Dylan and Bilson and Anor
[2015] FamCA 573
•22 July 2015
FAMILY COURT OF AUSTRALIA
| DYLAN & BILSON AND ANOR | [2015] FamCA 573 |
| FAMILY LAW – CHILDREN – With whom a child lives – Parental responsibility – Best interests of child – Where the mother alleges that the child has been sexually abused by the father – Where the mother is found to be emotionally troubled, highly anxious and hyper-sensitive – Where it is found that the child has been influenced by the mother and has an unhealthy alignment with the mother – Where disclosures are found to be unreliable – Where it is found that there is no unacceptable risk of the child suffering sexual abuse in the father’s care – Where equal time is not in the best interests of the child – Order that the child live with the father – Order that the time the child spends time with the mother be gradually reintroduced following a moratorium period and a period of supervised time – Order that the father have sole parental responsibility. |
| Family Law Act 1975 (Cth) Evidence Act 1995 (Cth) |
| Briginshaw v Briginshaw (1938) 60 CLR 336 M v M (1988) 166 CLR 69 N and S and The Separate Representative (1996) FLC 92-655 W and W (Abuse allegations: unacceptable risk) (2005) FLC 93- 235 |
| APPLICANT: | Mr Dylan |
| RESPONDENT: | Ms Bilson |
| INTERVENER: | The Director-General, The New South Wales Department of Family and Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Claire Newton |
| FILE NUMBER: | LEC | 132 | of | 2009 |
| DATE DELIVERED: | 22 July 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 3, 4, 5, 6 & 7 February 2014 and Written Submissions received: |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Mason |
| SOLICITOR FOR THE APPLICANT: | Trenches McKenzie Cox |
| COUNSEL FOR THE RESPONDENT: | Mr Priestley |
| SOLICITOR FOR THE RESPONDENT: | Parker & Kissane |
| COUNSEL FOR THE INTERVENER: | Ms Neville |
| SOLICITOR FOR THE INTERVENER: | Crown Law Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Theobold |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Claire Newton Family Lawyer |
Orders
That the child, B born … 2003 (“the child”), live with the father.
That the father has sole parental responsibility for the child, subject to paragraph (3) hereof.
(a) That when the father intends to make a decision about a major long-term issue in relation to the child, being a decision about an issue that falls within the definition of “major long-term issues in relation to a child” as that term is defined in s 4 of the Family Law Act 1975, he shall:
(i)inform the mother in writing of the issue about which he intends to make a decision and provide her with any information he considers relevant to the decision that is to be made as well as detail as to the decision he is intending to make;
(ii)invite the mother to provide him, in writing, with any input she wishes to make to the decision and the decision making process, giving her a reasonable amount of time to do so before he makes the decision;
(iii)give reasonable consideration to any response received by the mother before making the decision.
(b)That when the father makes the decision contemplated in paragraph (3)(a) hereof, he shall notify the mother in writing of the decision he has made and the reasons why he has made the decision that he has.
That to facilitate the timely transition of the child to the care of the father as provided for in paragraph (1) hereof, the mother shall deliver the child to the father by way of delivering her, firstly, according to the direction of the Independent Children’s Lawyer, to the Independent Children’s Lawyer who shall inform the child of the Court’s determination and of this parenting Order, such process to be undertaken by the Independent Children’s Lawyer, at her discretion and if practicable, in conjunction with Mr Y, who wrote the second Family Report that was in evidence in the proceedings, and the Independent Children’s Lawyer shall then facilitate the transition of the child into the father’s care.
The Independent Children’s Lawyer shall be discharged upon compliance with the obligations imposed by paragraph (4) hereof.
That the child shall spend time with the mother as may be agreed between the father and the mother but in default of such agreement as follows:
(a)Supervised at the C Town Children’s Contact Centre for up to 3 hours per fortnight as can be accommodated by the Centre on days and times as agreed between the management of the Centre, the mother and the father, such visits to commence three (3) months from the date hereof with any charge imposed by the Centre to be shared equally by the mother and the father and with the mother and the father to make contact with the Centre forthwith and undertake all intake requirements of the Centre so that the visits can start as soon as possible after three (3) months from the date hereof;
(b)After fortnightly visits at the C Town Children’s Contact Centre have taken place over six (6) months, then for three hours from 2:00 pm to 5:00 pm every alternate Sunday afternoon without supervision, the child to be delivered to the mother’s residence at the commencement of such time and collected from that same residence at the conclusion of such time by the father or his nominated agent;
(c)After fortnightly visits have taken place pursuant to (6)(b) hereof over three (3) months, then from 9:00 am to 6:00 pm each alternate Sunday without supervision, the child to be delivered to the mother’s residence at the commencement of such time and collected from that same residence at the conclusion of such time by the father or his nominated agent;
(d)After fortnightly visits have taken place pursuant to (6)(c) hereof over three (3) months, then from 9:00 am Saturday to 6:00 pm Sunday each alternate weekend for the next three (3) months, the child to be delivered to the mother’s residence at the commencement of such time and collected from that same residence at the conclusion of such time by the father or his nominated agent;
(e)Thereafter, from after school each alternate Friday to before school on the following Monday during school term and, commencing from the Easter school holidays in 2017, for half of the school holidays being the first half in 2017 and other odd numbered years and the second half in 2018 and other even numbered years;
(f)From when unsupervised time commences pursuant to (6)(b) hereof, for two hours on the mother’s birthday, the child’s birthday, the child’s brother’s birthday, the child’s sister’s birthday and Mother’s Day if the child is not spending time with the mother otherwise pursuant to this Order.
That from the commencement of unsupervised time with the mother pursuant to (6)(b) hereof the child shall communicate with the mother by telephone as may be agreed between the mother and the father but in default of such agreement on one occasion per week.
That to the extent that the mother agrees to make her children, D and E, available for such time, the child shall, until she is spending unsupervised time with the mother pursuant to (6)(b) hereof, spend time with D and/or E on a fortnightly basis for at least two hours, in the absence of the mother and the father but in the presence of either the father’s partner, Ms F, or the paternal grandmother, Ms G Dylan or both of those two women, as nominated by the father, at a time and place determined by the father after consultation with the mother, with the father to give the mother written notice (by text or email) of the arrangements for such time to occur by 7:00 pm on the Thursday evening before the weekend on which it is to happen and the mother to confirm her acceptance of those arrangements in writing (by text or email) by 7:00 pm on the Friday evening before the weekend on which it is to happen and in the absence of that written acceptance by the mother before each such alternate weekend, such time shall not happen.
That the father shall keep the mother informed of his mobile telephone number, his residential and postal addresses and his email address, if he has one.
That the mother shall keep the father informed of her mobile telephone number, her residential and postal addresses and her email address, if she has one.
That the mother is at liberty to send the child cards, gifts and letters to the postal address of the father from after three (3) months from the date hereof.
That the father shall ensure that the child continues to see the psychologist, Ms H, on a regular basis into the future for as long as Ms H recommends to the father that the child should continue to see her.
That the father shall keep the mother informed in writing as to any significant developments in the child’s health including informing her of the names and contact details of any medical or allied health practitioners who the child might see and he shall authorise any doctor or allied health practitioner who sees the child, most particularly the psychologist Ms H, to speak with the mother if she makes contact with them and to provide her with any information she may request that the practitioner is lawfully able to provide to her.
That save for in a medical emergency the mother shall not take the child to see a doctor or any allied health practitioner, including a psychologist, without the written consent of the father or an order of this Court or the Federal Circuit Court of Australia.
That until the child is spending time with the mother pursuant to (6)(e) hereof, the mother shall not attend at any school the child is attending save to attend at an appointment with a staff member made in advance or with the prior written agreement of the father.
That after the child is spending time with the mother pursuant to (6)(e) hereof, the mother shall only attend at the school the child is attending to collect her at the end of the school day on the day the child is to transition into her care for the weekend and to return her at the beginning of the school day on the day the child is to transition back into the father’s care and otherwise she shall not attend at the school the child is attending save to attend at an appointment with a staff member made in advance or with the prior written agreement of the father.
That the father shall authorise the administration of any school the child attends to provide the mother with any information the mother seeks in respect of the child that the school is lawfully able to provide to her.
That the father shall be entitled to provide a copy of this parenting Order to the administration of any such school the child might be attending from time to time.
That neither the mother nor the father shall denigrate the other parent within the hearing of the child nor allow any other person to denigrate the other parent within the hearing of the child.
That the mother shall not take, use or be under the influence of any illicit drug during any time that the child is in her presence or care pursuant to this parenting Order.
That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dylan & Bilson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: LEC 132 of 2009
| Mr Dylan |
Applicant
And
| Ms Bilson |
Respondent
And
| The Director-General, The New South Wales Department of Family and Community Services |
Intervener
And
| Independent Children's Lawyer |
REASONS FOR JUDGMENT
B was born in 2003 and is now eleven years of age. Her parents, Mr Dylan and Ms Bilson, were in a volatile, conflictual relationship over a short number of years until Mr Dylan finally ended it and moved out of the home he was sharing with Ms Bilson a few months after she became pregnant with the child.
The conflict in the child’s parents’ relationship has continued over the years since they separated. Mr Dylan has been involved in the child’s life since she was born but that involvement has not been without considerable resistance from Ms Bilson, varying in its intensity from time to time throughout that period. Ms Bilson asserts that resistance has been protective of the child as the father has been sexually abusing the child. Mr Dylan denies that and asserts that the mother’s resistance has not been child focused but rather is sourced from the mother consciously and subconsciously wanting him out of the child’s life. The determination of these issues is, unsurprisingly, a central aspect of this Judgment.
Each of the child’s parents seeks a parenting Order from this Court that the child lives predominantly with him or her and has limited, conditional time with the other. Much is at stake for this child in the determination of the proper Order that is in her best interests.
Some relevant history
Family Law Act parenting orders providing for the child to spend regular time with him were first sought by the father in late 2004 and, after mediation convened by the New South Wales Legal Aid Office, court orders were first made, with the parents’ agreement, in January 2005. The child was just one year old at that time and it was agreed that she would spend every alternate weekend from 9:00 am Friday until Sunday evening with the father and his parents with whom he was living at that time, as well as every other Friday for the day.
