FERREIRA & FERREIRA

[2018] FamCA 99

FAMILY COURT OF AUSTRALIA

FERREIRA & FERREIRA [2018] FamCA 99

FAMILY LAW – CHILD ABUSE - Sexual abuse – risk – unacceptable risk

Family Law Act 1975 (Cth)

M v M (1988) 166 CLR 69
Re W (Sex Abuse: Standard of Proof) (2004) 32 Fam LR 249

APPLICANT: Mr Ferreira

RESPONDENT: Ms Ferreira

INDEPENDENT CHILDREN’S LAWYER: Bowral Legal

FILE NUMBER: LEC 538 of 2015

DATE DELIVERED: 26 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 10 April - 13 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Stagg

SOLICITOR FOR THE APPLICANT: Dillon-Smith Lawyers

COUNSEL FOR THE RESPONDENT: Mr Blank

SOLICITOR FOR THE RESPONDENT: Evans Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Campbell

Orders

1. The matter is relisted for further trial directions on … March 2018 at 10am.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ferreira & Ferreira has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: LEC 538 of 2015

Mr Ferreira

Applicant

And

Ms Ferreira

Respondent

REASONS FOR JUDGMENT

1. The parties have three children of the relationship, F, born in 2010, E, born in 2010 and K, born in 2012.  The parties separated in March 2015.

2. With the agreement of the parties, the trial has been divided into multiple parts, in order to allow a critical factual matter to be resolved as a first step in the resolution of the matter.  The critical first issue identified by the parties is as to whether the father presents a risk of harm to the children through sexual abuse.  This judgment relates to that first issue.

3. In dealing with this issue the parties were assessed by a Consultant Psychiatrist, Dr L.

4. The father relied upon the following evidence:

   a)The Trial Affidavit of the father dated 21 February 2017;

   a)The affidavit of Ms H dated 21 February 2017;

   b)The affidavit of Mr M dated 21 February 2017;

   c)The affidavit of Ms I Ferreira dated 21 February 2017;

   d)The expert report of Dr L; and

   e)The family report.

5. The mother relied upon the following evidence:

   a)The mother’s Trial Affidavit dated 28 of February 2017 (in which possible reference is made to an earlier affidavit of the father dated 1 April 2016);

   b)The affidavit of Ms N dated 27 February 2017;

   c)The affidavit of Mr O dated 27 February 2017, filed 1 March 2017.  (Only paragraphs 75-80 of this affidavit were admitted, to the extent that they go to the issue of unacceptable risk of sexual abuse.);

   d)The affidavit of Ms P filed 1 March 2017.  (This was admitted, with no objections, contrary to the Orders of 18 November 2016, which limited the affidavit material the parties could rely upon); and

   e)The affidavit of Mr Q filed 1 March 2017 was initially relied upon and then withdrawn due to the limited scope of the matters being heard.

6. The parents and the Independent Children’s Lawyer (ICL) also relied upon portions of a three volume tender bundle, each identifying the parts that they said should be considered.  This material included significant portions from both Family and Community Services (NSW) (FaCS) and Child and Youth Protection Services (ACT) (CYPS).

7. At the close of this part of the proceedings, counsel for the mother helpfully set out the factors relied upon by the mother in seeking to establish unacceptable risk.  In relation to allegations against the father, three categories were identified.  I adopt the headings of the mother below.  It should be noted that at times the matters do not fit neatly into a particular category and that there is some overlap between the categories.  They remain a useful way of dividing up the issues.  They were described for the mother as the cornerstone of the case to show unacceptable risk.  Some of the matters were taken from the testimony of the mother, some from the material contained in the tender bundle which to a large degree was the product of reports also made by the mother.  It should be observed that there is significant variance between the total content of matters reported by the mother to the welfare authorities and the matters alleged in the affidavit. Much of what has been alleged to the welfare authorities is not supported in the affidavit material.

8. In assessing all of these matters it is important to consider whether the evidence is sufficient to demonstrate that the events and behaviour happened (that is, the events and behaviour said to point to abuse); whether the behaviour of the children relied upon is sexualised or merely innocently childish; if the behaviour is sexualised, whether it is probative of abuse; and if it is probative of abuse whether there is a link to the father.

A.       Allegations made directly against the father

1. This category relates primarily to matters directly observed by the mother in relation to conduct by the father.

i.       The father’s use of nappy cream while the parties lived in R Town (February 2014-March 2015) in a sexualised manner[1] 

[1] Mother’s trial affidavit at [193].

