Fitzsimmons and Fenwick

[2017] FCCA 115

FEDERAL CIRCUIT COURT OF AUSTRALIA

FITZSIMMONS & FENWICK [2017] FCCA 115

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged eight – existing orders envisage child spending substantial and significant periods of time in care of the mother – mother alleges child has made disclosure of sexual abuse – mother seeks suspension of father’s time – application opposed by father – allegation denied – assessment of risk at interim stage – is risk of harm to child unacceptable if she spends time with father – what is proportionate response to degree of risk identified – questions to be asked – implications for child’s primary carer – nature of supervision – best interests.

Legislation:

Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 61DA, 68L, 69ZW

Cases cited:
Deiter & Deiter [2011] FamCAFC 82
SS v AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
M & M (1988) FLC 91-979
B & B (1988) FLC 91-957
Slater & Light [2013] FamCAFC 4
N & S and the Separate Representative (1996) FLC 92-655
W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892
B & B (1993) FLC 92-357

Applicant: MS FITZSIMMONS

Respondent: MR FENWICK

File Number: ADC 2749 of 2010

Judgment of: Judge Brown

Hearing date: 19 January 2017

Date of Last Submission: 19 January 2017

Delivered at: Adelaide

Delivered on: 25 January 2017

REPRESENTATION

Counsel for the Applicant: Ms Read

Solicitors for the Applicant: Lamont Black

Counsel for the Respondent: Mr Oliveri

Solicitors for the Respondent: Oliveri Rosa Beachside Lawyers

ORDERS

UNTIL FURTHER OR OTHER ORDER:

1. The orders by which the father spends time with the child of the relationship X born (omitted) 2009 are suspended.

2. The father spend time with the child on each Sunday commencing on 29 January 2017 between the hours of 10:00am and 5:00pm and on Australia Day 2017 between those hours subject to the following conditions:

   (a)The time take place in the presence of Ms D and subject to her direct supervision; and

   (b)An injunction issue and the father be retrained from viewing any video material which is not PG in classification during such periods.

3. Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child X born (omitted) 2009 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

4. Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

5. Pursuant to section 69ZW of the Family Law Act, the Department for Child Protection and the South Australian Police are ordered to provide to the court on or before 24 March 2017 the following documents:

   (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.

6. Further consideration of this matter is adjourned to 4 April 2017 at 9:30am.

IT IS NOTED that publication of this judgment under the pseudonym Fitzsimmons & Fenwick is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2749 of 2010

MS FITZSIMMONS

Applicant

And

MR FENWICK

Respondent

REASONS FOR JUDGMENT

Introduction

1. All cases involving allegations of sexual abuse of a child are difficult and confronting.  Those arising at the interim stage are particularly difficult given the untested and limited nature of the evidence likely to be available to the court at an early stage of proceedings.

2. Ms Fitzsimmons and Mr Fenwick are the parents of X, born (omitted) 2009.  They had a brief and unhappy relationship with one another, separating in January 2010.  The mother first commenced court proceedings in July 2010, seeking a recovery order in respect of X, alleging that the father had unreasonably withheld the child from her against a background of significant family violence. 

3. Notwithstanding this difficult background, with the assistance of a family consultant on 25 January 2011, the parties agreed on a regime pursuant to which X spends time with the father on a fortnightly basis, from 9:00am Saturday until 9:00am the following Monday, in the first week; and from 9:00am Wednesday until 9:00am, the following Saturday, in the second week. 

4. Otherwise, X lives with her mother.  The school holidays are shared equally with specific arrangements made for special occasions.  The parties also agreed that they would have the same level of parental responsibility for X. 

5. These arrangements came to an end in late November 2016, when the mother elected not to make X available to spend time with her father.  It is Ms Fitzsimmons’ position that she reached this decision because of her concerns about X’s behaviour particularly at school during much of 2016 and more significantly because of a disclosure which X made to her at her home that she had been exposed to her father masturbating. 

6. Since this disclosure, Ms Fitzsimmons has made a complaint to the South Australian Police.  It is also her understanding that members of staff at X’s school, the (omitted) School, (omitted), have also made notifications of child abuse to the Department for Child Protection.  As will become clear, neither the police nor the child protection authorities have commenced any investigations into the case.

7. Against this background, Ms Fitzsimmons commenced proceedings in this court on 13 December 2016, in which she seeks to suspend the applicable court order allowing Mr Fenwick to spend time with X, certainly until such time as the Police and/or the Child Protection Services have fully investigated the allegations of child abuse referred to them. 

8. Mr Fenwick responded to this application on 13 January 2017.  He vehemently denies behaving in an inappropriate sexual fashion towards X and asserts that Ms Fitzsimmons is lying about what X has told her.  In these circumstances, he has deposed that he is concerned about X’s psychological health, given her primary carer has apparently fabricated such a scurrilous incident concerning him.

9. In his response, the father seeks the immediate reinstatement of the longstanding arrangements pursuant to which X spends time with him.  He also proposes that X be independently represented in these proceedings and a family report be prepared as a matter of urgency.  It is the underpinning of his case that Ms Fitzsimmons has made the allegations in question for reasons relating to her own personal needs rather than those of X.

