20.The evidence reveals that during the period of 2008 to 2010, the relationship between Mr Riley and Ms Barnes oscillated between strong commitment and support of each other on the one hand and violence and repeated separation and reconciliation on the other. During this same period, allegations that Mr Riley sexually abused the eldest child, D, also emerged, placing further serious strain on their relationship. It was Ms Dixon who first contacted the Queensland authorities with such allegations. Relevantly, I am satisfied Ms Dixon never had any good regard for Mr Riley, apparently often exhorting Ms Barnes to end her relationship with him, even before the allegations of sexual abuse by Mr Riley were first reported by her.
The Allegations of Sexual Abuse
21.The Police and Departmental records put into evidence, along with the two Magellan reports submitted to the Court by the Department, reveal that the Department was first notified in September 2008 of concerns that Mr Riley had sexually abused D.
22.Ms Dixon contacted the Department informing that the child, D, had stated that “[Mr Riley’s first name] has kissed my privates” and that D had been noticed exhibiting sexualised behaviour such as trying to undo the zipper on the trousers of males, putting a vibrating toy in her underwear at least two times and “masturbating” at least two times.
23.Although there was serious inconsistency in the various accounts given by Ms Dixon, Mr Davies, Ms Barnes and Mr Riley about the actual event, it seems that the disclosure said to have been made by D was first reported in some form to Ms Barnes, in Mr Riley’s presence, by the child one evening a few weeks before the date of the notification to the Department. The child had been playing in the bedroom with her step-brother, E, with the door closed. She then came out to the kitchen and said to Ms Barnes, in front of Mr Riley, “[Mr Riley’s first name] [Mr Riley] kissed my privates”. Mr Riley said, in evidence, that he denied it straight away and asked D why she said that and she just shrugged her shoulders. It is said the child did not say anything further and was told to go and get E. Ms Barnes, who admitted being under the influence of marijuana at the time, apparently raised it with Mr Riley immediately, asking him if he had done it. In her evidence in Court, Ms Barnes reported that Mr Riley rationally denied that he had kissed D “on the privates” and Ms Barnes appears to have accepted his denial.
24.Her oral evidence in Court was that when she asked D just a little later to clarify her disclosure, the child resiled from her earlier assertion, saying, when asked if Mr Riley had kissed her privates, “no, no he didn’t”. However, before Ms Barnes had apparently heard the child retract the assertion, it seems she had already reported D’s disclosure to Mr Davies by telephone. Mr Riley said that at some point, either on the same night as D first said it or a little later, he had reassured Mr Davies that he had not done it and he thought that Mr Davies had accepted that reassurance. On the other hand, Mr Davies said in evidence that he was very troubled by the information. Nevertheless, he did nothing about the matter, save for later reporting it to Ms Dixon.
25.After Mr Davies reported the matter to Ms Dixon, she contacted Ms Barnes and asked her about it. Ms Dixon asserts Ms Barnes was inconsistent in her responses to her about the matter. D then spent some time with Ms Dixon during school holidays and was questioned by Ms Dixon about the alleged disclosure. Ms Dixon told Mr Davies she would report the matter to someone who might investigate it and then made contact with the Queensland Department. When the police contacted Mr Davies to ask him about it, he confirmed that Ms Barnes had called him and told him what D is alleged to have said to her and that he did inform Ms Dixon when he spoke to her after that.
26.D was interviewed at a police station on 24 September 2008 by a Departmental Child Safety Officer and two police officers of the Child Protection Investigation Unit. She had been taken there by Ms Dixon. She made no disclosures about any sexual abuse or any inappropriate touching. She pointed to her private parts when asked if she could and stated that no one is to touch her there and that no one had ever touched her there and that she had never touched anyone else’s private parts. When the interview was complete she whispered in the ear of one of the police officers “nanny said that [Mr Riley’s first name] [Mr Riley] touched on my private but he didn’t really”.
27.After the interview with the child, Ms Dixon told the officers that she had previously believed that D had been sexually abused when she heard that D had attempted to unzip her father’s [Mr Davies’] pants more than two years before. That was before Mr Riley was around. Ms Dixon made attempts to get D to disclose to the officers but the child said to her, in front of the officers, “you said to say that [Mr Riley’s first name] touched me on the privates, but he didn’t”.
28.Mr Riley and Ms Barnes were interviewed by the officers on 26 September, 2008. Ms Barnes informed them that “months ago” D had stated that Mr Riley kissed her “privates” but had then corrected herself and stated that it had not happened. Ms Barnes said that she had never seen D stimulating herself with vibrating toys but that she had seen her touching herself in the shower. Mr Riley said that he had seen his son, E, and D touching each other in the shower and had told them it was not appropriate, keeping an eye on them thereafter. Ms Barnes says that Mr Riley’s son, E, who D was with in the bedroom just before she came out and said “[Mr Riley’s first name] kissed my privates”, had once been seen actually kissing another little girl on the genital region of her body. At trial, Mr Riley said that was not correct though. Ms Barnes told the officers that she had spoken to D about protective behaviour and stranger danger.
29.Mr Riley told police of the poor relationship between him and Ms Dixon and of attempts by Ms Dixon to separate him and Ms Barnes. He told them of his opinion that Ms Dixon had somehow put the idea in the child’s head.
30.Staff at the school D was attending were contacted by the officers several days later. They reported no concerns in relation to any of D’s behaviours and noted, particularly, that she had not presented with any sexualised behaviours in the school environment to that time.
31.An assessment outcome of “unsubstantiated” was recorded by the Department at that time. D was collected from the Dixon’s care by Ms Barnes and Mr Riley. Ms Dixon told them she had made the report to the Department. Ms Barnes did not let D go into Ms Dixon’s care for about three months after that.
32.The Dixons’ ill-feeling towards Mr Riley did not abate. I am satisfied that it was this ill-feeling, now being substantially fuelled by belief that Mr Riley was sexually abusing D, that led to the violent melee at the home of Mr Riley and Ms Barnes in July 2009.
33.Although it is unclear on the evidence, it seems that after the first notification further notifications were made to the Department, most likely, I find, by Ms Dixon, that D was still being sexually abused by Mr Riley. Departmental documents in evidence show that D was interviewed again by Departmental staff on 24 July 2009 and again on 17 September 2009. On the later date, however, she is reported to have told the officers that Mr Riley “always” touches her private parts and that “the incident” had occurred in her mother’s bedroom when she and her mother and Mr Riley were on the bed. She is reported to have said that Mr Riley had “pulled my pants down and touched my private parts”. She then is reported to have said that she could not remember what happened next because it had happened a long time ago. She said that she lay down and then, suddenly, Mr Riley had touched her. She is reported to have said that she was four years old at the time and that she knew this because she had her birthday in May and it had occurred around this time.
34.I note that D was already six years of age by the time of these interviews.
35.The documents show that D is reported to have said that her mother had seen Mr Riley touch her but that she would not remember it as she was reading a book at the time. She is reported to have said that she did not tell anyone except for police at the time they interviewed her. She is reported to have said that Mr Riley was arrested and went to jail but is now out and that this was the only time she had been inappropriately touched.
36.Of course, some of those matters reported to have been said by D during those interviews are demonstrably incorrect and fanciful. In particular, Mr Riley had not been arrested or imprisoned.
37.The Departmental documents show that Ms Barnes was also interviewed on 17 September 2009. She reported that she and Mr Riley were living back together at that time and that she did not consider D’s allegations to be true. Ms Barnes is reported to have said that D only says these things after she returns from Ms Dixon’s home and that Ms Dixon hates Mr Riley.
38.The documents show that Mr Riley was interviewed on 19 September 2009. He again denied the allegations that he had sexually abused D. He is reported to have said that he learned of the allegations several weeks earlier when Ms Barnes had told him of things Ms Dixon had told her that D was alleged to have been saying. He is reported to have said that it happens every time D goes and spends time at Ms Dixon’s home. He is reported to have said that he had not been alone with D since Ms Barnes was three months pregnant with C (around February 2008).