1. This was an allegation that the father would massage cream onto E’s vagina just above her clitoris, contrary to the mother’s comments that it should not be applied in that manner.  The mother described to Dr L that the father would half massage moisturising cream into the girl’s genitals which she found disturbing.[2]

   [2] Report of Dr L, p 11.

2. The father denied inappropriately applying cream.  He accepts that the mother corrected the manner of using the cream.  There is no clarity about what actually occurred, nor its frequency of occurrence, to adequately support a finding that this constituted sexualised conduct on the part of the father.

ii.     The father’s behaviour in bathing the children, including having the door closed

iii.    The manner in which the children sat in the bath, while being bathed by the father, with legs spread apart (reporting this to be how “daddy baths us”) 

1. This was an allegation that while the parties lived in R Town the girls (then aged four or five) would sit in the bath with their legs spread wide, explaining to the mother that was how their father bathed them, with the father allegedly explaining to the mother that the girls liked to sit in that manner.[3] 

   [3] Mother’s trial affidavit at [196]; tender bundle p 361, CYPS record.

2. This criticism appears to have been first made by the mother to FaCS in March 2015, at about the time of separation.[4]  The complaint at that stage is recorded as “[a]pproximately nine weeks ago, the mother walked into the bathroom while the children were in the bath and [F] was leaning back against the end of the bath with her legs spread wide apart.  The mother questioned [F] as to why she was sitting like this and she stated, ‘this is how daddy washes us.’”  

   [4] Tender bundle at p 994.

3. This omitted any reference to the father either being present at that time, or to the father saying anything about it to the mother at the time, presenting inconsistently with the mother’s account.

4. The father did not recall seeing this behaviour.  He said that he did not know if F spread her legs apart, but that he did not think anything about it.

5. Given the inconsistency of the mother’s accounts regarding the comments by the father, in the face of the father’s lack of recollection, no finding should be made that such an explanation was given by the father.  However, even if it was, it adds nothing of significance to the account.

6. There is no basis upon which, on either account given by the mother, this could be considered to be evidence even suggestive of risk on the part of the father.

7. The second aspect of bathing was an allegation that the father would retain E in the bath after the other children and, at times, would bathe E with the door closed for up to fifteen minutes.  The father accepted that at times E would be last out of the bath.  He said that K would get out of the bath first because he wanted to, and who got into or out of the bath depended on what was going on at the time.  He accepted that it was possible that he had closed the door with E in the bath, in particular in cold weather.  He said that E needed to be coaxed out of the bath.  The mother says that she questioned the father about this and he responded in a hostile manner.[5]  Without the terms of the conversation it is not possible to draw any inference from this broad description.

   [5] Mother’s trial affidavit at [190].

8. Again, this provides no basis upon which it could be suggested that the father poses a risk to any of the children.  At worst it presents as an opportunity for the father to do something, albeit in the context of the mother being present and, presumably on the mother’s description, known to be aware that the father was in the bathroom with E.  It would be highly speculative to infer risk from this evidence.

9. Further, these matters do not constitute a reasonable or rational basis for the forming of a suspicion in relation to the father, yet the mother reported to Dr L that this was one of the matters that first raised her suspicion about the father.[6]

   [6] Report of Dr L, p 11.

iv.     Instances of the children screaming during the night

1. In 2014, during the night, the mother says that she heard E screaming and found the father leaving E’s room in a “panic” and going to the toilet[7] when the girls were between three-and-a-half and four years old.  She told Dr L that the father was naked on this occasion.[8]  The father said that he had no recollection of this event and denied the event. 

   [7] Mother’s trial affidavit at [199].

   [8] Report of Dr L, p 11.

2. On a number of occasions the wife says that she heard the girls scream during the night and found the father either in or leaving their room.[9]  The father accepted that there were occasions when the girls would scream, for example if they had nightmares or there was thunder.  He accepted that there may have been occasions when he arrived to comfort the girls before the mother, but that the mother was never far behind. 

   [9] Mother’s trial affidavit at [199].

3. The mother said that on numerous occasions the girls had their nappies off during the night.  The father thought that the girls would take their nappies off during the night while the parties lived in S Town (July 2010 to February 2014, with the wife’s parents there from January 2012 until November 2013), but did not know if this had also happened in R Town.  