10. It is beyond the scope of these proceedings to determine definitively whether or not X has been sexually abused.  As I will explain in due course, in cases involving allegations of sexual abuse of a young child who is developmentally immature, it is very often the case that such a child is unable to provide a clear narrative of what has happened.  Rather, the court must focus on X’s best interests as the paramount or most important concern. 

11. Necessarily, this exercise must focus on the degree of risk which may arise for X if she is exposed to a person who may wish to use her as a source of sexual gratification.  At the same time, there may also be significant risks of X suffering emotional harm if a potentially beneficial relationship for her is either severed or artificially curtailed on the basis of an imprecise or uncertain level of risk. 

12. These proceedings are directed towards conducting a preliminary examination of this level of risk in circumstances where the Police have not as yet conducted any investigations and the stance of the Department for Child Protection is unclear, notwithstanding the notification made to it. 

13. Necessarily, this hearing also takes place against a background of high emotion.  The parties do not trust one another and their capacity to communicate about issues to do with X previously extremely limited, is now nil.  All concerned should bear in mind that at this stage I am not making final orders in respect of X’s care nor am I in a position to make significant findings of fact about issues in dispute between the parties. 

Legal principles applicable

1. The central issue, in the case at this stage centres on child protection issues.  However, as I have already pointed out at this interim stage and perhaps even after a final hearing, the court will not be in a position to make definitive findings as to whether or not X has been subject to some form of sexual abuse or exploitation. 

2. Notwithstanding these evidentiary difficulties arising at the interim stage, the court must still nonetheless make a decision and put in place the orders which it considers will best regulate the situation, so far as X is concerned according to the relevant principles contained in the Family Law Act 1975 (the Act).

3. In this context, it is clear that the court is required to consider child protection issues in its decision making processes and should not defer its responsibility in this regard because of deficiencies in the evidence before it or more importantly, because it is not in a position to resolve definitively controversies arising between the parties, including in respect of potential child abuse issues. 

4. In Deiter & Deiter[1] the Full Court said as follows:

   “The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”

   [1]  See Deiter & Deiter [2011] FamCAFC 82 at [61]

5. In SS v AH[2] the Full Court indicated, in the context of discussing the obligations of the court, whilst conducting interim children’s proceedings in circumstances where the evidence available was contradictory in nature but nonetheless raised significant welfare concerns for the children concerned as follows:

   “Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

   [2]  See SS v AH [2010] FamCAFC 13 at [100]

6. In Eaby & Speelman[3] the Full Court endorsed this approach as enabling “the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.”  In essence, the court is not in a position to ignore child protection issues merely because those issues are incapable of definite resolution at the interim stage.  This is the position in the matter currently before the court.

   [3]  See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19]

7. With those strictures in mind, I turn now to the specific provisions within the Act dealing with the making of parenting orders and the relevance of allegations of abuse to such orders.  It is to be noted that although the nature of the hearing is different at the interim stage as opposed to the final hearing stage, the legal principles to be applied are the same.

8. In deciding to whether to make any particular parenting orders in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].

9. The matters which the court must take into account, in deciding how a child’s best interests are to be served are set out specifically in list form in section 60CC.

10. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations.  Generally speaking, the court should give greater weight to the primary considerations which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.

11. There are two primary considerations which are as follows:

    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, from being subjected to, or exposed to, abuse, neglect or family violence.

12. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

13. In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”  Future protective issues for a child are the court’s priority. 

14. Other specific criteria relating to how the court is directed to consider how the best interests of any children concerned may be served by any order which is made are set out in section 60CC(3). There are fourteen such criteria which are categorised as being additional considerations.  Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.

15. Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

16. Although the court is directed to consider many factors in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice for the child affected in every case.[4] 

    [4]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

17. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[5] As such the various factors in section 60CC are inclusive but not exclusive of one another.[6] 

    [5]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

    [6]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

18. Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act 1975.  It means:

    “(a)  an assault, including a sexual assault, of the child; or

    (b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

    (c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

    (d)    serious neglect of the child.”

19. As indicated above, in Deiter, the Full Court has directed that in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity to any individual particularly any child who will be potentially affected by it.

20. Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved.  Risk arises in every aspect of human endeavour.  No individual’s life including the life of a child can be rendered entirely free of all risk.  In this court, as with life, it is a question of balancing and assessing the degree of risk arising on an objective basis. 

21. The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it.  These risks include the risk of exposing a child to a parent who is incapacitated by the consumption of drugs or alcohol; compromised parenting as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; and, as in the present case, the risk of a child being exposed to a parent’s sexual behaviour or more seriously the child being sexually assaulted or used as an object of sexual gratification.

22. In M & M, ^[7] a case which is factually congruent with the current matter because it deals with an allegation of sexual abuse, the High Court formulated a test which has since been referred to as the “unacceptable risk test” as means of balancing the benefits arising for a child of interacting with a parent with possible detriments arising from exposure to that parent.  Essentially the court should not grant time to a parent with a child if the situation envisaged would expose the child concerned to an unacceptable risk suffering some form of harm or abuse.

