Flood & Piper and Ors
[2008] FamCA 852
•30 September 2008
FAMILY COURT OF AUSTRALIA
| FLOOD & PIPER AND ORS | [2008] FamCA 852 |
| FAMILY LAW – CHILD ABUSE – Sexual abuse by father alleged – Abuse found not proven |
| APPLICANT: | Mr Flood |
| RESPONDENT: | Ms Piper |
| SECOND RESPONDENT: | Mrs Flood |
| INTERVENOR: | Director General, Department of Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Allan Scally |
| FILE NUMBER: | NCC | 1462 | of | 2007 |
| DATE DELIVERED: | 30 September 2008 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | JUSTICE MULLANE |
| HEARING DATES: | 18 January, 4-6, 15 & 22 August 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr M. Graham |
| SOLICITOR FOR THE APPLICANT: | Hunter Family Law Centre |
| COUNSEL FOR THE RESPONDENT: | Mr Davies |
| SOLICITOR FOR THE RESPONDENT: | Meredith & Co, Solicitors |
COUNSEL FOR THE SECOND RESPONDENT: | Mr Kelly |
| SOLICITOR FOR THE SECOND RESPONDENT: | Craney Family Solicitors |
| COUNSEL FOR THE INTERVENOR: | Ms Hollins |
| SOLICITOR FOR THE INTERVENOR: | Ms L Kohler, NSW Crown Solicitor’s Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Gorton |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr A. Scally, Legal Aid Commission |
Orders
The finding of the Court is that there no unacceptable risk of sexual abuse of either of the children S born … January, 2002 or D born … April 2003 if they have unsupervised times with the father.
Because of impending retirement on 30 September 2008, Justice Mullane hereby abandons further hearing of these proceedings.
The next stage of the hearing is listed before a Judge for case management on a date to be fixed by the List Clerk.
If at least 21 days before the final stage of the hearing the independent lawyer for the children or one of the parties requests the Registry Manager in writing to provide a transcript of the first day of the Less Adversarial Trial, the Registry Manager is to obtain such transcript and provide a copy to each party and the independent lawyer for the children.
The Registry Manager is to provide a copy of these reasons to the Officer-in-Charge of the JIRT Team at T.
IT IS NOTED that publication of this judgment under the pseudonym Flood & Piper is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC1462 OF 2007
| MR FLOOD |
Applicant
And
| MS PIPER |
Respondent
| MRS FLOOD |
Second Respondent
| DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES |
Intervener
REASONS FOR JUDGMENT
INTRODUCTION
This was a hearing, as part of a Less Adversarial Trial, to determine the issue of whether the parties’ two children – S, aged nearly 9 and D, aged 5, would be subject to an unacceptable risk of sexual abuse by their father if they spent unsupervised time with him.
BACKGROUND & EVIDENCE REGARDING ALLEGATIONS OF SEXUAL ABUSE
The mother has raised allegations that the father has sexually abused S. These allegations cannot be looked at out of context because the context is relevant to determine the credibility of witness and the reliability of evidence.
S was born in January 2002. The mother checked herself out of the hospital because she formed a view that someone was going to kidnap S. The mother had been hospitalised in 2000 because of heroin use. She had attempted suicide at age 15 and was hospitalised at age 18 in 1990 for a drug overdose. She told Dr W in 2005 that she was first diagnosed as suffering Bi-Polar II Disorder in 1992. In July 2000 diagnoses by a Community Mental Health Service were Cyclothymic Disorder, Polysubstance Abuse and personaltiy disorder.
The parents were cohabiting at the time. It seems they were both users of illegal drugs. The father was in paid work at the time, so the mother in the home was responsible for S during his absence. The father was unhappy with what he described as the neglect of S in the mother’s care. He described this to Dr W in his report of 2005.
In 2002, although they were still cohabiting, the father appears to have made a notification to the Department of Community Services (“DOCS”) that S was at risk of sexual abuse in the mother’s care. In these proceedings there was no evidence that there was any reasonable basis for such notification.
On 22 March 2003 the mother took S to G Hospital because of recurrent oral and vaginal thrush. It was found that she had a Herpes Simplex (Herpes 1) infection of the genitals. As a result of the findings on 22 March, S was also assessed by a Child Protection Case Worker at M 10 April 2003 and a urine test showed she was clear of any thrush infection or other genital disease.
When the parties separated on 21 October 2002, the father assumed the care of S.
Dr W reported in his 2005 report:
[The mother’s] application is for the children to be returned to her and for contact with the father on alternate weekends and block contact. The father's application is that the current orders are retained and that the supervision is continued until it is clear that [the mother’s] unstable mood has settled. Among other matters, both parents allege that the other is the heavier drug user and that they were personally very volatile and emotionally unstable during the relationship.
D was born in April 2003. For about 10 months the mother refused to allow D to spend time with the father and disputed that he was the father. The father then commenced proceedings in the Local Court at G. Those proceedings were subsequently transferred to the Family Court at Newcastle.
On 19 September 2003 the mother took S to Dr A at G Hospital. At the hearing she denied at first that she was upset, but eventually conceded she was. She sought to have the doctor write a letter to say that the father could not have the care of the child. She was upset because the doctor refused. She cried. She said in cross-examination regarding this incident, “[the father] and I were both drug addicts at the time and I don’t believe I thought [the father] was able to care for our daughter. And I had grave concerns at the time that something was happening to my daughter – not necessarily by her father.” She suspected S was being sexually abused by her father or some other person.
The father’s evidence is that between August and September 2003 on one occasion he saw “blood running down [S’s] leg”. He took her to his general practitioner. He then took her to W Sexual Assault Unit. She was examined there.
In October 2003 the mother went to see a psychologist, Mr K, from whom she was receiving drug and alcohol counselling, for advice over changes she had observed in S’s behaviour upon returning from time with her father and preparing to go to spend time with her father. Mr K noted that the mother was concerned about sexual abuse, but seemed to rate the likelihood as low. There was no evidence before the Court as to any reasonable basis of suspecting that S’s behaviour was likely to be a result of sexual abuse. The mother did not give evidence explaining the reason she thought the behaviour indicated possible sexual abuse.
The mother alleges that she was raped in December 2003. She told her G.P. in January 2004 that it happened four weeks ago and that she was suffering insomnia and flash backs. She told Dr W in February 2005 she was sexually assaulted in Sydney in December 2003. She did not include evidence of the rape in her affidavit material. When I asked her about the alleged rape, she said it happened in about 2004. She said was an adult and it happened in Sydney. She said it was not someone she knew. She was going with her sister-in-law to a concert and they went to a hotel beforehand and had drinks. She said she believes someone spiked her drink. She said she woke up the next morning on a road in Pyrmont. She had been beaten “and obviously raped (for reasons I don’t want to say)”. She said a jogger assisted her and called an ambulance.
She said she went to the hospital “which I soon after left”. She said she had spoken to a Police Officer and a nurse before then and they had wanted to do “a rape test” and wanted her to press charges. She said she left and there were no proceedings. She said she had made no claim under the Criminal Injuries Compensation Act and she had received no sexual assault counselling, but had spoken to Mr E about it (who was then counselling her about drug and alcohol abuse), but did not receive sexual assault counselling from him as such.
The mother took S to G Hospital on 9 January 2004. S was found to be suffering from oral and vaginal thrush. At the mother’s request, S was also tested for Herpes. That month the mother suffered a period of significant depression. She admitted herself to James Fletcher Hospital and was diagnosed to be suffering substance Abuse Disorder and a Borderline Personality Disorder.
The father in about February 2004 observed that S was touching her genitals. He was conscious that the mother had previously accused him of molesting S. He told Dr W, the Single Expert, that he took S and she was “checked out” by the sexual assault team, who did not find anything abnormal. But on 10 March 2004 the father filed a Notice of Abuse or of Risk of Child Abuse alleging that “unusual behaviour” by S was observed in that she was “touching and putting toys near her genitalia”. It appears that at the time the Notice of Abuse was filed, the sexual assault team had not yet seen S.
After the Notice of Child Abuse, the mother took S to G Hospital on 14 March 2004. S was then two. The mother said that she took her there for general symptoms and feeling unwell. The mother also requested to speak to the doctor privately and after that conversation S’s genitals were examined and she was found to be suffering mild thrush of the vagina.
The father subsequently took S to Dr R to be examined because of concern by the father that S had been sexually assaulted. The father’s evidence is that Dr R “expressed the opinion that something had happened”. The matter was reported to DOCS and S was examined at the sexual assault unit by Dr C on 18 March 2004.
Dr C’s report is dated 30 March 2004. She says in that report:
Dr. [R] has already notified Department of Community Services about her specific concerns for the child whilst in the care of her mother. She contacted me because during an examination of [S] for an intercurrent respiratory illness and infected insect bites on her legs, [S’s] father [Mr Flood] raised his concerns that there may have been a possibility of sexual abuse. His anxiety was raised because [S] had become reluctant to have her nappy changed and appeared to be pulling her hands in front of her genitals saying "no." [S] on previous occasions had been an extremely co-operative girl during medical examinations for Dr. [R] and was likewise during this assessment until it came time to examine her genital region when she became very distressed and did not allow an adequate examination. The doctor was still concerned that there was some excoriation of the introital area and that indeed the examination was not completely normal, however the child was not sufficiently co-operative to allow her an adequate examination.
[The father] also commented that [the mother] had disclosed to him that she had been sexually abused by an older brother as a child. As [S] had been living with her mother at maternal grandmother's house there is concern that she may have contact with this uncle. He also raised concerns about an eight-year-old cousin who has behaved in a sexually inappropriate manner before in [the father’s] presence.
The history I have is from Dr. [R], [Mr Flood], (natural father of [S]) and his mother [Mrs Flood]. I understand that there is a formal Family Law Court arrangement and [S] is to spend two days/week with her father, Sunday to Monday to return to her mother's care from Tuesday to Saturday. However it seems that on frequent occasions the children are left in his care far longer than that prescribed, as the mother is either unable or unwilling to collect [S] and/or [D].
On Saturday 27rh March [the father] said he was contacted by [the mother] to say she was going into hospital and could he come and collect his eleven-month old son [D]. Apparently there are some AVO’s in operation regarding the two families so he arranged for a friend of his mother's to collect [D] from the house and both children have been in his care since then. He is unsure when [the mother] will be contacting him again to continue her care of the children.
He told me that he is concerned about the home environment. He says that [the mother] has a past history of bi-polar disorder, which has required previous admission to James Fletcher Hospital, and a past history of a number of suicide attempts. He was also concerned when [the mother] was asked to leave her mother's house recently and is unsure of the reason for the conflict. Of most concern is her past history of IV drug use and abuse of amphetamines. He believes that she has been given a housing commission place in [B]. He is worried that if she is caring for the children by herself without the support of her mother and continues to abuse drugs the children may have inadequate supervision and care.
[The father] also brought up the issue that he often found medication that [the mother] was giving to [S] that was not appropriate for children under the age of twelve years. He also felt that she gave too much Panadol to both children as a way of trying to quieten them down.
He also has a difference of opinion in some general issues of care for instance - diet and toileting arrangements. I reassured him about toilet training saying that it was fine for him to offer a normal toileting regime approach to [S] at the age of two years and two months, however many children don't achieve control until two and a half so that a little delay here is acceptable. Apparently [the mother] gave strict instructions that they were not to attempt toilet training.
I did recommend to [the father] that he immediately attempt to change [S’s] dietary and drinking habits. She presently has many bottles of milk a day including a bottle to go to sleep with and perhaps if she wakes during the night. She is a fussy eater with a poor intake despite the fact that her appearance may suggest otherwise.
Her weight 17kgs has her significantly above the 97th centile for her age. Her height approximately 90cms is in between 50th and 75th centile with this height you would not expect her to be 17kgs until approximately four years of age.
I didn't have time to take a full dietary history today as I had been requested to do an urgent examination of her genitalia, however it was most appropriate this is followed up by her general practitioner. 1 gave some specific instructions, however, relating to [S] stopping her large intake of cow's milk through a bottle. I have encouraged them to talk to [S] about this and perhaps relate it to a special event such as Easter. Reducing her bottle intake will improve dental care so maybe buying a special new toothbrush at the same time as discarding the bottle and only giving her drinks of milk in a cup after meals would be helpful.
Given that she also has an unsettled sleeping pattern at the moment and is not able to settle herself of an evening, requiring her father's presence and waking through the night they may choose to stop the bottle milk intake first and address the sleeping issues later.
Even if the child's mother does not follow the same practice children usually adapt in that situation to the different styles of care in the different households and I encouraged the family to ensure that she sleeps in a single bed in her own room even if she requires an adult present when settling and then again through the night as long as she stays in her own bed. I advised [the father] that if his ex-partner [the mother] would like to discuss these issues with me she is most welcome.
I will be asking her General Practitioner Dr. [R] to review her progress, in particular her weight. I would also discuss with her whether or not [D] and [S] should be tested for Hepatitis C.
With respect to the examination I was able to have a brief yet adequate view of her genital region under pretext of nappy change in the medical room with the aid of a good light, unfortunately not the full use of the Medscope with magnification as she was a bit too restless.
Dr C re-assured the father and the paternal grandmother that the genital examination was “normal”. It did not indicate or exclude that there had been any sexual abuse.