4. Even accepting the mother’s description, these incidents are consistent with the father’s description as to why he would be in the children’s room during the night.  Children screaming marks a good reason to attend to them.  While the mother described the father as in “panic” on one occasion, his alleged presentation was described no further.  On her account, this event was in the middle of the night and he was dealing with a screaming child and his explanation, according to the mother, for being in the bedroom was to “see if she was ok.”

5. This matter does not properly support an inference going toward the father being a sexual risk to the children.  Such an inference would be drawn on a far too tenuous basis.

B.       References made by the children to “daddy”;

1. This category relates primarily to the children being reported as attributing conduct to the father.

i.       E sitting on the toilet, vigorously patting her vagina and telling the mother that “daddy likes…”

1. The mother says that in 2013-2014 the girls behaved in a sexualised manner.  E sat on the toilet with her feet up on the bowl and repeatedly patted her vagina.  When asked why she sat like that she said “daddy likes it when I sit like that.”[10]  Further, F would rub her vagina and say “it feels nice.”  E would lift her skirt and show her vagina. 

   [10] Mother’s trial affidavit at [206].

2. The mother says that after separation (when the girls were not spending any time with their father) the sexualised behaviour of masturbation and exposing of genitals continued.  On 3 May 2015,[11] E repeated her previous behaviour while sitting on the toilet and is reported by the mother to have said “daddy likes it when I sit on the toilet like this and his leg would shake and he would say ‘do it again [E] do it again’”.[12]  The report to CYPS did not include an account of the leg shaking, but alleged that E said that the father pat “his bottom” (noting E uses bottom to describe “front parts”).

   [11] Tender bundle p 7, mother’s report to CYPS 6 May 2015.

   [12] Mother’s trial affidavit at [216].

3. The mother reported to Dr L that the girls later explained to the mother that they would touch their own genitals whenever the mother was out of the house and they were alone with the father.[13] Neither this assertion by the mother, nor what the children said, nor the circumstances, were contained in the mother’s trial affidavit. 

   [13] Report of Dr L, p 11.

4. The father said that he has never seen this behaviour on the toilet.  He did not know if it was normal behaviour for a five or six year old.  He did not know if he would have thought it concerning, for example if it was one off or “mucking around.”  If it had been repeated behaviour he says that he probably would have told E that is not how to sit on the toilet.  He could think of no reason, other than potentially attention seeking for E to have said “daddy likes it.”

5. The inconsistencies between what the mother has reported in her affidavit and what she has reported as contained in the tender bundle mean that significant caution should be exercised before relying on the detail of the accounts.  The absence of the hair dresser account from the mother’s sworn testimony means that weight will not be placed upon it.

6. The accounts of E on the toilet do not sufficiently point to sexual activity on the part of the father to allow an inference to be drawn against him.  The reference to her father liking her sitting a particular way on the toilet make little sense and does not suggest that he either engaged in or encouraged sexual conduct.  E did not connect the patting of her vagina to her father.

ii.     F telling Ms N that her daddy kisses her with an open mouth 

1. Ms N is a sexual assault worker who has been involved in a therapeutic intervention with the children following referral of the family to the Joint Investigation Response Team (JIRT).  She prepared a number of reports, regarding E, F and the mother.  She has had ten sessions with E, ten with F and “over twenty interactions” with the mother.

2. The mother reports that Ms N told her following a session on 5 August 2015 that F said “[Ms N], daddy kisses me on the mouth with his mouth open and he touched me on the bottom.”  Ms N reports that this comment was made spontaneously on F leaving the session.

iii.    F reporting to the school (p1157, Tab 1 CYPS pp7, 16 and 66)) that daddy is funny, sometimes he touches her on her bottom and kisses her with his mouth open

1. The mother says that on 10 September 2015 she was told by the assistant teacher in F’s class, Ms T, that F had said that “daddy kisses me with his mouth open.”

2. The father said that he had not kissed F with an open mouth.

3. Even if it were to be accepted that an open mouth (without description of degree or how or where) had been used to kiss, it does not lead, in the absence of further information, to an inference being available that it was a sexualised act.

4. The father accepted that he had touched F on the bottom, but simply as an aspect of normal parenting.   

5. In December 2015 a report was made to FaCS (it is not identified by who) that F had told E that the father touched F in the private places.[14]

   [14] Tender bundle p 991.

