Glavas and Forsyth and Anor

[2017] FamCA 641

FAMILY COURT OF AUSTRALIA

GLAVAS & FORSYTH AND ANOR [2017] FamCA 641

FAMILY LAW – CHILDREN – Allegations of the father’s sexual abuse of one child and that he poses an unacceptable risk of harm to the children – Where the Independent Children’s Lawyer rejected the allegations and the maternal grandmother eventually resiled from the allegations – Where the father, maternal grandmother, and Independent Children’s Lawyer tendered written terms of settlement – Where the State child welfare authority asserted the allegations of sexual abuse were substantiated, refused to join in the settlement, and refused to withdraw from the proceedings – Where analysis of the evidence reveals flaws and peculiarities which debase the reliability of the allegations – Findings of the Court are not dictated by conclusions reached by the child welfare authority, though evidence adduced by it forms part of the body of evidence placed before the Court – Concluded the evidence did not satisfactorily demonstrate any risk of the father causing harm to the children by their sexual abuse – Orders made reflecting, but not replicating, the joint proposal of the father, maternal grandmother and Independent Children’s Lawyer

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 92A

Aldridge & Keaton (2009) FLC 93-421
Maldera v Orbel (2014) FLC 93-602
Valentine & Lacerra (2013) FLC 93-539

APPLICANT: Mr Glavas

1st RESPONDENT: Ms Forsyth

2nd RESPONDENT: Ms Jenson

INDEPENDENT CHILDREN’S LAWYER: Mr Haricharan, Hunter Family Law Centre Pty Ltd

INTERVENER: Secretary of the Department of Family and Community Services

FILE NUMBER: NCC 260 of 2016

DATE DELIVERED: 25 August 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 7, 8 & 9 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Graham

SOLICITOR FOR THE APPLICANT: Legal Aid NSW, Newcastle

COUNSEL FOR THE 1ST RESPONDENT: Not Applicable

SOLICITOR FOR THE 1ST RESPONDENT: Not Applicable

COUNSEL FOR THE 2ND RESPONDENT: Ms Kearney

SOLICITOR FOR THE 2ND RESPONDENT: Ryan & Seton Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Betts

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hunter Family Law Centre Pty Ltd

COUNSEL FOR THE INTERVENOR: Mr Moore

SOLICITOR FOR THE INTERVENOR: Crown Solicitors Office

Orders

1. All former orders relating to the following children are discharged:

   (a)B, born … 2012; and

   (b)C, born … 2014.

2. The applicant (“father”) shall have sole parental responsibility for the children.

3. The children shall live with the father.

4. The father shall maintain his common residence with the paternal grandparents for 12 months from the date of these orders.

5. The parties are restrained from causing or allowing the children to spend any time with the first respondent (“mother”).

6. The parties shall take all reasonable steps to ensure the children spend time with the second respondent (“maternal grandmother”) as follows:

   (a)During school terms, each alternate weekend from 3.00 pm Friday (or after the conclusion of school, whichever is the earlier) until 5.00 pm Sunday, commencing on the second Friday of each term.

(b)During the Autumn, Winter, and Spring school holidays, from 9.00 am on the middle Saturday of the holidays until 5.00 pm on the next Saturday of the holidays.

(c)During the Summer school holidays:

(i)From 2.00 pm on Christmas Day until 12.00 noon on 31 December;

(ii)From 2.00 pm on 7 January until 12.00 noon on 14 January; and

(iii)From 2.00 pm on 21 January until 12.00 noon on 25 January.

(d)On each of the children’s birthdays between 3.00 pm and 6.00 pm.

(e)At such other times as may be agreed between the father and maternal grandmother.

1. Orders 6(a), 6(b) and 6(c) hereof are suspended:

   (a)On each of the children’s birthdays between 3.00 pm and 6.00 pm; and

   (b)From 3.00 pm Friday until 5.00 pm Sunday on Father’s Day weekends.

2. For the purpose of implementing Orders 3, 6, and 7 hereof:

   (a)The maternal grandmother (or her nominee) shall collect the children:

   (i)From school, when the children’s visits with her commence at the conclusion of school; or otherwise

   (ii)The father’s residence at the commencement of their visits with her.

   (b)The father (or his nominee) shall collect the children from the maternal grandmother’s residence at the conclusion of their visits with her.

