DUSTIN & SEVERSON
[2019] FCCA 2904
•22 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUSTIN & SEVERSON | [2019] FCCA 2904 |
| Catchwords: FAMILY LAW – Parenting – allegations of sexual abuse/impropriety – unacceptable risk considered – parenting capacity. |
| Legislation: Family Law Act 1975 (Cth), ss.61DA, 60B, 60CC (2),(3) |
| Cases cited: Re F: Litigant in Person Guidelines (2001) 161 FLR 189 |
| Applicant: | MS DUSTIN |
| Respondent: | MR SEVERSON |
| File Number: | LNC 245 of 2016 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 6 & 28 August 2019 & 5 September 2019 |
| Date of Last Submission: | 5 September 2019 |
| Delivered at: | Launceston |
| Delivered on: | 22 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Verney |
| Solicitors for the Applicant: | Rae & Partners (Devonport) |
| The Respondent: | Appeared in person |
| Counsel for the Independent Children's Lawyer: | Mr D. Lewis |
| Solicitors for the Independent Children's Lawyer: | David Lewis |
ORDERS
That all previous parenting Orders for the children X born … 2011, Y born … 2013 and Z born … 2014 (“the children”) be discharged.
That the mother, Ms Dustin, have sole parental responsibility for the children provided that the mother keep the father prudently advised of all important issues in respect of the children's medical and education matters.
These orders specifically permit the father to have access to the children's medical practitioners and to their school Principals and teachers and to be provided with all information normally afforded parents by those facilities.
That the children live with the mother.
That the children, Y and Z spend time with the father as follows: –
(a)each second weekend from Friday at 5.00 p.m. until Sunday at 5.00 p.m. commencing the first weekend after the delivering of these orders and fortnightly thereafter;
(b)For one half of each Tasmanian gazetted term school holiday from the first Friday at 5.00 p.m. until the second Saturday at 12.00 noon;
(c)on a week-about basis during the Tasmanian summer school holidays commencing on the first Friday of such holidays in 2019 and in each alternate year thereafter and on the second Friday in 2020 and in each alternate year thereafter;
(d)that during all school holidays the weekend time for the children with the father be suspended;
(e)such other times or variations of the above as agreed between the parties from time to time in writing;
That the child X spend time with the father as agreed between the parents in writing but with a direction that the Independent Children's Lawyer advise X that she is invited to attend for time with the father in accordance with the time for Y and Z set out above.
That the mother be and is hereby restrained from permitting or arranging any counselling for the child X without the express written consent of the father and including any continuing counselling with Counsellors, Launceston.
That each of the parents be and is hereby restrained from inflicting or permitting any other person to inflict corporal punishment on the children or any of them.
That each of the parents be and is hereby restrained from denigrating or abusing the other parent to or in the presence of the children or any of them.
That each of the parents be and is hereby restrained from discussing any aspect of these proceedings or the contents of any documents filed or prepared for these proceedings with the children or any of them except for the purpose of explaining the children's living and time-with arrangements with the said children.
AND THE COURT NOTES:
That pursuant to S65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure “A” and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Dustin & Severson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNC 245 of 2016
| MS DUSTIN |
Applicant
And
| MR SEVERSON |
Respondent
REASONS FOR JUDGMENT
Applications
These are parenting proceedings in respect of the parties’ three children, X born … 2011 (aged eight years), Y born … 2013 (aged six years) and Z born … 2014 (aged five years).
The mother asks for orders that she have sole parental responsibility for the three children and that the children live with her. In her Case Summary document the mother proposed orders that the children spend no time with the father on the basis of him posing an unacceptable risk of sexual and/or physical and/or emotional violence to the children. By the time of final addresses the mother's position had moved, and in accordance with the recommendations of the family reporter, whereby there be no time for X with the father but that the children Y and Z spend ongoing supervised time with the father at a Contact Centre.
The mother was represented by solicitors and Counsel at all times during the course of these proceedings.
The father represented himself. He appeared at times to be confused or uncertain as to the orders that he sought. However, by the time of final addresses he advises that he asks for orders that the children live in an equal time arrangement between the parents on a week about basis.
He proposes equal shared parental responsibility but should the Court not be inclined to assert the presumption at s.61DA of the Family Law Act 1975 ('the Act') then he asks for parental responsibility to vest in him.The Court enjoyed the benefit of both an Independent Children's Lawyer and three family reports.
In his final address, Mr Lewis, Counsel for the Independent Children's Lawyer, proposed orders whereby the mother have sole parental responsibility for the three children and that they live primarily with her. He argued that the eldest child X effectively spend no time with the father, or more particularly, that such time be extremely limited as for example the father being invited to attend at public school or extracurricular activities in which X participates. In respect of Y and Z the Independent Children's Lawyer suggests that those children spend time with the father each alternate Sunday from 10.00 a.m. until 4.00p.m. and on special days. He does not endorse supervision for those children. He proposes various injunctive orders.
The family reporter, Ms C, provided three family reports being two comprehensive reports dated the 4 February and 29 July 2019 and a third supplementary report of 28 August 2019 which was prepared following Ms C's telephone interview with Ms D and Ms E who are the Principal and teacher respectively at the children's school being H Primary School. That third report was prepared at the request of the Independent Children’s Lawyer.
Background
The parties lived together in a de facto relationship from about 2010 until June 2016.
The mother has an older child, F, born … 2008 (aged 10 years). F lives primarily with the mother and spends time with his father. Mr Severson also has an older child namely Mr B born … 2001 (aged 18 years). The relationship between Mr Severson and Mr B appears, on the evidence, to be tenuous.
On 27 June 2016 the parties entered into consent orders in respect of the three children whereby X, Y and Z lived between the parents on a week about basis.
In or about 2018 the applicant mother entered into a new relationship with n Mr G. They are now married. They reside in a location outside of suburban Launceston, such location not being made known to the father. Mr G did not give evidence to this Court and was not interviewed by the family reporter. The mother volunteered that Mr G may have previously come to the attention of the Child Safety authorities and she informed the Court that she had been advised not to allow Mr G to bathe with any of the younger children. No reasonable explanation was given for Mr G's failure to give evidence.
The material before the Court makes it clear that the relationship between Mr Severson and Ms Dustin was a volatile one highlighted by allegations of physical violence and suggestions of neglect towards the children.
Ms Dustin commenced these proceedings by Application filed 17 August 2018. In that Application she sought sole parental responsibility and that the children live with her. She proposed that the children spend time with the father each alternate weekend from Friday afternoon until Monday morning, together with special days. She did not ask for supervision but did seek an order that the father be restrained from inflicting corporal punishment on the children or either (sic) of them.
