DONALDSON & RYDER
[2017] FamCA 920
•14 November 2017
FAMILY COURT OF AUSTRALIA
| DONALDSON & RYDER | [2017] FamCA 920 |
| FAMILY LAW – CHILDREN – With whom the child shall live – Where there were competing applications for parental responsibility of the child – Where the mother made allegations that the child had been sexually abused by the father – Where the court was not persuaded the father had sexually abused the child – Where the court was not satisfied that there was an unacceptable risk of the father sexually abusing the child –Where the child would have no relationship with the father if he remained in the mother’s care - Where the court ordered that the Father have sole parental responsibility for the child – Where the court ordered the child live with the father and spend time with the mother |
| Family Law Act 1975 (Cth) |
| Baghti & Baghti [2015] FamCAFC 71 |
| APPLICANT: | Mr Donaldson |
| RESPONDENT: | Ms Ryder |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 3460 | of | 2015 |
| DATE DELIVERED: | 14 November 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 09, 10, 11 October 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Frizelle |
| SOLICITOR FOR THE APPLICANT: | Keyworth Harris & Lowe Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Cullen |
| SOLICITOR FOR THE RESPONDENT: | Porta Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Slade Jones |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Order
All previous parenting orders be discharged.
The father shall have sole parental responsibility for the child B born … 2013 (“the child”) in relation to major long term issues as that term is defined in s 4 of the Family Law Act 1975 (Cth).
The father shall, prior to making any decision in the exercise of his sole parental responsibility, inform the mother of the decision he proposes to make and consider any views expressed by the mother. The father shall then inform the mother of any decision made and provide reasons for his decision.
The child shall live with the father.
The child shall spend time with the mother at all such times as may be agreed between the parents in writing but failing agreement as follows:
(a)Commencing on Saturday 25 November 2017 for two hours on two occasions each week at the C Centre (“the Centre”) at such time to be supervised by an employee of the Centre with any fees charged by the Centre to be paid equally by the parties;
(b)Commencing on 26 May 2018 from 9.00 am Saturday to 5.00 pm Sunday each alternate weekend and each Wednesday from 3.00 pm until 6.00 pm;
(c)Commencing in term one in 2019 during school term from conclusion of school Friday until commencement of school Tuesday in each alternate week term and each Wednesday from after school until 6.00 pm;
(d)Commencing in 2019 for one half of all school holidays during which the time pursuant to subparagraph (c) will be suspended.
For the purposes of paragraph 5 (a) herein the father shall forthwith consult the Centre and obtain information as to the availability of the Centre to supervise the mother’s time with the child in accordance with this order and shall then forthwith inform the mother so that the child’s time with the mother can commence as soon as possible. In the event that the Centre is unable to provide its service the father shall forthwith make alternative arrangements with either another centre or supervisor and inform the mother and any fees charged by another centre or supervisor shall be paid equally by the parties.
Upon the time spent with the mother ceasing to be supervised, all changeovers shall occur at the Centre, if not at the child’s school, or at such other place as may be agreed by the parties in writing.
Child Dispute Services are hereby authorised to release the child to the father.
All extant applications are dismissed.
The independent children’s lawyer is discharged.
Pursuant to section 65DA(2) and section 62B, the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order, and details of who can assist parties adjust to and comply with this Order are set out in the fact sheet attached hereto. These particulars are included in this Order.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Donaldson & Ryder has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 3460 of 2015
| Mr Donaldson |
Applicant
And
| Ms Ryder |
Respondent
REASONS FOR JUDGMENT
Mr Donaldson and Ms Ryder are the parents of B born in 2013 (“the child”). They are unable to agree about what parenting order is proper for their son.
The parents each seek an order for sole parental responsibility.
Up until the time submissions were made the father sought an order for the child to live with him and spend supervised time with the mother. Ultimately he sought an order that the child spend unsupervised time with the mother each alternate weekend and each Wednesday for three hours, increasing once the child commences school. A minute of the precise order sought was provided after the conclusion of the hearing without objection from the mother or the independent children’s lawyer and remains with the court papers.
The mother maintained her position that the child live with her and spend supervised time with the father for two hours each alternate week. The order sought by the mother is as set out in her amended Response filed 6 October 2017.
The order proposed by the independent children’s lawyer is contained in exhibit 7. In summary, it is proposed that the parties have equal shared parental responsibility, that the child live with the mother and spend gradually increasing unsupervised time with the father culminating in alternate weekend time and half school holidays.
background
The parents had a brief relationship from mid-2012 to 2014. They lived together at times but there were also periods when they lived apart before their final separation in or about August 2014.
The father is twenty-nine and a tradesman. He is about to start a new job as a supervisor. He lives with his parents in their home of twenty-eight years. The father has lived with his parents since the parties separated. He has one adult sister who is married with two female children D aged six and E aged four. His sister and her family are regular weekly visitors at the family home and his mother regularly looks after her grandchildren. The father also looks after his nieces from time to time.
The mother is twenty-eight and recently qualified as a health professional but is not currently employed. She lives in rental accommodation with the child. There are no other occupants of her home. She sees her mother and one of her sisters at least weekly (usually several times) and sees her father occasionally.
Since November 2014 the child has regularly attended a local day care centre several days each week.
In November 2014 the father, by letter from his solicitor, formally sought the return of a motor vehicle in the mother’s possession. The car was initially returned in December but in January 2015 the mother resumed possession of the vehicle unbeknown to the father. The father made a complaint to police. The vehicle was leased by his business and the registration had expired. Initially the police sought the voluntary return of the vehicle from the mother. The mother refused to return the vehicle and was arrested. This incident has been the source of considerable animosity by the mother towards the father.
Another source of considerable animosity is the father’s limited financial support for the child since separation. His child support assessment is only $130 per month and there have been a number of occasions when the payments received by the mother have been late. Information from the Child Support Agency indicates that from time to time there have been amounts of up to $145 owing. The father contends that his payments have been regular but concedes a few occasions when the payments have been late.
From the parents’ separation until 26 October 2014 the child spent very little time with the father and, save for two occasions, the time he did spend was in the presence of the mother. On one of those occasions the father’s parents were present and on the other he was alone with the child. The child did not see his father from 26 October 2014 until 6 June 2015.
The father filed an application in the Federal Circuit Court in April 2015 and on 9 June 2015 an order was made by consent that provided for the parents to have equal shared parental responsibility for major long term issues and for the child to spend time with the father initially for three hours each Saturday and Sunday for six visits, increasing to full days for four visits, increasing to one overnight for four visits and then alternate weekends from Friday to Sunday. The order also made provision for the child to spend time with the father on special days such as birthdays, Christmas and Easter.
There were some problems with the mother’s compliance with that order. The overnight time did not commence until 29 August 2015 and the child spent six overnights with the father before a further order was made by consent on 20 November 2015, which provided for the child to spend weekly time with the father including overnight time in the alternate weekend. From that time until 19 March 2016 the child spent another six overnights and some day time with the father. All time between the father and the child then ceased until a further order was made by consent on 17 November 2016 which provided for the child to spend supervised time with the father at C Centre (“the Centre”). Since 5 December 2016 the child has spent two hours supervised time per fortnight with the father.
significant factual issues
The father alleges that he has always fought to see the child and the mother has thwarted those attempts at every turn including by contravening orders and making false allegations of sexual abuse against him.
The mother alleges that the child has been sexually abused by the father who has demonstrated a long time prurient interest in young girls, in particular, his niece, D.
how parenting applications are determined
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer and of course the Court.[1]
[1] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637
The Court is not required to make findings of fact on every factual dispute raised by the parties.[2]
[2] Baghti & Baghti [2015] FamCAFC 71
The objects of the Act are set out in s 60B(1) and 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.
Section 60B(2) provides that 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;
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
‘Abuse’ in relation to a child, is defined in s 4 of the Act and means an assault (including a sexual assault) or involving a child in a sexual activity or causing the child to suffer serious psychological harm or serious neglect.