3. Unless otherwise agreed, the parties shall take all reasonable steps to ensure the children communicate privately by telephone with:

   (a)The maternal grandmother each Wednesday at 6.00 pm, when the children are living with the father, and for that purpose the maternal grandmother shall telephone the children on the telephone number provided to her by the father and the father shall ensure the children are able to receive the maternal grandmother’s calls on that number at that time.

   (b)The father each Wednesday at 6.00 pm, when the children are spending time with the maternal grandmother, and for that purpose the father shall telephone the children on the telephone number provided to him by the maternal grandmother and the maternal grandmother shall ensure the children are able to receive the father’s calls on that number at that time.

4. Each party is restrained from denigrating any other party in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other parties.

5. Each party is restrained from initiating any discussion with the children in relation to the topic of whether either child has or potentially been sexually abused and from causing or permitting any other person to do so.

6. The father and maternal grandmother shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other about the condition and treatment of the children.

7. Upon the children being eligible for enrolment at an infants/primary school, the father shall enrol the children at D School.

8. The father is restrained from relocating the children’s residence to a place outside the catchment zone of the D School until the child E no longer attends that school.

9. The father shall authorise and request the principal of any school attended by the children to provide to the maternal grandmother, at her expense, copies of all school reports and school photograph order forms relating to the children.

10. The father and maternal grandmother shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address and mobile telephone number.

11. In the event of any party notifying either the police or a prescribed child welfare authority that either child has been or is the subject of actual or potential abuse, the notifying party shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made:

    (a)A copy of these orders; and

    (b)A copy of these reasons for judgment

12. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

13. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

14. Costs are reserved for 28 days.

15. Any and all other outstanding applications are dismissed.

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

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

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 260 of 2016

Mr Glavas

Applicant

And

Ms Forsyth

First Respondent

And

Ms Jenson

Second Respondent

And

Secretary of the Department of Family and Community Services

Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of the two children of the applicant father and first respondent mother. The children’s maternal grandmother is the second respondent to the proceedings. The Secretary of the NSW Department of Family and Community Service (“the Department”) belatedly intervened in the proceedings on the first day of trial pursuant to s 92A of the Act.

2. The mother was not an active participant in the proceedings. She last filed a document in the proceedings in March 2016, last appeared at Court in March 2016, filed a Notice of Discontinuance in May 2016, and her solicitor ceased acting for her in June 2016. Her disinterest in the proceedings is voluntary. She has not been deprived of procedural fairness.

3. Frankly, it would be difficult to imagine any case changing complexion more profoundly during the course of a trial than this one.

4. The maternal grandmother started the case seeking orders for the children to live with her, for her to have sole parental responsibility for them, and for them to spend only limited supervised time with the father, because she believed he posed an unacceptable sexual danger to them. By the end of the trial, however, she agreed the father did not pose any risk of harm to the children, they should live with him instead, he should have sole parental responsibility for them, and they should spend substantial amounts of time with her. Written terms of settlement to that effect were executed and tendered as an exhibit in closing submissions by her, the father, and Independent Children’s Lawyer.[1]

   [1] Exhibit ICL2

5. As for the Department, upon its intervention at the commencement of the trial, it announced it adopted only a “watching brief” and, besides the tender of some exhibits, would not otherwise participate. Contrarily, not only did it tender some exhibits in evidence and assert the allegations of sexual abuse made against the father were “substantiated”, it refused to join in the settlement brokered between the other parties, refused to then withdraw as a party, and advocated for a completely different outcome by the exclusive allocation of parental responsibility for the children to the Minister and the permanent supervision of the children’s interaction with the father.[2]

   [2] Exhibit FACS4

6. These reasons explain why the joint proposal of the father, maternal grandmother, and Independent Children’s Lawyer is preferable.

Short history

1. The two subject children were born in 2012 and 2014 and were aged four and three years respectively at the time of trial.

2. The mother has an older child from a former relationship (“E”), who lived with the family during the parents’ cohabitation.

3. The parents began cohabitation in about February 2012 and finally separated in about November 2014. Following separation, the children lived with the mother and spent time with the father, though the time she allowed them to spend with him and the circumstances under which she permitted it to occur fluctuated at her whim. The father was dissatisfied with the mother’s unreliability and commenced these proceedings in the Federal Circuit Court in February 2016. He sought to acquire the children’s residence from the mother.

4. Since the parents’ separation, E has not spent any time with the father and he sought no orders in respect of E when he started these proceedings.

