Fitzwater and Fitzwater
[2018] FamCA 1013
•18 October 2018
FAMILY COURT OF AUSTRALIA
| FITZWATER & FITZWATER | [2018] FamCA 1013 |
| FAMILY LAW – CHILDREN – Magellan List – Final parenting orders – Where there are two children of the marriage aged six and two – Allegation of unacceptable risk of sexual abuse by the father – Where the children live with the mother and the father has spent only supervised time with the children since January 2017 – Where the mother alleges the daughter made statements on several occasions during the marriage and subsequently demonstrated to her that the father digitally penetrated her vagina – Where the mother asked the father to leave the former matrimonial home as a result of what the child told her – Where there have been allegations of family violence during the marriage and an interim intervention order made by consent of the father without admission of the allegations in the complaint – Where the child has not made any complaint about the conduct of the father to police, any professional or the family consultant – Where there are no allegations made that the father has acted inappropriately towards the male child of the parties who was aged eight months at separation – Where the father denies the allegations and seeks that the children live with him – Where the father maintains that the mother is malicious and has conspired with the maternal grandmother and maternal aunt to make false statements about what the child told them with the purpose of ending the marriage and obtaining a property settlement – Where the father maintains that the mother is paranoid with child sexual abuse because her work has some connection to child abuse – Where the Independent Children’s Lawyer submits there is not sufficient evidence to make a finding that the father is an unacceptable risk – Where the Independent Children’s Lawyer does not support the father’s application for change of residence – Where the mother has a genuine belief on reasonable grounds that the child is telling the truth – Finding that the father is an unacceptable risk – Order that the children live with the mother and spend supervised time with the father – Order that the mother have sole parental responsibility. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 65DAC Evidence Act 1995 (Cth) ss 79, s 140 Family Law Rules 2004 (Cth) r 15.49 |
| Donaghey & Donaghey [2011] FamCA 13 In the marriage of Hall (1979) FLC 90-713 Johnson & Page (2007) FLC 93-344 M v M (1988) 166 CLR 69 Maluka & Maluka [2011] FamCAFC 72 N & S and the Separate Representative (1996) FLC 92-655 Re Andrew (1996) 20 Fam LR 538 Slater & Light (2013) 48 Fam LR 573 W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 |
| APPLICANT: | Ms Fitzwater |
| RESPONDENT: | Mr Fitzwater |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 11465 | of | 2016 |
| DATE DELIVERED: | 18 October 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 5,6,7,8,9,13,14,15,19,20, 21, 22 March 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Miss Harris |
| SOLICITOR FOR THE APPLICANT: | Carew Counsel Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Miss Wheeler& Mr Schmidt |
| SOLICITOR FOR THE RESPONDENT: | Tien Tran Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Miss Boymal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
IT IS ORDERED THAT
With the exception of the Airport Watch List order made by Judge McNab in the Federal Circuit Court on 23 November 2016, all previous parenting orders are discharged.
The mother have sole parental responsibility for the child X born … 2012 and the child Y born … 2016 (collectively “the children”) and keep the father advised of all major long term decisions she has made for each of the children.
The children live with the mother.
The father spend time and communicate with the children as follows:
(a)Each Thursday at the father’s election from 4.00 pm to 6.00 pm with such time to be supervised by Family Contact Service at the father’s expense at locations agreed between the parents in writing;
(b)Each alternate weekend on Saturday from 10.00 am to 6.00 pm and on Sunday from 10.00 am to 4.00 pm;
(c)On one day of the Fitzwater family Christmas held annually in November from 10am until 6pm;
(d)On Christmas Day from 9.30 am to 12.00 noon;
(e)On Father’s Day from 10.00 am to 4.00 pm;
(f)With such time as set out in Order 4 (b) to (e) to be supervised by one of the following supervisors:
(i)the paternal cousin Ms B;
(ii)the paternal grandmother Ms C Fitzwater; or
(iii)any other suitable person agreed in writing by the parents;
(g)Such further and other times as may be agreed in writing between the parents.
Order 4 (b) to (e) of these Orders is conditional upon Ms C Fitzwater and Ms B signing an enforceable undertaking to the Court, the original of which will be filed with the court and placed on the court file, with copies to be provided by the father to the mother (or her solicitor) and the Independent Children’s Lawyer setting out that:
(a)They have agreed to supervise the time between the father and the children;
(b)They understand the nature of the undertaking and the seriousness of the role of the supervisor;
(c)They understand that the father has been found to be an unacceptable risk of sexual abuse of X;
(d)They are to be present at all times during each spend time period of which they are to be supervising;
(e)They are to have both or either of the children within their hearing and sight when they are in the presence of the father;
(f)They are to cease contact between the children and the father if the father does any act or says anything to the children or either of them which exposes the children or either of them to emotional, physical and or psychological harm;
(g)Upon ceasing the spend time arrangement immediately contact the mother to arrange for the immediate return of the children to her;
(h)Without admitting the necessity for same not consume alcohol during any spend time with period they are supervising;
(i)They understand the nature of the undertaking and the seriousness of the role of the supervisor.
The undertaking referred to in Order 5 be in the terms required by this order and drawn by the Independent Children’s Lawyer to the effect that the supervisor has been given legal advice as to the terms of the undertaking and specifically that any breach by them may be viewed as a contempt of court punishable by imprisonment.
The children are to communicate with the father by telephone/FaceTime has agreed between the parties in writing and failing agreement each Sunday of the weekend the children do not spend with the father between 4 pm and 4:30 pm.
The father is entitled to receive a copy of the children’s school reports and school photographs of the children directly from the children’s school at his own expense.
In the event that the mother proposes to take the children on a holiday she provide no less than two weeks’ notice in writing to the father and the father’s supervised time shall be suspended for the duration of the holiday period.
Changeovers pursuant to Order 4 (b) herein shall take place at McDonald’s Family Restaurant at Suburb N (or such other venue as may be agreed between the parents) with the supervisor implementing the changeover.
The Independent Children’s Lawyer confirm with the paternal grandmother her obligations and responsibilities for supervising the children.
The Independent Children’s Lawyer is discharged upon the filing of the undertakings.
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 Fitzwater & Fitzwater 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 MELBOURNE |
FILE NUMBER: MLC 11465 of 2016
| Ms Fitzwater |
Applicant
And
| Mr Fitzwater |
Respondent
REASONS FOR JUDGMENT
The parents of X and Y bring competing applications for parenting orders in circumstances where the mother alleges that the father is an unacceptable risk of sexually abusing the children. X is six years of age and Y is two years of age.
The parties have lived together for approximately 15 years and were married for approximately six years. They separated on 18 November 2016 when the mother became convinced that X had been sexually abused by the father digitally penetrating her because of various complaints that the child volunteered and demonstrated to her over a period of time.
The father denies sexually abusing X and maintains that the mother has “maliciously manufactured the allegations”. Alternatively he claims that the mother actually believes or has convinced herself of what she is alleging. He also claims in the alternative that the mother has “put words into [X’s] mouth”.
The mother reported her concerns to the police and the Department of Health and Human Services (“the Department”). X has not told the police, the Department or any other professional anything that might constitute a complaint that the father has sexually abused her. Since separation the children have lived with the mother and the father has been spending time with the children under supervision.
X and Y have not spent unsupervised time with the father since separation and Y was only eight months old at the time of separation. There are no specific allegations made by the mother about the father’s conduct regarding Y.
An Independent Children’s Lawyer participated in the trial representing the children’s interests.
The proceedings were initiated by the mother in the Federal Circuit Court and transferred to this Court on 23 November 2016.
Background
The parents began living together in 2001 and were married in 2010. They separated on 18 November 2016. X was born in 2012 and Y was born in 2016.
The parties attended counselling in 2015 because of disagreements about attending family events with the children.
The father is aged 38 and the mother is aged 37.
The father is employed as manager. The members of the paternal family who have been supervising the children’s time with the father live interstate in D Town.
It is important to set out the mother’s employment history because the father has raised this as a factor affecting her credibility. The mother has been on maternity leave since February 2016. I accept the evidence of the mother that her role in from 2009 involved working in connection with abused children approximately three years from November 2009 to March 2012.
From April 2012 to June 2012 the mother was on secondment due to her pregnancy. The mother was on maternity leave from June 2012 to July 2013. From July 2013 to June 2015 the mother was again on secondment. From 1 July 2015 to 1 February 2016 the mother returned to her previous position on a part time basis and did not have any contact with abused children. From 28 September 2015 until 1 February 2016 when the mother commenced maternity leave, she was on light duties due to her high risk pregnancy with Y.
The mother suffers from inflammatory bowel disease which is mostly colonic and requires medical treatment. Professor E, whose affidavit evidence was unchallenged, has treated the mother since March 2004 for the disease which was first diagnosed in 1999.
The mother alleged that the child made various “disclosures” that “daddy touched my privates” in mid-2015, June 2016 and November 2016. The mother also alleges the child demonstrated digital penetration by the father. These allegations by the mother, and the maternal grandmother and maternal aunt MsF are set out in more detail below. The father denies all allegations of sexual abuse.
On 18 November 2016 the father left the family home to visit his family in D Town at the request of the mother.
On 19 November 2016 the mother took X to the police and the child made no report of sexual abuse. That same day the mother changed the locks on the former matrimonial home.
The father broke into the former matrimonial home on 21 November 2016. Since this time the father has lived at the parties’ investment property at G Street, Suburb H Victoria (“the Suburb H property”).
The mother obtained an interim intervention order against the father in his absence at the Magistrates’ Court on 21 November 2016. The intervention order proceedings were next listed for a directions hearing at the Suburb J Magistrates’ Court in June 2018.
The mother initiated proceedings in the Federal Circuit Court on 23 November 2013. The mother filed a notice of risk against the father on 23 November 2016 and alleged the following:
· That the child has disclosed allegations of sexual abuse by the father;
· That the child is at risk of ongoing sexual and psychological abuse by the father;
· That there has been family violence or there is a risk of family violence by the father and particularly that there has been:
Physical assault in August 2015 by the father towards the mother;
· The child’s sibling is at risk of sexual abuse.
On 23 November 2016 Judge McNab made an order placing the children on an Airport Watch List for a period of two years.
On 6 December 2016 Judge McNab made orders that the children live with the mother and that the parties do all things necessary to enrol in the Family Contact Service. The proceedings were also transferred to this Court.
On 18 January 2017 Senior Registrar FitzGibbon made an order by consent that the children spend face to face time with the father as agreed between the parents and failing agreement for not less than two hours supervised at the Family Contact Service. An order was also made that X attend upon a psychologist recommended by the Independent Children’s Lawyer for reportable therapeutic counselling. X subsequently attended upon Ms K for this counselling. Ms K prepared a report dated 5 June 2017. The parties were also ordered to attend upon Dr L for a psychological assessment for the mother and a psychosexual assessment of the father. Dr L prepared reports for both parties dated 27 April 2017.
An order was also made for the preparation of a family report which was subsequently prepared by Ms M dated 12 May 2017.
