EYLES & SENG
[2010] FamCA 602
•20 July 2010
FAMILY COURT OF AUSTRALIA
| EYLES & SENG | [2010] FamCA 602 |
| FAMILY LAW – CHILDREN – with whom a child lives – where the child lives with the mother – where there are allegations of physical and sexual abuse by the father – best interests – not satisfied on the evidence that abuse has occurred or that there is any risk of abuse – where there are concerns about the parties’ mental health – orders made that the child live with the mother and spend time with the father and that all parties seek therapy FAMILY LAW – CHILDREN – parental responsibility – whether the presumption of equal shared parental responsibility in s 61DA has been rebutted – where it is in the best interests of the child that the parties have equal shared parental responsibility |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZW, 69ZN & 69ZT |
| M v F (2006) 36 Fam LR 519 M & M (1988) 166 CLR 69 MRR v GR [2010] HCA 4 Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 |
| APPLICANT: | Mr Eyles |
| RESPONDENT: | Ms Seng |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | ADC | 4750 | of | 2008 |
| DATE DELIVERED: | 20 July 2010 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 19-22 Jan; 25 Jan; 27-29 Jan 2010 and 22-26 March 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Campbell |
| SOLICITOR FOR THE APPLICANT: | Helen Campbell & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Childs |
| SOLICITOR FOR THE RESPONDENT: | Adelaide Family Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Cocks |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Norman Waterhouse Lawyers |
Orders
The mother Ms Seng and the father Mr Eyles have equal shared parental responsibility for the child A born on … April 2004.
The child A live with the mother.
The parties cause the child to engage in therapy for the child to assist the child and support the child in having an ongoing relationship and spending time with her father including therapy which assists the child being informed that the Court found that the evidence does not support a finding that her father has sexually abused her or that she is at risk of sexual abuse from her father.
The mother and father take such steps to ensure that such therapy for the child commences within 28 days of this date.
That within 28 days of this date the mother do commence and thereafter continue therapy for herself to assist her in understanding and accepting the judgment and orders made herein, including promoting the therapy for the child and assisting her in supporting and encouraging the child’s relationship with the father and the child spending time with the father.
That within 28 days of this date the father to commence and thereafter continue therapy for himself directed to assisting him in:
(a)managing his emotions associated with being accused of sexually abusing the child;
(b)understanding the child’s responses to him, and to develop strategies in dealing with the child’s responses to him;
(c)learning strategies to manage his emotions;
(d)appreciating the impact of his behaviour on the mother and child (and in particular, the threats directed towards the mother by text message, his attendance at her home in June 2009 and the information that he was involuntarily hospitalised because of his violent thoughts directed towards the mother).
That the regime of therapy referred to above be undertaken as follows:
(a)with the child to attend upon Ms E, or if she is unavailable within a reasonable timeframe, such other psychologist (to be nominated by the Independent Children’s Lawyer) experienced in assisting children who have suffered trauma and who suffer from anxiety (with a preference that the psychologist be female and also have experience in reunifying families);
(b)with the mother to consult a separate psychologist, nominated by the child’s therapist;
(c)with the father also to consult a separate psychologist NOT EXCLUDING the psychologist he is already consulting, namely Mr W;
(d)the parties do all such acts and things to obtain appointments with psychologists for themselves and for the child as soon as possible, following delivery of judgment;
(e)the parties attend, and cause the child to attend, all such appointments for therapy as are directed by the therapists herein;
(f)the child’s therapist is at liberty to conduct appointments involving the child and either of her parents jointly.
The child’s therapist be at liberty to liaise with both the mother’s therapist and the father’s therapist AND the parties hereby authorise the release of information from their therapists and the child’s therapists to:
(a)the child’s therapist in the case of their own therapists; and
(b)the Independent Children’s Lawyer (in the case of all therapists).
All therapy undertaken pursuant to the orders herein be reportable.
Forthwith upon the delivery of judgment the mother use her best endeavours to obtain a mental health plan for the child in relation to the therapy referred to above.
The parties otherwise share equally in any costs associated with the child’s therapy.
The father pay the costs associated with his own therapy, and the mother pay the costs associated with her own therapy.
The mother is restrained and an injunction is hereby granted restraining her from informing the child of the purposes of the therapy and from supporting or promoting to the child the idea that she has been sexually abused by the father.
The mother take all steps necessary to ensure that the child spends time with the father as follows:
(a)commencing Sunday 22 August 2010 each alternate Sunday from 2.00 pm to 5.00 pm for three occasions;
(b)from Sunday 3 October 2010 each alternate Sunday from 10.00 am until 5.00 pm concluding on the last such alternate Sunday in the January 2011 school holidays;
(c)the time spent between the father and the child in sub-paragraphs (a) and (b) hereof is to be supervised by and in the presence at all times of either:
(i)the father’s sister Ms AH; or
(ii)one of the father’s parents Mr Eyles Snr or Mrs Eyles Snr;
(d)such supervision to conclude after the time spent on Sunday 14 November 2010;
(e)all handovers for the time spent referred to in sub-paragraphs (a) and (b) hereof are to take place by the mother delivering and collecting the child from the home of the father’s parents or as otherwise agreed by the parties in writing;
(f)from the commencement of the first school term in 2011 and thereafter:
(i)during school terms from the conclusion of school on the first Friday of the school term until the commencement of school on the following Monday in each alternate weekend; and
(ii)for half of all school holiday periods being from 5.00 pm on the first day of school holiday period to the following Friday at 5.00 pm and each alternate week thereafter;
(g)the handovers to take place during school terms take place by the father collecting the child from her school and returning the child to her school at the conclusion of time spent;
(h)on Christmas Day and the child’s birthday each year at times to be agreed between the parties or as ordered by the Court;
(i)at such other times as may be agreed between the parties;
Commencing on 2 February 2011 the mother ensure the child telephones the father (to a telephone number to be supplied by the father) each Wednesday evening when the child is not in the father’s care at approximately 6.00 pm.
The parties keep each other informed of their addresses and a contact telephone number and provide written notice to the other of any changes thereto.
The parties are restrained and injunctions are granted restraining each of them from:
(a)denigrating the other in the presence or hearing of the child;
(b)causing or permitting any other person to denigrate the other party in the presence or hearing of the child.
The father is restrained and an injunction is granted restraining him from:
(a)using any illicit drugs; and
(b)consuming any alcohol for twelve hours prior to, and the duration of, any periods of time he spends with the child.
It is a condition of the father spending time with the child that he:
(a)attend upon his general practitioner Dr S within fourteen days of judgment being delivered specifically to obtain advice upon:
(i)safe levels of alcohol consumption both generally and specifically in relation to the interaction of alcohol with the father’s prescribed medication;
(ii)his (the father’s) progress on his current medication.
The appointment of the Independent Children’s Lawyer is discharged from the 31 March 2011.
The mother not permit the maternal grandmother Ms Seng Snr to accompany her or the child to any of the therapy sessions for the mother or the child unless requested by the mother’s therapist or the child’s therapist.
If the maternal grandmother Ms Seng Snr assists the mother to deliver or collect the child on occasions when the father is spending time with the child the mother is to ensure that the maternal grandmother does not leave the car and to ensure that the maternal grandmother is not present during handover to the father or his relatives.
The mother is to ensure that the maternal grandmother is not present at the school at any time when handover is to take place at the school.
The parties (including the Independent Children’s Lawyer) are permitted to provide copies of the Judgment, the reports of Dr B and CPS report (Ms T) to the therapists and any treating doctor, psychologist or psychiatrist.
IT IS NOTED that publication of this judgment under the pseudonym Eyles & Seng is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4750 of 2008
| MR EYLES |
Applicant
And
| MS SENG |
Respondent
REASONS FOR JUDGMENT
Introduction
The proceedings concern the competing applications filed by the father Mr Eyles and the mother Ms Seng for parenting orders relating to their child A born in April 2004.
Applications
The father commenced proceedings on 1 December 2008 in the Federal Magistrates Court of Australia. The mother filed a response in January 2009 and an amended response in February 2009.
On 9 February 2009 the mother lodged a Notice of Child Abuse Form in which the following were alleged:
(6)The child [A] has alleged that the father has:
(a)touched her “front bottom” as she refers to her genitals;
(b)put her asthma sprayer in her vagina and sprayed her;
(c)defecated in his pant and made her smell it;
(d)put his penis in her bottom and ejaculated;
(e)ejaculated and/or urinated on her face;
(f)put his penis in her mouth and on her tummy;
(g)defecated on her face.
…
(10)See paragraph 6 above. I believe that if the child spends time with the father he will continue to sexually abuse her.
…
(14)The father has:
(a)pushed me to the ground and then kicked me in the back;
(b)verbally abused and threatened me;
(c)used foul language toward me.
…
(18)See paragraph 14 above. I believe that if the father has the opportunity to see or contact me I am at risk of further abuse and foul language.
On 6 March 2009 the matter was transferred to the Family Court of Australia and referred to the Magellan List.
At the commencement of the trial the father sought orders that both parents retain equal shared parental responsibility for the child, that the parties attend certain counselling, that the child live with the mother and spend time with the father.
The time the father proposed was initially to be supervised and then gradually increasing to alternate weekends and half the school holidays and other special occasions. The orders sought by the father specifically included the following:
“13.IF the Court finds that the Mother maliciously made statements up which she coached the child to repeat THEN:-
(1)that the said child to live with the Father; and
(2)that the Mother do spend such time with the said child as this Honourable Court thinks fit; and
(3)such further or other Order as this Court thinks fit.”