The mother had a hospital admission in 2004. She told Dr W her general practitioner had changed her medication for her mental health problems and she had had a very bad reaction. “She said she thought she was losing her mind and she decided to binge on drugs so she started using amphetamines, ecstasy and other drugs. She met her current boyfriend when she was intoxicated with a mixture of drugs and he talked her into going to hospital.”
On 16 April 2004 interim orders were made by the Family Court placing the children in the care of the father. Further interim orders were made by consent on 19 July for the children to reside with the father and have supervised contact with the mother. The orders also provided for each parent to have regular drug screens.
It appears that as at 16 April and 19 July, the mother had serious problems with drugs. In May 2004 she took a drug overdose. From October 2004 the mother started attending Narcotics Anonymous at M but stopped after about 2 months.
The parties and their supporters were conducting a fairly serious conflict in 2005 leading up to the proposed hearing of the proceedings concerning the children. In 2005 there were also proceedings in the G Local Court against the mother and the maternal grandmother for alleged assault of the father. Outside the Court on one of these occasions the mother told the father, “I’m sorry for accusing you of sexually abusing [S] the other year. It was wrong of me. I was just trying to get brownie points for the Family Court.” It appears the assault proceedings were dismissed.
The mother went to Dr I, S’s General Practitioner, on 3 February 2005. S had a urinary tract infection. The mother said that S had complained that her vagina was sore. The mother said that she had asked S again about “Daddy – if he put cream still in the vagina”. She alleged that S told her, “Daddy put the cream in – in”. The mother says she was therefore concerned that S had been sexually assaulted by the father. The doctor did a visual examination of the genitals. He noted that the mother stood close behind him while he did the examination. He observed there was no bruising and the genitals were “slightly red”.
The mother conceded in cross-examination that on 3 February she took S and asked the doctor to examine her vagina. She said that was because it was “red, enflamed, sore and her urine was dark and I was concerned”. She conceded that she was concerned about possible child sexual abuse. But in these proceedings she did not give evidence of any reasonable basis for such concerns. She conceded that at the time she knew she was soon to be interviewed by Dr W. She said she was very anxious when she took S for the examination.
On 4 February the mother went back to the doctor without S and the doctor noted:
She had [S] on Tuesday morning from 11 o’clock to 3pm. She had to drink some water. Went to toilet then wipe her bottom and child sore. Mother asked why it is sore – child said “me not remember”. And then child said, “hit myself on the wall” – then points “sore in her vagina – then mother asks her again about sore – child says “sore and Daddy put cream there and child points lower and use her finger and child said “cream in – in”.
The mother took S back to Dr I on 14 February. He diagnosed her as suffering from a non-specific urinary tract infection, which was treated with vaginal cream.
Dr W was appointed as Single Expert in the Family Court proceedings and conducted interviews and observations for the report on 22 February 2005. Dr W is a Consultant Child Psychiatrist. Unfortunately, his curriculum vitae was not in evidence.
He reported from the mother’s interview that:
She said that [S’s] sleep seemed to deteriorate after she began visiting her father from the age of about nine months and [S] became clinging and wanted to sleep with her. When she was about 12 or 18 months or age, she began to be reluctant to attend the visits. She said she took [S] to [Mr K], a psychologist in Newcastle named who attributed the problems to separation anxiety and made some suggestions which helped a bit, but [S] had not settled down for about 10 months.
She was toilet trained without difficulty and she has not had any problems with bedwetting. She slept in a cot in her mother's room.
He also reported that after some positive statements about the father he asked her whether she had recently believed that he had molested S and she said she did not:
She said that an incident had occurred when she had been wiping [S’s] bottom and [S] had flinched and said she was sore. When asked where, [S] indicated in the front but said that her father had put some cream in there. She said she thought that was odd and she telephoned her solicitor who suggested she take [S] to the doctor which she did. She said the doctor asked [S] the same things that she had and got the same answers. An examination was normal. She said that she spoke to a doctor who said that he either could monitor the situation or ring the Department of Community Services. She said she suggested monitoring but she also spoke to the DOCS Hotline. However she said that the doctor later told her that he had spoken with DOCS. She also said that he told her he had spoken to [the father’s] doctor who confirmed that he had diagnosed a urinary tract infection and had prescribed a cream for the father to administer. She said that she now feels as content as she can about this risk to her daughter.
In March 2005 the mother’s solicitors wrote on her instructions to Dr I requesting a copy of his medical records regarding S.
Dr W’s report was released on 6 April 2005. He had interviewed both parents, observed the father with the children, and interviewed the paternal grandparents and the maternal grandmother. He had read extensive documents in the then proceedings.
He concluded his report with the following:
CONCLUSIONS AND RECOMMENDATIONS
aThe nature of the relationship of the children with each parent and with significant other persons
[The mother] seemed to feel herself very much on show when I saw her with the children and she appeared to use the opportunity to try to make points about the situation rather than relating to the children in a warm and natural way. Indeed the interaction with [S] had a rather artificial feel to it. [S’s] relationship with her mother appeared to show notable insecurity. She was clinging, rather infantile and a bit demanding with her mother and generally behaved somewhat more immaturely than she had with her father. Moreover, [the mother] verified that this was the way [S] normally was with her.
It was difficult to assess [D’s] relationship with his mother, as he seemed to prefer to play in the vicinity of his maternal grandmother, even though she tried to encourage him to do something with his mother. While this may well have been a unique reaction which was related to the novelty of attendance at my office, it would also have been consistent with [D] feeling somewhat more secure with his grandmother than with his mother.
Both children seemed to have a warm, appropriate and secure relationship with their father. I did not observe the same insecurity or clinging behaviour in [S] nor did [D] appear to gravitate away from his father. Not only did he seem to relate to the children in an appropriate, warm, responsive way which nevertheless reflected appropriate generational boundaries, but the children played in a relaxed and enjoyable manner suggesting that they feel quite secure in their father's presence.
b. Parents attitude towards responsibilities and duties of parenthood
[The father] talked in a very warm, spontaneous and detailed way about the children. He was able to maintain his focus on their interests primarily rather than on his own, and created the impression of being genuinely child centred.
While [the mother] undoubtedly is quite distressed by having lost the children and sees herself as being disadvantaged in the assessment, I felt that her way of dealing with the assessment situation reflected a somewhat immature, self-centred approach to her situation and that the manner in which she relates to the children indicated a lack of awareness of appropriate generational boundaries, particularly bearing in mind the children's ages. It is also a pattern of interaction which is often associated with a parent on one hand apparently sometimes being very indulgent with the children and at other times ignoring the children and placing a higher priority on the parent's current feelings and concerns. It is a pattern which one observes in parents with severe personality disorders such as Borderline Personality. These parents have difficulties maintaining fair, firm consistent parenting and the focus on the children's needs.
c. Emotional state of each parent
[The mother] appears to have a well documented history of unstable mood, attempts of overdose, periodic psychiatric assessments and care and two admissions to John Hunter Hospital (September 2000 and March 2004). She alleges that these are things of the past now and that her emotional state is much more stable as a result of her regularly taking Epilim, a mood stabilising drug which was first recommended to her some years ago, and that she has stopped using drugs as well. She dates this change from her hospitalisation at John Hunter Hospital in March 2004, following having been precipitated into a disorganised and psychotic state by the cessations of Epilim and the administration of an anti-depressant drug (which is known to have this effect). At that time her discharge diagnosis was Borderline Personality Disorder and Polysubstance Abuse. She has subsequently undergone assessment by Mr [K], Cinical Psychologist who also questions a previous diagnosis of Bipolar Disorder and suggests that the primary diagnosis might be more of an anxiety related condition such as Parric Disorder, for which he recommends cognitive behaviour therapy.
[The father] challenges the mother's assertion that she is much more stable, although he has little evidence of this apart from alleging that the mother has continued to have a stormy relationship with the maternal grandmother.
My examination of [the mother] and my perusal of the records leads me to the view that while she may well be somewhat more stable now, her history of depression, self-harm, stormy relationships with her family and with others and longstanding intermittent polysubstance abuse does not enable confidence as yet that her life has truly stabilised. I found her to be somewhat emotionally fragile and insecure. She seemed to use communication with the children as a method of making some of the points which she wanted to emphasise with me in a manner when lent an artificiality to her interaction with the children. She also appeared to be overly influenced by the children, asking on [S’s] behalf whether [S] could use the textas without apparently thinking whether this might be an irresistible temptation to [D], and later asking if she could take [S] outside, which would have represented a contravention of the orders for supervision. I formed the view from this that she is a rather emotionally needy person who does not have a clear sense of generational boundaries between herself and the children and who perhaps can be somewhat manipulative. I would also note the history that she provided to Mr [K] seems to have been far from complete.
From a diagnostic point of view, it is my view that a diagnosis of Borderline Personality Disorder probably can be supported on the materials available, and there seems little question about the diagnosis of Polysubstance Abuse although perhaps that is in remission at the moment. Whether or not she has Bipolar Disorder which will be stabilised by Epilim is yet to be seen, as her psychiatric history has been significantly complicated by concurrent drug use. Moreover, it does not appear that a diagnosis of Hypomania or Mania has been made on the basis of direct examination at the time of hospitalisation or at another time, which in my view places a significant cloud over whether or not she has a Bipolar Disorder at all.
Her claim that she was administered amphetamines, a benzodiazepine and a cannabinoid (marijuana) without her knowledge in October 2002 on the face of it seems disingenuous. Her history of use of all of these drugs was of administration of each of them via a different route. Moreover, it seems unduly complicated to administer a cannabinoid secretly, although amphetamines and a benzodiazepine could have been secreted in something which she ate.
It is also of concern that despite the ongoing tension and dispute between the parents following the separation, [the mother] admits to having continued to use drugs although she insists that this never occurred when the children were with her. Bearing in mind that she also insists that she was not using drugs at the time of the separation and there appears to be a drug screen which would indicate otherwise, one can reasonably question whether she is reliable in this regard.
In my view a period of significantly longer stability would need to be observed, given that she appears to have had about a 15 year history of significant emotional instability which has brought her to the attention of a number of different medical settings. I also note that she appears not to have fully complied with treatment up until recently. Throughout she tends to blame others for the failure of, or inappropriate, treatment and her inability to take responsibility for herself is also a matter of concern.
[The father] gives a history of substance use and abuse which he indicates began in his late teenage years but was at its most severe during the relationship. He alleges he stopped using drugs at the time of the breakdown of the relationship and that his insistence that [the mother] do the same was the immediate cause of the separation. He also has a history of some criminal misdemeanours prior to and during the relationship which are commonly associated with a drug use associated lifestyle. It is his insistence that he is completely drug free at the moment, and the limited drug screens available are consistent with this.
While I cannot exclude that [the father] is unreliable in this regard, his conduct on the day of the assessment was consistent with him being emotionally stable and drug free at the moment. I observed no evidence consistent with a diagnosable psychiatric illness or personality disorder.
d.The capacity of the parents to meet the emotional, physical and intellectual needs of the children
Both parents claim that they are capable parents and they provide documentary support from family and friends. On the other hand, both parents have histories of drug use and each alleges that the other is emotionally unstable. There is good corroboration of the father's allegations in respect of the mother which in my view indicates that whatever degree of instability and volatility is present in the father, it is of a less severe degree that is present in the mother.
My observations of the relationship that the children have with their parents is consistent with the children having quite a stable and secure relationship with their father and with [S] having quite an insecure attachment to her mother which surprisingly, the mother seems to regard as being unremarkable and the usual pattern. It is difficult to be certain whether [D] also has an insecure relationship with his mother as he had relatively little to do with her when I saw them together and preferred to hover in the vicinity of his maternal grandmother. As, I have noted elsewhere, this could be consistent with him feeling more secure with his grandmother than with his mother when he has the choice.
The concern about the mother's well documented mental problems is that if it is the case that she has a Borderline Personality Disorder rather than a Bipolar Disorder, then she is likely to continue to be a rather unstable person in the future, although there may be periods of stability, and she will continue to be vulnerable to substance abuse which will make her mental state worse, and when she is in an emotionally troubled state, she will have a great deal of difficulty being a fair, firm, consistent and responsive parent Rather, she win tend to put her own emotional needs higher than those of the children.
e.The need to protect the children from any form of physical, emotional or sexual abuse or neglect.
I note that both parents have caused [S] to be examined over concerns that she has been molested in the other parent's household. Both parents seem to be content at the moment that this is not an issue.
In my view the major risk to the children is of emotional neglect and abuse. As I have indicated above, this is a particular risk with parents who have a Borderline Personality Disorder or a degree of emotional disturbance akin to this condition, which appears to be substantiated by the available documentation in relation to the mother. This type of problem is most harmful to children if children are in the full-time care of such persons for extensive periods of time, with the risk declining as a proportion of the amount of time that the children spend with that parent.
f. Desirability and effect of parents proposals for residence and contact
If it is the case that the Court is satisfied that the mother has been quite a troubled person for a number of years, and that she is in a state of only partial remission at the moment and that there is a risk of further relapse in the future, as is my concern, then the question would be whether contact can be unsupervised and for how long.
If the Court is satisfied that the mother is in fair psychological state at the moment, then it is not my view that supervision of the contact continues to be necessary. As I have indicated elsewhere, I was somewhat dissatisfied with the mother's general manner of relating to [S] in particular, but even that would not ordinarily dictate supervision.