On 14 August 2017 I made interim orders by consent as follows:
1.The order for supervised time provided for in the Orders of 18 January 2017 for the children X (…2012) and Y (…2016) (“the children”) is discharged.
2. The father spend supervised time with the children as follows:
(a)Each Wednesday for a period of 2 hours supervised by Family Contact Service at times as agreed between the parties and the contact service.
(b) Each alternate weekend commencing Saturday 19 August 2017 as follows:
(i) Four hours on each of the Saturday and the Sunday from 2:00pm to 6:00pm for 3 alternate weekends; then
(ii) Commencing on 30 September 2017, for six hours on each of the Saturday and the Sunday from 10:00am to 4:00pm for 3 alternate weekends; then
(iii) Commencing on Saturday 11 November 2017, the Saturday from 10:00am to 6:00pm and the Sunday from 10:00am to 4:00pm.
(iv) On Christmas Day from 9:30am to 12:00 noon.
(v) On Father’s Day from 10:00am to 4:00pm.
(vi)On the [Fitzwater] Family Christmas on 25 and 26 November 2017 from 10:00am to 6:00pm.
I further made an order that the time the children spend with the father be supervised by the paternal grandmother, Ms C Fitzwater, and in the alternative, the paternal cousin, Ms B or either of the maternal aunts and each such supervisor shall provide an undertaking to the Court. The children were also to communicate with the father by telephone/Facetime as agreed and failing agreement each Sunday of the weekend the children do not spend with the father between 4:00pm and 4:30pm. Changeover was to occur at Suburb N McDonalds Family Restaurant unless otherwise agreed in writing.
I further made an order by consent that the mother may arrange further counselling with Ms K in the event that she alleges X’s behaviour changes.
On 14 August 2017 the father also consented to an order without admitting the necessity for the order, that he be restrained from consuming alcohol 12 hours prior to and during each occasion the children were in his care.
The parents were also in dispute during the trial about the distribution of the property of the marriage and spousal maintenance but final property orders were made by consent of the parties before final submissions on the parenting issues.
The property orders provided that, among other divisions, the mother retain and have sole use and occupation of the former matrimonial home located at O Street, Suburb P Victoria and the father retain and have sole use and occupation of the Suburb H property.
The mother’s application
In her Case Outline filed on 26 February 2018, the mother sought final parenting orders on the basis that the Court finds that the father presents an unacceptable risk to the children or either of them because of what X has told her and demonstrated to her particularly in November 2016.
The mother does not seek a finding that the father sexually abused X. In these circumstances, the mother seeks an order for sole parental responsibility for the children and for the children to live with her and spend supervised time at a family contact centre with the father at the father’s expense.
The mother sought that in the event that the Court deemed that the paternal grandmother Ms C Fitzwater and or paternal cousin Ms B were appropriate supervisors, they supervise the father’s time and changeover occur between the mother and the family supervisor in the absence of the father. After hearing the evidence of the paternal grandmother during the trial, in final submissions counsel for the mother submitted that the paternal grandmother was not an appropriate supervisor for the children spending time with the father.
In her Case Outline, the mother in the alternative sought that in the event that the Court finds that the father is not an unacceptable risk to the children, the children live with her and spend time with the father.
The mother further sought orders for telephone time and special days, a restraint on the consumption of alcohol for the father prior to the children spending time with him and for the father to commence counselling with a clinical psychologist.
The father’s application
The father denies that he has sexually abused X. At the commencement of the trial he sought orders for sole parental responsibility, but after hearing the mother’s evidence and at the conclusion of the mother’s case, proposed orders for equal shared parental responsibility for the children.
At the commencement of the trial the father maintained that there would be an unacceptable risk to the children if they were in the care of the mother and sought that the mother be psychiatrically assessed. He sought that the children live with him and spend only supervised time with the mother.
At the conclusion of the evidence in the mother’s case the father no longer pressed his proposal for the mother to be psychiatrically assessed or that she be supervised when the children spend time with her. But, relying on recommendations in the Family Report, sought that the mother have psychological counselling and that she follow all lawful directions of the counsellor including attendance at all scheduled appointments.
The father on day seven of the trial amended his proposals in writing. He sought, amongst other things, that the children live with him and spend time with the mother unsupervised. He proposed that the children live with him for nine nights per fortnight and half of school holidays. He proposed that this commence after the commencement of the first school term after a specified residence transition date being the first weekend of the first school holiday period after the making of final orders.
He sought other orders including a restraint upon the mother taking the children to the VV Group, and/or like services, without prior notice to him and from discussing the proceedings or intervention order proceedings in the presence or hearing of the children. He also sought a restraint upon the mother denigrating or making any critical adverse comment about him or any member of his family or friends in writing or orally to or in the presence or hearing of the children.
On the second last day of trial the father produced a written minute of orders sought in the event that there was no change of residence ordered. The father proposed in this event that the parties have equal shared parental responsibility for the children, that the children live with the mother and spend time with him in accordance with the proposals of the Independent Children’s Lawyer, but progressing more rapidly to ultimately achieve an unsupervised 9/5 nights per fortnight arrangement in favour of the mother. The father also sought orders for the children to spend time with him during the holidays.
The proposals of the Independent Children’s Lawyer
The Independent Children’s Lawyer did not indicate any position to the Court until the conclusion of all the evidence. In closing submissions, the Independent Children’s Lawyer submitted that on all the evidence in the trial there was not sufficient evidence to make a finding that the father was an unacceptable risk of sexually abusing the children. However she submitted that neither parent proposed equal time and it was not open to make that order on the evidence.
The Independent Children’s Lawyer did not support the father’s proposal for a change of residence and relied on the evidence of the family consultant Ms M that the children have a meaningful relationship with the father and there is no benefit to the children in changing residence.
The Independent Children’s Lawyer in written proposals at the time of closing submissions proposed a gradual progression for the children to spend unsupervised time with the father. Initially during the time the father spends with the children the paternal grandmother or paternal cousin were to be in substantial attendance for six weekends. Following this the time was to be unsupervised and involved a gradual build-up of time, culminating in four nights per fortnight. The proposal also provided for special days and holiday time.
Counsel for the Independent Children’s Lawyer acknowledged that overall the evidence supported a finding that the mother has the capacity to support the father’s relationship with the children and that she has done so despite a genuine belief as to the veracity of what X had told her. Counsel for the Independent Children’s Lawyer submitted that on all the evidence the mother’s genuine belief was reasonably held in all circumstances.
The Independent Children’s Lawyer also provided an alternative proposal in the event of a finding that the father presents an unacceptable risk to the children or either of them. The Independent Children’s Lawyer proposed in that circumstance the following:
1.The mother have sole parental responsibility for [X] and [Y] and keep the father advised of all major long term decisions she has made for each of the children.
2.The children reside with the mother
3.The father spend time and communication with the children as follows:
a)Each Thursday at the father’s election from 4.00pm to 6.00pm supervised by Family Contact Service at times and locations agreed between the parents and the Contact Service at the father’s expense;
b)Each alternate weekend from 10.00am to 6.00pm on the Saturday and 10.00am to 4.00pm Sunday and such time be supervised by either the paternal grandmother or paternal cousin;
c)On [X’s] birthday, [Y’s] birthday, Christmas Day and Easter Sunday each year by way of telephone with the Father to call the Mother on her mobile telephone and the mother to facilitate the telephone call.
4.That the father be entitled to receive a copy of the children’s school reports and school photographs of the children and he obtain such copies from the children’s school directly at his own expense.
5.In the event that the mother wishes to take the children on a holiday she provide no less than two weeks’ notice in writing to the father and the father’s supervised time shall be suspended for the duration of the holiday period.
6.Changeovers pursuant to Order 3(b) herein shall take place at McDonald’s Family Restaurant at [Suburb N] (or such other venue as may be agreed between the parents) with the paternal grandmother or paternal cousin implementing the changeover.
Evidence relied upon
The documents relied upon by each party are listed in Annexure A. Each of the parties and the following witnesses were cross-examined during the trial:
· The mother;
· The father;
· Ms Q, Department and Health and Human Services worker;
· Ms R, the maternal grandmother;
· Ms F, the maternal aunt
· Dr S, General Practitioner (by telephone);
· Dr T, paediatrician (by telephone);
· Dr U, mother’s psychologist (by telephone);
· Ms C Fitzwater, the paternal grandmother;
· Ms B, children’s cousin;
· Ms K, accredited mental health social worker;
· Ms M, the family consultant;
The evidence in this case was complex as the parties had originally filed affidavits for an earlier trial in this Court listed on 14 August 2017 which did not proceed because of the unavailability of the family consultant. The father filed a new affidavit on 16 February 2018 (“trial affidavit”) however the mother relied on material filed for both the earlier trial, which did not proceed, and this trial. Therefore some of the mother’s material refers to an affidavit the father filed on 20 March 2017.
Some of the father’s evidence in his affidavit filed on 20 March 2017 differed from his affidavit of 16 February 2018. Whilst the father only sought to rely on his trial affidavit there was cross-examination on his 20 March 2017 affidavit and it is also relevant as the mother refers to it in her affidavit of 24 April 2017. The father also at times in his trial affidavit referred to the affidavit of the mother of 5 December 2016. The mother’s affidavit of 5 December 2016 was filed in the Federal Circuit Court.
At the beginning of the trial, counsel for the mother sought to file an affidavit of Associate Professor V, an Associate Professor with the University of Sydney who specialises in the field of childhood sexual abuse and related trauma and the emotional and behavioural responses of victims including how children make disclosures. It was not in dispute that Dr V did not have any knowledge of the specific details of this case nor had any involvement with the parties or the child.
Professor V had been asked by the solicitors for the mother to prepare a report on the current state of research on child sexual abuse because of her specialised knowledge, and counsel for the mother sought for it to be admitted into evidence so that it could be put to Ms K and the family consultant in cross-examination. The mother relied on s 79(2A) of the Evidence Act 1995 (Cth).
Counsel for the father objected to the admission of this affidavit into evidence, relying on the case of Maluka & Maluka [2011] FamCAFC 72.
At the time of trial there had been no leave sought by the mother under r 15.49 of the Family Law Rules 2004 (Cth) (“the Rules”) to appoint another expert witness or adduce evidence from another expert. However I noted that according to the mother’s application, the purpose of admitting the affidavit was not to adduce evidence from Dr V. What was proposed was that there be a testing of the evidence of Ms K and the family consultant using the social science literature provided by Dr V in general form in her affidavit. The proposal was that this report was to be put to Ms K and the family consultant to seek a response from them.
I noted when ruling on this evidence that there is some intersection between s 79 of the Evidence Act 1995 (Cth) and r 15.49 of the Rules in terms of a single expert as in this case, the single expert witness is Ms M the author of the family report as she has interviewed the child X and the parents.