‘Family violence’ is defined in s 4AB of the Act and means violent threatening or other behaviour that coerces or controls a member of the person’s family or causes that person to be fearful. Examples of such behaviour are set out in the section.
Section 61C provides that each parent has parental responsibility for a child subject to any order made by the Court.
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in what is sometimes referred to as the ‘legislative pathway’ I have considered all sections as required when making my determination.[3]
[3] Banks & Banks (2015) FLC 93-637
The High Court said in M & M[4]:
[4] (1988) 166 CLR 69 at 76; (1988) FLC 91-979 at 77,080 and 77,081
…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.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind 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 a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting the resolution of an allegation of sexual abuse against a person 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 Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
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 C.L.R. 336 at p. 362. There Dixon J. said:“The seriousness of an allegation made, the inherent unlikelihood 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.”
…
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
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 assessing 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. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. …
The utility of the identification and assessment of an ‘unacceptable risk’ was confirmed by the High Court in Fardon v Attorney General (Qld)[5] where the then Chief Justice said:
It was argued that the test, posed by s 13(2) (of the Queensland Act) of ‘an unacceptable risk that the prisoner will commit a serious sexual offence’ is devoid of practical content. On the contrary, the standard of ‘unacceptable risk’ was referred to by this court in M & M in the context of the magnitude of a risk which would justify a court in denying a parent access to a child. The court warned against ‘striving for a greater degree of definition than the subject is capable of yielding’. The phrase is used in the Bail Act 1980 (Qld), which provides that courts may deny bail where there is an unacceptable risk that the offender will fail to appear (s 16). It is not devoid of content, and its use does not warrant a conclusion that the decision making process is a meaningless charade.
[5] (2004) 210 ALR 50 at [22]
In considering the ‘unacceptable risk’ assessment Fogarty J observed in The Marriage of N & S:[6]
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.
[6] (1996) FLC 92-655 at 82713-4
sexual abuse allegations
The mother alleges that the father has sexually abused the child and that the only reason the father wants to spend time with the child is so that he can abuse him. She believes the father is a paedophile. The mother alleges that the child was terrified of the father up until the end of 2016.
The father denies the allegations.
The following is a summary of the evidence relied upon by the mother to support her allegation and belief:
a)During her relationship with the father he had trouble maintaining an erection during sexual intercourse with her;
b)The father showed little interest in sexual intercourse and would sometimes masturbate;
c)In June 2012, while she and the father were at the father’s sister’s home, his niece, D (then a toddler) sat astride the father at about waist level while he was lying on his back in the lounge room watching television. D bounced up and down on him and the mother says she observed the father to show discomfort and pain as the child bounced down to his “privates” but he made no move to remove her. The paternal grandmother removed D and the mother says she observed a “raised bump at the level of his penis”;
d)In February 2013 the mother’s cousin and her two children (a girl aged three and a boy aged five) were visiting and the little girl changed into a pair of D’s hand-me-downs as she had spilt something on her own clothes. When the father arrived home he commented about the little girl being in D’s clothes and said how cute she looked. He stared at her intensely for the rest of the visit and did not seem to notice the little boy;
e)In March 2013 the father asked the mother if she thought he could contract AIDS or an STD from a public toilet;
f)The father commented on a number of occasions during their relationship that his niece had nice tanned legs and arms;
g)Various ‘looks’ that were exchanged between the paternal grandmother and paternal aunt which the mother interpreted as indicating some knowledge of the father’s proclivities;
h)On one occasion the father asked D to do a handstand and looked at her underwear;
i)In March 2014 the father referred to ‘mentally raping’ his work colleagues;
j)In April 2014 while at a customer’s home the father displayed a significant interest in a little girl and in the car on the way home told the mother details about the child such as her age and kindy but was unable to provide any details about the little boy who was also present;
k)B became distressed at changeovers clinging to his father and looking away from the mother;
l)B was distressed at night and referred to the father;
m)On 31 January 2016 the child bent over, facing his bottom at the mother and aggressively pulled his bottom cheeks apart and said “daddy” and “owie” (although it is conceded by the mother that no mention of the child saying “owie” appears in her diary);
n)On 23 March 2016 the child began to discuss “monsters” after spending time with the father;
o)B became fearful of his soft toys and of adults and would cling to the mother saying “it’s the monster”;
p)Every night during April to August 2016 the child displayed “excessive fear, panic and trauma behaviours at night time, bed time and in the dark associated to his father. He states that his father will touch his bottom. He does not want me to be out of his sight or to be alone.” This would occur for up to several hours at a time;
q)“During these ordeals the child is in fear of “daddy” being present “in the room, under the bed, in the wardrobe, outside the door, in the wall and in the roof” and that his father is going to “get him in the dark” and is “watching him” when laying (sic) in bed. The child will fear and state there is a man knocking at the bedroom door who was is “Daddy” and “monster” who is going to come and touch his bottom.”;
r)Various behaviours of the child described as ‘sexualised’ involving him bending over and pulling his bottom cheeks apart or pushing objects against his genitals or lying on top of soft toys and ‘grinding’ or licking the mother’s arm;
s)The paternal grandmother allegedly said to the mother on numerous occasions during the relationship:
266. … when [Mr Donaldson] was growing up he “looked like a paedophile” I recall interpreting that she meant in relation to his height.
The mother maintained a diary throughout this period but conceded that her diary did not record the questions she asked the child which elicited many of the responses included in her affidavit. The questions she has admitted to asking are often leading e.g. does Daddy do that? She also conceded that she did not always record in her diary what the child had said but would summarise it days later.
A most concerning admission was made by the mother during cross-examination, namely, that when the child responded to a question from her saying “I don’t know” the mother persisted in questioning him because “I believe he does know”.
Another concerning admission was made by the mother that when the child mentioned ‘monsters’ the mother interprets that to mean that something has happened to him and she is “allowing him that open space to talk about it.”
The mother also interprets the child pinching her as him re-enacting something that had happened to him at his father’s.
The mother also alleges that the child demonstrated “dissociative” behaviours which she described as him being “removed mentally.”
The audio recordings
The mother made three audio recordings that were tendered into evidence together with a transcript. The parties agreed that the transcript was an accurate record in most respects. The recordings were made by the mother on 31 January 2016 (44 seconds), 11 May 2016 (2 minutes 51 seconds) and 25 May 2016 (13 minutes 24 seconds). The mother contended that she had made the recordings in order to obtain advice about how to manage the child’s behaviour. There is no evidence that she sought advice in that regard from anyone. Ms F (a psychologist the mother consulted on five occasions from October 2015 to June 2016) referred to one of the recordings but not in the context of giving any such advice.
The first recording is made at a changeover when there is a brief exchange between the maternal grandmother and the father, and the child is heard screaming.
In the second recording the child tells the mother that he wants the lights on and when his request is not met he becomes more and more distressed. He refers to ‘knocking’ and repeats a number of times (in a distressed state) two clear words “daddy” and “monster”. The parties disagreed that the transcript accurately represented what was said. The transcript states the child said “Daddy a monster”. Having listened to the recording several times it appears to me that both parties are right in that on some of the occasions the child says “Daddy a monster” and others just the disjointed words. What I can conclude from either version though is questionable. For instance, rather than implicating the father in some sexually abusive act, the child might be calling for his daddy because he is scared. The mother’s response to the child on the recording is to say - “There are no monsters here, Daddy’s not here.” Such a statement may reinforce to the child that his father is a monster. At the time of this recording (11 May 2016) the child had not seen his father since 19 March 2016.
In the third recording the child is chatty and happy for the most part. There is a brief period where he sounds slightly agitated. It is very difficult to understand him for the most part. He refers to “daddy touching bum”. The child was still wearing nappies at the time of the recording. The father did change the child’s nappy when he spent time with him up until 19 March. He also bathed him. I therefore am unable to conclude that a reference to the father touching his bottom is other than appropriate. Again I note that at the time of this recording the child had not seen his father for over two months. The mother’s questioning of the child is of concern. She repeatedly asks the child “what happened?” and asks leading questions such as “was anyone else there when daddy did that?” and “who did daddy pinch?” The mother also repeatedly tells the child that no one is to touch his private parts. One is left to wonder how the child might interpret such an instruction when clearly adults do touch his private parts as he is still in nappies and requires assistance with his toileting and bathing.