At the commencement of the trial the mother sought orders dismissing the father’s application, that the child live with her and that she have sole parental responsibility for the child.
Hearing
The trial commenced on 19 January 2010. The length of trial was estimated to be eight days. The trial proceeded on 19, 20, 21 and 22 January 2010; 25 January 2010; 27, 28 and 29 January 2010. The matter was adjourned part-heard. The trial resumed on 22 and continued until 26 March 2010 when judgment was reserved.
On 26 March 2010 the following orders were made pending judgment:
“Both parties attend the “Kids Are First” Parenting Program as soon as practicable and that each of them provide to the other and to the Independent Children’s Lawyer:
a)notice of enrolment; and
b)subsequently, a certificate confirming that party’s attendance and completion of the program.”
At the trial the father was represented by Ms Campbell, the mother by Mr Childs and the Independent Children’s Lawyer by Ms Cocks.
The mother relied upon her affidavit of evidence-in-chief filed on 11 January 2010, the affidavit of her mother, the maternal grandmother, filed on 11 January 2010, the affidavit of Ms JN (the child’s maternal aunt) filed on 11 January 2010, the reports of the mother’s and the child’s General Practitioner, Dr C of January, March and October 2009, together with the report of Ms Y of January 2010. Each of the above named witnesses gave oral evidence and was cross-examined.
The father relied upon his affidavit sworn in November 2008 and January 2010, the affidavits of his sister Ms AH, sworn in March 2009 and December 2009, the affidavit of his father, the paternal grandfather, sworn in January 2010 and the report of the Child Protection Service dated 1 December 2008,
The father and the above-named witnesses gave oral evidence and were cross-examined. The Court also heard the evidence of the father’s General Practitioner Dr S and the father’s psychologist Mr W.
The Independent Children’s Lawyer also relied on the Child Protection Service report of Senior Social Worker, Ms T, together with the reports of the Family Consultant, Dr B dated 26 June 2009 and 16 September 2009. Ms T and Dr B gave oral evidence.
Main Issues
When the matter was being prepared for the trial the main issue was the disputed allegation that the child A had been sexually abused by the father.
At the commencement of the trial and during the trial a significant issue arose in relation to the father’s capacity to provide care for the child because of alleged concerns about his mental health and alcohol abuse.
The Law
Part VII of the Family Law Act 1975 (Cth) applies to children. The objects of the part and the principles underlying it are set out in section 60B.
Section 60B
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views: and
(ii) to develop a positive appreciation of that culture.
Section 60CA provides:
Section 60CA
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out matters which the Court must consider when determining what is in the child’s best interest. The primary considerations are:
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
The additional considerations are set out in detail under section 60CC(3) which will be referred to later.
Section 61DA provides:
Section 61DA
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA provides;
Section 65DAA
Equal time
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
In this particular matter section 69ZW is relevant.
Section 69ZW
Evidence relating to child abuse or family violence
(1)The court may make an order in child‑related proceedings requiring a prescribed State or Territory agency to provide the court with the documents or information specified in the order.
(2)The documents or information specified in the order must be documents recording, or information about, one or more of these:
(a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;
(b) any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;
(c)any reports commissioned by the agency in the course of investigating a notification.
(3)Nothing in the order is to be taken to require the agency to provide the court with:
(a)documents or information not in the possession or control of the agency; or
(b)documents or information that include the identity of the person who made a notification.
(4)A law of a State or Territory has no effect to the extent that it would, apart from this subsection, hinder or prevent an agency complying with the order.
(5)The court must admit into evidence any documents or information, provided in response to the order, on which the court intends to rely.
(6)Despite subsection (5), the court must not disclose the identity of the person who made a notification, or information that could identify that person, unless:
(a)the person consents to the disclosure; or
(b)the court is satisfied that the identity or information is critically important to the proceedings and that failure to make the disclosure would prejudice the proper administration of justice.
(7)Before making a disclosure for the reasons in paragraph (6)(b), the court must ensure that the agency that provided the identity or information:
(a)is notified about the intended disclosure; and
(b)is given an opportunity to respond.
The above are the sections most relevant to these proceedings, however the Court takes into account all of the provisions of the Act and in particular Part VII.
In M & M (1988) 166 CLR 69 the High Court of Australia discussed cases dealing with allegations of sexual abuse and said:
“21.Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
22.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] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
23.No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
24.In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
25.Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, 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.”
In Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 the Full Court considered the authorities and at paragraphs 18 and 19 said:
“18.In setting out those authorities it does not appear that His Honour paid any attention to the views of the Full Court in WK v SR where the court emphasised the very high standard by which a court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
19.The termination of a worthwhile relationship between the parent and child ought to in most cases be the course of last resort. The court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The court needs to be (sic) remain conscious of this imperfection at all times.”
Division 12A of Part VII applies to these proceedings.
Section 69ZN provides:
Principles for conducting child-related proceedings
Application of the principles
(1)The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b) in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2)Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Section 69ZT provides:
Rules of evidence not to apply unless court decides
(1)These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:
(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3)Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i)the importance of the evidence in the proceedings; and
(ii)the nature of the subject matter of the proceedings; and
(iii)the probative value of the evidence; and
(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4)If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5)Subsection (1) does not revive the operation of:
(a) a rule of common law; or
(b) a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.
In M v F (2006) 36 Fam LR 519 at paragraphs 9 to 15 inclusive Thackray J sets out a useful summary of the approach to allegations of sexual abuse:
“Approach to allegations of sexual abuse
9.It is vital for the many people interested in [the child’s] welfare to understand the role of the Family Court in dealing with allegations of sexual abuse. The well-accepted maxim of our criminal justice system that “it is better for 10 guilty men to go free than one innocent man be convicted” has no application in a jurisdiction where the best interests of the child are the paramount consideration.
10.The approach adopted in cases involving sexual abuse allegations prior to the recent amendments was enunciated by the Full Court of the Family Court of Australia in In the Marriage of M and J M Bieganski (1993) 16 Fam LR 353 ; (1993) FLC 92-357 (Bieganski) and the High Court of Australia in M v M (1988) 166 CLR 69 ; 82 ALR 577 ; 12 Fam LR 606 ; (1998) FLC 91-979. The Full Court in Bieganski outlined the approach (at Fam LR 364; FLC 79,777–81):
“The Family Court is a civil court in which trial judges are required to hear and determine cases in the course of which evidence of the parties and their witnesses must be analysed and findings made based upon the civil standard of proof, that is to say, on the balance of probabilities.
It is not appropriate for judges of the Family Court to conduct cases in which allegations of child sexual abuse have been made as criminal trials which seek to establish the guilt or innocence of one of the parties in relation to allegations of sexual abuse with the consequential result being that if the allegation be proved, access will not be suspended, whereas if the allegation be not proved, then access will be ordered.
In the course of the hearing of a custody or access application, the court may make one of the following findings in relation to an allegation of child abuse:
(a) that the allegation is proved; or
(b) the allegation is not proved; or
(c) there is insufficient evidence to determine either (a) or (b).
Any such finding, however, may not necessarily be the determinant factor in the ultimate decision.
The issue for the court, in our view, is not whether a parent has sexually abused a child but whether in all the circumstances of the case access should or should not take place, following a consideration and evaluation of the various matters referred to in s 64(1), including any findings in relation to child sexual abuse, with the overriding principle being the paramountcy of the welfare of the child.
It follows, therefore, that the proper venue for the determination of the guilt or innocence of the parent of a child to an allegation of child sexual abuse is the State criminal courts and not the Family Court.
The law recognises two standards of proof — the criminal standard and the civil standard, although the civil standard may vary according to the gravity of the finding to be made as the following passage from the decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 ; [1938] ALR 334 at 342 demonstrates:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
In our view, the finding as to whether a child has or has not been abused and the finding as to whether a child will be at risk in the future if access occurs, must be arrived at following the application of the civil standard of proof, bearing in mind the above test when determining the gravity of the allegation.
11. In M v M, the High Court said (at CLR 78; ALR 583; Fam LR 611; FLC 77,081) that in cases involving allegations of sexual abuse:
“To achieve a proper balance, 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.”
12. The Full Court of the Family Court also gave the following advice in Re W (Sex Abuse: Standard of Proof) (2004) 32 Fam LR 249 ; (2004) FLC 93-192 ; [2004] FamCA 768 at [19]:
“The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The court needs to remain conscious of this imperfection at all times.”
13. The Full Court went on to cite with approval these observations of Kay J in In the Marriage of Koutalis and Bartlett (1994) 17 Fam LR 722 at 748–9 ; (1994) FLC 92-478 at 80,972:
“In cases of alleged sexual abuse, there is a significant risk that the ultimate effect of orders to be made by the court, and of the proper operation of the legal system, will be overlooked in the court’s anxiety to ensure that the risks of sexual interference are minimised. Where the evidence of sexual abuse consists of ambiguous statements of a pre-kindergarten aged child coupled with perceived but possibly otherwise explicable behavioural changes, it is almost impossible for the party denying any impropriety to prove that party’s position.”
