GIORDANO & SICA
[2012] FamCA 64
•24 February 2012
FAMILY COURT OF AUSTRALIA
| GIORDANO & SICA | [2012] FamCA 64 |
| FAMILY LAW - CHILD ABUSE - Sexual abuse - risk – where the father alleged to have sexually abused the mother’s sister, niece, and daughter - where the father seeks equal shared time with the child - where the father has not been accused of sexually abusing the child he is seeking equal shared time with - where the father was convicted of having sexual intercourse with a person with an intellectual disability, with the intention to exploit her - found that there is a risk that the father will sexually abuse the child if she is in his care FAMILY LAW - CHILDREN - Parental responsibility - where presumption in favour of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of another child who is a member of the parent's family - where father alleged to have sexually abused the mother’s sister, niece, and daughter - found reasonable grounds to believe that the father sexually abused the mother’s sister, niece, and daughter when they were children FAMILY LAW - CHILDREN - With whom a child spends time - Sexual abuse - whether risk that the father will sexually abuse the child when in his care is unacceptable - where supervision available from paternal grandmother and father’s wife - found risk is acceptable when the child’s time with the father is limited to day time, supervised visits |
| Evidence Act 1995 (Cth) s 140(2) Family Law Act 1975 (Cth) ss 60CC, 61DA(2), and s 65DAA |
| APPLICANT: | Mr Giordano |
| RESPONDENT: | Ms Sica |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | WOC | 493 | of | 2009 |
| DATE DELIVERED: | 24 February 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 14, 15, 16, & 17 February 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Jackson |
| SOLICITOR FOR THE APPLICANT: | Marsdens Law Group |
| SOLICITOR FOR THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Barry |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
IT IS ORDERED
That all previous parenting orders are discharged.
That the mother have sole parental responsibility for the children, D born … October, 1996 and K, born … August 2000.
That the child, K ("the child") born … August 2000 spend time with the father as follows:
a) Each alternate Sunday from 9.00 am to 5.00 pm.
b) Each Christmas Day from 2.00 pm to 8.00 pm.
c) On Fathers’ Day from 9.00 am to 5.00 pm.
d) On the Sunday that falls closest to K's birthday from 9.00 am to 5.00 pm.
e) If K's time with her father falls on Mothers’ Day, then K will spend that day with her mother instead of her father.
f) In the event K is unable to spend time with her father in accordance with Order 3 (a) herein, then K will spend the following Sunday with the father from 9.00 am to 5.00 pm as 'make-up' time.
That there be telephone calls at any reasonable time with the father when K is with the mother.
That for the purpose of K spending time with the father in accordance with Order 3 herein, the mother or a person nominated by the mother is to deliver K to the father's residence at the commencement of her time with the father and the father or a person nominated by the father is to return K from the father's residence at the conclusion of her time with the father.
That for the purpose of K spending time with her father in accordance with Order 3 herein, such time shall be supervised by Ms G or if she is not available, by Ms KK, until K attains the age of 15 years.
That upon K attaining the age of 15 years, K shall spend time with her father as agreed between the father, the mother and K.
That each party will ensure the other party is kept informed of:
a) Any medical problems or illnesses suffered by K whilst in their respective care.
b) Any medication that has been prescribed for K.
c) Any other matter relevant to the K's welfare.
That within 14 days of these Orders and within 14 days of K's subsequent enrolment at any school the mother do all acts and things and give all irrevocable authorities necessary to ensure that whichever school that K may attend from time to time, that school forward directly to the father copies of all of the child's school reports and merit cards, any written material pertaining to the child's academic and extra-curricular activities.
That the mother furnish to the father within 7 days of receipt of same copies of all order forms for school photographs of K.
That as soon as practicable after the publication of the Reasons and Orders, the mother shall arrange an appointment for K with Ms Z, Court Consultant and the Independent Children's Lawyer, for the purpose of explaining the nature and effect of these Orders.
That at Ms Z's discretion, Ms Z shall refer K to an appropriate Child and Family Therapist for K to attend upon for such therapy as recommended and to continue to attend sessions as recommended by the Therapist.
That the Independent Children's Lawyer provide to the nominated Therapist the following documents:
a) The Family Report dated 5th September, 2011.
b) Reasons for Judgment by the Honourable Justice Rees.
That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.
That from the date of expiration of the current Apprehended Violence Order against the father for the protection of D, the father is restrained from contacting, communicating with and approaching D and from requesting any other person to approach or communicate with D on his behalf.