I granted leave for the affidavit to be used for the purpose of cross examination of Ms K and the family consultant Ms M. As a matter of procedural fairness, it was appropriate to admit the affidavit into evidence at the start of the trial so that the father and the Independent Children’s Lawyer could familiarise themselves with the report before the cross-examination took place at the end of the trial. I instructed that the document be provided to Ms K and Ms M prior to their cross examination.
I ruled that the affidavit would be allowed only for the purpose of the testing of the opinion of the family consultant and Ms K concerning that body of social science literature, and in the event that during cross-examination it became evident that there was a substantial contrary opinion to the body of evidence provided by Dr V and/or the mother sought to rely on it for any other purpose or consider it as her evidence another application would need to be made.
No further application was made by the parties or the Independent Children’s Lawyer concerning this evidence.
I have carefully considered the submissions and the evidence and set out below the relevant evidence. I have not referred to every piece of evidence. The fact that particular evidence is not referred to does not mean that it has not been considered.
Standard of Proof
When determining what orders the Court should make, the relevant standard of proof is the balance of probabilities (Evidence Act 1995 (Cth), s 140). Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
1.the nature of the cause of action or defence; and
2.the nature of the subject matter of the proceeding; and
3.the gravity of the matters alleged.
The issues
The foundation for the mother’s concern that the father is an unacceptable risk to the children is a series of events where X complained to the mother, the maternal grandmother and the maternal aunt, Ms F about her father touching her “privates”. The mother alleges X also demonstrated what the father did to her. This is denied by the father.
In his Case Outline document the father submitted at paragraph 25 in relation to the allegations, that the mother either:
25.1has maliciously manufactured, and maintained, her allegations against the [father]; or
25.2actually believes, or has convinced herself of, what she is alleging, and that she may be suffering some underlying mental illness; or
25.3 “put words into [X’s] mouth”.
The father ultimately did not press that the mother may be suffering from “some underlying mental illness”.
Alleged statements of X in mid-2015
The mother deposed that in about mid-2015, X said to her that her vagina was sore. She deposed that X said “Daddy touched my privates”. She deposed that she asked the father about it and brought him into X’s room and he said “That’s not happening” and then he said to X “why are you saying this bubba?”[1] The mother deposed that X did not respond and she did not take it any further. The mother deposed the following:
I was aware that the allegations were serious but I did not want to reach any hasty conclusions. [X] was only 3 years old. Given her young age I wasn’t sure whether I could rely on what [X] had told me, and [the father] had denied any wrongdoing.[2]
[1] Affidavit of the mother filed 28 February 2017, par 12.
[2] Ibid, par 13.
The father in his trial affidavit denied that “any such allegation was put to me in 2015 (whether by [the mother] or any other person)”. The father denied that the conversation as deposed to by the mother took place between himself and X. The father also deposed “I do not admit that [X] said the words which [the mother] has attributed to her”.[3]
[3] Affidavit of the father filed 16 February 2017, par 153.
The mother in her affidavit filed 24 April 2017, in responding to the father’s affidavit of 20 March 2017, “strenuously” maintained that she confronted the father.
The father maintained in cross-examination that no allegation was put to him by the mother in 2015 that X told the mother that he had “touched her privates.”
The issue of whether the mother ever confronted the father about this was raised by the family consultant in the family report at paragraph 50. At paragraph 50 the family consultant reported that “[the mother] admitted that the only prior conversation about this matter between the parents occurred in June 2016…” The mother maintained in her affidavit that the family consultant had mistaken the father’s case for the mother’s case when she discussed this aspect with the family consultant.
The family consultant was asked about paragraph 50 in cross-examination by counsel for the mother. The family consultant gave evidence that what is written in paragraph 50 is in her notes. The family consultant conceded that she could not say with any great determination that she could not have made an error, but to the best of her knowledge she transcribed what was presented to her. She stated that it could be that the mother made an error then at the time of the family report and that she “didn’t say fully what she wanted to say”.
Alleged statements of X in June 2016
The mother deposed that in or around 17 June 2016 she went shopping in the evening and X started to cry, saying that she did not want to be left alone with the father. She deposed that the child had a tantrum and was still crying when she left the home.
The next day on 18 June 2016 the mother asked the child what she had done when she left and deposed to the following:
…She told me that daddy rocked the baby and then she sat on the couch with daddy to watch the football and ‘Daddy touched my privates’. I was shocked at what I was hearing, but I remained calm. I asked [X] to show me. She patted the top of her genitals area, below her stomach, over her clothes.[4]
(emphasis omitted)
[4] Affidavit of the mother filed 28 February 2017, par 25.
The mother deposed that she was shocked and suggested to the child that “maybe she should not go in the front room with daddy anymore.” The mother deposed that a few moments later the child said “I lied”. The mother claimed that she did not know what to make of this or whether to say anything to the father about it.
The mother deposed that the following day, 19 June 2016, she was sitting around the table with the father and X and that:
…out of the blue [X] said ‘daddy, mummy told me you touched my privates”. [The father] said to me “what are you saying to her?” I then said “no, [X]. You said daddy touched your privates, then you said that you lied”. [The father] then said that at swimming [X] had said that he had touched her and that it was embarrassing.
The mother deposed that she spoke to the father that evening “about [X’s] disclosures” and that X didn’t want to be left alone with him at home. She deposed that he told her that X didn’t want to be left alone with him because he was “more strict with bedtime routines” than the mother and that X also didn’t want to be left alone with the maternal grandmother. The mother deposed that she was not entirely convinced that anything untoward had been occurring and she was mindful of the seriousness of any allegations of sexual abuse and the consequences that would follow once the allegations had been made. She deposed that she gave the father the benefit of the doubt and that she did not report “the disclosure” to the police or to the Department or to the child’s paediatrician, Dr T.
The mother deposed that she telephoned the maternal grandmother to discuss “the disclosures”.
The maternal grandmother deposed that in or around June 2016 the mother told her that X “had told her that [the father] touched her “privates” but that later [X] took it back and [the mother] was not sure what to make of it”. The maternal grandmother deposed that the mother asked her what she thought and she deposed that “I told her that I didn’t know what to think because I had not heard [X] telling me herself and it was hard for me to conceive that a parent could do this”.[5]
[5] Affidavit of the maternal grandmother filed 28 February 2017, par 5.
The mother further deposed that she remained vigilant and made efforts not to leave the child alone with the father unnecessarily.
The father deposed to the alleged incidents of June 2016 at paragraphs 114 to 120 of his trial affidavit. The father deposed the following:
114. One evening in or about June 2016, during dinner, X said to me, in front of [the mother] “Daddy, mummy told me you touched my privates”.
115. I immediately looked at [the mother] and said words to the effect “What are you saying to her”? I do not recall [the mother] responding to this in any meaningful way.
116.I was dismayed, but did not think any more of it. I did not take the comment seriously, and did not want to encourage X by discussing it further.
(emphasis omitted)
The father deposed that they continued dinner and put X to bed. The father deposed that he and the mother did not discuss X’s comment further and that he did not want to bring it up again as he “did not want to start another fight”.
The father maintained throughout cross-examination that the mother had not confronted him about the allegations and that the first that he had heard of the allegations was when he read the mother’s intervention order application. He maintained that there had been only the one conversation in June 2016 to which he deposed in his affidavit material as outlined above and that he “didn’t really think about it.”
The father was asked in cross-examination what he understood X to mean when she referred to “privates”. He responded “her front, back and top” “X says bottom or bum for bottom.” In cross-examination the father was asked what he understood X to mean when she said in June 2016 “mummy said daddy touched my privates”. The father responded “her front part”.
August 2016
The mother deposed that on 12 August 2016 she went to see a movie leaving the child at home in the care of the father and that X was having a tantrum and was hysterical because she did not want the mother to leave the family home. She deposed that she had significant reservations about leaving the child and discussed the child’s “disclosures” with her sister the maternal aunt Ms F who reassured her that the father “did not seem like the type of guy that would do anything like that and maybe X had got it wrong or was mistaken”.
The mother deposed that she decided to remain objective and that she did leave the child with the father in the family home from time to time when she went to the gym or other occasional outings with friends.
The children’s maternal aunt Ms F deposed that she observed X’s severe tantrum on the occasion before they went to the movies on 12 August 2016. Ms F deposed that while X was having the tantrum she suggested to the mother that they go outside and that X would calm down eventually. She deposed that while she and the mother stood outside the mother told her she was concerned for X and “[s]he told me that X had told her that [the father] had touched her “privates””.[6] Ms F then deposed the following:
When [the mother] told me this I thought maybe [X] was confused and [the father] had brushed past the area while changing her or something. I did not believe that [the father] would do such a thing. I told [the mother] that I really didn’t think he was the type and he wouldn’t do that sort of thing. [The mother] almost changed her mind about coming to the movies as she was worried about [X] but I reassured her that kids throw tantrums and that she needs to be away from her sometimes.[7]
[6] Affidavit of Ms F filed 28 February 2017, par 9.
[7] Ibid, par 10.
Ms F explained that she did not make a report to the Department as at the time she did not believe the father had abused X. She deposed that “I was shocked at the information [the mother] told me, but given the touching could have been accidental and my belief that [the father] was a good person, I simply couldn’t fathom the idea”.[8] She deposed that she thought maybe X was confused and that X had not made a “disclosure” to her personally at that time. Ms F deposed that prior to August 2016 the mother had never raised issues of child abuse.
[8] Ibid, par 11.
In cross-examination Ms F agreed that she reassured the mother that the child would calm down when the mother left and that although the mother was worried the mother decided to leave the child with father after she was reassured.
Alleged statements of X in November 2016
11 November 2016
The maternal grandmother deposed that on 11 November 2016 when she was looking after X and the mother was shopping, she was playing on the swings with X. She deposed at paragraph 4 that at one point when they were outside X said “Nanny, Daddy touched my privates”. The maternal grandmother deposed that she was shocked as it was a surprise and that she didn’t know what to say and that she said “Oh you mean by accident?” and that X responded “No,…he touches my privates!”. She deposed that X was “quite definite when she said this and seemed annoyed at me suggesting it was an accident”. She then deposed that she told X “You have to tell your mum and me too” and that X said “ok nan”.[9]
[9] Affidavit of the maternal grandmother filed 28 February 2017, par 3.
The maternal grandmother deposed that “[X] was not upset, she told me in an informative tone and matter of factly”. She went on to depose:
I maintained my calm persona, I did not want to alarm [X]. My tone was non-judgmental. I wanted [X] to feel at ease enough to tell [the mother] immediately after. I felt overwhelmed and did not know what I should do.[10]
[10] Ibid, par 6.
The maternal grandmother deposed that she was in a “flustered state and not thinking clearly” when the mother came home. She deposed that she “muttered quietly to [the mother] so that [X] would not hear, that [X] had brought up the touching again and that [X] would tell her about it”.[11] The maternal grandmother deposed that she had to rush home as she was feeling unwell and that the mother was distracted with the children. She deposed that she did not have an opportunity to speak further about it to the mother and that she is unsure whether the mother heard her. She deposed that “In hindsight I should have made it clearer that [X] had made a direct disclosure to me”.[12]
[11] Ibid, par 7.