I do not regard anything said by the child to be indicative of the father having sexually abused him or ‘sexually groomed him’. It is extremely dangerous in my view for an adult to seek to interpret what such a young child may be trying to convey, if anything. While the mother relies on the child’s words as conveying sexual abuse it seems she conveniently ignores other words such as “a birdy is touching me” and “Daddy’s nice”.
Particular examples of the child’s behaviour
An incident is recounted in the mother’s diary on 13 April 2016 and she was cross-examined about it in some detail. The child pointed to his bottom and said “poo poo”. The mother’s response was to ask him what was wrong and what has happened. One might have thought the first reaction would be to take the child to the toilet. When he points to his penis and says “wee wee” the mother finally takes him to the toilet whereupon she contends that he repeatedly banged the toilet lid on his penis. The mother gave an unsatisfactory answer as to why she did not intervene, if this did in fact occur. She denied that he caused himself any injury.
Another curious incident was mentioned by the mother in the witness box when she insisted that the child had inserted an iPhone into his anus. She repeated the assertion on a number of occasions before changing her evidence to state that he merely rubbed it between his bottom cheeks. The difference between her first version and second version are significant and indicative of the mother’s propensity to make statements that she considers support her conclusion that the father has sexually abused the child. A further example of this propensity was demonstrated when the mother said the child had put his finger into his anus. Questioning revealed that the child was sitting in the bath at the time and such an observation would not have been possible. The mother eventually conceded as much and changed her evidence to assert that he pointed towards his anus.
Bottom examination
It also became apparent during cross-examination of the mother that upon the child’s return from his father she would often inspect his bottom and that when her mother was present she too would check his bottom. There were complaints by the mother about the child returning from time with his father having faeces in his nappy, the suggestion being that he was not changed while in the father’s care.
The point is that the child may well have associated time with his father with inspection of his bottom and it may well explain the child bending over, spreading his cheeks apart and saying ‘daddy’.
‘Harry and the Dinosaur’
The mother places great emphasis on the child’s reaction to a child’s storybook titled ‘Harry and the Dinosaur’ and interprets his reaction as “triggering” some traumatic event of sexual abuse by the father. The book is an exhibit in the proceedings. The mother stated that “as far as she could recall” the child had not read the book until mid-2016 well after he first started talking about monsters and his father in January 2016. The mother contends that she only ever read the book to the child once and even then did not finish it because he became distressed. However, the book had been on a shelf in his room for about a year. She said that on an occasion when her mother was present the child went to get the book and tore out pages. The book is mentioned in the first family report completed after interviews on 11 May 2016.
The book depicts a little boy who is scared in the dark; bats in the ceiling; dinosaurs; climbing up a ladder into the roof; things knocking on the window; being in a tent; a dad coming into the boys’ room seeing if they are all right. There is a remarkable similarity between things in the book and things that the child has said to his mother.
B’s medical records
B’s medical records during the period 6 March 2015 to June 2016 show that he suffered from what might be described as a number of childhood illnesses and that in the period June to September 2015 he suffered from recurring bouts of tonsillitis. The fact that he was unwell on occasions may explain his distress at changeover and at bedtime. On 15 September 2015 the medical records reveal that the mother was keen to reduce the father’s time with the child. This is before any of the behaviour that the mother now relies upon as indicative of sexual abuse.
Department of Communities, Child Safety and Disability Services
The records of the Department of Communities, Child Safety and Disability Services in about April/May 2016 indicate that in their view “the change in home environments and differing parenting styles could be distressing to the child and impacting on the behaviours observed.” And that “Although it is concerning that the child has engaged in behaviours that may be outside the scope of ‘normal’ sexual behaviour there is insufficient evidence … that the child has been sexually abused … or exposed to sexual acts or sexually explicit material…. A protective resource that is available is that the child attends child care. His welfare can be monitored via his attendance…”
Mother’s medical records
According to the mother’s medical records she has always been an anxious person. She suffered panic attacks from February 2012. She described herself as always having been a nervous person.
G Child Care
B has been a regular attendee at the same day care centre since 6 November 2014. From January to July 2015 he attended three days per week. From August to December 2015 he attended two days per week. From January to October 2016 he attended three days per week. There are no current records before the Court but it is common ground that the child continues to attend the same day care centre on at least one day per week.
Apart from an occasion on 12 October 2016 when the child said “my daddy hurt my mummy” in the context of a child next to him saying that he was angry at his daddy and that his mummy was crying, there is no evidence that the child has said or done anything that caused the employees of that centre to be concerned. His behaviour was noted to be aggressive on only three occasions in all that time. No behaviour of the type observed by the mother, her mother and sister has been observed.
B’s speech development was commented upon and in particular that in May 2016 his speech was unclear and in September it was noted by an educator from the centre that the child had some speech difficulty. In May 2016 the records refer to a speech pathology checklist noting that the child was difficult to understand and that he would become frustrated as a result. He rarely pronounced the ‘t’ at the end of words like ‘wha’ for ‘what’. He did not say full sentences and would leave out the middle word e.g. “I bottle” when indicating he wanted his bottle. He also had difficulty pronouncing numerous words.
The three noted incidents of the child behaving aggressively at day care occurred on 13 and 19 May 2016. There is nothing remarkable about the behaviours and I note that they occurred at a time when the child had not spent any time with the father for over two months.
On 9 May 2016 the G Child Care Centre was contacted by police with an enquiry about whether any concerning behaviours had been observed of the child. Ms H informed police that there were no concerns about the child’s wellbeing and that there were no signs or behaviours suggesting sexual abuse.
J Group
In the records from J Group I note that the account of the mother’s observations of the child are at odds in some respects with her evidence in this case e.g. during the trial the mother used the term “grinding” to describe the child’s actions when on top of toys or on her lap yet the term attributed to her in the J Group records is “wiggle around” or “squirming”. The description relied upon in these proceedings has more of a sexual connotation.
On or about 3 May 2016 the records indicate that the mother had informed the service that the child had made disclosures about being sexually assaulted by his father. Given the child’s very limited verbal skills at the time, a more accurate description would have to be that the mother had come to that conclusion based on her interpretation of what the child had said.
The mother is reported to have told the service that she left the father because of his conduct around children. She does not state that to be so in these proceedings. There is reference to the service being concerned about the father living in the same street as a primary school.
The mother was provided some counselling by Ms K and she describes the mother as tearful, anxious and suffering ‘flashbacks’ to when the child would come home distressed. At other times she is described as extremely distressed during sessions. The issue about the motor vehicle is also a topic of some discussion.
Unfortunately, Ms K went on to provide counselling to the child.
C Centre
C Centre has undertaken supervision of the father’s time with the child since it commenced on 5 December 2016. Their notes indicate that the child is difficult to understand. On the first occasion that the child saw his father since 19 March 2016, the child is noted to be excited to see the father and to initiate several very short hugs with him. There was much laughter between the child and the father and the child was noted to take his father by the hand. There were no issues or concerns. The child and the father engaged in numerous activities and the father is noted to attend to such things as ensuring that the child has sunscreen and a hat on when they play outside. The transition back to the mother goes smoothly although the mother is noted to be “highly anxious” and asks numerous questions in front of the child indicating her concern e.g. “How was he? Was he ok? How did he go?” After placing the child in the car and closing the door the mother asked “How was he really?”
On 10 December 2016 the child runs to the father squealing “Daddeee”. This is typical of the delight expressed by the child when seeing his father. The records that form part of the evidence contain detailed observations up to and including 28 August 2017. The parties all agreed that the time that continued to occur after that date is consistent with the earlier observations.