That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
NOTATION:
It is intended that K spend time with her father on the Sunday when J and H are spending time with their mother, Ms KK.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Giordano & Sica has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: WOC 493 of 2009
| Mr Giordano |
Applicant
And
| Ms Sica |
Respondent
REASONS FOR JUDGMENT
Introduction
The proceedings before the court relate to K born in August 2000 and now aged 11 years. K is the child of Mr Giordano (“the father”) and Ms Sica (“the mother”). There are two other children of their marriage, B born in July 1993 and now aged 18 years, and D born in October 1996 and aged 15 years. However, both parties agree that B and D are to live with the mother.
The mother is in a de facto relationship with Mr Y (“the step-father”) and the father is married to Ms KK (“the step-mother”). The step-father and the step-mother were previously married to each other and there are two children of their relationship, J born in March 1998 and now aged 13, and H born in October 2000 and now aged 11. J and H live alternating weeks with the mother and the step-father, and the father and the step-mother.
Currently B, D, and K live with the mother. K spends time with the father fortnightly on Saturday and Sunday, supervised by the paternal grandmother.
The father seeks an order that K live with the mother and father on alternating weeks. The mother seeks an order that K live with her and spend fully supervised time with the father on special days. There is general agreement about machinery orders in accordance with a Minute of Orders tendered by the ICL at the commencement of submissions. In broad terms, the Independent Children’s Lawyer (“ICL”) proposes that K spend alternate Sundays with the father, supervised.
The father seeks an order for equal shared parental responsibility and the mother seeks an order that she have sole parental responsibility for all of the children.
There is no dispute between the parties that the older children will not spend time with the father.
The proceedings are to be determined pursuant to Part VII of the Family Law Act 1975 (Cth). In relation to the allegations of sexual abuse, I directed at the commencement of the trial that the rules of evidence would apply and the allegations would be determined on the basis of the higher standard pursuant to section 140(2) of the Evidence Act 1995 (Cth).
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The Issues
Is the child K at risk of sexual abuse from the father?
Can that risk, if it exists, be ameliorated by supervision and is the step-mother an appropriate supervisor?
Is there any benefit to K from spending time with her father?
Does the risk of abuse, however ameliorated, outweigh the benefit to the child of time with the father?
Should the parties have equal shared parental responsibility for K? Should the parties share parental responsibility for D (B being aged 18 years)?
Should the child K spend equal time with each parent?
RISK OF SEXUAL ABUSE
In December 2004, the father was sentenced in the District Court after having been convicted, following a trial before a jury, on a charge of having sexual intercourse with a person with an intellectual disability, with the intention to exploit her. In sentencing, the trial judge took into account the fact that the relationship between the father and the mother had become strained after the mother became aware of the events alleged, but that they were attempting, with the help of family and professional help, to resolve their problems. Ultimately, the father was sentenced to 400 hours of community service. A transcript of the sentencing remarks was annexed to the affidavit of the mother sworn 4 December 2011. The file produced by the District Court was admitted into evidence without objection as Exhibit 3 and was made available to the Family Consultant prior to her giving evidence.
Associate Professor HH prepared a report for the criminal proceedings. In her report, Professor HH says of the victim:
It should be noted that her communication skills are the lowest area of functioning and she is severely intellectually disabled in this domain…
She has appreciably below average general intellectual function and is functioning lower than 99.9 per cent of the population on a test of intelligence... In terms of her daily life activities, as assessed on the Vineland Adaptive Behaviour Scales, she is again functioning generally at a level lower than 99.8 per cent of the population.
Professor HH’s report does not support the father’s view that the relationship was consensual.
In his sentencing judgment, the trial judge notes the following in relation to the father and his claims that the relationship was consensual and that he did not know that the victim had an intellectual disability:
The facts giving rise to your conviction briefly stated are as follows. Prior to July 1 2001 you were working as a […]. While working there you met the complainant, who was employed as a […]. A friendship developed between you both. According to the evidence of [Associate Professor HH], it would be apparent to a lay observer after a very short time, and after speaking with the complainant, that she had not only had a speech impediment that renders her difficult to understand, but that she could only speak in very brief sentences of one phrase and often answered questions only with one word, so that it would become apparent to anyone speaking to her or associating with her that she had some sort of intellectual disability.
…
I am satisfied that as the first act of sexual intercourse took place shortly after you began associating with the complainant, it is clear that she had such a disability, in these circumstances the jury undoubtedly came to the conclusion that you were aware that she had the intellectual disability, and that when you first visited her you took advantage of her vulnerability and had the sexual activity that was described in the evidence, and which resulted after a short time in vaginal sexual Intercourse.
