H and S - [2003] FMCAfam 62

FEDERAL MAGISTRATES COURT OF AUSTRALIA

H & S

[2003] FMCAfam 62

FAMILY LAW – Children – interim contact – allegation of child sexual abuse – father proposes supervised contact pending final hearing – supervised contact at a contact centre ordered.

Applicant:

C M H

Respondent:

A J S

File No:

PAM4558 of 2002

Delivered on:

21 February 2003

Delivered at:

Parramatta

Hearing Date:

21 February 2003

Judgment of:

Ryan FM

REPRESENTATION

Solicitor Advocate for the Applicant:

Ms J. Webber

Solicitors for the Applicant:

Legal Aid Commission of NSW

Counsel for the Respondent:

Mr M. Kearney

Solicitors for the Respondent:

Newnhams

Solicitor Advocate for the Child:

Ms S. Warda

Solicitors for the Child:

Coleman & Greig

ORDERS

I suspend the contact orders made 9 December 1997.
That the father have contact to the child B E M S born 8 December 1994 as follows:
(a)Each alternate weekend for a period of two hours commencing the weekend starting 7 March 2003.
(b)During any interviews arranged for the preparation of an order 30A or other expert’s report in conjunction with these proceedings.
The father’s contact shall be supervised and take place at the Central West Contact Service at Campbelltown at dates and times nominated by the coordinator of the program.
In the event that contact cannot start within four weeks then the parties have liberty to apply on 72 hours notice for the purposes of obtaining an alternate venue.

IT IS FURTHER ORDERED:

That the proceedings be transferred to the Family Court of Australia. The Applicant’s Solicitor is to contact the Associate to the List Judge in the Parramatta Registry of the Family Court within seven (7) days to arrange a date for a Directions Hearing.
THAT pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM4558 of 2002

C M H

Applicant

And

A J S

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.

Background

These are interim parenting proceedings that concern the parties’ only child, B E M S. B was born on 8 December 1994 and has always lived with her mother. She was born after her parents’ relationship had ended.
In her early years B had little contact with her father. The parties give different reasons for the father’s lack of contact. It is his case that the mother resisted his attempts to establish a relationship with their daughter. On the other hand the mother claims that the father was uninterested in making a commitment to exercise regular contact and let long periods pass by without asking to see B. In any event that situation changed in late 1997 when the father made an application to Parramatta Local Court. The parties settled the proceedings and agreed that a graduated regime of contact should start and from late 1997 until 2002 contact occurred regularly.
The parties agree that contact last occurred on the weekend of 23 and 24 February 2002. It is the mother’s case that B has been sexually abused by her father.

The applications

By his application filed on 27 November 2002 C M H (“the father”) is seeking to reintroduce contact pending a final hearing. He proposes that his parents supervise any contact. A final hearing in this court, given the matters that need to be attended to for its preparation, is about five or six months hence.
A J S (“the mother”) opposes his application. In her response filed on 14 January 2003 she asks that the court suspend (and later discharge) the Local Court contact orders that were made on 9 December 1997. Her intention is that B has no contact to her father.

Current orders

The current orders were made by consent at Parramatta Local Court on 9 December 1997. The orders are annexed to the father’s affidavit[1] and are set out below.
[1] Annexure A
1.That the child of the relationship namely B E M S, (DOB 8.12.94) live with the mother.
2.That the mother have the sole responsibility for making decisions about the day to day care, welfare and development of the child.
3.That the father have contact with the child as follows:
(a)Until 1 May 1998 every Saturday from 9:00am until 11:00am such contact to be supervised, with the Father to contact the Mother by telephone no less than 24 hours prior to the commencement of contact to arrange the location of the contact visit
(b)From 1 May 1998 until 30 June 1998 every Saturday from 9:00am until 11:00am.
(c)From 1 July 1998 Until 31 December 1998 every alternate Saturday from 9:00am until 1:00pm.
(d)From 1 January 1999 until 31 December 1999 every alternate Saturday from 9:00am until 5:00pm.
(e)From 1 January 2000 every alternate weekend from 9:00am Saturday until 5:00pm Sunday.
(f)For a period of 1 hour on the child’s birthday.
(g)From 3:30pm until 5:00pm on Christmas Day 1997 to be exercised at the maternal grandparents home provided the child is in Sydney or in the alternative from 3:30pm until 5:00pm on New Years Day 1998 and from 3:00pm until 7:00pm to commence Christmas Day 1998 and each alternate year thereafter and from 3:30pm until 5:30pm to commence Christmas Day 1999 provided that the child is in Sydney or in the alternative from 9:00am until 5:00pm on New Years Day, and each alternate year thereafter.
(h)When the child commences school, for three (3) periods of contact consisting of five (5) consecutive days during the school holiday periods, by agreement between the parties, with the Father to collect the child at the commencement of contact at 9:00am and return the child at the conclusion of contact at 5:00pm and the Father to provide the Mother with one (1) month’s notice of his intention to exercise contact and to provide the Mother with a contact address and telephone number for all periods of holiday contact and the Father to supervise the child at all times during contact.
(i)At such other times as agreed between the parties.
4.That the father not consume or be under the influence of any prohibited substances in the presence of the child and not to bring the child into contact with any persons who consume prohibited substances.
UNDERTAKINGS
1.That the Father undertakes not to denigrate the Mother or members of the Mother’s family to the child or in the presence of the child
2.That the Mother undertakes not to denigrate the Father or members of the Father’s family to the child or in the presence of the child.
3.That the father undertakes to pay the sum of $20.00 per week to the Mother and that upon the Father obtaining part time employment the above amount will be increased by agreement between the parties.
4.That the father undertakes to participate in a Parenting Course and complete a First Aid Course.
5.That the father undertakes not to remove the child from the Sydney Metropolitan Area, without the Mother’s consent.

