Harke and Edward
[2011] FMCAfam 536
•25 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HARKE & EDWARD | [2011] FMCAfam 536 |
| FAMILY LAW – Parenting – allegations of sexual abuse – unacceptable risk – equal shared parental responsibility. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA and 65DAA Federal Magistrates Court Rules 2001, Rule 16 Evidence Act 1995 (Cth), s.140 |
| Collu & Rinaldo [2010] FamCAFC 53 Johnson & Page (2007) FLC 93-344 M v M (1988) 166 CLR 69 Murphy & Murphy [2007] FamCA 795 Nikolakis & Nikolakis [2010] FamCAFC 52 Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 |
| Applicant: | MS HARKE |
| Respondent: | MR EDWARD |
| File Number: | BRC 982 of 2008 |
| Judgment of: | Howard FM |
| Hearing dates: | 7 October 2010, 3 February 2011 and 4 February 2011 |
| Date of Last Submission: | 4 February 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 25 July 2011 |
REPRESENTATION
| Applicant appearing in person: | Ms Harke |
| Counsel for the Respondent: | Mr G. Burridge |
| Solicitors for the Respondent: | Springwood Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms R. Lyons |
| Solicitors for the Independent Children’s Lawyer: | Lyrene Wiid Lawyer & Migration Agent |
ORDERS
Within 21 days of the date of this Order the Independent Children’s Lawyer shall forward Orders to the Court which reflect the Reasons for Judgment.
IT IS NOTED that publication of this judgment under the pseudonym Harke & Edward is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 982 of 2008
| MS HARKE |
Applicant
And
| MR EDWARD |
Respondent
REASONS FOR JUDGMENT
Background and Preliminary Issues
This is an application for parenting orders in relation to one child. The parties cannot agree on what parenting orders should be in place. The child in this case is [Y] born [in] 2006.
The mother, Ms Harke, was born [in] 1985.
The father, Mr Edward was born [in] 1974.
The parties in this case lived together between January 2006 and April 2007. The parties separated on a final basis on 11 April 2007.
The mother has one other child, namely [X], born [in] 2004.
The father has one other child, [Z], whose date of birth is [omitted] 1997.
The parties’ relatively short relationship was characterised by conflict.
There are, of course, many issues for the Court to consider in any parenting case. The Court must determine the case having regard to the various provisions of the Family Law Act1975. In particular, section 60CA of the Act states that the Court must regard the best interests of the child as the paramount consideration in making any parenting order. Section 60CC of the Act sets out how a Court is to determine what is in a child’s best interests. Before referring specifically to the legislation, there are various issues that need to be considered by the Court and addressed at the outset.
After separation the parties had originally agreed to parenting orders. The original final order was made by consent on 11 March 2008. By that order, the child was to live primarily with the mother and spend each weekend with the father. There were various other specific orders made at that time.
After the original orders were made, an application was brought to the Court by the mother in April 2009, whereby the mother alleged that certain disclosures had been made to her by [X] and also by the child, [Y], in relation to the father. As a result of that evidence from the mother, the Court varied its earlier order and put in place a regime whereby the child would live predominantly with the mother and spend alternate weekends with the father. Subsequently, the father’s time with [Y] was unilaterally suspended by the mother. The father brought a contravention application. The parties came to an agreement and the alternative weekend time with the father began again.
The matter came back for a final hearing in September 2009. The mother was unable to be present because of ill health. The trial was adjourned until December 2009.
The mother did not appear at that time on 9 December 2009. On 9 December 2009 the mother’s solicitor arrived at the Court and sought leave immediately to withdraw from the matter stating that he had been unable to obtain instructions. There was no adequate evidence before the Court providing any sort of reasonable explanation as to why the mother could not have been present at the Court. Orders were put in place providing that [Y] would live predominantly with the father and spend alternate weekends with the mother.
The mother appealed the orders that had been made notwithstanding the fact that the order itself had made a specific reference to Rule 16 of the Federal Magistrates Court Rules 2001. That Rule enables a party to apply to this Court to set aside a final order in circumstances where that final order had been made in the absence of that party.
In any event, the matter was eventually listed again before this Court. Rule 16 was invoked. The final order was set aside and the matter was set down for a final hearing once again - this time to commence in October 2010. The first day of the hearing occurred on 7 October 2010. It became apparent that the matter needed to be adjourned because of the unavailability of one of the mother’s witnesses and the matter was also going to take a longer period of time than had been originally anticipated by the parties.
The matter was adjourned until 3 and 4 February 2011. On 7 October 2010 the Court varied the then operative order. The order was varied so that the child, [Y], would live predominantly with the father and spend alternate weekends with the mother from Thursday to Monday. In addition, in the off week, there was to be one day when [Y] would have a dinner date with the mother.
A review of the applicable legislation is helpful at this stage.
I note that section 60CA of the Act states:-
“SECTION 60CA CHILD’S BEST INTERESTS PARAMOUNT CONSIDERATION IN MAKING A PARENTING ORDER
60CA In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
In determining what is in a child’s best interests section 60CC sets out what a Court must take into account. Section 60CC(1) and (2) state:-
“SECTION 60CC HOW A COURT DETERMINES WHAT IS IN A CHILD’S BEST INTERESTS
Determining child’s best interests
60CC(1) Subject to subsection (5), in determining what is in the child’s best interest, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
Certain allegations have been made in this case which require the Court’s attention at the beginning of these Reasons for Judgment. One of the primary considerations is the need to protect children from physical or psychological harm or abuse. It is therefore appropriate for the Court to consider at this stage the allegations that have been made by the mother.
Allegations and Disclosures
There are three sets of allegations or disclosures referred to in the evidence. The mother has alleged:-
a)that she observed bruising to [Y]’s mons pubis[1] on 4 May 2008, or thereabouts;
b)that [X] disclosed to the mother on or about 10 May 2008 that the father (Mr Edward) had touched the child on her genitals/bottom and the mother further alleged that as a result of such touching that [X] had been displaying sexualised behaviour; and
c)around late December 2008 while changing the child [Y]’s nappy, the mother noticed a rash. The mother also alleges that [Y] told the mother that her stepfather had touched her, but then the mother says that [Y] told her that it in fact was the father who had touched her.
[1] Mons pubis: “The superficial cushion of fat covering the body of the pubis” (Butterworth’s Medical Dictionary, Second Edition, 1989).
Before considering the allegations in more detail – a review of some of the more important cases in this area is necessary.
M v M and Subsequent Cases
In M v M (1988) 166 CLR 69 the High Court stated, inter alia, from page 76:-
“In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 CLR 336 at p. 362). There Dixon J said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw (1938) 60 CLR 336, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A. [1976] V.R 298 at p. 300), “an element of risk” or “an appreciable risk” (Marriage of M. (1987) 11 Fam. L.R. 765, at pp. 770, 771), “a real possibility” (B. v. B. (Access) [1986] F.L.C. 91-758, at p. 75, 545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164, at p. 167), and an “unacceptable risk”: In re G. (A minor) [1987] 1 W.L.R. 146, at p, 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
In Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 the Full Court of the Family Court of Australia stated at paragraph 15, inter alia:-
“15. In WK v SR (1997) FLC 92-787; 22 Fam LR 592 the Full Court (Baker, Kay and Morgan JJ) examined the application of the principles set out in M and M to a situation where the trial judge had found that the father had sexually molested both his step-daughter and his own daughter. The Full Court said at FLC at 84,691, 84, 694-84, 695; Fam LR at 599, 602-603:
‘26. However, the evidence of ZH was in fact the core evidence relied upon by his Honour in order to substantiate the allegations of abuse against the father. Given the gravity of the allegations raised by the evidence, and the Court’s duty to apply a rigorous civil standard of proof pursuant to the test enunciated by the High Court in Briginshaw (supra) and restated in s.140 of the Evidence Act 1995 (Cth), her evidence needed to be very carefully evaluated.