5. In March 2016, interim orders were made by the Federal Circuit Court, with the parents’ consent, providing for the children to spend time with the father for two hours each Sunday, supervised by the paternal grandmother.

6. By April 2016, the mother was experiencing so much difficulty coping with the care of E and the children that she abdicated the role of primary carer to the maternal grandmother, who has fulfilled that role ever since. The mother has not seen or spoken to the maternal grandmother or the children since May 2016.

7. In May 2016, further interim orders were made with the consent of the father, maternal grandmother, and Independent Children’s Lawyer. The mother was not present at court and was not legally represented. The orders provided for joinder of the maternal grandmother to the proceedings as a party, for the children to live with her, for her to have sole parental responsibility for them, and for the children to spend time with the father on two occasions each week, supervised by either paternal grandparent. It was noted the father and maternal grandmother intended the children would thereafter “transition to the father’s full time care”.[3] For that reason, the Federal Circuit Court commissioned the Family Consultant to prepare only a limited Family Report.[4]

   [3] Notation B made on 12 May 2016

   [4] Family Report, para 1

8. From August 2016, the eldest child began making remarks that led the maternal grandmother to believe she was being sexually abused by the father. She repeated remarks of that ilk to her psychologist and to members of the NSW Joint Investigation Response Team (“JIRT”) over time.

9. When the sexual abuse allegations were drawn to the attention of the Federal Circuit Court in October 2016, the proceedings were transferred to this Court for determination and the existing interim orders were varied slightly in respect of the supervised visits between the children and the father.

10. The trial proceeded in August 2017. After the evidence at trial was closed, the father, maternal grandmother, and Independent Children’s Lawyer reached an agreement to resolve their dispute. Their agreement was encapsulated in written terms, their respective execution of which represented abandonment of any contrary proposals contained within the Amended Application filed on 31 March 2017 and the Amended Response filed on 13 April 2017. Their joint proposal entailed the children living with the father, him having sole parental responsibility for them, and them spending substantial and regular time with the maternal grandmother. The Department opposed orders to that effect and sought conferral of parental responsibility upon the Minister.

Evidence

1. The father relied upon:

   (a)His affidavit filed on 25 May 2017; and

   (b)The affidavit of the paternal grandmother filed on 25 May 2017.

2. The maternal grandmother relied upon:

   (a)Her affidavit filed on 2 June 2017;

   (b)The affidavit of her partner, Mr Jenson, filed on 2 June 2017; and

   (c)The affidavit of the eldest child’s psychologist, Ms F, filed on 2 June 2017.

3. The parties and the Independent Children’s Lawyer also relied upon:

   (a)The Memorandum, dated 7 March 2016, prepared by the Family Consultant; and

   (b)The limited Family Report, dated 26 September 2016, prepared by the Family Consultant.

Legal principles

1. Orders in respect of children are made under Part VII of the Family Law Act (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Allegations of sexual abuse

1. While the maternal grandmother and Independent Children’s Lawyer both resiled from any suggestion the children were at any tangible risk of harm by reason of their subjection to sexual abuse by the father, the Department did not.

2. The Department remained a party to the proceedings following its intervention. It did not seek to withdraw in the face of concord between the other parties and the Independent Children’s Lawyer about suitable parenting orders for the children and no other party sought the Department’s discharge so, since the issue of whether the father poses an unacceptable risk of harm to the children therefore remained a live issue, it remains necessary to address the allegations made against the father in these proceedings.

3. Allegations of the father’s sexual abuse of the eldest child were first made in about October 2015, but the allegations were then made by only the mother and no party to these proceedings considered the allegations were truthful. Significantly, even the maternal grandmother disbelieved the allegations. She speculated the mother coached the child to “say things about her father”[5] and confirmed that evidence during cross-examination. Once these proceedings were commenced, the maternal grandmother initially openly supported the father’s application for the children’s residence. It was not until months later in mid-2016 that she changed her mind.[6]

   [5] Family Report, para 38

   [6] Family Report, para 20

4. Without reciting each and every representation made by the eldest child about her sexual abuse by the father, the facts may be fairly summarised as follows:

   (a)The first allegation was made to the maternal grandmother in August 2016, but the allegations were thereafter made reasonably frequently, perhaps on dozens of occasions over the past year;

   (b)All of her allegations entailed the father using his hand to manipulate her genitals in one way or another, either by touching, pinching, tickling, or digital penetration;

   (c)The allegations were made by the eldest child to the maternal grandmother, her psychologist, and JIRT investigators; and

   (d)JIRT investigators did not substantiate the allegations during the eldest child’s first interview on 30 August 2016, but did substantiate the allegations during her second interview on 7 June 2017.