…
You show little or no remorse for your offending behaviour, apparently because you do not accept that the girl had an intellectual disability, or you did not realise that she had an intellectual disability. As I have indicated previously, I think you were hiding your head in the sand in maintaining that attitude. It is clear that you need some professional help and guidance to get some insight as to what you did in relation to the complainant. It has undoubtedly impacted upon her and only time will tell whether that is an adverse impact, or she will get over that impact and be able to lead as normal a life as her intellectual capacity allows her to do.The father in his affidavit sworn 3 September 2010 refers to a “relationship” and “an affair” with the victim. He again refers to “my affair” in his affidavit sworn 22 December 2011. At paragraph 141 of that affidavit he refers to “my mistake” and at paragraph 140 to 141 of that affidavit he expresses remorse.
The father attended 3 sessions of counselling with a Community Services Officer.
The parties and the children were interviewed by Ms Z, a Family Consultant who prepared a Family report for the assistance of the court. At Paragraph 19 of the Family Report, Ms Z states:
Despite having been convicted of sexual assault of a person with a developmental disability, [the father] maintains that he had no reason to believe that this person suffered any diminution in her day to day functioning at the time they met or at any time during their relationship. He denies having ever been aware of her disability and maintains that sexual relationship was a consensual relationship between two adults.
At paragraph 44 of the report Ms Z says:
In relation to his conviction for sexual assault of a person with a developmental disability, [the father] seems to be at a loss to understand why such charges were brought. He expressed neither concern for the victim, nor any sense that he had done something wrong or inappropriate.
The father was cross examined by Mr Barry, Counsel for the ICL. He maintained that he was not aware that the victim was a person with a disability and said “I didn’t find that she had an intellectual disability. I noticed her able to do functions and communicate as the rest of us were”. Although he said that, through counselling, he had had an opportunity to reflect on the “wrongdoings I actually did”, he went on to justify his actions in terms of an unhappy relationship with the mother at the time and being flattered by the victim’s attention. He said “I didn’t use [the victim]. She propositioned me.” and referred to them having “a relationship”.
The father expressed remorse, but those statements have to read against his evidence that he would tell B, if asked “that I did a very silly thing, with poor judgement”.
The act for which the father was convicted took place in 2001. He finished his community service in 2006. The parties and the 3 children remained together until 27 June 2007 when they separated, the children remaining with the mother.
During the time the parents lived together, the mother’s sister, Ms S, lived in the same household from time to time, commencing when she was about 11 years old. The periods totalled about 12 years.
As an adult, Ms S suffered from anxiety and panic attacks and her sister, the mother, supported and assisted her and attended medical appointments with her.
After the parties separated, probably the next day, Ms S told the mother that she was glad the parties had separated and, for the first time, raised with the mother her allegations that the father had sexually harassed her. The mother’s evidence is that she was stressed by the recent separation and did not ask any questions. The mother cannot recall her sister having said anything more at that time. Ms S says she told the mother most of the detail of the events when she was sexually harassed by the father.
Ms S also spoke to her sister Ms AB. She is the mother of Ms M who was also told by her mother, in 2009, that Ms S had been sexually harassed by the father but was given no detail.
A further conversation took place between the mother and Ms S in the car when they were returning from a medical appointment. In that conversation, the mother recalls that Ms S gave her more details of the father’s behaviour. Ms S recalls that they spoke but that more details were not given because she had already, in June 2007, given the mother the detail of the abuse.
After that conversation, the mother spoke to B and asked if his father had ever done anything to him. B said that nothing had happened to him.
On 30 April 2010, the mother asked Ms M for assistance to enable her to take Ms S to a medical appointment related to her panic attacks. The mother told Ms M that Ms S was considering reporting the sexual harassment by the father to the police. Ms M met with the mother later that day, and told the mother that she, too, had been the subject of sexual harassment from the father.
Ms M explained that she had not told her parents earlier because she was afraid of what her father, who was a close friend of the children’s father, might do to the father and she was afraid of the repercussions for the whole family.
The mother then had a conversation with B and D, saying to them “Remember that night when I asked you about your dad if he’d ever done anything inappropriately to you and you said no, well [Ms M] has told me that your father did something to her”.
The mother said to D “I’m sorry sweetie, I’m going to have to ask you if your daddy has ever done anything inappropriate to you.” D described an innocuous event, where her father had picked her up when she was misbehaving and dumped her on her bed, and then said “Ah yeah mum there is another thing but it’s embarrassing to tell you. I think I was about 5 and dad got me to touch his doodle and all this white stuff had come out and dad got me to get him some tissues and he said not to tell you. It felt like a dream but it felt real”.
D was not aware of the allegations in relation to Ms S when this conversation took place and she had no information about Ms M’s allegations except that the father was alleged to have “done something” to Ms M.