In that Application and supporting material the mother alleged that she had signed the previous consent orders under duress from the father. She alleged domestic violence perpetrated by the father upon her including coercive/controlling violence. She alleged coercive sexual abuse perpetrated on her. She alleges 'social abuse'. She alleges that the children were subjected to corporal punishment by the father and at times locked out of his house. She criticises the father's capacity generally including as to the children's hygiene. Those material, although broad in their allegations against the father, did not raise issues of sexual abuse or impropriety by him in respect of the children.
The interviews for the first family report were conducted on 10 and 11 December 2018. At those interviews the mother repeated the various allegations, assertions and concerns set out in her affidavit. She did not make any direct allegations of sexual abuse on the children or any of them by Mr Severson.
The mother's affidavit material suggests that the oldest child, X, made a disclosure to her on 12 December 2018 being the day after the interviews for the family report in respect of what might be interpreted as sexual abuse or sexual impropriety by the father and referred to by the child as ‘shake-shake'. This allegation has subsequently been repeated by X to the paternal grandmother, her counsellor at Counsellors in Launceston, and the Child Safety and police authorities. The mother says that X is refusing to spend time with the father. She says that X has demonstrated sexualised behaviour including 'straddling a clothes line'. She says that the child has shown extreme reluctance to have any form of relationship with the father.
The mother asserts that both X and Y have alleged assault/corporal punishment perpetrated on them by the father with some type of cord.
No affirmative police or Child Safety action has been taken but, of course, in respect of the latter this may have been because of protective interim orders placed by this Court at an interim stage.
The substantive application had been listed for trial in the Federal Circuit Court at Launceston on 25 February 2019. The trial date was vacated given the mother’s allegations. Further, on that day, parenting orders in respect of the children's time with the father were suspended. Subsequently, interim orders were made for the children, Y and Z to spend time with the father at the Launceston Contact Centre. There later eventuated a dispute between Mr Severson and the Contact Centre whereupon he voluntarily ceased all time with the children.
Mr Severson denies the allegations made by the mother in respect of sexual abuse, exposure of sexual material to the children, domestic violence on the mother or the children, or extreme corporal punishment of the children.
The Mother’s Case
The mother says that the father is and has been violent towards her and the children. She says that there is an unacceptable risk of sexual abuse or exposure to sexual activity or material for the children in the unsupervised care of the father. She says that X refuses to spend time with the father.
The Father's Case
The father says that the mother has orchestrated and manipulated false allegations against him in order to alienate him from the children. He says that the mother's initial Application did not expose any allegations of sexual abuse or impropriety but focused on domestic violence in their relationship and which he denies on his part. He suggests that the mother has entered into a new relationship with Mr G such that she intends to thwart the children's relationship with him and notes X’s statement to the family reporter that she now refers to Mr G as 'dad'. He says that the evidence suggests a good and comfortable relationship between himself and the two younger children, Y and Z, and as observed by the family reporter. As such, Mr Severson argues that there should be a return to the pre-existing arrangement of the children spending week about between their parents or, of alternatively, if the Court is not of the view that such an arrangement is in the children's best interests then all three children should live primarily with him.
The Issues
There is an issue raised by the mother that the father has been sexually, physically and emotionally violent towards her and the children and poses an unacceptable risk accordingly should he spend unsupervised time with the children or any of them.
There is an issue as to the veracity of X’s stated preference to the family reporter that she does not wish to spend time with her father.
Mr Severson raises an issue as to what he says is the mother’s course of conduct aimed at alienating the children and hence thwarting his relationship with them and for her own ends in pursuing a family unit with Mr G. The father argues by implication that this in itself constitutes abuse by the mother and the children.
The Evidence – Family Report
Ms C prepared three reports as referenced above. She gave evidence by video hook-up and was cross-examined.
In her final addendum report of 28 August 2019 Ms C alludes to interviews with the children’s school principal and teacher on 23 August 2019. At [6] appears the following in respect of X:
Ms D indicated that she had become aware that, two weeks previously, X had reported to some friends at school that her father would “hit her and touch her” and that X had reportedly gestured to her genitals when saying this. She clarified that she had become aware of X making such reports from the parents of X’s friends who had contacted her out of concern. Ms D noted that X had never reported such information at school before.
Significantly, the trial in this matter commenced on 6 August 2019 being just over two weeks prior to Ms C's interview with the principal. By this time, Ms Dustin had given evidence and had been cross-examined.
In her report of 29 July 2019. Ms C recommends that all three children live with the mother and that Y and Z spend supervised time with the father at a children's contact service. She recommends that X's time with the father remained suspended 'until such time, if any, that it is professionally determined that a re-establishment of time would be of benefit to her well-being and her safety in such a process can be assured'.
In her first report of February 2019 at [28] Ms C to reports and summarises Ms Dustin's position then as follows:
Ms Dustin stated that Child Safety had ongoing involvement with the family during her and Mr Severson’s relationship due to concerns of family violence, Mr Severson’s care of the children, and her “lack of protectiveness.” She stated that Mr Severson’s behaviour would improve during periods where Child Safety were significantly involved, when they would “fight” for the children, but would escalate quickly again once Child Safety ceased involvement. Ms Dustin stated that Child Safety have had some recent involvement regarding concerns about Mr Severson allegedly inappropriately medicating the children and exposing them to unsafe people. She also mentioned somewhat vague concerns regarding possible sexual abuse of X “years ago” which she suggested may have ultimately been “hygiene related”. Ms Dustin noted that X had not made any disclosures of being sexually abused and did not suggest these concerns to be ongoing.(my emphasis)
Ms Dustin raised numerous concerns about Mr Severson’s care of the children. She alleged the children to be fearful of Mr Severson and that they, particularly X, “scream” and cling to her when transitioning into their father’s care; something she alleges Mr Severson to have witnessed. She stated that the children will also call her sometimes asking her to collect them as they aren’t coping being in Mr Severson’s care. Ms Dustin alleged that these issues stem from Mr Severson parenting the children in authoritarian, heavy handed and apathetic ways.
At [33] appears the following:
Ms Dustin denied that she has re-partnered. She stated that Mr G, who Mr Severson has alleged to be her partner, is a close family friend whose children get on well with her own. Ms Dustin stated that they have never shared a relationship and that no-one else resides in the home with her and the children.
Ms C interviewed X for the first family report and did so on
11 December 2018 being the day prior to X allegedly making her assertions against the father. At [54] Ms C reports of X:When discussing Mr Severson, X stated that “dad is happy when we see him and we are happy to see dad”. She described that Mr Severson can be “good sometimes” but sometimes he physically disciplines them with a “belt” or “jug cord”, describing an incident whereby he hit her with a belt when he thought she had “stolen biscuits” (it is noted that this likely refers to an incident investigated and substantiated by Child Safety in 2016 based on the information in Child Safety records). She also described a more recent time whereby Mr Severson allegedly threatened them with a jug cord if they did not find a lost $2 coin. X also spoke of doing housework regularly in her father’s home, stating that they have to “clean up the whole house – vacuuming, dishes and the whole mess”. She also spoke positively of her time with her father, highlighting that she enjoys going to the pool with him.