That parenting regime operated for nearly four years. Then, in late 2008, apparently concerned about the quality of the mother’s care of the child, and wanting to have the child in his care for longer periods of time, the father arranged mediation at a Family Relationship Centre, as required by law before he could again commence Court proceedings seeking parenting orders providing for that increase in time.
However, before that mediation took place, the mother told the father in her own words, in the presence of the then five year old child, that the child had told her that she had been sexually abused by someone at a home that she was taken to by her paternal grandmother and that her grandmother had been indifferent to the child’s plight when the child complained to her grandmother about the abuse. The mother also told the father, in the same conversation, that she had been informed by a friend of hers who had been caring for the child for her at a time in the then recent past that the child had been found under a blanket with a boy playing a game that involved the boy touching or rubbing her genitals. This was, on the evidence, the first emergence of any allegations that the child had been sexually abused by any person.
The longstanding parenting regime provided for in the existing orders was then suddenly and significantly unilaterally interrupted by the mother. The father struggled to be permitted by the mother to have consistent time with the child for a few months. He then commenced fresh proceedings in the Federal Magistrates Court seeking parenting orders that provided for the child to live primarily with him. The mother acted on the basis of an apparent belief that the child had been sexually abused by an unknown third person whilst in her paternal grandmother’s care and that, although the mother had told the father about this, the father did not accept the need for any supervision of his mother’s care of the child. In fact, the father did not believe that there was such a need at that time.
On 31 March 2009, interim orders were made by the Federal Magistrates Court, again with the agreement of the parents, providing for the child to spend alternate weekends with the father, and, despite the father’s view that it was not necessary, for the child not to be left in the unsupervised care of her paternal grandmother. The orders also provided for a family report to be prepared to assist the parties and the Court.
That family report, prepared by an experienced Family Consultant with social work qualifications and Court counselling experience, issued on 13 July 2009. The report writer recorded difficulty obtaining a history of the alleged sexual assaults of the child from the mother (at a time when the allegations were only around 7 months old). Only minimal details and a patchy sequence of events were able to be obtained from the mother, according to the report writer. She also recorded that the mother had said that it took a while for her to realise the child was being abused and that “gradually all the pieces started fitting together”. The mother is recorded as saying that the child started having nightmares most nights and would wake and tell her different things she was remembering from the dreams, which the mother took as details of the abuse she was alleging had occurred.
Notwithstanding the mother’s allegations, explored and considered by the report writer, the report recommended that the child’s time with the father actually be increased so as to be from Thursday after school until Sunday evening in one week, and for another overnight period in the other week.
Of significance, in my view, there is evidence before the Court that sometime around the time that first family report issued, the mother told Dr I, a NSW Health Department Community Paediatrician, who saw both her son, D, and the child at that time, that “she was concerned that it was the child’s father who had been sexually abusing her and that is why the child was having only supervised access with her father.” In fact, the child was not having “only supervised access” with the father at that time, but that recorded note of Dr I is evidence supportive of a finding that the mother was already thinking about the possibility of the father having sexually abused the child in mid-2009. That being the mother’s position though, she is certainly not recorded as having told the first family report writer of such concerns and there is no other evidence of her reporting such concerns to anyone else or apparently saying anything more that would implicate the father in alleged sexual abuse of the child for some years thereafter.
In my judgment, Dr Andrew’s note about this report from the mother is a very telling piece of evidence that supports a finding that the mother had in her mind that the father might have been sexually abusing their daughter from very early in the proceedings even though she did not allege that fact until much later in the proceedings.
The court proceedings were listed for a trial in the Federal Magistrates Court in November 2009. However, instead of conducting a trial, that Court made further interim orders in accordance with the recommendations of the family report writer, including that a psychiatric report be prepared to assist the Court. The matter was then transferred to this Court and put into the Magellan list of matters.
In August 2010, a report prepared by Dr J, a very experienced psychiatrist and report writer in parenting proceedings in the family law Courts, recommended that an equal shared parenting regime be put in place for the child. In November 2010, shortly before the matter was to go to trial in this Court, the parents and the Independent Children’s Lawyer, agreed for orders to be made providing for the child to spend equal time on a week about basis with each of her parents. The mother plainly did not let any concerns she had ever held that the father might have been sexually abusing the child stop her from agreeing to that arrangement. That equal shared parenting arrangement was then implemented and was in place throughout 2011.
In late-January 2012, just after the child was returned to the mother’s care for the first week of school term, having spent the three last weeks of the school holidays in her father’s care, the mother contacted and informed authorities that the child (who was now just eight years of age) had now told her that the sexual abuse that she had previously told her of three years previously had actually been perpetrated upon her by a friend of the father’s whilst the father was present and watching and that the father had done nothing about it. The mother now asserted that the child had told her that the father had made her lie about her grandmother’s alleged involvement three years before.
The NSW Joint Investigative Response Team – (“JIRT”) (consisting of Police, Family and Community Services (“FACS”) Departmental officers and Health Departmental officers) was activated. The child was interviewed by a police officer and a FACS officer in a video recorded interview at a police station. She was taken to the interview by her mother.
The child agreed during the first part of the interview that she had been talking to her mother in her bedroom about a person she only knew by the nickname “red dog”. She was unable to tell the interviewers any more about what happened with “red dog” until, at the child’s request, her mother was allowed to come into the interview. After her mother gave her immediate comfort, affirmation and encouragement, saying to her “are you ready to be brave?”, and taking one of the child’s hands and putting it in her own lap or groin area, the child straight away said “red dog touched me downstairs”. The mother immediately gave her a very big hug and a prolonged kiss on the top of her head. The child then gave some more information during that interview about the alleged circumstances, including telling the interviewers that she also referred to her genitals as her “privates” and that the alleged perpetrator had touched her with his whole hand. Later, towards the end of the interview, the child quickly and positively responded in the affirmative to a question as to whether her father had stopped his friendship with “red dog” after that. She did not say that her father had touched her genitals or “privates”. She did not say that her father had been present at the time she was touched. She did not say that her father had made her lie three years before by making her allege that her paternal grandmother was involved in the abuse.
When the child was asked at the end of the interview, whether anybody else has touched her in a bad way she responded “I don’t think so”, to which her mother then said “what do you mean you don’t think so? [the child], talk to me please”. The child then looked at her mother quizzically but said nothing. When then asked again by the interviewers whether anybody else had touched her in a bad way, she said “no” and the interview was concluded.
After that interview, the mother again stopped the child spending time with the father but that time quickly recommenced soon thereafter. The JIRT team determined that the allegations would be taken no further. The mother was informed of the reasons for that by one of the JIRT team.
Just a few months thereafter, in May 2012, the mother contacted authorities again and reported that the child had now told her that her father had actually been sexually abusing her, sticking his fingers in her vagina. On 17 May 2012, the same police officer who had previously interviewed the child and a different FACS officer interviewed the child at her school. The mother was not with them. This interview was audio recorded only.
The child told the interviewers that there was “a lot to like about dad’s house” and spoke quite positively about her father and his household. She said nothing about her father sexually abusing her. She was taken through all of her body parts and was asked who touches them. When specifically asked about who touches her “privates” she said “nobody”. She expressly denied having spoken to her mother about somebody touching her in the wrong place. She remembered going to a police station with her mother during the week before that day but denied any knowledge of the reason for going. Again, she was asked whether anyone had touched her “privates” to which she again responded “no”. When she was asked finally had her dad touched her privates, she said “no”.
The father was not even told of these allegations. The JIRT investigation quickly resolved that nothing further would be done about the allegations at that time. The child continued to spend week about time with her father after that.
Pursuant to orders, the child was to spend some of her birthday in 2012 with her father. She was also to spend the first half of the Christmas holidays with the father, including overnight on Christmas Eve to the afternoon of Christmas Day.
On 3 December 2012, FACS received another report of the child having disclosed that her father was sexually abusing her. This time the report was made by a friend of the mother. That friend reported to authorities that the child had told her “my dad is molestering (sic) me”, and also that “he puts his fingers down there and he hurts me” and also that “nanny sits there and watches”.
On 10 December, 2012, the mother notified the father that the child would not be coming to him on her birthday and that she would be staying with the mother over Christmas Eve and Christmas Day as well. When telling him this, the mother did not give the father any reason for the unilaterally changed plans. On the child’s birthday, the mother collected her early from school so that the father could not collect her. She would not even let the father talk to the child when he rang her on her birthday, simply telling him the child did not want to speak with him that day. On 13 December, the mother told the father that she had “spoke with the police” and that the child would not be going to his place as he might have expected. The child was due to go to the father’s home for the first half of the holidays on 14 December, but she did not arrive.
Subsequently, nine year old the child was interviewed again by JIRT officers on 17 December 2012. The interview took place at the Suburb K Police Station with a different police officer from the previous occasions but the same FACS officer as for the interview seven months before. The mother took the child to the interview. This interview was also audio recorded only.
The child was asked what she had come to talk to the interviewers about and she said “about dad”. She was asked what she would like to tell them about her dad, but she did not respond. She was asked repeatedly over quite a long period of time what it was she wanted to say about her dad. Finally, she said “my dad’s molestering me”. When she was asked what “molestering” means she gave no answer at all. When asked where it happens, she said “his house” and when asked did she remember when the last time it happened was, she said “no”. When asked if she had told anyone about it she said “I talked to mum and Ms L about it”. “Ms L” was the mother’s friend who had reported the disclosure to the authorities.
The JIRT investigation again determined not to take the matter any further and when the police officer who had done the interview attended the mother’s home and informed her of that, the mother reportedly got angry and abusive and swore at him, telling him to get out of her house. That police officer told the mother that there was insufficient particularity in the information given by the child for the father to be charged with any criminal offence.