39.The interviewing officers’ observations made during that interview are recorded in the document. They record Mr Riley as appearing “genuine with his responses” and displaying no hesitation with his answers. He is reported to have been cooperative and to appear to have insight into the child protection concerns. That is exactly as he appeared to me in Court during the trial.
40.The Departmental document shows that D’s school teacher was interviewed by telephone on 14 September 2009. She is reported to have stated that D had said that Mr Riley watches her in the bath and the toilet and that she does not like this and that if she sees him she is to close the door to stop him from coming in. She also reported D as having said “I sleeping in mum’s bed with [Mr Riley’s first name”. Mr Riley, when asked about that, put that down to the fact that D had a habit of not shutting the door when she went to the toilet or into the shower and that he would see her in such circumstances if he merely walked past the toilet or bathroom when she was in there.
41.The assessment outcome was again recorded as “unsubstantiated” and Mr Riley and Ms Barnes were formally notified of that.
42.Interestingly, during the period of the investigation of these latest concerns, a serious incident of violence perpetrated against Mr Riley and Ms Barnes was reported by them to police. They alleged that Mr Davies and Ms Barnes’ brother, Mr Barnes, came around to their home in Brisbane on a night in early August 2009. It was reported that Mr Davies and Mr Barnes were both heavily intoxicated, abusive and threatening. Mr Davies is alleged to have smashed a glass panel on the locked front door after having ripped the security screen door completely from its hinges. It is alleged by Mr Riley and Ms Barnes that Mr Davies was abusing Mr Riley, accusing him of sexually abusing D. A heated verbal exchange is alleged to have taken place at the damaged front door before Mr Davies and Mr Barnes left the property. Police arrived later and took details. For reasons not known to the Court, neither Mr Davies nor Mr Barnes have ever been charged with an offence arising out of the incident. This is probably very fortunate for Mr Davies because he was on parole at the time, after his release from prison in New South Wales consequent upon the assault on his former girlfriend.
43.Under cross-examination in the trial, Mr Davies denied that it was him who went to the home of Mr Riley and Ms Barnes that night, causing the damage and abusing and threatening Mr Riley. I did not believe Mr Davies’ denial and accept that it was him and Mr Barnes who did that.
44.Ms Dixon remained convinced that Mr Riley was sexually abusing D. In her evidence, she said that D complained to her that she was not being believed in respect of her disclosures of sexual abuse at the hands of Mr Riley. Ms Dixon’s evidence is that her response was to encourage D to tell her school teacher. I have no doubt that Ms Dixon was encouraging D to tell other people, particularly her school teacher, that Mr Riley had sexually abused her. I am sure that is what Ms Dixon wanted D to do.
45.It could hardly be coincidence that Departmental and police records then reveal that a notification was made to the Department on 27 November 2009 by the Deputy Principal of the school D attended that the child had disclosed to the Deputy Principal that her step-father, Mr Riley, has touched her on more than one occasion, using his “wood finger” to penetrate her vagina.
46.The records reveal that an unnamed notifier, who I accept probably was the Deputy Principal, had notified the Department on 27 November 2009 that D had disclosed to them that day that her mother and Mr Riley had a big fight the night before after D had disclosed to her mother that Mr Riley had been touching her on her private parts and calling her a “fucking shit”. D is reported to have then made the disclosure that Mr Riley touched her on more than one occasion and used his “wood finger” (indicating that to be his middle finger) to penetrate her.
47.Again, D was interviewed by police officers who attended at her school on that same day. The records reveal that the child was said to be very vague about the allegation and “even denied that she had spoken to her teacher” about it. She is recorded as having said that Mr Riley had pulled her pants down and touched her “privates” but without giving any further context or detail. Ms Barnes and Mr Riley were again interviewed later that day. Mr Riley denied the allegations, pointing out that it was the third time such allegations had been made against him. Ms Barnes is reported to have informed police that nothing of the nature of what the child was said to have disclosed could have happened, but agreed that she was not one of the persons to whom the child was now making disclosures.
48.Mr Riley, Ms Barnes and the child were all interviewed separately again several days later. The interviews with the adults produced similar results to the earlier interviews. The interview with D had D saying she did not know why she had told her teacher that Mr Riley pulls her pants down. She is reported to have said Mr Riley puts his middle finger up at her and yells at her but that he does not do anything else with his finger.
49.The child then spent some time with Ms Dixon by agreement with Ms Barnes. Again, on 16 December 2009, Ms Dixon is recorded as having contacted the Department reporting that D had disclosed the day before that “[Mr Riley] sticks her in the corner and does the rude thing and he hurts [C] too.” It was reported that she later told her aunt, Ms H, that Mr Riley “does the rude finger to my private parts too.” She was reportedly asked where it happens to which she answered “in mum’s room while mum is in the laundry.” It was then reported that she welled up with tears and asked her grandmother and aunt “do you believe me? Mum doesn’t believe me”.
50.Ms Dixon and Mr Davies communicated about this issue around this time. There were arrangements already in place between Ms Barnes and Mr Davies for D to travel to Sydney to spend time with him over Christmas and New Year. Mr Davies determined to retain D in his care at the end of that time without Ms Barnes’ consent. Departmental officers were informed of this plan. Indeed, they apparently suggested that the date of D’s flight to Sydney should be brought forward a few days, if possible. Mr Davies informed Ms Dixon of his plan and she expressed to him her support for such a move.
51.Ms Barnes was interviewed again on 17 December, 2009. She still maintained a firm belief that D was not being sexually abused by Mr Riley. Departmental officers though, assessing the outcome as “substantiated” this time, asked her to ensure D stayed at Ms Dixon’s home until she went to Sydney to stay with Mr Davies. They spoke to Ms Dixon to have her agree to retain D until she went to Sydney. Ms Dixon did refuse to return D to Ms Barnes for the few days before D was due to fly to Sydney. Ms Barnes though, got the police involved and they informed Ms Dixon that she had to return the child to Ms Barnes. That did happen. D was, though, still sent by Ms Barnes to Sydney, even a few days earlier than originally planned, to spend time with her father, Mr Davies. The Queensland Department was content with D being cared for by Mr Davies and formally informed Mr Davies of that.
52.Unrelated to the sexual abuse allegations, Queensland Police and Departmental records also reveal that on 4 December 2009, Ms Barnes was charged with speeding, driving unaccompanied on a learner’s permit, failing to display “L” plates and having a child unrestrained in the vehicle. She later told Ms M, the Family Consultant, that she was convicted and disqualified from obtaining a driver’s licence for a couple of years.
53.Mr Davies has deposed that at New Year, 2010, D said to him that “[Mr Riley] pushes me into the corner of his bedroom and touches my private parts and hurts me”. He reported this to the Queensland Department a few days later. The SCAN (Suspected Child Abuse and Neglect) team records show that he reported, variously, that D had said “[Mr Riley] pushes me into his bedroom and touches my private bits” and “[Mr Riley] pushes me into my room and does the rude thing to me”.
54.Ms Dixon then notified Mr Davies that she was going to apply to the Court for an order that D and C both live in her care in Brisbane, telling him she thought that was best for both of them. This then set Ms Dixon and Mr Davies on different courses and their relationship, reasonably co-operative until that point in time, then became conflictual.
55.Mr Davies then reported the sexual abuse disclosures made by D to NSW police and they became involved, taking a statement from him, later informing him that there was already an investigation underway in Queensland.
56.Mr Davies deposes that D then disclosed again, to him and his partner, Ms B, on 14 January 2010, whilst they were having dinner, that “[Mr Riley] touches my privates and hurts me.”
57.At the end of January, 2010, Ms Barnes contacted Mr Davies about D’s return home to Queensland to be told by him that he was keeping her with him in Sydney and putting her into school there. This set Ms Barnes and Mr Davies on a path of further conflict.
58.Mr Davies deposes that around this time, D was waking in the night, reporting bad dreams and expressing fear that Mr Riley would hurt her.