    [7]  See M & M (1988) FLC 91-979 at page 77,081

23. In the current case, I must analyse the evidence available to me relating to the various concerns raised by Ms Fitzsimmons to determine the degree of risk arising for X, of spending time with her father.  If, after this analysis I consider any such risk to be unacceptably high, I should not countenance X spending time with her father in such circumstances.  The standard of proof applicable to the assessment of risk in this context is the ordinary civil standard.[8] 

    [8]  See B & B (1988) FLC 91- 957 at 76,935

24. The Full Court in Slater & Light expressed the task of assessing risk in the following terms:

    “The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [9]

    [9]  Slater & Light [2013] FamCAFC 4 at [37]

25. Cases involving allegations of sexual abuse are particularly difficult.  Given the context in which such allegations arise which very often include a child of tender years whose verbal and cognitive skills are not fully developed; where there is a lack of corroborating physical evidence; and the only witnesses to the alleged abuse are the victim and the alleged perpetrator concerned; it may not be possible for the court to make a definitive finding one way or another whether sexual abuse did or did not occur.  All these factors arise in the current case with the child’s disclosure to Ms Fitzsimmons being the precipitating factor in X being withdrawn from her father. 

26. Nonetheless, notwithstanding these difficulties, the court must attempt to analyse as best it can, all the available evidence because the consequences of getting the case wrong are potentially horrifying.  On the one hand the potential detriment to a child of being subjected to sexual abuse represents:

    “…the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development.  Its effects, in both the short and long term, can be devastating.”[10]

    [10]  Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892 at [94]

1. On the hand, it may be equally emotionally devastating to a child to deprive him or her of a living and worthwhile relationship with a parent on the basis of a risk which is nebulous or elusive in nature, but may remain very real and concrete in the mind of the other parent concerned. 

2. In addition, in some cases allegations of sexual abuse (and subsequent allegations that some manipulation of a child has occurred in order to secure some form of damaging disclosure) occur in the aftermath of relationship breakdown or where the parents concerned communicate poorly, if at all, because of antipathy and suspicion.

3. For obvious reasons, such circumstances provide fertile ground in which words or actions can be misconceived, misunderstood or indeed be manipulated.  Regrettably, it is also not unknown for allegations of sexual abuse to be made for tactical or mischievous reasons.  It may be difficult to differentiate between these various scenarios and in some cases there may be a conflation of them.

4. As Fogarty J said in N&S and the Separate Representative:

   “…courts must be aware that not all allegations of sexual abuse are true.  False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings.  Ambiguous events often have an innocent explanation.”[11]

   [11]  See Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W (supra) at [95]

5. In W and W [Abuse allegations: unacceptable risk][12] the Full Court summarised a number of authorities dealing with abuse allegations.  In particular, the Full Court approved the comments of Fogarty J in N & S and the Separate Representative[13]:

   “Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.

   In asking whether the facts of the case do establish an unacceptable risk the court will often by required to ask such questions as: What is the nature of the events alleged to have taken place?  Who has made the allegations?  To whom have the allegations been made?  What level of detail do they involve?  Over what period of time are the events alleged to have occurred?  What are the effects exhibited by the child?  What is the basis of the allegations?  Are the allegations reasonably based?  Are the allegations genuinely believed by the person making them?  What expert evidence has been provided?  Are there satisfactory explanations for the allegations apart from sexual abuse?  What are the likely future effects on the child?

   This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown.  The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case.  But it is essential that questions like these be asked.”

   [12] W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892

   [13] See N & S and the Separate Representative (supra) at page 82,713-82,714

6. In the current case, I will endeavour to analyse the available evidence and pose to myself these types of question.  However, this approach at this current stage of proceedings is not without its difficulties.  Ms Fitzsimmons consulted her current solicitor a few days after X made the alleged disclosures to her.  Thereafter, her affidavit was hurriedly prepared.  I suspect in a heightened emotional atmosphere.  For obvious reasons such circumstances do not lend themselves to a cool appraisal of what a child has said or done. 

7. In addition, on 26 November 2016, Ms Fitzsimmons made a complaint to police which she reiterated on 30 November 2016.  As yet, no police officer has formally interviewed X and it is uncertain to me if and when any such interview will occur.  Accordingly, the Police have not as yet conducted an objective inquiry into the matter. 

8. I have further been advised that the Department for Child Protection has been notified of the allegations concerning X’s behaviour by her school and these concerns have been tied to the matters raised by Ms Fitzsimmons with the Police.  However, as yet, the Department has not determined whether it will allocate the case to one of its child abuse investigation teams. 

9. Finally, Ms Fitzsimmons has not been able to obtain any reports or other evidence from teachers at X’s school or the psychologist/counsellor whom she consulted during 2016.  Such material may throw a light on whether X has been acting out at school and the possible reasons for such behaviour. 

10. Necessarily, these circumstances make the appraisal of risk arising from X spending time with her father all the more difficult and problematic.  Ms Fitzsimmons urges caution upon the court, until this material is to hand.  On the other hand, Mr Fenwick points to the fact that he has not interacted with X whatsoever for a period approaching two months which has included Christmas time.  It is his case that he is gravely concerned at the long period of time during which he has not been able to interact with X.

11. During this period he has not been approached by anyone in authority to provide his explanation of what is alleged against him.  Accordingly, from his perspective it is deeply unfair to him and detrimental to X that the relationship between them should be severed so dramatically on what he believes are spurious grounds which he believes arise because of Ms Fitzsimmons’ unreasonable antipathy towards him or because she has misconstrued something X has innocently said to her. 