Ms C's recommendations at the conclusion of her first report included that the mother have sole parental responsibility for the children ‘if family violence as alleged by the mother is founded'. She recommended that the children live primarily with the mother and spend time with the father each alternative weekend from the end of school on Friday to the start of school on Monday with additional time in school holidays.
Ms C’s second report was prepared after Ms Dustin withheld the children from Mr Severson in January 2019 due to alleged disclosures of sexual abuse made to by X in December 2018 and January 2019.
At [18] of the second report appears the following:
Ms Dustin reported that she believes the children have also benefited from the increased stability in their routines and home life by the changes to the parenting arrangements. She stated that she sees there have been improvement in the openness of the children’s communication and expressions of affection with her, their issues with nightmares and bed wetting have ceased, and the children’s patterns of eating and sleeping have been more settled. Ms Dustin did acknowledge that they continue to present with some disrupted behaviours which she attributes to their “ongoing recovery processes.” For example, noting that X has become quite possessive of her belongings and controlling of her interactions with her siblings, Y can be quite emotionally reactive and aggressive in the context of challenging situations, and that Z can present as withdrawn at times. Ms Dustin stated that she has been engaged with Integrated Family Support Services to assist her in supporting the children with these issues.
In relation to the allegations regarding sexual abuse of X by Mr Severson, Ms Dustin presented with some inconsistencies in her information, in particular the timeline and contexts for X’s reports of alleged sexual abuse. In her affidavits (dated 21 December 2018 and 12 February 2019), Ms Dustin detailed that X had first reported her alleged exposure to sexual content online and sexual behaviour by Mr Severson on 12 December 2019, the day after the initial family report interviews, in response to questioning in regard to inappropriate material found on a tablet. In interview, Ms Dustin stated that she recalled X to have gone into her father’s care following the family report interviews and had returned, seemingly the following week, commenting that she (X) and Ms Dustin “would be in big trouble”, which had prompted Ms Dustin to ask more questions and had reportedly elicited disclosures of the alleged abuse. It is noted that in Ms Dustin’s affidavit (dated 21 December 2018) she references X speaking to her about Mr Severson telling her (X) that she was “going to jail (sic)” and being “taken by children protection” on the 18 December 2018 which may suggest she possibly merged these two events. However, Ms Dustin’s accounts of reports made by X, such as her description of “shake shake” and accompanying demonstrated movements by X to suggest masturbation, were detailed and consistent across the file material and the information provided in interview.
Ms Dustin reported that X then made further reports regarding her father’s alleged sexual behaviour in January 2019, including to her paternal grandmother, Ms A, during a forensic interview with police, and in the context of a medical review by her General Practitioner. Ms Dustin indicated that X was interviewed by the Child Safety Service in April 2019 and that she had again disclosed further alleged sexual abuse, including Mr Severson rubbing his penis up and down on the outside of her pants.
At [22] Ms Dustin says to the family reporter the following:
Ms Dustin denied that she has influenced or coached X to make allegations of sexual abuse as asserted by Mr Severson. She reported that concerns regarding Mr Severson’s possible sexual abuse of X had been raised previously, in 2017, but this had occurred in the context of other abuse and neglect concerns that may have contributed to what was observed and that X had not disclosed anything of concern in relation to sexual abuse at the time. It is noted that the Section 67ZA Response from the Child Safety Service notes allegations of sexual abuse in mid and late 2017 and subpoenaed information from Tasmania Police (released 1 October 2018) references a report of X presenting with staining on her underpants and signs of injury on her anus in November 2017 but notes that follow-up undertaken medically and by police suggested the presentation may have been related to hygiene.
Ms Dustin reported to Ms C that X had been receiving ongoing therapy at Counsellors in Launceston. At [26] Ms Dustin indicated that he X had expressed a clear wish not to see Mr Severson but that Y and Z appear to be managing the current time arrangement well enough despite saying that they do not want to see Mr Severson.'
Mr Severson was again interviewed for the purposes of the second report and denied the allegations of the mother and X describing them as 'fictitious allegations’ [29]. He described these assertions as 'reflective of an ongoing pattern of Ms Dustin fabricating allegations and influencing the children to make false statements … and alleged a pattern of false allegations which she reported that has been ongoing since 2010. In relation to family violence and child protection issues'.
Ms C again interviewed X and says at [34]:
X (aged 7 years 8 months) appeared happy and settled in accompanying the family consultant for her interview. Her presentation was generally consistent with that observed in the initial family report assessment, with her being an animated and talkative child, but she did appear somewhat reserved at times when the conversations broached topics related to the current allegations regarding her father. It is noted that upon leaving the waiting room her paternal grandmother, Ms A, said to X “now remember.” When enquired as to what she was remembering, X stated “that dad did the rude things.”
And at [38]:
X stated that she does not see Mr Severson because of the “rude things.” It is noted that X was not prompted to discuss the “rude things” further given it is understood that she had been forensically interviewed previously and any details she may have provided to the family consultant would have likely been less reliable given the passage of time since any abuse could have occurred. X did not offer any additional information regarding these allegations of her own accord. X referenced speaking with both her counsellor at Counsellors and Child Safety about “what dad did” and suggested this to have been a relatively positive experience – “it was fun talking to them.”
At [40] appears the following:
When questioned about what it would be like if she saw her father, X presented with a level of ambivalence similar to her last interview. She commented that she thinks it would be fun to visit her father at the Centre because of the play area or at the gym as they have fun there, but that she would be worried about seeing him as he might “hit me with the belt” again and that this would worry her even if someone was with her. X commented that she wants to live with her mother “forever.”
Further at [37] X is reported as follows:
X commented that Mr G, “is my dad” and that Mr Severson is “not my dad because what he did was naughty and private.” X consistently referred to Mr G as “dad” throughout the interview and became confused between the two men when Mr Severson was also referred to as her “dad” by the family consultant. X stated that Y and Z both still consider Mr Severson is their dad.
Y was again interviewed and at this time was six years and three months of age. At [44]:
Y spoke positively about the time she spends with her father, seemingly unperturbed by the change in the parenting arrangements despite suggesting she was aware of how these were different. She stated that she likes to see the father and that is good that she gets to see him 'every Sunday' ….
At this family report it also eventuated that Mr Severson himself made allegations that X had been inappropriately photographed by F. Ms Dustin denied these allegations.
At [55] in her evaluation, Ms C opines:
Mr Severson’s denial that he has been sexually abusive of X is consistent with an ongoing pattern of refutation of any concerns raised by Ms Dustin and perception that he is being unreasonably vilified by her. While Mr Severson’s position could well hold weight, his denial of other allegations, including of family violence and physical abuse, which do appear to have had some basis from information gathered in the initial family report, could suggest that his current assertions cannot be fully relied upon.