The mother contacted the police and was advised to contact the Department of Community Services. On 4 May 2010, the mother, Ms S and Ms M went with D to the police station. On 11 May 2010, D was interviewed by Joint Investigation Response Team (“JIRT”). The transcript of that interview is Exhibit 6 in the proceedings.
D told the interviewers that, before she started school, her father had pulled his pants down and asked her to hold his penis. When she did so, white stuff splattered out and he told her to get a tissue. He told her not to tell her mother. The incident took place when she was sitting in the lounge room watching television. Her father was on the “long chair” and she was sitting on a single chair and he called her over. He was lying on his side and when he called her over he lay on his back and pulled his pants down. She gave details of the placement of furniture in the room and the placement of the box of tissues. Over the years, she “put it behind me and made myself think it was a dream. Like, I, so I’m pretty sure”.
D was closely questioned about the innocuous event referred to in Paragraph 35 and gave a very detailed account of that event that occurred when she was 3 or 4 years old but was clear that nothing of a sexual nature occurred.
On 14 May 2010, B was interviewed by JIRT. Also on 14 May 2010, the mother made a statement to the police.
On 27 September 2010, an Apprehended Domestic Violence order was made for the protection of D for a period of 2 years, the defendant being the father. The father agreed without admissions.
On 18 May 2010, Ms S made a statement to police and that statement is Annexure 1 to her affidavit 22 November 2010. Ms S said that in about 1988 or 1989, when she was 11 years old, the father put his hands on her breast. She broke loose and ran away. Between the ages of 13 and 15 years, Ms S describes the father holding her hand and attempting to put his hand on her breast. When Ms S was aged between 17 and 20 years, she found the father in her bed after she had gone to the toilet at night. He was wearing football shorts and a singlet and had an erection. She also describes an incident when she was watching television. The father approached her wearing jeans and a tee-shirt with “his penis hanging out of the zipper of his jeans. I saw his penis was erect and he was waving it around in my direction and laughing”. Ms S remembers the father on one occasion watching her in the shower and she remembers “constantly waking up and seeing [the father] look through my window while I was in bed”.
Ms S received a note that she believed came from the father. It was written in capital letters and she knew that the father wrote that way. The note apologised to her but said “he did it because he loved me”. Exhibit 4 is an extract from the communication book used by the parents. The father identified his handwriting in a passage written in capital letters and said he always wrote in capitals.
When Ms S was aged between 21 and 23 years, she remembers the father watching her in the shower. After the first occasion, she had a panic attack and an ambulance was called.
In 2007, Ms S had a conversation with the father. She told him that her sister and the children were the only reason she had not reported his behaviour and that, if he ever left the mother, she would tell her everything.
In cross examination by Mr Barry, Counsel for the ICL, the father agreed with the physical descriptions of places and the narrative of events in Ms S’s statement. The only aspects of her statement with which he disagreed were the allegations of his inappropriate sexual behaviour.
His evidence was that he always treated Ms S as a sister although he denied being affectionate towards her. When asked whether he had feelings of a sexual nature towards Ms S, he denied that suggestion saying “No. I was married to [the mother]. I did not feel anything for her, she had no brothers or father. I was there to help, look out for her.”
On 19 May 2010, Ms M made a statement to the police and that statement is Annexure 1 to her affidavit sworn 24 November 2010. Ms M states that when she was 8 years of age and staying in the parties’ home, she was asleep on the sofa bed in the lounge room. She woke to find the father standing next to the bed. He was wearing football shorts and a singlet. He got into bed with her and put his left hand down her pants and with an open hand “placed his hand over my vagina.” Ms M said that she got out of bed and went into the room shared by her cousins and got into bed with B. She did not tell anyone at the time about the incident.
The father has filed affidavits in these proceedings sworn 10 September 2010 and 22 December 2011. In relation to D, his denial is found at Paragraph 210 of his Affidavit sworn 10 September 2010. In relation to the allegation of Ms S and Ms M, he is silent in that Affidavit. In his Affidavit sworn 22 December 2011, he denies the allegations of Ms S and Ms M.
The father’s explanation for the allegations is that the mother, Ms S, and Ms M entered into a deliberate conspiracy to coach D to make the allegations. He offers no explanation for the allegations made by Ms S and Ms M, other than that they were fabricated. His evidence is that the three women were motivated by a desire to ruin his relationship with his children. There are a number of reasons I do not accept his explanation.
The relationship between the father and D had deteriorated before the allegations were made by D. The father says that D withdrew from him from about June 2008 and did not spend any time with him from September to December 2008. From Christmas 2008 to March 2009 the father had no face to face communication with D. In excerpts from their communication book, annexure D to the father’s affidavit sworn 3 September 2010, the mother appears to be encouraging the father to be patient with D and writes in an entry dated 15 September 2008:
(D) I would suggest to leave this issue until things have settled between you and her. You both need to remain calm and hopefully you will regain her trust. I will be encouraging her to spend at least every second weekend with you when she feels ready. You can discuss this with her and she will let me know when she is ready. I will also try to find out what is upsetting her and encourage counselling if I feel necessary.