6. Absent context this has no relevant meaning.  It was accepted that the father had touched the children’s private places.  The nature of parenting will require parents to do so in the interests for the proper care of a child.  The mere fact of touching cannot be converted into an assumption of sexualised contact.

7. The mother also reports that, on an unidentified occasion F said “daddy wanted to kiss me with my mouth open, I didn’t want to but daddy pushed on my throat hard and said you will do it.  I was cross and I kissed him hard.”

8. This reference is difficult to understand.  It cannot be determined what link it has to F spending time with the father, nor what prompted the comment.  Nothing should be taken from this comment.

C.       Concerns derived from sexualised behaviour by the children

1. This category related primarily to conduct of the children and their associated explanations.

i.       E, on the weekend of 28 August 2016, pulling up her dress and playing with her nipples.[15] 

[15] Tender bundle p 769, CYPS records.

1. If this occurred on 28 August 2016, it is not clear what the link is to the father.  There is also no basis to say that it relates to sexual conduct by the father.

2. It was suggested to the father that E had played with her nipples during a Skype call to the father.  The father said that he had only had audio calls with the girls, never video. 

ii.     F and E kissing on the mouth with an open mouth

1. The father said that he had never seen this.  He had seen F try to kiss someone on the mouth.  The mother told Dr L that one of the girls continued to masturbate and had to be told regularly not to kiss others with an open mouth (Dr L’s report p12).  Again, it is not at all clear why this should lead for an inference that someone has sexually interfered with F.

iii.    The poking of supervisor Mr M on the groin by E;

iv.     K kissing Mr M on the mouth when saying good bye following supervised time with the father

1. These two matters are set out in the affidavit of Mr M of 21 February 2017.  They are completely innocuous.  There is no reason to infer that they indicate either abuse of the children by the father, or by anyone, or a failure to supervise.

v.      Patting the vagina on the toilet (see above);

vi.     E playing with her clitoris in the bath

1. On 6 May 2015 the mother reported to CYPS[16] that E had been pulling on her clitoris in the bath.  When asked to stop she replied “Dad got to do it.”  E then said “I like it, daddy use to do it to me when you were at the hairdressers.” This does not appear in the mother’s affidavit material.

   [16] Tender bundle, mother’s report to CYPS 6 May 2015.

2. The father said he had not seen E pulling on her clitoris in the bath.

3. This was not a matter contained in the mother’s affidavit.  The father was not cross-examined about this.  No finding should be made either that E has made such an assertion, or that such an event has occurred.

vii.   E wiggling her bottom at strangers and showing her underwear

1. This is not a matter from which it may be inferred that E has been the subject of sexual abuse.

2. The father said that he had not seen this, but, if he did would tell E “little ladies don’t do that.”

viii.    As observed by Ms P, playing frogs;

1. There is no indication that this is any more than children playing.  There is no basis to infer this is somehow indicative of sexual abuse.

ix.     Abnormal references to privates;

1. This is a matter that appears to be subsumed into the other matters concerning the children touching and talking about their genitals.

x.      Reference to head being under the dress

1. In September 2016 F told the mother than E and her friend U had been kissing at school.  Shortly after this the mother saw E and U were playing on the trampoline and E had her head under U’s school dress.[17]

   [17] Mother’s trial affidavit at [228].

1. It is not clear on what basis this could be said either to be indicative of sexual abuse of E, or even if it was, that it is in some way attributable to the father.

xi.     In the week prior to 28 August 2016, E put her fingers in her vagina and anus and told F to smell it;[18]

xii.   One of the girls being observed by the mother holding down the other (who was screaming) and touching her genital area, following return from time with the father on 28 August 2016[19] 

[18] Tender bundle p 769, CYPS records.

[19] Tender bundle p 767, CYPS records.

1. These are matters referred to in the tender bundle, being records produced by CYPS. It should be noted that the records from which these matters were derived cover broader ground.  The only connection between these events and the father appears to be the circumstance that they are occurring around the time (generally) that the father was again spending time with the children, albeit in a supervised or semi-supervised manner.  No direct matter connects them to the father.

2. This firstly relates to a third party reporting what that person was told by the mother.  The mother is reported as saying that she saw E holding F down and touching her genital area.  Conflictingly, this is then reported as the mother saying that F told her that she had been held down by E who had touched her “privates.” E told the mother that she “didn’t know” why she had done this.[20]  

   [20] Tender bundle p 769, CYPS records.