1. The Department ultimately contended it substantiated the allegations on account of several features of the evidence: the consistency and frequency of the allegations, the allegations were separately made to persons acting independently of the maternal grandmother, and on some occasions the child demonstrated the allegations by pointing to her vulva and performing a pinching motion with her hand.

2. Of course, those features of the evidence are potentially influential, but as the Department was bound to concede, such features are just as consistent with the child repeatedly reciting a fiction which became progressively better rehearsed – particularly when the subject of her father was often introduced to her with leading questions which implied she had been hurt by him. JIRT investigators did not ask her leading questions in the second interview in June 2017, but by then the likely contamination of her allegations was well established and was liable to spoil any comments she made on the topic, regardless of how benignly the topic was raised with her. Accordingly, analysis of the eldest child’s representations and conduct needs to be thorough, not merely superficial. Such thorough analysis reveals flaws and peculiarities which, collectively, debase the reliability of her allegations.

3. First, the eldest child’s initial disclosure to the maternal grandmother in August 2016 was confined to an ambiguous report that the father touched her on the genitals. The maternal grandmother impulsively sprang to the conclusion such physical contact occurred in an inappropriately sexualised way, but that need not have been so. As the father deposed, in the past, he has bathed the eldest child, changed her nappies, and played with her. Physical contact between his hand and her genitals could have been entirely inadvertent and, even if intentional, perfectly appropriate to maintain her hygiene and good health. Nevertheless, with such suspicion immediately implanted in her mind, the maternal grandmother discussed and interpreted all subsequent reports by the eldest child in that sinister light.

4. The possible innocence of the eldest child’s initial reports was exposed in her first JIRT interview in August 2016. Although she told investigators she was touched by “Daddy” on the “doodle” (which descriptive name she used for the part of her anatomy for “weeing” and “pooing”), she also said at points throughout the interview that she was touched on the doodle by the maternal grandmother, the youngest child, and E, so it was not conduct confined to the father. The maternal grandmother confirmed in cross-examination she had touched the eldest child on the genitals to wash her, which is perfectly understandable. Self-evidently, the father may have done so just as innocently.

5. Secondly, on many occasions thereafter, the topic was discussed with the child by use of leading questions which implied an association between the father, her genitals, and the soreness of her genitals. The eldest child’s disclosures to her psychologist were made only in response to leading questions and, when the topic was avoided with her, as occurred during sessions held in October 2016, January 2017, and March 2017, she made no disclosures to the psychologist.[7] The Family Consultant said it is impossible to be confident about the truth of answers elicited from young children by the use of leading questions. Even the psychologist confessed in cross-examination she now knows that to be correct. She said of her current practice with the eldest child, “I have chosen not to raise the word ‘Daddy’ – I don’t go there anymore”. She must therefore now realise the child is conditioned to connect discussion about the father with discussion about her genitals.

   [7] Affidavit of Ms F, paras 14, 26

6. Third, even if the eldest child was revealing her sexual abuse by such disclosures, considerable doubt attends her identification of the father as the culprit. The allegations she made to the maternal grandmother and her psychologist attributed her genital manipulation to the conduct of “Daddy” and the evidence is clear she referred to another person besides the father as “Daddy” at that time. That person was Mr G, the mother’s former partner. The mother formed a relationship with him within only a month of the parents’ separation and he was a relatively constant presence in her home. During the eldest child’s first JIRT interview in August 2016, she told the investigators “[Mr G] is Daddy” and, following that interview, the investigators told the father they were concerned about what the eldest child said to them about “the mother’s ex-partner”.[8] In cross-examination, the maternal grandmother confirmed that JIRT investigators also told her they considered Mr G to be a possible perpetrator of her sexual abuse.

   [8] Family Report, para 41

7. Fourth, once the eldest child was interviewed by JIRT investigators, she was likely aware of intense interest in discussion about who may have touched parts of her body. Although it may not have been discussed in her direct presence, Mr Jenson confirmed in cross-examination that “sexual abuse” was a topic of recurrent discussion in the maternal grandmother’s home. It is easy to imagine how the eldest child was alive to the topicality of the subject and the interest it generated. Her awareness of adults’ interest in the subject was likely an inducement for her to repetitively raise it. The maternal grandmother deposed how the eldest child often approached her and told her of being touched on the genitals by the father, prefaced with the introductions like “Nanny, I have/need to tell you something”.