In an article entitled “Prediction, Prevention and Clinical Expertise in Child Custody Cases In Which Allegations of Child Sexual Abuse Have Been Made”, appearing in Volume XXVI No 2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law), at p 170, it was observed:
“Unfortunately the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draw the clinician — and perhaps even judges and jurors as well … away from what ought always to be the starting point of her or his evaluation enquiries, which is that the event did not (or very highly probably did not) occur. Because the null hypothesis (and, correlatively the absence of an event) cannot be proved, in their testimonies concerning possibilities of alleged events, clinicians strongly resist exonerating the targets of their evaluation. Because it is always possible that a given individual — even one randomly drawn from the general or a specific population — has sexually molested a child, an inconvertible proof that the individual has not molested a child is impossible.”
The article concerns itself with research carried out at the University of Michigan. Case notes concerning the possible sexual abuse of a three year old child were provided to 8 senior clinical psychologists, 23 graduate students undergoing clinical training in psychology and 50 members of staff of child guidance clinics including social workers, clinical psychologists and psychiatrists all specialising in child development in areas of child mental health. They were asked individually and then in groups to evaluate the probabilities that sexual abuse had occurred and then to recommend what if any ongoing child/father contact should take place. The range of opinion on whether there had been abuse was so wide that the authors concluded as follows:
“The most striking feature of these studies’ findings is the extremely large range across experienced and non-experienced clinicians of estimates concerning the likelihood that M was sexually abused by her father. When given all of the relevant facts of the case, child experts and trainees varied greatly in their individual judgment … These findings lend strong support for the view that individual experts can provide courts little if any assurance that they are able to provide even crudely reasonable (ie objective) estimates of likelihood that child sexual abuse has occurred or will occur, when they are confronted with the same set of ambiguities faced by the courts in these cases.”
14. In commenting on these remarks of Kay J, the Full Court in Re W (Sex Abuse: Standard of Proof) (above) (at [21]) said:
“The lessons to be learned have not changed. The risk that the court will find heinous behaviour where none has occurred needs to be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.”
15. By virtue of the amendments, the objects of the Act now include the proposition that children’s best interests are met by protecting them “from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. This is hardly a novel proposition, and it echoes one of the factors previously taken into account under s 68F(2) of the Family Law Act 1975 (Cth). The elevation of this proposition from a factor to be taken into account, to an express object of the legislation, makes no difference to my obligation to make the order most likely to promote [the child’s] best interests. Accordingly, I do not consider the force of the authorities discussed above has been affected by the amendments. I therefore intend to keep those authorities firmly in mind.”
Relevant background and chronology
The father was born in 1971 and is therefore aged 38 years. The mother was born in 1974 and is therefore aged 36 years.
The parties commenced their relationship in approximately 1995 and resided together until 1998. Their relationship continued on and off without the resumption of cohabitation. They formally separated in 2004.
The parties allege different reasons for their separation. The mother alleges that the father regularly consumed drugs and alcohol which fuelled domestic violence and emotional abuse. The father disputes these allegations. The father says ongoing differences and difficulties were the cause of the breakdown.
The mother and the father suffer from ongoing anxiety disorders. They have both been prescribed anti-depressant medications to manage their conditions.
The child of the relationship, A, was born in April 2004 and is now aged 6 years.
The parties separated around the time of the child’s birth. After separation, the child remained living with the mother. The father had regular contact with her.
Following the birth of the child, the mother suffered from Post Natal Depression for approximately four months. The father alleges that the mother acted unreasonably by not allowing any visitors to the house shortly after the birth.
After visiting the child in late June 2004, the father became concerned about her lack of weight gain following her birth. He contacted Families SA to investigate the matter further after the mother refused to seek medical advice.
On the 22 of August 2004, there was a violent incident between the parties at the mother’s residence where the child was present. The incident was reported to Families SA on the 24 August 2004 who confirmed that the child may have been exposed to emotional harm.
The mother alleges that the father physically assaulted her in late September 2004 at her home following an argument. The father denies this.
The mother alleges that in or about October or November 2004 the father was drunk and asleep whilst the child was in his care. The mother was out socialising. The father says he was not intoxicated and his ability to care for the child was not compromised.
Despite these ongoing difficulties, the parties were able to come to an arrangement for the father to have regular supervised contact with the child either at the mother’s house or his mother’s house approximately two or three times a week. By November 2004, the father was permitted to have short unsupervised contact with the child away from the mother’s home.
Throughout 2005, 2006 and 2007 the father continued to spend regular time with the child either at the mother’s home, at his mother’s home or sometimes elsewhere.
The father alleges that the contact he had with the child was dependent on the state of his relationship with the mother. The father alleges that when the mother was upset with him she would limit or stop his time with the child.
In early or mid 2007, the father was permitted to have unsupervised overnight stays with the child at his mother’s house on numerous occasions while the mother went out.
By late 2007 and early 2008, it is alleged that the child had begun to use swear words. The father says that this occurred because the mother allowed the child to watch inappropriate television programmes. The mother is unsure as to where the child could have picked up such words.
The mother alleges that around this time she also witnessed the child on numerous occasions imitate a man urinating at the toilet.
During July or August 2007, the mother alleges she noticed personality changes in the child in that she had become quiet, withdrawn and uncharacteristically disobedient.
The father states in his affidavit dated the 16 January 2009 that the child seemed to be frightened and anxious when they came across her paternal grandfather and aunt at the shops.
In October 2007, the child commenced childcare at the R Children’s Centre. A staff member alerted the grandmother of the child’s apparent fear of the boys who also attended the Centre.
In about November 2007, it is alleged that the father sought to have the child for regular overnight visits. The mother refused. She said she was concerned about the father’s drug and alcohol abuse and the cleanliness and suitability of his house.
In early March 2008, an argument between the mother and the father occurred when the mother left the child overnight in the care of her paternal grandparents instead of the father, whilst the mother attended a wedding.
During 2005-2008, the father made numerous renovations to his home to accommodate the child. The father painted the child’s room, bought a child’s bed and installed air conditioning.
The father alleges that the child’s comments about her father’s home being “yucky and disgusting” and her refusal to stay there stem from the influence of her mother and her maternal grandmother.
The mother alleges that in approximately March 2008, the child started to appear frightened of the father and seemed reluctant to go with him during visits.
In mid-March 2008 the mother alleges that the child made comments to her, for the first time raising the possibility of sexual abuse by the father. The mother alleges that she contacted the father regarding the child’s comment which the father dismissed as untruthful.
Following this, the mother stopped contact between the father and the child. The father alleges that the mother stopped the father from seeing the child in response to the father’s requests for overnight visits.
The child commenced kindergarten at R Kindergarten in 2008 shortly after her fourth birthday.
In May 2008, the Kindergarten Director notified the maternal grandmother of her concerns about the child’s fear of boys and her fear of using the toilet.
In an attempt to resolve the issues about the child, the parties attended a mediation conference at the Legal Services Commission on the 21 July 2008. A temporary agreement was reached which allowed the father to see the child every Sunday during the day pending a further mediation session to review the situation a month later.
Both parties agree that the visits went well.
During the period 16 to 22 August 2008 the mother alleges that the child made further disclosures of sexual abuse by the father. She also says that she observed further displays of sexualised behaviour by the child.
The mother ceased the child’s contact with her father on 16 August 2008 after seeking advice from the Child Abuse Report Line.
The maternal grandmother contacted Families SA in relation to the child’s allegations and the matter was then referred to the Child Protection Service.
Some time during the period 19 to 22 August 2008 it is alleged that the child told her mother that she had licked “Daddy’s willy” at her Aunt’s house and that her cousins, X and Z had witnessed it.
On about 20 August 2008 the maternal aunt recounted to the mother an incident on the 3 August 2008 where she had found blood in the toilet bowl after the child had used it.
The mother and the child were interviewed by the Child Protection Service on occasions in August and early September 2008.
On 28 August 2008, the father was notified that Child Protection Service were carrying out an investigation
During the period 18 to 23 September 2008 the mother took the child to Dr C to have tests conducted. The test results identified trace amounts of blood in her urine but were ultimately inconclusive.
From 18 to 31 September 2008, the mother alleges that the child made further, more detailed disclosures and comments about her father’s alleged sexual behaviour.
In October 2008, the child was asked to tell Dr C what she had disclosed to her mother.
On 24 October 2008, Child Protection Service notified the father that no disclosures had been made by the child during the interview and that they were concluding the investigation.
The Child Protection Service Assessment Report dated 1 December 2008 concluded that:
“At the conclusion of the current assessment the CPS was unable to clarify the nature of the reported allegations that [the child] had experienced sexual abuse by her father as [the child] did not provide any information which supported that fact. What was consistent from both [the mother] and [the father] was that [the child] had engaged in some sexualised behaviours (for example, attempting to kiss her family members in an adult fashion). …At the conclusion of the CPS assessment the CPS remain concerned about the level of insistence [the maternal grandmother] demonstrated throughout the current assessment regarding her granddaughter providing information to the CPS.”
The report concluded by referring to concerns about the child’s emotional wellbeing connected to the mother’s difficulties in managing her mental health and which had impacted on the child’s ability to regulate her own emotional affect.
The report also concluded with references to the personal issues of the parents and maternal grandmother at page 23:
“The CPS was of the view that [the mother], [maternal grandmother] and [father] need to manage their personal issues with one another away from [the child] and in a way that did not impact upon [the child’s] views and relationships with either parent. Put simply, [the mother], [maternal grandmother] and [father] needed to be supportive of [the child] sharing positive relationships with both her mother and father despite the fact of their separation. Given that the concerns raised about sexual abuse were not supported during this assessment, it would appear that [the child’s] interest will be best served and enhanced by participating in a caring and nurturing relationship with both of her parents.”