At [56] Ms C again alludes to the inconsistencies of Ms Dustin's disclosures of alleged sexual abuse by Mr Severson on X. She suggests that this could be indicative of the allegations being falsified or, alternatively, that the inconsistency 'appears to be somewhat of a pattern in Ms Dustin's presentation’. She further hypothesises that 'it is also the case that highly consistent reporting of information can be more indicative of rehearsed false allegations’. Further, in her evaluation Ms C notes again the prompting of X by the paternal grandmother prior to the interview and X's overt rejection of Mr Severson as her father in favour of Mr G both being 'suggestive of influence'. To the contrary, however, at [58] Ms C suggests that X's 'consistent ambivalent presentation is also considered to suggest it unlikely that she has been significantly influenced against Mr Severson'. Further to the contrary Ms C notes that X 'did not appear overtly' fearful in relation to Mr Severson in the context of the new allegations which may support the contention that she has not been sexually abused by him.
Significantly, however, at [65] Ms C opines that X’s relationship with Mr Severson has likely been irreparably changed whether the concerns of sexual abuse are determined to be founded or not. She says that X has consistently presented as anxious, both at school and an interview, in relation to her father becoming aware of the issues she has reported. She suggests that X will experience significant trepidation regarding her father's response.
In cross-examination Ms C made the interesting comment that:
‘My predominant (my emphasis) concern regarding supervised time is how Mr Severson might react to the children in respect of the allegations’.
When put to her in the witness box that the timeline of the interviews as against the allegations and also X’s revelations at school only during the course of the trial might raise suspicions as to the veracity of the mother's assertions, the family reporter agreed but was reluctant to go so far as to concede that the assertions and allegations might be false accordingly.
Consequently, and by the end of her evidence and three family reports, Ms C is still of the view that the time between X and the father should be reserved and that time between the younger two children and the father should be supervised. Nevertheless, I take her emphasis in these recommendations being on the basis of what she saw to be the father's propensity for domestic violence and his lack of day to day capacity in respect of the care of the children together with an even greater emphasis on what she felt was Mr Severson's inability to quarantine the children from his own animosity towards the mother.
The Mother
Ms Dustin gave evidence and was cross-examined. She was not an impressive witness. She admitted that she had been less than honest to the family reporter in respect of her relationship with Mr G in that she now concedes (in accordance with what Mr Severson has always claimed) that she was indeed in a relationship with Mr G at the time of the interviews for the first family report. Her attempts at explanation for her lack of honesty with the family reporter were not impressive or persuasive.
Ms Dustin presented as unsophisticated in both herself and her evidence to the Court. Her antagonism towards Mr Severson was palpable and if there was consistency in her evidence then it was in respect of what she says was her being subjected to physical, coercive, emotional and sexual violence during the course of the relationship with Mr Severson. Her evidence in this respect is corroborated to a large degree by police and child safety records. Again, her unsophisticated presentation suggests that she may well have been the submissive party in a relationship where Mr Severson was the dominant personality.
The Father
Mr Severson was self-represented. As such, he was provided with a preliminary statement as to the procedure in Court and with an invitation to request assistance with procedure at any time.[1] He seemed unprepared in respect of the complexities of this matter and to the stage where he did not bring copies of documents and family reports to the Court. Nevertheless, Mr Severson conducted himself with proper courtesy to the Court, opposing Counsel, and to Ms Dustin and her witnesses during cross-examination.
[1] Re F: Litigant in Person Guidelines (2001) 161 FLR 189
Mr Severson was cross-examined and also presented generally as an unimpressive witness. His blanket denials of allegations of family violence were not persuasive and sat firmly at odds with the empirical material from the tendered police reports and Child Safety files. The indications from his volunteered evidence were of something of an authoritarian figure in respect of his children with limited insight and skills as to day-to-day parenting and discipline of children and hence consistent with statements made to the family reporter by both the children and Ms Dustin. He presented generally with an assertive and dominant personality.
Mr Severson’s own mother, Ms A, provided an affidavit for the mother and was cross-examined. She gave evidence as to a non-existent relationship with her son over many years. Her evidence generally was consistent with my own observations and those of the family reporter in respect of Mr Severson's personality.
Ms A also gave evidence of X making an assertion to her that she had been subjected to 'shake shake' from Mr Severson. The context, however, of how this occurred is a cause for some concern. Ms A gave evidence that X came to her home, had some food, and then simply volunteered 'Do you want me to tell you what dad does to me'. At [39] of her affidavit appears the following:
X told me about 'shake shake’. When I asked about what 'shake shake' means, she says he does it with his 'doo doo’. When I asked what she means when she says ‘doo doo’, she said ‘wee wee’. I then asked if she meant 'doodle'. She told me that her dad does 'shake shake' on her. I asked her how he would do that, and she touched the area between her dolls legs, the vagina area. The doll was lying on the floor next to her at the time. She said that Dad does it when she is naughty and that he does it to her because she is the oldest. I asked her whether she tells him to stop, and she said yes and that when she asked him to stop he stops. She also told me that he does 'shake shake' to her when she goes back to his house. I asked her whether she had told the Police. She said no and she didn't tell them when she went to see the police because she was scared that Dad would find out. She hadn't told the Police before she told me.
Ms A also confirmed at [41] that X told her that the father had 'whipped all three children with the cord from the television'.
Ms A agreed that, while she had no ongoing relationship with her son, she remained on friendly terms with the children's mother.
Relevant Law
Counsel for the Independent Children's Lawyer helpfully directed me to a decision of my colleague Judge Harman in Longford and Byrne & Anor[2] where his Honour comprehensively sets out the jurisprudence in respect of the notion of unacceptable risk. I gratefully borrow from his Honour’s judgment accordingly. The High Court in M & M[3] is a proper starting point where their Honours state at [76] – [77]:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 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.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
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. But that is not the issue in this case.
[2] [2017] FCCA 762
[3] [1998] HCA 68
In W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M & M. Their Honours at paragraph 111 noted:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
In Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N & S (1996) FLC 92-655 at 82,713 which are as follows:
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk.
Also relevant are Warnick J's comments in his separate judgment in Napier v Hepburn[4], which were adopted with approval by the Full Court in Potter v Potter (2007) FamCA 350. His Honour said:
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change.
[4] (2006) FLC 93-303
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S and the Separate Representative[5], proceeded to adopt the following list of inquiries in relation to risk assessment:
(1)What harmful outcome is potentially present in this situation?