8. Fifth, one of the eldest child’s reports, if accepted as truthful, exculpated the father. She said in her first JIRT interview in August 2016 that she was touched on the doodle in bed at the maternal grandmother’s house. If that occurred, it did not involve the father, because the maternal grandmother confirmed in cross-examination he had never been in any bed at her home – at least after the parents’ separation in late 2014. Up until that point in time, the eldest child was not even two years of age and could not have had any prior memory of such an event. Therefore, if it was a truthful report, she must have been referring to some more recent event in her memory, for which the father could not have been responsible.

9. Sixth, some aspects of the eldest child’s reports were whimsical and unreliable. For example, she said in her first JIRT interview that she was touched on the “bum” by “Daddy” and by “Chooky my duck”. Her answers revealed the conflation of reality and fantasy, which elements were impossible to segregate.

10. Seventh, the eldest child certainly fabricated some of her reports about the manipulation of her genitals. Without necessarily being completely exhaustive, examples of her fabrications include the following:

    (a)In her first JIRT interview, following questions and answers which plainly demonstrated she had no understanding of the distinction between the truth and lies, she:

    (i)Alleged she was touched on the “doodle” with a “big knife”, which “cut [her] bum”.

    The maternal grandmother confirmed the child’s genitals and buttocks had never been cut.

    (ii)Denied she had been touched by anyone on her doodle while she was in the bath.[9]

    Although the maternal grandmother did not include any such allegation in her affidavit, she asserted in cross-examination the eldest child did report such an event to her, which she reported to JIRT officers before the child’s interview. Acceptance of the maternal grandmother’s evidence necessarily means the eldest child’s denial of the report was false.

    (iii)Inconsistently alleged the maternal grandmother had both touched and not touched her on the doodle, which answers cannot be reconciled.

    (iv)Denied she knew any part of her body described as “nine-ah”.

    The maternal grandmother said that was the exact word the child used to describe her genitals from the time of her very first disclosure in August 2016, barely days before her first JIRT interview,[10] which means the child’s denial in the interview was false.

    (b)The eldest child gave contradictory accounts to the maternal family about the youngest child also being touched on the genitals. In August 2016 she told the maternal grandmother and Mr Jenson the father did not touch the youngest child,[11] but then in December 2016 she told the maternal grandmother the father tickled both her and the youngest child on the genitals.[12] It is conceivable the father’s misconduct expanded in the months between August and December 2016 to include both children but, given the strictness of the father’s supervision with the children over that period, it is highly unlikely. The maternal grandmother doubted the father’s supervision by the paternal grandparents was sufficiently strict but, on the whole of the evidence, if the level of his supervision was not perfect, it was near enough.

    (c)In January 2017, the eldest child told the maternal grandmother that earlier that day, while attending a party in a public park with the father and other members of the paternal family, she was taken by the father alone into a “creepy creepy creepy cave” where he pinched her on the genitals.[13] The parties agreed there was no cave or other structure in the park reasonably capable of meeting that description and, in any event, he was supervised by the paternal grandmother. The eldest child repeated that false story to her psychologist about a week later.[14]

    (d)In January 2017, the eldest child told the maternal grandmother the paternal grandfather actually saw the father pinch her on the genitals and instructed the father to desist.[15] The maternal grandmother admitted in cross-examination she disbelieved the eldest child’s report about the paternal grandfather’s direct involvement, but she was then unable to logically explain why she chose to believe the eldest child about some aspects of her disclosures but conveniently disregard any false or implausible aspects of her disclosures.