The father was informed by a member of JIRT on the afternoon of 17 December 2012 that the mother had again brought the child in, making allegations of sexual abuse against him. Later that evening, the mother telephoned the father and told him she was bringing the child to him straight away. She dropped the child at his home shortly thereafter. According to the father, the child was distressed, saying over and over that she had to be at her mother’s home for Christmas Eve. The father said he spoke with the child about this, told her it was her turn to have Christmas Eve with his family and that he would drop her to see her mother and her brother and sister on Christmas Day. The father gave evidence that the child was fine after being told that.
Significantly, on 19 December, 2012, the father filed a fresh Application Initiating Proceedings in the Federal Magistrates Court in C Town seeking parenting orders that the child live with him and spend only supervised time with her mother at a child contact centre. The hearing of the father’s application for interim orders in those same terms was listed for Monday 25 March 2013. The child again started spending week about time with the father pursuant to the then existing orders. That all changed again in late March, around the time the matter was due back in Court for the hearing of the father’s application for the child to live with him.
On Friday morning, 22 March 2013, according to the paternal grandmother (who kept contemporaneous diary notes), the child would not eat her breakfast, brush her teeth or get ready for school and her grandmother had to actually dress her. As the child left to catch the bus for school, Grandma (as the child calls her) said to her “you have to go to school darling, and go back to Mum’s this afternoon. We will see you next week.” The grandmother says that as the child was walking down the driveway, after hearing her grandmother’s farewell, she said to her grandmother “..won’t be a next year”. Her grandmother said she could not understand that comment and was unable to even respond to it at the time.
On Monday, 25 March 2013, Federal Magistrate Spelleken (as her Honour then was) heard the father’s application for interim parenting orders. Her Honour apparently reserved her judgment that day until Wednesday 27 March 2013.
That same day, Monday, 25 March 2013, the child’s then school teacher reports the child telling her in the classroom, in an angry tone whilst displaying particularly unsettled behaviour, that her mother “has to go to court for me”.
On Wednesday, 27 March 2013, the Federal Magistrate ordered a further family report be prepared to assist the Court, that an ICL (preferably the same one who had represented the child previously) be appointed to represent the child again, that the mother be restrained from having the child interviewed in respect of alleged child abuse by the father and that the mother report any suspicions of such abuse to the ICL. The matter was adjourned for further hearing on a date around six weeks later.
That same day, Wednesday, 27 March 2013, the child’s then teacher says that the child uncharacteristically stayed around in the classroom after school had finished, seemingly agitated and stressed. As that was unusual, the teacher asked her whether there was a problem to which the child responded “I need to tell you something”. After that the child paced around and said nothing. The teacher then said to her “do I need to help you with something?” The teacher said the child then approached her and spoke rather quietly, saying to the teacher “my father touches me down below”.
The teacher said that she asked the child if she felt safe that day and she said she was at her mother’s house at that time and was going home on the bus and was “okay”. The teacher asked her when was her next time at her father’s place to which the child said “it’s on Friday”. The teacher said that the child then told her that she needed to catch the bus and they walked out of the room together, the teacher telling her that she had to report the matter to her supervising teacher at the front office. The child is reported to have simply then gone off to catch the bus. There was no further discussion on the point at all between the teacher and the child.
On 28 March 2013, after the matter was reported to FACS, a referral was made to JIRT which was initially rejected. However, two FACS officers went to the child’s school that day and interviewed the child. The interview was not recorded but notes were taken by one of the two officers. Those notes record the child as telling the interviewers that she did not know why they had come to talk to her. They record the child as telling the interviewers that she watches TV at her father’s place and does drawing. They record that she was asked if there were any bad things that happen at her dad’s house to which she responded “no”. They record her as saying she felt safe at her dad’s house.
The notes record one of the officers asking the child if she told her teacher something the day before and the child answered “yes”. They record she was asked if she could tell the officers what she told the teacher and she said “yes”. The notes record that she was then asked “are you worried to tell us?” to which she answered “yes”. They then record the child being asked “what do you think will happen?” They then record the child being told “it’s okay to tell us, you’re not in trouble.” She is then asked again “what did you tell her?”
The notes say nothing more but do attach a drawing of a layout of what is purportedly the child’s bedroom at her father’s place with the initials “BB” (presumably meaning the child) on the drawing. There is another diagram purporting to be a female child without clothes on that has the child’s name on it and the words written next to a line directed towards the groin area of the figure saying “Down below Dad touches me.” There is another diagram attached purporting to be a male person with the name the child written on it and with the words “Dad touches me with his hand” written next to the right hand of the figure.
The officer who conducted the interview, Ms M, said in her affidavit evidence that she was the officer who asked the questions of the child and the other officer took the notes. She said that the child did not answer the questions she asked after the child has said “yes” to the question as to whether she could tell the officers what she had told the teacher the day before. Ms M said that the other officer then asked the child if she would feel better telling Ms M on her own to which the child nodded in the affirmative.
Ms M said the other officer then left the room. Ms M said that she then had the following conversation with the child:
[Ms M]: You told [the teacher] that Dad touches you down below
[B]: (nodded in the affirmative)
[Ms M]: When did it happen?
[B]: Last time I was at dad’s
[Ms M]: Where were you?
[B]: At dad’s house, in my bedroom.
[Ms M]: I haven’t been to your dad’s house. Can you draw a picture showing me where it happened?
Ms M said that the child then drew the diagram that is attached to the notes.
Ms M then said the conversation went on:
[Ms M]: You said he touches you down below. What does that mean?
[B]: (no response)
[Ms M]:(showing the child a body chart) Can you tell me what this is?
[B]: A girl
Ms M said she went through the body chart asking the child what the body parts were called and what they were for. She said that the child was able to answer adequately but was very quiet and reluctant to respond. Ms M said that the conversation went on:
[Ms M]: When you said that he touches you down below can you show me where that is?
Ms M said the child then pointed to the groin area of the diagram. Ms M wrote the words “Down below dad touches me”. She then said
[Ms M]: What does dad touch you with? (showing the child the second diagram of a male person)
Ms M said that the child then pointed to the hand and Ms M wrote the words “Dad touched me with his hand” on the diagram.
Ms M said she finished up with some other words including “Has this happened with anyone else?”
[B]: No, just dad.
Ms M said that she spoke with the child about going to her father’s place the following day and the child said she did not want to go.
The matter was re-referred to JIRT after that interview and JIRT accepted the referral. That same day, another FACS officer contacted the mother and informed her of an intention to further interview the child on 2 April 2013 at the child’s school. The mother was asked to keep the child in her care until after that interview.
Police were tasked to inform the father of these developments.
On 2 April 2013, the Police informed FACS and Health departmental officers that they would not respond to this latest allegation.
On 3 April 2013, three FACS and Health officers (including Ms M) met the child again at her school. They talked to her about participating in another interview. The child is reported to have said it is hard to talk about the “tough stuff” because “the yucky feeling comes back” and then she put her hand around her throat. The child was told that she could think about it and that in the meantime she would be staying with her mother. The child is said to have then said that she did not want to see her dad “at all”.
Ms N, the second FACS officer who was there with Ms M that day, said the three officers discussed with the child where the abuse was said to have occurred, whether the child was awake or asleep, and whether her father had touched her on top of, or underneath her clothes.
There were some notes taken by one of the officers that day. The notes include the following sentences:
Happened lots of times at dad’s.
When mum & dad weren’t together.
It started before going to school.
Touched on the skin.
After Deadly 60.
…
[B] indicated that she is awake when it happens
It’s never happened in the morning.
Only at night.
It’s a yucky feeling.
Yucky feeling comes back.
Feel yucky in the throat – indicated with her hand.
A little time
Hard to go to sleep
Happens sometimes
Indicated that dad throws things at her when he is angry
Sometimes hard things & sometimes soft things
Hasn’t been angry for a long time
Scared that if she tells him to stop that he will get angry
[B] tries to be good so dad won’t get angry at her
The diagram the child drew at the interview of 28 March 2013 was apparently produced to her and then had written on it “Dad” and “me” which were dated “3.4.13”. These were linked by lines to the bed in the centre of the picture.
On 9 April 2013, Ms M and the Health Department officer met with the child again at the school to “ascertain whether the child was willing to participate in a JIRT investigative interview”. They again spoke to her about matters pertaining to the sexual abuse allegations. Ms M said that when they started to focus on the “tough stuff” the child became visibly upset and was unable to respond to questions, withdrew back into her seat, became teary and avoided eyed contact. The child is reported to have said she wanted to participate in a JIRT interview and to have agreed that she wanted to feel safe again.
NSW Police had by this point in time, decided to be involved again in the investigation.
On 10 April 2013, another video recorded JIRT interview of the child took place at the school. The interview was conducted principally by Ms N with Detective Senior Constable O present and also participating, to a lesser extent.
The child was talkative at the start of the interview process when discussing matter of fact subject matter. When asked what she has come to talk about, she becomes very quiet. When asked what she disliked about her father, she became quiet again and wiped her eyes. When asked again if there is anything she does not like about her dad, she did not answer for a long time before she wrote on a piece of paper “that he touched me down there”. She was asked for another word for “down there” and she then wrote the words “downstairs”. She then drew on a diagram of a female body what part of the body she meant when she said “downstairs”.
The child was asked what you use “downstairs” for, and she answered “going to the toilet”. She was asked when was the last time her dad had touched her, to which she responded “last time I was there, two weeks ago or … a week before Easter”. When asked where she was, she answered “in my room, at dad’s”.
B said she went to the toilet, had a bath and watched Deadly 60 (a television program) and then “he touched me downstairs, then I went to sleep”. She said she was wearing her tweety shirt and tweety pants which are her pyjamas. She said her great granddad was at home, as was her grandmother, who, she said, was asleep. She said her dad was in the shed at the back of the house where he sleeps. Her grandfather was at work. She could not remember if it was a school night or on the weekend. She said she put herself to bed and did not kiss anyone good night. She said she read a Cat in the Hat book and then she went to sleep. She said that she heard the door open and heard her father come and could hear his boots. She said he sat down on the bed and she could not see what he was wearing because it was dark. She said “he touched me downstairs with his hands”. She said he put his hands under the blanket and that he was down close to her feet. She said that he put his hand under her pants. She said that it was “not long, about two minutes”. She said “two times sixty are two minutes”.