The issues

At issue are the following matters:
·the nature and gravity of the risk to the child that she would be sexually abused by her father during supervised contact;
·the nature and gravity of the risk to the child's emotional well-being if contact is ordered or denied;
·the potential that the child's relationship with the father will be damaged if contact does not resume.

Chronology

The parties agree that the father has had more contact than provided for in the current orders. Also that unsupervised contact started sooner than ordered. Contact had been intended to be supervised until May 1998 yet unsupervised contact started in February 1998. They also agree that overnight contact started sooner than provided for in the orders. From this I infer that both parties recognised that B and her father had developed a happy relationship, and that he had acquired sufficient parenting skills to enable him to adequately meet her needs during contact.
By mid-2001 the mother was uneasy about aspects of B's behaviour. The child was aggressive with her, intolerant and secretive. In paragraph 9 of her affidavit the mother sets out other aspects of B’s behaviour that worried her. She started to harbour vague suspicions that she may be being sexually abused whilst in the father’s care. Her unease did not prompt her to do anything significant, simply to keep a closer eye on her daughter's behaviour and responses to contact.
At the same time, tensions were developing between the parties about the extent of the contact that the father was taking and its regularity. Basically, the mother wanted him to have more contact, to take it regularly and to contribute more substantially to the effort of caring for their daughter. The tensions were centred on both parties' need to work, and to also put sufficient effort into their studies. Both used one another to mind B and to free up study time for each other. The mother raised her concerns about the father’s lack of regular contact in September 2001 and during the following months.
Contact on 23 and 24 February 2002 went reasonably smoothly from both parties' perspective. It was essentially unremarkable. Although B had needed her mother's encouragement before she agreed to attend contact, as she had on a number of occasions previously, she went without her mother needing to do more than persuade her that she should attend contact.
After contact on 23-24 February 2002 there was a serious dispute between the parties when the father said he would not take B on the weekend of 9-10 March 2002. This was because he had exams on

8 and 15 March 2002. Once again B told her mother that she did not want to attend contact. Rather than continuing to encourage B’s attendance, the mother altered her approach and told the child that she need not attend in future unless she wanted to.
Prior to the following contact weekend the mother decided to stop contact. She did not approach a court and ask that she be relieved from her obligation to give contact in accordance with the consent orders. Her decision was unilateral and there is no suggestion that the father agreed that his contact should be curtailed. The father continued to telephone the mother asking for contact, which requests she rejected. Occasionally he spoke to B on the telephone and says that on