In my view provided the mother maintains a fair level of emotional stability and is drug free, as appears to be the case at the moment, then it would be appropriate to make orders for unsupervised contact in blocks on a twice weekly basis, bearing in mind the current age of the children. A reasonable weekly schedule might be one afternoon a week and at another time, a block of one overnight and two days each week. Provided the mother remains stable, this could probably be consolidated into a single block of two nights and three days a week in 12 months time with periodic lengthier blocks of contact at times corresponding with school vacations, then with the introduction of the usual pattern alternate weekends and half school holidays when [S] starts school in 2007. I would add to this one evening or additional overnight each week.
The mother should also make undertakings that she will have regular psychiatric (as distinct from psychological) assessments, that her medications will be reviewed by a psychiatrist at intervals of at least twice a year, and that she will continue to be supervised on a regular basis by her general practitioner. In the event that she shows a psychiatric decompensation or resumes drug use, I would recommend that if she is still living with her mother, that the grandmother exercise the contact on the same basis provided she undertakes to appropriately supervise the children when their mother is in the vicinity and prevent contact between the children and their mother when this would ordinarily be judged to be inappropriate because of the mother's emotional or drug state. If it becomes evident that the mother's decompensation is of a more longstanding type, then it would probably not be appropriate to continue this degree of contact with the maternal grandmother indefinitely and probably the matter should be brought back to Court for further consideration.
It is also my view that the mother should continue to have urine drug screens at monthly intervals with the results being provided to her psychiatrist and that the psychiatrist also undertakes to monitor her drug use status.
A question remains over the father's stability as well. Although I formed the view that he has basically a more stable mental state and personality structure than the mother and that his drug use has not been as prolonged or involved in as many different classes of drugs, a return to drug use or evidence of notable volatility in his personality would be a relevant matter. If the children are residing with him this may well be a matter which would lead to a further hearing. However in the meantime, it is my view that the father continue to undergo regular urine drug screens. I would recommend that these occur at a monthly frequency and also that the father attends a drug and alcohol counsellor for review at six-monthly intervals.
g. Any other matter
The materials I have seen as well as the parent's accounts provide very clear evidence of ongoing tension and distrust between not just the parents but also with the significant support of their respective families. There have been numerous allegations and counter-allegations regarding each of the parent's capacity to look after the children, primarily but not entirely instigated by the father. The circumstances of the past 12 months give no confidence that this pattern is likely to change.
On 2 May 2005 orders were made by this Court in the then proceedings, one of which was as follows: “The Court notes that the mother is not proceedings with any allegation that the father sexually abused [S]”. But in oral evidence on 6 August 2008 the mother said that she still believed that S had been sexually abused by “the father or a friend of his or someone acquainted … I didn’t really ever come to the belief that he hadn’t.”
On 19 May the mother was admitted to James Fletcher Hospital after a Narcotics Anonymous meeting. She said she had injected amphetamines the previous weekend and had not slept since. Her possessions had been taken. Her behaviour was odd and her speech incoherent.
On 25 July 2005 the then proceedings were settled and consent orders were made. The consent orders provided for the children to live with the father and included the following:
2. That the mother have contact to the children as follows:
2.1 Until 26 August, 2005, each Tuesday, Thursday and Friday from 11.00 a.m. to 7.00 p.m. and thereafter each week on Tuesdays from 9.00 a.m. to 1.00 p.m. and from 9.00 a.m. Friday to 5.00 p.m. Saturday until 31 January, 2007,
2.2 During 2006 for part of the school holidays:
2.2.1 at the end of term one for 3 consecutive days commencing at 9.00 a.m. on the first day and concluding at 5.00 p.m. on the third day (the first day being the Tuesday of the first week of the said school holiday period),
2.2.2 at the end of term two for four consecutive days commencing at 9.00 a.m. on the first day and concluding at 5.00 p.m. on the fourth day (the first day being the Tuesday of the first week of the said school holiday period),
2.2.3 at the end of term three for five consecutive days commencing at 9.00 a.m. on the first day and concluding at 5.00 p.m. on the fifth day (the first day being the Monday of the first week of the said school holiday period),
2.2.4 during the 2006/07 Christmas school holidays, for a period of one week in January 2007 nominated by the mother upon the mother giving the father 28 day's notice in writing,
2.2.5 that the children's contact with the mother be suspended during the second week of the school holidays at the end of terms 1, 2 and 3,
2.2.6 that during 2005/2006 and until 31 January, 2007 the children's contact be suspended for a period of two weeks on two occasions outside the school holiday periods to enable the father to take the children on a holiday upon the father giving the mother one month's notice in writing and upon the father providing compensatory contact in the week before and the week after the contact period as agreed between the parties.
2.3 From 1 February, 2007:
2.3.1 during school term each alternate weekend commencing the first weekend after 1 February, 2007 from after school on Friday until the commencement of school on Monday and each alternate Thursday (being the Thursday following the children's contact weekend pursuant to this order) from after school until 7.00 p.m.,
2.3.2 for half of all school holidays being the first half in even numbered years and the second half in odd numbered years.
2.4 At such other times as the parties agree from time to time.
5. That notwithstanding anything contained in these orders, the children:
5.1 have contact with the mother:
5.1.1 on Mother's Day from 9.00 a.m. to 5.00 p.m. where Mother's Day is not a contact weekend pursuant to these orders,
5.1.2 on Christmas Day in odd numbered years from 5.00 p.m. Christmas Eve until 12 noon on Christmas Day and in even numbered years from 12 noon on Christmas Day until 5.00 p.m. on Boxing Day.
5.1.3 on the mother's birthday from 3.00 p.m. to 7.00 p.m.,
5.1.4 on the children's birthdays for a period of four (4) hours as agreed but failing agreement from 10.00 a.m. to 2.00 p.m. in even numbered years and from 2.00 p.m. to 6.00 p.m. in odd numbered years.
5.2 Reside with the father:
5.2.1 on each of the children's birthdays for a period of 4 hours as agreed but failing agreement from 10.00 a.m. to 2.00 p.m. in odd numbered years and from 2.00 p.m. to 6.00 p.m. in even numbered years,
5.2.2 on Christmas Day in even numbered years from 5.00 p.m. Christmas Eve until 12 noon on Christmas Day and in odd numbered years from 12 noon on Christmas Day to 5.00 p.m. on Boxing Day,
5.2.3 on the father's birthday from 3.00 p.m. to 7.00 p.m.
6. That each party be and is hereby restrained from denigrating the other in the presence of the children or either of them or permitting any other person to so denigrate the other in the presence of the children or either of them.
13. That the father and the mother be and are hereby restrained from a period of twelve (12) hours prior to the commencement of their respective periods of residence pursuant to these orders and during periods of residence to use any illicit substance including amphetamines, methamphetamine or cannabis.
14. That the mother attend on and undertake such regular psychiatric assessments as directed by her treating psychiatrist Dr [H] or such other psychiatrist as she may attend at least every six months and otherwise attend on her treating general medical practitioner for review at least monthly.
15. Until 31 January, 2008 that the parties continue to have urine drug screens at monthly intervals with the results relating to each parent being provided to their respective medical practitioners including any treating psychiatrists or drug and alcohol counsellors providing counselling to either party.
16. That the father undertake such regular drug and alcohol counselling each six months until 31 January, 2008.
17. For the purposes of order 15 hereof the parties shall appoint the date on which the other must attend each month for drug testing, such date to be picked at random and notified to the other in writing with not less than 16 hours notice. The party receiving notice shall acknowledge in writing receipt of the notice and shall attend at the place of testing so notified and shall obey all directions of the tester.
18. Should the mother fail to attend an appointed drug test or provide a sample of urine or provide a sample of urine which is positive for an illegal substance, all contact provided for herein shall be suspended unless that contact is supervised by the maternal grandmother [Mrs Piper].
19. The suspension of contact unless supervised shall continue until the mother provides to the father three clear drug tests over a 3 month period and a certificate from the mother's treating psychiatrist that it is appropriate for unsupervised contact to resume.
In oral evidence on 6 August 2008 the mother said she consented to the orders because “I didn’t really have much choice because of what had happened in my life and he was living with his parents”.
Until 26 August 2005 the children had day contact with the mother three times per week as ordered. Then until 31 January 2007, as ordered each week they had contact from Friday morning to Saturday afternoon and 4 hours on the Tuesday. From the end of the first school term in 2006 they also had the contact in school terms as ordered.
On 2 December 2005 the parties argued at a change-over in front of the children. The mother punched the father. The Police were called.
The mother told Dr W that shortly after the orders were made on two occasions she noticed when she was bathing S that her vagina “did not seem right”. She described it as being a bit open and inflamed. S was complaining about being itchy and sore. She said she had taken S to see Dr I to “check on this” on 3 or 4 occasions. She had also told S there were certain places that nobody should touch and that when she enquired about this S has always said that no-one has. Remarkably the mother had so little insight into her behaviour and S’s perspective of it, she told Dr W that she had never indicated that she was suspicious of any particular person when she made these enquiries.
On 3 April 2006 the mother commenced a two week out-patient program at James Fletcher Hospital because she was considered at risk of a drug relapse.
On 27 June 2006 S was diagnosed as suffering a vaginal infection which turned out to be an infection normally occurring in the throat. The evidence establishes S had previously had a throat problem.
In February 2008 Dr V, a pathologist, reported that based on his review of S’s test results dated 27 June 2006:
· S had an infection of the vagina (vaginitis) and the infection was caused by the bacterium Streptococcus Pneumoniae which is a common agent of infection of the respiratory tract;
· Uncommon, but not unheard of, for a child to self inoculate the vagina by transferring the bacteria from the nose and throat to the genital area on their fingers;
· Streptococcus Pneumoniae is not recognised as being a sexually transmitted pathogen;
· Cannot conclude as to whether the child S was infected through sexual transmission due to interference of some kind or via auto-inoculation;
· Important to know if child had a respiratory tract infection at the time of the vaginal swab was taken.
On 5 July 2006 the parties both attended with the children on a paediatrician.
On 17 July 2006 the mother attended on her psychologist, Mr E. He recorded that she had “acute stress symptoms following drink spiking 3 weeks ago in [G] and waking to physical assault by a friend of her brother, 2 or 3 hours later in […], and being driven back to [G] by him. Since then she has been hyper-vigilant: trying to make sense of the event; dreams/sleep disturbance; easily over-whelmed by other’s needs; question counter phobic binge over the latter part of last week that lead to distress culminating this morning with feelings that she could not cope. Leading together thoughts of sexual assault? 3years ago and recalling [the father] taking [D]. Background of Borderline Personality and Bi-polar Disorder. Today she’s seen Dr [P], who increased dose of Zyprexor and [Ms F] (D&A Counsellor) who discussed rehab and justice options. Labelled ASD? NOS (unclear whether dissociative symptoms present due to period of wearing off of / substance and suggested arousal management as priority).”
In July 2006 the mother stayed in a motel. She used the father’s mobile phone number. She left without paying the account.
S was taken to see a paediatrician on 21 July 2006. It was recorded that she had suffered a recent urinary tract infection with some vulval erythema discharge. Examination of perineum revealed no erythema, discharge or other signs of inflammation or injury. A renal ultrasound for the possibility of current urinary infection.
On 1 November 2006 the mother contacted the community Mental Health Team. She said she was in crisis. She was distressed and crying. Her medication had been changed but the main stressor was wanting to go to Court to get more time with the children.
On 28 November 2006 the mother reported to Police that the father had smacked D. The Police examined D and noted that the marks on D were not consistent with him being smacked. The Police described the marks as “scratches or a graze”. No proceedings were taken. The father told Dr W that she later phoned him and told him the doctor said D must have fallen on a step. In oral evidence on 4 August 2008 the mother insisted they were bruises and said that D was “black and blue on the legs”. On the balance of probabilities that evidence of the mother on 4 August 2008 was untrue.
It is noted that when the Police attended in response to the mother’s complaint. S was present. The Police advised the mother to take D to a doctor. It appears she did not. D was playing with toys, although he appeared upset. The Police spoke with S. They recorded that S told them that the father “smacked [D] three times for being naughty and he used his hands”.
In her affidavit the mother swore, “[D] said words to the following effect to the Police officer: ‘Daddy smacked me and smacked me’.” The Police record does not record that. The mother also alleged, “The Police Officer informed me that they would not be making a report as they could not confirm whether the bruises were made by hand.” However, the Police Officer recorded that the reason they would not proceed with the matter was that there were no bruises and there were no marks consistent with a smacking.
On the balance of probabilities, the father did not smack D and the statement by S that he did was untrue.
On 23 January 2007 the mother phoned the G Community Health Service. She told them she was not managing S well and needed help. She said she was “not happy with the Court process”. When she was cross-examined at the hearing about this occasion, she said that she “wasn’t managing [S’s] anger”, and, “Basically I wasn’t managing to get to the bottom of it”. On 29 January the mother presented at G Hospital distressed and anxious. She reported trouble with sleeping. There was no reference to drug abuse.
The time the children spent with their mother increased pursuant to the Orders on 1 February 2007 to half school holidays, and in school terms every second weekend from end of school Friday to start of school Monday and in every other week on Thursday from end of school to 7pm. They also continued to be with their mother on birthdays, Christmas, her birthday and Mother’s Day.
But on 15 February 2007 the mother wrote to the father’s solicitors requesting that the children spend more time with her. It recited that the father had attended a Legal Aid Mediation but had refused to agree to more time for the children with the mother. The letter advised that the mother had legal aid to take proceedings if no agreement was reached. The evidence is that at the Legal Aid Mediation she had been seeking shared care week about. The father had rejected that proposal. The father did not agree to the mother’s request for further increase in time the children spend with her.