The Court Proceedings
59.At around this time, Ms Dixon commenced proceedings in the Federal Magistrates Court in Brisbane for orders that the two children live with her. She provided long interviews to the police where she gave them a great deal of negative information about Ms Barnes, Mr Riley and Mr Davies, as well as what she reported having seen and heard of D that caused her to believe Mr Riley was sexually abusing her. She also told police at this time that about eight months previously she had, when changing C’s nappy, noticed bruising on the upper part of her vulva, over the pubic bone. She reported having raised it with Ms Barnes to be told by her that she thought it was from tying the baby’s nappy on too tight.
60.Ms Barnes denied there had been bruising when later interviewed by officers about it. At that same time, in February 2010, Ms Barnes informed officers that Mr Riley had moved out of her home on the advice of her solicitor to assist with the return of D. She is reported as not being able to commit to not having him return at a later time if D was returned to her care.
61.On 14 April, 2010, D was interviewed by police in Sydney. Queensland SCAN team documents record that in that interview D was unable to provide context surrounding the subject of her disclosure of Mr Riley touching her private parts. It is reported that when she was asked open-ended questions she changed the detail as to where people were and what they and she were doing at the time. She is recorded as being unable to clarify how Mr Riley had touched her “rude part”, save for saying that it was on “the inside” and that she knew this because it was what her “mum” had told her. The NSW police officer who completed the interview is recorded as saying that there were too many inconsistencies within the information provided by the child to justify criminal prosecution of Mr Riley. These same inconsistencies had previously been identified by Queensland investigators when interviewing the child in 2010.
62.The NSW Police record in respect of the interview records that D, who was 6 years of age at the time of interview, disclosed that Mr Riley had touched “her rude part” at her home in Queensland whilst she was lying on her mother’s bed. She disclosed that he had entered the room, pulled her pants down and touched her with his hand. She said initially that she was wearing a skirt, then she said she was wearing jeans. She said she had jumped on to her mother’s bed. Then she said she had climbed two ladders to get onto the bed. She said that her mother was in the room, keeping an eye on her. Then she said that her mother was feeding her sister. Then she said her mother was outside doing the washing. The record reports that the child was unable to maintain a consistent version and that the child said that she knew Mr Riley had touched her rude part because her mother had told her so.
63.The Queensland Department’s assessment outcome was recorded as “substantiated” with Mr Riley being regarded as the perpetrator, but no further action was to be taken as the child was living in NSW. It was determined not to charge Mr Riley with any offence. The Department determined to monitor the outcome of the Court proceedings to consider what, if any, further action should be taken at that time. Records also relevantly note that the investigating Queensland police had clear concerns that Ms Dixon may have been coaching D in respect of her disclosures.
64.On 20 April, 2010, Federal Magistrate Howard heard the competing interim applications of the Dixons (both Mr and Ms Dixon), Ms Barnes, Mr Davies and Mr Riley. He ordered a Family Consultant to prepare and provide an oral report to the Court on 28 April, 2010. He made orders leaving the girls where they were at that time, but restrained Mr Riley from having any contact with either child.
65.On 28 April, 2010, the Queensland Department also made an appearance before the FM, as friend of the Court. Family Consultant, Ms M gave an oral report to the Court that day. Howard FM then made orders for both D and C to live with the Dixons, for D to spend time during the school holidays in Sydney with Mr Davies and to spend time with Ms Barnes as agreed between Ms Dixon and Ms Barnes, but to be supervised by Ms Dixon. The orders restrained the parties from bringing D into any contact with Mr Riley. The orders provided for C to spend time with Ms Barnes also as agreed between Ms Dixon and Ms Barnes, to be supervised by Ms Dixon and for her to spend time with Mr Riley supervised at a contact centre. An Independent Children’s Lawyer was also appointed. All of the orders were consistent with the recommendations of the Family Consultant made that day.
66.Ms M had interviewed a Departmental officer who had been very involved in the Department’s most recent assessment of the matter. She reported that he indicated to her that the Department would consider applying for a protection order through the Children’s Court if the Court’s order was to provide for C to remain in the household of Ms Barnes and Mr Riley. She also reported to the Court that the child, D, had disclosed to her in interview that the reason why she was there was because Mr Riley “touched my rude part.”
67.Although the SCAN team’s records reflect an intention to have D physically examined by doctors to determine if there were any signs consistent with sexual abuse having occurred, that did not occur because the child went to Sydney and stayed with Mr Davies at the time it was to happen. It has never occurred since.
Relevant Events since Court’s interim orders
68.In May 2010, Ms Dixon took the two girls over to Ms Barnes’ place for them to spend some time with their mother. During that time Mr Riley’s mother, Ms Martin, and her husband arrived and wanted to spend some time with the two girls, particularly C. Ms Dixon took quite serious offence to this and conflict escalated with the baby, C, becoming particularly upset. Ms Dixon demanded that her husband, Mr Dixon, call the police and then she set about doing that herself. A video of the incident was tendered into evidence. There is nothing on the face of FM Howard’s orders that prevented the Martins from being around the children. Ms Dixon’s conduct was, I find, unnecessarily confrontational and inappropriate in front of the two girls. She and her husband used inappropriate bad language during the incident and inflamed things in a significant way. The incident demonstrated Ms Dixon’s desire to control circumstances relating to the children and her inability to contain herself within reasonable behavioural constraints.
69.Contact between the baby, C, and Mr Riley at a contact centre was not facilitated for some time after FM Howard’s orders despite Mr Riley registering and attending intake sessions at two contact centres in the relevant area. It seems the Dixons did not act to facilitate it, but that was later rectified after the ICL became involved in the matter.
70.The matter was transferred to this Court and was designated a Magellan matter in this Court’s lists. Ms M prepared a written report in September 2010 based on her April interviews and assessment and made no recommendations to change the interim orders that FM Howard had put in place.
71.Departmental records reflect another interesting notification, apparently by an employee of the child-care centre that C was being put in by Ms Dixon, made on 8 October 2010. The notifier is recorded as reporting that Ms Dixon had delivered the child late that day and that the child looked “really spaced out” and was stumbling around with her eyes “bulging”. The child was also brought in without underclothing on. She is reported to have not been able to stand up or eat food and did not know where she was. Ms Dixon was called to come and collect her and returned straight away, saying she was then going to take the child shopping and to visit her aunt, apparently oblivious to how the child presented. Later that day, police and ambulance attended the Dixons’ home and the child was examined, apparently revealing no concerns. There was no further recorded intervention by the Department or the police.
72.In November 2010, Mr J, a very experienced psychologist, produced, at the request of the ICL, a psychological assessment report into the risk of sexual offending by Mr Riley. Mr J concluded that if the Court determines that Mr Riley was not or is unlikely to have been responsible for sexually harming D that his risk of future offending is low. He also concluded, however, that if the Court determines that Mr Riley did sexually harm D or that it is likely that he did, then his risk of future offending is moderate.
73.Queensland Police records reflect that police were again called to the residence of Ms Barnes following a serious incident of domestic violence on 3 December 2010. Ms Barnes and Mr Riley each gave police different versions of what is said to have happened there that night. Common ground between them is that Mr Riley had taken his son, E, with him to Ms Barnes’ home that evening. He went to put E to bed in the room and bed that had been D’s. Ms Barnes took offence at this as D was no longer in her care and she challenged Mr Riley as to whether he had sexually abused D. He denied having done so. Ms Barnes and Mr Riley began to argue and fight. At some point, Ms Barnes grabbed E’s Nintendo DS game console and cut through the charger cord, damaging it. At some other point, Mr Riley knocked over the Christmas tree. Mr Riley alleges Ms Barnes grabbed E by his genitals and squeezed them, saying to Mr Riley she was going to molest his son. Ms Barnes asserts she grabbed E and pulled him to her to stop Mr Riley from hurting her. Ms Barnes and E ended up falling down the backstairs together and Mr Riley asserts that Ms Barnes dragged E down those stairs. Ms Barnes asserts that Mr Riley ran to her at the bottom of the stairs and kicked her in the side of the head. He says he ran to her and pulled her head back by the pony tail to stop her from hurting E.