The child has regularly asked after his paternal grandmother. Unfortunately the mother has denied the child the opportunity of spending any time with her during the supervised visits.
The father is noted to manage the child’s behaviour very well. On occasions the child is reluctant to return to the mother but the father is able to encourage the child to make the transition.
On 12 February 2017 the mother hugged the child after the visit and appeared anxious. She asked the supervisor in front of the child “has he been in contact with him?” “because I can smell him.” The mother later emailed the centre raising her concerns about the father’s interaction with the child. The centre responded as follows:
Hi [Ms Ryder]
Thanks for your email. I’ve reviewed video recording of entire visit. [Ms L] and I were present to supervise the whole 2 hours … there were no issues, conversations or interactions which would raise concern. As for the child smelling like [Mr Donaldson’s] cologne, I guess the extreme temperature may have contributed? …
During the visit on 10 April 2017 the child initiated a pretend telephone call saying to the father – “I’m calling your home daddy” and “I want to go to your house daddy” and “Hello? Is my nanny there? Hello nanny”. The child repeated this pretend call three times asking for his nanny and to go to the father’s house.
There are a number of concerning entries about the mother’s behaviour e.g. not supplying any food or drink for the child during the visits with the father and insisting that the father not be permitted to give the child any food or drink. The mother objected to the father providing any presents to the child. The mother is adamant that the father cannot take any photographs of the child.
The centre expressed concern about the negativity of the mother and maternal grandmother at the end of visits and how the child may perceive their reactions as disapproving. Particular concern is noted about the mother’s ongoing anxiety expressed in the child’s presence and how this appeared to be affecting the child. The mother was noted to “make false accusations/complaints about trivial matters, indicating a detailed knowledge (often distorted) as to what has occurred during the supervised contact.”
On 8 May 2017 the child is noted to interrupt the father during a story and demonstrated a great deal of imagination and exaggeration. When the child ran back to give his father a second hug after the mother had arrived to collect him the mother is noted to look annoyed and communicated in an abrupt way with the child.
On 29 May 2017 the notes reveal ongoing difficulties with the mother accusing the supervisors of trivial matters e.g. that the child was given chocolate, and when given an explanation responding in a defensive manner e.g. “so are you saying the child is just making it up”. It is also noted that the child arrived at the centre appearing to be unsettled and that the maternal grandmother’s behaviour is non-supportive of the child and “consistent with obstructive parent.”
On 5 June 2017 the child is heard to whisper to the father “Mummy say you bad man. I not say you mean” and “Mummy say you mean.” The notes indicate an ongoing concern about the mother’s behaviour and the impact it is having on the child. In particular the note states:
Mother maintains focus on insignificant issues and/or matters of minimal concern, while refusing to discuss with staff what they suspect to be highly inappropriate behaviour and behaviour which constitutes emotional abuse of the child.
On 3 July 2017 the child was noted to respond to questions with “Mummy told me not to say”. This was the response given to innocuous questions such as “what is your favourite colour [B].” the child is noted to withdraw from the father when told it is time to go. The supervisor gave the child a blue balloon. The child was observed to give the father an extended hug. When the mother collected the child she immediately asked who gave the child the balloon while indicating her disapproval. The notes include the comment - “Consistently and continually Mother receives [the child] without emotion and with blank facial expression. Child experiences same response from MGM”
The mother’s objections to the father or his family providing the child with any sort of gift impacted on their ability to celebrate the child’s fourth birthday with him. The rationale for the father not being permitted to provide gifts arises because of the mother’s views that such acts are consistent with ‘sexual grooming.’
The notes relating to the father’s discussion with the centre supervisor are impressive and indicate a great deal of insight and capacity to make decisions intended to be the least harmful for the child.
other witnesses
Mrs M Ryder – maternal grandmother
Mrs M Ryder is the child’s maternal grandmother.
Mrs Ryder deposes to a number of observations commencing with in 2014 where she says that during the child’s birthday party at a local park she had a “strange feeling” when she saw the father “extensively staring at one of our families little 4 year old girl playing.”
Mrs Ryder attended a number of changeovers during 2015 and describes the child generally being upset when returning to the mother. The child was observed to spit, punch and bite his mother and stated “Go away mummy” and “go away ga ga” (a reference to the maternal grandmother). On other occasions she observed the child crying inconsolably with arms outstretched to the father. Curiously, Mrs Ryder interpreted the child’s clinging to his father at changeovers as “grooming” behaviour on the part of the father.
Mrs Ryder deposes to an unpleasant changeover between herself, the father and the paternal grandmother. Cross words were exchanged and the child became distressed. He had impetigo (school sores) at the time.
During her oral evidence, Mrs Ryder maintained that she had typed her affidavit on her iPhone and then sent it to her daughter. She denied that she had conferred with the mother or referred to the mother’s diary when preparing her own affidavit but was unable to explain why a significant segment of her affidavit was identical (including errors) with a segment of the mother’s affidavit and diary. I reject her evidence that she prepared the affidavit without assistance from the mother and/or the mother’s diary.
Mrs Ryder insisted that in March 2016 the child said “Daddy is a monster he is coming for the child” in one continuous uninterrupted sentence. I reject that evidence. The evidence before me including the recordings and the notes from the G Child Care Centre persuades me that the child did not have the verbal capacity to make the statement as alleged by Mrs Ryder.
Ms N Ryder – maternal aunt
Ms N Ryder is the child’s maternal aunt. Her affidavit describes observing certain behaviour of the child on three occasions in March, April and May 2016. The first observation refers to him being placed in a darkened room whereupon he became agitated and anxious and she deposes that “[B] was trying to tell us something.” He said words such as “scary man/monster”. He took off his nappy bent over and spread his bottom cheeks apart and said words such as “owie”, “ouch” and “daddy”. Ms N Ryder describes being shocked and feeling sick. It is not clear why Ms N Ryder had this reaction but it seems it formed the basis of her belief that the child had been sexually abused by his father.
The second observation involved the child being admonished for pushing a little girl at his kindergarten. Ms N Ryder deposes to the child becoming anxious and speaking very quickly and stating “daddy pushed me” “owie” and pointed to his bottom. Both the mother and Ms N Ryder then engaged in questioning the child. The child then bent over and spread his bottom cheeks and said “owie Daddy”.
The third observation occurred at the family report interviews with Ms O on 11 May 2016. Ms N Ryder deposes to the child appearing uncertain when he walked away with Ms O and upon returning a short time later he became aggressive and was hitting and smacking Ms N Ryder and throwing toys around the room and screaming. Ms O did not recall any such behaviour and confirmed that if something like that had occurred she would have included it in her report.
A general observation is made of the child by Ms N Ryder that he is anxious, fearful of everyday things and people, has developed a stutter since March 2016, is very obsessive with things and has an unusual attachment to his toys.
Ms N Ryder demonstrated an incongruent level of distress as she described a benign observation made by her involving the child bending over and pulling his cheeks apart and saying daddy. Her presentation had a theatrical air about it. She is convinced that something of a sexual nature has occurred to the child at the hands of the father. She said that the mother had told her that the child had inserted bath toys into his anus.
Mrs P Donaldson – paternal grandmother
Mrs Donaldson is the child’s paternal grandmother. She presented as a caring and loving grandmother. I accept her evidence that she would always put her grandchildren’s safety above all else. She convincingly asserted that if she formed the view that the father had sexually abused the child or any child she would immediately inform police and I accept her evidence. She also denied ever having a concern about the father being left alone with the child or his nieces. I accept her evidence.
She was adamant in her denials that she had made the various statements to the mother as alleged. I accept her denials. For example, it seems highly improbable that Mrs Donaldson would have said to the mother that when growing up her son looked like a paedophile.