3. The mother further reported to the third party that F had also told the mother that E had put her fingers in her vagina and anus and then told F to smell them, that F said that she and E took turns to touch each other, and that the mother saw F with her fingers inside her vagina, saying it was itchy.[21]

   [21] Tender bundle p 769, CYPS records.

4. It should be observed that this material comes before the court as multiple hearsay, significantly depriving it of the ability to bear weight in the proceedings.

5. On 5 December 2016 the mother reported to CYPS seeing E holding F down and putting a finger into her vagina and then into her bottom. She alleged this occurred on 29 August 2016,[22] and on 4 December 2016.

   [22] Tender bundle p 1047, CYPS records.

6. On 23 January 2017 the mother reported to CYPS that K had attempted to put objects into F’s bottom. 

7. This matter is referenced in the mother’s trial affidavit at [219] and Annexure A.  The mother does not give a description of the incident but relies upon what she is quoted as having said to a third party.

8. These incidents are said to have occurred around the time that the girls were spending some time with their father.

9. It was reported (it is not identified by whom, significantly undermining the reliance that may be placed upon it) that E put her hands down F’s pants, touching her bottom and anus because she liked to do that and it was “squidgy.”  It was further reported that E had been walking around with her top up, showing her breasts, sometimes touching and twisting them.

10. Reports were made to CYPS[23] of E as saying, after time with the father had commenced, that the “monsters are coming to get me.”   At the same time E is also recorded as saying that she lied and lied and that her daddy did not touch her.  F and E expressed embarrassment at having touched each other.

    [23] Tender bundle p 1783, CYPS records.

11. On another occasion the report to CYPS was that E put a toy needle (presumably a toy syringe) from a doctor’s play set in F’s vagina and pumped it up and down.[24]  E has also flashed her nipples at people saying “woohoo” and posed in a “very sexualised manner” when she did not have her bottom half covered.

    [24] Tender bundle p 1783, CYPS records.

12. The evidence did not establish who made these reports.  Although unclear, the report appears to date from 5 October 2016 after time with the father had recommenced.  These alleged incidents were not supported by any affidavit evidence.

13. An analysis was provided[25] outlining contact between CYPS, FaCS and JIRT, Ms N (a sexual abuse counsellor) and the family. 

    [25] Tender bundle p 1788.

14. At its height the JIRT involvement resulted in F saying that her father had kissed her on the mouth. 

15. The children had, between them, nineteen sessions with Ms N with no disclosure of sexual abuse.  At its height, F had said that her father had kissed her on the mouth and touched her on the bottom.  CYPS records[26] note that despite being interviewed by CYPS on several occasions the children have disclosed no sexual abuse. 

    [26] Tender bundle p 1050, CYPS records.

16. The mother relied upon an assertion made by a caseworker that the behaviour referred to at i, xi and xii is “significantly well outside the psycho-sexual norm for this age group.”[27]  The evidence does not disclose any expertise on the part of this person to provide such an opinion.

    [27] Tender bundle p 769, CYPS records.

17. The ICL pointed to a conclusion drawn by the caseworker that the concerns reported were not substantiated.  While the underlying information may be of use in deciding this matter, a determination as to whether concerns are, or are not substantiated according to a third party, absent demonstrable expertise and disclosure of the reasons for coming to that conclusion, is of no assistance.

18. The father also pointed to assessments from JIRT, CYPS and FACS, each of which concluded that the claims were not substantiated.  The prime example was identified as a response from CYPS to the mother dated 21 March 2017.[28]   Attaching an appraisal form, the case worker, Ms V, advised the mother that the concerns regarding the three children were not substantiated.

    [28] Tender bundle p 1781.

19. The fact that a view as to such a matter is formed by a caseworker or a police officer does not give it a significance that allows any weight to be placed upon it absent relevant expertise.

20. The lack of testimony to support almost all of these matters reported to the welfare authorities tells strongly against reliance upon them as reliable descriptions of the conduct by the children.  Although it may be accepted that children may tell parents things that they are not prepared to tell others, the lack of disclosure to CYPS and, despite so many sessions, to Ms N, and the lack of independent verification of what the mother asserts, means, particularly where the mother has failed to give any testimony about the matters, that weight should not be given to these descriptions.

21. Further adequate evidence has not been presented to support the idea that the sexualised conduct by the children, even if accepted to have occurred, is indicative of sexual abuse.  Even if it is so indicative, a serious question arises as to who may be responsible for the abuse. 