He saw her at Easter 2009 and not again until September 2009. She declined to see him on her birthday in October 2009 and between October and November 2009 she would not acknowledge him at Mass. At the time D made her allegations there was no suggestion that the father was seeking to forcibly re-instate the time with D who was then 13 ½ years old. The father appears to have accepted that D would see him when she chose and that there was little he could do. In fact, D stayed with the father in January 2010 for 4 days.
Throughout the whole time, however, K continued to spend time with the father in accordance with the agreement between the parties.
In February and March 2010, the parties signed a Parenting Plan which had been negotiated over some time (it contained provisions for Christmas 2009) and which provided for K to spend time with each parent on a week about basis.
Most compelling, however, is the fact that K does not know why her time with her father is supervised and that the father gives evidence that K’s attitude towards him has not changed.
It is highly improbable that the mother, having embarked on a course of action intended to ruin the relationship between K and the father, would not tell K what her father was alleged to have done.
Ms S was cross examined. Her distress when giving her evidence became uncontrollable when it was put to her that in not telling her sister of the allegations at an earlier time, she put her sister’s children at risk. She was not challenged on her evidence, at Paragraph 18 of her statement to the Police, to the effect that the father approached her with his penis “hanging out of his zipper” (that evidence is set out at Paragraph 38 of these reasons). Neither was she challenged on her evidence at Paragraph 22 of the statement made to the police, that she received a handwritten note of apology from the father. Nothing in her responses to the questions asked by Counsel for the father suggested to me that she had fabricated her allegations or had conspired with her sister to fabricate evidence.
Counsel for the ICL submitted that I should find that Ms S displayed considerable courage in coming to the court and giving her evidence, having regard to the fact that she suffers from anxiety and panic attacks. I accept that submission.
Ms M was cross examined. She first became aware of allegations that the father had acted inappropriately towards Ms S in a conversation with her mother in 2009. She did not, at the time, tell her mother what had happened to her because she was afraid of her father’s reaction and she was afraid of the consequences for the family. She “didn’t want to split the family apart anymore”. The trigger for her disclosure to the mother was a statement to her by the mother to the effect that Ms S was considering reporting the abuse to the police. After that conversation, she felt “this was the time to tell them”.
Ms M gave evidence that between 2009 and 30 April 2010 the allegation that Ms S had been the subject of abuse by the father was spoken of a few times by Ms S and Ms AB in her presence but that she, Ms M, did not know any of the detail of the allegations when she spoke to the mother on 30 April 2010.
Ms S and Ms M are aunt and niece. Ms M was aware in general terms that Ms S had been abused by the father but she was not aware of the specific allegations when she made her own disclosure. Their accounts bear little similarity, Ms M disclosing only one incident which occurred when she was 8 years old and Ms S disclosing a series of incidents commencing when she was 11 years old and not ending until she was an adult. The only consistent theme is that the incidents occurred in the home of the father and the mother when each of the women was staying in that house. There is no evidence that either Ms S or Ms M had spoken of the allegations to D before she disclosed to her mother on 30 April 2010.
Although it was put to the mother, Ms S, and Ms M that they had conspired to invent false allegations of abuse, it was not put to the mother, Ms S, or Ms M that any or all of them had coached D to tell a false story.
There were some inconsistencies in the evidence between the mother, Ms S, and Ms M. Those inconsistencies related to times and dates but not to the content of what was said. I would be more concerned that they had colluded if their evidence were identical in every respect and I do not find the inconsistencies, such as they are, to detract from the credibility of the evidence, accepting, as I do, the evidence of Ms S.
Counsel for the father submitted that I should not accept the evidence of the mother, Ms S, or Ms M because of the discrepancies in their recollections. He placed particular emphasis on the different versions of the mother and Ms S of their conversation on the day after separation. Ms S says she gave the mother the detail of her allegations. The mother says she only remembers being told that the father watched Ms S in the shower. The mother said, “I asked what kind of things he did, she explained a little but I don’t think I comprehended…due to the stress I was under. She said [the father] would always look at her through the window. I can’t remember exactly what else” This conversation took place on the day after the father had left when the mother, assisted by her sisters, was packing up their home. The mother said she was additionally distressed because she had stood by the father through his infidelity, the criminal proceedings and his community service, only to have him leave because, once again, he was having an affair, this time with the step-mother. In those circumstances I accept that she may not have remembered the whole of the conversation.