Ms F
Ms F is a psychologist and was consulted by the mother on five occasions commencing on 29 October 2015 and concluding on 1 June 2016. According to the mother, the child was present at the sessions although said to be out of earshot. Ms F said that it would be unusual for her to see the mother with the child present for the interview but she had no recollection of whether or not this occurred. Ms O (the author of the first family report in May 2016) notes that the mother told her that the child was with her for part of the first two sessions with Ms F but the last two consultations occurred without the child being present in the room. I find that the child was present for at least part of two of the five consultations but I do not accept that he was out of earshot as he was in the same room.
The mother conceded during cross-examination that prior to the child making any statement which the mother interprets as incriminating of the father, she told Ms F that she was thinking of stopping time.
Ms F was provided with one recording of the mother and child on 1 June 2016. She listened to and noted the child said “Daddy touched me here.” Her notes then reveal the words “Where? Here? On the bottom? Yes.” The mother asked Ms F for a letter of support for her lawyers to use in the court proceedings. Ms F provided a letter which said inter alia:
[The mother] reported that when [the child] began overnight stays at his father’s residence, he returned to mother quite distressed at the shopping centre pick up. [The child] began hitting and biting aggressively toward mother. [The child] showed distress for several hours after pick up and wanted to sleep in his mother’s bed.
… [The mother] was considering withholding access but continued access trying to make sense of [the child’s] unusual and stressful behaviours.
On April 12 consultation, [the mother] description (sic) of [the child’s] behaviour at night and emotional distress appeared to indicate high risk of some trauma happening when in his father’s care. It was reported by mother that [the child] is very distressed at night and touching his penis and back passage saying “Daddy Daddy”. [The child] is reported as verbalising “monsters”, “hide”, “knocking at door.”
…
The writer has assessed [the child’s] behaviours as at high risk of possible abuse, from [the mother]’s descriptions and from listening to taped dialogue between [the child] and his mother. …
(as per original)
I find Ms F’s opinion rather alarming for the following reasons:
a)As a professionally trained psychologist I would expect her to point out in her ‘letter of support’ that there could well be other explanations for the child’s behaviour;
b)She had never met the father;
c)She had never assessed the child;
d)On the basis of alleged behaviour never observed by her she was prepared to opine that there was a “high risk of some trauma happening while in the father’s care”;
e)She placed no caveat on her opinion;
f)She makes no mention in her ‘letter of support’ that in her early sessions with the mother, the mother had been unsure whether the child was referring to the father when he said ‘daddy’ but was perhaps referring to another man.
I place no weight on Ms F’s opinion.
Ms O
Ms O prepared a family report as a consequence of interviews conducted on 13 April 2016 with the father (the mother failing to attend the interview) and on 11 May 2016 with the father, mother, the child and the grandmothers.
The mother acknowledged receiving some texts from the father after separation wanting to see the child but dismissed that they indicated a real wish to do so. She said that it was “just manipulation” to make it appear that he wanted to see the child.
Ms O noted that the child’s speech was not fully formed and that he mostly said single words although he did string two or three words together at times. Some of his words were difficult to distinguish.
When he saw his father he ran to him and gave him a long hug.
In relation to the child’s night time behaviour as described by the mother, Ms O opined:
102. It is not unusual for small children to become fearful of the dark and scary imaginary characters such as monsters and ghosts etc. There were also come curious anomalies. [Ms Ryder] says that she is protective of what her son is exposed to regarding monsters etc and yet the book she used to illustrate her concerns was about monsters and noises in the dark. The pages torn from the book were much more neatly removed than my experience of 2-year-olds ripping up books.
[…]
105. I do not doubt that [Ms Ryder] has had difficulties with [the child’s] nighttime (sic) behaviour and sleeping patterns. On the other hand, the conclusions she has reached are based on assumptions that have little data to support them. While it is impossible to discount the possibility that sexual grooming has taken place, there are other far less grave causes that should be examined before this.
98. Ms O recommended the reinstatement of the child’s time with his father and stressed the importance of him having a strong and secure relationship with both parents. Ms O did not support a change in the child’s primary care at that time but opined:
111. On the other hand, if problems continue and the Court were to be concerned that [Ms Ryder] was deliberately obstructive, there might be a need to review this recommendation.
Ms Q
Ms Q prepared a family report after interviews on 22 August 2017. She notes that the child was quite difficult to understand. The child appeared excited about spending time with the father on the day of interviews stating that it would be “good” to play with the father and smiling while talking about the father. This is despite initially saying he did not like the father. He gave as a reason for not liking the father that he was old but then said he did like the father. The child ran to his father with a big smile on his face and gave his father a long hug.
The maternal grandmother reported a belief to Ms Q that the child was afraid of the father and continues to refer to him as a “monster”.
As to the allegations of sexual abuse Ms Q opines:
73. … as there are no ‘usual’ set of behaviours for child victims of sexual abuse to exhibit, [the child’s] lack of disclosures, and otherwise unremarkable behaviour, cannot be considered evidence either for or against the mother’s allegations.
74. In my experience, it is not unusual for child victims of sexual abuse to want the abuse to stop, but to seek to maintain their relationship with their abuser. This is particularly true of intra-familial cases of abuse, where the abuser may be a much loved parent. As such, the child’s comfortable and loving behaviour with his father does not necessarily rule out the possibility that sexual abuse has occurred.
75. Alternatively, in my experience, it is not uncommon for children’s disclosures to be influenced by over-interviewing, or poor questioning techniques by either parents or professionals. While the mother claims to have exercised caution when talking with the child about his disclosures, I cannot discount the possibility that her questioning technique has elicited some unreliable disclosures form the child; and that repeated discussions may have even resulted in the child forming a false memory of sexual abuse.
[…]
77. … While there is a possibility that [the child’s] young age would mean he would retain no memories of the abuse in the future, the suggestion that he is continuing to make disclosures to the present day increases the potential that he may retain some memories.
..
79. In the event that [the child] has been groomed or sexually abused, the mother’s firm belief in his disclosures, and her refusals to accept the lack of evidence as proof of innocence, would be indicative of a protective mother who holds [the child’s] best interests in mind. In such an event, the mother’s actions would be viewed as appropriate, and her ability to put [the child’s] safety as her first priority would indicate a mother both willing and able to protect the child from harm in the future.
80. However, if the Court finds that [the child] has not been groomed or sexually abused, I believe there are two possible alternate scenarios. Firstly, it would be possible that the mother has deliberately coached [the child] into making completely unfounded allegations; or secondly, it would be possible that the mother has inadvertently prompted [the child] to make false allegations as a result of her own anxiety, combined with her continued and inappropriate questioning techniques.
81. In my opinion, either of these outcomes would result in harm to [the child]; and would each hold the potential for [the child] to have developed false memories of abuse which did not occur. However, in the event that the mother has deliberately sought to impart these false memories to [the child], the future risks to [the child] in the care of his mother are significantly higher.
82. In the event that the mother has purposefully sought to implant false memories of abuse, her behaviour would be indicative of extreme alienating behaviour. Such behaviour would appear to be aimed at terminating [the child’s] relationship with his father, and would consequently hold the risk that she would continue to explore other avenues to terminate their relationship in the future. Such actions would indicate that the mother does not have the capacity to safely facilitate [the child’s] relationship with his father in the future.
83. In my opinion, this possibility is the less likely of the two. In such a circumstance I would expect to see a child exhibit specific behaviours, such as volunteering unprompted disclosures about the abuse, and presenting with common features associated with children who have been coached for interviews. The absence of these features in [the child’s] presentation leads me to believe that it is unlikely the mother has been repeatedly coaching [the child] to fabricate allegations.
84. In the event that the mother has inadvertently elicited false disclosures from [the child] as a result of her anxiety and repeated inappropriate questioning techniques, the future risk to [the child] in the care of her (sic) mother would be determined by the mother’s capacity to accept this determination. If the mother is able to accept this finding, she may be able to understand the implications of her actions on the child’s emotional development, and to correct her behaviour.
85. However, if the mother is unable to accept such a finding, it is likely she would continue to misinterpret future information and events to support her belief that abuse has occurred; and would continue to behave in a manner which would place [the child] at risk of future emotional harm.