22 April 2002 B told him that she was missing him.
On 3 May 2002 the father went to B’s school hoping to see her. When he saw B the father asked her whether she was coming to his home the next weekend. She said “no” and then ran back into her classroom. After the mother collected the child the father went to Gladesville Police Station hoping to enlist their assistance in having contact on the weekend, which was due to start the next day. The next day the mother reported the school incident to the same police station. Not long afterwards she changed B’s school.
The mother approached a clinical psychologist, J F on 7 May 2002 requesting that he see B because she was “recently unhappy, exhibiting low self-esteem and being reluctant to see her father. A also expressed concerns about possible sexual abuse of B by her father”[2].
[2] Annexure A mother’s affidavit filed 14/01/2003
The parties spoke by telephone on 11 May 2002 but disagree about most of the details of the conversation. The mother denies the father’s allegation that she told him he wouldn’t see their child again. They agree that there was discussion about B’s reluctance to go for contact.
Mr F interviewed B on 17 June, 4 and 10 July 2002. His report outlines the substance of his consultations with the child. Mr F concludes that B's account of her relationship with the father was believable, and says:
"She seemed genuinely disturbed in describing his behaviour, including his touching her. She seemed to disclose things in her own words in her own way. She talked about numerous things that troubled bothered her, such as being bothered by a cousin monopolising a friend's attention, getting into trouble and being screamed at by her mum, and disliking the smell of Listerine on her father's breath, though she seemed most concerned about her father's touching of her. She seemed relieved at having got it out in the open".
On 29 June 2002 the father telephoned the mother again asking for contact. When he was refused he told her that he would take her to court, a sentiment he repeated a few days later.
On 2 July 2002, the mother says that B disclosed that her father had been sexually abusing her. The mother then set in train an investigation of the allegations. On 8 July 2002 she took B to see their local doctor, Dr B. Dr B as a mandatory notifier of child abuse, referred the issue to the Department of Community Services.
On 10 July 2002 the father started contravention proceedings at Ryde Local Court.
DOCS referred the matter to the Joint Investigative Review Team (J.I.RT), which conducted an extensive examination of the allegations. They sought and obtained by consent (without any admissions) an Apprehended Violence Order against the father for the child’s protection, a copy of which is attached to his affidavit.[3] Their report, and the report made by the Department of Community Services are in evidence[4]. The report from the Department of Community Services[5] has the following summary:
"B disclosed that her father poked her with his finger or sticks on the outside of her wobbly bits. B did not know what the wobbly bit was called, only that that is where the wee comes out. B said this happens sometimes when she is in bed. Sometimes her dad wakes her up and other times she doesn't wake up. B said he lays down on her bed and pokes her hard, sometimes on the outside of her pyjamas. B denied her dad saying anything to her, and she did not say anything either. B said it lasted for five minutes. B said it was around 10.00 pm, dark time, when it happened, and her Nan and Pop were also there sometimes. B said sometimes her Nan and Pop were awake or watching TV, but she did not tell her Nan and Pop. B added 'I think they already knew because they never wanted to know about it'. B said her dad touched her on the bottom, nipples, back, shins, vagina, hands and palm and armpit. B said she could not remember when her dad touched her on her bottom.”
[3] Annexure D
[4] Exhibits B & C
[5] page 72
The investigators interviewed both parents quite extensively. They concluded their investigations saying:
"B talked easily throughout the interview. B was well spoken and energetic while being interviewed. However, when she disclosed what her father had done to her she was unable to isolate incidents or provide sufficient details around the incidents. B appeared quite mature and stated to D W, police officer J.I.R.T, during the interview while she was drawing, 'You can ask me questions while I draw'. B was vague when describing her father's interactions with her, and did not maintain the clarity of specific situations. We were unable to isolate any particular incident. B would appear confident in her speech but would talk about different incidents and different times at once. B added unknown details to her story when clarity was trying to be established. This became difficult because while the child presented as mature and confident we were unable to ascertain sufficient detail of a sexual assault adequately to proceed with criminal proceedings against the natural father".
I reject the submission that I should draw an inference from the fact that criminal proceedings have not been commenced favourable to the father’s case. No comfort can be drawn from the fact that the police have failed to initiate criminal proceedings against the father. The standard of proof in civil proceedings, as compared to criminal proceedings is different. This court determines the degree of risk and criminal courts determine charges, ie. whether an event happened.
After the J.I.R.T interviews, B was taken to the Sydney Children's Hospital where she was seen by the child protection team. Dr C who carried out a physical examination saw her on 29 July 2002. Dr C reports:
"Examination of her genitalia showed a normal clitoris with no evidence of discharge at the introitus. The labia were normal and the posterior floor bled a little with traction on the labia. The hymen was normal with no evidence or acute or chronic injury. Examination of her anus was normal".
Dr C concluded:
"B is a 7 year old girl who has made a disclosure of alleged sexual assault by her father. This assault allegedly included digital penetration as well as penetration of the vagina with objects. There is no record of penile-vaginal intercourse. B's general examination as well as examination of her genitalia and anus was normal. The presence of a normal examination does not preclude a history of sexual assault as disclosed by B.”
Some five months after B last saw her father she was seen at the doctor for redness to her external labia. I accept Ms Webber's submission that given the passage of time since contact had last occurred there is no apparent nexus between the child's presentation on that occasion and behaviour by her father.