…
46. It is clear therefore, that a finding that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw. Section 140 of the Evidence Act 1995 (Cth) has adopted this test as follows:
‘140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.’
47. In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s.140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
48. This is a matter which must be specifically borne in mind by a Court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this Part, the Court’s paramount consideration must be the best interests of the child, in accordance with s.65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Furthermore, when deciding what orders are in the best interests of a child, a trial Judge may often be confronted with a multiplicity of issues and facts. In these circumstances, evidence which, for example, is relevant and probative in relation to the question of an unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred.”
The Full Court in Re W (supra) went further, stating at paragraph 18:
“18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.”
In Nikolakis & Nikolakis [2010] FamCAFC 52 the Full Court at paragraph 89 approved the observation by Carmody J in Murphy & Murphy [2007] FamCA 795 in relation to evidence sufficient to meet the “requisite standard”. At paragraph 205 in the Murphy decision Carmody J stated, inter alia:
“What is clear however, without the alleged victims giving direct evidence, the forensic investigation of the sexual abuse issue may well be inadequate, and the evidence insufficiently exact, definite or precise enough to meet the requisite standard. Without any independent source of substantiation or corroborative confirmation of the alleged abuse, secondary evidence of untested disclosures of alleged child victims, will rarely satisfy the court on the balance of probabilities of anything …”
First Allegation:
Alleged Bruising to [Y]’s Mons Pubis – May 2008
The mother filed an affidavit on 21 May 2008. In that affidavit I note that the mother did not make any reference to the alleged bruising of the child’s mons pubis. On 17 June 2008 the mother filed another affidavit. In that subsequent affidavit the mother stated, inter alia:
“[Y] – Bruise.
17. I am gravely concerned for the welfare and safety of both [X] and [Y] whilst in Mr Edward’s care.
18. On 4 May 2008 I collected [Y] following a period of time spent. She had, at that time, been suffering from, what I considered to be severe nappy rash. On returning home and changing [Y]’s nappy, I noticed a distinct bruise on her mons pubis. I have sought from Mr Edward an explanation for the bruise. He has failed to provide one, simply saying words to the effect that I should bring the matter up in court. I have photographed the bruise and can produce the photograph if necessary. A true copy of the photograph taken by me that day is annexed hereto and marked with the letters “AH-2”.”
The mother photographed the bruise and annexed the photograph to that affidavit. It is Annexure AH2.
Under cross-examination by Mr Burridge of Counsel on behalf of the father on 7 October 2010, the mother stated, inter alia as follows:
“Mr Burridge: Now, the allegation in relation to the bruise, you say, it occurs prior to the events on 10 May. Do you accept that?
Ms Harke: No. Could you please use years because I’m---
Mr Burridge: 2008?
Ms Harke: 2008.
Mr Burridge: For the moment, we’re going to confine ourselves to 2008?
Ms Harke: So, just to clarify what you’re asking me, you’re asking me that the bruise – did I say that that occurred.
Mr Burridge: You discovered the bruise.
His Honour: The bruise on [Y][2], was it?
[2] It is noted that the Transcript refers to the child [Y] as “[Y]”.
Mr Burridge: On [Y] -
His Honour: Right.
Mr Burridge: Prior to hearing what you say [X][3] said on 10 May 2008?
[3] It is noted that the Transcript refers to the child [X] as “[X]”.
Ms Harke: Yes, because it was at [X]’s birthday.
Mr Burridge: At [X]’s birthday?
Ms Harke: Which was the [date omitted], so it would have had to have been prior.
Mr Burridge: Did you raise the question of the bruise with the police when you saw the police on 10 May 2008?
Ms Harke: I’m unsure. I don’t---
Mr Burridge: At any stage, did you raise the issue of the bruise?
Ms Harke: I raised the issue of the bruise with Mr Edward.
Mr Burridge: All right. So you don’t refer to it in your affidavit of 16 May 2008 though, do you?
Ms Harke: I – can I view it?
Mr Burridge: Yes, by all means?
Ms Harke: I don’t know. I have my own copies.
Mr Burridge: No, I’ll hand you a copy. I’ll ask you just to ignore the handwritten notations?
Ms Harke: Of course.
Mr Burridge: Do you have an amended affidavit filed shortly after this one?
Ms Harke: I have a further affidavit filed 17 June. In any event, but when the time ‑ ‑ ‑?‑‑‑Which this ‑ ‑ ‑
Mr Burridge: Just listen to my question, please, ma’am?
Ms Harke: I’m going to answer it if you give me a chance.
His Honour: Just wait for the question, Mr Burridge will clarify the question. Thanks, Mr Burridge.
Mr Burridge: When you came to swear that document, you had made no reference in that document to the bruising on [Y]’s mons pubis?
Ms Harke: That’s ‑ ‑ ‑
Mr Burridge: That’s correct, isn’t it?
Ms Harke: That’s correct, because this document was prepared by Byrne Legal Group and they advised me that it was not to be put in. Then when the next affidavit was filed, Mr Cooper advised that it was of importance and that it needed to go in that affidavit which then he filed the form for at that same time.
Mr Burridge: If you just answer my questions, rather than provide explanations that you feel you want to, this will go a lot quicker. Now, when you discovered the bruise, you took a photograph, didn’t you?
Ms Harke: That’s correct.
Mr Burridge: Yes. Your Honour, I understand that was tendered for the course of the interim proceedings in around September 2008.
His Honour: Okay, we’ll see if we can find that. Just bear with us now while we get that before you go on.
Ms Harke: I have a copy of it.
Mr Burridge: It’s a colour photograph, as I understand it. It may well be part of – I am reminded, your Honour, that the actual colour photograph might form part of the exhibit to the affidavit filed the 17 June ’08.
His Honour: Yes. AH2, it looks like. Like a red mark. Is that it? Do you have that, Mr Burridge, in front of you?
Mr Burridge: No, I’d like to see the colour.
His Honour: Yes, I see. Just show this to Mr Burridge. You might show it to the mother first, make sure it’s ‑ ‑ ‑
Ms Harke: I have seen it. Thank you.
Mr Burridge: While that’s coming, when did you take that photograph?
Ms Harke: When I discovered that she had it.
Mr Burridge: So almost immediately?
Ms Harke: When I was in the comfort of my own home, yes.
Mr Burridge: Yes. Your Honour, there may well be another tendered exhibit, according to my instructors.
His Honour: Yes, my associate will have a look for that.
Mr Burridge: You didn’t take the child to the doctor, did you?
Ms Harke: No, I did not.
Mr Burridge: Why not?
Ms Harke: I didn’t think that there was a need to take her to the doctor for a bruise and I had been unwell at the time and I had a chest infection and I didn’t take her to the doctor.
Mr Burridge: I’m sorry, who had the chest infection?
Ms Harke: Me.
Mr Burridge: Well, you thought it was important enough to take a photograph. Why did you take the photograph?
Ms Harke: Because it was – it was something very abnormal to open up your child’s nappy, to change their nappy and see it on there and I took a photograph. I then asked Mr Edward as well, because it was of concern.
Mr Burridge: I see. Why – you could have asked Mr S. to assist you in getting [Y] to the doctor, couldn’t you?
Ms Harke: I didn’t actually have [Y] in my full care on that day, Mr Edward had allowed her to come to [X]’s birthday party, I had to return her after a couple of hours. She was not in my care.
Mr Burridge: Well, at some such good time when you were likely to have been well, couldn’t you have taken [Y] to see a doctor about a bruise that you felt sufficiently concerned about to take a photograph?