86. In my experience, it is quite easy for children’s disclosures to be taken out of context, and for poor questioning techniques to elicit information which may not be accurate. If the father’s descriptions of the mother’s questioning techniques are accurate, there would appear a high likelihood that [the child’s] disclosures have been inadvertently influenced by the mother’s leading questions.
87. In my opinion, the mother’s very firm belief in [the child’s] disclosures would find it extremely difficult for her to reconcile any suggestion that she may have been responsible for the emergence of the allegations. As such, I believe it is likely that the mother’s own feelings have the potential to diminish her capacity to facilitate the development and maintenance of a relationship between [the child] and his father in the future. In such an event, the mother may seek to engage in personal counselling to address these issues.
Ms Q does not consider the parties have the capacity to co-parent, stating:
91. In my opinion, the co-parenting relationship appears completely disengaged. A disengaged co-parenting relationship may pose a risk to [the child] due to the risk of conflict between his parents. The risks to [the child] of experiencing a high-conflict co-parenting arrangement are the potential for the parents to undermine one another, for [the child] to experience a lack of consistency between the two households, and the potential for [the child] to be used as a messenger between his parents
As to the consequences of a finding that the mother’s allegations are well founded, Ms Q opines:
99. If the mother’s allegations are accepted, and [the child] remained in her care; it is likely he would spend minimal and supervised time with his father. As above, I believe the mother’s firm belief in the guilt of the father is likely to impact on her capacity to facilitate [the child’s] relationship with their (sic) father; which may consequently require that time between [the child] and his father be ordered to remain supervised by an independent person.
As to the consequences of a finding that the mother’s allegations are not well founded Ms Q opines:
100. However, if the Court finds that the mother has fabricated the allegations, and prompted [the child] to make false disclosures, this may be evidence that the mother is unable to put [the child’s] needs ahead of her own. In such a case, [the child] would be considered at risk of future emotional manipulation from his mother, to the extent that his emotional and psychological wellbeing would be significantly impaired. It is likely [the child] would experience a raft of emotional and psychological problems in his future life, and may require a change of residence to ensure his emotional safety and wellbeing.
101. In the event that [the child] were to be ordered to live with his father, he would face a change of primary residence. While [the child] is not yet attending school, he would likely face a change of day care provider, which would be akin to a change in [the child’s] local community. Having said that, there were no issues identified on the day of interviews to indicate that [the child] would not manage to adjust to this change.
102. Despite the allegations raised by the mother, [the child] did not display any behaviours on the day of interviews to suggest that he feels afraid of his father. In fact, [the child’s] behaviour appeared to suggest that [the child] felt comfortable and settled in the care of his father.
103. While these observations would suggest that [the child] would manage to cope with a change of residence, it is acknowledged that he would experience the absence of his mother from his life as a significant loss. In fact, I would expect [the child] to experience this loss as particularly acute, given his mother’s role as the primary care provider in his life to date. This role would indicate that [the child] has a primary attachment relationship with his mother, and that a change of residence would disrupt this primary attachment relationship.
104. While a disruption to a primary attachment relationship is never good for a child, at the age of four years, it is expected that [the child] would recover from this disruption without permanent risk to his emotional or psychological development. As a child’s ability to form other successful relationships is dependent on the strength of the primary attachment relationship, [the child’s] attachment relationship with his mother is likely to have laid a positive foundation for the child to form other strong and positive relationships.
I have found the considerations and opinions of Ms O and Ms Q to be very helpful in my deliberations.
discussion – sexual abuse allegations
As Ms Q opines there are no ‘usual’ behaviours in a child that enables a determination, categorically, of whether or not a pre-verbal child (or a child with limited verbal ability) has or has not been sexually abused. I am mindful that coming to such a determination may well entail the piecing together of a variety of evidence none of which singularly would lead to such a conclusion. The same can be said for the determination of whether or not there is an unacceptable risk of a child being sexually abused.
The task involves firstly the identification of what is said to be the evidence supporting such a finding, assessing it i.e. is the evidence forensically significant and then coming to a conclusion.
In this case the mother contends that during the parent’s relationship the father had an unhealthy interest in little girls. The mother did not make any such claim to anyone until shortly before the parties separated and certainly not at any time proximate to the times she allegedly observed the behaviour of which she now complains. The mother called the father a paedophile on at least one occasion at or around the time of their final separation. Despite this, the mother then proceeded to permit (and on her case encourage) the child to spend time with the father. I conclude that the mother did not hold the view that the father was a paedophile but made the statement in the context of a bitter and unhappy relationship. I accept the father’s denials relating to the alleged observations made by the mother.
There is no allegation that the child was abused by the father when the parties were in a relationship. Indeed the mother contends that the father did not show any interest in the child. The timing for the alleged abuse of the child falls to the occasions after separation when the child spent unsupervised time with the father.
In the period August 2014 to 26 October 2014 there was only one occasion when the child spent time with the father on his own.
From 26 October 2014 until 6 June 2015 the child did not spend any time with the father.
From 6 June 2015 to 28 August 2015 the child spent daytime only with the father and during the period 29 August 2015 and 19 March 2016 the child spent day time and twelve overnights with the father. The overnights were at the paternal grandparents home where the father lives.
According to the father and the paternal grandmother the time the child spent in the father’s care was wonderful. The only time he showed any distress was returning to the mother. There is no suggestion by the father or the paternal grandmother that the child experienced any trauma when with the father. The father had occasion to change the child’s nappy and to bathe him and change his clothes. The child experienced nappy rash from time to time. In the context of normal every day care it is entirely probable that the father did touch the child’s bottom.
The mother points to the child’s distress at changeovers. She describes him crying and clinging to the father. I accept the father’s evidence that he had a close relationship with the child prior to separation. The attachment between the child and the father was interrupted on a number of occasions for significant periods. The child also suffered a number of childhood illnesses after separation. I do not consider the child’s behaviour at changeover either on its own or in conjunction with other behaviour to be indicative of the child being the victim of sexual abuse. Rather, such behaviour is entirely consistent in my view with the child missing his father and not wanting to leave him; being fearful of abandonment; being affected by illness or being aware of the conflict between the parties.
The various behaviours and utterances of the child must be considered in the context of high conflict between the parties; regular examination of the child’s bottom on return from spending time with the father; repeated questioning of the child; the child’s extremely limited verbal development; a wish to limit the father’s time with the child; the child’s various illnesses; the child’s association with a children’s book involving scary things and the mother’s history of anxiety.
conclusion on the issue of sexual abuse
The evidence as a whole does not persuade me that the father has sexually abused the child or that the child is at risk of sexual abuse from the father.
ability of mother to facilitate a meaningful relationship between the child and the father
The father contends that he has always fought to see the child and has been thwarted in those attempts by the mother. He contends that her allegations of sexual abuse are motivated by malice.
The mother contends that her motivation in these proceedings is to protect the child from abuse but that she would accept any findings made by the Court.
The parties competing contentions are relevant to a determination of the capacity of the mother to facilitate an ongoing relationship between the father and the child if he were to remain in her care.
There are a number of factual disputes which in my view will inform the determination of this issue.
B’s time with the father up to June 2015
It is common ground as between the parties that the mother called the father a paedophile at a time at or around their separation in August 2014. The mother subsequently agreed to the father spending unsupervised time with the child in the period up to October 2014. As noted above I do not accept that the mother genuinely had the view that the father was a paedophile and even if she did, the evidence upon which she might now rely did not justify that view.
The mother contends that she was the one attempting to facilitate time after separation between the child and the father and that the father was not interested or ignored her. However, she admitted receiving requests from the father after separation to spend time with the child and ignoring them (the admission was made to Ms O on 11 May 2016). She accused the father of pretending to be interested in the child. I accept the father’s evidence that he was denied any regular opportunity to spend time with the child in the period up to the end of 2014.
After separation the father unsuccessfully sought to engage in mediation with the mother.