B was asked if she said anything to her dad and she said she did not. She was asked what she was thinking and she answered “scared”. When asked why she was scared she gave no answer. When asked how it finished, she said “he just stopped”. When asked if it hurt, she said “it just tingled”. When asked if she told anyone else, she said “only my mum, then I told …”.
A little later, she said he put just one finger in and “he just went up and down, like that”. She said it was “on the inside”. When asked about other times, she said “I can only remember the last time”. When asked “could it have happened before” the child said “it started when I was little but the last time I remember was the last time I was there”.
When asked if it happens “only at dad’s home”, she said “yes”. When asked “every time?”, she said “sometimes”. When asked if she thought about it could she remember another time, she said “no”. When asked “how many other times”, she said “I think about 50 times or something”.
A little later, Ms N asked the child how it made her feel and the child said nothing. Ms N then put her own hand to the lower part of her throat and the child said “I get a yucky feeling in my throat”. The child said that she feels that when she has to talk about it.
When asked if her dad has ever said anything to her when he touched her, she said “no, he has never said anything”. When asked if he has ever said not to say anything, she said “no”.
When asked if she remembered a person called “red dog”, she said that she did not. When asked if she did not remember talking about “red dog” she shook her head in the negative and said “uh uh, I can’t remember.”
When asked if it ever hurt when her father touched her, she said “it tingles”. When asked when she first told her mother, she said “it was a long time ago”. When asked how old she was then, she said “about 5”. When asked who else she had told, she said “I told the teacher”. She was asked when that was and she said “the week after Easter” and she said it was “Ms P” and that she told her that her dad is “touching me downstairs”.
The child was asked if the week about living was working out for her and she replied “yes” but then when asked where she wanted to live, she said “my mum, because I’ve got brothers and sisters”. She was asked if anyone else has touched her and she said “I can’t remember”. She was asked if someone called “Mr Q” had touched her and she said “no”. She was asked if her mum was very upset and she said “yes”. When asked if she wanted to go back to her father’s she said “I just don’t want to, because of what he does”. When asked if anyone knows he does it, she said “no”. When asked if grandma or great-granddad knew that he does it to her, she said “no”. When asked if she had ever been up at her dad’s shed, she said “no, … once”.
The interview was then concluded.
A few weeks later the child was physically examined by the Paediatrician, Dr I. Dr I reported some mild vulvovaginitis, which she explained is generally caused by irritation to the genitals by both soaps and bubbles in the bath, but reported otherwise observing a normal genitalia with a normal crescentic hymen. That, of course, does not mean that the child has not been sexually abused.
FACS officer, Ms N, prepared a report and provided her opinion that the child had disclosed sufficient information in her interview for the alleged sexual abuse to be “substantiated” on the balance of probabilities.
The child has not spent time with her father since then that has not been supervised.
The Director-General of New South Wales FACS determined to intervene and become a party to the case in this Court. Of course, that is the right of the holder of such office, conferred by s 92A of the Family Law Act 1975 (Cth) (“the FLA”).
What is the Court to determine in this matter?
The father was the applicant in the case. At the end of the ten day trial, he asked the Court to make parenting orders that give him sole parental responsibility for the child, but oblige him to consult with the mother prior to making any decisions about major long-term issues (as that term is defined in the FLA). He asked for orders that also provide for the child to live with him and, after a three month period of spending no time with her mother, to start spending time with her through a children’s contact centre with the arrangements to be reviewed through a further family report to be prepared by the same report writer who did the family report before the trial. He agreed that these orders were somewhat different to the ones he had applied for when he filed his application in late 2012, but he attributed that to changing his position after consideration of all of the information he had obtained in the course of this matter coming to trial.
The mother asked the Court to make orders that give her sole parental responsibility for the child and that provide for the child to live with her. She asked the Court to make orders that the child spend time with the father on weekends and in school holidays during the day only and under the supervision of the father’s partner, until the child is 12 years old, whereupon any time the child should spend with the father should be subject to the child’s own wishes. That was also different to the orders she sought in her Amended Response filed in September 2013 in which she sought an order that the child spend no time with the father at all.
Of course, the totally contrasting nature of those orders sought by each of the parents is explained by the simple fact that the mother’s case is that the father has sexually abused the child and the father’s case is that the mother has, one way or another, so influenced the child that she has come to the point of falsely telling authorities that her father has sexually abused her when he has not and that her interests would be best served, in such circumstances, living with him away from such a negative parental influence. The father also considers that the child probably has been sexually abused whilst in the mother’s care, another reason why he considers she should not continue to live principally with her mother.
Significantly, the Independent Children’s Lawyer ultimately made the submission that the totality of the evidence does not support a finding that the child is at an unacceptable risk of sexual abuse from the father. The ICL then submitted that if the Court accepts that, the parenting orders that should be made would be in line with those the father has asked for. The ICL also submitted though that if the Court does find that there is an unacceptable risk of sexual abuse to the child in the unsupervised care of the father, then she should not spend any time with him at all.
The intervening Director-General of NSW FACS submitted that the parenting orders the Court should make are those that the mother asks for. This submission was made along with a submission that the Court could not make a positive finding that sexual abuse of the child was perpetrated by the father. The Intervener nevertheless submitted that the Court should be satisfied that there is a risk of harm to the child in her father’s care, but that with the requirement of supervision until she attains the age of 12, the risk is not an unacceptable one.
How is the Court to determine this matter?
The High Court has determined that parenting orders cases are not about enforcing a parental right to have a child live with or spend time with a parent but rather the Court’s duty is to determine and make such orders as, in the opinion of the Court, will best promote and protect the interests of the child. In doing that, the High Court acknowledged, 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 [as were the terms used at the time of that judgment], but because it is prima facie in the child’s interests to maintain the filial relationship with both parents.[1]
[1]M v M (1988) 166 CLR 69 at page 76
In the course of its judgment in that same case, the High Court also relevantly observed that:
…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.[2]
[2] At page 76
They also said:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.[3]
[3] At page 75
Of course, the High Court’s reference to “the paramount issue which [this Court] is enjoined to decide” is reference to the statutory requirement that the Court’s task in determining the appropriate parenting orders to make in respect of any child is to be undertaken with mandatory regard to that child’s best interests being the paramount consideration (see s 60CA of the FLA). In that respect, the FLA also sets out a list of matters that must be considered by the Court in determining what is in a child’s best interests (see s 60CC).
Just as the High Court acknowledged in that decision twenty seven years ago that disputed allegations of sexual abuse will naturally have an “important, perhaps decisive, impact” on the decision, it is clear that the central matter in the determination of the parenting orders in this case is the alleged sexual abuse of the child by her father. Findings in respect of those allegations will be, in my judgment, centrally, albeit not solely, determinative, of the appropriate parenting orders to make. In my view, that also accords with the submissions of all four parties in this case, evidenced by the parenting orders each party submits should be made.
Notwithstanding the large number of cases that are heard in this Court each year in which there are allegations of sexual abuse being considered, it is always, when deciding individual cases such as this, worth reflecting upon the seriousness of the issue. Fogarty J, a former Judge of this Court, said in his judgment in the Full Court decision of N and S and the Separate Representative (1996) FLC 92-655 at 82,709:
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.
In my judgment, without doubt, that statement remains “as poignant and relevant” today as the Full Court said it was ten years ago in W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235. That said though, the High Court went on in M v M to expressly say (at pp 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 CLR 336 at p 362. There Dixon J said:
The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
That test, known as the “Briginshaw test”, is now given legislative force in s 140 of the Evidence Act 1995 (Cth), which provides:
S 140(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 which a 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; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.
The High Court in M and M continued, (at page 77) to say:
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
….
The test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse. (My emphasis)
In W and W (Abuse allegations: unacceptable risk) the Full Court discussed what it called ‘the unacceptable risk test’ and said (at para 111):
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, … do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
At paragraph 105 of that case, their Honours of the Full Court, referring to that judgment of Fogarty J in N and S and the Separate Representative, said:
Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
Accordingly, pursuant to statute and authority, all of the evidence in this case must be considered and weighed in the light of the “primary” and “additional” considerations mandated by s 60CC in determining the parenting orders that are in the child’s best interests, with particular focus being on determining whether she will be exposed to an unacceptable risk of harm by way of sexual abuse in her father’s care, as her mother asserts she will.
Quite obviously, very careful consideration will need to be given to all of the evidence in the case in determining these matters where, in particular, as I have already observed, at the age of nine, the child made express verbal disclosures to the authorities that she had been sexually abused, recently and on multiple occasions over a long period of time, by her father. If it was simply a case of taking account of the evidence of the child’s verbal disclosures to her teacher and to FACS and JIRT officers, determining that the child had been sexually abused by her father would be relatively straight forward. However, it is just not as simple as that in this case where thousands of pages of affidavit and other documents were adduced into evidence, video and audio interviews were put into evidence and many witnesses were cross-examined in the trial over ten days of Court time.
Some more relevant background
The Mother
The mother was born in 1980, the eldest of two children. Whilst there is no doubt that the mother’s childhood, particularly during her teenage years, was subject to “significant prejudicial features”,[4] the full extent of the prejudice the mother suffered in those years was shrouded in doubt at the trial and was difficult to completely understand. The mother’s history as it presented through various witnesses and pieces of evidence was patchy and inconsistent. Ultimately though, it is clear that the mother entered adulthood with a lot of very poor childhood experiences having shaped her personality and character.
[4] The affidavit of Dr R filed 15 January 2014, page 7
Dr R, the psychiatrist, who was retained by the ICL to provide a psychiatric report on the mother, recorded being told by the mother when he saw her for the preparation of his report that her own father “suffered from alcoholism” and was “verbally abusive” as well as “physically abusive” when intoxicated. The doctor reported the mother had told him she was expelled from school in Year 9 for “smoking” and because she “went off at the Deputy Principal”. He also reported that she had told him she was “violently sexually assaulted on two occasions” at the age of 16 and 18. There was also reference to a history of smoking marijuana and to continued use of marijuana up to around the time of the interview for that report, but a recorded denial by the mother of ever having used amphetamines or intravenous drugs.