Ms Harke: When – as I said [Y] was not in my care, upon returning to me the bruise had healed over the couple of days. It hadn’t completely healed but it had healed somewhat. I fail to see what a doctor could have done, which is why – another reason.
Mr Burridge: Yes. Are you saying this bruise would have healed completely within a couple of days? This bruise here?
Ms Harke: Well, that’s not actually what it looks like because that photo has been blown up and it did start to heal because a bruise has a process of purple, green, yellow and it started to go yellow-ish which mean to me that it was healing.
Mr Burridge: Yes. Ms J., in her first report, asked you about that, didn’t she?
Ms Harke: Yes.
Mr Burridge: You don’t think that – in hindsight – you should have taken the child to see a doctor?
Ms Harke: I do agree, in hindsight, I should have.
Mr Burridge: Did you tell Ms J. that the child was too sick to take to the doctor?
Ms Harke: No, because that wasn’t the case.
Mr Burridge: So within a few days the bruise healed?
Ms Harke: Within a couple of days it had. It had gone a different colour, as I said.
Mr Burridge: And you were no longer concerned about it?
Ms Harke: Obviously I held concerns as to how it got there, but concerned in relation to whether or not it was affecting [Y]’s health and wellbeing, no, at that point.
Mr Burridge: Did you believe that it was a sign of sexual abuse by – of [Y]?
Ms Harke: I have absolutely no idea. I did not think that it was, no.
Mr Burridge: At what time – I’m sorry, which camera or what sort of device did you use to take the photo?
Ms Harke: A digital camera, I don’t know the pixels, I know it was a Canon.
Mr Burridge: Do you still have that camera?
Ms Harke: Yes, I do. It doesn’t work, I accidentally dropped it in the water at the beach. But yes, I do have that camera. I don’t use it, I haven’t used it in about two years, maybe less – I am not sure – a year.
Mr Burridge: Well, did you believe that the photograph revealed that [Y] was at risk, with the father?
Ms Harke: I – there is not one answer for that. Yes. Which is why I probably took the photo, but no, because when I asked
Mr Edward what it was caused by he told me that it had something to do with cream or because [Y] had had a rash at the time, he then responded that I needed to take it to the courts.Mr Burridge: [Y] did have a rash at the time, is that correct?
Ms Harke: Previous to that, she had a rash.
Mr Burridge: And there were ‑ ‑ ‑?
Ms Harke: But – sorry ‑ ‑ ‑
Mr Burridge: And you were administering cream to that region of the child’s body?
Ms Harke: Yes.
Mr Burridge: So his explanation was consistent with what you understood was the case?
Ms Harke: Quite possibly yes.
Mr Burridge: So why did you feel the need then to put it into an affidavit?
Ms Harke: As I stated, that was upon the legal instruction of Mr Cooper.
Mr Burridge: I see. And you say your previous lawyers told you not to worry about it?
Ms Harke: Yes.
Mr Burridge: Do you now, looking back on it, believe that it was a sign of abuse? From where you sit today?
Ms Harke: From where I sit today? I can’t answer that. I don’t know. I have never thought of it that way. As I said, the way that I thought of it was in respect to what Mr Edward had told me.”
Looking at annexure “AH-2” to the mother’s affidavit filed 17 June 2008 – there appears to be a red mark on the child’s mons pubis. It appears to be a rash. It does not appear to be a bruise. However, given that there was no medical evidence in relation to that particular issue, I am not in a position to make a finding one way or the other as to whether or not the photograph reveals a bruise or a rash or a combination of the two.
I note that both the mother and the father had been administering a cream to the child in respect of nappy rash.
I also note that the mother did not take the child to a doctor when she discovered what she has described as “a bruise”.
I note in particular the mother’s evidence at page 29 lines 29 and 30 (of the Transcript) where there was the following exchange between
Mr Burridge and the mother:
“Mr Burridge: Did you believe that it was a sign of sexual abuse by – of [Y]?
Ms Harke: I have absolutely no idea. I did not think that it was, no.”
I accept the mother’s evidence that she did not think that it was a sign of sexual abuse.
Counsel for the father returned to that question at page 30 of the Transcript between lines 10 and 15 where the following exchange occurred:
“Mr Burridge: Do you now, looking back on it, believe that it was a sign of abuse? From where you sit today?
Ms Harke: From where I sit today? I can’t answer that. I don’t know. I have never thought of it that way. As I said, the way that I thought of it was in respect to what Mr Edward had told me.”
It is apparent from the evidence that the mother had never considered this “bruise” or “red mark” as a sign of abuse of the child by the father. I accept the mother’s evidence that she included the evidence concerning this “bruise” in her affidavit filed 17 June 2008 on the advice of her then lawyer.
The father was cross-examined concerning this issue by Ms Lyons, Counsel on behalf of the Independent Children’s Lawyer. From page 182 of the Transcript (4 February 2011) the evidence of the father was as follows:
“Ms Lyons: Now, you’ve touched earlier on the sexual abuse allegations and I by no means mean to labour those points. However, it’s your evidence, isn’t it, that you’ve never inappropriately touched [X]?
Mr Edward: Never. No child. [X], [Y], or any other child alive or dead.
Ms Lyons: All right. And in relation to the bruise on [Y]’s mons pubis as alleged by the mother, did you ever see that bruise?
Mr Edward: I did, indeed.
Ms Lyons: When did you first see that bruise?
Mr Edward: When I picked [Y] up from a – [X]’s birthday party, I think. I think that’s what it was. And Ms Harke had informed me that she had a bruise, and that she – she gave me this special cream that I had to put on. And I put on that cream. It was not – it was different to our usual nappy cream, like I don’t know what it was, and ultimately yes, there was this big red – it didn’t look like a bruise. It more looked like a – just like a – like a welt, even. Like a burn, possibly, or a bad – a bad nappy rash. I never once – I never once thought it was a bruise, but there certainly was a big red mark.
Ms Lyons: You didn’t take any photos or anything of that ‑ ‑ ‑?
Mr Edward: I didn’t take any photos. The mother already knew about it.
Ms Lyons: Yes. And that – the first time you knew about it was when you picked up the child from the mother’s care?
Mr Edward: Correct. And I ‑ ‑ ‑
His Honour: It was because the mother told you at that point?
Mr Edward: Yes, sir.
His Honour: Did she call it a bruise?
Mr Edward: She just called it a rash.
His Honour: Rash. When did it – who brought the word “bruise” into all this, then?
Mr Edward: I couldn’t tell you, sir. But ultimately, my instructions, which are always many when I get [Y] from the mother: she’s got nappy rash, you’ve got to use this cream, which was a different cream to what we usually have. And as I do, which she will doubt, I do what she said, and I ‑ ‑ ‑
His Honour: And – sorry to interrupt you, but when you put the cream on that the mother had given you, do you say that the rash worsened?
Mr Edward: Correct.
His Honour: It got worse?
Mr Edward: Yes.
His Honour: What, brighter red or something?
Mr Edward: Yes.
His Honour: I see. Keep going, Ms Lyons.
Ms Lyons: So you applied the cream that you were given?
Mr Edward: Yes.
Ms Lyons: How long did you have [Y] in your care at that time for?
Mr Edward: I think it might have just been that night.
Ms Lyons: Right?
Mr Edward: But again, I don’t remember exactly. But I’m sure it was only like the one night.
Ms Lyons: And then there was a handover to the mother?
Mr Edward: Yes.
Ms Lyons: And did you see that bruise, or nappy rash in your words?
Mr Edward: I saw it, yes.
Ms Lyons: Did you see it again after you handed the child back?