74.Ms Barnes had her mother, Ms Dixon call the police. Mr Riley called his mother, Ms Martin, and they took E to the police station to report the incident. Police examined Ms Barnes’ head and noted no injury consistent with being kicked in the head by Mr Riley. They examined the child, E, and noticed scratches to his left arm, left cheek and neck. After the incident, Ms Barnes was charged with offences of Assault and Indecent Treatment of a Child, as well as Causing Wilful Damage. Interestingly, neither Mr Riley nor Ms Barnes was charged with breaching the Family Violence Protection orders that were in place in respect of each of them at that time. At the time of the trial before me, the charges against Ms Barnes were still pending in Court and Ms Barnes indicated that she was contesting the charges and proceeding to trial on them. As a consequence of the charges alone, Ms Barnes lost her Blue Card and her job as a child care worker.
75.Just before the trial before me took place, Ms M produced another written family report based on interviews that took place in June 2011 and assessment of further material produced since her earlier written report. She observed that the children had continued to live with Ms Dixon, D spending school holidays in Sydney with Mr Davies and his partner and family and C spending time with Mr Riley supervised at a contact centre since the middle of 2010.
76.It is recorded that whilst initially Ms Dixon had permitted Ms Martin to have C with her for some visits, Ms Martin reported that Ms Dixon had stopped this when she alleged that Ms Martin was letting Ms Barnes and Mr Riley spend time with C. Ms Martin denied this. I accept the truth of her denial. However, Ms Dixon insisted that Ms Martin could only see C at a contact centre at the same time as Mr Riley from that point onwards.
77.Ms Dixon had also changed D from a state school in Brisbane, where she had previously attended when in Ms Barnes’ care, to Town A State School which was nearer to where Ms Dixon lived. Mr Davies was not happy with that as he considered D required stability and that Ms Dixon had expressed to the Court commitment to maintaining D’s attendance at the school in Brisbane. However, Mr Davies eventually agreed to the change provided she see out the 2010 year at the school in Brisbane, saying D had been “begging him” to allow her to change. Ms Dixon changed D to Town A State School without waiting until the end of the school year.
78.This change of school appears to have been partly precipitated by more conflict at and around the school between Ms Dixon and Ms Barnes. This occurred particularly after June 2010 when Ms Dixon ceased taking the children each afternoon to spend time with Ms Barnes. She did this, apparently wanting Ms Dixon to demonstrate she was making an effort to see the children.
79.Ms Dixon put D into After School Hours Care and C into childcare around this time too. Mr Dixon was able to collect D from ASHC on his way home from work, making things a little easier for the Dixons. However, the Dixons assert that they separated in September 2010 and, at trial, they maintained that they were still living separately, with Mr Dixon living in government accommodation and Ms Dixon in the couple’s home. It is worth noting that this is said to have occurred subsequent to a date when Departmental records note Ms Dixon raising issues of financial support for her with the children with Departmental officers. Each of Ms Barnes, Mr Riley and Mr Davies all are reported by Ms M as disputing the alleged separation, with Mr Davies having kept text messages from Ms Dixon in which she confirmed it was only a separation for financial reasons so that she could manipulate the system and be eligible for legal aid funding and Centrelink parenting benefits.
80.At the trial, Mr and Ms Dixon maintained the assertion that they were separated. However, they gave evidence that Mr Dixon was going to be transferred to North Queensland, probably at the very start of 2012 and that they would be reconciling and going to live together in government accommodation up there. At trial, Ms Dixon, who by then was the only applicant (Mr Dixon having filed a Notice of Discontinuance of his part of the application), maintained the position that the two girls should continue to live with her and move with her and Mr Dixon to North Queensland. I simply do not believe the assertions of the Dixons that their separation was a genuine separation, accepting rather that it was only a ruse for the very purposes that Mr Davies, Mr Riley and Ms Barnes all alleged, that is, manipulation of the system to gain some advantage not otherwise available to her.
81.In late 2010, Ms Dixon’s son, Mr Barnes, spent time in hospital and was said by Ms Dixon to have been diagnosed with paranoid schizophrenia and bipolar affective disorder. After his discharge, he went to live with Ms Dixon at the family property. Ms Dixon said it was in a separate cabin and that his only interaction with the girls was “to play with them”. Strange allegations and counter-allegations about whether or not Mr Barnes had sexually abused Ms Barnes when she was a child were aired between Ms Dixon and Ms Barnes and referred to by Ms M. The resolution of where the truth lies in respect of those is not possible, nor material to the outcome of this matter.
82.In 2011, D’s behaviour at the Town A State School was observed to be the cause for concern by her teacher and the school administration. Documents read by Ms M included an email from that school’s Principal to Ms Dixon dated 4 April, 2011. It listed concerns. They included: D frequently asking to go to the toilet , 2 to 3 times per session, D telling very fanciful, imaginative stories about herself as if they were the truth, D saying she was in love and telling a boy in the class that she was in love with him and would bash him if he did not say he was in love with her, D saying “but his dreamy eyes tell me that he wants to be in love with me and touch my wee wee”, D giving a note to that boy saying “… is a fuck up”, D telling the teacher that Mr Riley is a “very, very bad man who wants to hurt me” and that he had “said the F word to me and told me I was a moron and then touched my rude parts”, and that D had said her nanny was going to call the police and that her mother did not believe her when she told her.
83.Over time, the school’s concerns about D’s behaviour apparently increased. Ms M reports being told of an escalation of D’s outbursts at school, with D swearing and fighting with other children at school and on the bus to and from school. D is reported to have told a girl who tried to befriend her that she would bring a knife to school and stab the other girl. On one occasion, without any apparent provocation, D started flinging punches at anyone within reach and during the lunch break fought with some older boys and punched one of them in the eye. She then decided to take off from school and swore at her teacher. She threw a plastic cricket bat at her teacher on another occasion and was suspended from school for two days. D apparently also asked a boy to put his hands down her pants to touch her “wee wee”.
84.To her credit, Ms Dixon arranged for D to have various assessments during this time. She was prescribed glasses. The GP diagnosed her with ADHD and prescribed Ritalin. Tests relating to her frequency of urination found no physical cause. Counselling with a psychologist was commenced. Mr Davies, who had shared parental responsibility of D, was not consulted by Ms Dixon about commencing D on Ritalin and was not happy about it, preferring, he said, to try other options such as dietary management first.
85.When D visited Sydney for the 2011 Easter holidays, Mr Davies did not give her the Ritalin that Ms Dixon sent down. He said D’s behaviour settled within two days of arrival.
86.After her return from Sydney on holidays during this time, Ms Dixon variously alleged that D had reported getting naked and having sex with Ms B’s child, K, and also being involved in a “sex party” with the other children of Ms B, with the boy, L allegedly putting a vacuum cleaner on his penis. K was only 2 years of age at the time. L was only 6 years of age at the time and the allegations were rejected by Mr Davies and Ms B who said that Ms B’s parents were also staying with them at the time and assisting in adult supervision of the children.
87.Ms Barnes alleges that D has told her that she has seen Mr and Ms Dixon having sex at their home, but Ms Dixon denies this and says that D only saw them kissing under the blankets.
88.D’s behaviour again was demonstrably poor on the airline flight back to Brisbane from Sydney at the end of the June 2011 school holidays, not long before the trial. She is reported to have boldly abused the airline staff and adult passengers on the plane because she could not get a packet of chips to eat, having been given no money to take with her on the plane. The airline staff reported to Mr Davies that she would have been physically restrained and removed from the flight had she been an adult. Ms Dixon blamed Mr Davies for allegedly giving D a “red drink” before she flew and no money for food on the flight.
89.At the time of the trial, D was said to be attending a special behavioural management program for two days per week at a state school in Brisbane and Town A State School on the other three days.
90.Ms Barnes and Mr Riley both indicated that they had ceased using drugs by the time the trial came around. Mr Riley had voluntarily undertaken a domestic violence programme for men and Ms Barnes had had some counselling sessions. As I have already noted, both said they considered that their relationship was over, but conceded that they still saw each other. I was not satisfied that it was truly over, regardless of what they said about it. I was, though, accepting of their evidence, particularly Mr Riley’s, that they had ceased using drugs and were trying to make a go of life without reversion to them.