[12] Ibid, par 7.
In cross-examination the maternal grandmother maintained that she was upset about what X had said and she was aware that the father was about to come home and she “needed to get out of there.”
The mother deposed that on 11 November 2016 the maternal grandmother cared for the children at home whilst she went out. She deposed that when she returned the maternal grandmother “came up underneath the clothesline and muttered quietly words to the effect “this touching thing has come up again””. The mother deposed that X then approached and the maternal grandmother did not tell her that X made a “direct disclosure” to her. The mother deposed that X did not say anything to her that day.[13]
[13] Affidavit of the mother filed 28 February 2017, par 32.
The mother previously filed affidavits in the Federal Circuit Court and this Court for interim hearings. The father emphasised that the mother had omitted any reference to this in those previous affidavits.
14 and 15 November 2016
The mother deposed that on 14 November 2016 she left for the gym at 8:20 pm leaving the children with the father. She deposed that at about 1:00am X came into the parent’s bedroom crying hysterically and said that she had a nightmare and would not calm down and refused to return to her bedroom.
The mother deposed that the following day on 15 November 2016 X woke up screaming and upset for no apparent reason and was hysterical. She deposed that the child was aggressive, swinging her arms in the air and hit her. The mother then deposed:
…I comforted her and calmed her down. [X] then went and got Bypanthem cream. I asked her “What’s wrong”. She said “I’m sore”. I told her to put the cream on. I said “You always need it every time I leave you, is everything alright?” She said “No, Daddy touched my privates” I said “Show me.” She then patted the top of her genitals, over her clothes. I asked “Anything else” she said “No.”[14]
I said “How many times had it happened?” She said “I told you before, twice” I said “But you told me last time that you lied” She said “I’m not lying, daddy is.” I asked “Are you sure?” she said “Yes, I just want it to stop”. She then said “That’s why I never want to stay with him at night.” I replied “But you go to the shops with him and to swimming.” She said “Yes but he would not want people to see”. I said “Did you tell him to stop, it’s not nice, he is not allowed to do that?” She said “No”. I said “He doesn’t do that when I’m around” and she said “No, but when you leave”. [X] said “I told Nan”. I asked [X] to let me look at her vagina, I wanted to see if there was any redness. [X] flinched and did not want me to look or touch her. I did not push the issue.[15]
(emphasis omitted)
[14] Ibid, par 34.
[15] Ibid, par 35.
The mother deposed that she was very concerned about what X told her, but was still not sure whether she was telling the truth. The mother deposed that later that day when she was angry with the father about something he had done with Y, X came up to her and said “are you going to tell him off about touching my privates?” The mother deposed that she responded that she was not sure who was lying and told her “not to bring it up now”.
The maternal grandmother deposed that on 15 November 2016 the mother telephoned her while she was at work and asked her if X had told her anything. The maternal grandmother deposed that she was at work, and that her boss was nearby so that she “couldn’t give [the mother] the details of what [X] had said”.[16]
[16] Affidavit of the maternal grandmother filed 28 February 2017, par 8.
16 November 2016
The mother deposed that in the evening of 16 November 2016 X pulled down her dress showing her chest and said “daddy can’t touch my privates”.[17] The mother deposed that X rubbed her chest and was pointing to her nipples. The mother asked X whether she had fun playing with her father on the trampoline and playing catch and X said “Yes but I’m upset”.[18] When the mother asked X why, the mother deposed that the child said “because it hurt when daddy touched my privates”.[19]
[17] Affidavit of the mother filed 28 February 2017, par 37.
[18] Ibid.
[19] Ibid.
The mother deposed that when X was asked to show her that she propped her legs up on her bed rail and she was wearing underwear. The mother deposed that X “put her finger near her vagina area and moved her finger up and down near her vagina.” The mother deposed that X said “he put his finger in and out of the hole.” The mother deposed that X then said “can daddy get into trouble?” The mother deposed that she said words to the effect of “it is very bad and Daddys [sic] should not behave this way”. The mother deposed that the child told her that “Daddy told me you would be cross with me. That’s not right is it mummy? Wouldn’t you be cross with him?” The mother deposed that she responded “I am not cross with you. I love you.”
The mother deposed that she went into the backyard to telephone her aunt so that the father could not hear her and she was advised to seek urgent counselling for X and herself. She deposed that she was “in shock and horrified about the specific detail and graphic nature of [X’s] disclosure.” [20]
[20] Ibid, par 38.
17 November 2016
The mother deposed that on 17 November 2016 she drove X to kindergarten and when she returned home she rang Z Psychology and arranged an appointment for both X and herself the next day. She deposed that after kindergarten she took the children to the maternal grandmother’s home. She deposed the following:
[X] said in front of both me and [the maternal grandmother] “I want to talk about dad touching my privates” I said “Why?” [X] then said “Because it’s rude”. I said to her, “We are not going to talk about it at the moment and don’t mention it to dad”. I put my hand out in a firm manner to shut down any further discussion about the matter.[21]
(emphasis omitted)
[21] Affidavit of the mother filed 28 February 2017, par 39.
In relation to the same alleged events the maternal grandmother deposed:
I was outside with [the mother] when [X] came out. [X] said “Let’s go tell Daddy he has to stop touching my privates”. She was quite firm and appeared to want us to go and tell [the father] off. [The mother] put her hand up and said “Not now [X], we will talk about it later”.[22]
(emphasis omitted)
[22] Affidavit of the maternal grandmother filed 28 February 2017, par 9.
In cross-examination the maternal grandmother gave evidence that when she was outside with the mother before X came out, the mother told her that X had told her and showed her “digital penetration”. This was not in the maternal grandmother’s affidavit.
The difference in what the mother and grandmother deposed to in relation to what X said on 17 November 2016 was put to the mother and the maternal grandmother in cross-examination. The mother was asked who was right about what was said. The mother responded that she believed she was right because she wrote it down straight away. She stated she recalls the words that she deposed to. The mother’s written record of 17 November 2016 was Exhibit B.
The maternal grandmother conceded the two statements were different. However she stated that she was not saying X did not make both statements, but that she only focused on the one statement. She gave evidence that what she deposed to was the most graphic part of what she recalled. She denied that she coloured what occurred or that her memory has changed because “so much has been said”.
The maternal grandmother deposed that the mother said to her that it was “no good confronting” the father as he would deny it and that “she was not sure what he was capable of doing”.[23]
[23] Ibid.
Ms F deposed that on 17 November 2016 the mother telephoned her briefly at approximately 4:00pm and she told her “that the abuse disclosures had come up again but it was more serious this time and she was planning on seeing a counsellor that day”. Ms F deposed that the phone call was very short because it was hard to hear the mother on the phone and that she sounded flustered and busy.
The mother deposed that she did not confront the father before they went to bed on 17 November 2016 and that she was “still shocked and confused, although I also believed what [X] told me”.[24] She deposed that X had a nightmare that night and came into their bedroom crying and refusing to go back to bed and that X was hysterical. She said that she tried to console her and the father tried to console her and she would not calm down. She then deposed the following:
…I confronted [the father] in the heat of the moment, I said “[X] told me you did terrible things to her when I went to the gym”. I told [the father] that I wanted him to move out. I told him that I would be changing the locks and getting an intervention order and that he was not to come back. He asked “What terrible things?” I repeated “Terrible things and you need to leave the bedroom”. [The father] ignored me, then when asked again, he left our bedroom and stayed in the lounge room for the rest of the night. [X] calmed down and slept in my bed that night…[25]
[24] Affidavit of the mother filed 28 February 2017, par 40.
[25] Ibid.
The mother stated in cross-examination that when she confronted the father that night it was the “fight or flight response” that kicked in and she decided to change the locks.
The father in his affidavit at paragraph 170 and 171 disagreed with the mother’s version of events on 17 November 2016 and described what occurred that night. He deposed that he and the mother went to bed as usual and that X came into the bedroom in the early hours of the morning and was upset. He then deposed:
Once [X] had calmed down, I decided to go to sleep on the couch, as I had to get up for work approximately two hours later, and wanted to get some more sleep. I said words to that effect to [the mother]. I usually went to sleep on the couch when [X] came to sleep in our bed.[26]
[26] Affidavit of the father filed 16 February 2017, par 170.4.
18 November 2016
The mother deposed to the following conversation between her and X on 18 November 2016:
…[X] said to me “Daddy calls my privates ‘platypus.’ I said “When?” She said “When we roll the ball.” I said “When?” She said “When you were in the garage and you went to check the paper that [Y] ate”. I said “You know when you are tricking me and say ‘Nan is at the door’ and no one is there? That’s a trick, not the truth. What you are saying about daddy is serious. You know the difference between a lie and the truth”. She said “Yes”. I said “Are you telling the truth about daddy touching your privates” She said “Yes”.[27]
(emphasis omitted)
[27] Affidavit of the mother filed 28 February 2017, par 41.
The father in his affidavit deposed that he “does not admit that allegation” and that “[t]o the extent that it implied that I have called [X’s] genitals “platypus”, I deny that implication”.[28]
[28] Affidavit of the father filed 16 February 2017, par 173, 174.
The mother deposed that on 18 November 2016 she attended Z Psychology and saw Ms W and that she provided notes she had taken of X’s “disclosures”. She deposed that they discussed a safety plan for the father to stay with the family but “beyond that, [Ms W[, was unable to assist me”. She deposed that Ms W said that Dr U a psychologist, could assist her, but that she was interstate at that time and an appointment was made for X and herself for 22 November 2016.
The mother deposed that she rang the father at about 12:30pm following the counselling session and “told him that he needs to go to the country to stay with his family and that when he returns he needs to move into our investment property”.[29] She further deposed the following:
[The father] agreed and did not ask why or mention what I had said to him the night before. He didn’t ask what this was all about. We arranged to swap cars because I had the better car and he needed a good car to drive the distance to the country. Later that day he sent a text message “Are you going to tell me what this is about”. I messaged that we would talk later in the week. Later that night, [the father] rang and I let him say goodnight to [X].
(emphasis omitted)
[29] Affidavit of the mother filed 28 February 2017, par 42.
The mother deposed that she messaged the maternal aunt Ms F to ask her to come to the family home and sleep over that night. Ms F also deposed to receiving a text message from the mother. Ms F deposed that when she arrived the mother told her about the “disclosures that [X] had made and that she had asked [the father] to leave the house”.
The father deposed that on this date the mother said to him “words to the effect that she wanted to spend time with the children over that coming weekend, and that I was free to spend time with my family”.[30] He deposed that he had been to D Town two weeks earlier and that he was surprised by the mother’s offer for him to go to D Town as she “did not usually allow me to go to [D Town] that frequently, and [the mother] had frequently been critical of me wanting to spend time at all with my family”. The father also described the parties swapping cars that day but deposed that “there was something about [the mother’s] suggestion and presentation, and the manner in which [the mother] was so accommodating about the car, that made me feel that something was not right”.[31] The father also deposed to the text messages sent between the parties on that date as deposed by the mother.