There were typed notes of an interview between the maternal grandmother and two FACS Child Protection Case Workers that took place on 20 January 2010 adduced in evidence by the Intervener.[5] The notes record the maternal grandmother informing the Case Workers that the mother was a “rebellious child and wanted to leave home” when she was 15 and that she, the maternal grandmother, had even gone to the police to seek advice about her daughter’s plan at that time. The maternal grandmother is reported to have said the mother did leave home and went to live with “bad people” that the maternal grandmother did not like or approve of.
[5] The affidavit of Ms M filed 6 January 2014, page 28
Those notes record that the maternal grandmother was asked by the FACS officers about any sexual abuse disclosures or accusations made by the mother in respect of her own childhood. The maternal grandmother is recorded as having admitted to hearing the mother make accusations about being sexually abused by her father (the maternal grandfather) a number of times. The notes record that the maternal grandmother was asked to elaborate more on this and that she said that the mother was “taking drugs, alcohol and stealing at the time of the accusations”. The notes record the grandmother saying “[the mother] has thought it all up to a point where she now believes it happened.” The notes record she said that the mother had said that her father (the maternal grandfather) came home from work and would abuse her. The notes record the maternal grandmother said that she had first heard about this when the mother was 16 years old. The grandmother is recorded to have said that the mother would bring up the issue whenever she “had the shits” or could not get her own way. The notes record the maternal grandmother as conceding that she and her husband had never discussed the issue with the mother. The grandmother is recorded to have attributed that to the fact that she “just didn’t believe [the mother]”.
When asked to elaborate more on what that alleged sexual abuse was, the grandmother is recorded as having said that the mother had told them both (presumably both maternal grandparents) that the maternal grandfather had come home drunk and fallen into the bathtub whilst the mother was in it. The maternal grandmother is then recorded as having said emphatically that it could not have happened that way as she was there and saw her husband fall into the bath tub. She is recorded as having said “[my husband] doesn’t drink. I have only seen him drunk once.”
There were typed notes of an interview between the maternal grandfather and FACS Child Protection Case Workers that then took place on the same day, 20 January 2010, adduced in evidence by the Intervener.[6] The notes reflect that the maternal grandmother was asked to stay in the room as well during that interview and that she did.
[6] The affidavit of Ms M filed 6 January 2014, page 31
The notes record the maternal grandfather being asked what his relationship with his daughter was like and that he responded by saying that it was great up until she reached 13 years of age at which time she left home and then came back. He then said their relationship had been great for the last 9 years.
The notes record the writer of them as broaching with the maternal grandfather the subject of the mother’s accusation that he had sexually abused her more than once. The writer of the notes records telling the maternal grandfather of the information just conveyed to her by the maternal grandmother that the mother had told them that he had sexually abused her on more than one occasion and that one of the occasions was said to be when the grandfather came home drunk and fell in the bath. The notes record the grandfather as responding by saying he did not know anything of this. Indeed, he is recorded as asserting, looking at his wife, “this is utter bullshit!” in what was described as an assertive and agitated voice.
The notes record the grandmother then saying to her husband:
You remember …., when [the mother] came to us and told us that you were abusing her, remember you were supposed to have fallen in the bath tub drunk when she was in it?”
The notes record the grandfather responding “no way in the world is that true”. But they also record the writer of the notes asking him if he remembered the mother approaching him and his wife and wanting to discuss alleged sexual abuse, to which he is recorded as replying:
Oh yes, I guess I remember, not sure when it was but I do remember [the mother] saying that in the past.
The maternal grandmother then is recorded as saying:
I know that he would never do anything to hurt her and it never happened because I was there.
The notes then record the grandfather saying:
I did fall into the bath tub and I was drunk. I made a real mess of the tiles and the tap. I have a scar on my head to prove it too.
The notes record the note writer asking him if he drank a lot when the mother was growing up and that he responded saying he drank after the “Twilight Cricket Grand Final” and that he was a happy drunk. The notes record him going on to say that when the mother was growing up he used to have a few beers after work, “possibly one or two days a week. Well, not through the week but on a Friday night.”
An affidavit of Ms S, FACS Child Protection Caseworker, was filed by leave in this matter on 10 July 2014. She deposed, in that affidavit, to having been a party, along with another Caseworker, Ms T, to the interviews just referred to that took place on 20 January 2010. She deposed to the fact that she took the notes of the interviews that day, by hand, but she also said she had no memory of the interviews or as to who typed up those notes.
There is also in evidence a note of an interview with the mother by one of the same FACS Case Workers who was involved in those interviews with the maternal grandparents a week earlier. It records an opinion that the mother became very confused when asked about sexual abuse from her father. It records the writer asked the mother about the sexual assault incident in the bathroom when her father allegedly fell in the bath drunk. It records that the mother appeared to look rather shocked and said “No, he was drunk; he never fell in the bath tub. I was there and I saw him fall in but he never abused me. My father would never do that to me; never.” The notes record the mother going on to question the source of the information, denying that her relationship with her parents was an “abusive” relationship and reasserting that her father would never do that to her. She recalled him drinking every day when she was a child; her sitting in the car waiting for him whilst he was at the pub; her mum working long hours and her father staying home looking after the family; the father coming home drunk one day and her telling him to go have a bath and him falling into the bath and breaking tiles. She denied being sexually abused by him though.
At the trial, the mother relied upon an affidavit sworn by the maternal grandmother that was filed on 26 November 2013. In that affidavit, the maternal grandmother said this:
In or around January 2010 I was interviewed by a worker from the Department of Community Services in relation to disclosures made by my granddaughter [B].
During those interviews the Department Officer said to me words to the effect “we have heard that [your husband] was sexually abusive to [the mother]”. I responded words to the effect “I find that very hard to believe”. At no time did I ever say to anyone that [the mother] had accused her father of being sexually abusive. I was shocked at this comment.
The maternal grandmother was cross-examined at the trial. Her attention was drawn to the notes of the interviews of 20 January 2010 between her and her husband and FACS staff. She was asked if she remembered being asked about any sexual disclosures or accusations being made by her daughter. She responded that she did not remember that. When her attention was drawn to the passage in which it stated that she admitted to hearing her daughter make accusations about being sexually abused by her father a number of times, she responded that she did not remember that and that she would have remembered that if that had happened. She did not say that it was untrue but rather she simply kept responding that she could not remember it. The maternal grandmother quickly went on to say that she did not believe that her daughter made the allegations and that she knew for certain that her husband never “betrayed her”.
The maternal grandmother went on to say that she could not remember ever hearing her daughter make sexual abuse allegations against the maternal grandfather and that she does not believe she had. She then said, referring to the notes of the interview, she did not know what to make of them. After that I asked her whether she had ever talked with her daughter about the matter of whether her daughter had told anyone her father had sexually abused her as a child and she said she had never brought it up with her daughter.
The maternal grandmother was taken to the notes and the sentence saying that she told the two Child Protection workers that her daughter had told her the maternal grandfather had come home from work and abused her and the grandmother simply responded “cannot remember, I’m sorry”. She was prepared to say that she remembered saying to the interviewers “I find that very hard to believe” but nothing much else.
When she was asked could she remember talking about an incident in the bath tub she said “no, I can’t remember”, but went on to say that she did remember her husband fell on the taps near the bathtub and cracked the tile on the tap. She was then questioned about the notes that record her being asked how she knew her daughter was not in the bath at that time and her answer that was recorded as “because I was there, I saw him fall into the tub”. Her answer was “well, that’s wrong to start with.” When it was then put to her that the person who recorded the note must have then recorded something that she had not said, she answered “that’s right”. When asked if she denied that she had said to the interviewers “because I was there, I saw him fall into the tub” she responded “yep, no, I was not there, I was at work at the time.”
When asked about the note that recorded that she had stated that she first heard her daughter’s accusations when her daughter was 16 years old, she responded again that she could not remember that.
A little later in her oral evidence, the maternal grandmother stated that she had been asked about the FACS notes of the conversation with her of 20 January 2010 by the mother’s solicitor and that her own affidavit had been done in response to those notes. Again, she was asked whether she had talked about it with her daughter and she said “no”, but quite curiously then went on to say “because she doesn’t believe it, that, that was actually said, in her mind”.
Inconsistently, she then went on to concede that the mother had told her of the FACS notes, saying that the mother had brought that subject up with her. She accepted that it was probably before she had given the affidavit to the mother’s solicitor in which she referred to the matter that the mother had brought it up with her.
I then asked the maternal grandmother if she had any explanation for why FACS Departmental officers would record that detail in the notes of their interview with her in circumstances where she did not remember the conversation with them as recorded by them taking place and where she did not remember her daughter ever making the allegations that the maternal grandfather had sexually abused her as a child. Her short response was “no”. I asked her again if she had a theory about it, to which she responded that she “possibly did” say those things but she just could not remember doing so. She went on to say that her daughter might have said those things to her and that she may have just discarded that from her memory. She then said that she must have said the things to the FACS Departmental officers that were recorded in the notes but that she just could not remember doing so. I asked her why she might have discarded the memory of the things she discussed with the Departmental officers in the three years between the interview and the time that she swore her affidavit in 2013, to which she replied “In my mind it’s something that never happened, so I’ve…., I don’t know.”
All of this evidence was, in my judgment, most unsatisfactorily given by the maternal grandmother. I did not accept her assertions that she could not remember saying the things that the Departmental officers had recorded. I did not accept her assertions that the mother had never told her that the maternal grandfather had sexually abused her as a child. I had a profound sense that she was withholding the truth from the Court out of some sense that truthful evidence about the matters would hurt her daughter’s case or for some other reason. I am satisfied that she and the mother had previously discussed the content of the FACS Departmental notes of the interviews of 20 January 2010 and that the grandmother considered false denial of the accuracy of the content of those notes and assertions of failed memory was the best course to take in support of her daughter’s case.