12. Ms Fitzsimmons has not provided any evidence, expert or otherwise, to indicate how she would cope emotionally if the court determines X should spend some time with her father at this stage.  It is to be expected, however, that she would greet such an outcome with dismay.  It is clear that the parties do not trust one another and have not communicated face to face for a number of years. 

13. Such a state of affairs for obvious reasons does not lend itself to parents working through issues together with a view to identifying why X has behaved in the way in which it is said she has and arranging an appropriate response for such behaviour.  In such circumstances, it is to be expected that Ms Fitzsimmons would think the worst of Mr Fenwick.  Certainly in court she presented in a highly anxious manner.

14. In B and B [14] the Full Court said as follows:

    “…It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection.  As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.”

    [14] B & B (1993) FLC 92-357 at 79,780

15. Accordingly, in this case the risk to X is multifaceted and complex, comprising of the following elements which remain inchoate: 

    ·the risk of Mr Fenwick using X as a source of personal sexual gratification in future;

    ·the risk that X has been exposed to some form of sexual activity by her father;

    ·the risk that X is fearful of her father because of his previous conduct which will result in the child sustaining some form of psychological harm if she is exposed to him again;

    ·the risk that X will either lose or have unduly confined for no proper reason an otherwise worthwhile and loving relationship with her father;

    ·the risk that Ms Fitzsimmons genuinely but erroneously believes Mr Fenwick has sexually abused X in which circumstances if the child spends time with her father, it will render Ms Fitzsimmons anxious and insecure and so compromise her psychological equilibrium with implications for her capacity to parent X adequately.

16. These risks are different in nature and as a consequence are likely to call for different responses.  In these circumstances, a process of supervised time may constitute an appropriate response to the various components of the risk arising.  In the current case, neither party advocates any process of professionally supervised time.  The father seeking to resume the previous regime; the mother its total suspension. 

17. However, the court is not bound to choose between the parties’ preferred outcomes.  Rather it must remain focussed on what is best for X.  In such circumstances, it makes sense for the court to at least consider some form of supervision, particularly given the close nature of X’s relationship with her father and the extent of time which may elapse before the two can meet with one another.

18. The reality, in metropolitan Adelaide at the present time, is that there is an extensive waiting period before any family can take part in a process of professionally supervised time.  When time is available it is limited to two hours per fortnight.  On any view, this would mean Mr Fenwick and X would have a very different type of relationship in a temporal sense than that which they have enjoyed pursuant to the previous court ordered arrangements. 

19. In addition, it is a fairly common phenomenon that a parent feels a level of resentment that he or she is only able to spend extremely limited periods of time in what are perceived to be artificially constrained and institutionalised circumstances of a children’s contact centre.  Two hours per fortnight is not a long time in which to sustain a child’s significant relationships and retain their level of meaning.

20. In all the difficult circumstances of this case, it is therefore necessary to think of some form of lay supervision in order to balance the various components of the risk as identified.  In W and W[15] the Full Court said as follows:

    “We appreciate that the decisions in these cases have the potential for long term consequences for a child, and they require very careful consideration.  We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement.  The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.”

    [15] Ibid at paragraph 115

The mother’s evidence

1. X commenced school at (omitted) School at (omitted) at the start of 2016.  It is the mother’s evidence that the child has demonstrated sexualised behaviour at school during much of 2016.  She also asserts that X found it hard to make friends at the school.  Ms Fitzsimmons further deposes that during the year gone by, X became resistant to spending time with her father and began to display a nervous tick.  Ms Fitzsimmons also asserts that X was impolite and angry towards her. 

2. In Term 2 of 2016, Ms Fitzsimmons deposes that X was involved in an incident with three other girls at her school during which she encouraged one of the girls to kiss her.  This occurred in a play tent outside the school’s front office.  X is also reported by Ms Fitzsimmons to have said to other girls “let’s play the sex game”. 

3. During Term 3, Ms Fitzsimmons deposes that she was advised by the school that X had stroked the vaginal area of another girl.  Ms Fitzsimmons also asserts that X plays with her Barbie Dolls in an inappropriate and sexualised fashion.  This has led to the child being referred to the school’s psychologist.  I have not been provided with any material from either the school or the psychologist in respect of these alleged incidents.  It is Mr Fenwick’s position that he has not been informed by the school’s authorities of any concerns which they hold in respect of X’s allegedly sexualised behaviour. 

4. It was against this background that Ms Fitzsimmons alleges that X disclosed to her, on 14 November 2016, the following:

   “My daughter came to me and said words to the effect ‘dad asks me to his bedroom and we watch moves’ and ‘dad would cuddle me and make me watch stuff on tv’.  I remember asking my daughter what stuff she was watching, I recall my daughter say words to the effect ‘you will get angry at me if I say that word; I knew straight away the word that my daughter was referring to and that the word was ‘sex’, I had been encouraging my daughter all year to stop using the word sex as it revolved around her behaviour.

   Although I was in a state of shock I recall my daughter saying words to the effect ‘I tried to run away from daddy and tell him I didn’t want to watch’ I also recall my daughter saying words to the effect ‘daddy yells at me if I try to walk away and she tried climbing out the window.