[30] Affidavit of the father filed 16 February 2017, par 122.
[31] Affidavit of the father filed 16 February 2017, par 125.
The father deposed to a different version of events in relation to a phone call that night. The father deposed that the mother called him and told him that he should not come to the house and that during the phone call the mother said she wished to separate and that she had changed the locks on the former matrimonial home. He deposed that the mother insisted he stay at the Suburb H property and she said that she had already moved his belongings there. He deposed to the following:
I insisted that I would be coming over to see the children. [The mother] said she would call the Police. I was alarmed by that threat. I was concerned then that she might have been planning to take the children away or prevent me from seeing them in this period, if indeed we were separated.[32]
[32] Ibid, par 129.
19 November 2016
The mother deposed that on 19 November 2016 she rang the Sexual Assault Crisis line to find out the next steps that she needed to take “to have the matter investigated”. She deposed that she was advised by the crisis line to contact “Sexual Offences and Child Abuse Investigation Teams SOCIT, Child Protection and either the VV Group or the WW Group”. She then deposed the following:
I reported the matter to SOCIT and made arrangements to take [X] to an interview later that day. I did not tell [X] that she was seeing police before the interview. [X] did not make any disclosures. I arranged for the locks on the family home to be changed that day.[33]
[33] Affidavit of the mother filed 28 February 2017, par 46.
The mother described that she contacted the VV Group that evening and that she made an appointment for herself on 22 November 2016. She also deposed that X was scheduled to have an appointment in January 2017 but that she did not attend the appointment, on the recommendation of the Independent Children’s Lawyer.
Ms F deposed that on 19 November 2016 she was at the “family home” pulling the blinds down when X turned to her and said “This is my Police teddy bear, I went to the Police today, Daddy touched my privates but I forgot to tell them”. Ms F described nodding and acknowledging X but that she did not take the conversation further. She deposed that the mother was present in the room at this time and that the mother did not respond either.
Ms F deposed that she remembered that during that weekend the maternal grandmother called her and told her that she was “feeling a bit upset because she wasn’t sure about whether she had told [the mother] that [X] had also told her that [the father] had touched her privates. [The maternal grandmother] wanted to make sure that I told [the mother] that [X] had definitely said that to her as well”. She deposed that the mother, the maternal grandmother and herself had an opportunity to discuss this “when we were all together at my house”, however she provided no date as to when this discussion was said to have occurred.
20 November 2016
The mother and the children went to stay at Ms F’s house for a week on 20 November 2016.
Ms F deposed that on 20 November 2016 while having breakfast X said to her “Daddy did a bad things to me but I didn’t tell the Police, I was a bit shy and I wanted mummy to tell them”. Ms F deposed that she responded to X “It’s OK people get shy sometimes”. Ms F explained that she did not make a report to the Department at this time as the mother had already reported the matter to the Police and a counsellor.
The mother deposed that on 20 November 2016 she called the father and asked if he had anything to tell her given that she had asked him to go to the country. She deposed the following:
He told me that he had not done anything wrong. I told him that I wanted him to move into and stay in the [Suburb H] property when he comes back from the country. I also told him that if he comes near our home I would call 000. [The father] insisted that he would be coming to see the kids regardless. I told [the father] that if he did not agree to stay away from the family home I would be forced to go to court. [The father’s] response was that I should go to court.[34]
[34] Affidavit of the mother filed 28 February 2017, par 48.
Ms F deposed that she was present in the car when the mother called the father on 20 November 2016 and that he was on loudspeaker. She went on to describe the following:
…[The mother] started the conversation by asking if he had anything to tell her. He didn’t say much at all. She said “I told you to go to the country and you just didn’t think anything was wrong. I told you Thursday night when [X] was having a nightmare that I was changing the locks and getting an Intervention Order and you just don’t know anything.”[35]
[The father] replied with “Why would all this stuff come up?” He also said that he did not do anything wrong. [The mother] told him that he let the family down and destroyed the family unit. She said that she left a mattress and some things for him at the [Suburb H] house and discussed some financial things briefly (mortgage and bank accounts). [The mother] also said that he is not welcome at the house. [The father] said he would come to the house to see the kids. He repeated this a number of times. [The mother] said “I’m not saying you can’t speak to them on the phone or see them later on but at this time we need space.”[36]
(emphasis omitted)
[35] Affidavit of Ms F filed 28 February 2017, par 25.
[36] Ibid, par 26.
Ms F was cross-examined in relation to the difference between her account and the mother’s account of the phone call between the mother and the father. Ms F maintained that what she deposed to in her affidavit was what she remembered at the time of swearing the affidavit.
The mother also deposed that on 20 November 2016 she contacted Child Protection and that they called her several days later “to advise me that they would be concerned if [the father] were to have unsupervised time with [X] and [Y]”.
21 November 2016
The mother made an application for an intervention order on 21 November 2016 in the absence of the father. The mother’s complaint for that interim intervention order, amongst other things, referred to what the child had told her in the following terms:
On 15/11/2016 my daughter woke up distressed and demanded my attention. I had left both children in the respondent’s care the night before. My daughter picked up the nappy rash cream saying that she was sore and pointed to her vagina. She said that “daddy had touched her privates”. I asked her to show me what she meant and she patted the top of her vagina. She said that she had told me last time and that she just wanted it to stop.
My daughter had previously disclosed in mid-2015 and June 2016 that “daddy touched my privates”. When the respondent was confronted with the allegations he denied it.
On 16/11/16 I was reading to my daughter when she said she was upset. I asked why and she said because it hurts when daddy touched my privates. I again asked how. She said that the respondent put his finger in and out of the hole and demonstrated with her finger up and down in the air near her vagina. My daughter has been having nightmares and tantrums. On Thursday, after my daughter woke up from a nightmare, I told the respondent that our daughter said he did terrible things. I asked him to leave and that I would be changing the locks. He was unusually agreeable and agreed to stay with family for the weekend. On Sunday he called to say he was coming over to see the kids. I told him not to and left the house. My sister drove past to collect property but kept driving when the respondent’s car was there. He has since been asking me what is happening and saying I am keeping him in the dark but he never asked why he had to leave the family home. This is despite me confronting him on several occasions about the sexual abuse.
An interim intervention order was made at the Suburb J Magistrates’ Court on 21 November 2016 which named the mother and children as affected family members. The interim order provides for exceptions under the Act.
Ms F deposed that on 21 November 2016 she took X to a café for lunch and that X again said:
…that her Daddy had done a “really bad things to her”. She did not elaborate and I did not say anything. Later that day my partner [Mr AA] and I took X to Highpoint Shopping Centre. While we driving [sic] X told [Mr AA] and me that her Daddy had done a bad thing to her and she went to the Police. Neither [Mr AA] nor I responded and we changed the subject. [The mother] was not present on either of these occasions.
(emphasis omitted)
22 November 2016
The mother deposed that on 22 November 2016 while she was in a session with her psychologist Dr U the maternal grandmother telephoned her and advised her that the family home had been broken into. The mother deposed to speaking to a police officer and that it appeared that the visa card and old work computer were missing. The mother deposed to damage that was caused to the property.
The maternal grandmother deposed to events on 22 November 2016. She deposed that when she arrived at the former matrimonial home the garage internal door had been broken into and she rang 000. She deposed that the police attended and took finger prints and that she called the mother on her mobile. She deposed that the father arrived during the time that the police where there. She deposed that the police asked her to stay inside while they spoke to the father and that she only saw the father from a distance and did not speak to him directly.
The father agreed in cross-examination that he removed the new keys for the new locks from the former matrimonial home when he broke into the property on 21 November 2016. He agreed that the keys were returned to the mother by the paternal grandmother the following year in September and the mother had not asked for them. When it was put to him that the mother did not know that he had the keys his response was that “he had no idea”.
The mother deposed to taking X to McDonalds for lunch with the maternal aunt Ms F on the same day. She deposed that the father located them at McDonalds and came in. She deposed to the following:
I told [the father] there was an intervention order in place. [The father] said “It hasn’t been served on me, I can be here”. [The father ] said “I just want to cuddle [X].” I did not want to argue in front of [X] and so did not intervene any further. [The father] walked up and picked up [X] and gave her a kiss and said words to the effect of I miss you bubba [sic]. He said goodbye shortly after. [X] said words to the effect of “Mummy, daddy can come home, you just don’t go to the gym, ok deal ok?” and was pointing her finger at me and wanting to shake hands on it. I replied “No [X], Daddy cannot come home. Daddy and I are no longer together”. [X] said “Mummy I lied about daddy touching my privates. Can daddy come home?” I said “No” and changed the subject.[37]
(emphasis omitted)
[37] Affidavit of the mother filed 28 February 2017, par 54.
Ms F also deposed to the events on this date and in particular deposed that after the father left X started to speak about him. Ms F deposed:
[X] said “I miss [the father] I want to see him again, can I see him later?” [The mother] replied “You can speak to him on the phone soon but he is not coming home tonight.”[38]
[X] then said “I want him to come home but only if you don’t go to the gym, you can’t leave me, I can only be with you and Daddy, ok.” She said this quite firmly with her finger pointed. [The mother] explained that her and [the father] do not live together anymore and he won’t be coming home tonight.[39]
(emphasis omitted)
[38] Affidavit of Ms F filed 28 February 2017, par 19.
[39] Ibid, par 20.
Ms F in cross-examination stated that she did not recall hearing X say “Mummy I lied about daddy touching my privates. Can daddy come home?” as deposed by the mother.
The maternal grandmother deposed that later on 22 November 2016 she was minding the children and that she was walking to the couch when “out of the blue” X said “Nanny Daddy touches my privates”. The maternal grandmother went on to describe the following conversation occurring between her and X:
The maternal grandmother: I know…Was it an accident?
[X]: No! he touches my privates!
The maternal grandmother: Show me where [X]?
The maternal grandmother deposed that X “grabbed the underside of her vagina with her hand and she clasped the area joining her vagina and anus”.[40]
[40] Affidavit of the maternal grandmother filed 28 February 2017, par 12.
The maternal grandmother went on to describe the following conversation occurring between her and X:
The maternal grandmother: Aw Aw Did it hurt?
[X]: Yes
The maternal grandmother: What did it feel like?
[X]: Like you are getting poked in the eye
The maternal grandmother: Okay he won’t ever do it again
The maternal grandmother deposed that she was “shocked” by the description. She deposed that X was sad when she told her this. She deposed that it was “spontaneous” and that she had not said anything “to her to get her to say such a thing”. She went on to depose:
My dialogue to [X] was gentle and soft. I reached for [X’s] hand in a reassuring gesture when I said “I know…” She was annoyed when I asked her “Was it an accident?” Her response “No!, he touched my privates” was in a firm voice. I let go of her hand when I said “show me where [X]” and she did show me. At the end of the conversation [X] seemed content and reassured when I again held her hand and said “Okay he won’t ever do it again”. I then went on to offer her a sandwich to change the subject and make her feel better…
(emphasis omitted)
In cross-examination, the maternal grandmother and Ms F were not directly challenged about what X said. The maternal grandmother was pressed by counsel as to whether there could be any other possible reason or explanation for the child making the “disclosures” such as the father putting cream on the child’s vagina. The grandmother stated that it was possible as she “wasn’t there”.