The mother then made a complaint to DOCS. She alleged that the children and the paternal grandparents had been ejected from their home by the father in the middle of the night. She was relying upon what she alleges the children told her. Both the father and paternal grandmother have given evidence on oath denying the allegation. At the time DOCS did not regard the allegation as substantiated. On the balance of probabilities the allegation is untrue.
Six days later the mother complained to DOCS that she saw needle marks on the father at change-over. Apparently, that allegation was not substantiated. On the balance of probabilities it was untrue.
The evidence of the paternal grandmother is that before 4 April S suffered thrush.
On 15-22 April 2007 the children stayed with their mother in school holidays, and in the father’s care from 23-27 April. The father and the children were living with the paternal grandparents. The paternal grandmother told Dr W that in that period S was holding herself a lot and on Tuesday, 24 April the father asked the mother for some cream for S and she saw S apply the cream herself to her genitals. The paternal grandmother said that her son would not have applied the cream at that time or at any time recently, because he was too scared of false allegations. On Thursday, 26 April 2007 the children and the father stayed the night at the home of the paternal grandparents.
On Friday, 27 April 2007 at the end of school the mother collected the children from their school. Dr C reported what the mother told her happened as follows:
[The mother] reported that on Friday 27th April 2007 she picked up [S] for regular weekend visit. [The mother] observed creamy, yellow vaginal discharge and some speckles of blood in [S’s] undies. The genital area appeared red. [S] was holding her genital area and appeared agitated.
The mother in her affidavit sworn 18 February 2008 gives a different version of what she observed:
49On 27 April 2007 I picked [S] and [D] up from the [G] Public School for weekend contact. Soon after [S] was in my care I noticed that she didn't seem her usual self. Over the next two days I noticed that she was complaining of stomach aches and holding on to her genital area a lot. I asked [S] a couple of time if she was "sore or itchy" too which she replied with a quick "no".
In the affidavit she then went on to describe events on the evening of 29 April 2007. The evidence of the maternal grandmother is that in the whole weekend she was not aware of S suffering any discharge or having any soiled underpants. That is consistent with the mother’s failure to mention any discharge in her affidavit. She also made no such allegation to Dr W in July when she told him events of 27 April.
The children continued in the mother’s care on Saturday, 28 April 2007 and overnight. The evidence grandmother’s evidence is that after S used the toilet on the Saturday morning, she told her mother, “It stings when I wee”, and the mother then examined her genitals and applied cream to her vagina. Later in her cross-examination the grandmother said that on Saturday morning S was complaining of feeling “a little bit sore down below”.
This material and other material that was reported by the mother to Dr C regarding events on 28 April, is not included in the mother’s affidavit material.
Dr C reported what the mother told her on 17 May about the Saturday:
The following Saturday evening during bathing [S] avoided her mother. [The mother] asked if it was sore or hurting her. She applied Zinc and Castor Oil cream to [S’s] genital area. She observed a small fissure in the midline of the Labia Majora. The genital area appeared “too open” for her age.
The mother’s affidavit does not include such evidence.
The maternal grandmother’s evidence is that on the morning of the Sunday, S went out and played normally. But, she said, S, “kept touching herself” (on her genitals).
The mother’s evidence as to what then transpired on the evening of Sunday, 29 April is as follows:
52. I said words to the effect of:
"Have any of the boys at school done anything silly that you need to tell mum about?"
[S] said "no".
53. I then said words to the effect of:
"You know you can tell me anything don't you?"
54. [S] responded by saying words to the following effect:
"Yes, but don't tell anyone, not even grandma and not daddy cause he'll get really really cranky. "
55. I responded by saying words to the following effect:
"What's happened darling? "
56. [S] responded in a whispering voice by saying:
"It starts with D and you know him. "
57. I searched through some names and then [S] said:
"Daddy. "
The mother then believed, she says, that S had been sexually abused by her father. The mother immediately telephoned G Hospital and arranged to take S there to be examined.
The mother gave a different version of the conversation to Nurse B at the hospital. Her evidence that the mother told her on the telephone, “My daughter told me that it hurt to wee”, and, “[S] said her father put his finger in her vagina”. The mother did not allege in her affidavit or in her oral evidence that S alleged in the conversation at home on 29 April that the father put his finger in her vagina. She told Dr W in July 2007 that S on 29 April told the mother her father “touched her with his hand”.
The record that Nurse B made on the night in the Casualty Section of the Hospital is as follows:
Presenting Problem: Female aged 5 years, 3 months presents with urinary Incontinence (Enuresis), child presents with mother. Mother States child divulged tonight that it was hurting to PU. Child also divulged that Daddy had touched her on the vagina while she was asleep. Child stated to me that it was the first time but mother states that child told her tonight that daddy has touched her ‘lots’. On questioning child states dad used his finger in her vagina. Child states daddy doesn’t touch her anywhere else.
Mother states father has residence of both children, [S] aged 5 and [D] aged 4. Mother has contact but applying for shared care.
….
U/C SC 1020 Phb NAD O/E urethral vaginal area excoriated. Mother has applied Derm aide cream to area prior to presentation O obvious bruising/tearing to vaginal area.
……
Mother will P/U yc LMO if concerned.
Instructs given re zinc and caster cream to area.
In a statement Nurse B prepared seven days later she stated:
At approximately 2010 hrs a woman and young girl entered the foyer of [G] Hospital. I now know the woman to be [the mother] and the young girl, the woman’s daughter, to be [S]. I introduced myself and took both [the mother] and [S] into the triage area of the emergency Department. No one else was in the emergency Department through the entire presentation of the child.
I began by speaking to [S], who was sitting on a chair. I said, Mummy has told me that you told her something tonight. Would you like to tell me? Initially [S] was shy and unwilling to look at me. But her mother looked at [S] and said, it’s OK to tell [Nurse B] what you told me tonight about what Daddy did to you.
[S] then told me, Daddy put his finger in my vagina. I asked [S] if she would point to her vagina and she pointed to between her legs.
I asked [S], did Daddy touch your vagina while you were in the bath. [S] said, No. I then asked, when does Daddy touch your vagina and she replied, When I’m asleep.
I asked [S] how many times Daddy had touched her vagina and she replied, it was the first time. [The mother] interrupted and asked if she could say something, I said yes, [the mother] said, [S] told me tonight that it has happened lots. The daughter then stated, No it happened once.
[The mother], at one state through the assessment, became teary and said something to the effect of, I can’t believe this happened.
I asked [the mother] if it was OK to get a urine sample from [S] and if it was OK to have a look down below, pointed to [S]. [The mother] said yes.
Both [S] and [the mother] entered the toilet area and returned with a urine sample and handed it to me then both sat down. I tested the urine sample and found no abnormalities. I told [the mother] that the urine was clear. I then asked [S] to hop up on the table so that I could have a little look. [S] was not concerned about me pulling her underpants down to have a look between her legs. [The mother] was in attendance during this time.
I did not notice any discharge on her underpants. I did not notice any odour. I did not notice any bruising or tearing to the genital area. I did notice that there was a reddened area to the labia that extended down to the vagina. I could not see any blistering of the area. The rash was similar to a nappy rash. I notice that a cream has been applied to the reddened area and asked the mother what it was. She said that she had applied demaide. I did not touch [S’s] genital area during the assessment.
I then discussed making a report to DOCs and asked [the mother] questions according to the written DOCs report. I then became aware that [S’s] father had custody but [the mother] was going for custody. I learned that [S] had a younger sibling, [D] aged 4 years, who was waiting in the car with his maternal grandmother at that present time. I also learned that [S’s] paternal grandmother had an A.VO out against [the mother]. [The mother] told me that she was to drop [S] off at school in the morning and that [S’s] father would be picking her up after school to take her back to his house.
I then went into the Major Trauma Area of the Department to telephone DOCs, leaving both [the mother] and [S] in the Triage area. I made the report which took approximately 10 minutes. On return, [S] was not in the area. [The mother] was in the Triage area. I discussed that based on the report, DOCs would intervene if necessary. I discussed with [the mother] that if she wanted she could make her own report to DOCs. I asked [the mother] if she was agreeable for me to refer her and [S] to the Social Worker. [The mother] agreed to this. I then discussed management of [S’s] rash.
I walked out to the hospital foyer with [the mother]. [S] was with […], a clerk at [G] Hospital, colouring in a colouring book. She was smiling. I then wished [the mother] luck and said goodbye.
There is significant disparity between the mother’s version of what S said to her at home as contained in the mother’s affidavit of 18 February 2008 to what the mother told Nurse B. It is also noted that the Nurse interviewed S in the presence of the mother and the mother even interrupted and contradicted S in relation to the alleged touching had occurred only once.
The grandmother testified in cross-examination that the mother told her after the trip to the hospital that S had said that “daddy had touched her”.
Dr C’s version of what the mother alleged on 17 May was said by S on the evening of 29 April is as follows:
On Sunday, 29 April, [S] said, “I am really, really sore”. [The mother] asked “Why are you sore? Has something happened? You can tell me” or words to that effect. “Has something happened at school? Have there been any boys doing any silly things?” [S] replied, “no, he touched me”. [The mother] asked, “who is her?” she said, “It begins with D and you know him”. Later she whispered ‘daddy’. [The mother] asked, “Daddy touched you?” [S] replied, ‘yes’. [The mother] asked, ‘where did he touch you?’ [S] placed her hand over her genital area. [The mother] asked “did anything else happen?’ [S] put her finger to her mouth as if embarrassed and said, ‘he put his finger in me’. [The mother] thanks her for being honest and told [S] that what daddy did was wrong and they cuddled. [S] told her mother ‘please don’t tell grandma’, the maternal grandmother and ‘don’t tell daddy, he will get really, really, really cranky. Can you promise mummy?’
The version the mother gave to Dr C on 17 May is even more elaborate than what she told Nurse B and even more different to the version the mother swore to in her affidavit.
In cross-examination on 18 January 2008, it was put to the mother said that at the time of the alleged disclosure on 29 April 2007, the mother had “always suspected the father of sexually abusing [S]”. She replied, “No, I suspected something was happening to my daughter. I did not suspect it was always her father.”
The mother during the course of her evidence that said that when she went into the bedroom with S, she asked S to “hop up on the bed”. She then examined S’s genitals and asked “Has anyone ever touched you or done anything silly at school?” She said that S said, “It starts with a D”, and later whispered “Daddy”.
She said that when she took S to the Casualty Section at the Hospital she gave “basically a short hand version of what [S] told me”.
In cross-examination on 5 August 2008 the mother said she does not know how Nurse B said that the mother told her, “The father put his finger in her vagina”. The mother said, “I didn’t know that till we were at the hospital.” She then said that at home [S] told her, “Daddy put her (sic) hand there”. When it was pointed out to her that she referred to “her”, said, “I made a mistake”, and said what she meant was, “his”. She said, “My recollection is she said that he put his hand there”.
The mother in cross-examination later said that she did not think it was inappropriate for her to re-assure S, by saying to S she could tell her mother anything and not get into trouble for it. Referring to the alleged disclosure on 29 April, she said, “She had just disclosed something, that was so despicable I can’t talk about it and she was being asked to talk to a stranger”. She said that she had “reassured her she could tell me anything and if anything was wrong, she could tell me”.
On 6 August the mother was asked again what exactly she said in the alleged conversation at home on 29 April. She said that after S got out of the shower, she was:
… still quite agitated in the vaginal area. She was inflamed and red. I asked her if it was sore. She wanted to come into the bedroom. I asked if it was okay if I had a look at her vagina and she said ‘Yes’. I had a look at it. I asked had anybody touched her. She had started wearing a dress at school. I asked had any boys at school done anything funny. She said ‘No’. I re-assured her she could tell me anything. Then she meekly said, ‘Don’t tell Grandma and don’t tell Daddy. He’ll get really angry.’ I asked her, ‘What’s happening darling?’ I can’t recall if I asked, ‘Did someone touch you?’, or she said ‘Somebody touched me’. Then she said, ‘It starts with a D’ ….
The mother’s attention was directed to the fact that Nurse B said that the mother reported, “It’s happened many times”, and the mother was asked where she obtained that information. She replied, “Because I felt that it had”.
In oral evidence on 5 august 2008 the mother alleged that S did in fact tell her that “It happened lots”.
Nurse B did not observe any discharge or any blood when she examined S on the night of 29 April. Nor did Nurse B observe any fissure or other abnormality in the genital area, although the mother had alleged that on Saturday that she had seen a fissure in the midline of the labia majora and “the genital area appeared ‘too open’ for her age”.
In cross-examination the mother said that Nurse B advised her to keep S’s underpants. She said she put them in a plastic bag “but they were lost”. She said she does not recall how long she had them.
Nurse B did not record being informed that there had been any problem with discharge or soiled underpants, or that she gave any such advice.
A urine sample taken at the hospital by Nurse B on the night of 29 April was tested and did not reveal any evidence of urinary tract infection.
Nurse B recorded of her examination of S on the night of 29 April, “I did not notice any discharge on her underpants. I did not notice any odour. I did not notice any bruising or tearing of the genital area. I did notice that there was a reddened area to the labia that extended down to the vagina. I could not see any blistering of the area. The rash was similar to a nappy rash. I noticed that a cream had been applied to the reddened area and I asked the mother was it was. She said she had applied Dermaide.”