    [9] Family Report, para 43

    [10] Maternal grandmother’s affidavit, para 66

    [11] Maternal grandmother’s affidavit, para 71

    [12] Maternal grandmother’s affidavit, para 108

    [13] Maternal grandmother’s affidavit, para 118

    [14] Maternal grandmother’s affidavit, para 124

    [15] Maternal grandmother’s affidavit, para 119

11. Eighth, during the eldest child’s second JIRT interview in June 2017, she gave inconsistent responses which were incapable of reconciliation. She said she was pinched on the “vagina” by the father, which was the part of her body used to “wee” but not to “poo”. However, she was then given a body chart and, after she correctly identified the location of the genitals on the human caricature, she was asked to mark on the body chart the place she was pinched by the father. She marked a spot on the buttocks, not the genitals, of the caricature.[16]

    [16] Exhibit FACS3

12. Ninth, there were other disquieting aspects of the eldest child’s second JIRT interview, including:

    (a)At its commencement, she assertively set out to establish that her use of the term “Daddy” was a reference to the father, who lived with the paternal grandmother (which suggested she understood she needed to eradicate any doubt she may have been referring to Mr G), she then immediately announced how the father hurt her by pinching her on the “vagina” and concluded by saying “there’s no more things to say” (which gave the impression she was primed, for one reason or another, to attend the interview and give a concise rendition of the father’s misconduct). The entire interview was concluded in about 12 minutes, inclusive of the introductory process.

    (b)At the conclusion of the interview she told the JIRT investigators she had not told anyone else about the things she discussed in the interview. That was plainly false because she had discussed the allegation with the maternal grandmother and her psychologist. In fact, those discussions were the reason for the second JIRT interview being convened.

    (c)Although the eldest child said in the interview the father “hurt” her by pinching her on the vagina and she did not like him hurting her, her demeanour when describing her discomfort was quite inconsistent with the theme of the discussion. She did not manifest distaste, hesitation, reluctance, fear, or embarrassment. On the contrary, she appeared completely disengaged from the content of the discussion. She walked around the room amiably, studied books and papers on the table between her and the interviewer, and lay across the lounge.

    (d)She provided very little contextual detail about the allegation, as was the case in the first JIRT interview.[17] She said the father pinched her on the vagina in the lounge room at the paternal grandmother’s house while the paternal grandmother was absent in another room of the house. While that could possibly have occurred, the father would have taken an extraordinarily high risk in a very narrow window of opportunity. It is implausible he would have run such high risk to momentarily pinch the eldest child on the genitals when such transient conduct would not likely have afforded him any sexual gratification.

    [17] Family Report, para 44

13. Although the Department substantiated the sexual abuse on the strength of the eldest child’s disclosures in the second JIRT interview, the decision to substantiate the abuse was most probably calculated to absolve the Department from any criticism for its failure to act protectively of the child. Faced with a disclosure of improper manipulation of her genitalia by a young girl, the Department’s staff most probably considered it wise to err on the side of caution. That is perhaps understandable, but for clarity it needs to be understood that findings of the Court are not dictated by conclusions reached by the Department’s staff, for otherwise the Court would be abrogating its judicial function by simply endorsing the Department’s decisions. Evidence adduced by the Department and opinions offered by its employees form part of the body of evidence placed before the Court and may well be influential, but is never determinative.

14. One oversight of the Department was to focus its attention on the disclosures of the eldest child rather than the entirety of the evidence. Although the child implicated the father in the improper manipulation of her genitals during the second JIRT interview, it was unrealistic to accept the veracity of that allegation in isolation from all of the other shortcomings that attend her disclosures over the past year.

15. Moreover, other aspects of the evidence also bear upon the reliability of the child’s allegations. For example, none of the eldest child’s allegations are corroborated in any way, the father credibly denied any sexual misconduct, and he has been under constant supervision in the children’s company since interim orders were made in March 2016 – months before the eldest child started making allegations in August 2016.

16. Obviously enough, many instances of sexual abuse are incapable of corroboration because it occurs furtively in the absence of witnesses. However, in this case, corroboration was prospectively available on two counts. First, the youngest child has never said anything to implicate the father in sexual impropriety, despite the children always visiting the father and paternal grandparents together. Second, at four years of age, the eldest child is still only a small child, but the father is a large man. She alleged on at least one occasion that the father put “two fingers in [her] vagina”,[18] but there was no evidence of her ever sustaining any injury to her genitals. Vaginas are elastic anatomical organs, but there are limits to the elasticity of those of such young children. It is not impossible the child was sexually abused, without sustaining injury, but the disproportionate sizes of the father and eldest child piques curiosity.