(2)What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
[5] (1996) FLC 92-655
Relevantly, and in light of the comments in various superior Courts in respect of the Briginshaw standard of proof, s.140 of the Evidence Act (1995) Cth provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In the evidentiary sense of s.140(2), the mother here makes allegations against the father where the ramifications to his relationship with his children are potentially serious. Section 140, therefore, in my view, prescribes the standard of proof and confirms an onus on a person making an assertion of fact or an allegation to prove that fact/allegation to the requisite standard. Importantly, neither Briginshaw nor s.140 of the Evidence Act place any onus or obligation on the recipient of an allegation to 'disapprove'.
Further, in respect of the authorities in relation to 'unacceptable risk' and succinctly, Federal Magistrate Walters (as he then was) insightfully noted in PST & CPR[6]:
In my opinion, that which converts an unacceptable risk to an acceptable risk is often more than confidence on the part of the court that the contact parent will comply with such orders as it is minded to make in order to protect the child.
[6] [2006] FMCfam36 @ [71]
Finally, it is proper to note from a long line of authority and most recently by his Honour Tree J in Johns & Jasapas[7] that:
… It is a serious matter to order that a child neither spend time with, nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable.
[7] [2016] FamCA471
Consideration of Unacceptable Risk
Although not the initial basis of her Application, the risk to the children, and in particular X, is fundamental to the position advanced by the mother in this matter. The allegations, although subject to interpretation to an extent, are serious and involve possible and potential sexual abuse of a vulnerable young child at their highest or, alternatively, the exposure of the child to sexual impropriety. The nature of the risk and alleged behaviour must be considered within its own context. It involves a dominant adult and a vulnerable child. It is behaviour not performed in public and therefore difficult to corroborate. The naïveté of children makes contemporaneous complaint not always likely. The attendant emotional, psychological and/or physical risks to a victim are obvious.
To the contrary, should the allegations be false and maliciously made by the mother then this is serious abuse of another kind but equally with potential emotional and psychological impact on the child in both the short and long-term.
The family reporter raises a further collateral concern and possibility in that, regardless of the veracity of the allegations, she identifies an incapacity in the father to quarantine the children from his own views of the allegations and of the mother generally.
Against a fundamental consideration of the children's best interests, the party making an assertion of fact carries an onus to prove it on the balance of probabilities. In this respect, the family reporter notes the consistency of the child's allegations over a fairly lengthy period. There is a relatively high degree of particularity to the allegations. The mother's evidence is that the allegations might be corroborated by some sexualised type of behaviour by X. On the evidence it is not seen that the investigating authorities being the Child Safety department or the police have positively determined the allegations to be false. The mother herself indicates unwanted sexual behaviour by the father during the course of their relationship and this may also offer some corroboration to the child's allegations. All of these factors separately or cumulatively contribute some weight to the probability of the allegations being honest and factual.
Nevertheless, there are a number of factors that argue against the truthfulness of the child's allegations against the father. Notably, the chronological coincidences of time of the child's disclosures are troublesome. Firstly, the initial interviews for the family report were conducted on 10 and 11 December 2018. At that time the mother’s case was based fundamentally on an argument of physical violence by the father. Issues of sexual impropriety or abuse were apparently raised but without any evidentiary background (see family report of 4 February 2019 at [28]. Further, X indicated no suggestion of sexual abuse or impropriety by the father towards her in her interview with the family reporter on 11 December 2018 where she is noted at [52] as '… impressed as an animated and active child, who appeared generally happy to engage in conversation…' Further, at [54] X indicated no suggestion of sexual impropriety but was able to volunteer that Mr Severson had disciplined she and the other children with 'a belt or jug cord' and with some particularity.
Despite the intrusive and detailed nature of these interviews and the lack of any indication by either Ms Dustin or X of any sexual impropriety, on the very next day being 12 December 2018, X apparently made allegations of sexual impropriety at the hands of the father and again with some particularisation. The timing and context of the allegations are therefore of some real concern.
Similarly, the third addendum family report dealing with Ms C interview with the Principal and schoolteacher of X’s school, shows that X made revelations in respect of her father only in August of this year and during an adjournment of the current trial. Again, timing and context of these revelations is of concern.
The first family report reveals that the Department of Child safety had considerable interaction with this family over a number of years and with considerable issues as to protective orders on account of family violence and/or neglect. There appears to have been no indication of the sexual abuse or impropriety or such as there was, did not attract pro-active response from the department.
Further, and of some contextual concern, is the part played by the paternal grandmother. Firstly, it is clear that her relationship with Mr Severson is completely fractured. To the contrary, she enjoys a civil relationship with the mother and apparently continues a relationship with her grandchildren only through Ms Dustin. Ms A's evidence as to how X attended at her house and volunteered the statement 'do you want me to tell you what dad does to me’ again lacks some context. The family reporter’s observation of Ms A then 'reminding' X to 'remember to tell the reporter that dad did rude things' is of obvious concern in respect of ‘coaching' of the child.
The family reporter notes inconsistencies in the timeline of X’s and the mother's revelations which, of course, given the nature of such matters might be understandable and is certainly not determinative of a false allegation but must be considered in respect of the veracity of the allegations.
The mother's own circumstances might be suggestive of a motive in her to fabricate such allegations in order to effectively remove the father from the children's lives. That is, she now concedes that she is in a relationship with Mr G despite her false denials of such to the family reporter in the initial interviews. Similarly, X now indicates that she refers to Mr G as 'dad'. It is clear that the mother’s relationship with Mr G has caused her to move away from the greater Launceston area thereby making a continuation of the equal time arrangement highly impractical if not impossible, all of which brings into question this mother’s motivation for her application.
This matter has quite properly had professional investigation from the Child Safety and police authorities. Mr Severson appears to be correct in his evidence that neither department are taking action against him although in respect of the Department of Child Safety this might be explicable by the fact that X has not been spending time with the father.
Finally, I place some weight on the fact that in her interview with Ms C on 11 December 2018, X gave no indication that she did not want to see her father, and despite her revelations as to severe corporal punishment. Her position has now apparently changed to one where she is 'fearful' of her father and wishes to have no relationship with him. Again, the context and chronology do not sit easily.
On a consideration of the matters set out above and whilst considering overall the best interests of the child and the onus of proof, I am certainly not satisfied to the requisite degree that I can make a positive finding that the father has sexually abused X or acted with sexual impropriety in her presence. Similarly, on balance, I am not persuaded that there is an unacceptable risk for X in the care of the father of being subjected to such abuse or impropriety. In summary, I have some real concerns as to the veracity of the allegations attributed to X and as revealed by the mother.
Both the father and the mother were cross-examined in respect of these serious matters. My observations of the father are that he was consistent in his denials. In this sense his evidence was impressive. The mother was not so impressive a witness. She revealed a capacity to be dishonest in her evidence to the family reporter so as to serve her own ends. Suffice to say that I am left with serious concerns in respect of the motivation of this mother and the possibility that she has fabricated these allegations. Certainly, on a consideration and balancing of the evidence before me I am not persuaded that this father presents as an unacceptable risk to the children in the sense of perpetrating sexual abuse or sexual impropriety in their presence.