X’s tantrums
The mother deposed to the behaviour of the child at length in her affidavits. She maintained that she had deposed to these tantrums occurring because it was important to bring all of the information to the court about her observations.
The mother deposed that X’s “tantrums” and “rages” were an issue in 2015. The mother also deposed that X had “tantrums” in 2016. The mother deposed to the following:
[X’s] demeanour changed completely when [the father] moved out. Since that time, she has consistently woken up happy and content. She also stopped having nightmares, which she had on a number of occasions in late 2016. When she had nightmares, she would be crying, screaming and hysterical, and would refuse to go back to bed. She did not have any nightmares when [the father] moved out until contact resumed. Since time resumed, [X’s] sleeping has been disturbed from time to time.[41]
[41] Affidavit of the mother filed 28 February 2017, par 74.
The mother also deposed to the following:
[X] has had difficulties sleeping, getting to sleep and waking up with nightmares over a period of time. Her difficulties have become less frequent since separation however often reoccur following time with the father…[42]
[42] Affidavit of the mother filed 19 February 2018, par 213.
The mother deposed in her affidavit filed 19 February 2018 at length to the behaviour and the child’s sleep following supervised time between November 2017 and February 2018.
As outlined above, the maternal aunt Ms F deposed to observing one tantrum in August 2016.
The father in his affidavit deposed that X had “generally been a well-behaved child” and also deposed that in late 2015 “[X] went through a difficult period”. He deposed that he and the mother were constantly arguing and that X was aware there was a new baby on the way. He deposed “[d]uring that time, [X] appeared anxious and became upset more frequently than she had before. [X] tended to particularly become upset if [the mother] or I was leaving her”.[43] The father then deposed:
While those behaviours were not always easy to deal with, I did not find them unexpected. [The mother], on the other hand, became anxious and stressed about them. I believe she was often overwhelmed by X’s age appropriate “tantrums”.[44]
[The mother] often exacerbated this behaviour by making a big fuss when she was leaving.[45]
[43] Affidavit of the father filed 16 February 2018, par 82.
[44] Ibid, par 83.
[45] Affidavit of the father filed 16 February 2018, par 84.
In relation to sleep, the father deposed that when Y was born X moved to her new room and from that time X would often wake in the night and come into their bedroom crying.
In cross-examination the mother conceded that X could have been jealous of the new baby Y, and that she had considered whether X wanting to sleep with her was due to jealousy. The mother conceded that the only reason for X’s tantrums during the mornings after spending time with the father could have also been jealousy.
The mother maintained that X’s tantrums and mood improved overall since the child was residing solely with her. The mother stated:
…overall, since she has been in my sole care there has been a rapid settling down and improvement…I would say her moodiness and everything... she has improved a lot.
When asked by counsel for the Independent Children’s Lawyer as to the reason the mother stated:
One of them could be just that we have settled into a routine just in my sole care…and also a routine with seeing [the father] on particular days.
The mother agreed with counsel for the Independent Children’s Lawyer that there was a lot of pressure on her in dealing with X. She conceded in cross-examination that she was stressed during the marriage but denied that her own stress had reduced after the separation.
During cross examination, the mother conceded that she had videotaped X while X was having a tantrum. The mother referred to three videos in her affidavit dated 19 February 2018, with two occurring post separation on 1 May 2017 and 4 March 2017 respectively, and one occurring pre-separation on 16 September 2016.
When questioned by counsel for the father as to why the mother had filmed X having a tantrum prior to separation in September 2016, the mother stated that there were “so many tantrums” and that she “tried strategies and lots of different things and I wanted to show her it didn’t look good”. When pressed by counsel as to whether the mother meant that she wanted to show the child the video, the mother agreed.
Counsel for the father then questioned the mother as to why she had videotaped the child’s tantrums post separation, and the mother stated that she had a discussion with her counsellor, who suggested she video and show her. The mother then stated that “no one seems to hear me when I say it’s not normal development”, that she felt “unheard”, that she believes that professionals minimise the behaviour.
When asked by counsel for the father what she thought X would make of the mother videorecording her, the mother stated that “she wouldn’t like it”.
X’s vaginal issues
The father deposed in his trial affidavit that the parties used “Bepanthen” cream to relieve X’s vaginitis and erythema. The father deposed that when X was a toddler, it was usually the mother, and occasionally him, who applied the cream. The father deposed that from around the time of Y’s birth that X began asking for the cream and would apply it herself. The mother in her affidavit filed 28 February 2017 also deposed that she purchased the cream and taught X how to apply it to the vagina when she was sore.
During cross-examination by counsel for the mother, the father agreed that there have been occasions when he has touched the genital area of X. He also agreed that there is more than one interpretation of “daddy touched my privates”. When asked what are the other possible interpretations he stated “…I may have helped X put cream…on her, but like around them times [sic] I don’t think so”. The father denied touching the X’s vaginal region other than to put cream on her.
In her affidavit filed 24 April 2017 the mother, referring to the father’s affidavit filed 20 March 2017, agreed that the father may have applied nappy rash cream to X when she was red as an infant. However she did not agree that the father regularly applied the cream to X when she was three years of age. The mother deposed that she never saw the father use “Bepanthen” cream on X’s genitals from the time she was toilet trained which was about February 2015. The mother deposed that when she confronted the father with the “disclosure” of 2015 that the father denied any wrongdoing and that the father “did not offer me any other explanation and he did not say that he applied nappy rash cream to X’s genitals”.
Evidence of Dr S, General Practitioner
Dr S, General Practitioner has seen X since October 2013. She gave evidence in relation to the child’s medical history including vaginal issues. She prepared a report dated 17 November 2017. That report stated that it was prepared with reference to the questions asked for the legal proceedings. The questions asked of Dr S are not contained in that report. As reported by Dr S the mother on 24 November 2016 told Dr S that there had been a “disclosure” of sexual abuse in relation to X.
The first part of the report appears to set out the dates when Dr S or a colleague had seen X and a summary of what occurred. They can be summarised as follows:
· 12 March 2015 – X was seen with complaints of what Dr S attributed to be vaginitis due to symptoms and findings at exam;
· 20 October 2015 – X was seen by a colleague who diagnosed her with vaginal candidiasis and advised topical anti fundal treatment and review in recurrent;
· 24 November 2016 – the consultation involved “disclosure” by the mother about alleged sexual abuse of X when she presented with symptoms of vaginitis, urinary hesitancy and frequency concerns with behavioural patterns discussions. She was referred to Dr U a psychologist on the same day. It is not clear if Dr S is referring to the mother or X being referred to Dr U;
· 7 December 2016 – X presented with vaginitis and reviewed and management re-enforced;
· 3 January 2017 – X presented due to non-cooperation with topical application of treatment and with gentle coaching, allowed examination and discussion of treatment. Dr S states it was noted that X didn’t have any issues prior to the complaint;
· 7 August 2017 – a Mental Health Care Plan review was done for Ms K and “they” were seeing another psychologist Dr U too;
· 21 March 2017 – X was referred to Dr T for behavioural assessment; and
· 8 October 2017 – review was due to a viral “URTI”.
Dr S also reported that the mother was seen on 24 November 2016 when she was “extremely distressed”. Dr S also reported seeing the mother a few times for non-related issues and that she was seen on 31 July 2017 for a Mental Health Review.
In her report at point two, Dr S reported that when first seen the preliminary diagnosis for X was “suspected to be vaginitis due to candidiasis or topical issues such as wiping/cleaning techniques, soap and or the habit of delayed or inappropriate voiding with or without a urinary tract infection”.
Dr S reported that X was seen by the paediatrician, psychologists, dermatologists and at the BB Hospital for a suspected “UTI” and that “note was made of the incident and no specific treatment was advised by the specialist” as it was not warranted at the time. No date was provided in relation to this in the report.
Dr S reported that prior to the “disclosure” no observations of concern were made regarding either the mother or X.
Dr S reported that X is continuing psychological treatment and is being provided support by Dr U and that she is under Dr T’s care for ongoing behavioural assessment but “no specific management is in place”. She reported that there were concerns when X was seen in March 2017 that she could “display oppositional defiance type behaviour and have sleep difficulties.”
Dr S elaborated upon what the mother told her on 24 November 2016 including that the mother stated that X had informed her about “digital insertion by her father when her mother had left her to go to the gym and even showed her how it was done”. Dr S reported that the mother mentioned X speaking about “previous incidents” prior to this event but later retracted them. Further she reported that the mother was of the opinion that X retracted due to fear of family disruption. Further the report noted:
Then she started to mention them again in June of 2016 and [the mother] didn’t approach any doctor at the time but discussed with family. [The mother] disclosed being physically intimidated by her husband when she was eight weeks pregnant with a strangling attempt and verbal abuse. This led to them separating for a short period of time and then they got back again. He also intimidated her again when she was eight months pregnant and her phone was thrown in the garden. [The mother] was of the opinion that [X] might have tried to give her clues but she was unsure about their veracity and felt bad for not pursuing the cause further.
I accept the submission of counsel for the mother that the paternal grandmother was “embedded” in the father’s case however I reject the proposal to exclude her as a supervisor for the children. The father told her about the allegations very soon after the separation and in my view the paternal grandmother would act in the best interests of the children as a supervisor. I accept the submission of the Independent Children’s Lawyer that any deficiencies in the paternal grandmother’s understanding of her obligations as a supervisor could be rectified by some discussion between the paternal grandmother and the Independent Children’s Lawyer. The children’s paternal cousin is also available to supervise the children spending time with the father.
I can make no findings about the evidence in cross-examination of Ms K and the family consultant concerning Associate Professor V’s opinion and have disregarded this evidence in terms of weight.
In closing submissions the Independent Children’s Lawyer submitted that there is “insufficient evidence for a finding of unacceptable risk”. No further submission was made regarding the evidence.
Prefaced on no finding of unacceptable risk the Independent Children’s Lawyer referred to a decision of Murphy J in Donaghey & Donaghey [2011]FamCA 13 (“Donaghey & Donaghey”). In Donaghey & Donaghey Murphy J referred at paragraph 224 to a line of authority examined by the full Court in Re Andrew (1996) 20 Fam LR 538 and the role of the belief of the custodial parent that a child has been sexually abused and the effect of that belief on them as the primary caregiver.
The Independent Children’s Lawyer submitted that “the mother’s evidence, in my respectful submission, is very clear on that point. There would be an anxiety. Her evidence was, “Over time it will reduce, because I will still be going to counselling.” “Do you think any negative emotions might have an impact on the quality of the care of the children?” and she said “No.” So there’s certainly no evidence that unsupervised time with the father would have a negative impact on her care-giving ability, therefore having a negative impact on the welfare of the children.”