Asked whether she had said anything to her sister after the disclosure, the mother said “I can’t recall. I was a mess”.
I do not accept the submission that I should find, because the two women have different recollections of the conversation, that Ms S’s version cannot be believed. Given the mother’s description of the circumstances in which the conversation took place, I do not find it improbable that the mother’s recollection of the conversation is hazy.
Counsel for the father submitted that, if the mother was told of the detail of the abuse in June 2007, it was implausible that she would not take steps to protect the children.
Asked whether she had done anything after the conversation with her sister, the mother said she had contacted a solicitor to seek advice.
The mother also gave evidence that she did not think the father would do anything to his own children.
Counsel for the father also relied on the differing times ascribed by the mother, Ms S, and Ms M to the sequence of events on 30 April 2010. They agree on the events and their sequence but give different evidence as to timing. For example, Ms M says she left the mother’s home at 7.00 pm while Ms M says she left at about 9.30pm and the mother says she left at about 8.40pm. Their recollections are different as to the times. One or all of them may be mistaken. It was a highly emotionally charged evening, culminating with D’s disclosure that she, too, had been the subject of abuse. I do not find the discrepancies in the evidence as to the time events occurred to detract from the evidence of the deponents about what was said. I bear in mind that the statements were prepared with the assistance of police officers and not with the assistance of lawyers.
The family was interviewed for the preparation of a report by Ms Z, a Family Consultant in August 2011. The father is reported as “being at a loss to understand why D, and two members of the maternal family would have made allegations about him acting inappropriately. He vehemently denies all their allegations”.
D expressed to Ms Z her concern that “something might have already” occurred to K and that K, like herself previously, has not disclosed it.
At Paragraph 44 of the report, Ms Z says:
It seems unusual that [the father] has not, at any stage, expressed either anger or concern in relation to either [D] or [K], as a result of the allegations which have been made against him. Interestingly, he did not express any anger towards [Ms S] or any members of her family as a result of their allegations. In relation to his conviction for sexual assault of a person with a developmental disability, [the father] seems to be at a loss to understand why such charges were brought. He expressed neither concern for the victim, nor any sense that he had done something wrong or inappropriate. [The father’s] lack of response to the subsequent allegations made by [D] and other members of the maternal family, is both unusual and troubling. The Court might be assisted to have a better understanding of why [the father] feels no sense of responsibility for any of the alleged sexual assault or inappropriate contact by reviewing the material from his trial in the criminal jurisdiction.
I am satisfied that there is a risk that K will be sexually abused by her father if she is in his care. I have taken into account, in reaching that conclusion, the evidence of Ms S and Ms M; the fact that he has behaved in a sexually inappropriate way with young female members of his own family and with the intellectually disabled victim; his lack of real remorse and his lack of real understanding of the gravity of his actions or the effect on the young women against whom he offended.
SUPERVISION
The mother does not oppose K spending time with the father but asks that the time be supervised.
The step-mother offers herself as a supervisor. She is a child care worker and as such is a mandatory reporter. She has participated in a Child Protection training course entitled “Keeping Them Safe”. If she were not the father’s wife, there could be no suggestion that she was an inappropriate supervisor.
The mother is concerned that the step-mother will not be vigilant because she does not accept the allegations to be true.
The step-mother swore an affidavit on 3 September 2010. She deposes to having been told of the allegations (but not of the detail or the persons who made them) by the step-father on 1 May 2010. The conversation is set out in full at Paragraph 35. The step-mother did not ask the step-father who had made the allegations or what was alleged. She ended the conversation without that information, not knowing who was alleged to be the victim or victims. Indeed she did not ask and did not know if any of the children were involved.
She does not believe the allegations. Although she has read the sentencing remarks from the father’s criminal conviction for having sexual intercourse with a person with an intellectual disability, she does not question the father’s explanation that he was unaware that the victim had a disability.
The Family Consultant expresses concerns in the report about the step-mother as supervisor. At Paragraph 45 she says:
While the parents agreed that [the step-mother] would be an appropriate supervisor there must be concerns for her in this role as a result of her belief that [the father] has not done anything inappropriate in the past and would not be likely to do so in the future. However, as [the step-mother] has dual roles in this context: as supervisor of her step-daughter and as the mother of her own two children whose father has expressed and continues to express some concerns in relation to [the father’s] contact with [J] and [H], and for these reasons she might be more vigilant as a supervisor than might usually be expected.
At Paragraph 12, the Family Consultant records that there was an agreement that K spend time with her father, supervised by the step-mother, provided that the court is of the view that the arrangement is appropriate.
Ultimately, she recommends the step-mother or the paternal grandmother as the appropriate supervisors.