Parenting Generally – Relevant Law
It remains for me, therefore, to determine parenting and living arrangements for these three young children where my paramount consideration is the best interests of the children pursuant to s.60CA of the Act.
In determining those best interests I am to reference the parties proposals and the probative evidence to the numerous considerations set out in s.60CC(2) and (3) of the Act against the background of the objects and principles of the legislation underlying the section set out in s.60B.
Firstly, and whilst the parenting abilities of each of these parents are questionable in many and varying degrees and factors, I note that until X’s revelations of December/January last, the children lived in a shared care week-about arrangement between their parents. Indeed, Mr Severson's comments in his final address suggest that he would be amenable to such a situation being restored despite what he says are the false and malicious allegations made against him by the mother.
The Independent Children's Lawyer recommends that the children live primarily with the mother and the younger two children spend fairly limited time with the father despite him agreeing with my conclusions above that the Court should not find an unacceptable risk of sexual abuse/impropriety for these children in the care of the father. I turn to the s.60CC factors.
Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of the children's parents
Despite the apparent limitations of parenting skills of both the mother and the father and perhaps their lack of insight into the needs of young children, there is evidence to suggest that, prior to the revelations of December 2018, these three children enjoyed a loving relationship with both parents and perhaps even a meaningful relationship within the context of the children's naïvetés.
The family report indicates that both Y and Z remain comfortable in the father's care and keen to spend time with him. Neither demonstrates any reluctance or resistance in the relationship with their father. Their relationships do not appear to have suffered by the reduction in time and the limitations placed by such time be being supervised at a contact centre.
X’s relationship with her father presents as more problematic. As of 12 December 2018 she was keen to continue what she clearly saw as an enjoyable relationship with her father. She is now apparently highly resistant of any relationship. Unlike the younger two children, she refers to Mr G as 'dad'. She says that she is fearful of a relationship with Mr Severson. There are a number of possible explanations for this change in X. Obviously, it may be that she has been subjected to sexual assault? Similarly, however, she may understand that she has made a false allegation against her father and hence would understandably be reluctant to be exposed to his potential responses towards her. Thirdly, X has consistently raised issues of the severe corporal punishment inflicted on her by the father. This may be a cause of or contributed to her reluctance as she becomes older.
Both the family and the Independent Children’s Lawyer essentially recommend no continuing relationship between X and the father or, at best, a relationship of little direct contact or involvement. I note again the general tenor of superior Court authorities that the complete severing of a relationship between a child and a parent might be a consideration of last resort and that there are many tools available to trial judges in order to continue children's relationships with parents whilst both assisting those relationships in repair if fractured or with a form of protection, if necessary.
Section 60CC(2)(b) - the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
I have dealt above and in detail with the separate allegation of sexual abuse. The issue of physical/domestic violence and corporal punishment remains highly relevant in this matter.
Suffice to say that the evidence of both parties together with the police and Child Safety records easily convince me that this was a volatile and violent relationship between the parents. I have little doubt that the children have been exposed in various degrees to their parents’ violence. Whilst the mother's evidence generally suggests a propensity in her for untruths, embellishment or exaggeration and the father's evidence sits uncomfortably in respect of his blanket denials which are sometimes contradicted by empirical evidence, it is clear that this was a household highlighted by family violence of various genres including physical, emotional, coercive and maybe sexual. Further, and importantly, having seen and heard both parties give evidence, I am not confident that either has gained any insight or skills in order to deal with their violent dispositions. Given the history of this matter and the previous living arrangements for the children, I expect that the climate of such violence simply became the norm in these children's lives.
There are separate and more specific concerns in respect of Mr Severson. The Child Safety records and X’s statements to the family reporter are highly suggestive of the father perpetrating violent corporal punishment on these children. The children make reference to the use of ‘cords’ in inflicting punishment. In this respect, the father's denials in the witness box were unimpressive. Similarly, there was a particular instance of X complaining of being locked out of her father's home and being told to walk many kilometres to her mother and being found by the police on a busy highway apparently en route to her mother's home. Again, the father's explanation and attempted denials were not convincing. He showed little insight in the witness box as to the vulnerabilities of his children and contemporary thought as to proper modes of discipline of children. I have little doubt that X’s reluctance to spend time with the father is due, at least in part, to this questionable and perhaps violent parenting style. I emphasise again my observations of the father as being an assertive and dominant personality and expect that demonstrated these traits within the family unit and thereafter in his sole-parenting of these three young children.
Section 60CC(3)(a) - any views expressed by the children
Superficially, the younger two children seem desirous of a continuing relationship with their father. To the contrary, X is in denial of any relationship and seems estranged from her father. I have discussed above the possible motivations for X’s alleged 'fears' of her father and their genesis. It may be that there is a combination of many factors at work behind this child’s reluctance to see her father. The fact is, however, for whatever reasons, she does appear legitimately resistant in continuing any normal type of relationship with her father. It remains, however, of some note that she did not demonstrate this degree of reluctance to in her interviews with the family reporter on
11 December 2018. Indeed, she then appeared keen to continue the relationship and it may be simply matters of comfort and confidence in a still young child that stand in the way of this relationship resurrecting.
Section 60CC(3)(b) – the nature of the relationship of the children with each of the parents
These matters have essentially been dealt with above. I can only add that the children do not enjoy any semblance of cooperative parenting from their mother and their father. The parental relationship is a mutually antagonistic, blaming and suspicious one. There is no indication of current or potential ability to positively communicate or cooperate in respect of the children. There is a high likelihood of involvement by both parents of the children in the adult disputes and the capacity to embroil the children to a high degree as such to cause them serious emotional distress. As such, since the parent’s separation the children have endured parallel relationships with each of their mother and their father. Despite the lack of parental insight still, those relationships have endured and all three children have disclosed enjoyment and attachment with each parent. As the children mature and become aware of the limitations of their parents styles and capacities it may well be that those relationships are tested in their durability and it is possible that X might well have reached such a degree of understanding.
Section 60CC(3)(c) - the extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children and to spend time and communicate with the children.
On a base level each of these parents enjoyed time on an equal basis with the children since separation. As to the more sophisticated responsibility of making decisions in respect of the major long-term issues, I doubt the ability of both parents to discharge such a responsibility equally and have reservations in respect of them each individually. A lack of positive involvement and assistance with X’s schooling are indicated by her records. I doubt that such matters feature highly with either Mr Severson or Ms Dustin in their own life priorities.