The grandfather

1. What was also contained in the mother’s account to CYPS on 6 May 2015 was an allegation that both she and F had been sexually abused by the mother’s father.[29]  She reported that in 2013, when they and the grandfather shared the same home, F had begun to touch herself 20 to 30 times per day and had said to the mother “Grandad took me to the shed and touched me here” pointing to her vagina.  F told the mother that the grandfather had pulled out his penis and had F touch it, and that he had touched F’s vagina. This was not reported to Family Services at the time.

   [29] Tender bundle p 7, mother’s report to CYPS 6 May 2015.

2. In her account to CYPS on 28 May 2015,[30] the mother said that she had found her father with the two girls in the bath. 

   [30] Tender bundle p 16, CYPS records.

3. In her report to the Child at Risk Health Unit on 22 May 2015 the mother said that E had told the mother that the grandfather had done it to her too.[31]

   [31] Tender bundle p 209.

4. This also did not feature in the mother’s affidavit.  At its highest, at [188] the mother explained that her parents moved out of the home they were sharing with the parties in November 2013, following the mother confronting her father about his previous sexual abuse toward her, and her concerns that her mother would allow him to have unsupervised time with the children.

5. This sexualised behaviour by F, and clear disclosure of sexual abuse by the grandfather, pre-dated any of the sexualised behaviour relied upon by the mother to attribute a risk on the part of the father.

6. The father did not challenge that the girls had made such disclosure to the mother regarding the maternal grandfather.  Counsel for the mother accepted that “it would be very difficult to find other than that the grandfather sexually abused both the girls while they were living in S Town.”

The Psychiatric Evidence

1. Dr L was asked whether the father displayed psychiatric factors or predispositions toward committing child sexual abuse.  In response he noted a lack of prior sex offence charges or convictions and denial by the father of relevant sexual fantasies, urges or conduct.  In Dr L’s view he did not “manifest any features to suggest a predisposition towards child sexual abuse.”

2. Although this evidence is not capable of showing that the father did not, or could not engage in the abuse, it does not support the idea that he is a risk.

3. Although Dr L assessed the father as suffering from a major depressive disorder, his report (Exhibit C3) was reasonably neutral in respect of the father, noting no “significant or disabling continuing symptoms of major depression”, reasonable insight and a wish to remain complaint with treatment, abstinence and attendances at Alcoholics Anonymous. He found no features consistent with a psychotic disorder.

4. However, this view was predicated on background information that did not include the material in the W Hospital records from 2003 that related to the father’s admission to hospital and drug induced psychosis.  The mother said that there were matters undermining the conclusions made by Dr L, and also undermining the father’s credibility.  These related to the father’s failure to disclose drug use in 2003, failure to disclose psychosis, transfer to a mental health facility[32] and use of Avanza from 2007.

   [32] See p 1692 tender bundle re admission to W Hospital emergency department 31 May 2003, indicating the use of methamphetamines, auditory hallucinations, paranoia, delusions.  Reports the use of methamphetamines for the previous week and heroin in the last few months.  Further admission 1 June 2003 (p 1707 tender bundle). showing ice use once per month and the use of heroin to come down off the ice.

5. These were identified to Dr L in his cross-examination. He indicated that the W Hospital records would not be sufficient to change his view regarding psychosis.  The balance of matters not disclosed to him by the father did not enable him to modify his view in the absence of further discussion with the father.

6. In relation to the mother, Dr L indicated that much relied upon the reality of what was reported by the mother.  If her reports as to her father sexually abusing her and the children were true, then no issue of mental illness arises.  If however, they are not based in truth, they may be the product of delusional thinking, or could be the result of unreliable reporting.  If not true, then further assessment of the mother would be necessary.  In his oral evidence, Dr L was asked about failures on the part of the mother to disclose psychological treatment.  This did not alter his view as to the centrality of determining whether the mother’s sexual abuse allegations were true in respect of assessing her mental health.

7. The mother also consulted Ms X during 2012-2013, which noted the mother’s thinking styles that may have the effect of her jumping to conclusions.  While this could be an explanation of the mother’s view that the father has sexually abused the children, the better course in assessing risk lies in assessing the particular matters relied upon. 