The maternal grandmother said that she observed the mother after she had been with Nurse B and the mother was “frantic and crying”. Later when S arrived home, she vomited.”
The mother did not send S to school on Monday, 30 April 2007. Her evidence is that S was suffering from “a tummy problem” all weekend and was constipated on the Monday. The evidence does establish that the mother sought any medical help for S in relation to these alleged problems even though she had been to the hospital on the Sunday night.
An officer from the DOCS telephoned the mother on the Monday morning about the report made by Nurse B to DOCS. The officer recorded: “[the mother] said that she has thought for sometime that [S] has been sexually assaulted by her father …”. The reason she gave for such belief was that “she has always had a discharge”.
She told the officer that [S] on the Friday had “extreme discharge” in her underpants. The officer recorded, “In discussing this further with [the mother] she said she still has the underpants and has not washed them. I asked [the mother] to place the underpants into a plastic bag as they may be required for further assessment of discharge. [The mother] said that she would do that.”
The mother then gave a different version of the conversation on 29 April with S. She said that S had disclosed to her initially be saying that she had been “hurt by somebody beginning with D and you know him”. She said that after S had identified the person as her father, “[the mother] said that she asked [S], “How did Daddy hurt her and she said, ‘With his finger’, and she touched her vagina.”
The mother then told the officer that S had previously displayed sexualised behaviour “exposing herself all the time”. No such allegation had been made previously in the interview with Nurse B. Nor was it made in the interview with Dr C. Nor was there any reference to this allegation in the evidence of the mother in her affidavits. There was no evidence to support such a proposition.
In cross-examination the mother was asked why she had not taken S to the hospital on the Friday because of the discharge. At first she was evasive and volunteered an unresponsive answer. When the question was repeated, she replied, “Because on Friday she said it wasn’t very sore and I didn’t push it”. She that it was not until the Sunday when she bathed S that “she seemed more aggravated and more concerned”. She said, “On the Friday it didn’t seem serious enough”. Then she volunteered, “I’ve been told by so many people that I’d jumped the gun etc so I didn’t want to do it again”.
She was asked when it is she said that S first said something that led her to believe that S had been sexually abused by her father. When she replied, “I asked if she was sore or itchy … All I keep seeing is my bedroom and she said it in … It’s really, really sore. She had started to wear a dress at school. I made an assumption that perhaps some boys at school had been … she denied that. I was comforting her and telling that she could tell me anything. She said, ‘It starts with D and you know him’. I searched for a name and she said, ‘Its Daddy’. I got my mobile and went in the front yard to call the hospital because I didn’t know what to do.”
The mother did not send either child to school the next day (Monday, 30 April). She retained them at home and then at about 3pm she took the children in playing clothes to the location at the school where the father was to collect them. The father collected the children, but not driving a car because he had lost his licence and did not have a motor vehicle. He was being driven by one of his parents. They collected the children that evening and then went to the home of the paternal grandparents. That evening the father completed moving the belongings of himself to their rented home at R Street. The children were minded by the paternal grandmother at R Street while the father attended a class in a course called “Pathways”. That was the first night that the children stayed overnight at the R Street property.
At about this time, the paternal grandmother had formed a view that S was allergic to soap that was used in her vaginal area. She had ceased using the soap in the vaginal area of S, but had observed that sometimes when S had spent time with her mother, she returned having a rash or thrush. The father corroborated this evidence.
On Tuesday, 1 May the children attended school. In the evening, the father and the children had dinner with the paternal grandparents at the home of the paternal grandparents. The children were then minded by the paternal grandparents while the father attended a Course called “Safe Passage” to assist parents understand their children. It was about the 5th class of a series of 10. After he returned from the course, he collected the children and he and the children spent their second night sleeping at the R Street home.
On Wednesday, 2 May, the children attended school. The paternal grandfather then drove the father to Maitland so the father could arrange for Health Card cover for him to have two wisdom teeth removed on Thursday, 3 May. At the end of school that day the children were collected by the father and one of his parents driving the car. The children were taken with the father to the paternal grandparents’ place for dinner and they stayed overnight there because the paternal grandfather was going to drive the father to Muswellbrook early the next morning for the father to have his wisdom teeth removed by a dentist.
On Thursday, 3 May the father was driven early in the morning to Muswellbrook and then that day had two wisdom teeth removed. Meanwhile during the day it appears the paternal grandmother took the children to school.
On Thursday, S was interviewed by a DOCS Officer, Ms N, and Dt. Sen. Constable J from the Police. They were the JIRT team officers conducting the investigation of alleged sexual assault of S by her father.
S was interviewed at school for more than 30 minutes. At the time she was 5 years and two months. She was in kindergarten.
After considerable questioning designed to established rapport and also questioning as to whether S knew the difference between truth and lies, then in various preliminary questions, she was asked who she lived with and she said “Daddy and Mum”. She later in response to further questions, said that she denied that she lived with her mother and father in the same house. She said she lived at “R Street” with her father and D. When asked whether there was anything she did not like about living at her father’s, she shook her head to indicate “No”. Her attention was drawn to her visit to the hospital and she was asked, “Can you tell us about that?” She replied, “I just got a sore throat.” She said she could not “drink a little bit”, and, “But now I’m better”. In answer to questions, she said her mother took her and she saw a lady there. When asked what she talked about there, she said, “Talking about my friend”.
When it was put to her, “So when you went to the hospital, somebody told us you mentioned something about Daddy doing something. Can you remember that?” and she shook her head indicating “No”. When she was asked, “Can you remember saying anything to anybody about Daddy?”, she said, “A little bit, but I don’t really remember it.”
She was asked, “What little bit do you remember?”, and she replied, “Saying to Dad, ‘Don’t do that’.” Then a further question was put to her and she said, “I just don’t remember what he did”.
When asked if she could remember what he was doing, she shook her head to signify “No”. When asked what her father had done when she said, “Daddy, don’t do that”, she said, “Left the room”, and later, “And goes into his own bed”. In further questioning, she indicated that this event happened in her room at the home of the paternal grandparents and he was wearing “Bear Care Pyjamas”. She said it was night time. She woke up and “Daddy was in my room”. She said she was “standing on the lower bed”. She was asked several times what the father was doing and repeatedly said, “I don’t remember”.
When she was asked if she had had to say “Daddy, don’t do that”, to her father before, she answered, “No. Just this once.” When asked, she said her father was dressed in pyjamas. She said she could not remember which pyjamas he was wearing. When asked whether he was close to her or “away from you”, she said, “Away from me”.
Eventually she was asked whether he was doing something before she said, “Daddy, don’t do that”, and she nodded “Yes”. When she was asked a leading question, “Who was he doing something to?”, she replied, “Me”. Then when she was asked what he was doing to her, she said, “I don’t remember”. She gave the same response when the question was put to her in a different way.
It was put to her that when she went to the hospital and spoke with the Nurse, she spoke about a different part of her body to her sore throat. She answered, “Yes”.
When she was asked what part of the body it was, she did not reply.
When asked to indicate the parts of the body she spoke to the Nurse about, she indicated the throat area and the tummy because she said she had a “tummy ache”.
She still persisted in saying she could not recall what her father had done despite repeated questioning about that. Then she was asked, “What do you think he was doing?”, to which she replied, “He did it quick, so I didn’t know how”. She was still pursued further about what the father allegedly did, and then when asked again, “What did he do quick?”, she indicated on the tummy area on the body outline with her pencil. Then when she was asked, “What did he use when he did it quick?”, and, “Did he use a part of his body?”, she indicated with a pencil a hand on the body outline.
She agreed that it was the only time “He’s ever done that”.
This question was pursued again and again she insisted that he had only “done one time”.
But despite that, she was asked, “What did he do that other time?”, and she replied, “He did it both times in one day”.
Then later as she was asked, “Where does the other time happen at?” and she replied, “The tummy and the throat in one night”.
When she was asked, “Have you ever told anyone that Daddy’s touched you somewhere else?”, she answered, “No”.
Twice, when asked, she denied ever being touched on her “private area” by anyone. She indicated that if it did, she would be able to tell a doctor, a nurse or her teacher and indicated her teacher by name. But she also replied in the course of this repeated questioning, “But it didn’t happen”.
In response to further questions she said that at her father’s place (R Street), no-one shares her room with her. But the arrangement there was that D slept in another single bed in the same room.
When asked who sleeps in the father’s room with him, she said, “Mummy. Everyone’s got a single bed in my, in their own bed”.
Early on the Thursday afternoon after S had been interviewed in the morning, the JIRT officers reported to the mother the outcome of the interview of S.
The mother’s evidence is, “They both came to my home … sometime after lunch. They said they had interviewed [S] and asked questions and there had been a sort of disclosure, but she was embarrassed and didn’t feel she could go further.”
Ms N swore in her affidavit that they informed the mother that, “[S] has been interviewed in response to a risk report alleging possible sexual abuse. We told each parent that [S] had not made a clear disclosure of sexual abuse. We informed the mother first and then the father.”
Dt. J did not give evidence in his affidavit of the conversation with the mother.
Ms N’s evidence that after S was interviewed on 3 May, she went to see the mother. She spoke to the mother in the mother’s home with the maternal grandmother present as well. She said that S had made no disclosure. She said, “That was as far as we could take it.” She said she told them that there would not be any further interviews and that was the end of the JIRT involvement. She said the mother was upset, but she did not recall the mother crying. She said she was “concerned and worried”. Ms N made no notes of the conversation. The mother conceded she was “distressed”. She denied she was frustrated. She said she was “confused”.
Sn. Det. J then telephoned the father. The father’s evidence is as follows:
27 In around December 2005 I commenced regular contact with the [G] Community Drug and Alcohol Counselling Service. I attended a total of eleven face to face appointments between December 2005 and October 2006. I have also had telephone conversations when necessary.
28 Annexed hereto and labelled "C" is a letter from [Ms F] the Drug and Counsellor at the [G] Community Drug and Alcohol Counselling Service detailing my contact with the service.
29 In around February 2006 I had to finish working at the [G Sports] Club as the shifts were continually conflicting with my contact time with the children.
30 On 28 February 2006, I had a urine drug screen despite not being requested to do so by the father.
Dt. J’s evidence is that Ms N was present with him when he attended on the father.
His evidence is:
6 I advised [the father] that a report via the DOeS Helpline had been made in relation to [S]. I also advised [the father] that [Ms N] and I were from JIRT and had interviewed [S] earlier in the day at the School.
7 I told [the father] that we were unable to substantiate any incident of abuse as between [the father] and [S]. [The father] then became quiet angry and state that the natural mother of the child, [Ms Piper] must have contacted the DOCS Helpline
8 I told [the father] that I could not tell him who contacted the DOCS Helpline.
9 I then heard [Ms N] speak to [the father] about how he should behave when he picked [S] up from the School that afternoon, that he should encourage [S] to talk to people about matters, that he should not be annoyed with her for talking to JIRT and that [S] should not be made to feel that she had done anything wrong.
10 Prior to leaving the Premises, I asked [the father] if there was ever an incident where he was alone in [S’s] bedroom with her and she was a bit upset. He said words to the effect, "no, oh only one time when I had got bashed". He then said words to the effect, "why, how come" and I said, "no reason, she just mentioned being upset once". [The father] then said words to the effect, "yeah, I got bashed up once".
11 I then told [the father] that JIRT would be taking no further action and left the Premises along with [Ms N].
Ms N said in cross-examination that the first occasion the mother referred any vaginal discharge on the Friday night was in a telephone conversation with the mother at 9.30am on Monday, 30 April. She confirmed that the mother did not disclose that S had had any previous vaginal problems. She and Dt. J were not aware that there had been previous allegations of sexual abuse by the mother against the father. She said, however, that they were aware that S had an infection and the father had been given cream to treat it.
In cross-examination the only evidence she gave about the interview of the father after S was interviewed on 3 May was, “We went to the father’s home and told him that that was the end of the investigations and there would be no more interviews”. Neither Dt. J nor Ms N disputed the father’s version of what was said in that meeting. The interview with the father after the interview with S on 3 May was at the home of the paternal grandparents. The paternal grandfather was present. The record made by Ms N in the DOCS file is as follows:
Det. [J] explained to [the husband] that a report was made concerning [S] and that the matter was with [T] JIRT. [Det J] explained why we interview children without parental consent if they are the subject child. [Det J] explained that we had interviewed [S] today at the school regarding the report. That at the moment we were not able to substantiate the matter.
[The father] said that he had a fair idea of who made the report. [Det J] explained that we were not able to discuss whom made the report. [The father] continued to state that his ex-partner would of made the report, and that she has done it before. Given the previous history concerning [the father] and his ex-partner, and the risk of continued behaviour of abuse and violence, I explained to [the father] that whilst I could not discuss with him whom made the report, I felt that he needed to know that his ex-partner did not make the report and that he needed to remain calm about the situation when communicating with his ex-partner. To keep in mind the children and what was in their best interest.
File Note Record
I explained to [the father] the following:
To normalise [S’s] routine and continue as per normal;
To identify the importance of 'embracing' the positive aspects of [S] talking to us (JIRT);
To talk to [S] about how well she did and that it is important for her to talk to people if someone is hurting her;
Not to question [S] about the interview, particularly in what was asked and what was said, certainly if she wants to talk to about it than discuss what she wants to discuss with her;
That [S] is not to be made feel like she is in trouble and that she has done something wrong;
To try and normalise her talking to us and to encourage her to talk again if she feels that she needs too, or if someone hurts her;
Not to make a big issue of [S] talking, even though the report concerned allegations made about him.