The father filed an application in the Federal Magistrates Court on 1 December 2008.
It is alleged that from October 2008 to February 2009 the child continued to make disclosures of sexual abuse to both her mother and her maternal grandmother.
The mother alleged that from March to June 2009 there were incidents of harassment directed at herself and the maternal grandmother by the father.
On 5 June 2009 the Family Consultant interviewed the mother, father, maternal grandmother and observed the interaction between the child and her father, the child and her mother and the child and the mother and maternal grandmother.
During the interviews with the Family Consultant, the child made further disclosures.
The father was upset and concerned about the reaction of the child to him during the interaction observed by Dr B, the Family Consultant on 5 June 2009.
He sent abusive text messages to the mother. He drove up to her home. There is some dispute about the level of his offensive behaviour on this occasion, however the mother alleges that she and her neighbour saw and heard the father driving into her driveway and shouting abuse at the mother.
The next day on 7 June 2009 the father drove to the maternal grandmother’s home, pulled up in front of her house and tooted his car-horn. He then drove to the mother’s home again.
The mother alleges that the child observed the behaviour and was scared.
The mother and maternal grandmother reported this behaviour to the police.
The father admitted that he was angry with the mother and maternal grandmother.
On 7 June 2009 he visited a medical centre saying he wanted to have some help because of his anger.
He was recommended to attend and agreed to attend Flinders Medical Centre. He said that he informed the Flinders Medical Centre that he was frightened he would do “something stupid” and that he “felt dangerous”.
After assessment at Flinders Medical Centre he was detained and not discharged until 8 June 2009 at 5.00 pm. Since then he has had various appointments with psychiatrists and psychologists. The Court has heard the evidence of his General Practitioner, Dr S and his psychologist, Mr W.
The incidents at the mother’s home and grandmother’s home in early June 2009 were referred to in the affidavits filed on behalf of the mother, but the significance of these incidents and the resulting issue of the father’s mental health developed after the commencement of the trial.
Following further telephone interviews later that month the Family Consultant’s first report of 26 June 2009 was completed.
As a result of the Family Consultant’s conclusions it was recommended that the Family Consultant’s report not be released to the parties until the possibility of a further Child Protection Service interview was considered.
The Family Consultant’s report also referred to the extreme level of fear displayed by the child during the interaction between the child and her father in the presence of the Family Consultant.
The mother alleges that the child continued to make disclosures of sexual abuse by her father.
The paternal grandparents, Mr and Mrs Eyles Snr, commenced proceedings seeking to spend time with their granddaughter. In early September 2009 the Family Consultant conducted interviews with the paternal grandparents, a brief interview with the mother and observed the interaction between the child and her paternal grandparents at which the mother was also present.
The Family Consultant’s report of 16 September 2009 recommended that the paternal grandparents spend regular time with the child for a period of one to two hours each week, initially with the mother present and then, after a period, without the mother’s presence.
Interim orders were made in the Family Court by consent for gradual increased time between the paternal grandparents and the child and initially in the presence of the mother. On 24 November 2009 final consent orders were made in relation to the grandparents application which provided as follows:
“BY CONSENT IT IS ORDERED THAT:
1.The paternal grandparents shall spend time with the child [A] born […] April 2004, at such times as are agreed between them and the mother.
2.In the event the parties are unable to reach agreement for the time to be spent pursuant to Paragraph One above, the paternal grandparents spend time with the said child from 12.00 pm to 5.00 pm on one out of every four Saturdays.
3.The mother be at liberty to remain in the child’s presence during such time referred to in Paragraph One (1) and Two (2) above.
4.Handovers for the purpose of the time referred to in Paragraphs One (1) and Two (2) above take place at the mother’s residence unless otherwise agreed.
5.That subject to any subsequent order made by this Honourable Court, the paternal grandparents are restrained, and an injunction is hereby granted restraining each of them from permitting the child to have contact in any manner (whether personally or by way of communication) with the father.
6.The paternal grandparent’s Application filed 1 July 2009, otherwise be dismissed.”
Since then the paternal grandparents have spent time with the child in the presence of the mother.
Initially the Court ordered that the Family Report in relation to the father’s application only be released to the Independent Children’s Lawyer and the Child Protection Service. The report of Dr B dated 26 June 2009 was finally released to the parties in early December 2009.
The mother has continued to have the assistance of Dr C and Ms Y, Mental Health Social Worker for her anxiety and depression.
The father has continued to consult Dr S and Mr W.
Assessment of evidence and findings.
Sexual abuse allegations
The first allegation arose in March 2008. The affidavit of evidence-in-chief of the mother states:
“58.In mid March 2008, [the child] and I were sitting on my lounge together when she started touching me. In particular, [the child] kept trying to touch my genital area and my breasts. I kept telling her to stop doing so.
59.[The child] then said to me ‘Daddy touched my front bottom.’ I understood [the child’s] reference to ‘front bottom’ to be her genital area, as that is the word she regularly used to describe that part of her body.
60.I did not question [the child] about what she had said and, at that point, she did not disclose anything further.
61.I rang the father and told him what [the child] had said and asked him why she would say that. The father told me to ‘not be stupid’ and then asked me how I could even think of something like that.”
Subsequently the parties attended mediation. An agreement was reached providing for the father to spend time with the child during the day on weekends. Their proposal was to gradually increase the time the child would spend with the father.
Subsequently there were approximately three occasions when the child visited the father.
The mother’s evidence-in-chief in her affidavit continues as follows:
“80.On 16 August 2008, [the child] was acting in a sexualised way towards me.
81.I recall that I was sitting in my lounge room and [the child] approached me and said “Lets’ (sic) put tongues together”, to which I replied “No”. [The child] was persistently trying to make her tongue touch my tongue and kiss my lips. I told her to “stop it”.
82.Around mid afternoon [the child] was sitting on my lap when she tried to kiss my breasts, lick my neck and put her tongue in my ear. I told her off, and she said “I want to touch your boobies.” [The child] then attempted to put her hands near my genital area. I told her to stop doing that, I didn’t like it.
83.I told [the child] that nobody is allowed to touch you here [pointing to my breasts], here [pointing to my genital area], here [pointing to my bottom] and here [pointing to my lips].
84.I then said to [the child] ‘Nobody is allowed to touch your bottom, your front bottom, your boobies or to kiss you on the lips, okay?’
85.[The child] said to me ‘Well you know what Daddy does to me?’ She then went in to her bedroom and came back with her asthma ventalin (sic) spray.
86.[The child] said to me ‘Daddy puffs my spray into my front bottom and it stings me’ and ‘Daddy does wee wee’s on my face.’
87.I was shocked and very upset by [the child’s] disclosures and immediately rang my mother who was at work at the time. My mother came to my house as soon as she finished work.
88.My mother said to [the child], ‘what happened darling, tell Nanna what Daddy did to you.’
89.[The child] said to her “Daddy sprays his puffer into my front bottom and it stings me.” She then said “and he did wee wees on my face.”
90.At about 4.15 pm, my mother rang the national Child Abuse Report Line (hereinafter referred to as ‘CARL’) and spoke to a woman in Sydney. She was advised to cease all contact between [the child] and the father.
91.My mother then rang [the paternal grandmother] and asked her to tell the father we would not be sending [the child] tomorrow because we were very concerned about what [the child] was saying to us about him.”
…
Her affidavit continued:
“MY MOTHER ASKS [THE CHILD] WHAT HAPPENED
94.On 17 August 2008, [the child] and I spent the day with my mother. My mother and I agreed that in addition to reporting [the child’s] disclosures to CARL, we had to also advise Families SA, as they were local.
95.My mother asked [the child] why she didn’t tell me what had happened. [The child] said “Daddy said Mummy would be angry.” She also said “Daddy said if I tell Mummy, he will chop me up in pieces and put me in the rubbish bin” and “Daddy said I will not see mummy again if I tell her and this is what Daddies do.”
96.[The child] then said “Daddy put his bottom in my bottom”. This did not make sense to my mother so I explained to her that [the child] calls her genital area ‘front bottom’ and her bottom her ‘back bottom’.
97.My mother then explained to [the child] that a boy’s ‘front bottom’ is called ‘willy’.
98.My mother asked [the child] if she was tricking. [The child] said “not it really, really, happened, Daddy did wee wees on my face.”
99.I recall that my mother said to [the child] “who cleaned your face?” to which she replied “Daddy gave me the face washer”.
100.That day, [the child] also made the following disclosures to me. That:-
(a) “Daddy made me smell his bottom”;
(b) “Daddy was touching my front bottom”;
(c) “Daddy did a wee in my front bottom”;
(d) “Daddy licks my back bottom inside”;
(e) “He made me sniff his willy, it smelled like wee and poo”;
(f) He does poos in his pants and makes me smell it”;
(g)“Daddy sat on me and was rubbing himself on me and making noises like he was vomiting”;
(h)“Daddy told me it was a secret and for me not to tell Mummy because Mummy will get angry”; and
(i)“Daddy stands in front of his window and pulls his pants down and shows his bottom to me”.
101.On 18 August 2008, I asked my mother to ring Families SA. She was advised that they would direct our matter to the [local] branch. I did not ring the Police as I though Families SA would do so once I had spoken to them.
[THE CHILD] MAKES MORE DISCLOSURES
102.I say that the father’s sister, [AH], has two daughters named [X] and [Z].