The paternal grandmother has been supervising K’s time with her father since the allegations were made and there is no suggestion that her supervision has not been vigilant. She was cross examined by Mr Barry, Counsel for the ICL, and I accept that, although she does not believe that the father behaved as D alleged, she takes the allegations and the need to protect K very seriously. I accept her evidence that she is with K for the whole time that K spends with the father and that she will, if required, continue to supervise in the same way.
I accept the assessment of Ms Z that despite the fact that the step-mother does not believe the allegations made by any of the complainants she will be a vigilant supervisor. It is clearly in her interests that there should be no opportunity for any complaint against the father as such a complaint would inevitably affect the time that J and H spend in her care.
In addition to the protection afforded by supervision, Ms Z says that K is likely, given her age, to wish to enforce her own boundaries in relation to inappropriate contact and thus should be able to provide herself with some level of self-protection. However, I am conscious that K is now 11 years of age, that being the age when Ms S says the father first touched her inappropriately. That Ms S was not able to self-protect does not mean that K also will fail - they are different people with different personalities - but I am less comforted by that observation than by the presence of vigilant supervision.
In her oral evidence, Ms Z described K as “very trusting” and expressed her concern that it would be difficult for K to disclose if something happened to her.
Ms Z, after reading the file produced by the District Court and in particular the report of Professor HH, expressed concerns about the father. She was struck by the father’s lack of understanding of the victim’s intellectual and social capacity and that the father saw “it as a relationship” and didn’t see that the victim was in any way intellectually disabled. She questioned “whether the father might have his own cognitive limitations, and some social limitations which meant he wasn’t able to pick up on these issues…his own level of maturity and social skills may be significantly lower than someone of his stated age and background.” Ms Z agreed that the limitations she described may lead such a person to behave in a sexually inappropriate way with young people.
Ms Z was also taken to a document entitled “Risk Management Consultation” prepared by a clinical psychologist from the Department of Corrective Services, Forensic Psychological Services. The psychologist notes:
[The father] acknowledged he had penile-vaginal intercourse with the victim “twice”, as indicated in the police charge and fact sheets. Further, he disclosed having had fellatio (8-10 times) and had given oral sex (3-4 times) to the victim. Given that he saw himself as being in a casual sexual relationship with the victim he did not see his behaviour as harmful and saw no need to feel empathy for the victim. He described that his wife was also under the impression that her husband had simply been unfaithful.
[The father] stated that prior to the offence he had never been unfaithful to his wife; however he had “let it happen because it was something different”. He suggested that he continued to go to the victim’s house because “she was affectionate towards (him)”, she gave him a lot of attention, and was someone he could “relax with… and not be hounded to do this and that”.
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Even though [the father] now accepts that the victim has a significant intellectual disability, he still does not appreciate how this has a bearing on her ability to consent to a sexual relationship, nor does he accept that his behaviour with her was abusive simply by virtue of the differences in the power relationship between them.
Ms Z was also asked to consider an assessment under the Brumby Molest Scale which had been conducted by the psychologist. Ms Z said she was not a psychologist and was not qualified to interpret the assessment. Although the document was admitted without objection, I am conscious that the evidence is untested and I do not propose to give it any weight.
Ms Z gave evidence that, having regard to the additional evidence now brought to her attention, if the court considered K to be at risk in her father’s care, then her recommendation as to the time K spent with the father would be that the time be reduced.
BENEFIT OF THE CHILD SPENDING TIME WITH THE FATHER
No one disputes that K wants to spend time with her father. At Paragraph 37 of the Family Report, K is reported as wanting to spend time with her father fortnightly from the end of school on Friday until the commencement of school on Monday. The mother told Ms Z that she supported K’s spending alternate weekends with the father from end of school Friday until the commencement of school Monday, provided that the time is supervised.
K is reported, when observed with her father, to have maintained close physical contact with him and their discussion indicated their mutual enjoyment of the activities they engage in together.
K is reported to be a child who is loved by, and has a secure relationship with each of her parents, step parents and her siblings and half siblings, particularly with H. While she sees her step-brothers in the mother’s home when they spend alternate weeks with their father, she would not have the opportunity to see her step-mother, if there was no time with the father. She would also lose the opportunity to spend time with her paternal grandmother as she now does. Both these relationships are significant to her.
The mother in her oral evidence emphasised the importance to K of her relationship with her half-brothers and her enjoyment of their company although she was reluctant to concede that the relationship with the father was equally important to K.
There is no dispute that K benefits from having a meaningful relationship with both of her parents. Her mother and her brother B and sister D all support that relationship, subject to their concerns for her safety.