   Over the next few days my daughter would tell me more things when she realised that I was not going to shout at her or get her in trouble.  I recall one day that my daughter told me words to the effect ‘daddy was standing near his bed and was squeezing his willy and weird stuff came out that he wiped it with a tissue.”[16]

   [16]  See mother’s affidavit filed 13 December 2016 at [31] – [33]

5. It is the submission of counsel for the mother that the child has given graphic detail which given her age and likely level of understanding of sexual matters, is congruent with her having witnessed her father masturbating to ejaculation in her presence. 

6. However, the child did not place this behaviour in any context.  As such, it is not possible for me to ascertain whether the child was directly involved as a source of sexual gratification by Mr Fenwick or whether the child came upon him inadvertently.  In any event, the father vehemently denies that the incident occurred as X is said to have reported it. 

7. Following this disclosure, Ms Fitzsimmons asserts that she arranged for X to meet with the school psychologist, Ms K.  The child apparently played a card game with Ms K, in which she was asked to attribute her emotions particularly in regards to her father, by picking cartoon bears depicted upon the cards concerned. 

8. This activity apparently led to Ms K making a mandatory notification to the Department for Child Protection.  However, I have not been provided with any evidence from Ms K, or any explanation as to what X did or did not say to her. 

9. Under the heading further information from the child, Ms Fitzsimmons deposes as follows:

   “Since all of this has come to light I say that my daughter has told my mother and I about other things that have been happening to her whilst in her father’s care.  My daughter has told us the following had occurred:

   i.     That her father makes her watch naked people and that their private parts are naked.

   ii.    That the naked people were rubbing each other, that they were in a bar and asked for a hotel room.

   iii. That naked women were kissing a man’s belly and then put her mouth on the man’s thing.

   iv.   That during the movie the word ‘fuck’ was used a lot.

   v.    That my daughter is scared of what may happen.

   vi.   That she has watched lots of moves with dad.

   vii.  That dad has wiped his willy with a tissue many times in front of her.”[17]

   [17]  Ibid at paragraph [41]

10. Ms Fitzsimmons’ mother has not provided an affidavit in these proceedings.  In addition, the context of these various disclosures and the verbatim statements made by the child, have not been provided. 

The father’s evidence

1. Mr Fenwick is employed as a (occupation omitted) by (employer omitted).  He is engaged to be married.  His fiancée is Ms D.  The two have known each other for approximately two and a half years.  Ms D is a self-employed (occupation omitted).

2. After the parties separated, Mr Fenwick became involved in another relationship.  As a consequence, he has another child, A, who is aged twenty-three months.  The father and A’s mother have an amicable relationship.  As a consequence, A spends up to two or three days regularly in his father’s household and so has spent regular periods of time with X.  It is the father’s case that X and A are close.

3. It is Mr Fenwick’s understanding that X has been attending upon Ms K because of her poor social skills and learning difficulties.  It is his case that X has never displayed any sexualised behaviour in his presence.  He alleges that the mother has fabricated the child’s disclosures of exposure to sexual behaviour, on his part. 

4. It is the father’s evidence that he and the mother communicate in respect of arrangements to do with X, by way of text message which are reasonably cordial.  In this context, he points to the fact that the mother has sent him text messages since the alleged disclosures which are uncontroversial and make no reference whatsoever to Ms Fitzsimmons’ concerns. 

5. It is his position that the child is aware of the word “sex” because she watches the television program Sex in the City, with her mother.  As such, no great weight should be attached to the fact that X has used this word in ordinary conversation.  Otherwise, it is the father’s position that, given her age, X has no understanding of sexual intercourse or sexual matters generally. 

6. It is the father’s evidence that X is a nice and polite child.  He concedes that there has been an incident involving her at school involving inappropriate kissing/touching with other girls but from his understanding this has related to X not understanding what is socially appropriate rather than her acting out in a sexual manner.  It is Mr Fenwick’s evidence that X has explained the incident as she and the other girls playing kiss chasey. 

7. The father asserts that he has never observed X, to play with her dolls in any sexualised way.  He asserts that she plays with her dolls and teddies pretending they are a family of which she is the mother.  He asserts that X often places her toys in A’s capsule. 

8. It is the father’s position that the mother has raised these issues of alleged sexual abuse against a background of her wanting to reduce his time with X.  It is his case that Ms Fitzsimmons is placing pressure on X, in this regard, which is causing her anxiety.  It is also his case that the mother is hyper-vigilant so far as X is concerned which causes her to attend unnecessarily and inappropriately at X’s school. 

9. It is also the father’s evidence that he carefully monitors what X watches on television.  He and Ms D have a television set in their bedroom where they watch adult movies, defined by him as anything rated over PG.  X watches television on a set in the lounge room.  Mr Fenwick denies that X has ever attempted to run away from him.  To the contrary, it is his position that she has indicated a wish to spend more rather than less time with him, Ms D and A. 

10. In his affidavit material, the father has made criticisms of the mother’s parenting of X.  He asserts that she does not provide X with appropriate school lunches; has not provided the child with clean underwear; and does not attend properly to hygiene needs. 