    [18] Maternal grandmother’s affidavit, para 133

17. The father denied his sexual abuse of the eldest child in his affidavit[19] and also during cross-examination. He denied he kept secrets with the eldest child, denied he had ever been alone with her since the orders for supervision were first made in March 2016, and denied he ever touched her improperly on the genitals. When he was challenged in cross-examination, he did not seek refuge in his privilege against self-incrimination. He said he was innocent and the allegations made him sick. His answers were firm and his demeanour was earnest. The Independent Children’s Lawyer correctly described him in closing submissions as “impressive”. It is difficult to imagine a more credible and convincing witness. Although not raised with him in cross-examination, he willingly participated in a formal interview with authorities on 3 August 2017 and denied the eldest child’s allegations arising out of the second JIRT interview.[20] He has never shrunk from answering the allegations and there is no suggestion he will be prosecuted. The Department’s records note “there is insufficient evidence to proceed with criminal charges”.[21]

    [19] Father’s affidavit, paras 36, 77

    [20] Exhibit MGM4

    [21] Exhibit MGM5

18. The dissonance between the sheer number of disclosures made by the eldest child and the paucity of opportunities for her covert sexual abuse by the father cast considerable doubt on the truth of her disclosures. Given the finding about the satisfactory strictness of the father’s supervision, even allowing for some marginal laxity by the supervisors suspected by the maternal grandmother, it is most improbable the father could have sexually abused the child on anywhere near the number of occasions she alleged.

19. There could be little doubt the maternal grandmother developed a genuine belief in the truth of the eldest child’s allegations. She cannot be blamed for that. She honestly believed she acted protectively and proactively. Her belief in the occurrence of the sexual abuse was galvanised by the eldest child’s psychologist telling her (unwisely) in January 2017 that she had no doubt about the truth of the eldest child’s disclosures[22] and the Department’s staff telling her the child’s allegations were substantiated in the most recent JIRT interview conducted in June 2017. For her, the way in which the evidence unravelled during the trial would have been surprising and confronting, because her honest belief was methodically and unexpectedly challenged, eroded, then debunked.

    [22] Maternal grandmother’s affidavit, para 125

20. In final submissions, her counsel explained she had listened carefully to the evidence given by the father and the Family Consultant and heard the eldest child’s psychologist admit her lack of experience in the area of investigation of child sexual abuse and recant her resolute belief in the truth of the child’s disclosures. Her mind was opened to how the conclusion to which she had previously been drawn was flawed. She was prepared to concede the father’s alleged sexual abuse of the eldest child was quite unlikely and he did not pose an unacceptable risk of harm to her, which concession was a testament to her maturity and reliability.

21. Given the maternal grandmother’s attitudinal change and the proposal then jointly adopted by her, the father, and the Independent Children’s Lawyer, it was somewhat surprising the Department tenaciously held to its earlier conclusion of “substantiation”, particularly when it was quite satisfied with the way in which the father had been cross-examined by others and chose not to pose a solitary question to him in cross-examination itself. Of course, the Department was quite entitled to maintain its stance, but its stance was not vindicated by the evidence. It is most improbable the father sexually abused the eldest child and, without more, the risk of him sexually abusing either child in the future is not satisfactorily demonstrated.

Best interests

Section 60CC(2)(a)

1. It is common ground the children love the father and derive enormous benefit from their relationships with him.

2. Although the quality of the children’s relationships with the maternal grandmother and E and their derivation of emotional benefit from those relationships are additional considerations under s 60CC(3)(b) of the Act, rather than primary considerations under s 60CC(2)(a), regardless, they remain vitally important features of the evidence in this case. While filial relationships are primarily important, the Act does not presumptively prefer parents over others in the determination of proper parenting orders (see Maldera v Orbel (2014) FLC 93-602 at [79]-[81]; Valentine & Lacerra (2013) FLC 93-539 at [42]-[43]; Aldridge & Keaton (2009) FLC 93-421 at [59]-[61], [75]-[81], [83]).

Section 60CC(2)(b)

1. The evidence did not demonstrate the children’s need for any protection against harm they may suffer through subjection or exposure to abuse, family violence or neglect while in the care of the father or maternal grandmother.

2. Conversely, there is clear need for their protection against the risk of harm they may suffer from at least neglect when in the mother’s care. For that reason, the Family Consultant recommended against the children spending any time with her,[23] which opinion she repeated in cross-examination. The parties willingly adopted her recommendation[24] and the Department did not disagree.

   [23] Family Report, para 62

   [24] Exhibit ICL2, Order 4

Section 60CC(3)

1. Given the eventual concurrence between the father and maternal grandmother, their reciprocal criticisms of one another for miscellaneous reasons such as the lack of psychological stability, alcohol misuse, and the failure to provide the mother with sufficient parental support fell away.