103.Between about 19 August 2008 and 22 August 2008, [A] made further disclosures to me. [The child] told me that while she was at [X’s] party, the father was in the lounge and he made her lick his ‘willy’ and [Z] and [X] ran in and saw her.
104.[The child] went on to say that [Z] then ran and told [AH] what they had seen.
105.[The child] also told me that-:
(a) “Daddy made me smell his willy and he smelt horrible”;
(b) “Daddy pushes me”;
(c) “Daddy farts on my face and poos on my face”;
(d) “Daddy’s house smells like poo”; and
(e)“Before Daddy took me to Aunty [AH’s], he put me on his sofa and did wee wee on my face”.”
Subsequently the child was interviewed by the Child Protection Service in late August 2008 but did not make any disclosures.
The mother’s affidavit refers to further disclosures and states as follows:
“[THE CHILD] MAKES FURTHER DISCLOSURES TO ME
120.On 18 September 2008, [the child] said to me “Daddy hurt my back.” I asked “Did he?” to which she replied “yes, Daddy hurt my back, going mmm, mmm when he rubbed me.” [The child] then got me to lay on the floor and show me what the father did to her. She bounced on my lower back and said “Daddy said fuck my arse.”
121.At around this time, [the child] also told me that “Daddy takes me in the car and takes my clothes off and he takes his off.” Further, I recall one particular occasion at around this time when [the child] and I were in my lounge room and she crawled across the coffee table saying “oooh, sexy” then “I’m going to fuck you up.”
122.On 31 September 2008, [the child] made the following disclosures to me. That-:
(a)“Daddy said to me that he is going to lick my boobs. He told me I was a sexy girl”;
(b)“Daddy did a poo on my face”;
(c)“Daddy told me he was going to fuck me up”;
(d)“Daddy licked my neck and put his tongue in my ear”;
(e)“Daddy told me that he is going to chop me up and put me in the rubbish bin”;
(f)“Daddy told me he would lock me outside and I will never see Mummy again”; and
(g)“Daddy did a wee on his carpet on the lounge room in front of me”.
123.Further, at around this time, every so often [the child\ spontaneously made the following disclosures to me. That:-
(a)“Daddy tied my hands up and kissed my lips.” [The child] crossed her hands at her wrists and said the father had tied them that way;
(b)“Daddy sucked my boobs”; and
(c)“Daddy made me change his nappy.” [The child] then laid down on the floor of my lounge room, put her legs up in the air, sticking her bottom out and said “like this Mummy, he had no clothes on.”
[THE CHILD’S] COMMENT ABOUT THE CANDLE
124.On 5 October 2008, I was at home with [the child] when we had a power blackout so I used a tall white candle for light.
125.When the power returned [the child] said to me “Mummy, that looks like daddy’s willy, with all that stuff on the side” and pointed to the wax that had dripped down the candle.
126.I asked her what she meant and she said “that looks like the stuff that comes out of daddy’s willy.”
[THE CHILD] MAKES DISCLOSURES TO DR [C]
127.On 16 October 2008, I took [the child] back to Dr [C] because, what I thought was her chicken pox (as diagnosed by a locum doctor at the [local] Medical Centre) were not clearing up. Dr [C], said it was not chicken pox, but rather, a skin infection and prescribed antibiotics.
128.While we were with Dr [C], I said to [the child] “Do you want to tell Dr [C] what you told me about Daddy?” [The child] seemed reluctant at first so I told her it was okay.
129.[The child] then said to Dr [C] “daddy put his willy in my mouth and weed in my mouth – it was yukky – I spat it out.”
130.Dr [C] asked “How many times has he done that?” to which [the child] replied “Lots of times. I told him not to.”
131.[The child] then said to Dr [C] “Daddy also did poo on my face.”
MORE DISCLOSURES FROM [THE CHILD] TO ME
132.On 19 October 2008, [the child] said to me “Daddy said to me ‘look what you did you fucker, I’m going to fuck you in the arse.’ He called me a ‘bitch’ ”.
[THE CHILD] MAKES MORE DISCLOSURES TO DR [C]
133.On 23 October 2008, I took [the child] back to Dr [C] to have her skin infection looked at following her course of antibiotics.
134.While we were with Dr [C], [the child] said to her “Daddy put his willy on my tummy and weed on my face and in my mouth” and, “Daddy put his finger into me [then pointed at her genitals] lots of times.”
135.Dr [C] replied “Why didn’t you tell your mummy?” [The child] said to her “Daddy told me not to or I’d be in trouble.”
136.On 6 November 2008, I again took [the child] to see Dr [C], to again check the progress of her skin rash and to have her immunisation shots.
137.On this occasion, [the child] said to Dr [C] “Daddy kissed my lips and neck. He wee-ed and poo-ed in my legs and my mouth and made me spit it in the toilet.
…
[THE CHILD] MAKES MORE DISCCLOSURES TO ME AND MY MOTHER
141.In November 2008, my mother was showing me some of her photos. [The child] was present at the time and suddenly said to us “Daddy takes photos of me” to which my mother replied ‘Oh’.
142.[The child] then again said “he takes photos of me” and pointed to her genital area. My mother asked [the child] “has Daddy got a camera?” to which she replied “no, he did it with his mobile phone.”
[THE CHILD] MAKES ANOTHER DISCLOSURE TO MY MOTHER
143. In December 2008, my mother told me that [the child] was playing with her dolls and again talking about the father taking photographs of her. [The child] then said to her “like this Nana” and placed the head of one doll between the other doll’s legs. She then said “When Daddy takes photos of me he squirts my tummy.”
144.On 17 December 2008 my mother and I attended for an appointment with Dr [C]. I told her about [the child] using her dolls to demonstrate to my mother what the father had done, and also about her disclosure that the father takes photographs of her.
…
ANOTHER DISCLOSURE FROM [THE CHILD]
163.In about late September 2009, my mother, father, [the child] and I were watching television together when a Bunnings advertisement came on in which an animated giant man stands next to a very small man. The giant man then places the small man on a hook on the wall.
164.My mother pointed to that character and said to [the child] ‘Look at the poor little man hanging on the hook’. [The child] became upset and said she didn’t like it because “Daddy hung me on a hook behind the door.”
165.My mother said “No, [A]” at which point [the child] became upset. My mother asked her to show her if it was like the hook in her bedroom, which is a multiple hook behind the door.
166.[The child] said “No, like the one in the bathroom”, which is a single hook.”
The affidavit evidence of the maternal grandmother referred to sexualised behaviour and the concern she had about the child.
The grandmother’s affidavit includes:
“MORE DISCLOSURES FROM [THE CHILD]
45.On 16 August 2008, [the mother] rang me and she was very upset. [The mother] was trying to explain to me what [the child] was doing to her, she said [the child] had said to her that her father sprayed her bottom with the ventolin spray and it stung her and he was putting his tongue in [the child’s] ear. I could not understand what [the mother] was saying so I went to her house after I finished work.
46.I said to [the child], ‘what happened darling, tell Nanna what Daddy did to you.’
47.[The child] said “Daddy sprays his puffer into my front bottom and it stings me. She then said “and he did wee wees on my face.”
48.I then ran the national Child Abuse Report Hotline and was advised to tell [the child] to cease all contact between [the child] and the father.
49.At about 4.30 pm that afternoon, I rang the paternal grandmother and said “Could you please pass a message on to [the father] and tell him we are not sending [the child] tomorrow because we are very concerned about what she was saying to us about her father.”
50.On 17th August 2008, I asked [the child] why she didn’t tell [the mother] what had happened and she said “Daddy will chop me up in pieces and put me in the rubbish bin.” She then said “Daddy said I will not see mummy again if I tell her and this is what Daddies do.”
51.I remember [the child] then saying to me “Daddy put his bottom in my bottom.” [The mother] explained to me that [the child] called her genital area ‘front bottom’ and her bottom her ‘back bottom’.
52.I told [the child] that a boy’s ‘front bottom’ is called a ‘willy’.
53.I asked [the child] if she was tricking. [The child] said “no it really, really, happened, Daddy does wees on my face.” I asked [the child] “who cleaned your face?” to which she replied “Daddy gave me the face washer”.
54.On 18 August 2008, I rang Families SA, as [the mother] had asked me to do so. I was advised by them that they would direct our matter to the [local] branch.
…
INTERVIEW WITH CHILD PROTECTION SERVICVES (‘CPS’)
59.In late August 2008 [the child], [the mother] and I were interviewed by CPS. Following our interviews, the CPS workers told us [the child] had not disclosed anything. [The child] was in the waiting room at the time and we could hear that she was becoming upset.
60.I went out to [the child], and said to her “You did not tell [Ms T] (the CPS worker) what Daddy did to you”. [The child] said “I will Nana” to which I replied “will you?” [The child] said “I will.” I say that I was with [the child] for a bout twenty seconds.
61.I then took [the child] back to the room and said “[the child] wants to say something to you”. The report writer said “No, not now, the investigation is over” and refused to listen to what [the child] had to say.
62.On the way home from the CPS interviews, [the mother] commented that the father will want to go back to mediation to spend time with [the child].
63.[The child] was in the back seat of the car. She became very upset and started screaming “I don’t want to see him, he’ll do that to me again!”