Mr Edward: No. No.”
I accept the father’s evidence in relation to this issue.
I had the opportunity to observe the father in the witness box. I consider the father to be a truthful witness. I accept the father’s evidence that he has never inappropriately touched … “[X], [Y], or any other child alive or dead”.
Conclusion in relation to the “bruise” or “red mark” appearance on [Y]’s mons pubis in May 2008
Having had the opportunity of considering the evidence and observing the mother and the father in the witness box, I am able to draw conclusions from that evidence.
I find on the balance of probabilities that it is more likely than not that the child was suffering from nappy rash.
I find as a fact that nothing untoward actually happened, noting the observations of the Full Court in Re W (supra). I find as a fact that no abuse has occurred.
I find as a fact that the father did not perpetrate any abuse upon the child.
I find as a fact that the father was not in any way responsible for the red marks appearing on the child’s mons pubis as evidenced by annexure AH2 to the affidavit of the mother filed 17 June 2008.
I find as a fact that the appearance on the child’s mons pubis of the “bruise” or “red mark” (however described) did not occur as the result of any abuse perpetrated upon the child by any person.
Further, I find as a fact that the mother was not in any way responsible for the appearance on the child of the “bruise” or “red mark”.
Second Allegation:
Alleged Disclosure by [X] to the mother on 10 May 2008
The mother’s affidavit filed 21 May 2008 includes the following evidence:
“Sexual Abuse of [X]
7. On Saturday 10th May2008 [X] informed me that, at some time in the past, the Respondent has touched her genitals.
8. Upon receiving this information from [X], I immediately made a complaint to the Queensland Police Service.
9. The matter is currently being investigated by Ms S. from [M] Police Station.
10. With [Y] being only a little over one and a half years of age, I respectfully request that time spent as between [Y] and the Respondent be suspended.”
Further, the mother, in her affidavit filed 17 June 2008 gave the following evidence:
“Disclosures made by [X]
19. On 10 May2008, [X] made comments to me disclosing that on one occasion when she attended for time spent with [Y], she became distressed and was crying, as she wanted to return home. Mr Edward (whom she refers to as “[Mr Edward]”) refused to allow her to go home. [X] disclosed to me that Mr Edward touched her, pointing to her back, shoulders and vagina. I asked her whether he had done this before. She responded saying, yes, and counted to 9. [X] also said to me that Mr Edward had told her it was ok to keep secrets. [X] then said that Mr Edward told her that we sometimes have to keep secrets to stop people getting into trouble. [X] did not say anything more at that time and I did not press her.
20. I subsequently contacted the [G] Police Station to make a complaint and arrangements were made for [X] to be interviewed by police. As a result of a relationship between a police officer at that station and Mr Edward, Ms S. of the [M] Police Station pursued the matter and subsequently interviewed [X]. I understand that Mr Edward was interviewed on 27 May 2008 and has denied the allegations. As far as I am aware, the investigations are ongoing.”
All of the subpoenaed material in this case was tendered as a bundle and is Exhibit 5. In response to a subpoena issued to the Queensland Police Service (documents received by the Court on 13 June 2008) there is included a document which is noted to be “in confidence”. The document is further headed “Occurrence Report”. The document states, inter alia:
“Involved person(s) (aggrieved, witness, suspect, other):
1) [Victim] HARKE, [X] [date of birth omitted] 2004 (4) F ([address omitted], QLD Australia (Region: [omitted]
2) [Suspect] Mr Edward, [date of birth omitted] 1974 (34) M ([address omitted], QLD Australia (Region: [omitted]
…
Modus operandi:
1) Location: Dwelling. Subtype: House. Victim age: Female child (under 10). Victim’s prior actions: At home. Victim injuries sustained: No injury. Relationship to offender: Other family member. Sexual acts: Touch genitals over clothing. Free text keywords; ON SATURDAY THE 10.05.2008 THE CHILD WAS HAVING A BATH WITH HER YOUNGER SIBLING WHEN SHE BEGAN TOUCHING THE YOUNGER SIBLING’S VAGINA. WHEN HER MOTHER CORRECTED THIS BEHAVIOUR AND ASKED HER WHY SHE DID IT THE CHILD DISCLOSED TO HER THAT [MR EDWARD] TOUCHES HER ON HER PRIVATE PARTS. CHILD HAS NO CONTACT WHATSOEVER WITH THE SUBJECT.
…”
The above quotation from the Occurrence Report appears on page 1 of 4 of that document.
On page 2 of 4 there is a heading, “General Occurrence Report”. On that page, it is stated, inter alia:
“Mother attended [M] police station and spoke to CPIU officers in relation to disclosures made by the victim. Mother states her four year old has disclosed to her on Saturday the 10.05.2008 that Mr Edward, being the subject used to touch her on her private parts when she used to stay at his house. No further information was obtained from her in relation to these disclosures and child to be interviewed by police in regards to these allegations.”
Pages 3 and 4 in that group of documents are headed, “Supplementary Occurrence Report”. On those pages it is stated in the text of the document:
“On Monday the 12th May 2008 Ms Harke attended [M] CPIU office with her 4 year old daughter, [X] [date of birth omitted] 2004. Ms Harke stated that her daughter had been in the bath with her younger sibling, [Y] when [X] was seen to put her foot out and poke her sibling in her vagina with her toes. The mother states she got both children out of the bath as she was horrified at this behaviour and spoke to [X]. She stated that she asked [X] why she had done this to [Y]. Mother states [X] stated that “[Mr Edward] touched my private parts”.
A 93a interview was conducted with the child during which she spoke about [Mr Edward], who is her mother’s ex partner. [Mr Edward] treated [X] as his own child and had a father daughter relationship with the child. During the interview with [X] she stated that [Mr Edward] was a bad man and when questioned about this referred to custody issues between Mr Edward and Ms Harke. She kept repeating that “[Mr Edward] wants to take me away from mummy”. During the interview the child spoke about staying at [Mr Edward]’s house and sleeping in a Dora tent however made no disclosures in relation to being touched by [Mr Edward] on her private parts as stated by the child’s mother. The child was asked if Mr Edward had touched her on her private parts to which she replied “No”.
On 12/5/08 Ms Harke supplied police with digital photos of the children which she stated Mr Edward had taken of the children in the bath. She further stated that these photographs had caused her concern and suspicion. Police have viewed these photographs and deemed them to be photographs taken within the realm of a parent child relationship and not of concern to police.
On 27 May 2008 Mr Edward, the subject of this file, attended [M] Police Station voluntarily and spoke to police regarding the allegation. He was advised of the allegation and denies this allegation. He advised police of the lengthy Family Law Court History and ongoing custody battles between Ms Harke and himself. With regard to the photographs he stated that the photographs in the bath were taken by Ms Harke and not by himself.
He confirmed that [X] has not had contact with him since late 2007 and he has no reason for contact with the child in the future however [X] is the half sister of his daughter [Y].
On Monday 2 June 2008 police attended [address omitted] and returned a number of computer discs and a USB memory stick containing photographs to Ms Harke. She was advised that this complaint has been unsubstantiated. She expressed concern that her daughter [Y] still has contact with her father
Mr Edward and she is of the belief that Mr Edward has interfered with [X] despite nil disclosures being made by [X] during her interview with the police.Ms Harke also voiced concern that when [Y] is in Mr Edward’s custody she is being put in the company of Mr Edward’s father, Mr E. who she states is a paedophile.
Checks reveal that Mr E. has been convicted of child sex offences. When speaking to Mr Edward police inquired as to the contact [Y] is having with her grandfather. Mr Edward stated that she does not have any contact with him.
A Notification has been completed and attached. This notification was emailed to the Intake Officer at [G] Dept. of Child Safety for their information only 7/6/08.”