91.Ms M noted in her second written report that D’s behaviour was very troubling when she was at the Court in June 2010 for the interviews with her. Again, D was said to be fancifully imaginative in story telling about herself, apparently wanting the listener to believe some very strange things, including that she, D, was dead and that she was actually someone else. She tried to follow boys into the toilets at the Court. She became angry and physically aggressive with a male Family Consultant who she accused of being Mr Riley. She told Ms M that everyone was there to “choose who I am going to live with.” She adamantly told Ms M that she wanted to live with her father, Mr Davies. She said that she would not be happy if the Judge decided that she lived with her mother and that she would “kill the Judge” if he decided she was to live with her nanna, Ms Dixon. She said she would be “way much happier” if the decision was that she would live with her father, Mr Davies.
92.Interestingly, D told Ms M that she still wet the bed. At Ms Dixon’s, she said, she still wore “dry nites” nappies and this embarrassed her. They were sometimes wet in the mornings. At her father’s home, she said, he woke her in the night to go to the toilet and she did not wet the bed. She remarked, “nanny won’t do that for me.”
Ms M’s observations as to the children’s relationships with the various adults
93.Ms M observed what she considered to be an affectionate relationship between C and her father, Mr Riley. Ms M noted that C “seemed to be at ease with both [Ms Martin] [her paternal grandmother] and [Mr Riley]”. She noted that when Mr Riley spoke of his son, E, C immediately jumped up and smiled and asked for him.
94.When the two girls were observed with Ms Barnes, Ms M noted that both tested their limits with their mother. D had not wanted to go in and be with her mother initially and when Ms Barnes tried, cheerfully, to divert D’s attention, D only reluctantly joined in. When Ms Barnes asked D to play with her, D said “after I break your phone”. C, however, clambered over her mother, openly affectionate, with hugs and kisses being exchanged.
95.D tried to stop C playing, insisted she was not her sister, only her step-sister, and became conflictual with her mother over the issue. Ms Barnes was considered to be trying to contain or divert D rather than managing her behaviour. C became intent on going out to find Mr Riley and had to be enticed back in by Ms Barnes, who Ms M opined was trying hard to connect with her daughters whilst neither child presented as strongly connected to her.
96.When D was observed with her father, Mr Davies, she was seen to interact well with him, his partner, Ms B and all of her children. D joined in readily with the games and called those children her sister and her brothers and referred to Ms B as “mum”, without any correction from her father or Ms B. Ms M said that D presented as enjoying being part of an active group of children whilst, at the same time, keeping an eye on her father. Ms M said D appeared to respect Mr Davies and Ms B’s authority. She joined in with all the children without a fuss when it came time to tidy up.
97.When D was observed with the Dixons, after the session with her mother, Ms Barnes, she immediately tried to confront Ms Dixon. Ms M thought D preferred playing with Mr Dixon, studiously ignoring Ms Dixon. C, however, interacted readily with Ms Dixon and sat on her knee and played with her. D presented, according to Ms M, as determined to be defiant and negative towards Ms Dixon and Ms Dixon ignored the behaviour.
98.There was a final scene of defiance from D towards Ms Dixon at the end of the session. When D went to go, she was called back by Ms Dixon, stood with her hands on her hips saying she thought her father was there, drawing the response from Ms Dixon, in what Ms M describes as a sarcastic tone, of “who cares?” D then retorted that she did not care about anyone but her father. Ms Dixon then asked “don’t you love nanny?” to which D responded “maybe I do. Maybe I don’t”.
99.Ms M opined that the interaction between D and Ms Dixon reflected a battle of wills. Whilst Ms Dixon was described as affectionate towards the girls, both girls were described as appearing more interested in their fathers, not reciprocating the affection towards Ms Dixon.
Ms M’s opinions as to the ability of the adults to co-operate and co-parent
100.Ms M observed that the relationship between Ms Dixon and Ms Barnes had been particularly subject to constant change. It was clearly volatile, experiencing ups and downs, with Ms Dixon often becoming frustrated with Ms Barnes when Ms Barnes was not compliant with her wishes. Ms Dixon was also particularly vicious in her view of Mr Riley, believing him to be a perpetrator of sexual abuse and domestic violence and unlikely, I accept, ever to modify that view of him. Her relationship with Ms Barnes is, whilst ever Ms Barnes remains connected in any way to Mr Riley, likely to remain volatile. Ms Dixon would have grave difficulty co-parenting in any way with Mr Riley and also with Ms Barnes whilst Ms Barnes continues to see him. Ms Barnes’ feelings towards her mother are also centred around a view that her mother treated her poorly when she was a child, that her mother seeks to control her life now and does not respect her capacities to mother her children.
101.Ms M observed that whilst Ms Barnes and Mr Davies had previously been able to talk about parenting D their ability to do that had broken down. Ms Barnes had a clear view that Mr Davies should simply continue to play the same role in D’s life that he had been, that is, spending holidays with her. Mr Davies remained concerned that Ms Barnes had put her relationship with Mr Riley ahead of the welfare of her daughter. But Ms M seemed to sense a willingness on his part to re-establish a co-operative parenting relationship with Ms Barnes. Ms M considered that each was prepared to ensure that D has an ongoing relationship with each of them.
102.As to Mr Davies’ relationship with Ms Dixon, Ms M noted that Mr Davies had moved to the view that Ms Dixon was attempting to marginalise his parental role in D’s life. She observed that Ms Dixon seemed concerned that Mr Davies is acting to undermine her with D by encouraging D to choose to live in Sydney with him. Ms Dixon is reported as saying she would be able to continue to work with Mr Davies, but she clearly considered he should be a holiday parent and not a principal carer for D.
The Parties at trial
103.At the trial, the only party, other than the ICL, who was legally represented was Mr Davies. Of course, that made the trial a more difficult one, particularly for the unrepresented parties. Soon after the trial started, two matters of significance happened. The Court was informed by counsel for Mr Davies that agreement was able to be reached as between Mr Davies, Ms Barnes and Mr Riley in respect of what they all considered should be the outcome for D.
104.Signed terms upon which they each agreed were handed to the Court. They provided for Mr Davies and Ms Barnes to share parental responsibility for D and for D to live in Sydney with Mr Davies. They provided for D to spend time with her mother in two scenarios – the mother living in Sydney or the mother living in Brisbane. They also provided for Mr Riley not to spend time with or communicate with D and for the mother to be restrained from bringing D into contact with or communicate with Mr Riley.
105.The ICL did not indicate agreement with those orders. Unsurprisingly, nor did Ms Dixon. The trial had to continue in respect of both children but agreement between those three parties about D was an important development. Of course, given the paramount consideration in determining the appropriate parenting orders is the best interests of the child, the Court was not in any way bound by the terms of the agreement reached between those three parties.
106.The other matter of significance was that Mr Riley’s mother, Ms Martin, applied for leave to intervene in the proceedings, seeking an order that the child, C live with her. Having read and considered all of the written evidence, I determined it appropriate to give Ms Martin that leave and she brought the number of parties in the proceedings to six.
The Legal Principles to be Applied and the Approach to be taken to determination of the Parenting Orders
107.As I have already noted, the determination of the particular parenting order to make in respect of the two girls in this case is to be arrived at with mandatory regard to their best interests being the paramount consideration. (see s.60CA) In determining what is in the best interests of the children in any case before the court, consideration must be given to expressly listed “primary” and “additional” considerations. (see s.60CC) It is recognised that the enquiry is indeed a broad one. (s.60CC(3)(m), which lists “any other fact or circumstance that the Court thinks is relevant”).
108.Though broadly discretionary, the determination must still be undertaken within the constraints of the statutory framework of Part VII of the Family Law Act. Part VII begins with a statement of the objects of the Part and the principles underlying those objects. They are:
S.60B (1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are 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; and
(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 (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
109.In the High Court’s judgment in M and M (1988) 166 CLR 69, the Judges of that Court relevantly said (at page 76):
In [parenting orders cases] the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in the child’s interests to maintain the filial relationship with both parents.