…
MORE DISCLOSURES FROM [THE CHILD] TO [THE MOTHER]
80.[The mother] told me that, on 18 September 2008, [the child] said to her “Daddy hurt my back” to which she replied “Did he?” [The child] then said “yes Daddy hurt my back, going mmm, mmm when he rubbed me.” [The child] then got [the mother] to lay on the floor, bounced on [the mother’s] lower back and said “Daddy said fuck my arse.”
81.[The mother] also told me that, at around this time, [the child] had said “Daddy takes me in the car and takes my clothes off and he takes his off.” Further, [the mother] told me that when she was in the lounge room with [the child], she crawled across the coffee table saying “oooh, sexy” then said “I’m going to fuck you up”.
BLOOD DETECTED IN [THE CHILD’S] URINE & BLOOD STAINED UNDERPANTS
82.On about 20 August 2008 [the mother] told me that my other daughter, [JN] (hereinafter referred to as ‘[JN]’), told her that when she was at [the mother’s] house on 3 August 2008 and had bathed [the child], she noticed there was blood in the toilet after [the child] used it, prior to her bath.
83.When [the mother] tole me about this, I asked [the child] if she remembered it, [the child] said “Yes, Daddy put it there” to which I replied “Oh, who cleaned it?” [The child] then said “Daddy put the pump soap on the toilet paper and cleaned me.”
…
[THE CHILD] TELLS ME THAT THE FATHER TAKES PHOTOGRAPHS OF HER
96.In about November 2008 I was discussing photos with [the mother] and in particular, showing her some of my recent ones. [The child] was present at the time and suddenly said to us ‘Daddy takes photos of me’ to which I replied ‘Oh’.
97.[The child] then said ‘he takes photos of me’ and pointed to her genital area. I said to [the child] ‘has Daddy got a camera’ and she said ‘no, he did it with his mobile phone.’
[THE CHILD] USES HER DOLLS TO SHOW ME WHAT HAPPENED
98.In about December 2008, [the child] was playing with her dolls and said to me ‘like this Nana’ and placed the head of one doll between the other doll’s legs. She then said ‘Daddy takes photos of me and he squirts my tummy.’
FURTHER SEXUALISED BEHAVIOUR
99.In around February 2009, I was at [the mother’s] house with her and [the child]. We were in the lounge room and [the child] and I were sitting on the couch.
100.[The child] started to try to kiss me on the lips. I told [the child] to only hug me. She then moved from the couch to the floor and spread her legs out.
101.[The child] then said “This is what Daddy does to me” and pulled her underwear aside. She then said “He puts his willy there” and placed her hands down near her genitals and started making a rocking back and forth motion.
...
FURTHER DISCLOSURES FROM [THE CHILD]
116.In about late September 2009, [the child] was watching television with me, [the mother] and my husband when a Bunnings advertisement came on in which an animated giant man stands next to a very small man. The giant man then places the small man on a hook on the wall.
117.I pointed to that character and said to [the child] ‘Look at the poor little man hanging on the hook’. [The child] became upset and said she didn’t like it because ‘Daddy hung me on a hook behind the door.’
118.I thought she must have been mistaken as that simply did not seem possible, given her size. I said ‘No [A]’ at which point she became upset so I asked her to show me if it was like my hook in my bedroom [a multiple hook behind my door]. She said came (sic) to look at that hook then said ‘No, like the one in the bathroom’ [which was a single hook].
Dr C’s reports also refer to statements made by the child at various interviews.
The father has consistently denied any inappropriate behaviour.
The interviews conducted by the Child Protection Service Flinders Medical Centre (“CPS”) were conducted on the 5 September 2008 and 11 September 2008. The mother and maternal grandmother were interviewed. The father was also interviewed. Feedback sessions were conducted for the mother, maternal grandmother and father.
During the forensic interview conducted with the child, the child said when discussing spending time with her father “he doesn’t do anything …he really doesn’t do anything” (bottom of page 19 of the CPS report).
When specifically discussing touches on different parts of her body, the child identified her vaginal area as her “front bottom”:
“[The child] also stated that she had received tickles to her belly-button, arms and boobies from her mother and that these were touches that she had liked. In response to touches to her front bottom, [the child] identified that this was also another part of her body that her mother had touched and that her mother “hits it, no she tickles it too”. [The child] reported that when her mother touched her front bottom this was something that was “funny” and that when her mother touched her on that part of her body her mother used “nothing” to touch her there. With regard to whether anyone else had touched her front bottom, [the child]stated “um …no”. In terms of touches she had received to her back bottom, [the child]reported that her mother had “sometimes” touched her on that part of her body and that when her mother did this she stated her mother “does anything, she does anything she wants to do”. In relation to what her mother touched her back bottom with, [the child]stated “nothing” and in response to whether someone else had touched her back bottom [the child]said “no”. In response to the boy body diagram, [the child] when asked questions about having seen or asked to touch a male front bottom (penis) before she stated “no”. (Emphasis added)
In early June 2009 when the child was five years old she was interviewed by the Family Consultant, Dr B. The Family Report contains the following:
“[The child] and her relationships
…
38.When asked what she liked doing with each person, she stated that she liked ‘cooking, going out walking with her, and playing with […] my bird with her.’ With her nanna she liked ‘going to her house and sleeping at her house, and playing with her’. She liked ‘going in the car’ with her puppa, and ‘sometimes driving to nanna’s house. She also enjoyed playing with her cousins, [U], [V] and [W]. When asked about her father she started to intently concentrate on her drawing and started to vigorously colour in each of the people she had drawn. She paused for sometime and when prompted she stated that she like ‘games’ with her father such as ‘chasey’. [The child] then stated, ‘I don’t know, haven’t seen him for a while, don’t know if I want to see him’.
39.The writer utilised a set of emotion cards and asked [the child] how she felt when she was with each of the people she had drawn. She was able to choose between happy, sad, scared or frightened, angry and neglected/rejected. She selected cards that demonstrated that she felt happy with her puppa, nanna, [U] and very happy with [V]. She was also happy with her mother but also sad if her mother got cross with her. [The child] volunteered that at times her nanna pretended to cry. When asked about her father she did not select a card but stated ‘I go to school so I don’t have time’. She paused and looked very wide eyed and stated, ‘I just want to stay with mummy, I don’t miss him. I only love mummy. He’s not nice to me.’ She again paused, very wide eyed and stared in to the writer’s eyes and for several seconds and without breaking eye contact she said, ‘He did naughty things to me. One day he did a wee on my face and he always hurts me when I go to see him. That’s s why my mummy doesn’t want me to see him’. She paused, then stated ‘He sometimes hurt me and [Q], sometimes he would do a wee on her back and her bottom.’
40.[The child] described the wee on her face as ‘stinged my eyes – he also sprayed the spray you have for colds on my bottom and I didn’t like it’. She described the wee as ‘gooey’ and ‘sticky’. She thought it was yellow, and it felt ‘a bit warm and a bit cold’ and smelled like a ‘toilet smell’. When asked what she did, [the child] stated, ‘I just got it off’. She stated that it was just on her face, there was none on her clothes or her hair. She then stated, ‘He pushed me over and just did a wee’.
41.Still looking very serious [the child] stated, ‘This was a long time ago that I told mummy. He tied me up. He had a scarf and some ropes.’ When asked how she got out, [the child] stated ‘I got myself out – he did hurt me though. All the time he used to hurt me and mummy didn’t know’. With the same blank look she added that ‘he sprayed perfume down my bottom. He put his willie in my mouth – he did a wee on my left and my arm one time. Two times he did a poo on my face.’ When asked what did she do? [The child] demonstrated wiping something off her face and said ‘I don’t like that’.
42.[The child] stated that she did not want to see her dad but the writer was able to get her to agree as long as the writer was present.
Observed interactions between children and parents
[The father] and [the child]
43.[The child] was present in the assessment room with the child care worker when her father entered. They were at the end of the room writing on the white board. When [the father] entered [the child] put her head down and turned to face the white board and stood very still, she appeared frozen, and did not acknowledge her father’s presence. [The father] sat on the couch. After approximately 30 seconds [the child] moved very quickly with her head down in a direct line for the door. When she got there the door was shut and she moved back to the central table where a gluing activity had previously been set up by [the child] and the child care worker. [The child] attempted to concentrate on the activity. Her father asked what she was doing. [The child] put down the glue brush and still with her head lowered moved to the writer and placed her head on the writer’s arm, furthest away from her father, and cried. She was shaking and obviously distressed and had not said a word. The writer ended the observation which had lasted only a few minutes. The writer took [the child] from the room and placed her in the care of the child care worker. [The child] was still upset ten minutes later when her mother arrived. The child care worker reported that [the child] had been very distressed, crying and shaking, for some time after her father left.”
I accept the evidence of Ms T that the child’s distress could be explained by reasons other than sexual abuse. Ms T’s evidence included the possibility that the child was concerned about upsetting her mother if she showed any affection or interest in her father and that the child may be concerned that the father had been made aware of the terrible things she had said about him.
The father strongly denied all allegations of any improper behaviour towards the child. On behalf of the father it was alleged that either the mother had deliberately or maliciously coached the child into making the allegations or she had unknowingly caused the child to make the statements, but willingly believed and promoted the false allegations thereafter.
It is necessary for the Court to weigh carefully all of the evidence before it and in particular the context of the statements made by the child. Taking into account all of the evidence (and weighing the same carefully in accordance with the provisions of the Evidence Act 1995 (Cth), Family Law Act 1975 (Cth)) it has not been established that the child has been sexually abused by the father or that there is an unacceptable risk of sexual abuse by the father.