The father’s use of drugs

1. The father agreed that he used drugs before he and the mother met.  He also conceded having used ice and heroin on one occasion during the relationship, in 2003, resulting in an admission to the W Hospital.  He asserted that he and the mother used it together.[33] He also said that the incident involved him being at a nightclub and feeling as though he had taken a drug.  He then told his general practitioner that he thought that he had been spiked with ice.  In his oral evidence he expanded this use to be for a period of two months prior to the W Hospital incident.  When questioned as to the hospital records, where the wife had reported to the hospital that he had left the home five days earlier and that he had been attending adult video shops and brothels, he said that he was unable to recall.  The wife also reported to the hospital that the father had been hearing voices for the previous twelve months.  He disagreed with this, stating that what he heard was a dull murmur rather than voices.  His description was that it sounded more like a crowd from a distance.  He then asserted that the taking of ice was a single episode, but that he was unsure when it occurred with respect to his attendance at hospital.  He asserted that he bought heroin after the ice in order to use it to come down off the ice.  He described that he had been clean for a period of about ten years prior to this period, but was unable to explain why he relapsed in 2003.  When seen in the context of the admission records, the father has significantly minimised the period of drug use during the relationship.  However, although this undermines his credibility, the drug use is still for a reasonably confined part of the relationship. 

   [33] Father’s trial affidavit at [141]ff.

2. Dr L recorded the father as telling him that he attended detox in 2002.  The father did not recall telling Dr L this, nor the program, nor what he was detoxifying from.  In his affidavit he recalled no other use of illicit drugs.

3. The father also accepted that he became dependant on prescription medication, Panadeine Forte, to deal with chronic back pain and that this resulted in him attending the Y detox in Sydney, in about 2003.  He says that he was subsequently prescribed suboxone,[34] but that he stopped taking it in 2014 when the mother left.

   [34] Father’s trial affidavit at [145].

Supervised time

1. Initially following separation in March 2015 the father had no contact with the children.  This changed in December 2015 following court orders providing for supervised time.  The time was professionally supervised, with reports from the visits being annexed to the father’s affidavit material.  The mother raised concerns[35] about the conduct of these supervised time sessions, stating that the children provided her with a different account of what occurred during the sessions than that provided by the supervisor’s reports. These differences included the actions leading up to and involving K falling into a body of water, and things supposedly said by the father during visits. Included in the father’s material are email exchanges between Z Group and the father, disclosing that on several occasions following visits the mother had contacted the supervisor regarding her concerns.  Emails sent on 10 and 11 March 2016 from the supervisor to the father indicated that such events as outlined by the mother did not take place.

   [35] Mother’s trial affidavit at [232]-[275].

2. The conduct of the supervised time also does not add to the notion that the father presents as an unacceptable risk.  Even if the children have made the comments asserted by the mother, they should not be accepted as accurately reflecting the visits.

3. While a family report was prepared (Exhibit C1) its recommendations are subject to determinations being made about risk.

The legal principles relating to risk of abuse

1. Since the High Court dealt with the issue of unacceptable risk in M v M (1988) 166 CLR 69 it has been clear law that “the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child.  The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.”

2. The jurisprudence developed by M v M in 1988 established the concept of “unacceptable risk”, as the product of the court’s consideration of “a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access” in the pursuit of orders that will be in the best interests of the child. This concept of “unacceptable risk” received further legislative support (if any was required) in the amendments to the Family Law Act 1975 that established the primary considerations at s 60CC(2) of the benefit of meaningful relationship and the need to protect from harm.

3. Such an approach also reflects the reality of the position confronting a court dealing with an abuse allegation, as identified in Re W (Sex Abuse: Standard of Proof) (2004) 32 Fam LR 249 at 255:

   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.

4. A finding of risk where there is no real risk carries serious consequences for a child in losing the benefits of relationship.  A finding of no risk when there is real risk carries with it not only the risk of harm, but also of a miscalculation of the benefits of relationship.  In striking the balance of determining unacceptable risk under these circumstances it is also necessary to bear in mind, pursuant to s 60CC(2A), the legislative imperative that the protection from harm carries the greater weight of the two primary considerations.

5. It should also be acknowledged that while the degree of risk may be determined independently from an examination of the benefits of relationship, unacceptable risk may not.

Discussion

1. This case involves an allegation that the father presents a risk of sexual abuse to the three children of the relationship.  In support of that allegation the mother points to a number of matters, identified above.  The mother’s affidavit material covered broader ground than that relied upon to establish risk.  At the commencement of the proceedings her counsel helpfully identified the paragraphs relied upon (and hence also the paragraphs not relied upon) to establish risk (Exhibit M1).