Under cross-examination the following evidence was given by the mother:-
“Mr Burridge: Now, you have seen your affidavit, which I think is still there and I wonder if, Madam Associate, I could have that back – in your affidavit on 16 May you do make reference to events on the 10 May 2008. Do you see that there now? Now that you have had a look? At paragraph 7, you say this:
On Saturday 10 May, [X] informed me that at some time in the past, the respondent had touched her genitals.
Ms Harke: That’s correct.
Mr Burridge: Where were you at the time that occurred?
Ms Harke: At Ms H’s house, the lady that sits in the back of the court room at this time.
Mr Burridge: I see. And what were you doing at that time?
Ms Harke: What was I doing? Probably drinking and – no. I had gone around there for dinner and drinks, as I can recall. There could have been drugs taken. That was always the case at Ms H.’s house, so that’s – I mean, it was the weekend when I would go out.
Mr Burridge: And [X] was present?
Ms Harke: No. [X] was with Mr Edward.
Mr Burridge: All right. Well, when [X] came to tell you on Saturday 10 May, when you were around at your friends’ place having drinks?
Ms Harke: No. I was not there then. I thought you were saying on the night that it happened. Sorry, my apologies.
Mr Burridge: All right. So did [X] inform you on the night of the 10th, or not?
Ms Harke: Yes, she did inform me on the night of the 10th.
Mr Burridge: Where were you at that stage?
Ms Harke: At that stage, I was at home, looking after my children.
Mr Burridge: All right. And what were you doing?
Ms Harke: I was bathing her.
Mr Burridge: All right. You’re saying you were looking after your children. Was .[Y] also present?
Ms Harke: [Y] was present. She was watching TV with Mr S.. Prior, she was in the bath with [X], because I used to be able to bathe my children together.
Mr Burridge: What do you mean by that?
Ms Harke: Prior to this occurrence on the 10th, I was able to bathe my children together as normal siblings do. But because of the events that unfolded on that evening which led to [X] informing me of what had happened, that was no longer the case.
Mr Burridge: Well, what was the context of any conversation you might have been having at the time? What were you and [X] talking about?
Ms Harke: We went – do you want me to start from the beginning? Is that what you’re asking?
Mr Burridge: Just the immediate context will be fine, Ms ‑ ‑ ‑?
Ms Harke: Because well, it wasn’t words to start off with. She was doing something. I asked her why she was doing that, and she went on to tell me that it had been shown to her, and then went on to tell me that Mr Edward had touched her inappropriately.
Mr Burridge: Were they her words?
Ms Harke: I can’t say they were exactly her words. That’s why I asked. Do you want me to sit here and tell you the entire story, word for word what happened? I will.
Mr Burridge: I want you to focus on the words that the child you say used to convey whatever it conveyed to you, such that you contacted the police almost immediately following?
Ms Harke: Well, I’d asked her, who had touched her.
Mr Burridge: What made you ask her first that someone had touched her?
Ms Harke: Because she displayed sexualised behaviour by rubbing her foot on her sister’s vagina in the bath underneath bubbles. A three year old child just doesn’t do that. It’s not normal.
Mr Burridge: Not even by accident, you say?
Ms Harke: It wasn’t by accident.
Mr Burridge: How can you be so sure that it wasn’t an accident?
Ms Harke: Because it was happening for longer than it to be an accident. And when I asked her, she told me that Mr Edward had told her to do it.
Mr Burridge: What did you ask her?
Ms Harke: I asked her where she learnt that.
Mr Burridge: What made you think she’d learnt it anywhere? Why couldn’t it just have been mere four year old playfulness?
Ms Harke: Because I don’t dictate that in any way, shape or form, acceptable four year old playfulness.
Mr Burridge: You don’t dictate?
Ms Harke: I don’t – I don’t – that’s not normal four year old play.
Mr Burridge: Why couldn’t it be normal play as a matter of accident, when they’re both sitting in the one bath, which is not ‑ ‑ ‑?
Ms Harke: It would have been an accident if it had happened as a brush past, but seeing it for as long – it went on for a – you know, longer than what it would have, had it have been an accident of brushing past.
Mr Burridge: How long did you notice it for?
Ms Harke: I didn’t time it. Maybe five, ten seconds?
Mr Burridge: Why didn’t you simply tell her to stop?
Ms Harke: I did. I then removed ‑ ‑ ‑
Mr Burridge: That’s not what you say. You say you asked her who taught her that?
Ms Harke: You asked me the context, the context of her speaking did not happen until [Y] was removed from the bath and taken from the bathroom. Nothing was said prior.
Mr Burridge: All right. So you saw [X] playing with [Y]’s genital area. Is that correct?
Ms Harke: Correct.
Mr Burridge: Under the bubbles?
Ms Harke: Correct.
Mr Burridge: And you saw it for about five seconds?
Ms Harke: Alleged five seconds. As I said, I didn’t time it. I don’t know.
Mr Burridge: Well, long enough to raise your concerns?
Ms Harke: Correct.
Mr Burridge: Why didn’t you simply say at that stage, “Stop it”?
Ms Harke: I did. I then had – I removed [Y] from the bath.
Mr Burridge: And did she stop it?
Ms Harke: Yes, of course she did.
Mr Burridge: All right. And once she had stopped it, was she distressed?
Ms Harke: I wouldn’t say she was distressed, no.
Mr Burridge: And you believe that the behaviour was sexualised?
Ms Harke: Yes, I do.
Mr Burridge: Why do you say that is sexualised?
Ms Harke: As I just said, a four year old child does not behave in that way. They don’t know things like that. That’s learned behaviour.
Mr Burridge: All right. And you then got both children out of the bath, is that ‑ ‑ ‑?
Ms Harke: No.
Mr Burridge: Which child did you get out of the bath first?
Ms Harke: I removed [Y]. [Y]. I removed [Y]. Yes.
Mr Burridge: And then what did you do?
Ms Harke: I was talking to my daughter.
Mr Burridge: Well, what happened to [Y] once you got her out of the bath?
Ms Harke: Well, she was dressed, put in her pyjamas and continued to watch TV with Mr S..
Mr Burridge: By you or by Mr S.? Who dried, dressed her and put her in pyjamas?
Ms Harke: Me. No, Mr S. did, sorry. Because I was in the bathroom with [X].
Mr Burridge: All right. Now, you say you then asked [Y] what?
Ms Harke: No, [X].
Mr Burridge: [X], I beg your pardon?
Ms Harke: That’s okay.
Mr Burridge: Yes. You then asked [X] a question?
Ms Harke: Correct.
Mr Burridge: Is that the first time you had spoken to her about what you had observed?
Ms Harke: On that particular occurrence?
Mr Burridge: Of that occurrence?
Ms Harke: Yes.
Mr Burridge: You hadn’t spoken to her at all about anything prior to when you asked her where she learnt that?
Ms Harke: You’re talking about that evening, prior to that evening? No.
Mr Burridge: No. But other than to tell her to stop it while she was in the bath, you made no further reference to what had occurred?
Ms Harke: No, until [Y] was removed from ‑ ‑ ‑
Mr Burridge: All right. And then after [Y] had been removed, what did you do then?
Ms Harke: I asked [X] if she could explain to me what she was doing.
Mr Burridge: And was she – what was the duration of time between getting [Y] out of the bath, wrapping her in a towel, calling, presumably, Mr S. to come and get her, and the time when you then asked [X] that question?
Ms Harke: Well, it was all pretty much instantly that – snowball effect of, you know, telling her to stop it, getting [Y] out, wrapping a towel around her, having Mr S. come, I don’t know. One, two minutes? I don’t know exactly how long it took.