That their expressions of support are genuine is confirmed by the fact that K, as reported by Ms Z, is not sure why her time with her father has changed or why her paternal grandmother has to be there all the time. The father, in response to questions from Mr Barry, gave evidence that he has not noticed any change in K’s attitude towards him or in her behaviour. That evidence gives me further confidence that the maternal family has supported K’s relationship with her father.
IS THE RISK UNACCEPTABLE?
Having determined that there is a risk to K in the care of her father, I must determine whether that risk is unacceptable. That involves the exercise of balancing the benefits to K of having an ongoing loving relationship with her father and the paternal family against the risk that she will be sexually abused by her father. The balance is fine but it is the comfortable certainty of vigilant supervision by Ms KK and the paternal grandmother which persuades me that the balance tips in favour of supervised time for K with her father.
Whether the time should include overnight time is a matter of concern to the mother. In cross examination, the mother based her concerns on the circumstances in which the allegations arose. On each of the occasions when D and Ms M allege the father abused them, the children were in the mother’s home at night and in her care. Most of the acts of which Ms S complains also occurred in the home where the mother was living and many occurred at night when the mother was in bed. The mother expressed her fear that the father would enter the bathroom to look at K and that he would go into her bed while she is sleeping and touch her. Those fears are realistic, having regard to the evidence of Ms S, Ms M, and D’s statements.
The step-mother, in cross examination, conceded that although she would be a vigilant supervisor, she “can’t 100% ensure” K’s safety at night when the household has gone to bed.
The mother gave evidence that she would let K go overnight to the father “if the court says she’s safe”. She also said that if anything then happened to K, she would not then have the guilty conscience. In cross examination by Counsel for the ICL, the mother said:
I said that statement … if the courts with their professional (sic) regarding child abuse, if they feel that [the father] isn’t a person at risk, I wouldn’t hesitate to allow [K] to be there, but I would feel that if I sent her off now and if anything did occur I’d feel guilty, I’d put her in this situation not knowing the background of people who are capable of child abuse.
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I’m here today to see if [K] is at risk.
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I have one concern, the overnight stays…as the arrangements are now she’s fully supervised by the paternal grandmother, she goes everywhere with [K], she constantly keeps an eye on, so if she has to go down to the shops, the person that’s supervising, she’s not to leave [K] alone with her father … [overnight] I don’t know how that can be done, that’s why I’ve left it to the courts to decide if [K] will be safe with overnight stays.
The mother’s concerns are valid and appropriate. I cannot be sure that K will be safe overnight in the father’s household and therefore the time K spends with her father will be limited to day time. If the time is limited to day time, supervised visits, then the risk is acceptable.
parental responsibility
There is a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility, found in section 61DA of the Family Law Act 1975. That presumption does not apply, by virtue of the provisions of section 61DA (2)(a), if there are reasonable grounds to believe that a parent of the child has engaged in abuse of another child who is a member of the parent’s family.
Both Ms M and Ms S come within the definition of “member of the parent’s family” by virtue of the definition in section 4 (1AC)(g).
Having regard to the findings set out above, I have reasonable grounds to believe that the father engaged in abuse of Ms M, Ms S, and D when each was a child.
Therefore the presumption that it is in the best interests of K for the parents to have equal shared parental responsibility does not apply.
Similarly the presumption does not apply in relation to D. D is aged 15 years. She has not spent any time with the father since her disclosure in April 2010. She told Ms Z that “She feels positive about having an AVO against her father as ‘I don’t feel confident or comfortable’ with him”.
Ms Z recommended in the Family Report that the parties have equal shared parental responsibility for K. In oral evidence she explained her reasoning but also said that if the Court finds that K is at risk of abuse, then there should be an order for sole parental responsibility to the mother. I propose to make that order.
The father’s application for equal shared time
The only evidence of K’s wishes comes from paragraph 37 of the Family Report. Her wish is to spend alternate weekends with her father and “she made no comment about this period of time extending in the future”.
Having regard to the findings I have made about risk, there is nothing in the remaining factors to be considered pursuant to section 60CC which persuades me that the orders sought by the father are in the best interests of K.
Because I have determined that the parents should not have equal shared responsibility for K, I am not required to consider, pursuant to section 65DAA whether K should spend equal shared time, or substantial and significant time, with both parents. For the reasons set out in relation to risk, I am not persuaded that equal time is appropriate and no arrangements for supervision could be made that would make either shared time or substantial time reasonably practicable.
The orders I will make do not fall within the definition of “substantial and significant time”, however, having regard to the findings of risk and the need for strict supervision, I am not persuaded that more time is in K’s best interests.
The Orders to be made
I therefore propose to make the orders in relation to parenting as set forth above.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 24 February 2012.
Associate:
Date: 24 February 2012
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