110.The two “primary” considerations set out in s.60CC(2) are to “be accorded particular importance in determining what order will best promote the interests of the child” (Marsden and Winch (No.3)[2007] FamCA 1364 per Warnick and Thackray JJ at par 77). In my view, that they are separately listed and described as “primary considerations” demands as much. But in a parenting case where allegations of sexual abuse of a child or children by a parent, or someone associated with a parent, are made, the two “primary” considerations and their interplay take on critical importance, just as the judges of the High Court in M v M effectively identified well before the two “primary” considerations were given their current legislative expression.
111.On the one hand, consideration of the benefit to the child of having a meaningful relationship with both parents is given particular importance. On the other, consideration of the need to protect the child from being subjected to, or exposed to, abuse is, clearly, given importance.
112.Abuse of a sexual nature is as abhorrent as any abuse a child can be subjected to, or exposed to. Fogarty J said in the Full Court decision of N and S and the Separate Representative (1996) FLC 92-655 at 82,709:
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves 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, both in the short and long-term, can be devastating.
113.Those words remain as true today as when they were written. It is not surprising that when sexual abuse allegations are raised in a parenting orders case much energy is focused by all concerned on their consideration. However, the Court can never lose sight of the fact that it must, ultimately, decide what is in the best interests of the subject child or children. In M v M the Judges of the High Court pointed out that:
…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
114.In M v M the Judges of the High Court also said (at pp76-77):
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362. There, Dixon J said:
The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
…
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
….
The test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
115.The Full Court of this Court discussed the so-called ‘unacceptable risk test’ in W and W (Abuse allegations: unacceptable risk) and said (at para 111):
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
116.At paragraph 105 of that case, their Honours, referring to Fogarty J’s judgment in N and S and the Separate Representative, said:
Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714
In asking whether the facts of the case do establish an unacceptable risk the Court will often be 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 have the allegations been made? 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 of the allegations apart from sexual abuse? What are the likely future effects on the child?
117.So, application of “the unacceptable risk test” in the consideration of the allegations of sexual abuse is but a part, albeit clearly an important part, in the process of determining parenting orders that are in the best interests of the subject children. That process must still be undertaken with regard to all of the matters to be considered pursuant to s.60CC(2) and (3) of the Family Law Act in the light of the s.60B objects and principles.
118.In determining the orders in this case, I was also mindful of all of the steps required to be taken to accord with the statutory framework set out in Part VII of the Family Law Act as discussed by the Full Court of this Court in Goode and Goode (2006) FLC 93-286 and by the High Court in MRR v GR [2010] HCA 4; (2010) FLC 93-424
My Consideration of the Sexual Abuse allegations
119.I informed the parties when I made the orders in this case that I would go as far as finding that Mr Riley did not sexually abuse D. After considering all of the evidence and seeing the parties appear before me and give oral evidence over the six days of the trial, I was quite satisfied that Mr Riley had not sexually abused D and that, therefore, he did not pose an unacceptable risk of sexual abuse to D or to his own daughter, C. The determination of the parenting orders I made was, accordingly, done against the backdrop of that finding.
120.Although Mr Riley has a history of drug abuse and related criminal offences as well as perpetrating violence against Ms Barnes, he struck me, during the six days of the trial, as a man who was genuinely telling the truth, most particularly about the allegations of sexual abuse of D. He was cross-examined by counsel for the ICL and counsel for Mr Davies as well as Ms Dixon and Ms Barnes. At no point in any of that cross-examination did I have any doubts that the evidence Mr Riley was giving was true. He clearly and unreservedly denied that he had sexually abused D and gave quite reasonable and logical explanations when required to by the questions asked of him. He showed restraint, understanding, respect and courtesy to the Court, to all other parties and legal representatives and to the process at all times. He impressed me as a man who was genuinely upset and concerned about the allegations that had been made against him and the fact that Departmental officers had ultimately assessed the allegations as “substantiated”. He said he had even rung the Departmental officer who had conducted the assessment that resulted in the “substantiated” finding at the time and asked him to explain to him how it was that such a finding was made.
121.There was never a medical examination of D, thus there was no evidence of any physical injury or other physical signs consistent with her having been sexually abused. She is clearly a behaviourally troubled child. Whilst I have no doubt that some of her behaviour might be consistent with the disturbed behaviour that might be displayed by a child who has been sexually abused, this child has been exposed to a lot of other stresses in her day to day life over the years of her childhood to the point of the trial in this matter. I consider that, rather than actual sexual abuse, explains the disturbed behaviour she has been independently observed to display.
122.D is clearly prone to telling fantastic stories about herself with a view to having the listener believe them. When she did, for the first time, say that Mr Riley had kissed her on “the privates” she went on with no further elucidation or detail. She resiled from the assertion fairly soon thereafter and when she was interviewed by police and Departmental officers some days later, she clearly did not maintain the assertion and quietly, without reservation, told them that Ms Dixon had told her to say that Mr Riley had touched her privates, but that he had not done so. When encouraged by Ms Dixon to tell the officers that he had, she openly challenged Ms Dixon, asserting to Ms Dixon that she had told her to make the disclosure about Mr Riley when he had not actually touched her.
123.From that point on, the allegations nevertheless gained momentum. It is hardly coincidental, in my view, that they re-emerged after occasions that D spent in Ms Dixon’s care. As I have already said, I have no doubt, sadly for her and those around her, that Ms Dixon has serious personality disturbances. One could only begin to speculate as to what impact Ms Dixon’s own childhood suffering of sexual abuse at the hands of her step-father and her own mother had upon her emotional development and her attitudes to child sex abuse. It certainly seems that she displayed some hyper vigilance towards sexual abuse, even in respect of D and Mr Davies, well before Mr Riley was ever on the scene in Ms Barnes’ life.
124.I am quite satisfied that Ms Dixon’s vehement dislike of Mr Riley as a choice of partner by Ms Barnes from the time they formed a relationship, and her determination to have greater control of her daughter’s life have contributed to the circumstances that fairly rapidly emerged. I am satisfied that Ms Dixon readily and unquestionably took up the information passed on to her by Mr Davies in or around September 2008 of the disclosure reported to have been made by D about Mr Riley, immediately accepted its truth and then attempted to encourage D to disclose to the police. I am satisfied that when that failed, Ms Dixon did not let it rest. She continued to improperly influence D to believe that Mr Riley had sexually abused her and to make disclosures to third parties such as her aunt and her school teacher. I find that D, so influenced, has done just that. Ultimately, she is even reported to have made disclosures to Mr Davies and others in his household. However, the nature of the disclosures she has made, particularly when interviewed by trained interviewers, has never really impressed as containing real events actually remembered by her. I do not consider any of the disclosures as reported by Ms Dixon, her daughter, Ms H, Mr Davies and his partner, Ms B, as reliably determinative of the matter. None of those four persons greatly impressed me during the course of the trial as witnesses whose evidence I could unreservedly accept as truthfully recounted. Each of them, I accept, had reasons for wanting a finding made that Mr Riley sexually abused D.
125.It is appreciated that the Court does not have to go as far as making a positive finding that sexual abuse did not happen as alleged. It is a significant step to go that far. However, acknowledging that, I am quite prepared to take that step in this case. I do not accept that Mr Riley sexually abused D and it follows that I do not consider that D or, more importantly in the overall circumstances of the case, C, is at an unacceptable risk of sexual abuse at the hands of Mr Riley.
What Parenting Arrangements are in the Children’s best interests?
126.Ms M said in the concluding evaluation of her second report that the information she considered for the report “leads to a conclusion that there are multiple possible outcomes for [D] and [C] – but each has negative points.” She said it has not been possible to identify one outcome that would be totally positive for both girls. I agree entirely with that assessment. As was said during the course of the trial, particularly after the Director-General of the Queensland Department decided not to intervene in the proceedings after again being asked by me to do so, the Court is left with the task of coming up with what is determined to be the best of several options, all of which have negative aspects in so far as the well-being of these two children is concerned.