Adduced into evidence were some handwritten notes from a sexual assault counselling service seen by the mother in May 1998, when she was almost 18 years old. The mother told the Court that she had been seeing a counsellor, Ms U, at that time. The notes record that she reported a “pot addiction” with “high levels of pot smoking (all day)” and that she had been raped before Christmas (1997) by a known assailant and that he had attempted to rape her again earlier in 1998. The notes record she had made no police statement. The notes record the mother was not eating much and was stealing. The notes also record that the mother had a violent father who “threw her down stairs as a baby” and that she had been “introduced” to heroin and cocaine in year 4 – 5 as well as being previously raped at age 13 when she was drunk and not conscious. The notes record she was pregnant after that and subsequently miscarried, that she was kicked out of school for smoking “pot” and assaulting a teacher who “behaved suggestively”. The notes also record that she had reported giving up heroin and cocaine for her grandmother. Also recorded is the mother’s stated desire to manage “pot smoking”, to get healthier and to go to TAFE and her intention not to make a police statement. The notes record that she had a boyfriend at the time of being seen by the service.
Further notes taken in September 1998 record a home visit to the mother’s home where further history was provided by the mother. Recorded is the fact that the mother described an abusive childhood where she was scapegoated by her family. Again, reference is made to her father having thrown her down stairs when she was three weeks old and that she had suffered broken ribs from that. The notes record that her father continued to have a problem with alcohol until she left home, which move was precipitated by her interfering with her father’s violence towards her mother after which her mother had asked her to leave. Those notes record that most of her childhood was spent in her grandparents’ care.
Notes taken in 2001 by the counselling service record the mother reporting that she had made a statement to the police about the 1997 rape and that she had told the police the offender was a big white man with a tattoo and a beard but that she said, in fact, the offender was an aboriginal man with the nick name “bubba” who had since been “fixed up” by a friend of hers. The notes record that the mother said the offender was “six foot under” and that she did believe her friend had killed him as she had not seen “bubba” around. The notes record that the sexual assault service then determined to inform the police of that information provided to it. There was no evidence that anything happened as a consequence of that.
More notes taken in March 2007, provided by the sexual assault counselling service, record the mother as presenting looking “very harrowed, sad, depressed, dressed without concern for impression” and saying that she was “desperate and needed help”. The notes record her reporting that she had bouts of anger and difficulty managing herself around her children and that she had been drinking too much and was still using cannabis. The notes record discussion around “Detox and Rehab”. They record that she reported her parents were helping her then but that she “gave the impression” that she could not quite trust this. They had not supported her at a time when she was sexually assaulted as a young person, the notes record.
There is no record in any of those notes over a span of nine years of the mother having told the note taker at the service that her father had sexually abused her during her childhood.
At the trial, in her cross-examination, the mother agreed that she had told her counsellor that she had a violent father and that he had been abusive. She denied the proposition that he had sexually assaulted her as a child. She denied that she had told the counsellor that she had been introduced to heroin and cocaine in year 4 and 5, but she could offer no explanation for the notes recording that.
The mother denied that she had told her counsellor that she was raped at age 13 when unconscious or that she had been pregnant after that rape and then miscarried. She asserted in Court that she had never said anything like that to the counsellor. Indeed, she denied in Court that she had ever used heroin or cocaine.
In cross-examination at the trial, the mother continued to deny that she had ever been sexually abused by her father and that she had ever told her mother that she had been.
I could not accept the mother’s many in-Court denials about matters that were clearly put to her by reference to notes, taken apparently contemporaneously to the provision of the information by the mother, by her counsellor or someone at the counselling service. I do not accept her in-Court denial that she had ever used heroin or cocaine and I am satisfied that she has. Similarly, I am satisfied the mother was a heavy, regular user of cannabis over a very long period of time.
However, I do not consider it necessary to make a finding as to whether or not I accept her denial of sexual abuse by her father. In contrast, I am prepared to say that I do not accept her denial that she ever told her mother that she was sexually abused by her father. I am satisfied, having particular regard to the FACS Departmental notes of the interviews with her mother and with her father of 20 January 2010, that she did and that both women are falsely denying that fact now. I am just not in a position to determine if there was truth in the allegations that I am satisfied the mother had made to the maternal grandmother in her younger years. I am quite satisfied there is no doubt about the fact that the mother had a very troubled childhood and a very troubled relationship with her parents as a child and that she has had a long-term drug and alcohol problem since childhood.
The mother’s first child, D, was born in 2000, when the mother was about 20 years old. His father’s name was Mr V and the mother was not in a relationship very long with him, as in 2000, around the time D was born, she was in a relationship with a man whose name was Mr W. That relationship did not last very long either as the relationship with the father of the child, Mr Dylan, commenced in the latter part of 2000.
In September 2000, the NSW FACS received information that the mother had been admitted to hospital suffering a broken nose following a domestic dispute with the man named Mr W. At Court in the trial, the mother said that Mr W had head butted her in the face, causing that injury. A NSW Apprehended Violence Order was obtained against him from the Local Court at the time.
The alleged disclosure to Ms L and the child’s recorded disclosure of 17 December 2012 happened at a time when the mother was appears likely to have been aware that the father was intending to apply to the Court in 2013 for a change to the parenting orders and when the mother was also in dispute with the father about whether the child was going to spend overnight from Christmas Eve to Christmas Day, when the Court orders clearly provided for the child to be with the father. It was also quite soon after the mother learned that the child had been going to see the psychologist, Ms H, for counselling for much of 2012.
I do not consider the child’s disclosure recorded in the JIRT interview that took place on 17 December 2012 to be a reliable one.
The March 2013 Disclosure
The child spent from 17 December 2012 to 12 January 2013 in the father’s care, save for overnight on Christmas Day to Boxing Day where she was in her mother’s care pursuant to the existing orders.
When school started back at the commencement of the school year, the child continued to spend alternate weeks with her father and with her mother. The last full week that she was in the father’s care was 15 to 22 March 2013.
The evidence is that the shed that the father sleeps in at his parents’ property is some 60 metres down from the back of the house. The father gave evidence in an affidavit that he was aware that on the Tuesday and Wednesday nights of that week when the child was staying at the house she asked her paternal grandmother to sleep with her as she kept hearing noises. He also said that on the Thursday night, the night before she went back to her mother’s place, she went and got into her grandmother’s bed. The father said that the next morning his mother told him “[B] is not her happy self”.
Some pages of a diary the paternal grandmother kept were put into evidence. The entire two weeks of Monday 11 March through to Friday 22 March are set out over two pages. The entry for Monday 11 March (this week the child was in the care of her mother) said:
Detention
The entry for Tuesday 12 March said:
Pretended to be sick
There is nothing written in for 13 and 14 March.
The entry for Friday 15 March, the day the child was coming to her father’s care, said:
[Ms BB] Rang the child detention Fell over, Nasty to everyone in class, using someone textas then through. Screwed Newsletter up. Wanted to do Art. [the words actually used]
The entry for Monday 18 March said:
Dog walk Home work all good
The entry for Tuesday 19 March said:
Found shitty pants in 2 draws the child washed I sleep with the child
The entry for Wednesday 20 March said:
No Brecky No teeth School didn’t want to go Hair I sleep with the child
The entry for Thursday 21 March said:
No Brecky No teeth No Hair the child came and sleeped with me
The entry for Friday 22 March said:
No Brecky No teeth or Hair Had to dress her in uniform back to [Ms Bilson]
There was then an entry saying “wont be a next year”
The grandmother explained the entries from the second of those weeks in her oral evidence at the trial. On the Tuesday she found a couple of pairs of soiled underpants belonging to the child in one of her bedroom drawers and they washed them. The child asked her grandmother to sleep with her that night.
The next day, the child did not want breakfast, did not clean her teeth as she usually did, did not do her hair and did not want to go to school. Again that night she asked her grandmother to sleep with her. The next day, the child did not eat breakfast, clean her teeth or brush her hair and that night she went in and got into her grandmother’s bed to sleep with her. On the Friday morning, the day she was to go back to her mother’s place, again the child did not have breakfast, clean her teeth or brush her hair. She would not get dressed in her school uniform and her grandmother had to dress her. That is the morning when she was walking down the driveway to catch the bus to school when her grandmother said something like “see you next week” and her grandmother heard the child respond “wont be a next year”.
The grandmother’s evidence was that the child most definitely was not her happy self that week in their home.
Although in his affidavit filed 15 November 2013 the father said an interim hearing was held in the Federal Circuit Court in C Town on Wednesday 27 March 2013, the evidence at the trial satisfied me that the hearing was listed for and heard on Monday 25 March 2013 and that the FCC Judge reserved her decision to be delivered on Wednesday 27 March. The father’s evidence was that his interim application was for orders that the child be moved from the mother’s care to live with him and to have supervised time with her mother. He had sought that from the filing of his application in December 2012. The mother had also filed a Response that she had signed on Friday 22 March 2013 that sought orders restricting the child’s time with the father to supervised time at a children’s contact centre only.
The father said that he was present in Court during the interim hearing, as was the mother. The father’s evidence, which was not contradicted, was that the interim hearing went for more than two hours and that his solicitor read out many extracts from documents subpoenaed from JIRT and made strong submissions pointing to evidence that the police were concerned that the child had not been able to articulate the meaning of “molestering” or provide specific details and context when making the December 2012 disclosure.
That same day the child’s then teacher, Ms P, said the child was troublesome in class and told her angrily that her mother had to go to Court for her. Clearly, the child was aware of the Court proceedings going on around her. Plainly, in my view, the implication from that statement to the teacher is that the child had learned that either directly or indirectly from her mother.
On Wednesday 27 March, 2013, the FCC Judge delivered her judgment in the interim proceedings and made orders that included restraint on the mother from having the child interviewed in respect of alleged child abuse by the father. I can only presume that such an order was either sought by the father on the Monday or considered by the FCC Judge and raised with the parties on that Monday to hear their submissions. I have very little doubt that the mother was acutely conscious at the end of the court hearing on Monday 25 March that she was facing an extremely difficult set of circumstances in trying to secure from the Court parenting orders that the child continue to live with her and that there was every prospect that she may be restrained from taking the child to be interviewed in respect of alleged child sexual abuse by the father.