Section 60CC(3)(d) - the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from either of their parents
It remains the case, as emphasised by Mr Severson, that these children enjoyed an equal time relationship between their parents prior to the mother's most recent Application to this Court. Those relationships happened on a purely timeline basis and without any noticeable level of cooperation or communication between the parents. Nevertheless, relationships were maintained and both Y and Z demonstrate a relatively high degree of comfort in those relationships and desire for them to continue. Although most recently the younger two children relationships have been limited to supervised time at a contact Centre (and not even that for the last few months) the changes proposed in their relationships by the mother, the Independent Children’s Lawyer and the family reporter are significant in the reduction of time and the obvious impact on the nature of those relationships. Put simply, the children would move from a shared care relationship to one where the mother would become a dominant and almost sole parent and their relationship with the father would be extremely limited in time and hence in opportunity to flourish.
The changes in X’s relationship with her father have already been dramatic and effectively it is now a relationship that has been extinguished.
Section 60CC(3)(e) – the practical difficulty and expense of the children spending time and communicating with a parent
Despite their obvious and significant inadequacies as parents, prior to the mother's current Application, these children were able to spend equal time between their parents. The best evidence before me now suggests that the mother, in pursuing her new relationship with Mr G, has moved out of the greater Launceston area and hence caused, at least practical difficulties, or more likely a situation that cannot accommodate an equal time arrangement in respect of the children's schooling. Given these parents’ patent lack of communication and cooperation and being devoid of any potential in respect of either trait, it seems that the children's best interests will now be served by living primarily with one of their parents.
Section 60CC(3)(f) - the capacity of each of the children's parents to provide for the needs of the children, including emotional and intellectual needs
The evidence satisfies and concerns me that each of these parents present in various ways as lacking the capacity and insight to properly parent these children.
Firstly, the children's evidence is that their father's preferred modes of discipline do not sit comfortably with recognized 21st century parenting styles. I am satisfied that he inflicts frequent and, at times, severe corporal punishment and often not commensurate with the ‘offence’. His actions in locking the children outside of their home and, at least in one case, causing his seven-year-old daughter to walk on a busy highway to her mother's home shows a profound lack of insight, understanding and skill. The evidence of Ms A suggests that the father does not acknowledge his shortfalls and does not actively seek out any support network. His dispute over a matter of principle with the Launceston Contact Centre further indicates that he is assertive, entitled and empowered in his parenting to a degree not equalled by his skills and where he is prepared to put his own interests above those of his children in his relationships with them. My observations of the father in the witness box do not give me confidence that he has any understanding of the benefits to his children of a co-operative and communicative parenting relationship with their mother. Rather, all the indications are of him ‘parenting as of right’.
Similarly, however, my observations of Ms Dustin in the witness box also give me no confidence that she would be able to communicate and cooperate with Mr Severson into the future.
Ms Dustin presents with different but equally concerning parenting inadequacies. I am comfortably satisfied that the motivation for this application was initially her desire to pursue her own relationship with Mr G which did not sit comfortably on a practical basis with an equal shared care arrangement for the children. Her evidence satisfies me that she is prepared to use the children, and more particularly to manipulate them, to serve her own selfish ambitions. Put bluntly, I harbour real concerns that this mother has encouraged her daughter to make false allegations of sexual abuse against the father. Ordinarily, such a situation might preclude a parent from being a primary carer of children such is the potential emotional impact on a child. If the mother’s actions can be mitigated at all, then perhaps it is by reason of my observations, that she is most likely herself a victim of coercive, emotional and physical violence during the course of her relationship with Mr Severson where he was undoubtedly the dominant partner in that relationship.
Section 60CC(3)(g) - the maturity, sex, lifestyle and background of the children and either of the children's parents
Each of these parents presents as unsophisticated, unskilful and self-interested in their parenting.
The children are still young. They are of ages where they are capable of manipulation, influence and coercion by each of their parents. They remain vulnerable by reason of their ages and the lack of insightful parenting afforded them thus far in their young lives.
Section 60CC(3)(h) - if the children are aboriginal or Torres strait Islander
Not relevant.
Section 60CC(3)(i) - the attitude to the children and the responsibilities of parenthood demonstrated by each of the children's parents
As mentioned above, the evidence satisfies me that each of these parents present as self-interested rather than objective and child focused in their parenting. The parents’ suspicious and accusatory attitude to each other precludes any possibility of cooperative parenting. The children are consequently frequently embroiled in and exposed to their parents’ behaviour.
Section 60CC(3)(j) & (k) - any family violence involving the children and family violence orders
Again, the mother says that her initial motivation for making this application was a history of family violence by the father towards her and the children. Whilst I have no doubt that there is some factual basis, I suspect that the mother’s prime motives rested elsewhere in her pursuit of a new relationship which conflicted with an established equal time arrangement for the children between their parents.
I have before me the files of the Tasmania Police and Child Safety department. There have been no less than 39 notifications in respect of these children to the Department of Child Safety until February 2019. Those notifications concern X’s allegations of sexual impropriety by the father but notably only from 13 December 2018. The history of these children's dealings with the department date from 25 October 2010 which was prior to X’s birth. The notifications involve various matters of physical violence and/or neglect. Police family violence orders feature highly in this relationship.
Section 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
Tragically, the history of these parents attitude towards each other and their children together with my observations of each of them in the witness box convince me that it is almost inevitable that these parents and their children will continue to feature highly in the files of the Department of Child Safety and Tasmania Police and probably in these Courts. Neither parent was able to make any real acknowledgement of their failings in the witness box, save and except that the mother admitted that she had lied to the family reporter in respect of her being in a relationship with Mr G. Neither has shown any glimmer of insight into the physical and emotional needs of their young children.
Findings and Conclusions
It is a truism that the Family Courts in this country deal in the most part with the most dysfunctional families from our communities. This family presents highly on such a scale. I am comfortably satisfied on the balance of probabilities that the allegations of sexual abuse and impropriety directed at the father are without factual basis. It follows, and quite obviously, in my mind, on the chronology set out above, that this mother has manipulated her daughter to make such serious and false allegations. Her ability, therefore, as a parent is seriously impeached. I accept, however, that the pursuit of a successful relationship is an understandable ambition for Ms Dustin who most likely endured a relationship with Mr Severson which was characterised by family violence in most of its forms. Ms Dustin’s behaviour is mitigated to a degree by a complete absence of social sophistication where I expect she is prone to making decisions without thought as to their ramifications.
Mr Severson presented as empowered, assertive and with a dominant personality. His lack of insight into the commonly accepted methods of parenting is palpable. To deny himself and his younger two children any form of relationship on account of some dispute of principle with a contact centre in respect of a soft drink is unfathomable and demonstrative of his attitude. I am satisfied that he exerts excessive corporal punishment and that X is most likely 'fearful' of him as she claims but perhaps not for the reasons alleged by the mother. Mr Severson presents as a solitary figure. He neither gave nor adduced evidence as to any form of support network. He is estranged from his own mother who gave evidence corroborating my observations of Mr Severson's personality. I did not see or hear Mr Severson able to acknowledge any of the obvious short fallings in his own parenting.