I also explained to [the father], that now that the Department of Community Services is involved with the family, it may not mean that the matter is finalised, whilst the investigation may be closed, because of the extensive history concerning the children, DoCS may remain involved. I explained to [the father] that I would keep him up-to-date as much as possible.
[The father] said that he was fine with that. One of his pet hates was 'Pedophiles'. [The father] said that he wouldn't do anything like that to his children. [The father] talked about how his children are always safe with him, except one time when, guys broke into his home and came into his bedroom and gave him a 'hiding'. [The father] talked about [S] having a medical examination before and she had blood running down her legs, never wants to see her go through that again?
[The father] said that this was only happening because he was finally happy, that he has got himself a house and set the kids up and that she hates that.
[The father’s] father also said that the children's mother has caused nothing but trouble for the children and [the father], and that she has done this before
She was asked “Did Nan and Pop know that Daddy smacked you?”, and she replied, “No, he wasn’t driving, only Dad”.
Then, with considerable leading she was asked:
Q73So when you've got picked up from school and went back to nan and pop's place how did you get back there, did you walk or did you drive?
AWe walked to the car and then we drived.
Q74 OK. Where was the car parked when he picked you up?
A That's where can park it near the RSL parking place.
Q75OK. So he picked you up from school and he was cranky and you walked to the car and between leaving the school and walking the car he smacked you twice on your bottom and he was cranky and it hurt a bit, is that right?
A Yes.
There was then this following section of the interview after reminding S that she had met with them the previous day and had a discussion.
Q91 All right. And we’ll just go to that other bit we were going to ask about. (INDISTINCT CONVERSATION) You remember when you told us that something happened in the bedroom with dad, and you couldn’t remember?
A Oh, I remember now.
Q92 You remember now?
A Yep.
Q93 Can you tell us what happened?
A Dad touched me on my vagina, or (WHISPERING)
She identified where her vagina is and in answer to a series of questions marked the position of the vagina on a body outline sketch. When asked what the father touched her with, she said, “His finger”. When asked a long series of questions, she said she was wearing “pink princess pyjamas”, that it had happened at the R Street property, it did not happen at the paternal grandparents’ home, and that she had her own room and D was sharing a room with his father. She also said that her father took her pyjama pants and underpants off and touched her with one finger on the “inside” of her vagina. She said she was wearing pink fairy underpants.
S said that it happened “the other night” and since S had seen the Nurse at the hospital. But later she said that, “Dad touched me first and then we went (to the hospital).”
Later there was this segment of the interview:
Q215OK. All right. And when you said, Don't do that, daddy, did he stop or did he keep going?
A He stopped.
Q216 He stopped. And where did he go then?
A Back to his room.
Q217 Where was nan and pop?
A They was at their place.
Q218 OK. Where was [D]?
AIn my, dad's, they got, they've got, but it's a single bed, but they've just got two, it's a big room, so they've got two beds in, two single beds.
Q218 Yes, all right.
A Yeah.
A220 And where was he at?
A In my room, but it’s just got a single bed and a single bed.
Q221 OK. Was he awake or was he asleep?
A Asleep, he’s, he was only 3 then.
Q222 OK.
A But he’s 4 now.
The evidence is that at the paternal grandparents’ home D sleeps in the same room as the father, and S has a room of her own. But at R Street, D and S share a room. The answers that S gave might be consistent or inconsistent depending on the meaning attributed to the answer to question 218.
The paternal grandmother’s evidence is that she has never known S to wear underpants to bed in the home of the paternal grandparents, although she did at the mother’s.
She said that at the time her father was wearing his pyjamas. In answer to a further series of questions, she said that when he took her clothes off, he left them on the bed and after he left, she put them back on and went back to sleep. She later said that he clothes were taken off before she stood up on the bed, and then she stood up on the bed and said, “Daddy, don’t do that”, and he left. She said that she was, “laying down” when he touched her vagina.
The same day an Application was made by Det J for an Apprehended Violence Order restraining the father’s conduct for the protection of S and D. An interim orders was granted to that effect, and the Application was served on the father.
The children were taken into care by the Director General of DOCS and placed in the care of the mother. They have since remained in the mother’s care and she has refused to facilitate any contact by them with the father, apart from for purposes of interviews by Dr W.
After the interview on the night of 4 May S was at the home of the mother and the maternal grandmother. The maternal grandmother said that when the mother was told that S had made a disclosure that “her father had put his finger in her vagina, the mother was “devastated”.
The grandmother’s evidence is that event occurred that evening at the dinner table. The evidence:
18. [S] hasn't talked about was happened to her with me except for once on Friday 4 May 2007 at the dinner table when I commented that maybe [S] and [D] should have milk to drink. [S] replied by saying words to the following effect:
"I vomited at Dad's after I had milk. "
19. I then said words to the effect of:
"When you got back to Dads because you were sick in the tummy".
20. [S] then said words to the effect of:
"Yeah, you know when dad sticked his finger in me. "
I did not take the conversation any further.
Dr C, a paediatrician attached with the Sexual Assault Service of the Hunter New England Area Health Service, carried out a medical examination of S on 17 May 2007. Her observations and findings do not support or exclude digital penetration of S.
In her oral evidence, Dr C said that female children can acquire urinary tract infections from poor bodily hygiene such as by wiping the anus with a forward movement and then touching the genitals.
Her evidence was the genital herpes is not usually contracted by digital contact with the genitals, as the fingers are too dry to support the active virus, although she would not rule out the possibility of a small child with herpes of the mouth infecting her genitals by sucking her fingers and then immediately putting them into contact with the genitals.
Dr C was not told that S had had cold sores prior to the diagnosis of herpes (Herpes 1 or Herpes Simplex) and hence she was concerned as to whether S contacted it by genital/genital contact, or oral/genital contact. There is no evidence that S has ever suffered facial cold sores. The mother testified in oral evidence that she had observed what she believes to be cold sores on the father’s face before S’s birth. She had not told Dr C that. However, the mother had told Dr W in interview in 2007 that she had suffered facial cold sores in the past.
It is clear on the evidence that in these proceedings when S’s contraction of Herpes Simplex to the genitals became an issue in the courtroom, the mother did not disclose her own history of cold sores, because it suited her for the Court and others to be lead to entertain the possibility that S contracted herpes from her father. The mother withheld this information from Dr C, the JIRT team, the court and others. But the father at the hearing was able to obtain and produce medical evidence that established that he does not have and never has had Herpes Simplex, and the mother in answering questions from Dr W, had informed him that she had suffered cold sores.
On the balance of probabilities, it appears that S contracted Herpes Simplex virus from her mother. It may have been oral/oral contact such as kissing.
The mother telephoned her psychologist, Mr E on 6 June. She told him that the children were now in her care following the JIRT investigation into abuse allegations. She said that D’s behaviour was difficult and he says that he “hates” her. She said that she wanted an appointment to discuss the difficulties.
An appointment was made for the following day and she attended. She sought advice on how to manage D (then aged 4) when he is angry or makes negative comments about himself. She said he had not seen his father for 5 weeks following allegations of physical abuse and sexual abuse towards S. When asked, she said that D misses his father, but does not want to see him. She said at breakfast he told her, “Do I ever have to see Daddy again?” She said he does not mention his paternal grandparents, but does mention good memories of his father as well as some bad ones.
She related statements by D to her such as “You hate me”, “You’re cranky”, “I hate you”, “I’m a loser”, “I can’t do anything, can I?”. She said that D reacted fearfully when she gestured forward with her hands and he recoiled, went white, and looked terrified, then cried and would not let her come near him for comfort, threw things at her and said, “You hate me”, and it took 20 minutes of re-assurance to settle him. She said that D needs the mother to lie with him to go to sleep, then sleeps through. She said that sometimes she hears him saying, “No” in his sleep and he gets up seeming angry and then is angry on and off through the day. She said that D enjoys board games and playing in the yard, and might snip up papers with scissors a couple of times a day for up to an hour at a time.
She said that S seems comfortable and does not like D to mention their father, she tells him to shut up, and says “I hate Daddies”.
The parties both attended the G Local Court for hearing on 9 June 2007 about extending the Interim Apprehended Violence Order restraining the father in relation to the children. The Police that day confirmed that they would not proceed with any prosecution of the father in relation to any of the allegations raised by the mother.
On 14 June the mother telephoned Mr E and expressed her concerns that D continued to make negative comments towards her and asked whether she should bring him to the Centre for staff there to “glean their meaning”.
Dr W carried out interviews and observations for his second report on 3 July 2007. He interviewed the mother and the children together and observed their interactions. He reported from that session:
At one point [the mother] took [D] to the toilet, leaving [S] with me. I indicated to her that I was going to be talking with her father after I had seen her mother. She told me that her father used to keep her away from her mother. I asked her to tell me about her father and she said there were good and bad things, but she was unable to elaborate on either. I mentioned again that her father was going to be there later and she asked me whether she would be seeing him. I asked her what she would like to do about that and she said that she was a bit nervous. At that point her mother returned. However at the end of the observation session, I spoke to both children. [S] was a little reluctant to stay with me and wanted to stay with her mother but [the mother] reassured her appropriately.
I tried to enquire about what had happened to change from their father's home to their mother's home. Neither child seemed to understand why this had happened so I made some more general enquiries about the father's home. I was told that they had three pets there and they had all died, including two dogs.
I was told that they have seen their paternal grandparents recently at McDonalds but their father had not been there. I wondered why they had not seen their father for a few weeks. [S] said it was because he had smacked [D] hard and sent him to his room. I enquired whether anything had happened to her. She said he had not done anything to her. I pressed the issue a bit and she was insistent on this. I asked her whether he had used any rude words and she said he had not. I asked her if there had been any other rude things and again she said there had been nothing.
He reported regarding his observations of the father with the children:
Before I saw [the father] with the children he tearfully indicated that this was the first time he had seen the children since early May, and he reiterated several times his eagerness to see them.
When I indicated to the children that their father was in my office, [D] appeared very keen to come around to the office but [S] seemed more reserved, although she did not protest. When she entered the office, she immediately returned to some drawings, carefully avoiding eye contact with her father. In the meantime [D] was showing his father a car that he had built out of blocks. He told his father that he was eating a lot at his mother's place and unprompted he apologised for not eating all of the dinners that his father had provided for him. He then eagerly showed his father around the office, including picking up and showing his father each of the soft toys. [S] in the meantime continued drawing, from which she only occasionally lifted her head to add brief confirmatory comments about things that [D] was saying.
[D] wanted his father to leave the office so he could introduce his father to his mother. His father declined the offer so [D] briefly went out and sought his mother, then came straight back in. While he was out of the room, [S] stopped drawing but said nothing to her father. There was quite an uncomfortable silence from her, although her father asked her if there was any news. She shook her head.
For about half an hour, [D] interacted with his father in an animated and positive way. He accepted the offer of a banana, which he ate, and he either sat beside his father talking eagerly to him, or he sat on his father's knee. [S] on the other hand hovered about a metre or so from her father, usually with her head down in the drawing but occasionally she would approach a little closer and tell him a small snippet of information, for instance about school, or answering questions from him such as whether she had learned any new songs. After each approach, she would withdraw again. It was difficult to be certain how she was feeling. An air of uncertainty was most evident and there did not seem to be any obvious evidence of fearfulness or of heightened vigilance suggestive that she was anticipating an outburst of some type.
Towards the end of the period I saw them together, although she was still keeping her distance from her father, her responses to his enquiries tended to be a little more expansive. Her father suggested that she might read a simple book which she did quite well. He commented that her reading had improved significantly since he last saw her. At the end of the session, she was eager to show her father what she had drawn. She also showed no resistance to being photographed with [D].
When I asked [the father] what were [S’s] favourite activities, she replied that her favourites were skipping and make-up. Her father then added several other interests.
Towards the end of the session, [S] asked to go to the toilet. She went out and her mother took her. She returned promptly.
[D] was eager to get his father's attention but he did this in a positive and unremarkable way.
The mother told Dr W she always thought it odd that S seemed to develop thrush and urinary tract infections as often as she did.
On 3 September 2007 the mother telephoned Mr E again. She said she had a need to discuss “all that’s happened and possible coping strategies”. She said she had had a couple of sessions with a sexual assault counsellor (apparently about S; not herself), felt that she also needed to talk about her feelings regarding bi-polar disorder, feeling agitated, but not like previously when she felt like running away or suicide. She had spoken to … from the Mental Health Team regarding this in the past. It was suggested that she do so again. She specifically requested an appointment with Mr E to discuss general coping and was willing to phone the Hunter Valley Mental Health Team in the meantime if needed. An appointment was made for 10 September 2007.
At the time of the hearing it appeared that the mother had not seen Mr E since 10 September 2007.
Dr W’s report was released on 12 September 2007. He concluded the report with the following conclusions and recommendations:
a. The nature of the relationship of the children with each of the children's parents and other persons (including the grandparents).
I did not specifically examine the children with the paternal and maternal grandparents, but it appeared to me from the materials available to me and from what both parents said that both felt that the children had a good relationship with the grandparents in their home and they felt that the children got on well with the grandparent or grandparents in the other home as well.