Mr Burridge: I see. And then after you – and what was the question you asked her, again?
Ms Harke: I asked her if she could tell me what she was doing.
Mr Burridge: Did she know what you were talking about?
Ms Harke: She did.
Mr Burridge: Why? How can you be so certain?
Ms Harke: I suppose I can’t be certain.
Mr Burridge: All right. So you’re not certain that she knew what you were talking about?
Ms Harke: Well, from the way she answered me, she knew what she was talking about. But no, I cannot be certain that she knew.
Mr Burridge: All right. So you say you asked her ‑ ‑ ‑?
Ms Harke: I said, “Could you explain to me what you were,” I said, “What were you just doing to [Y]?”
Mr Burridge: And what did she say?
Ms Harke: She said that she was rubbing her foot on her bottom.
Mr Burridge: Yes, and what – then, what?
Ms Harke: I asked her why. She said she didn’t know. She, then, said that it’s a secret and, then, as I recall, forgive me if it’s shady. I’m sure you have the police records there, but she then went on to tell me that Mr Edward had shown her to do it.
Mr Burridge: What do you mean she went on to tell you?
Ms Harke: Well, I wasn’t talking, she was talking.
Mr Burridge: What were her words?
Ms Harke: Her words? Her words were that Mr Edward had taught her to do it in - and I asked – in his house – and I’d asked her then, I asked her, “Has he touched you before”? She ‑ ‑ ‑
Mr Burridge: Sorry, one step at a time here. The child tells you that Mr Edward showed her how to do it?
Ms Harke: Correct.
Mr Burridge: Yes. And what did you say then?
Ms Harke: I asked her, then, had Mr Edward touched her before.
Mr Burridge: Did you not ask when it occurred?
Ms Harke: I’m unsure.
Mr Burridge: Had you noticed any of that conduct demonstrated by [X] prior to that time?
Ms Harke: Sorry, can you ‑ ‑ ‑
Mr Burridge: Had you noticed [X] demonstrate any such conduct prior to the events on 10 May 2008?
Ms Harke: I had noticed a change in her behaviour but it was hard to establish whether or not that was through a lot of changes that had – I don’t know. So no, no.
Mr Burridge: Let me rephrase that question. No. You hadn’t noticed her doing anything like that in ‑ ‑ ‑?
Ms Harke: No.
Mr Burridge: ‑ ‑ ‑ in the bath to [Y] or to herself?
Ms Harke: No. No. No.
Mr Burridge: And, in fact, the father hadn’t seen [X] since around about October the previous year – hadn’t spent any time with [X] since that time. Isn’t that correct?
Ms Harke: Yes.
Mr Burridge: So are you saying that you believe that when [X] told you that she was doing a thing to her sister which you had never noticed her doing before and, no doubt, she’d had plenty of baths with her sister before that time, that she was reflecting on what the father, supposedly, showed her some time prior to October the previous year. Is that your evidence?
Ms Harke: Yes.
Mr Burridge: Does it seem very strange to you that such an extended period of time would elapse between when the father last had the possible opportunity to do such a thing and when you first noticed that behaviour?
Ms Harke: No.
Mr Burridge: Why not?
Ms Harke: Because the story that [X] recalls, which she actually discussed with Ms J., occurred and occurred just before October and she has a vivid memory of that occurring.
Mr Burridge: I’m sorry. Are you saying that [X] raised this very question ‑ ‑ ‑?
Ms Harke: Night – she raised the night. She didn’t tell her about the abuse but the exact night was the same night that
Mr Edward had abused me in his house and that is the night that it happened.Mr Burridge: How do you know that? How do you know which night the father, supposedly, did this sort of thing to [X]?
Ms Harke: Because [X] has told me.
Mr Burridge: When did she tell you that?
Ms Harke: The night in the bath on the 10th and has continually told me about that night.
Mr Burridge: Did you inform the police that [X] had identified the time when it had occurred?
Ms Harke: Yes, I did.
Mr Burridge: Are you sure about that?
Ms Harke: Yes, I am.
Associate: Excuse me, your Honour.
His Honour: Yes.
Mr Burridge: Are you saying that you’ve seen that, in the police records, that you told ‑ ‑ ‑
His Honour: Just bear with us, Mr Burridge, my associate is just telling me something about the exhibits. Just for the record, the exhibit that you were looking for earlier, apparently, we can’t find any other photograph that may ‑ ‑ ‑
Mr Burridge: Thank you, your Honour.
His Honour: But we’ll have a more extensive look a bit later. Please continue.
Mr Burridge: Yes.
His Honour: Listen to the question.
Mr Burridge: Yes. Are you saying you told the police or you’ve seen it in their records?
Ms Harke: No, I told the police.
Mr Burridge: Yes. Are you saying that you told the police when you thought that [X] had told you when it occurred and it was some time prior to October 2007?
Ms Harke: The night in – yes.
Mr Burridge: And the police – and what did the police say when you told them that?
Ms Harke: I assumed they took the notes. They didn’t – they were just sitting there writing down as I was talking to them.
Mr Burridge: Yes. Now, at that stage, [X] would have been barely three years of age – three and a bit years of age – some time prior to October 2007?
Ms Harke: She was three and a half – just under three and a half. Yes.
Mr Burridge: And, essentially, at separation, [X] and [Y], initially, went to spend time with her father?
Ms Harke: Yes.”
There are a number of matters which arise in relation to this evidence. I note:-
a)when the child [X] was interviewed by the police on 12 May 2008 she made no disclosures to the police in relation to being touched by the father on her private parts. The police specifically asked the child if the father had touched her on her private parts. The child replied, “No”;
b)when the child was interviewed by Ms J. for the purposes of the family report the child made no disclosure to Ms J. of any inappropriate touching by the father;
c)the child never made any disclosure to the mother’s new partner, Mr S.;
d)the mother had never noticed this type of behaviour by the child [X] prior to the occasion the mother described in the evidence. [X] had been in the mother’s full time care for at least seven months leading up to the time the mother observed the behaviour in question;
e)the child [X] had not seen the father (Mr Edward) for at least seven months prior to the time the mother observed the behaviour referred to in the evidence;
f)the child [X] was worried that the father (Mr Edward) was going to take her away from her mother. The child expressed this fear to the police in the interview conducted on 12 May 2008. The mother must have told [X] that this was the case;
g)the mother’s evidence in relation to the incident is unsatisfactory. I note:
i)the mother’s first reference to the incident appears in paragraph 7 of her Affidavit filed 21 May 2008. That paragraph appears under a bold type heading, “Sexual Abuse of [X]”. The paragraph reads –
“7. On Saturday 10 May 2008 [X] informed me that, sometime in the past, the respondent has touched her genitals.”
ii)The mother was represented by Byrne Legal Group when the Affidavit (filed 21 May 2008) was prepared;
iii)less than one month later the mother had new lawyers. On this occasion an Affidavit was prepared on instructions from the mother by her new lawyers Barry & Nilsson. That evidence states that:-
“Disclosures made by [X]
19. On 10 May 2008, [X] made comments to me disclosing that on one occasion when she attended for time spent with [Y], she became distressed and was crying, as she wanted to return home.
Mr Edward (whom she refers to as “[Mr Edward]”) refused to allow her to go home. [X] disclosed to me that Mr Edward touched her, pointing to her back, shoulders and vagina. I asked her whether he had done this before. She responded saying, yes, and counted to nine. [X] also said to me that Mr Edward had told it was ok to keep secrets. [X] then said that Mr Edward told her that we sometimes have to keep secrets to stop people from getting in to trouble. [X] did not say anything more at that time and I did not press her.”iv)From paragraph 49 above the police have noted –
“On Saturday 10-5-2008 the child was having a bath with her younger sibling when she began touching the younger sibling’s vagina. When her mother corrected this behaviour and asked her why she did it the child disclosed to her that Mr Edward touches her on her private parts. Child has no contact whatsoever with the subject.”