11. More significantly, it is his case that the mother is intent on emotionally manipulating X in order to weaken her relationship with him.  He describes Ms Fitzsimmons as having a high conflict personality.  As a consequence, it is his case that he attempts to keep face to face communications with Ms Fitzsimmons to a minimum.

12. The father also relies on an affidavit provided by his mother – X’s paternal grandmother – Ms I.  She is a retired (occupation omitted). She unexpectedly came across the mother and X, at a shopping centre on 1 December 2016, shortly after the mother had elected to withhold X from her father. 

1. It is Ms I’s evidence that she asked Ms Fitzsimmons why X had not spent time with her father as normally scheduled.  In this context, Ms I asserts that the following occurred:

   “I asked the mother what is happening with X spending time with the father, as I was aware that X did not spend time with her father, the Respondent, pursuant to the Court Order. X was to spend time with the father from 30th November 2016 until 3^rd December 2016 and this had not occurred. The mother replied, ‘Well it is not going to happen ever again’ or words to that effect.

   X was sitting in between my mother and myself and said, ‘Yes because my Dad...’ and stopped as she looked at the mother. The mother looked at her with a disappointing gesture and said ‘If you want to tell it's up to you.’  X then proceeded to say, ‘My mummy isn't going to let me go to my dad's because one day I was watching Toy Story in the living room, when it finished I went into my dad's bedroom and he was watching an adult movie with sex in it.’ While X was saying this she continually looked to the mother. X was telling me this story very calmly with no emotion and was using words she does not usually use herself. Out of nowhere X abruptly stopped and said to the mother, ‘Mum can I have money to buy some lollies?’ the mother gave her $5.00. X went to buy some lollies from the stall nearby.

   While X was away buying some lollies the mother said ‘Your son actually called X into his room on purpose’ and despite X then returning and sitting between us, the mother continued saying ‘While he was watching the sex tape, he was playing with himself. Ms I, he is grooming her, X said this to me.’

   I felt sick to hear the mother saying this to me but it concerned me that X was hearing the conversation and appeared as if she had heard such adult conversations many times previously.

   I looked at X and said, ‘Your Dad loves and misses you.’ X replied ‘Me too, and maybe I am going to see him when I am 16 or 14, is that right Mum?’ The mother rolled her eyes and sarcastically said ‘Sure’.”[18]

   [18]  See Ms I affidavit field 13 January 2017 at paragraphs 8-12

2. The obvious implication of Ms I’s evidence being that X was under some pressure emanating from her mother to say what she said to her grandmother, which is not consistent with the disclosure delineated in Ms Fitzsimmons’ affidavit.  The father also relies on his mother’s affidavit to support his assertion that X is likely to be upset because she has not seen her father for a significant period of time. 

3. As a fall-back position, the father is open to the possibility of Ms D being delegated to supervise his time with X.  She has not as yet provided a formal affidavit in the proceedings.  In these circumstances, I elected to take some oral evidence from her in order to ascertain what sort of a person she was. 

4. The tenor of Ms D’s evidence (and indeed the submission of counsel for the father, Mr Oliveri) was that Mr Fenwick, Ms D, A and X represented a normal family unit which engaged in a normal suburban existence.  Ms D described X as a sweet little girl, who enjoyed (hobbies omitted) and playing with her dolls.  She also asserted that X had a good relationship with A and with her. 

5. As previously indicated, Ms D is a self-employed (occupation omitted).  From time to time, X has accompanied her to work where she enjoys (omitted) in Ms D’s (business omitted) facilities.  The picture Ms D painted of her relationship with X was of happy but unexceptional one.

6. Ms D deposed that she had never had a conversation with Ms Fitzsimmons and, as a consequence, did not know her.  Ms D was upset when she described how the parties exchanged X between them.  The child apparently walks from her mother’s car to the father’s door after Ms Fitzsimmons has signified her arrival with either a text message or the sounding of her car horn.  This is to ensure that the parties never come into direct contact with one another.  It is indicative of a difficult and conflicted parenting relationship. 

7. The father works normal hours and has Monday and Saturday’s off, as well as some Sundays.  Ms D works, by appointment, from Tuesday to Saturday.  Ms D described her fiancé as having a normal sexual orientation.  As such, she did not have any concerns about him accessing pornography.  She confirmed that Mr Fenwick had a play station and access to Foxtel in both the bedroom and the lounge room.  It was her evidence that X watches kids netfix in the lounge room and A sleeps in a cot in the bedroom which Mr Fenwick shares with Ms D.

8. I accept that Ms D is not likely to be anything other than highly supportive of her fiancé.  Nonetheless she impressed me as a sensible and level-headed person.  In these circumstances, the prospect of Mr Fenwick behaving in an inappropriate sexualised fashion or accessing some form of pornographic material in X’s presence seems to me to be extremely remote if Ms D is present in the home and supervising.  I assess her to be a sensible and appropriate supervisor. 

Conclusions

1. One’s natural inclination, when confronted with allegations that a child has been exposed to a parent knowingly masturbating in the child’s presence, is disbelief that an adult could behave in such a disgusting and despicable fashion.  However, the sad reality is that parents do sexually abuse their children and expose them to all manner of sexual aberrancy.  As a consequence, the court must remain vigilant in respect of all allegations of sexual abuse, no matter how seemingly improbable.