On this occasion I observed a significantly more secure and settled relationship between both children and their mother. She was patient and appropriate with them. Indeed I thought that she was probably trying rather hard to impress me. Fortunately this did not really destabilise things with the children, who related to her in quite a calm, unhurried and confident way.
I observed much the same relationship between [D] and his father, although he had not seen him for some weeks, but [S] was noticeably avoidant of him. It was difficult to interpret this under the circumstances. She tended to hover within reach, but she rarely approached her father or related directly to him either verbally or behaviourally. This relaxed to some extent towards the end of the period I saw them together. On the other hand I did not observe fearful or hypervigilant behaviour. These observations could be consistent with the positions taken by both parents. Probably a useful independent account could be provided by [S’s] classroom teacher, who could comment on attendance, the father's participation in [S’s] school program and the relationship that she observed between [S] and her father.
b. The current psychiatric profiles of the parties.
[The mother] seemed emotionally much more settled than when I saw her 15 months ago. Her mental state was unremarkable on this occasion, however I have noted already that it seemed to me that some of her remarks, particularly those about having regarded the father as a good parent until a recent situation, and that until recently she had been quite open minded about alternative explanations to [S’s] genito-urinary inflammations, were quite disingenuous, particularly in the light of what she had said at my first assessment and to others prior to that time.
I note that [the mother] is still being treated as if she has Bipolar Disorder, but I remain of the view that the most probable psychiatric diagnosis is of Personality Disorder, probably of a Borderline type. In addition of course she has a Substance Abuse Disorder which has probably been in remission for the past 18 months. The records seem to indicate that her last admitted drug use was about April 2006 and there does not seem to be any objective evidence that she has used since then. It also appears that she has continued to comply with her psychiatric treatment, although the notes available to me did not seem to indicate that she sees either of the counsellors that she has seen periodically over the past two years on anything but a crisis basis.
I formed the view that particularly if she continues to reside with her mother, there will be further personal crises, and bearing in mind that I am still of the view that her most probable primary diagnosis is Borderline Personality Disorder, it is my view that she needs to take a more responsible and serious approach to maintaining her emotional wellbeing and therefore to her capacity to parent the children in a fair, firm, consistent and loving way. In my view she would benefit from a period of at least 12 months of counselling on at least a fortnightly basis. This may be available to her through the services that she is accessing at the moment, or it may be that she will be able to be seen by a private psychologist under the new terms of Medicare covering psychological services. It is not my view that counselling by a social worker will be sufficiently specific for her.
[The father] is somewhat more difficult to appraise. He was quite agitated and distressed when I saw him. Although this was consistent with distress over yet another allegation of sexual abuse and the removal of the children from him, his state could also be consistent with continuing substance abuse still being a problem. I note his explanation for the conviction last year for possession of marijuana. On the face of it his explanation seems rather disingenuous as well I also felt that his parents' confidence that he has not used any drugs for at least the past two and a half years could well be misplaced.
The documents that I have seen indicate that while the children have been with him, [the father] has been involved in at least two quite significant fights, he apparently has been dismissed from his job for some misbehaviour, he has been found in possession of marijuana (which he admitted to the police was his but denied that to me), as well as having a low range PCA conviction, and the police appear to have suspected him in several other matters. In my view this raises several questions. Firstly, drug use and drug associates may well still be a problem and secondly, it is not in the children's interests to be exposed to life events such as these involving their father. It is most unsatisfactory that basically [the father] either dissembles, rationalises or minimises these incidents. Indeed it is consistent with low grade antisocial behaviour and a continuing problem with substance abuse.
c.Whether the children are at risk from physical or psychological harm from exposure to or subjection to abuse, neglect or family violence.
The assessment of the allegation that [S] has been molested by her father is complicated by the unreliability of both of the parents, particularly the father, and indeed the grandparents as well, who seem to keep their own counsel about ongoing problems with their respective children, including drug use. In my view every effort should be made to obtain independent accounts and supporting documentation in relation to the circumstances surrounding the allegation, such as whether it is true that the father had not stayed overnight at his new home, despite [S’s] claim to the contrary, at the time the assault was alleged to have occurred, and whether it was the case that the mother had a major falling out with her mother in July 2006 leading to her having to find alternate accommodation at a motel from which she fled without paying the bill.
It appeared to me that the grandparents on both sides put loyalty to their children over objectivity. [The paternal grandparents] were I thought rather credulous about their son's conviction last year for a drug related offence and [the maternal grandmother] also seemed to at least publicly to be quite credulous about her daughter's drug use, but of more concern was that I was not left convinced that she would act promptly to protect the children if she thought that her daughter was using drugs again.
All parties spoken with agree that [S] has had periodic redness and inflammation in the genital area for quite some time, and particularly in the months leading up to recent events. At times urinary tract infections have been diagnosed, and this may also have been true on April 29th 2007. It seems possible that [the mother] has been questioning [S] for some time about whether someone has dealt with her inappropriately, and she has brought her to the local general practitioner on several occasions, apparently for the same reason. I have not seen these records, which might provide some account of exactly what she was thinking at the time. I note that when [the mother] thought that the father may have molested [S] several years ago, she became quite insistent about investigations.
In relation to the JIRT interviews themselves, there were several apparent contradictions between the first and the second interview. Although there is not a clear disclosure in the first interview, the location is placed at the grandparents' home, the time is placed two weeks earlier, and she had her Care Bear pyjamas on. On the second occasion, the timing seems to have been just a few days before, the location was the [R Street] house and she was wearing her princess pyjamas. In addition, on the second occasion, there was a not a great deal of elaboration in the allegation itself. Basically [S] alleges that her father pulled her pants down and digitally penetrated her with one finger. Her description of this was essentially "he put his finger in my vagina", which is a fairly unadorned account, and the use of the term vagina is unusual but not unknown in a child of this age, an idiosyncratic household name being more usual.
The background to this matter is that for some time prior to my initial report, the mother had concerns that [S] was being molested by her father and indeed both parents had done things which led to [S] undergoing medical and genital examinations. She has a documented history of urinary tract infection and local irritation which seems to have prompted these concerns, particularly by [the mother]. Indeed Dr [C] was called in at one point prior to my initial report and prepared a report dated March 30th 2004 which was reassuring on these matters. Indeed it seemed to me that by the time I prepared my initial report, neither parent was raising this concern any more and they were more concerned about the other party's drug use and mental health.
Although I am aware that JIRT regard [S’s] statements to them as a disclosure, this conclusion sits significantly less easily with me. The materials from my first assessment seemed to indicate fairly similar incidents in the past with the mother taking [S] for examinations and interviews, and in my view the interview content is less than satisfactory. I have pointed out a number of inconsistencies and also the possible presence of a urinary tract infection, although I have not seen the full medical documentation of the latter.
The material available to me does leave me concerned about [the father’s] parenting. I am not satisfied that he has carried the majority of the responsibility of caring for the children since they have been placed in his care. For much of that time they have lived with his parents and I am not convinced that when he was residing elsewhere, that his parents did not still carry a significant amount of responsibility for looking after the children. In addition, as I have indicated elsewhere, his behaviour in the community raises the very serious questions as to whether he is still using drugs, whether he is still has inappropriate associates, and whether drinking is a problem as well. Moreover, even if the current sexual assault allegations are not true, he clearly behaved inappropriately by collecting [S] from school after the interview, and censuring her if not smacking her. Finally, I felt that he presented rather poorly when I saw him and I was also quite concerned about what I perceive to be a significant lack of objectivity about his behaviour by his parents.
That is, in relation to [the father], I am undecided as to whether there is an unacceptable risk of sexual abuse, however I am concerned that at least in his sole care, the children would be at risk of emotional abuse, neglect and exposure to violence.
I also have quite considerable concerns about [the mother’s] care of the children. If it is the case that there is not an unacceptable risk of sexual abuse, then it would have to be said that once again [the mother] has exposed [S] yet again to unnecessary interrogation and examinations. If this is the case, it also follows that the interventions by the authorities would have been preceded by inappropriate interrogations on [the mother’s] part. This is a form of emotional abuse.
As I have indicated in my earlier report, the type of personality disorder which I believe is the most likely psychiatric diagnosis in [the mother’s] case is one which is associated with a well documented level of risk, mainly of emotional abuse and neglect, although exposure to violence can also occur. Moreover, the circumstances which have led to her numerous hospital presentations over the years also reflect extreme behaviour to which children should not be exposed. At this point, the question is the extent to which these risks are contained.
There seems to be a reasonably comprehensive body of material related to [the mother’s] conduct over the past two years. There seems no doubt that she continued to abuse drugs in a binge-like pattern at least until April 2006, and this was also associated with several hospital presentations including one for a very serious overdose. Since then however, she has presented sporadically, although now appropriately, to mental health services and to drug and alcohol services for counselling and support, and her contacts have been confined to particular individuals, which is also a positive sign. Their notes as well as the lack of any further hospital presentations suggest that there has been stabilisation between about April 2006 and the dates of the subpoenas (approximately July 2007). As I have indicated elsewhere, if this stability continues then that should minimise many of the risks associated with Borderline Personality Disorder parenting, but not eliminate them, and for that reason I have outlined some treatment recommendations as well.
Another positive factor in [the mother’s] favour is that the account that she gave me corresponded quite closely with the records, although unfortunately the maternal grandmother in my view was significantly less candid in a way which did her daughter's case no good at all.
d.If the children are at risk of such harm, how to protect the children from that risk.
Neither parent option is particularly satisfactory for these children. There is evidence that [the father] has continued to misbehave and whatever his parents have felt about this, they basically covered this up during my assessment. This unfortunately does not give one confidence that they could be relied upon to protect the children if necessary.
[The mother] seemed to be reasonably psychologically stable now and I felt that she had given a reasonably accurate history although again unfortunately, her mother showed the same proclivity to covering up as did [the father’s] parents, to the point that I indicated to Ms [N] that I had little confidence that she would act to protect the children.
It seems to me that there are three broad options available to the Court. The first is that the orders of July 2005 could be restored. The second is that similar orders could be made but in the reverse, such that the children live with their mother, and the third is that the Department could progress its intervention and take the children into care.
In general, it is best for children to live with one of their parents or in a kinship placement, and I believe this should be considered in this case. I formed the view that at this point, there seems to be more favouring [the mother] as the residential parent in terms of stability and candour, however I am concerned that her mother cannot be relied upon to protect the children's interests if her own daughter's interests are also at risk, and I would emphasise that the type of personality and drug problems which [the mother] has experienced are subject to relapse. It is not my view that this risk of relapse will be substantially abated until she has had a lengthier period of stability and she has also undertaken some counselling to assist with this.
In contrast to [the father] however, she has already sought appropriate assistance, although mostly in circumstances of crisis, and this is encouraging in terms of whether she is likely to accept and benefit from the type of supervision and parenting support which the Department of Community Services is able to offer. However because of the risk of relapse, it is my view that a mechanism should be put in place which enables the Department to act promptly if they believe that either of the children are at risk in her care. Indeed this may be a circumstance under which some type of supervisory order from the Children's Court may be of assistance.
Under these circumstances, there are two concerns about the children spending time with their father. The first is the risk of harms associated with a disruptive lifestyle which does not appear to be clearly over for him. The second is the risk that he might molest [S]. My overview of the volume of material available in this matter is that the risk of the former is better substantiated than the risk of the latter.
The lack of disclosure by both [the father] and his parents is of great concern in making orders about spending time with the [paternal] family. Probably the most satisfactory outcome would be if [the paternal grandparents] could satisfy the Court that they hold their grandchildren's interests higher than they do their son's. It is difficult to see how they could do this, although perhaps a greater degree of candour about the events of the past two years would go a long way to assist. In any event under those circumstances, perhaps the most prudent orders might be for the children to spend time with the grandparents during which they could spend time with their father on a supervised basis. Depending on the level of risk perceived by the Court, this might be quite restricted, perhaps to only days or part days once a week (because of [D’s] age), or it could be as extensive as alternate weekends, an afternoon after school on the other week and half school holidays.
e. Any other matter.
In my view the records should be obtained from Dr [I], Dr [Y], and Dr [SA].
The first day of the hearing occurred on 18 January 2008.
The hearing resumed on 4 August and continued on 4, 5 and 6 August. It was not completed and was then adjourned to 15 August. It then continued, but still did not complete and was finalised on 22 August 2008.
In cross-examination on 6 August the mother was asked why she believes this allegation that the father has sexually assaulted S. She said:
· “Her age”;
· “The child protection courses she had at her school”; and
· “She’s a lot more aware”.
She said, “I believe my daughter”. But when she was asked to indicate when S, who is in kindergarten, has attended child protection courses, she was extremely evasive and could not answer the question. She repeatedly volunteered unresponsive material. It appeared that S had not attended any child protection courses and the mother knew that.
In answer to questions from me, the mother was not able to articulate any reason why she inferred that if the father had touched S on the vagina, he had done it with a sexual intention. She was reminded that it was not her evidence that on the 29 April when S made the alleged “disclosure” S said that whatever he did he had done “lots”, and she then said, “She may have told me that”. Further questions were put to her, the mother was extremely evasive and it appeared that she was wholly incapable of contemplating the possibility that the father did not sexually abuse S. When she was asked whether she was not open to the possibility that he had not abused S, she avoided the question three times and then the only response she gave was, “I see no reason to disbelieve my child”.