Superficially, and despite these parents’ limitations, until the mother's application, they seemed able to work a shared care arrangement for these young children if only by reason of their geographical proximity but without any form of cooperation or communication. The Court was tempted to restore such an arrangement if only for the two younger children, Y and Z. However, geographical and logistical issues have now added to the equation. Certainly, there is evidence that these younger children, perhaps if only by reason of their naïveté, seem to enjoy the company of both of their parents. However, more practical issues intervene where the mother has moved herself out of suburban Launceston. She is not a person of great resources or of obvious practical skill and it seems that the children, if only for the respite of their schooling, will need to live primarily with one or other of their parents. On this basis, I am prepared to accept that the mother's failings, as significant and damaging as they might have been, in respect of her probable manipulation of X were an aberration albeit a selfish and damaging one but pursued and motivated in the quest for her own happiness and perhaps vicariously that of the children. My observations of this mother lead me to conclude that any manipulation of her daughter was probably spontaneous, rather than premeditated, and reactive to the interviews for the first family report and almost certainly in circumstances when this mother would not be able to rationalise the emotional ramifications for her daughter.
My concerns in respect of the father are more entrenched and less likely to be rectified. I am reasonably satisfied that he is violent by disposition and by inclination in his discipline of the children. X, as the oldest child, is already demonstrating fear of him and reluctance in their relationship. This was apparent even before the revelations of 12 December 2018. Equally concerning are my observations of Mr Severson as a father unlikely to acknowledge and rectify his deficiencies. He seems to have little or no support network and does not apparently seek any. His parenting skills and insight are seriously lacking.
Consequently, in many respects I therefore accept and adopt the views and recommendations of the family reporter and the Independent Children’s Lawyer in respect of these parents save and except that I do not think it proper or practical to impose the condition of supervision on the father's time with that the younger children as suggested by the family reporter. Supervision is a valuable tool for judges to place on a time-with relationship between a parent and children but for practical and emotional reasons is usually only available in the short term. Put another way, I could not see a long or on-going supervised time-with relationship being of any real benefit to the children. I can address the family reporter’s concerns in respect of Mr Severson to a degree by way of injunctive orders which I trust will have the desired effect as the children grow older and are able to report any breaches by their father.
Secondly, whilst I understand the rationale of the Independent Children’s Lawyer in suggesting only short periods of day time contact between the father and Y and Z, I do not, on reflection, think that such an arrangement is in the children's best interests. It would not assist them in maintaining and improving their relationship with their father. Indeed, it would give Mr Severson little or no opportunity to improve his own skills and insight which might hopefully happen to some degree if only by reason of his exposure to these Court proceedings and my reasons above. Whilst generally lacking the necessary insight of an adequate parent, the practical concerns in respect of Mr Severson remain two-fold. Firstly, he applies severe corporal punishment and other inappropriate methods of discipline. Again, I can formulate an injunctive order which hopefully should limit or prevent these probabilities. Secondly, I accept the evidence of the family reporter that Mr Severson has a propensity to imbue the children with his own views of the mother. Again, an injunctive order is available to prevent this behaviour together with the children being able to report any misdemeanours as they become older. Consequently, I do not adopt the limited time-with arrangement advocated by the Independent Children's Lawyer but propose that the children, Y and Z, will spend a more 'traditional' arrangement of time-with their father being each second weekend and for half of school holidays. Whilst I may be optimistic in this respect, the father is clearly now on notice as to the potential for his children to notify the mother or the authorities as to any further improper parenting behaviour on his part as indeed X has been able to do.
The situation with X remains more problematic. I accept the submissions of the family reporter and the Independent Children's Lawyer that the relationship between X and her father is a fractured one. That situation is compounded by the impact on the child of what are in all likelihood false allegations made by her against her father which would undoubtedly cause even further trepidation and resistance in X coming face to face with him. Again, Mr Severson does not present in any sense as so sophisticated as to be able to objectively understand the complexities of this situation in his young daughter's mind. X is clearly aligned to her mother if only for a number of dubious reasons. I find it completely understandable that she is fearful of her father by reason of his modes of corporal punishment and in his actions of locking her out of the house and causing her to walk kilometres to her mother's home. X is just seven years of age but seems to have achieved a level of maturity where she understands that certain behaviours towards her are improper. All of these factors combine to satisfy me that X should not to be ordered to endure the same relationship with her father as I intend to order for her siblings. Nevertheless, the doors should remain open for X to pursue that relationship and if her father's behaviour and insight improves and X feels more comfortable. Unfortunately, my observations of Ms Dustin do not persuade me that she would be able to be both protective and encouraging of her daughter in assimilating back into a relationship with the father. Consequently, in all of these unfortunate circumstances, I feel that the best order that can be made in X's best interests is to allow her to attend with the other children if she so desires or on such other terms or times as she proposes. I accept that this might create a heavy onus for a child of her young years, but think this a preferable order to one that either simply prohibits all contact and, given the mother's limitations, any prospect of a relationship between daughter and father and again noting that in the interviews for the first report on 11 December 2018 X seemed relatively desirous of continuing her relationship with her father or, alternatively, immediately expose this child to the potential ramifications from her father as identified by the family reporter.
There also remains the issue of parental responsibility. I am easily persuaded that the presumption of equal shared parental responsibility at s.61DA of the Act does not apply by reason of the long history of family violence in the relationship between the parents. Frankly, this mother and father show no ability or potential to be able to put aside their own animosities in order to equally contribute to the making of important decisions for their children. There are strong power imbalances within the relationship which would further prevent any form of cooperative objectivity. I am of the view, therefore, that given the children will be living primarily with their mother, that she should have the ultimate responsibility for making such long-term decisions for the three children but provided that she give the father prudent notice of important decisions in respect of the children's education and medical matters.
Finally, the Independent Children’s Lawyer raises a further issue in respect of X where the child has been undergoing counselling with Counsellors in Launceston. Mr Lewis asks for an order that such counselling be discontinued. By my reasons above, I have not found that X has been subjected to sexual abuse or impropriety in the sense of her allegations. Further, I have not found that she is at an unacceptable risk of sexual abuse or exposure to sexual impropriety. Still further, my reasons make it clear that, on the balance of probabilities, I am satisfied that the mother has initiated these untrue allegations. Consequently, it is not in X's best interests for her to continue counselling in such a post-modernist form which proceeds without any forensic conclusion or even investigation as to the veracity of the those allegations. Such counselling serves to perpetuate such allegations, which I seriously doubt have factual basis, in the child's mind. I will make an injunctive order that prevents X from attending any counselling in respect of those allegations.
I certify that the preceding One Hundred and Nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 22 October 2019
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