2. As with the majority of parenting cases arising at the interim stage, the present matter falls for determination by reference to the two primary considerations, arising in section 60CC, noting the priority to be given to protective concerns.

3. However, in my view, this priority does not mean that the court should not give some level of consideration to the benefits which a child is likely to derive from having a meaningful level of relationship with a parent.  The aim of the legislation is to ensure that the court does not overlook issues of protection because of an undue emphasis on parental relationships.

4. In the present case, it is clear to me that X knows her father well.  There has been in place an arrangement which has seen X spending extended periods of time in her father’s care since mid-2010.  In my view, this is a significant factor.  Clearly X and her father are not strangers to one another.

5. The parties are in vehement dispute as to the nature of X’s relationship with her father.  From Mr Fenwick’s perspective, it is a normal and happy one.  He denies that the child has ever attempted to run away from him or has ever been resistant to spending time with him.  His position is supported by the paternal grandmother and by Ms D.  Necessarily, Ms Fitzsimmons does not agree.

6. In these circumstances, in my view, notwithstanding the gravity of the allegations of sexual impropriety levelled against the father, it would be a significant thing to continue the suspension of a relationship between the two, quite possibly for a lengthy period of time, whilst the authorities conduct their investigations. 

7. I have not been told when it is anticipated police officers will interview X, if indeed they plan to do and what form any interview will take, particularly whether it will be a full forensic interview.  Obviously I am not in a position to anticipate what, if anything, she will say in respect of the disclosures attributed to her.

8. One of the grounds on which Ms Fitzsimmons opposes the father spending any time with X is that, if the two do engage directly with one another, it is likely to compromise the integrity of any police investigation.  It is likely to be the case that, given the father asserts that the mother has fabricated the allegations against him he fears the mother will be intent on ensuring that X says things to the police which will incriminate him. 

9. Accordingly, both parties are likely to have concerns about the other influencing the integrity of any investigation.  I have not received any indication, directly from the police or child protection as to any view they hold on the issue.  As such, given the effluxion of time since the alleged disclosures, I do not consider that issues relating to the possible compromise of the police investigation can be regarded as central to whether or not the father should spend time with the child in the short to medium term.  If what Ms I says is accepted, it could conceivably be argued that any subsequent attempt to interview X formally will be subject to some form of challenge because of undue influence.

10. Rather, in my view at this stage, the court must focus on the degree of risk arising for X, from the circumstances delineated in the case, and put in place a response to the degree of risk so identified.  At this stage, I do not have any objective evidence regarding the allegations concerning X acting out in a sexualized manner whilst at her school in terms of her kissing or touching other children and playing with her dolls in a sexual manner. 

11. These are the types of behaviour which, in my view, have a significant potential to have an innocent explanation.  As a consequence, of themselves, they are not factors which should lead me to the conclusion that exposure of X to her father constitutes an unacceptable risk for the child.

12. The more serious allegation is that the child has been exposed to pornography and whilst this has occurred she has been used as a means of obtaining sexual gratification by the father.  It is the mother’s case that it is inconceivable that X, given her age and lack of knowledge of sexual matters, could accurately describe the act of an adult male ejaculating and then cleaning himself.  Accordingly, it must be the case that she has been exposed to a serious example of sexual misconduct referrable to her father.

13. I appreciate that it is likely the mother’s affidavit was hastily prepared and, in such circumstances, in the absence of cross-examination I must exercise care and must not expose to the written document to an eye too closely focussed on perceiving error or inconsistency.  However, as Fogarty J pointed out, allegations of sexual abuse must be subject to some scrutiny, particularly in respect of the level of detail which they provide.

14. The 14 November disclosure speaks of the child being cuddled whilst the father watches stuff on tv.  Again a benign explanation is readily available for such a conversation.  The mother then asserts that she asked what sort of stuff she was watching. No direct answer was provided by X, with the child expressing dismay at the prospect of her mentioning the word sex.

15. In my view, the fact that X was apparently dismayed at the use of the word sex cannot, of itself, indicate that she has been exposed to any form of sexual abuse.  The word is in common usage and indeed is in the title of a popular television program.  Although it may be regarded as inappropriate viewing, for a child of X’s age, exposure to the program or one with a similar content directed towards adults cannot be the basis for suspending a parent’s time with a child.

16. The mother professes herself to have been in a state of shock by the disclosure.  I am not altogether sure why she should be so, given that the child did not specifically say what the stuff on tv was, other than by innuendo, implying it had something to do with sex.  Otherwise it is  Ms Fitzsimmons who makes the connection between what the child said about watching stuff and her apparent unwillingness to disclose more with what has been described as her earlier concerning behaviour at school. 

17. Accordingly, it cannot be concluded from the allegedly verbatim accounts of X, provided by Ms Fitzsimmons, that the stuff she was allegedly compelled to watch on tv was pornography, rather than a salacious television program designed for adults such as Sex and the City, which may be deemed unsuitable for a child of X’s age but is not directly harmful.

18. Thereafter, Ms Fitzsimmons deposes that X disclosed more things which she (Ms Fitzsimmons) does not elaborate upon in any way whatsoever until one day the child is alleged to have made the most telling disclosure of her father masturbating.  What should be noted about this allegation is that the mother does not place it in any context or disclose how it came about – did the child spontaneously make the disclosure; was it made in respect of questioning; if so, what were the questions asked. 