On that same day, as is already detailed at the commencement of these reasons, the child uncharacteristically waited back after class finished and spoke to her then teacher, telling her that she needed to tell her something. The child was agitated and stressed and then approached the teacher and said “my father touches me down below”. After that, according to the teacher, they had a very brief conversation about where the child was staying at that time, when she was due back at her father’s house and about the teacher’s obligation to report it to her senior staff member at the school. The child then went off to catch the school bus home to her mother's home and the teacher made the mandatory notification to NSW FACS.
Then occurred all of the events, including the numerous interviews of the child that I have detailed at the outset of these reasons.
As to the evidence about the child’s behaviour in the week of 18 to 22 March 2013, counsel for the mother submitted the diary entries were “highly significant”. He submits that the child’s behaviour demonstrated Friday at school when she was due to come to the father’s home for the week is noteworthy and that the behavioural matters recorded from Tuesday 19 March are consistent with there having been an incident of abuse in her father’s home on the Monday night, consistent with what the child had said in the video recorded JIRT interview (although the child had not referred to that Monday night in particular).
Certainly, with that evidence, that submission is open to counsel for the mother. On the other hand, that evidence is equally as consistent, in my judgment at least, with the child not coping with the pressure that I am satisfied was imposed upon her by the mother to effectively choose her and her household as her preferred place of residence ahead of her father’s, as well as the child’s reluctant, unhappy acceptance of the fact that something was expected of her that the child herself knew was not right, that she knew was going to disrupt the good relationships she had with her father, his girlfriend, her paternal grandparents and their home. The remark “wont be a next year” is quite reflective of such an understanding by the child, in my judgment.
There is something so extraordinarily coincidental about the child staying back in the class room on Wednesday 27 March to tell her teacher, with remarkably very little detail provided, that her father touches her “down below”, on the very same day that her mother was expecting a Court decision that I am satisfied the mother knew when she went home from Court on Monday that week could restrict her ability to be able to take the child to be interviewed about sexual abuse allegations in the future, that it is more likely than not, in my judgment, the disclosure to the teacher was the subject of discussion, direction and planning between the child and the mother. Indeed, the child said in the JIRT recorded interview of 9 April 2013, when asked had she told anyone else, that she had told her mother first. She said “only my mum, then I told …”. Although her words trailed off, I expect she was about to say “Ms P” or “my teacher”.
If she told her mother first, as she said she did, her mother certainly did not report it to any authorities before the teacher did. In fact, later, after the teacher’s report of the child’s disclosure, the mother has said that the child was telling her repeatedly in the early part of 2013, up to the disclosure to the teacher, that her father was touching her sexually when she was staying over at his place. The mother did not report that to the authorities, but rather waited until after the child told her teacher, but denies having told the child to tell the teacher that day. That is a denial that I do not accept as truthful.
Then, on the mandatory report of the teacher, FACS officers not previously involved in the case became very involved, the mother was informed by them as to what was going on and was told by them not to return the child to the father pursuant to the existing orders. The child was then repeatedly interviewed at school by those FACS officers who took notes but did not video or audio record the interviews, so that by the time the JIRT video recorded interview took place on 9 April, 2013 the subject matter of the question and answer session that took place had been well and truly gone over between the FACS officers and the child a number of times.
I make those observations respectfully, not meaning to convey that I consider that the officers were motivated by anything other than a sense of professional duty and a desire to do the best job they possibly could in the protection of a child about whom they had concerns. The responsibility that rests with such officers is onerous and the work they so conscientiously do is so often unappreciated in the wider community.
Nevertheless, I am satisfied that by this time, the mother, knowing that more detailed disclosures were required to be given by the child for the authorities to act upon them, a fact conveyed in painful circumstances to the mother in December 2012 by the police officer the mother abused and ordered out of her house, has had, on her own evidence, many weeks to discuss the disclosure with the child before the FACS officers then confirmed those details with the child over three interviews that they conducted with her before the video recorded JIRT interview. I am quite satisfied that the mother, apparently believing in her own mind that the father has sexually abused the child from as far back as mid-2009, had discussed the issue with the child without restraint over a long period of time, in such a way that the child had firmed in her own mind that which she must say to the authorities when the time came, so as to achieve the outcome her mother, with whom she had become so aligned, so desperately sought.
Just as I found the father’s denials that he sexually abused his daughter very credible, and the December 2012 recorded disclosure of the child unreliable, I also find the disclosures reported to have been made by the child to the teacher and to the FACS officers, and the recorded disclosure in the JIRT interview of 9 April 2013, to be equally unreliable, notwithstanding the greater detail contained within them. I consider those disclosures and the detail provided to be the product of a lot of discussion between the child and her mother over a long period of time, in circumstances of an unhealthy alignment of the child to her emotionally troubled, highly anxious and hyper-sensitive mother who believed for years the father has sexually abused the child. I do not find that the mother deliberately, maliciously and falsely set out to cause the child to make false allegations against the father, but I am satisfied that she has indeed, through her actions and her words, so heavily influenced the child by her own belief that the father has sexually abused the child that the child has acted in the way that she has to maintain and reinforce her unhealthy alignment with her mother.
Ultimately, just as no party in the case submitted that I would make a positive finding that the father actually sexually abused the child, I do not make such a finding, quite satisfied that I cannot and should not. In the same vein, I will not go so far as making a positive finding that the father did not sexually abuse the child. Conscious of the authoritative discussion of the principles surrounding determination of this sort of case that I have already discussed in these reasons and mindful of all of the evidence that I have read, seen and heard, I will not do that. I simply cannot say the father has definitely not sexually abused this child.
What then is the level of risk to the child?
What is required is a determination as to whether the level of risk of this subject child being sexually abused in her father’s care is of such an unacceptable level that I would consider orders providing for her to spend time in his unsupervised care not to be in her best interests.
Whilst all of the evidence certainly supports a finding that both the child and her brother, D, could very well have been sexually abused at some point in their childhoods, after my consideration of all of the evidence in this case, including, most particularly, the child’s own recorded disclosures, on the balance of probabilities, and bearing in mind the requirements of s 140 of the Evidence Act, I do not consider that the risk of the father sexually abusing the child whilst she is in his unsupervised care is an unacceptable one.
What then is the proper parenting order to make in this Case?
The mother’s steadfast view that the father has sexually abused their daughter has, in my judgment, created much of the turmoil that this child has had to endure in navigating her relationships with her parents and her extended family members over the last six years. I am quite satisfied that the mother’s vulnerable personality is unlikely to change in the future and that her attitude to, and ability to manage the co-parenting relationship with the father is also, consequently unlikely to change. Furthermore, there is no framework of functional co-parenting relationships with any of the fathers of her other two children around which the mother could even begin to model better co-parenting for the child.
The evidence strongly supports findings that not only has the child demonstrated the effects of compromised parenting, but so too has her older brother, D. Significantly, D’s troubled behaviour has not been attributed by any person involved in this case to anything that the father is responsible for. D has principally been cared for by his mother, without a relationship with his own father, for all of his life. There is no doubt on the evidence that he is a very troubled child.
B spent over two years living an equal amount of time in the households of her mother and her father. The evidence, particularly the evidence of the two family report writers, satisfies me that the relationship between the child and her father is a good one, despite the allegations made over the years by the mother and the disclosures recorded from the child.
The father’s partner, Ms F, impressed as a suitably caring person who already enjoys an appropriate relationship with the child that the child herself also values. The plans of the father and Ms F to live together in the shed at the back of the paternal grandparents’ property until they can get things together sufficient to move to their own home, and for the child to live with them at the grandparents’ home until then, are appropriate ones, in all the circumstances. The child’s relationships with her paternal grandparents, particularly with her grandmother, are good ones, and living again in the same household as them for a significant period of time will, in my view, be beneficial for the child and help her adjust to what will, no doubt, be an emotionally troublesome time for the child in the first period of time after the parenting Order I make is in effect.
I am satisfied that it is in the child’s best interests now, just as counsel for the ICL submitted, and just as the counsel for the father submitted, for a parenting Order to be made that the child lives with the father and that regulates the time that she spends with her mother, restricting it in its frequency and duration to much less than equal time. Having determined that I do not consider the child to be at an unacceptable risk of sexual abuse in her father’s unsupervised care, I do not consider that simply reinstating the previous equal shared parenting time regime is in the child’s best interests, nor do I consider that an order that leaves the child living principally in her mother’s household is in her best interests.
I consider that leaving the child living with her mother would leave her exposed to parenting compromised by her mother’s vulnerable, anxious, highly-sensitive personality and deeply held belief that the father has sexually abused the child. It would leave the child exposed to a troublesome relationship with her older brother who is now in a very challenging part of his own life, his early adolescence. It would leave the child’s relationship with her father and her extended paternal family still exposed, principally, to the influence exerted by the mother. That influence is not a positive one in my judgment. I do not consider this would be in the child’s best interests. I consider that leaving the child living half or more of the time with her mother would most probably lead to further litigation in respect of this child in the future. That is to be avoided if it can be.
I am satisfied that the child will initially cope with and then come to benefit markedly from a move into the household of her father, his partner and her paternal grandparents and the influence that they will then have in her life. The father might not have demonstrated a totally sound commitment to the child’s financial support in the past when she has been principally in her mother’s care, but I am satisfied that with the child living with him in the future that he will be required to bear full financial responsibility for her support with little likelihood that he will receive any realistic financial assistance from the mother whose capacity for employment is extremely limited and whose financial resources are just as limited. He has demonstrated a willingness and capacity to undertake and maintain paid employment and will, I am satisfied, be able to financially support the child.
What of Parental Responsibility?