The evidence before the Court does not establish that the mother has deliberately or maliciously coached the child to make false statements of sexual abuse. The evidence however does indicate that the mother has readily interpreted statements made by the child as indicative of sexual abuse whilst placing little emphasis upon or disregarding the child’s more fanciful and imaginative allegations. The mother has not shown an understanding of the impact of her questioning, responses and encouragement of the child.
The maternal grandmother has also behaved in a way which could be seen as encouraging the child to make negative statements about her father. In particular, the maternal grandmother’s insistence that the child talk to others about the allegations on two different occasions (after the forensic interview by Ms T of the child and during the telephone conversation between the mother, the maternal grandmother and Ms T). The evidence of the maternal grandmother supports a conclusion that the maternal grandmother willingly encouraged the child to make the abuse allegations and continued to encourage the allegations because of the high level of animosity between the maternal grandmother and the father.
The behaviour of the mother and maternal grandmother has therefore had a significant detrimental affect upon the relationship between the child and her father. The behaviour of the mother and maternal grandmother, whilst not deliberate, appears to have been negligent or lacking insight to the extent that it has caused the child the psychological and emotional stress of being fearful of her father.
Family Violence
The mother alleged the father was verbally and emotionally abusive towards her during the relationship. The father admitted that there were many arguments and that the relationship was volatile. He did not accept sole responsibility for the difficulties.
Paragraph 11 and 12 of the mother’s affidavit of evidence-in-chief (document 47) states:
“11.I recall one night, post separation, when [the child] and I stayed with the father at his house. The father and I argued and he pushed me around. I rang my mother, [the maternal grandmother] (hereinafter referred to as ‘my mother’) and she came to collect us.
12.Another night, in early September 2004, the father came to my house. We argued and the father tried to strangle me. He then pushed me to the ground and kicked me in the back.”
The mother’s affidavit of evidence-in-chief also refers to the events which have occurred and described under the heading “Harassment from father March to June 2009” as follows:
“149.On 27 March the father left letters in mind and my mother’s letterboxes. I went to the Police Station with my Mother to report that the father had been harassing us.
150.On 4 May 2009, the father put a photo of a candle he has on his front porch in my mother’s letterbox. A note to my mother was written on the back of the photo. My mother reported this to the Police.
151.On 6 June 2009, following my appointment with Dr [B], the father sent me nine abusive and threatening text messages. For instance, the father sent me a message stating “Believe me, you two vexatious cunts are going to pay for these lies.”
152.He then drove up my driveway and tooted his horn and shouted abuse at me. I watched him do this through my window. My neighbour, […], told me that she had also heard it. The father then reversed out of my driveway at high speed and screeched his tyres as he drove away.
153.My mother and I went to the Police to report the father’s harassment (Report number […]). I gave a statement and was advised the father was going to be charged for the threatening text messages. I told the Police Officer that I wanted a restraining order against the father. I was advised that the matter would be directed to the family violence unit.
154.That night I received another abusive text message from the father.
155.The following morning, on 7 June 2009, my mother rang me and said the father had just pulled up in front of her house and was tooting his horn. He then drove back to my house and again shouted abuse. Again, this was reported to the Police. [The child] was very scared so my mother cancelled her plans for the day and took us out.
156.My neighbour, […], later told me that she had heard the father yell “You Fucking bitch”.”
The maternal grandmother also refers to events of harassment beginning in March through to June 2009. On 7 June 2009 the father telephoned the maternal grandmother and abused her for reporting him for child abuse.
The father also makes allegations that the mother kicked him and gouged him with her fingernails. In cross-examination he admitted that there was one occasion when he attempted to calm her down and restrain her. He pushed her and she fell to the ground. He denied that he had physically assaulted her in the manner she suggested.
In cross-examination the father agreed that he was angry when he had driven to the mother’s house and the maternal grandmother’s house in June 2009.
At the time he was also estranged from his own parents.
The father admitted that he had been frustrated and angry about the allegations made that he had sexually abused his daughter. This was immediately after the child had appeared frightened of her father at the interaction observed by the Family Consultant.
The parents’ mental health
The mother suffered in the past from an anxiety disorder and received treatment from a psychiatrist. She also suffered from post-natal depression after the child’s birth. The report of Dr C referred to the mother having “a long history of depression with anxiety in a large part due to her on and off relationship with her ex-partner whom she reported as being an alcoholic and was abusive”. The report indicated that the mother had been on anti-depressants for many years.
Paragraph three of the report of 6 October 2009 states, “[the mother’s] current prognosis is not good. She is very depressed and anxious almost all the time at the present time.” Dr C had referred the mother to Ms Y an accredited mental health social worker. Ms Y first saw the mother in March 2009 pursuant to the Medicare Mental Health Care Plan.
In the father’s affidavit of evidence-in-chief filed on 8 January 2010 (document 45) he refers to his mental health and says as follows:
“73.I have been hesitant to become reliant on anti-depressant or anxiety medication as I have been regularly offered by various general practitioners (I was previously treated by the same general practitioner as the Mother). I do sometimes use valium on prescription. I am now seeing (mainly) Dr [S] at […] Medical Centre about matters.
74.I have kept in touch with my general practitioner about my nerves. I have suffered from some anxiety in the past and these proceedings have led me to feel anxious again. I was very angry after one court hearing in about July or August 2009. I spent the night in Flinders Medical Centre because I felt anxious about how frustrated and angry it all made me feel. I am sure that I will be much calmer immediately if these proceedings are finalised in a way which acknowledges that there is no truth in the suggestion that I have sexually abused my daughter.
75.I have recently started seeing a psychologist named [Mr W] who is the second psychologist I have seen since the middle of this year. I did not feel I connected very well with the first psychologist I saw for 6 sessions but [Mr W] and I have been working well together and I have felt better for a couple of months.
76.I haven’t touched marijuana for about 2 years. I was never a daily user of the drug. It was something I did very occasionally and something which the Mother tried in my presence. She did not have a good reaction at all. I deny ever using marijuana when I have had responsibility for caring for [the child].
77.I admit that I did for a period of time drink too much alcohol. I am using other ways to cope with stress at the moment. I have been regularly (twice per week) attending mediation and yoga sessions run through the Southern Community Health Centre for the past few months.”
After the commencement of the trial the mother and her mother were made aware that subpoena documents had indicated that the father had been detained overnight at Flinders Medical Centre on 7 June 2009. They both expressed concern about the notes which referred to homicidal ideation.
The father gave evidence that on the particular day in question namely, 7 June 2009, he was concerned about his own behaviour and thought he might “do something stupid”. He said he felt dangerous. He took himself to a medical centre and followed their advice to attend Flinders Medical Centre where he received treatment. He confirmed that he was detained and not discharged until the following day at about 5.00 pm.
The father was previously receiving treatment from Dr C, but ceased to attend her because of her conflict of interest in relation to her treatment of the mother and the child. He has since attended upon Dr S, General Practitioner. Dr S gave evidence. He confirmed that the father was anxious about not seeing the child, the sexual abuse allegations and issues arising out of the Court proceedings.
It was Dr S’s opinion that the father’s condition would improve with the resolution of the Court proceedings but would need ongoing treatment.
Exhibit 15 is the report dated 5 February 2010 of Clinical Psychologist, Mr W. Mr W also gave oral evidence. He confirmed that the father’s anxiety and depression in October 2009 were in the severe category and that his progress will depend upon his compliance. Mr W was asked whether he had any concern about the father’s capacity to care for a child and he replied, “not really”.
The father was cross-examined about the apparent lack of knowledge of the various doctors and professionals he consulted about the advice, treatment and prescriptions of the other. The father’s response appeared to be naïve. At times he said that he assumed that the professionals had been communicating with each other. At times he appeared to suggest that he did not provide the information to the professionals unless he was specifically asked for the information.
The father showed little insight into his own behaviour and psychological condition. He also showed little insight into the impact of his alcohol consumption upon his own well-being and in particular its impact upon his medication.
The evidence called by the mother did not call into question her ability to provide care for the child, but did suggest that she would need ongoing assistance to deal with issues related to the allegations of sexual abuse and her ability to cope with future arrangements concerning the father and the child. The maternal grandmother’s opposition to the father having any relationship with the child has not in the past assisted the mother’s treatment of her anxiety and depression.
The evidence called on behalf of the father indicates that his condition is likely to improve if there is a positive result after the Court proceedings. His past behaviour, in particular his inappropriate text messages sent to the mother and maternal grandmother and his behaviour in June 2009 towards the mother and maternal grandmother also indicate that he would benefit from ongoing assistance and treatment.
The evidence of the father’s father and the father’s sister confirm their willingness to support the father and the child in renewing their relationship whilst providing reassurance to the Court that the father would have the emotional and psychological support of his family.
Section 60CC sets out matters which the Court must consider when determining what is in the child’s best interest. The primary considerations are:
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
The oral evidence of the mother and the maternal grandmother calls into question the basis and background for the statements the child has made to them, Dr C and others. The differences in their evidence and in particular the more fanciful ridiculous remarks made by the child raises serious doubt about there being any factual basis to the allegations the child made about her father. There is a serious possibility that the child was attention seeking and responding to the reaction of the mother and maternal grandmother.
The independent assessment by the expert at the Child Protection Service did not support any finding of abuse or unacceptable risk of abuse.