19. The same issues arise in respect of what Ms Fitzsimmons asserts has come to light in the period since.  None of these alleged disclosures is placed in any context nor is any indication given as to how they came about.  The maternal grandmother has not been called upon to provide her account of what happened and how.

20. Mr Fenwick strenuously denies the allegations.  The account provided by Ms Fitzsimmons is not consistent with the statements allegedly made by X to her paternal grandmother.  If true, it provides an innocent explanation for the child’s first disclosure made on 14 November.  Otherwise, Ms I paints a picture of a child who has been involved in an acrimonious dispute between her parents.

21. I accept that, on balance, X is likely to have a close relationship with Ms D and A.  It also seems that she loves her paternal grandmother.  As such, it is a significant level of change for X to be deprived of the benefit of these relationships. 

22. X’s view of the present state of affairs is difficult to glean at this stage of proceedings.  The mother’s position being that she is glad not to be seeing her father; Ms I being of the view that X is missing her father and paternal family.

23. Both parties assert that the other has significantly compromised parenting capacity.  This issue cannot be resolved at the interim stage.  However, until recently each of them, ostensibly at least, was content to acquiesce to a regime which saw X spending significant periods of time, including overnight time with them both.

24. Given the polarised positions of the parties, it is not appropriate for the presumption of equal shared parental responsibility to be applied to their and X’s situation pursuant to the provisions of section 61DA (3) of the Act. Accordingly, it is not necessary for the court to consider either an equal time or substantial or significant time regime.

25. In my view, this is a case where the issue of risk cuts both ways.  In my view there is a risk for X of being deprived of having the benefit of her loving relationship with her father, half sibling and Ms D, albeit possibly only on a temporary basis.

26. Obviously there is also the risk that Mr Fenwick has utilised the child to secure some form of sexual gratification for himself and will do so again.  This risk turns on the child’s alleged disclosure to her mother, which has not as yet been subject to any independent scrutiny and, in terms of what X herself is alleged to have said may not be capable of such scrutiny, even if she is interviewed by police, given her age.

27. At this stage, the alternatives for the court appear to be as follows.  Firstly, suspend the order for the father to spend time with the child until such time as more evidence is to hand in the form of material from the school and the results of any police or child protection inquiry are known.  The difficulty with this approach is that a significant period of time has already elapsed and it is not clear whether there will be any further cogent evidence to hand following any such adjournment.

28. Secondly, suspend the current order in the light of the gravity of the allegations arising but allow some time, given the potential for X’s relationship with her father to be damaged by an excessive period of time during which the two are separated from one another.

29. Given the uncertainty surrounding the first option and what it may reveal, I prefer the second.  In my view, it is a proportionate response to the degree of risk arising in the case, if X spends one weekly period of time, with her father, during daylight hours and subject to the supervision of Ms D.

30. Given my assessment of Ms D, it seems highly improbable that she would permit the father to watch pornography whilst X is present in the home which she shares with him.  I accept that she would not tolerate the father directly masturbating in the child’s presence.  It also seems highly doubtful that she would be unaware that the father was masturbating in the house on any surreptitious basis and X may be either actively or inadvertently involved in such an activity.

31. I appreciate that Ms Fitzsimmons is likely to have an anxious disposition certainly where X is concerned.  I also appreciate that she does not know or trust Ms D.  However, she did have the opportunity, as I did, to observe her in the witness box.  In my assessment, she presented as a normal and well-adjusted person. 

32. As such, in my view her presence, particularly if time only takes place during daylight hours, should assuage the concerns of most individuals including Ms Fitzsimmons, certainly in the absence of any specific evidence which indicates that she is a person particularly susceptible to anxiety or worry.

33. I will make an order that X be independently represented in the proceedings.  I do so primarily so that information about her can pass easily from the various professionals including her teachers and school counsellor to the court.  I will adjourn the proceedings for a period of ten weeks to allow the appointment to be made and also so that the police can conclude their investigation and, I hope, inform the ICL of their outcome.

34. In this context, I will make an order pursuant to section 69ZW of the Act requiring both SAPOL and the Department for Child Protection to provide all documents compiled by them in respect of any notifications of abuse receive by them in respect of X.

35. Given the father and Ms D’s working schedules, the day on which the time can most easily take place is a Sunday.  I will direct that the father spend time with X, each Sunday, commencing 29 January, between 10.00 am and 5.00 pm.  Given that the father did not spend time with the child either on her birthday or over Christmas, I will also order that he spend time with X on Australia Day during the same hours.

36. In my view, this is a cautious approach given the potential implications of the allegations for X, if there is any shadow of truth arising from them.  I am satisfied that the orders proposed will protect the child directly from being the subject of any direct abuse in the sense envisaged by the definition provided by section 4 of the Act.

37. At the time, they will provide for some limited support of the relationship between father and child which has hitherto been central in the lives of both of them.  For the reasons provided above, I cannot be certain on the balance of probabilities that abuse has occurred.  The orders enable more investigations to occur if the authorities deem them necessary.

38. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:       25 January 2017