The evidence of the maternal aunts Ms KK and Ms DD did not refer to supervision after final orders. In these circumstances I find that it is not appropriate to nominate them as supervisors in final orders. It is open to the parties to agree in writing to suitable supervisors.
The Relevant Law
These proceedings are brought under Part VII of the Act. In making any parenting order, the child’s best interests are the paramount consideration mandated under s 60CA of the Act.
What orders are in the best interests of the child must be determined in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.
Determining the child’s best interests
Section 60CC of the Act sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in the child’s best interests.
Section 60CC(2) Primary Considerations
The primary conditions are:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the primary considerations greater weight must be given to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.[58]
[58] Section 60CC(2A) of the Act.
The key issue here is whether there is an unacceptable risk of the children being exposed to sexual abuse in the care of the father. Although Part VII of the Act has been amended, the substance of the principles expressed in the decision of the High Court in M v M (1988) 166 CLR 69 (“M v M”) apply in determining parenting orders in a case involving allegations of sexual abuse.
The fact that a case involves an allegation of sexual abuse does not alter the Court’s paramount obligation to determine what is in the best interests of the child and make orders that will best promote them. The High Court in M v M pointed out that the determination of the best interests of the child should not be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.[59]
[59] M v M (1988) 166 CLR 69 at 76.
The mother does not seek any finding that the father has sexually abused the child X and this was not the focus of the trial. The father denies that he has sexually abused the child. The child has not made any complaint about the conduct of the father to the police, the Department or any other professional including Ms K or the family consultant.
The evidence of the family consultant which I accept was that if the father was found to be an unacceptable risk of sexually abusing the child X that it would not be in the best interests of the children to be separated during the time that they spend with the father and that effectively the same parenting arrangements should apply to both children.
In considering the wider question as to whether there is a risk of sexual abuse occurring if the children spend time with the father, the court must determine:
1.whether, on the evidence and circumstances, there is a risk of sexual abuse occurring in future; and
2.the magnitude of that risk; and
3.whether and how that risk may be addressed; and
4.whether, because of the nature and magnitude of the risk, there would exist an unacceptable risk that the children would be exposed to sexual abuse by the form of parenting orders made.[60]
[60] Ibid at 77.
Unacceptable Risk
In M v M, the High Court referred to the protection of the child’s best interests by endeavouring to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. The test to be applied in considering the magnitude of the risk was expressed as “a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse”.[61]
[61] Ibid at 78.
The “unacceptable risk” test is the standard used by the Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”.[62]
[62] M v M (1988) 166 CLR 69 at 78.
The High Court stated in M v M that “[i]n access cases, the magnitude of the risk may be less if the order in contemplation is supervised access”.[63]
[63] Ibid at 77.
In Johnson & Page (2007) FLC 93-344 at [68], the Full Court endorsed a list of principles emerging from M v M, as enunciated by Fogarty J in his extra-curial essay “Unacceptable risk – A return to basics”. Since then the Full Court in Slater & Light (2013) 48 Fam LR 573 has referred to what was said in Johnson & Page (2007) FLC 93-344 with approval.
In W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235, the Full Court stated at [111] that the questions posed by Fogarty J in N & S and the Separate Representative (1996) FLC 92-655 (“N & S”) provide a framework which may assist a trial Judge to assess future risks to a child. Those questions are:[64]
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom has the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
[64] N & S and the Separate Representative (1996) FLC 92-655 at 82,714, endorsed by W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 at 79,909.
I have used this framework and applied those questions to the facts of this case which I found earlier in reaching my conclusion.
The nature of the events alleged to have taken place between the father and X, if true, would constitute both sexual abuse and serious family violence. I accept the mother’s evidence outlined earlier about what X told her over time.
X volunteered to the mother on separate occasions in June 2016 and 15 November 2016, when she was aged three and four, that “Daddy touched my privates”. She also said “it hurt when daddy touched my privates”. Both of these occasions were the morning after the child had been in the care of the father when the mother was out in the evening. On 15 November 2016 X also said to the mother “I told Nan.”
I accept the evidence of the maternal grandmother that on 11 November 2016 X volunteered to her that “Daddy touched my privates” and she denied that it was by accident. The maternal grandmother told the child to tell her mother.
X told the mother on 15 November 2016 that “Daddy touched my privates” and in response to a further question “patted the top of her genitals, over her clothes”. X told the mother that this had happened twice and that she was “not lying, daddy is”. The child also told her mother “I just want it to stop” and “That’s why I never want to stay with him at night”.
X’s demonstration to her mother on 16 November 2016 accompanied by the words “he put his finger in and out of the hole” is compelling evidence.
The context of the touching by the father complained of by X is at times when the mother is not at home and X is in the care of the father and whilst the child is watching television with the father. The context of what X said in June 2016 was that “daddy rocked the baby and then she sat on the couch with daddy to watch the football”. On 15 November 2016 the child said to the mother that daddy did this “when you leave” and when asked about going to the shops and swimming with the father, X said “Yes but he would not want people to see”.
I have taken into account what X told Ms F as outlined in my findings.
I have carefully considered the question of whether X was lying. Significantly X told her mother that she lied on one occasion in June 2016 before the parties separated and on another occasion after separation. On the occasion before separation in June 2016 the mother was unsure what to make of this. The child said she lied reacting to the mother’s question about whether she should no longer watch television with the father. On the occasion of 22 November 2016 the child was understandably missing her father and wanted to see him at MacDonalds. I accept that X said to her mother in the presence of Ms F words to the effect of “Mummy, daddy can come home, you just don’t go to the gym, ok deal ok?”. This part of the conversation was corroborated essentially by Ms F who deposed that the child said “I want him to come home but only if you don’t go to the gym, you can’t leave me, I can only be with you and daddy, okay.” I accept the evidence of the mother, which did not assist her case, that X also said on 22 November 2016 “mummy I lied about daddy touching my privates. Can daddy come home?” I have concluded that after separation X wanted to see her father but did not want to be left alone with him.
I have carefully considered the submissions of counsel for the father and the evidence of the family consultant who highlighted the fact that X has not made a complaint to any of the professionals. X has been interviewed by numerous professionals at a later time after she made the complaints to the mother, maternal grandmother and Ms F. In assessing to whom the complaint was made by X, I have considered the credibility of the mother and the members of the maternal family who gave evidence. I have considered the possibility of collusion, innocent contamination and the conspiracy suggested by counsel for the father. I have concluded that there is no basis for collusion or fabrication and I accept the mother, the maternal grandmother and the maternal aunt Ms F as credible and honest witnesses who did not embellish their accounts of what the child said. The child has made a number of complaints over a period of time to her mother and two other trusted maternal family members so it would not be surprising that the child would not feel comfortable or the need to complain to professionals at a later time. This is particularly so where the child has a good relationship with the father in other respects and loves him.
I have considered whether there are any other alternative explanations for the allegations made by X. The father deposed to the child’s vaginitis and the fact that she was regularly treated with Bepanthen cream. However on his own evidence he did not treat X with the cream after Y was born as she matured.
I accept the evidence of Dr S and Dr T about X’s medical conditions but there is no basis to rely on this expert evidence, in the circumstances of this case, to reason that the father is an unacceptable risk of sexually abusing the children. I do not rely on that evidence in my determination.
I have considered whether the words said by X “I just want it to stop”, related to any sexual abuse by the father or whether she was complaining about a sore vagina as a result of the medical conditions which she suffered. Those words could be associated with the child’s complaint about a sore vagina and just wanting it to stop. I do not draw any inference from that evidence adverse to the father.
I have found that the allegations made by the mother are reasonably based and her belief in the veracity of them is genuinely held. I accept the expert evidence of Dr L that “the allegations do not present as driven by custody issues or the mother’s psychological issues.”
I have not placed any weight on my findings about family violence to determine the question of unacceptable risk.
The father seeks that the children live with him or in the alterative that any time that the children spend with him is unsupervised. On the evidence of the family consultant supported by the submissions of the Independent Children’s Lawyer, putting aside any questions of unacceptable risk of sexual abuse, there is no reason to change the primary care of the children from the mother to the father.
However on the basis of the evidence of the mother, the maternal grandmother and Ms F concerning the complaints about the father’s conduct made by X over time and particularly the demonstration she provided to the mother I am satisfied that there is an unacceptable risk of X being sexually abused in the unsupervised care of the father.
In considering the magnitude of the risk, I am satisfied that the risk is unacceptable having regard to the seriousness of the allegations, and the other matters I have found in answering the questions posed by Fogarty J in N & S.
Concerning the expert evidence, the family consultant conceded that the findings of fact were important to the question of unacceptable risk as was the credibility of each parent.
There was limited cross examination of the family consultant about the affidavit of Dr V which I have set out previously. The family consultant’s answers to these questions were equivocal. I have disregarded the evidence of Dr V for the purposes of considering the question of whether the father is an unacceptable risk.
Ms K’s evidence was largely based on play therapy and whilst I accept her evidence, I place no significant weight on her opinion in determining whether the father is an unacceptable risk. I have of course taken into account that X made no complaint to her about the father. The expert opinion evidence of Dr V was not specifically put to Ms K and I make no findings about this.
Counsel for the father submitted that there is no unacceptable risk in this case in relation to the father, and rather the risk in this case is the mother’s continued belief and also the risk of how she will manage the children as they get older. For the reasons I have outlined above and also in my earlier findings I cannot accept this submission.
Although the Independent Children’s Lawyer submitted that there is “insufficient evidence for a finding of unacceptable risk” there was no further submission to consider.
The submissions concerning Donaghey & Donaghey and the role of the mother’s belief referred to by the Independent Children’s Lawyer were prefaced on no finding of unacceptable risk. These considerations do not feature in my determination.
Section 60CC(3) Additional Considerations
The additional considerations are listed in s 60CC(3) of the Act. I have taken into account only those considerations which are relevant to the facts and circumstances of this case.
Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
X is aged six and Y is only two years old. At paragraph 92 of the family report, the report writer recorded that X reported missing her father and that although her mother has told her that she can go to him when she is grown up that she would like to go when she is still “little”. At paragraph 96 of the same report the report writer recorded that X wants to see her father.
Both children clearly have a close relationship with the father and enjoy spending time with him. The observations of the family consultant of the children interacting with the father were positive.
Given the age of the children, their views cannot be given significant weight. The risk identified in these reasons is of far greater weight. The level of understanding of X concerning matters of sexual abuse is low having regard to her age.
Section 60CC(3)(b): the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child)
The children have a loving, positive and meaningful relationship with both parents and extended families.
Section 60CC(3)(c): the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
Both parents have taken the opportunity to participate in making decisions about major long-term issues in relation to the children and to spend time and communicate them. However since the separation of the parents, the mother has had the primary role as the full time carer of the children.