On 6 August at about 2pm the Court noted on request of Counsel that the mother had been shown her Police statement and had adopted the contents. That was done. However, the Police statement was not tendered in evidence. There was a group of documents in relation to the subpoena to the JIRT Team that was tendered as Exhibit F5. However, that bundle did not include the statement of the mother.
The paternal grandmother’s evidence in her affidavit of 27 March 2008 was that while S lived in her home, she noticed that S was allergic to soap if used in her vaginal area. The paternal grandmother did not use soap in that area, but after S spent time with her mother during contact visits, S would often return with a rash or develop a rash after her return.
THE FATHER’S RESPONSES
The father presented as a credible and fairly direct witness. He was much less forceful than the mother and compared with her, rarely evasive. He denied sexually or physically assaulting either of the children. In his affidavit of 15 April he swore:
46. It is my intention to apply for a dismissal of the Interim Apprehended which has been extended until the 5th June 2008. The terms of the apprehended violence order has now been extended to prevent me from going within 200m of the school that the children attend and from driving along [… Street] at [G].
The terms of the Interim Apprehended Violence Order prohibiting him from going within 200 metres of the children’s school. His general practitioner is located within that area and each time he has to visit his general practitioner he obtains permission from the Police.
The father’s evidence is that in the period his licence was suspended for four months from March 2007, he did not drive any motor vehicle. On 3 May he walked to the school to collect S, walked home with her and then was driven back to the school by his father. That evening, his mother drove him to the shopping centre car park to collect the children at 6.55pm, and he waited till 7.20pm, but the mother did not attend. He telephoned her and she told him she was not going to return the children.
The father was cross-examined for more than four and a half hours. He denied that his “explanation” was that he was applying cream to S’s genital area. He said that over the years she has had problems and has applied cream. But he said after February 2005 he did not apply cream to her vaginal area. He said that he had S do it herself or have someone else do it for her. He said that since before 2005 he has not knowingly touched her on the vagina.
He said also that after the sexual abuse allegations of 2005, he completely stopped giving S her baths. She still had baths, but he preferred to let her wash herself. He said he had not treated her for urinary tract infections, nor had she had anything else that required genital examination. He said he did not apply the creams for any urinary tract infection, he had S do it herself. He said he tried to avoid anything arising that would found an allegation against him.
Dr W reported on his interview of the father on 3 July 2007:
He said that after the sexual abuse allegations of three years ago, he had completely stopped giving her baths. He indicated the only thing that he did was that he would sometimes wipe her bottom if she made a mess. I asked specifically about these matters in the eight months when he was living in a private rental at the end of 2005. He said it was at this time that he often had to wipe her bottom. He said the last time he had to do that was about 18 months ago.
There is also evidence from the paternal grandmother that when S has needed cream applied to her genitals, S does this herself.
He said that for him “smacking” involved “a little tap on the butt”. He said that other methods of discipline had proved more adequate. He said that the last time he had smacked S had been 8 or 9 months before he was interviewed by Dr W in July 2007. He illustrated some other methods that he used for discipline instead of corporal methods.
He said that S is “a wonderful child and very well behaved”.
He said he had been seeking other premises in April 2007 to move out of his parents’ home. He said he wanted “just independence” and he found the premises which he leased for a minimum of 8 weeks. The lease commenced on 25 April. They did not move in that day, but he moved the first trailer load of belongings that day.
He said he had no memory of any incident similar to what S had described in the first interview involving her saying words to the effect, “Don’t do that”. He was asked whether he thinks she was lying, and he replied, “I don’t know what she’s talking about”. He said there have been many occasions when he has gone into her bedroom at night when she is asleep, such as when she has nightmares or has called out for a drink. He said there were occasions over the years where she has woken up. When she was younger he said she used to wake screaming and crying. He said there could have been an occasion in the two weeks prior to 29 April when he went into her room at night. He said that “every night he went to check on them and make sure their blankets were up”.
He said S had “care bear” pyjamas in April 2007.
He said he is not saying that he believes that what S said at the interview on Thursday was from things that the mother had said to her. He said, “I don’t know what [S] meant”. He said they spent only two nights at the rented house at R Street – 30 April and then 1 May.
He denied that the reason he went to the school was “anger at [S]”. He said, “pretty much the opposite”. He said that he read that she had alleged that he had touched her on the vagina and there was no occasion since 2005 when it could have occurred, so far as he could recall. He said the allegation that he touched “inside of her vagina” is also a lie.
When asked, he said he could not recall having made an allegation that S was interfered with in her mother’s care. It was eventually put to him that in February 2004 his solicitors filed a Notice of Child Abuse on his instructions. He answered, “They may have. I can’t recall.” When some detail was given to him, he still was uncertain as to whether he made the allegation. He denied that he retracted them in an affidavit of 10 July 2005, but he did concede that he does not believe that S was sexually abused in the care of her mother.
When asked, he agreed with Dr W’s assessment of him in 2005 that he “dissembles, rationalises or minimises incidents”. He said, “Yes, to a point”. He was asked whether he thinks that S is lying if she said that he put his finger in her vagina and he replied, “Of course she is, yes”.
He said that when the JIRT Team came to see him and told him they had interviewed S, he was shocked. He said he thought, “Here we go again”. He said he does not recall them advising him on how to treat S, after the interview. “There was a lot going through my mind.”
When he was asked whether he thought S knew the difference between the truth and a lie at the time she gave the second interview, he replied, “Yes, I would hope so”. He denied collecting S on 3 May “to discipline her for making the allegation”. He said, “That would be silly and it’s wrong”. He denied smacking her and said that when she raised that allegation, S was not telling the truth.
He said he had not had difficulties with S in the past not telling the truth in respect of major issues, but he did “mainly with her brother – and other things around the house”.
The father said that if S did not go to school on the Tuesday, she went with him and his father so that he could go to Maitland Hospital to obtain a referral for his wisdom teeth operation.
DR W’S OTHER EVIDENCE
Dr W was cross-examined on 22 August 2008. He had viewed the video recordings of the two interviews of S. He said he would not describe it as a “completely clear disclosure”. He said her demeanour was quite casual and “didn’t help a great deal”. He said that she seemed more spontaneous when talking about the smacking and also when she talked about going to the car park to pick up the car. If said if the father did not have the car there “then it points out the problem”. He said she also appeared to respond to a whole array of questions, including many relating to “disclosure” that seemed reasonably spontaneous and genuine.
He said that in the second interview she was sitting quite happy and “light hearted drawing and colouring in”. He said it might be interpreted that she was saying what she thinks people want to hear, or just comfortable about what she was saying. Yet, he said she was quite guarded about some direct questions regarding sexual assault, which could also seen as “consistent with covering up”. He said that the demeanour does not really answer questions of genuineness, but the demeanour in the first interview seemed to be more consistent with a cover up than the second interview. He said the Police Officer asked false choice questions which were not helpful and generally the quality of the interviews was only “fair”. He instanced questions such as “Did A happen or did B happen?”.
Dr W was concerned that S has been “talking about this and asked questions for years. I wouldn’t be surprised if each time she has a urinary tract infection, she’s also asked if she’s been touched. That had happened at the time of the first report.”
He said that he did not think that the fact that she had a secure relationship with her father would mean that she would provide a response that was not in accordance with the attachment. He said the first interview has suggesting that she was behaving in a way that she was concerned that if she told the truth the father might punish her.
In answer to questions from Counsel for DOCS Dr W said that in the first interview there was a level of shyness on the part of S in that she appeared to be tense. He said there would be an “unfamiliarity” factor.
Dr W was of the opinion that her presentation when she talked about her father smacking her did not sound like “a made up story”. He said it was spontaneous and there appeared to be no hesitation.
Dr W was of the opinion that two weeks was not likely to be something that a child of S’s age would understand. She could, however, say that something had only just happened, or it happened some time ago. He said, however, that place is more critical and he would have thought that she would know the room and the house. He said that appeared to be a problem because of the discrepancy between the two interviews in that regard.
Dr W’s opinion was that S was more comfortable with the second interview, probably because she had met the people the day before. He said, “It did not seem to have it playing on her mind that she was in trouble”. However, he also said that the context of the interview could be influential in which she said when interviewed in the home of the mother and the maternal grandmother. He said such an environment was likely to generally favour whatever S thought her mother wanted.
Dr W also said that when S was taken to Nurse B by the mother on 29 April, the child would be likely to say what her mother had said to her and could have reiterated the end point of discussions they had had beforehand. He said that it was of concern to him that the mother did not mention to the Nurse at the hospital the alleged discharge.
Dr W said that when S corrected her mother at the interview with Nurse B and said it happened “only once’, one would normally see that as an ingenuous correction based on experience i.e. more likely true than not.
He said that the discrepancies between the mother’s evidence and the evidence of Ms B do not necessarily mean that the mother is not “telling the truth”.
He said he would have concern if the situation was that S did not sleep at the R Street property before the conversation with Nurse B. The evidence establishes that she did not.
He said that the way the mother interrupted S at the interview with Nurse B was consistent with her presentation at interview with him, and “consistent with her belief that it happened”. He said there was a clear risk that if there has not been any sexual abuse of S by the father and she lives with the mother, S will believe there has been.
Dr W reiterated that he does not believe the mother has Bi-polar Disorder, but believes she has a Border-Line Personalty Disorder.
Dr W said he had not been aware that the mother had not undertaken sexual assault counselling in respect of the rape. His evidence was that if the mother was raped in 2004 and no sexual assault counselling, then she could have a much broader suspicion of men. But he said it may have been a consensual thing and she may have rationalised it in terms of her lack of trust of men.
Dr W was concerned about the likelihood that the mother has repeatedly questioned S as to whether she has been touched on the genitals by her father or by anyone. He said that if questions like, “Has anybody touched you there?”, or “Has Daddy touched you?”, asked of young children may give the children “the answer they think the person wants” and later the child may come to believe that such event has occurred. He said the worst outcome is the child can believe a false proposition and then have no relationship with the father. But he said there is a spectrum of possible outcomes in between. He said sometimes the child can be aware of not telling the truth, but mostly “they are not testing it against reality”.
CONCLUSIONS
The father presented as a generally credible witness.
It is important to note that even if he did smack S on 3 May, and falsely denied it, that is not inconsistent with the sexual abuse allegation being untrue.
It is easy to contemplate an innocent person being extremely angry that his child has been interviewed by the Police without his knowledge or consent and used to obtain evidence to support a false allegation that he has sexually assaulted her.
The mother’s credibility was very poor. In cross-examination she was assertive, dogmatic and controlling. She was extensively evasive and also volunteered unresponsive material. She argued at times and at times was aggressive. She presented as vengeful. She conceded the possibility that she said to Counsel for the paternal grandmother and others in an adjournment, “All of youse are sick”.
She had a history of preoccupation with possible sexual abuse of S by the father and without reasonable ground. With the present allegation she cannot accommodate the possibility that the father has not sexually abused S. But she was unable to articulate any intelligible reason why she believed on 29 April 2007 that if the father had touched S on the vagina, it was not done innocently, but with a sexual intention.
In furtherance of her preoccupation the mother has subjected S to repeated medical examinations over the years and repeated conversations about whether she has been touched on the genitals by anyone. On the balance of probabilities has asked her particularly on numerous occasions whether he father has touched her there and S, as the father alleges, was well aware of the repeated examinations of her genitals and wanted them to stop.
In the course of these allegations commencing with the alleged disclosure on 29 April, there have been numerous inconsistencies in the mother’s version and her conduct such as:
a)Whether S had a discharge on 27 May and soiled underpants;
b)Whether S said her father touched her on the genitals;
c)Whether S said he did it “lots”; and,
d)Inconsistencies between what she has alleged on various occasions S has said on particular occasions.
The mother has lied in relation to the allegation. She has enhanced her story at times. She has a history of mental health problems and Borderline Personality Disorder. She has a history of unsubstantiated allegations against the father of abusive or inadequate care of the children since the 2005 final orders.
She presented as much more worldly than the father, who was quite placid, and at times almost boyish.
There are inconsistencies between statements of S at the first interview and the allegation raised by the mother. For example, she denied anyone had touched her on the genital area.
There are inconsistencies between the two interviews such as the location, where D was when “the event: happened, what she was wearing, and when it happened. But S insisted in the second interview she was talking about only one incident.
If a touching happened as described in the second interview at R Street, then it did not happen until days after the alleged disclosure to the mother and interviews with Nurse B on 29 April 2007.
There is obviously a risk when a child has a second JIRT interview about alleged abuse that the child will perceive the answers she has already given are inadequate and the adults want different answers. S was particularly vulnerable in that situation as she has been exposed to her mother’s preoccupation with possible sexual abuse by her father for some years involving emotional abuse by way of:
e)Repeated inspection of her vagina by her mother and others (including her father); and
f)Repeated conversations with her mother about whether her father or anyone has touched her vagina.
There is no doubt that prior to 29 April 2007 S was well aware that her mother was very keen to establish that her father had touched S’s vagina.
On all the evidence it is clearly established that the allegations S made were not a result of any sexual assault by her father, but a result of long term emotional abuse (including by her father) in relation to sexual assault suspicions without any reasonable basis and the mother’s unfounded preoccupation of possible sexual assault of S by her father.
The evidence establishes on the balance of probabilities that S was not sexually abused by her father.
The evidence does not establish any unacceptable risk of sexual assault of either child by the father if time is spent with him unsupervised.
____________________
The Hon Justice Mullane
30 September 2008
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Appeal
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