Conclusion

It is clear from B's interviews, as well from both parties’ affidavits, that B is acutely aware of her parents' dispute/s. Neither parent seems to have taken adequate steps to protect B from exposure to their heated exchanges. This means that B is aware that their arguments have been about her.
In interim parenting proceedings the court is not in a position to make concluded findings of fact. Where there are contentious factual issues, the process does not lend itself to analysis and definitive findings concerning those contentious issues. The court must proceed essentially on the basis of the uncontroverted material, or material that is otherwise apparently credible and not subject of any meaningful challenge.
The father's denial that he sexually abused B and his detailed description of a previously good relationship with his daughter appears credible. This does not mean that I accept his denial but it cannot be overlooked that he denies that he has sexually abused B.
The evidence before the court in support of the allegations of sexual abuse is not as strong as unfortunately it is for many children who are clearly victims of child sexual abuse. B has told a number of people that her father has sexually abused her. Do these complaints result from leading or contaminated interviews? Have they been interpreted correctly? Does she understand what she is saying? Have her complaints been fuelled by circumstance because she is caught between parents who make little attempt to protect her from their own hostilities? Has the child been sexually abused by her father or by someone else? Is the process now so hopelessly contaminated one will never know the answers to any of those questions? What is certain is that I cannot determine any of those issues in a hearing such as this. The likelihood is that those issues will be able to be resolved at trial. During the interregnum I am satisfied that I should err on the side of caution and ensure that none of the orders I make expose this child to a risk of further abuse.
I am satisfied that contact if it is ordered, must be supervised. There is no issue that that is so. The critical issue is whether any contact should occur. Mr Kearney submitted correctly, in my view, that this requires a balancing exercise, balancing risk of harm and the effect of delay. The court must take into account the period of time during which B has not had contact to her father. It is most regrettable that this matter did not come back before the court much sooner than it has. I indicated earlier that I thought it would be five or six months before this matter could properly be called on for trial. That length of time, added to the twelve months that has already passed, will mean 16 or 17 months during which this child has not had contact with her father. In circumstances where she has previously enjoyed a reasonably appropriate and happy relationship with her father, my concern is that from her point of view this gap is likely to cause irreparable harm to her relationship with him. The risk that no contact will damage their relationship is real, and given the gap of one year, immediate. How do I balance that consequence with the risk that the child will be distressed at the prospect of reintroduction of contact with her father? I accept that B and her father previously enjoyed one another's company, something that is implicit in the mother’s enthusiasm that the father have more contact in early 2002 than he was able to have. Given the passage of time since she last saw him, B may welcome contact with her father, or be distressed by it. This little girl has been through a great deal in the last twelve months including an intimate sexual examination and repeated interviewing about her relationship with her father. It is likely that this will have taken a toll upon her and I anticipate that she may well be quite anxious about spending time with her father – even if she wants to see him.

Ms Warda submitted that contact should resume in a supervised setting. The best way to moderate any anxiety, in the sense of equipping B to deal with it, is if a skilled supervisor supervises the contact. Mr Kearney emphasised that the paternal grandparents may well be witnesses called in the final hearing. This appears likely. More relevantly, they could not be reasonably expected to be dispassionate. There is nothing in the evidence that suggests that they have the professional skills necessary to help B if she is having difficulty coping with contact. Better that somebody who works with children and is skilled in providing supervised contact oversees the contact. From the father’s perspective it is quite likely that he may also benefit from skilled supervision as well. Someone who can help him during this difficult situation. Who can help him respond appropriately with B should she resist contact with him.
Provided any contact is competently supervised the risk that B may be sexually abused during it is remote.
The outcome will be that I will order the re-establishment of contact. Contact shall take place fortnightly if possible, supervised at a supervised contact centre. The order will be for contact of two hours each alternate weekend.
Leaving the suspension of contact to continue any longer I am satisfied has the potential to cause immediate and continuing damage to the father and daughter relationship. I have heard this morning that contact cannot take place at the Central West Contact Service at Harris Park within the next five to six months. The intent of my orders is that contact will resume immediately. My understanding is that the contact service also has an outreach facility at Campbelltown, at which place the parties can immediately start supervised contact. Geographically it is not convenient to anybody, however, the benefits to B potentially outweigh the inconvenience to the parties.
If the parties wish to have the opportunity to do so, I will stand the matter in the list so that they can consider whether there is any other appropriate agency or place that supervised contact could start almost immediately. As neither party wants to take up the opportunity to consider a different supervisory service I will make orders indicated.
For these reasons I make the orders identified at the start of this judgment. These orders I am satisfied are in the child’s best interests.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:

Date: 16 May 2003