Understandably, the communication between the parents has been fraught with difficulty having regard to the seriousness of the allegations made by the child and the fact that the mother believes what X has told her and what the child has demonstrated to her.
Section 60CC(3)(ca): the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
Both parents have responsibly fulfilled their obligation to maintain the children and the father is paying child support to the mother.
Section 60CC(3)(d): the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
There will not be any significant changes in the circumstances for the children if the status quo is continued.
In the long term the requirement for the children to spend supervised time with the father is onerous but having regard to the seriousness of the risk involved, this measure is justified. The mother has facilitated the children spending supervised time with the father.
The children have been spending time with the father under supervision and having regard to their age their comprehension about the reason for this is minimal. On the basis of the family consultant’s evidence it would not be in the best interests of the children for them to spend time separately with the father so that in a practical sense Y’s time spent with the father should also be supervised. I am satisfied on the evidence of the family consultant that splitting siblings would be “highly problematic” and not in the best interests of the children.
There is no reason why the children cannot continue to have contact with the paternal family and indeed the paternal grandmother and the children’s paternal cousin have been and will continue to be supervisors.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
Whilst there are practical difficulties and expense involved with the children being supervised when spending time with the father, this will not detract from the children’s right to maintain personal relations and direct contact with both parents on a regular basis. The unacceptable risk is an overriding factor.
The children have spent supervised time with the father consistently since the interim orders were made and this has allowed them to have direct contact with the father on a regular basis. The evidence is that this has not affected the positive relationship between the children and the father.
Section 60CC(3)(f): the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
On all the evidence the mother has the capacity to provide for the needs of the children including their emotional and intellectual needs. Since separation the father’s capacity to provide for the emotional and intellectual needs of the children has been restricted to the supervised time that the children spend with him. The children have not lived with the father since separation in November 2016.
There is opportunity for the extended family of the father to spend time with the children during supervised contact visits.
Section 60CC(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
There were no submissions about this consideration but the children continue to live in the former matrimonial home. The children have participated regularly in the Fitzwater family Christmas held annually in November in the country and I regard this as an important event for the children to continue to attend within the limits of the supervision.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The mother has been responsible in the parenting of the children in difficult circumstances. She has managed the full time care of the children after the separation in circumstances where she has a genuinely belief on reasonable grounds that the father had sexually abused X. She has managed the difficulties of attending with X for counselling sessions and cooperated with the proposal for X to attend upon Ms K for reportable therapeutic counselling. She has facilitated the spend time arrangements with the father and managed the needs of the children post separation which on the evidence of the family consultant has not damaged the father’s relationship with the children.
The father demonstrated a lack of insight into the emotional needs of the children if there were any change of residence and a lack of capacity to promote the children’s relationship with the mother. There are no issues concerning his attitude to the children or to his responsibilities of parenthood in caring for the children during supervised spend time arrangements. The unchallenged evidence of the Contact Observational Report in the affidavit of Ms NN about the children’s supervised time with the father and his attitude supports the view that he has a good relationship with both children.
Section 60CC(3)(j): any family violence involving the child or a member of the child's family
I make no finding that the father has sexually abused X and there was no application for such a finding.
I find on the evidence of both parents that X heard the parents arguing and fighting and in particular on the occasion of 12 August 2015 when the parents argued about the method of disciplining X. The findings about family violence which I have made earlier and the evidence of the mother about her reaction to the allegations, support the proposal for the supervisor to implement the changeovers. This is likely to be less stressful for the children.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter
There is no final intervention order in this case and the interim order was granted in the absence of the father. For this reason I have not drawn any inferences adverse to the father from the making of the interim intervention order.
Presumption of equal shared parental responsibility
Parental responsibility is defined under s 61B of Part VII of the Act in relation to a child, to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
Under s 65DAC of the Act the effect of a parenting order that provides for shared parental responsibility is that decisions about major long-term issues in relation to the child must be made jointly and such an order would require these parents to consult each other about the decision to be made regarding those issues and make a genuine effort to come to a joint decision.
I accept the evidence of the mother that she has the capacity to co-parent because she has been in counselling to prepare herself and that she communicates with the father by email. The mother stated that in time she would be able to speak with the father unlike last year where she was not prepared to talk or speak with the father.
Under s 61DA(1) of the Act, when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. This presumption may be rebutted, under s 61DA(4) of the Act, if there is “evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
The family consultant recommended that the mother have sole parental responsibility for the children in the event that the father was found to be an unacceptable risk.
I accept on all the evidence that the mother would find it extremely difficult to consult with the father concerning issues relating to the children in these circumstances. This is not unreasonable having regard to the mother’s belief in the veracity of the allegations made by X.
I am satisfied that having regard to the finding of unacceptable risk, outlined earlier, and on the evidence of the family consultant that there is evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
There was no application made for the children to spend equal time with the parents. As there will be no order for equal shared parental responsibility I am not required to consider whether it is in the children’s best interests, and reasonably practicable, that they spend equal or substantial and significant time with their mother and father. I am at liberty to determine directly which parenting orders are in the best interests of the children.
There is no question that the children benefit from and enjoy spending time with the father despite the fact that their time with the father has been supervised since separation.
I accept the family consultant’s recommendation that the children should spend supervised time with the father “as per the current pattern”, in the event of a finding of unacceptable risk.
Conclusion
On a number of occasions since mid-2015, X has raised with her mother, her maternal grandmother and her maternal aunt Ms F her complaint that “Daddy touched my privates.” This is a difficult case because the complaint by the child has not been expansive and the father denies any inappropriate sexual conduct with the child. The child’s complaint has been consistent but she has at times said that she has lied and then at another time said “I am not lying, daddy is.” The mother’s account of the demonstration by the child accompanied by the words “he put his finger in and out of the hole” was compelling.
The family consultant’s expert opinion was that the child is intelligent, articulate and “more mature than her years would suggest” although she is only six years old. Sadly on the evidence of the family consultant X now feels responsible for the separation of her parents. X clearly loves her father and wants to see him.
X has not repeated her complaint to any professionals in the multiple discussions between her and representatives from the Department, the police, Ms K and the family consultant. However given her age as the family consultant said there are real difficulties in relying upon what the child said in the interview. This case has required a very careful weighing of the evidence.
In considering the magnitude of the risk, I am satisfied that the risk is unacceptable having regard to the seriousness of the allegations, and the other matters I have found in answering the questions posed by Fogarty J in N & S.
I find that there is an unacceptable risk of X being sexually abused in the unsupervised care of the father. I am satisfied that it is in the best interests of both children to spend supervised time with the father. This is unfortunately the only realistic option here. On the evidence of the family consultant it is not in the best interests of the children to be split.
The mother’s proposals for the children to spend supervised time with the father for only two hours each alternate Saturday are too restrictive and not in the best interests of the children. It is important for the children to have a meaningful relationship with the father and there have been no difficulties with the spend time arrangements for the interim orders.
I have accepted the alternative proposals of the Independent Children’s Lawyer for the children to spend supervised time with the father each alternate Saturday between 10 am and 6pm and each alternate Sunday between 10 am and 4pm to be supervised by the paternal grandmother or paternal cousin. The children are to spend time with the father each Thursday between 4pm and 6pm supervised by the Family Contact Service. Although they were not included in the alternative proposals of the Independent Children’s Lawyer I have also incorporated the latest interim orders which provided for the children to spend time with the father on Christmas day, the children’s birthdays, the annual paternal family Christmas in November and father’s day. Because of the difficulty in supervising the children I have limited the spend time arrangements for the annual paternal family Christmas in November to one day.
It is appropriate having regard to the evidence in the trial that the supervisors file an undertaking with the Court as set out in the orders and that the Independent Children’s Lawyer confirm with the paternal grandmother her obligations and responsibilities for supervising the children.
The mother is to have sole parental responsibility for the children and it is appropriate for her to keep the father advised of all major long-term decisions made for each of the children as proposed in the alternative by the Independent Children’s Lawyer.
The father sought other orders including a restraint upon the mother taking the children to VV Group, and/or like services, without prior notice to him and from discussing the proceedings or intervention order proceedings in the presence or hearing of the children. He also sought a restraint upon the mother denigrating or making any critical adverse comment about him or any member of his family or friends in writing or orally to or in the presence or hearing of the children.
Regarding the first restraint proposed, as the mother will have sole parental responsibility any counselling for the children is a decision for the mother.
Regarding the second proposed restraint on the mother, I have concluded on all the evidence that such a restraint is unnecessary because there is no evidence of the mother denigrating the father or his family or friends to the children and the difficulties of enforcing such an order. The enforcement of these type of orders are likely to lead to the children being questioned which would not be in their best interests. On the evidence of the mother and the family consultant I accept that she would promote a meaningful relationship with the father for the children.
I have concluded that there is no need to make orders for counselling for the mother as she is already undertaking counselling with Dr U.
I do not accept the mother’s proposal that the father be ordered to have counselling because he denies the allegations. There is no evidence to support the mother’s proposal that the father be ordered to abstain from consuming alcohol before spending time with the children and the children’s time with the father will be supervised. There is no necessity for such an order to be made.
There were no submissions made regarding the Airport Watch List order made by Judge McNab in the Federal Circuit Court on 23 November 2016. Accordingly I do not propose to discharge this order, but the order expires on 23 November 2018.
I certify that the preceding five hundred and seventy seven (577) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 18 October 2018.
Associate:
Date: 18 October 2018
Annexure A
The applicant mother relied upon the following documents:
· Affidavit of the mother filed 19 February 2018;
· Affidavit of the mother filed 31 July 2017;
· Affidavit of the mother filed 7 July 2017;
· Affidavit of the mother filed 24 April 2017;
· Affidavit of the mother filed 28 February 2017;
· Financial Statement filed 28 February 2017;
· Notice of Risk filed on 23 November 2016;
· Affidavit of Dr T filed on 22 February 2018;
· Affidavit of Dr S filed on 25 January 2018;
· Affidavit of Dr U filed on 25 January 2018;
· Affidavit of Ms UU filed 16 February 2018;
· Affidavit of Ms R filed 19 February 2018;
· Affidavit of Ms R filed 28 February 2017;
· Affidavit of Ms KK filed on 31 July 2017;
· Affidavit of Ms DD filed on 31 July 2017;
· Affidavit of Ms F filed on 28 February 2017;
· Affidavit of Professor E filed on 27 April 2017.
The respondent father relied upon the following documents:
· Trial Affidavit of the father filed 16 February 2018;
· Proof of Evidence of the father filed 9 March 2018;
· Financial Statement filed 1 June 2017;
· Notice to admit facts dated 13 February 2018 (letter);
· Affidavit of Ms C Fitzwater filed 16 February 2018; and
· Affidavit of Ms B filed 16 February 2018.
The Independent Children’s Lawyer relied upon the following documents:
· Family Report prepared by Ms M dated 12 May 2017;
· Affidavit of Ms NN filed 16 February 2018;
· Affidavit of Ms K filed 20 June 2017;
· Affidavit of Dr L filed 10 May 2017.