This information (iv) must have been passed on by the mother to the police.
v)Information supplied by the mother to the police is different to the mother’s evidence. (Note page 31 of the Transcript (Thursday 7 October 2010) at line 34 the mother said, “and when I asked her, she told me that Mr Edward had told her to do it.”).
vi)There is no mention in the police records of the child motioning towards her, “back, shoulders and vagina”.
vii)I note page 52 of the Transcript between lines 10 and 15 where the mother gave evidence that the child [X] has made disclosures (concerning this issue relating to the allegation that the father had inappropriately touched [X]) to the mother, the maternal grandmother, the maternal grandfather, the mother’s fiancé and the mother’s sister.
viii)The mother’s fiancé, Mr S. specifically gave evidence at the trial that at no time had any disclosure been made to him by [X] (or [Y]) in relation to any allegation of sexual abuse or inappropriate touching by the father, Mr Edward. Furthermore the maternal grandmother and maternal grandfather both have sworn Affidavits filed in these proceedings the Affidavits were filed 25 August 2010. Neither Ms H (maternal grandmother) nor Mr H (maternal grandfather) made any reference whatsoever in their Affidavit material to any alleged disclosures made to them by [X]. There is no evidence from the mother’s sister.
Conclusion in Relation to the Alleged Disclosure made by [X] to the Mother on 10 May 2008
I had the chance to observe the father in the witness box. I accept the father’s evidence that he did not at any time inappropriately touch the child [X]. I find, on the balance of probabilities;
a)that the mother may have seen [X] rubbing, brushing or kicking with her foot in the area of [Y]’s vagina whilst the two young children were taking a bath;
b)that it was more likely than not that there was nothing inappropriate or untoward in such behaviour;
c)
it is more likely than not that the mother asked the child [X] a number of leading questions and elicited answers from which the mother concluded some inappropriate behaviour by the father
(Mr Edward);
d)the child [X] was already wary or scared of the father because the mother had told [X] that the father (Mr Edward) wanted to take [X] away from the mother. It would have been apparent to [X] that blaming the father or portraying the father as a bad person was something - which met with the mother’s approval.;
e)that the father did not at any time inappropriately touch the child [X].
Third Allegation:
Alleged Touching of [Y]’s Vagina around late December 2008
At page 54 of the transcript the mother gave the following evidence between lines 3 and 16;
“Mr Burridge; at this stage, Ms Harke says that [Y] told her when she was changing her nappy after a visit that her “step-father had touched her”. Do you recall saying that to …….?
Ms Harke: He’s not her step-father. He’s her biological father.
Mr Burridge: I didn’t ask you that. I asked you whether you recall saying that ……?
Ms Harke: No, that’s not correct the statement is not correct.
Mr Burridge: At paragraph 16 of Ms J.’s second report, that is the 09 report, she records you as saying;
“At this stage, Ms Harke told her while she was changing her nappy after a visit that her “step-father” had touched her.”
Mr Burridge: Do you recall saying that to Ms J.?
Ms Harke: Yes, beg your pardon. Yes, I do, sorry.”
The evidence continued from page 55 line 25;
“Mr Burridge: She would have been three and a half years at that point. Born in [2006], and we’re talking about – sorry, two and a half years?
Ms Harke: Yes.
Mr Burridge: I beg your pardon?
Ms Harke: She toilet trained later than my eldest daughter.
Mr Burridge: All right. And you noticed a rash?
Ms Harke: That’s correct.
Mr Burridge: What sort of rash was it?
Ms Harke: It was….
Mr Burridge: Was it what you call a nappy rash?
Ms Harke: I – there’s many different – no. In my opinion, it was not a normal nappy rash.
Mr Burridge: All right. Describe the rash, then?
Ms Harke: The rash was swollen, so it was raised about the skin. It covered the – sort of, outside of her – and on the inside she had it.
Mr Burridge: It was both internal and external, is that what you’re saying?
Ms Harke: Yes. And…
Mr Burridge: To what extent was it external?
Ms Harke: Sorry, I’m trying to remember the best way to describe it. It was…
Mr Burridge: Well, can I put it this way to you, ma’am?
Ms Harke: Yes, of course.
Mr Burridge: As a parent, when you see a rash on a child, you would have a fairly good look at it to work out what it’s all about, wouldn’t you?
Ms Harke: Correct. Yes, I did.
Mr Burridge: All right. So you saw a rash, and you saw it both externally and internally, you say?
Ms Harke: Well, I saw it on the – inside the folds of her. I thought it was red.
Mr Burridge: In her labia?
Ms Harke: Yes. I saw she was red, yes. She said – then she complained that she was sore, so I put Amolin cream on it.
Mr Burridge: All right. Okay. So did you put Amolin cream on it because you thought that was a nappy rash?
Ms Harke: Amolin is a barrier which, if the child urinates, it flows off it, therefore preventing the rash to get any further infection.
Mr Burridge: Well, I stand by the question I just asked?
Ms Harke: No.
Mr Burridge: You would usually use Amolin on a child who is subject to wetting her pants and Amolin provides a protection, and indeed, a cure. Would you agree with that?
Ms Harke: I use it as a protectant, so – and that’s as I know it. I can’t agree on something that I’m not privy to.
Mr Burridge: So did you put the Amolin on because you thought the child may have wet herself, and it was causing the irritation?
Ms Harke: I’m confused?
Mr Burridge: Well, you say you put Amolin on…?
Ms Harke: She can’t wet herself. She’s wearing a nappy, so wetting herself isn’t an option.
Mr Burridge: So did you put Amolin on to prevent the occurrence of the rash?
Ms Harke: In the event that she – well, in the event – to prevent it getting any worse. That’s exactly right.
Mr Burridge: So in your mind, did you believe, at that stage, that it was just a nappy rash?
Ms Harke: I don’t know.
Mr Burridge: All right. Was she walking at that time?
Ms Harke: Yes.
Mr Burridge: And what was her language development at that time? When, for instance, was she able to identify common objects?
Ms Harke: Yes.
Mr Burridge: Well, when did that occur in her development?
Ms Harke: One, if not earlier. She’s…..
Mr Burridge: All right. She was able to identify yourself?
Ms Harke: Yes.
Mr Burridge: And her stepfather Mr S.?
Ms Harke: Yes.
Mr Burridge: All right. And Mr Edward, or course?
Ms Harke: Yes, of course. He’s her father.
Mr Burridge: And your mother, and your father?
Ms Harke: Correct.
Mr Burridge: All right. So could identify the important people in her life?
Ms Harke: Correct.
Mr Burridge: Yes. She could identify, for instance, a nappy?
Ms Harke: Correct.
Mr Burridge: From one onwards?
Ms Harke: Sorry?
Mr Burridge: From one year onwards, you say?
Ms Harke: From maybe one and a half, but yes. She had an older sister to teach her.
Mr Burridge: Okay. So after you changed the nappy and you pick her up and put her back down on the ground, I take it, since she’s walking – is that right?
Ms Harke: Yes.
Mr Burridge: All right. What happened next?
Ms Harke: Well, I’d already spoken to her while I was changing her nappy, and……
Mr Burridge: What had you said while she was changing…?
Ms Harke: She was complaining that she was in pain, and she was sore. So I asked her why she was sore. What had happened for her to be sore, like what …..
Mr Burridge: But didn’t you see the rash? Wouldn’t that tell you why she was sore?
Ms Harke: Apparently so.