Of course, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child’s best interests for the parents of the child to have equal shared parental responsibility for that child.[7] However, that presumption may be rebutted by evidence that satisfies the Court that it would not be.[8]
[7] Section 61DA(1) FLA
[8] Section 61DA(4) FLA
The evidence in this case satisfies me that it would not be in the child’s best interests to confer parental responsibility in an equal shared manner upon her parents. The evidence of the history of their co-parenting relationship and their apparent inability to maintain reasonably respectful communications with each other and the mother’s belief that the father has sexually abused the child satisfies me that they could not be relied upon to consult with each other and make a genuine effort to come to joint decisions about major long-term issues in relation to the child or to come to a joint decision at all. I do not consider that to be in the best interests of the child. I will make a parenting order that confers parental responsibility solely on the father, subject to the express obligation on him to consult with the mother prior to making any decisions about major long-term issues. The father himself seeks such an order. In determining this, I am satisfied that he has the capacity to make such decisions in the best interests of the child and has a genuine commitment to consult with the mother to at least find out her views in respect of the decision proposed to be made.
With the child to be living with the father, what time is she to spend with the mother?
The father proposes there be an initial period after the child moves into his full-time care during which she does not spend any time with her mother. That position is supported by the ICL. The evidence of Mr Y that favoured such a course, for a period of around three months, for the sake of the child being given “a chance to settle”, “a bit of emotional space”, is evidence that I accept in the circumstances.
The parenting Order I will make will not make any provision for the child to spend time with her mother for the first three months after she moves to her father’s home, unless of course that is with the father’s agreement.
For the father, it was submitted that the parenting Order provide for the child to recommence spending time with her mother in a supervised setting as can be arranged at the C Town Children’s Contact Centre for a period of three months before a further family report is to be prepared by Mr Y or another Family Consultant, if Mr Y is not available, with the matter to be relisted for a further mention two weeks after publication of that report to determine what should happen next in respect to the child’s time with the mother. It is submitted that the evidence supports this approach so as to determine if the mother’s beliefs and attitude towards the father changes so that the child may safely be able to spend unsupervised time in her mother’s care without further exposure to allegations of sexual abuse by the father.
The submissions of the ICL correctly identify that making such a parenting Order would mean that these parenting proceedings would not be finalised and that the Court’s parenting order would only truly be a further interim order. The ICL made submissions as to the parenting Order that should be made as a final order in circumstances where the Court was not satisfied that further interim orders and a further parenting report were in the child’s best interests.
B is now 11 years old and will be 12 in December this year. She has known her parents being in conflict about her for many years. It is in her best interests for the conflict to cease and for the Court proceedings about her to be finished. It is not in her best interests to force her to undertake more interviews for reporting processes. the child is now at that delicate stage of her life where she going to be, or already is, progressing from childhood to young adolescence. Her best interests require certainty and stability around her, in my judgment. As I have already observed, I am of the view that it is unlikely that the mother will readily change her beliefs and attitudes towards the father within a six month period of a parenting order being made that provides for the child to live with her father. I am determined not to make further interim orders. I consider that such orders would likely continue and exacerbate the conflict between the parents.
The ICL’s submissions, if that was the Court’s position, proposed supervision of the child’s time with her mother at the C Town Contact Centre for a period of six months from the reintroduction of time after the three month break. They proposed a very gradual reintroduction of unsupervised time with the mother over the following ten months before reaching alternate weekends from Friday after school to Monday before school and one overnight stay in the other week.
I am persuaded, given that I consider final orders to be in the child’s best interests notwithstanding my view that the mother is unlikely to change her attitudes towards the father, that the ICL’s proposal is one to model the parenting Order upon. It will ensure the child has a period of respite from the back and forth of going between households of high conflict for a reasonable period of time, followed by recommencement of time with her mother and the furtherance of the relationship she has with her in a setting that assures that she is not immediately exposed to inappropriate influences. That will be in place for such a time that when the child is due to recommence spending time with her mother on an unsupervised basis she will be 12, going on to 13 years of age. Initially, and for some months, that unsupervised time with her mother will be for relatively short periods of time before progressing to overnight periods around the time that she will be turning 13 years of age.
By that stage, I expect matters between the parents will have stabilised sufficiently and the child will have grown in maturity and her own capacity for critical analysis of what is going on around her, that she will be able to make her own considered input into matters involving her parents that will assist them all to be able to determine appropriately, within the framework of the Court’s orders, the parenting relationships and arrangements that are to determine their day to day and week to week interaction. I fully expect the child will have her own capacity by then to largely determine how she might be influenced by each of her parents in respect of her relationship with the other. Each of her parents will have to respect that and will overlook that at the peril of his and her own relationship with her, in my judgment at least.
I fully expect, having regard to the past, that the father and his family will continue to facilitate appropriate psychological counselling for the child with Ms H to assist the child through any further emotional difficulties that she may experience. However, as I consider it in the child’s best interests that she does continue to see Ms H for counselling sessions, I will include in the parenting Order I will make an order that mandates that. the child is likely to benefit from a continuation of the relationship she has developed with Ms H in the past. That regular counselling should continue as long as Ms H continues to recommend it to the father.
Indeed, the father and his partner would also surely benefit by obtaining professional assistance themselves in respect of parenting the child in the future, having regard to the circumstances they have come through. Undertaking counselling with an experienced family therapist and undertaking something like a Triple P parenting Course would continue to enhance their capacities to present a positive experience for the child in what have presented as difficult circumstances. Again though, I am satisfied that they will seek such things out as necessary. I will not mandate it in orders.
As for the mother, the expert evidence about the benefits she could obtain from psychotherapeutic counselling was presented to the Court. She was very competently represented in the proceedings by solicitor and counsel, who, I am confident, would advise her about that evidence and will appropriately interpret the Court’s findings and reasons to her. It is a matter for the mother now whether she goes and seeks out appropriate psychological assistance. She, too, has sought and obtained counselling in the past. She should readily be able to do that in the future. I will not mandate it in the parenting Order that I make either.
The Child’s relationships with her older brother and her younger sister
Of course, it is of concern to the Court that the parenting Order that is to be made will move the child from the home where she lives with her two siblings. The concern is partly ameliorated, as I have already observed, by satisfaction that the child’s relationship with her brother, D, certainly has presented as a troublesome one. Sadly, he appears to be a boy who has serious issues of his own to have to deal with, including as to how he behaves at school and how he relates with his peers and adults around him, as well as his siblings. Without appropriate recognition of those issues by the mother, in my judgment, D will continue to struggle with those issues, particularly as he moves towards young adulthood, and I am not satisfied that the mother has demonstrated appropriate recognition of those issues or a true capacity to be able to properly assist D to deal with them.
By the detail of the parenting order the father proposed at the end of the trial, it appears that he and those around him and advising him are conscious of the need for the child to maintain relationships with her two siblings. An order is proposed that the father, the mother and the ICL arrange for the child to spend time with her siblings in the company of the father and “one or both of the Paternal Grandmother and the Maternal Grandmother” on a weekly or fortnightly basis. As I understand that proposal, it is for that to commence as soon as it can be arranged after the child moves to live in the father’s household.
Of course, when the child starts spending time with her mother again pursuant to the parenting Order that will be made, it is probable that she will be also spending time with her siblings. However, I recognise that then D will be at an age where he will probably be determining for himself those who he spends his time with. In the meantime though, it is, I am satisfied, in the child’s best interests to get to spend some time with her siblings if it is able to be arranged. It will also be in the best interests of those two siblings to see the child and spend some time in her company as well.
As the parenting Order I am going to make is a final one and not an interim one, it will be providing for the discharge of the ICL at some point in the near future. I will not do that immediately as I consider it to be in the child’s best interests to have the ICL inform the child of the Court’s determination and the parenting Order that is made and to facilitate, as part of that same process, the child’s move from her mother’s care to the father’s care pursuant to the Order. I will provide for the ICL to do that, at her discretion, in conjunction with Mr Y, if that can possibly be arranged. To facilitate same, the Order will require the mother to deliver the child to the father by way of delivering her, firstly, according to the direction of the ICL, to the ICL, who will then facilitate the transition to the father’s care.
After that has been achieved, the ICL will be discharged. I will not by Order require the ICL to broker arrangements for the child to spend time with her siblings. The Order will provide for the child to spend time with her siblings, to the extent that the mother agrees to make D and/or E available for such time, on a fortnightly basis until such time as the child is otherwise spending unsupervised time with the mother pursuant to the Order. The Order will require that time to take place for at least two hours on a Saturday or Sunday each alternate weekend, in the absence of the mother and the father but in the presence of either the father’s partner, Ms F, or the paternal grandmother, Ms G Dylan or both of those two women, as nominated by the father, at a time and place determined by the father after consultation with the mother, with the father to give the mother written notice (by text or email) of the arrangements for such time to occur by 7:00 pm on the Thursday evening before the weekend on which it is to happen and the mother to confirm her acceptance of those arrangements in writing (by text or email) by 7:00 pm on the Friday evening before the weekend on which it is to happen. In the absence of that written acceptance by the mother before each such alternate weekend, such time shall not happen.
D and E are not the father’s children. I will make a parenting Order that provides for them to spend time with the child in the manner that I have outlined only in the event that the mother agrees to make either or both of those two children available to spend time with their sister. I do not consider it proper to order her to make those two children available if she is not prepared to. I expect though that she will also consider that it is in the interests of all three children to get to see each other and spend some time with each other and express a sincere hope that it happens.
I acknowledge that my judgment in this difficult matter has been reserved now for just over one year since the trial finished and just over ten months since I received the last submissions. I also acknowledge the concern and likely anxiety this has caused the mother and the father and, no doubt, the other parties and all of their legal representatives. I regret that it has taken me this long to deliver my judgment. I attribute this to the difficulty of the issues involved that have required much consideration and the responsibility I have had for hearing and determining so many other not too dissimilar matters in the time since the lengthy trial in this matter finished.
In the end, I make the parenting Order set out at the commencement of these reasons, satisfied that it is proper and in the best interests of the child and acutely conscious of the onerous responsibility that rests with me in cases such as this.
I certify that the preceding three hundred and thirty-five (335) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 July 2015.
Associate:
Date: 22 July 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Injunction
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