127.I did not consider it in the best interests of the children to leave them in the principal care of Ms Dixon. Ms Dixon made it clear at the trial that she was absolutely intent on moving the children to North Queensland with her when she and Mr Dixon moved there on his government posting to that city that was pending in late December/early January 2011/2012. That would have introduced further substantial change into the lives of the two girls at a time when they least needed it. That would have made it even more difficult for them to have ongoing, meaningful relationships with their parents. That would expose the children to an even greater risk of losing their relationships with their parents, particularly given the doubts that I developed about Ms Dixon’s capacity and willingness to facilitate the maintenance of their relationships with their various parents. That was the principal reason why I determined that I must make the orders in this case when I did without at that time being in a position to publish my reasons.
128.Importantly though, even had Ms Dixon not been determined to move the girls to North Queensland I would not have considered it in the girls’ best interests to leave them in the principal care of Ms Dixon. Quite apart from the way in which I found Ms Dixon to have dealt with the sexual abuse allegations against Mr Riley, I was concerned about the emotional care being provided by Ms Dixon to the two children. It is apparent on the evidence that came from D’s schools over the last couple of years that whilst D was in Ms Dixon’s principal care, her behaviour became more and more unruly and disturbed. Whilst Ms Dixon appears to have acted appropriately in seeking professional assistance, the deterioration in D’s behaviour continued unabated in Ms Dixon’s care whilst she only spent limited amounts of time with her mother and her father, Mr Davies, and whilst she was not seeing Mr Riley at all.
129.I did not consider that Ms Dixon was able to properly focus on delivering the best outcomes in respect of the physical and emotional care of the two girls, including in regards respecting their relationships with each of their parents and facilitating those as required. I found Ms Dixon to be dishonest, inappropriately aggressive, lacking in insight and compassion and quite unrestrained in the open display of her feelings and emotions. All of these characteristics, I am satisfied, detract significantly from her capacity to offer appropriate, child focused parenting to her two little granddaughters. I accept that is demonstrated by the nature of the relationships that Ms M observed the two girls to have with Ms Dixon.
130.Of course, one of the other alternative care options to be seriously considered in this case was making parenting orders that placed both girls back into the principal care of their mother, Ms Barnes. Ultimately, although that was more difficult to determine than the question of whether they should live with their maternal grandmother, I did not consider that in their best interests either.
131.As I have said, I consider that sadly Ms Barnes has a very compromised personality. She demonstrates poor judgment in many facets of day to day living. She, too, is a person who, on the evidence I have seen, is unrestrained in her emotions and her actions. She demonstrates little compunction about making the obviously poor decisions that she has. She has poor self-esteem and little self-confidence. She demonstrates poor self-control and strong tendencies towards uncontrolled anger that quickly leads to violence and she demonstrates little regard for the law. I accept that she has begun, during the course of these proceedings, to make some efforts to address her many issues. She did have some counselling and she has, I accept, stopped using drugs. However, she has a long way to go before one could confidently predict that her life will be stable and trouble free, allowing her to be completely focussed on the well-being of her girls.
132.One of the most telling considerations though, in my view, is the nature of her relationships with Mr Riley and also with Ms Dixon. I have already noted that I was not satisfied that she and Mr Riley had actually ended their relationship. Initially, when they first separated, it was, on Ms Barnes’ own admission, only done on her solicitor’s advice to improve her prospects of regaining the care of D. Although both Ms Barnes and Mr Riley went on during the course of the proceedings to assert that their relationship was finished, at the trial, they were effectively conceding that it was no longer finished and they told the Court that Mr Riley was still spending quite a deal of time with Ms Barnes at her home. I was not satisfied that their relationship was ended and was convinced they could be cohabitating as a couple again at any point in time.
133.Further, and most importantly, I was not satisfied that they had sufficiently addressed the issue of domestic violence as between them so as to have any confidence that serious violence involving them and their children would not erupt again from time to time. Being satisfied, as I am, that their children have already been exposed to far too much violence, I could not determine, in the end, for that reason alone, that placing the two girls in their mother’s principal care was in their best interests.
134.Additionally, however, Ms Barnes’ volatile relationship with her mother, Ms Dixon, and Ms Dixon’s apparent controlling influence in Ms Barnes’ life caused me to consider that placing the girls with their mother would not be in their best interests. Ms Barnes has shown that she is constantly drawn back into her mother’s influence and control. Whilst that continues to happen and Ms Dixon still remains as implacably vitriolic towards Mr Riley it is only likely to lead to more instability for Ms Barnes and the girls if they were in Ms Barnes’ principal care.
135.Ultimately, the process of weighing up the relevant matters caused me to consider that the only remaining option, placing D with her father, Mr Davies and C with her maternal grandmother and Mr Riley was the best of the options, even though it would result in the two siblings being separated for long periods of time.
136.Mr Davies and Ms B had maintained their relationship and their expressed commitment to each other for a couple of years at the time of the trial. At the trial, they both were continuing to express commitment to a continued life together as a couple with their blended family. Despite not accepting the truthfulness of all of their evidence, including some evidence they each gave about the reasons for police attending at their home one night when there were some difficulties between them (particularly having regard to the content of the police report about the incident), I did accept the apparent genuineness of their expressed commitment to each other and their expressed determination to maintain their relationship and the stability of the blended family unit that they each wanted D to join.
137.I accepted the warmth of Ms B’s feelings towards D and the genuineness of her commitment to assisting Mr Davies in caring for D and both of them trying to help D to overcome her difficulties. Whilst I remained very concerned about Mr Davies’ capacities to manage his anger and his tendency to revert inappropriately to violence, as well as his apparent inability to manage well his intake of alcohol, I accept that he had demonstrated some acceptance of responsibility by holding down employment, at least up until the time of the trial. I also note his commitment to maintaining a parental relationship with D through the difficult years that preceded the trial. I also accept that Ms B was certainly not saying that Mr Davies had been violent towards her during their relationship and that the NSW police records did not reflect that he had.
138.I was influenced by Ms M’s evidence that she observed warm, affectionate and respectful interaction between D and Mr Davies and Ms B and apparent enjoyment on D’s part of being part of a large step-sibling group. The difference between D’s interaction with Mr Davies and Ms B and her interaction with Ms Dixon and with Ms Barnes as observed by Ms M was quite influential.
139.The demonstrated ability to work together as D’s parents to ensure that she continued to have a relationship with each of them, was something that did leave a favourable impression on me in respect to Mr Davies and Ms Barnes. That they were able to do that through incredibly difficult and turbulent times and circumstances caused me to accept that they would be likely to continue to do so, even with D living in Sydney with Mr Davies and Ms B.
140.The fact that Ms Barnes had agreed, early in the trial, that D could live with Mr Davies in Sydney, and that the ICL ultimately submitted at the conclusion of the trial that such an arrangement was the best one available for D, were also factors that I took into account, influencing me in my ultimate decision.
141.Although it is usually always troubling to consider having to separate siblings when making parenting orders in this Court, sometimes it will necessarily be a consequence of what is considered in the best interests of those children. In this case, Ms M unsurprisingly identified the sibling separation as troubling, but certainly did not recommend against it. Weighed up, in my view, separation of the siblings in terms of their principal care was necessary to achieve the result that was ultimately in their best interests.
142.As to the arrangements for C, once Ms Martin genuinely presented herself as a ‘parenting’ option, in conjunction with her son, Mr Riley, that ultimately appeared to me to be the best of the options for that child. Again, that option was the one that ultimately the ICL also submitted was the best one available for C in all the circumstances.
143.Like her son, Mr Riley, Ms Martin impressed me with how she conducted herself during the trial and in the evidence that she did give in the witness box. Additionally, the Court had the benefit of an oral report provided by Ms M during the course of the trial following an interview and assessment of Ms Martin and her husband, undertaken at short notice after Ms Martin was given leave to intervene.