The remarks made by the child to Dr B and her behaviour in showing fear of the father can be explained by various factors, including the repeated questioning by the mother, the influence of the maternal grandmother, the long period during which the child had no contact with her father and the possible concern she might feel about her father becoming aware of the allegations that had been made about him.
Taking into account all of the evidence and in particular the oral evidence under cross-examination of the mother and maternal grandmother, the Court is not satisfied that there is a need to protect the child from any unacceptable risk of physical or sexual abuse by the father.
The Court must also consider the protection of the child from psychological or emotional abuse if the evidence supports the view that the child has been deliberately and maliciously manipulated into believing that she has been sexually abused by her father. The repeated questioning of the mother and the attitude of the maternal grandmother (in particular placing the child on the telephone to talk to Ms T) suggest a lack of understanding and provide some basis for finding a deliberate or malicious intent.
The evidence however suggests that the mother’s own mental health issues and the poor relationship between the maternal grandmother and the father have brought about a situation where the mother and maternal grandmother have lacked the intelligence or understanding to avoid the influence they have exerted upon the child.
The Court does not find that the mother deliberately or intentionally coached the child to make false allegations. The mother (and maternal grandmother) have readily interpreted the child’s remarks and thereafter encouraged the child to make statements which support their negative view of the father.
The failure of the mother (supported by the maternal grandmother) to realise that her behaviour may have caused psychological harm to the child is a factor which will need to be considered.
Prior to the allegations arising and notwithstanding the difficulties in the relationship between the mother and father, the child was able to enjoy a meaningful relationship with both of her parents, albeit that there was some difficulty in the negotiations.
Subject to other significant factors such as the mental health of both of the parents and the child’s apparent fear of her father, the future relationship between the father and child should be promoted.
Additional considerations
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
The child has shown fear of her father and expressed doubt about whether she wanted to see him. This behaviour needs to be considered in the context of the child’s age, the little contact she has had with the father for a considerable period of time and her likely awareness of the mother’s and maternal grandmother’s attitude towards the father.
The evidence indicates that it is likely that the child’s views have been formed under the considerable influence of her mother and maternal grandmother.
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
The relationship between the mother and child has continued to be strong, notwithstanding the mother’s anxiety and depression. That relationship has been supported by the maternal grandmother who has assisted the mother from time to time. The nature of the relationship between the child and the maternal grandmother is also significant, although the findings indicate that the maternal grandmother has at times been a negative influence upon the mother and the child’s relationship with her father.
The relationship between the father and the child has been diminished by the time which has passed with no contact, the attitude of the mother and the father’s angry behaviour.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The acrimonious relationship between the parents has been increased by the allegations of abuse levelled against the father. The mother formed the view that a relationship between the child and the father would not benefit the child and has therefore not taken any steps to facilitate or encourage that relationship.
Initially, the father sought orders that he spend time with the child and that the child continue to live with the mother. His willingness to encourage that relationship was only qualified by his concern that the mother had maliciously or deliberately fabricated the allegations of sexual abuse in order to eliminate him from the child’s life.
I am satisfied that both parents have the ability to encourage a close relationship between the child and the other parent provided that they continue to obtain assistance from their medical professionals and social workers. It is also necessary for the maternal grandmother to cease any negative influence upon the mother or the child which might restrict the child’s ability to continue to renew her relationship with the father.
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
In final submissions counsel for the mother said that the mother still had lingering doubts about the possibility of sexual abuse but would comply with any orders of the Court. A change in circumstances which brought about a structured arrangement whereby the child spends regular time with her father is a change which should only bring about positive effects for both of the parents and the child.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
There are no significant practical difficulties save and except the acrimonious relationship between the parents and the maternal grandmother. These difficulties can be overcome by ensuring arrangements are put in place which limit the opportunity for the conflict.
(f) the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child),
to provide for the needs of the child, including emotional and intellectual needs; and
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Both parents have mental health issues which will require ongoing treatment. The professional evidence before the Court indicates that the mother has the capacity to provide for the child’s ongoing care and that the father has the capacity to spend time with the child, particularly if that time is initially with the assistance of his family members and if he continues to have appropriate assistance for his anxiety and depression.
The Court’s findings in relation to the mother’s questioning of the child, her negative interpretation of the child’s remarks and the inconsistencies in her evidence about which allegations she believed to be true, raise concerns about the mother’s capacity to provide for the child’s psychological and emotional health and her attitude towards the responsibility of one parent to encourage a relationship with the other parent.
The father’s past inability to control his anger (when sending text messages to the mother and maternal grandmother and visiting their homes in his angry, emotional state) also call into question his limited capacity to understand the effect of his behaviour upon the mother of his child and the risk that the child will be subjected to this inappropriate behaviour.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The child is now aged 6. For a considerable period of her life her parents have been in conflict. The child has shown fear of her father.
(h)if the child is an Aboriginal child or a Torres Strait Island child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
Not relevant to the proceedings.
(j)any family violence involving the child or a member of the child's family;
The evidence of both parties indicated that during the period of their relationship there was inappropriate family violence by each of the parties towards the other. The behaviour of the father towards the mother, in particular his behaviour in early June 2009, should be seen in the context of the father’s immediate request for professional assistance. Nonetheless, his detention in the Flinders Medical Centre that evening formed the basis of concern by the mother and maternal grandmother about the father’s behaviour. His ongoing treatment and support of Dr S and Mr W would be a benefit, not only to the father, but indirectly to the mother and the child.
(k)any family violence order that applies to the child or a member of the child's family; if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
Not relevant in these proceedings.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Ongoing proceedings in this Court have had a significant effect upon the mental health of both the father and the mother. It can be assumed that this has had an indirect effect upon the welfare of the child. The expert evidence suggested that the father’s mental health was likely to be significantly improved on the conclusion of these proceedings.
Submissions by counsel for the Independent Children’s Lawyer included seeking orders that the parties engage in therapy for themselves and the child to assist in renewing the relationship between the father and the child and that the proceedings be adjourned for further consideration until after the child had engaged in three months of therapy.
Other specific orders supporting that arrangement were also included, such as injunctions restraining certain behaviour by the parents and the father’s ongoing treatment. The orders sought by the Independent Children’s Lawyer were clearly directed to the best interests of the child. However the further adjournment of the proceedings does not in this instance necessarily ensure that the child’s best interests are considered paramount. This matter is one where the conclusion of proceedings and final orders should be made now in the hope that further proceedings will not be necessary.
(m)any other fact or circumstance that the court thinks is relevant.
Making final orders now assists the parties by bringing a conclusion to the litigation. Although therapy is recommended for the child and her parents it is appropriate and in the child’s best interest for a specific time to be set out in orders for the commencement and gradual increase of the child’s time with the father.
This makes it clear to all that the purpose of therapy is to bring about the reunification of the child with her father and the establishment of a meaningful relationship with him.
The provisions of section 60CC (4) and (4A) have already been considered in the previous discussion.
Section 61DA provides:
Section 61DA
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3) … (interim orders only).
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The Court has not found that there are reasonable grounds to believe that the father has abused the child. The evidence about the possible harm to the child caused by the mother’s behaviour should not be classified in this instance as abuse of the child for the purposes of section 61DA(2)(a).
The father’s behaviour when sending abusive messages and behaving in a threatening manner towards the mother following upon the sexual abuse allegations in particular can be seen to fall within the definition of “family violence “… conduct, with actual or threatened, by a person or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety”.
What is significant in this matter is the level of acrimony and mistrust which exists between the parents (and the level of acrimony between the maternal grandmother and the father). This evidence is relevant to the possible rebuttal of the presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility.
If the mother and father can put aside their past difficulties and work towards the future welfare of the child it would be in the child’s best interests for her parents to have equal shared parental responsibility for the child. In particular, decisions about the child’s therapy and instructions to those providing assistance to the child should not be controlled by only one of her parents.
As indicated in the High Court decision of MRR v GR [2010] HCA 4 the Court must give consideration to the particular provisions of section 65DAA if the parenting order provides that the parents are to have equal shared parental responsibility.
The father was not proposing that the child spend equal time with each of her parents. The proposals of the father (if the Court did not find that the mother had maliciously made up the statements or coached the child) was that the child live with the mother and that the father spend time with the child gradually increasing to alternate weekends from after school on Friday to the commencement of school on Monday and half school holidays.
Considering the acrimony between the parents in the past and the difficulties which the child has experienced since the allegations of sexual abuse were raised, the Court does not consider that the child spending equal time with each of her parents is reasonably practicable, nor that it is in the best interests of the child that she spend equal time with each of her parents. (Section 65DAA(5)).
Taking into account the proposals of the father for time spent with the child and the definition of substantial and significant time the Court is satisfied that an arrangement by which the child lives with the mother and spends alternate weekends and half the school holidays with the father and other special occasions is in the best interests of the child.
Conclusion and Summary
Careful consideration of all of the evidence indicates that it is in the child’s best interest that her parents retain equal shared responsibility, that she live with the mother and spend alternate weekends and half the school holidays with the father. The evidence indicates that this arrangement can only succeed if both parents and the child have the benefit of ongoing therapy and the arrangements for the child to spend time with the father are introduced gradually and with the assistance of the father’s family.
It will also benefit the child if the possible negative influence of the maternal grandmother is reduced, particularly at handovers and for any treatment the child and the mother are receiving.
I certify that the preceding two hundred and forty-seven (247) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.
Associate:
Date: 20 July 2010
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Injunction
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Costs
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Procedural Fairness
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