I accept the father’s evidence that he has at all times wished to spend time with the child. In the period up to 26 October 2014 the mother was controlling and demanding in relation to the time the child spent with the father. On occasion she turned up unannounced at the father’s home and insisted the child remain there while she went out. On other occasions she invited the father to her place to help with the child. On yet other occasions she would only permit the child to spend time with the father in the back of the car.
On 5 November 2014 the father sent a text message asking to see the child and the mother responded - “when you pay money.”
On 18 December 2014 the mother refused the father’s request to spend time with the child stating -“No. You took away my transport.”
On 26 December 2014 she sent at text message to the father in which she said inter alia:
I will not be accepting any Christmas presents for [the child] this year. Do a good deed amongst yourselves and donate them to charity or kids that actually need them. [The child] does not need anything.
The mother asks the court to accept that but for the bail conditions (in relation to the motor vehicle issue discussed in detail below) she would have been happy for the child to spend time with the father between 16 January 2015 and June 2015. That excuse seems improbable in circumstances where the father was legally represented for at least part of that period; the mother had already ignored the father’s requests to spend time with the child or refused such requests.
The motor vehicle issue
Prior to separation the mother had the use of a motor vehicle that was owned by the father’s business. It was subject to a lease which the father continued to pay after separation while the car remained with the mother. In November 2014 the father formally demanded the return of the car via a letter from his solicitor. The mother returned it in December 2014 but she or someone at her behest took it from outside the father’s home on 12 January 2015.
The father contacted police to report it as stolen. The father provided information to the police stating that the vehicle had been locked and had an alarm system and that the only other set of keys were in the possession of the mother. He also reported that the day prior to the theft the mother’s mother had attended at his home and had become aggressive and abusive (it is not in contention that the maternal grandmother attended the father’s home and demanded that he provide financial support to the mother). The father informed police that he suspected the mother may have taken the car. The registration for the vehicle had expired on 9 January 2015. The police records show that on 13 January 2015 the father told police that “his desired outcome is the recovery of the vehicle and that the prosecution of [the mother] is secondary to this. [He] stated that he has concerns for how the resolution of this matter will effect (sic) his ongoing relationship with .. the mother of his 18 month child.”
The police then attended at the mother’s home and entered with her consent. The police informed the mother that the vehicle was not lawfully in her possession and that they just wanted to resolve the matter “in the least intrusive way possible and afford her the opportunity to voluntarily surrender her possession of the vehicle.” The mother was informed that if she did not agree then they would have no option but to proceed with the investigation which could result in the seizure of the vehicle and the commencement of criminal proceedings against her. The mother stated that she had no intention of surrendering the vehicle to anyone. Police returned later that night with a search warrant and the car was seized. The mother refused to speak to police about the matter and was arrested and transported to the watch house where she was later released on bail.
The mother describes the incident in her affidavit:
104. [B] was present through each ordeal and was extremely distressed, crying and screaming after me on the night I was taken by police from the home. My brother and partner were present, as we were having dinner together on the night and were able to take over the care of [the child] until my release several hours later.
It is not apparent from the police records what the mother was charged with but it is clear that the police were extremely reluctant for the matter to escalate and did all they could to encourage the mother to return the vehicle particularly as it was no longer registered. I do not accept that it was ever the father’s intention for the mother to be charged. He says it was not and the police records are consistent with his account. He was also most concerned about the impact of police action on his being able to see the child. He contends that the police informed him that the reason the mother was arrested was because of her behaviour when police attended. Given the attitude of police (as reported in their records) it is curious to say the least why the event turned into an “ordeal” as described by the mother and why the child was so distressed.
At first blush one might consider the father’s actions in demanding the return of the car to be somewhat unreasonable. However, the circumstances leading up to that included the mother incurring a number of traffic fines and tolls while driving the car which resulted in the father having his licence suspended for two months.
The fact that this was still an issue for the mother was apparent even during the trial where the issue was canvassed during cross-examination of the father. Whatever the mother’s feelings about this issue it did not justify her refusal to facilitate the child seeing the father.
The father’s minimal financial support for the child
It is fair to observe that the father has never provided a reasonable sum for the child’s financial support apart, perhaps, from the period immediately after separation when he continued to pay the mother’s rent and the lease on the motor vehicle in her possession. His contribution to the child’s support since then has been limited to at most $130 per month.
While the father may be rightly criticised for his minimal financial support for the child this did not justify the mother using that as a reason for refusing to facilitate the child spending time with the father.
The father’s attempts to spend time with the child after the June 2015 order
The father retained a lawyer and commenced proceedings in April 2015 but even after the order was made in June 2015 the mother was non-compliant at times with the order. The mother frequently turned up late or insisted on changes to the order. Initially she insisted that the clear words of the order which provided for six visits meant six weeks of visits (the visits were occurring twice weekly).
There have been many occasions when time did not occur at all and on 19 March 2016 the mother stopped time altogether.
On 27 April 2016 the mother’s lawyer sent a letter to the father’s solicitors in which it was stated inter alia:
On our client’s instructions she is concerned that [the child] is being exposed to emotional and psychological abuse whilst spending time with the father.
Our client now instructs, that she has concerns that the abuse could be of a sexual nature. This is due to recent comments made by [the child] of the sexual nature.
Our client instructs that due to the young age of the child she is concerned for his vulnerability and his capacity to articulate exactly what is occurring in the father’s household. Our client instructs that since visits commenced last year [the child] continuously returns home in an obvious state of trauma and distress.
Our client is concerned that the frequency of the visits and extension of overnight time is not in [the child’s] best interest. Our client instructs that upon returning home after spending time with your client [the child] displays trauma and fear and this is particularly heightened at night time when the lights are turned out. Further, the child makes reference to his father in his state of distress, and this is what alarms our client.
…
Our client instructs that last Tuesday 12 April 2016, she attended an appointment with the Child Psychologist, [M F]. Our client was advised that it would be best to cease contact between [the child] and the father …
…
We advise that we have provided all necessary advices to our client in relation to the nature of the allegations in which she seeks to raise against your client and we have also provided her advice in relation to her obligation to comply with Court Orders. Notwithstanding our advices, we are instructed that our client is strongly of the view that [the child] would be best placed not spending unsupervised time with the father.
…
Ms F denied advising the mother to cease the father’s time with the child although in her oral evidence she did her best to minimise the damage her denial might cause to the mother’s case. It is unfortunate that Ms F did not encourage the mother to consider other possible explanations for the child’s behaviour such as that identified by the Department of Child Safety and Ms O.
It is interesting to note that in the letter referred to above the mother instructed her lawyer that the child was distressed at night time and referred to his father. Of course, this would be entirely consistent with the child missing his father. The mother’s description of the child as returning to her care “exhausted, delirious, staring in a state of mental shock and evidently dehydrated” tends to suggest the mother is prone to hyperbole.
After stopping the child’s time with the father in March 2016 it did not resume until December 2016 and has been supervised ever since.
I accept the father’s evidence that when he did see the child up to March 2016, it was generally a joyous occasion. I accept the father’s evidence as to the care he provided to the child before separation which he recounts in detail. They had a close and loving relationship. I also accept his evidence as to the activities he engages in with the child during the time he has spent with the child both before and after supervision was imposed. The child seems to enjoy the time with the father very much and this is corroborated by the supervisors’ accounts since December 2016. It is also corroborated by the father’s mother whose evidence I accept. There have been a number of difficult changeovers with the child clinging to the father. I do not find anything unusual in this behaviour given the circumstances.
discussion – mother’s capacity to facilitate relationship
The mother’s actions at various times are inconsistent with her holding a belief that the father had a sexual interest in children and in particular the child. On the one hand she alleges that she had been concerned since 2012 that he had an unnatural interest in young children and formed a view that he was a paedophile at some point in 2014. On the other hand she deposes to having supported the father’s relationship with the child after separation complaining that it was the father who was indifferent to maintaining the relationship. She deposes to keeping him informed about matters relevant to the child’s welfare and inviting him to attend at appointments with the doctor with the child.