144.I was satisfied that Ms Martin had a sound grand-motherly affection for C and was, in all the circumstances, albeit a trifle reluctantly, committed to ensuring the absolute well-being of C by providing principal care for her. She also was not blind to the shortcomings of Mr Riley and the difficulties that they faced if the Court reposed responsibility for C’s principal care in her. She was 54 years of age and still relatively healthy, although suffering from Lupus, which I accept does not trouble her greatly. Neither she nor Mr Martin drink much alcohol or smoke cigarettes. They have been in a stable relationship for 16 years.
145.I was satisfied that Ms Martin regarded it as an important responsibility to support Mr Riley in parenting C and I was confident that Ms Martin and her husband had a good relationship with Mr Riley that would facilitate the speedy acquisition of sufficient parenting skills by Mr Riley for him to increasingly take on primary responsibility of caring for C. I was also satisfied that the relationship between the Martins and Ms Barnes was a very good one, again shaped by the Martins appreciation of Ms Barnes’ problems, and one that would easily allow facilitation of the appropriate meaningful relationship between C and her mother.
146.I was satisfied that Mr Riley is committed to responsibly parenting his daughter. He had obtained employment so as to support himself and could assist his mother in financially supporting C. The Martins and Mr Riley indicated preparedness for Mr Riley to move in with the Martins so as to jointly provide the parenting and care C needs. If, for some reason, Mr Riley does not live with the Martins I am satisfied that the relationship between him and them is such that C’s time with him will be facilitated during the time that she is in Ms Martin’s principal care.
Parental Responsibility
147.For each of the girls, I accepted the submissions of the ICL in respect of the allocation of parental responsibility. For D, Mr Davies was given sole parental responsibility subject to involving Ms Barnes in the process of decision making. I considered that the conflict that existed between Mr Davies and Ms Barnes over the years rebutted the presumption that sharing parental responsibility between them was in D’s best interests. I was not convinced that ordering that it be shared, thus mandating decisions to be jointly made by them (see s65DAC(2)), would not result in further conflict between them that would detrimentally impact upon D’s well-being.
148.For similar reason, I did not consider that parental responsibility for C should be shared between Ms Barnes and Mr Riley. As Ms Martin was being given the responsibility of principally caring for C on a day to day basis, I considered it in C’s best interests for Ms Martin to have parental responsibility for C. I nevertheless considered it best that she share that equally with C’s father, Mr Riley, so that there remains involvement from one of C’s actual parents in the major long-term decisions and that Ms Martin and Mr Riley still involve Ms Barnes in the process of making decisions.
Other Orders
149.There being no orders for equal shared parental responsibility between the parents of each of the girls, there was no need to consider the provision of equal time with each parent. In any event, it was neither reasonably practicable nor in the best interests of the children.
150.The orders that I made for D to spend time with her mother and her sister, C, had to be framed around the circumstances of D living in Sydney with her father, C living with Ms Martin in Brisbane and Ms Barnes living in Brisbane. Neither Mr Davies nor Ms Barnes have financial resources sufficient to facilitate D’s very regular travel between Sydney and Brisbane and, in any event, D travelling unaccompanied has proven quite problematic and to be avoided as far as possible. Nevertheless, as it is in D’s best interests that the relationship with her mother be maintained, and in both girls’ best interests that their relationship with each other is maintained, I considered the orders proposed by the ICL, requiring Mr Davies to bring D to Brisbane in school holidays for two separate weeks in a year, so that she can spend time with her mother and sister during those weeks to be appropriate. Otherwise, the orders provide for D to spend more time with her mother if Ms Barnes can get herself down to Sydney at any time.
151.The orders made for C to spend time with her mother provide for more regular weekend time, as the Martins, Mr Riley and Ms Barnes all live in Brisbane.
152.I also made the orders as proposed by the ICL in respect of the children’s time with their mother being limited to daytime hours for the time being. Although a little concerned about this provision, I ultimately decided to make it because of the concerns I have about Ms Barnes, the many problems she is dealing with in her life and her propensity to lose her self-control when facing extreme stress. I considered it appropriate to restrict her time with the children to day time only to ensure the children’s safety when in her care, conscious of the findings I have made about the nature of the relationships between Ms Barnes and Mr Davies and Ms Barnes and Mr Riley and Ms Martin. I have every expectation that as Ms Barnes comes to terms with the outcome of this case and the need to address some of her problems, particularly her problem with violence, and Mr Davies and Ms Martin become more confident in her capacities to ensure that the girls are always safe in her care, that a consensual transition to arrangements whereby the girls spend longer periods of time in Ms Barnes’ care, including overnights, should occur. I express the view that I would see that as appropriate and am comfortable leaving that, in the first instance, to the consensual determination of Mr Davies and Ms Barnes in respect of D and Ms Martin, Mr Riley and Ms Barnes in respect of C. I am confident that they should be able to reach agreement at an appropriate time for each of the girls to start spending overnights with their mother.
153.As to each of the children spending time with Ms Dixon, I ultimately accepted the submission of the ICL that such time should be limited and required to take place in Brisbane or Sydney (depending on which city Ms Dixon travels to), unsupervised, at a children’s contact centre. I determined that to be appropriate and in the children’s best interests for several reasons.
154.The most important relationships for these girls are their relationships with their parents and each other. In the circumstances of this case, particularly the separation of the girls on a day to day basis, orders providing for them to maximise the time they can spend with their mother and with each other are most important and take priority over the provision of time with their maternal grandmother. Further, the limited financial resources of the parents should not be called upon to facilitate the girls spending time with the Dixons and the girls should not be required to undertake inter-city travel for such time. Finally, my findings as to Ms Dixon’s unrestrained personality and her attitudes to the parents of the two girls, as well as what she has done in respect of the sexual abuse allegations, cause me to consider it appropriate that the girls spend their time with the Dixons at a children’s contact centre. In such a setting, Ms Dixon’s focus is far more likely to be on enjoying the time that she spends with the girls and keeping it enjoyable for them, minimising the risk that the girls will be exposed to more conflict and inappropriate conduct or conversation by Ms Dixon.
155.Of course, the orders do permit different arrangements to be made in respect of D seeing Ms Dixon if Mr Davies agrees and in respect of C seeing Ms Dixon if Ms Martin and Mr Riley agree. That is as it should be.
156.The orders made provide for what I consider is appropriate communication by telephone and internet between D and C and with the adults with whom they are not living.
157.All of the other orders made deal with matters that I consider appropriate having regard to the evidence and the submissions I received, particularly from the ICL. The orders requiring Mr Davies to arrange for D to be referred to and attend upon a child and adolescent psychiatrist, I consider particularly necessary. It is important, for D’s sake, such orders are complied with. Additionally, although I found that Mr Riley did not sexually abuse D, it is apparent on the evidence that D has a problem with Mr Riley, perhaps based on a mistaken belief that he did abuse her. For this reason, I have made the order that D not be brought into contact or communication with Mr Riley unless such contact or communication is recommended by those providing psychological therapy for D.
158.Having regard to Mr Riley’s agreement to stay away from D, communicated at the commencement of the trial, I would not expect compliance with the order to be a problem for anyone.
159.Although I did not order them to, I recorded as a notation my recommendation that Mr Davies, Mr Riley and Ms Barnes all undertake individual counselling in respect of violence and anger management and that Mr Davies also undertake counselling for his abuse of alcohol. It is to be hoped, for their benefit as well as the benefit of the two little girls and the others in their lives, that they each do this.
160.Finally, I regret the delay that has occurred between making the orders in this matter and delivering these reasons. The pressures of the workload in this Court are many. I have had limited available time to attend to writing these reasons since I made the orders many months ago. I appreciate it has probably caused the parties further stress than they have already been experiencing. I trust that they are getting on with their lives and the important task of providing suitable care and appropriate parenting for the two little girls.
I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 25 January 2013, in circumstances where Orders were pronounced on 22 December 2011 and amended on 30 January 2012.
Associate:
Date: 25 January 2013
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Natural Justice
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Procedural Fairness
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