2. Ultimately, only a few aspects of the evidence influenced the outcome and not all pointed to the same result. In reality, the children would likely enjoy safe, happy, and fulfilled lives whether they live with the father or maternal grandmother.

3. The children have lived with the maternal grandmother for the past 16 months. By all reports, they are thriving and all of their physical and intellectual needs have been well met. The father’s concern about the maternal grandmother’s willingness to support the children’s relationships with him was satisfactorily addressed by her realisation that the sexual abuse allegations made against him were unmeritorious, in which event she would likely also meet all of the children’s emotional needs into the future if they remained in her care.

4. E is a permanent member of the maternal grandmother’s household. Although only a half-sibling to the children, they regard him as their brother. The eldest child nominated him as her “brother” and part of her immediate family during her first JIRT interview in August 2016. The father conceded, both in-chief[25] and during cross-examination, the children were “very close” to E and they would be distressed if they could no longer live with him.

   [25] Father’s affidavit, paras 74-75

5. By comparison, the father cannot yet offer to the children quite the same level of physical and emotional stability as the maternal grandmother’s household. He still lives with the paternal grandparents, though he intends to move out and establish his own home with his fiancé and her young child at some indeterminate time. He has never been the children’s primary carer and, since his separation from the mother in late 2014, they have spent relatively few nights in his care.

6. The Family Consultant considered the only feature disqualifying the father as the children’s preferred residential carer was the unresolved allegation that he posed a risk of harm to them.[26] That issue is now comprehensively resolved in his favour. When the Family Consultant was asked in cross-examination to assume that outcome, she strongly advocated for the children to live with him, even though it would mean their separation from E. She said the parental relationship should be prioritised over the sibling relationship and, furthermore, she adhered to that view even if the maternal grandmother could offer the children a superior parental experience. So long as the father was capable of meeting all of the children’s needs to a satisfactory standard, their best interests were served by living with the father. The potence of that opinion was informed by the loss of one parent already suffered by the children, for they have little, if any, satisfactory explanation for the mother’s sudden departure from their lives in May 2016. The Family Consultant was concerned the children may feel abandoned by the mother and would suffer more emotional damage by any marginalisation of the father in their lives.

   [26] Family Report, para 64, 66, 68

7. The maternal grandmother is insightful enough to understand how the children feel about the loss of the mother because she took them to counselling to help them cope with the loss. She said in cross-examination she was advised by a psychologist and social worker that the children’s separation from E would be another emotional loss with which they would need to contend. That advice rings true, as the Family Consultant conceded,[27] but it does not undercut the reliability of the Family Consultant’s strong opinion about priority of the filial relationship over the sibling relationship in this particular case.

   [27] Family Report, para 66

Conclusions and orders

1. The presumption of the parents’ investiture with equal parental responsibility for the children does not apply because there are reasonable grounds to believe one or both of them committed family violence during their cohabitation (s 61DA(2)(b)). Even if it was otherwise, given the mother’s disappearance for more than a year, the father could not share parental responsibility with her and so the evidence rebuts the presumption (s 61DA(4)). The maternal grandmother does not presumptively acquire any share in the children’s parental responsibility.

2. The father, maternal grandmother, and Independent Children’s Lawyer agreed the children should live with the father and he should have sole parental responsibility for them. Such an outcome would promote the children’s best interests, though it would still be open to find on the available evidence their interests would be served by living with the maternal grandmother and her at least sharing parental responsibility for them. However, the Family Consultant’s opinion evidence and the maternal grandmother’s agreement collectively render the first alternative preferable.

3. The Family Consultant recommended that, if the children live with the father, they should spend as much time with E as possible. In the Family Report, she expressed that to be alternate weekends.[28] The father, maternal grandmother, and Independent Children’s Lawyer expanded that idea to encompass alternate weekends, parts of school holiday periods, and other special occasions.[29] Such orders are desirable.

   [28] Family Report, para 69

   [29] Exhibit ICL2, Orders 5-7

4. The orders restrain the parties from allowing the children to spend time with the mother, as they agreed,[30] consistently with the Family Consultant’s advice.

   [30] Exhibit ICL2, Order 4

5. The orders reflect, but do not replicate, those jointly proposed by the father, maternal grandmother, and Independent Children’s Lawyer. I am satisfied orders to that effect promote the children’s best interests.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 25 August 2017.

Associate: 

Date:  25 August 2017