The father provides a very different account, namely, that the mother actively came between him and the child by ignoring or denying his requests to spend time with the child and contravening court orders. I accept the father’s version.
I do not accept the mother’s evidence that her motivation has always been the child’s welfare. Her actions post separation are inconsistent with that contention.
The mother has been ineffectual in consoling the child during his night terrors or upset as demonstrated by the recording. She was more intent on gathering evidence. I do not accept that she recorded the child for the purpose of obtaining advice on how to deal with his behaviour. There is no evidence that any such advice was sought. Ms F refers to recordings in the context of being asked to provide a letter of support for court purposes.
In light of the mother’s now firmly held beliefs I consider Ms Q’s assessment to be correct, namely, that the mother would find it extremely difficult to facilitate the ongoing relationship between the child and the father. In my view it would only be a matter of time before further allegations were raised.
conclusion on the issue of the mother’s capacity to facilitate the child’s relationship with the father
The mother’s counsel made extremely short submissions stating only that her client believes that the child has been sexually abused by his father and is at risk of abuse in the future.
I do not accept the mother’s assurance that she will accept findings that the father does not present an unacceptable risk of harm to the child. Ms Q considers that the beliefs are now firmly held and that was also my impression of the mother in the witness box. When asked whether she would accept findings contrary to her beliefs she took some time to answer and was in tears. She said words to the effect that she would continue to do what she has in the past but in the past she has not complied with court orders and has engaged in evidence gathering behaviour to the detriment of the child.
It is my view that the mother has patched together unrelated and illogical pieces of ‘evidence’ to corroborate her views. There is no rational basis for the mother holding the beliefs she does. She has no current capacity to rationally assess other more probable alternatives.
Despite the mother engaging in counselling in the past I consider it more likely than not that the mother will continue to misinterpret future information and events to support her belief that abuse has occurred and would continue to behave in a manner which would place the child at risk of future emotional harm.
If the child stays with the mother he will not have a relationship with the father. He will grow up believing his father has sexually molested him and he will be encouraged in this view.
The mother has a history of anxiety and nervousness and even if she tried to accept the findings of this court I do not consider it likely that she would be able to do so at least for a significant period and the child would continue to be exposed to her anxiety and nervousness and propensity to jump to conclusions. Unfortunately the mother’s support network are equally prone to jump to conclusions.
other matters
Family Violence
On 2 June 2015 the mother filed a Notice of Risk wherein she alleged that there had been family violence in the relationship and in particular:
The [father] pushed the [mother], would grab her by the shoulders and shake her. He would punch walls in the house out of anger around the child and he was emotionally, financially, mentally, and physically abusive towards the [mother] and provided no financial support following separation.
There is insufficient evidence before me to make a finding that the father subjected the mother to family violence. The father denies the allegations made by the mother but concedes there were verbal arguments. He alleges that the mother slapped him across the face on occasions.
Whatever the circumstances during their relationship, family violence is not currently a factor that would cause me to find that the child should not live with a parent or spend time with them.
B’s relationship with the mother and significant others
There is minimal criticism of the mother in this case apart from her allegations of sexual abuse. She appears to be a caring and appropriate parent to the child. She has been his primary carer for most of his life and I have no doubt that they have a close and loving relationship. The maternal grandmother and aunt are also significant adults in his life and I accept that he is likely to have a close and loving relationship with them.
The father has had a limited opportunity to spend time with the child since separation but I accept his evidence that when the parties were together he had a close and loving relationship with the child and regularly attended to his needs in the absence of the mother. I accept the father’s evidence, as corroborated by his mother, that the child had a loving relationship with the father during times of unsupervised time. I accept the evidence of Ms O, Ms Q and the supervisors that the child and the father appear to have a close and loving relationship and I particularly reject the allegation that the child was or is fearful of the father.
The Notice of Risk referred to above also alleged:
The [father’s] mother suffers from mental illness and is not fit to care for the child unsupervised. The [mother] further asserts that the [father] has insufficient bonding and experience in relation to caring for the child to be able to care for him on a full time basis.
I reject any suggestion that Mrs Donaldson is unfit to care for her grandchildren unsupervised. She conceded that in the past she had consulted a psychiatrist as a result of what were believed to be panic attacks. She said it turned out to be high blood pressure and she was treated for that. I accept her evidence. I also accept her evidence she spent a significant amount of time with the child prior to the parent’s separation. I also accept that immediately after separation the mother sought out Mrs Donaldson to care for the child overnight on one occasion.
I note that subsequent to filing the Notice of Risk the mother consented to an order that the child spend unsupervised time with the father and no restrictions were placed on the child being left with Mrs Donaldson.
I consider it most unfortunate that the mother has stood in the way of the child having a relationship with his paternal grandmother since December 2016 and that she even rejected the notion that the child loved his paternal grandmother.
The impact on the child of a change in his primary care arrangements
It would be a very significant decision to remove the child from his mother. She has always been the child’s primary carer. A move to live with the father is likely to be traumatic for the child at least initially. He would miss his mother and the other significant adults in his life. However, I accept Ms Q’s opinion that the child would recover from the disruption involved in a change in his primary care without permanent risk to his emotional or psychological development.
I find that the father is committed to providing the best care possible for the child and will be ably assisted in that task by his mother who was a very impressive witness. I consider that the father will obtain whatever professional assistance may help the child make the transition to his care and I also find that the father appreciates the importance of the child maintaining his relationship with the mother. I am fortified in that finding by his decision to amend the order sought by him to provide for unsupervised weekly time between the child and the mother.
Unfortunately, given the strength of the mother’s stated views I find that at this point the mother would likely undermine the relationship between the father and the child if she were to spend unsupervised time with him. The child needs time to build a strong and secure attachment to the father and the mother needs time to come to terms with the findings made in this case hopefully with the assistance of an experienced psychologist.
Mother’s time with the child
I consider the mother needs a sufficient opportunity to engage in therapy to come to terms with the findings and decision of this Court. I expect that in time the mother will put her desire to spend time with the child above her stated beliefs but I consider that it is likely to take some time for her to come to that point. Accordingly I propose to initially impose supervision on the time the child spends with the mother.
Even if the mother elects not to obtain professional psychological assistance, the protection afforded by supervision of her time with the child, will enable the time with the child to be monitored while he builds up his relationship and attachment to the father. By this means it is intended that the child will be able to withstand any comment or behaviour by the mother that might undermine his relationship with the father.
The parents live in close proximity to each other and the child is used to spending time at C Centre. There is no practical difficulty with the child spending time with a parent.
After a period of six months I propose to remove the requirement of supervision. By then the child will have developed a more secure attachment to the father. In time, the mother should spend substantial and significant time with the child as that term is defined in the Act.
Parental responsibility
Each party contends that sole parental responsibility for major long term decisions should rest with them. That position is understandable when one considers that an order for equal shared parental responsibility requires decisions to be made jointly.
This is a case where the mother considers that the father is a narcissistic, compulsive liar who only wants to spend time with his son so that he can abuse him and the father considers the mother has falsely made the most heinous allegations against him for the purpose of keeping him out of the child’s life.
In those circumstances, it is not in the child’s best interests for the parties to have equal shared parental responsibility.
As the child will be living with the father I propose to order that he have sole parental responsibility. I consider that the father has the capacity to take into account the mother’s views and involve her in decision making and I will make provision for that to occur.
summary
I have come to the conclusion that the child’s best interests will be met by immediately moving into the care of the father. The transition to the father will be made with the assistance of a family consultant as the child is currently being looked after by Child Dispute Services in this building.
B’s time with the mother will be supervised for a period of six months unless the parties agree to reduce that time and he will see his mother weekly. Thereafter he will spend unsupervised weekly time with the mother including overnight time. Once at school he will spend holiday time with the mother.
I certify that the preceding one hundred and seventy-eight (178) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 14 November 2017.
Associate:
Date: 14 November 2017
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Standing
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Procedural Fairness
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Natural Justice
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