2. Accordingly, much of the behaviour alleged against the husband during the relationship was not relied upon from the commencement of the hearing.  By the end of the hearing the scope of what was relied upon by the mother for the purpose of showing that the father constitutes a risk of harm had narrowed further to the matters set out in the body of the judgment.

3. The narrowing was appropriate both given the inability to link a number of the matters to the question of risk, and due to the inability to establish a number of matters alleged on the evidence led.  A particularly cogent example lies in the allegation made by the mother that the father had sexually abused her son.  The basis for the allegation, her conduct surrounding it, and the failure to obtain evidence supportive of the allegation from her now adult son (a witness in the case) all told strongly against an acceptance of such an allegation.

4. The psychiatric opinion evidence is not supportive of the notion that the father is a risk.  He is neither diagnosed with a condition that may cause him to be a risk, nor assessed otherwise as demonstrating thought processes from which risk might be derived.  It should be acknowledged, however, that this is heavily reliant on self-reporting by the father. 

1. While it is apparent that the father was not forthright in his self-reporting regarding his mental health history to the expert, the matters identified as lacking in his self-report were insufficient to undermine the conclusions reached.

2. The psychiatric opinion evidence also does not undermine the matters raised by the mother.  It acknowledges that findings in relation to the matters raised by the mother may have consequences for the assessment of her mental health, but not that a mental health issue can be identified to show that the matters raised are the product of a mental health issue, rather than being grounded in reality.  Although this could provide a potential explanation for the matters raised by the mother, such an explanation can only be supported by findings that the matters raised by the mother are not true.  The mere possibility of this explanation does not assist in determining the truth of the underlying allegations.

3. The evidence in relation to drug use does not establish that the father is a risk to the children.  Whatever the extent of his conduct during his last relapse in 2003, it can be expected that a descent into drug use carries with it issues for the children if they are in his care at the time.  However, despite the fact that the father under-reported his use of drugs surrounding his hospitalisation in  2003, the significant passage of time since the drug use means that the history of drug abuse does not establish a current risk.

4. The question of sexual risk stands to be determined on the matters identified by the mother.

5. Counsel for the father indicated acceptance that the mother genuinely believes that the children have been abused.  This did not equate to an acceptance of the mother’s claims regarding either the sexualised behaviour by the children, nor the comments attributed to the children. 

6. As assessed earlier, many of the matters raised particularly where they were not supported by testimony, should not be accepted.

7. The significance of the matters that remain is reliant to a large degree on whether the behaviour ascribed to the girls is indicative of the exposure of one or both of them to sexual abuse.  It is contended that the sexualised behaviour engaged in by the twins together and separately can be taken to be a pointer to sexual abuse. 

8. A fundamentally limiting factor is that there is a lack of evidence to establish that the sexualised behaviour is indicative of sexual abuse.  Expert evidence was not presented to show that sexual abuse is an appropriate inference.

9. Leaving to one side the question of whether such an inference should be drawn, the drawing of such an inference leaves open the question of the identity of the person who is responsible for the sexual abuse and to which of the twins the abuse was directed.

10. An undisputed matter in the proceedings is that F and E were abused by the maternal grandfather.  The extent of the behaviour is unknown, although the evidence indicates F being touched on the vagina and caused to touch the grandfather’s penis.  In this context the grandfather was also found bathing with the girls.  The degree of access that he had to enable sexual abuse has not been made clear.  However, the mother reported that F’s self-touching of her vagina commenced at this time.

11. If an inference is available that the sexualised behaviour is referable to abuse, then the inference drawn should be that the grandfather is responsible.

12. Such an inference does not prove as a corollary that the father has not sexually abused either of the girls.  However, it means that there is no basis, on the behaviour, to draw the inference against the father based on that conduct.

13. As has been identified above in assessing the behaviours presented to the court by the mother as showing a risk of abuse, inferences should not be drawn that the behaviour is connected to either sexual abuse or the father.  Such inferences, if drawn, would be too tenuous, heavily reliant upon speculation and suspicion.  They should not be used to establish that the father is a risk to the children.

14. It has not been established that the father presents a risk of sexual harm to E, F or, K.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 26 February 2018.

Associate: 

Date:  26 February 2018