Mr Burridge: Well, I don’t want you to answer like that. When you saw the rash, that surely would have told why she was sore. Yes?
Ms Harke: Apparently so.”
On this particular topic the evidence then continued from page 59 line 20 where the following evidence is noted in the Transcript;
“Mr Burridge: Yes. Now going back to what we were talking about immediately prior to lunch, do you recall that your evidence was that you had noticed a rash on the genital area of [Y] around about – some time after December, or towards the end of December, I should say 2008. Do you agree with that?
Ms Harke: That’s correct.
Mr Burridge: And that you had – the rash was such that you had put cream on it as some sort of barrier, I think Amolin cream was your evidence?
Ms Harke: Yes.
Mr Burridge: And you said that you had asked the child why the child was sore, you recall so?
Ms Harke: Yes.
Mr Burridge: And I had asked you why you needed to do that, since you had seen the rash which would have told you why the child was sore. And your response was, when I asked you why you needed to ask such a question, “Apparently so”. Do you recall saying that?
Ms Harke: Yes.
Mr Burridge: You mean “Apparently so” – by that means yes? There was no reason for me to ask?
Ms Harke: [Y] was – I think – yes. The only thing that indicated that I should ask a question was because she was crying and saying that she was sore. It was more a question of how did she get the rash, or why she was sore?
Mr Burridge: I don’t recall you saying in your evidence that the child was crying?
Ms Harke: I said that just before.
Mr Burridge: All right?
Ms Harke: My apologies.
Mr Burridge: Now, you say you asked the child why it was sore?
Ms Harke: Yes.
Mr Burridge: And what did the child respond?
Ms Harke: She said she’d – that she’d been touched there by her father.
Mr Burridge: She had been – now, I want you to be very careful about that. Are you saying they are the words she used?
Ms Harke: Yes.
Mr Burridge: So you sit there in the witness box and you say to the court, that the words that [Y] used was that she told you she had been touched by her father?
Ms Harke: That’s correct.
Mr Burridge: What else did you – what did you say when the child said that?
Ms Harke: I asked her “When?”
Mr Burridge: You asked her “When.” And what did she say?
Ms Harke: That it had been when she was with him.
Mr Burridge: You see, I read out to you earlier at paragraph 16 of Ms J.’s second report, and you had agreed that you had told Ms J. that [Y] had told you while she was changing the nappy, after a visit, that her “stepfather” had touched her?
Ms Harke: That’s correct.
Mr Burridge: Well, which one is it? Her father, or her stepfather?
Ms Harke: She made mention, and you know this because you have it in front of you, that both did it. But you’re changing the questions and trying to confuse me, and I’m sick of playing your games. It’s ridiculous. Absolutely ridiculous.
His Honour: Well, listen to the question that..?
Ms Harke: I have been listening to the questions, your Honour, and they’re ridiculous.
His Honour: The question is, did [Y] say to you on this occasion, she’d been touched there by her father, or did [Y] say…?
Ms Harke: Both.
His Honour: Wait till I finish. Or did [Y] say she had been touched there by her stepfather? Which word did she use?
Ms Harke: Neither. She said “[Mr S.]” and then she went on to telling me that it was “[Mr Edward],” which is what she refers to Mr Edward as. Which is all in the documentation.
His Honour: Now, what was – [Mr S.], did you say?
Ms Harke: Which is what she calls Mr S..
His Honour: [Mr S.], as in?
Ms Harke: As in [omitted]. We don’t know why, it’s just what she chose to call him.
His Honour: I want you to say again now what word she used on that occasion?
Ms Harke: That she had been touched by [Mr S.], and I said to her “That’s impossible, because you’ve only just returned home, to my home. You’ve been with your father.” I said, “So who touched you?” And she said, “[Mr Edward].”
There was further cross examination of Ms Harke in relation to paragraph 16 of the report of Ms J. from 2009. That cross examination is noted in the Transcript from page 62 line 2 as follows:
“Mr Burridge: Now, can you turn up to paragraph 16. Now, I read that out to you?
Ms Harke: Yes.
Mr Burridge: Before the lunch break. Do you recall that?
Ms Harke: Yes.
Mr Burridge: Yes. And you agreed that you’d said that?
Ms Harke: Yes, that’s correct. Your questioning confused me, so my apologies.
Mr Burridge: Well, what, then, did the child say?
Ms Harke: Which is what I’ve just said to you, just previously, that initially she had said that Mr S. had touched her and, then, she’d said that her father so, “[Mr S.]” – had, and, then, when I asked her how that could be the case, because she hadn’t even seen Mr S.. She’d just got back from Mr Edward’s for the weekend. She, then, informed that, no, [Mr Edward] touched her. And that’s what she said.
Mr Burridge: And is that the sequencing of the questions you asked her on that occasion?
Ms Harke: Sorry.
Mr Burridge: Was that the sequencing of the questions that you had asked her on that occasion when she initially said, in response, why are you sore. Her response was that [Mr S.] touched me?
Ms Harke: Yes, that’s correct.
Mr Burridge: And did you not accept that?
Ms Harke: He hadn’t been anywhere near her. There was no way that….
Mr Burridge: But he was living in the same household as her, wasn’t he?
Ms Harke: However, she’d, like I said, just returned home. He hadn’t been anywhere near her. He hadn’t changed her – there had been no – there had no – been no opportunity for that to occur.
Mr Burridge: I see. But you didn’t know whether it had occurred at the time that the child then responded. You had no fix on the time, other than what you were assuming?
Ms Harke: I don’t understand.
Mr Burridge: Well, the child hadn’t said when it occurred, so you had no basis for challenging the child as to when she might have, on your questioning?
Ms Harke: Well, it was the assumption that it had occurred recently because she didn’t have a rash and wasn’t sore prior to going to Mr Edward’s home, so it was my assumption that it could only have occurred while she wasn’t in my care.
Mr Burridge: I see. And so she said initially “[Mr S.]” and, then, changed it when you challenged her to be “[Mr Edward]”?
Ms Harke: I disagree that I challenged her, but I, yes, she did change her mind.
Mr Burridge: And how do you explain what you said to Ms J.?
Ms Harke: In paragraph 16. Well if you include paragraph 16 and 17, it’s a story that’s been told. It’s not one thing and that’s why, in my opinion, the emphasis on this paragraph 16 – it’s a series; it’s a story; it’s not one occurrence. And page 16, yes, I said that to her.
Mr Burridge: The child, at no time, said it was “her stepfather”?
Ms Harke: No, she doesn’t call – she doesn’t say stepfather. She said “[Mr S.]”. Is that what you’re asking me?
Mr Burridge: No, I want you to go back to paragraph 16. You are recorded as telling Ms J. that [Y] had told you, while changing her nappy, that her “stepfather had touched her” and they were never the words that [Y] used. Were they?
Ms Harke: I don’t understand what you’re saying because – are you asking me whether or not she called him stepfather. Is that her words? Is that why you’re saying quote, unquote?
Mr Burridge: Yes?
Ms Harke: So did [Y] say “stepfather’. Is that your question to me?
Mr Burridge: Yes. Well, no. My question to…?
Ms Harke: She said “[Mr S.]”.
Mr Burridge: Just listen?
Ms Harke: I am listening.
Mr Burridge: My question to you is did you tell Ms J. that?
Ms Harke: That she said “stepfather”. Did I tell Ms J. that [Y] called him “stepfather”.
Mr Burridge: Yes?
Ms Harke: No, I said “[Mr S.].” That’s what she calls him.
Mr Burridge: I see. So that’s an error, from your point of view, in Ms J.’s report?
Ms Harke: There’s several, but, yes.
Mr Burridge: Now, you received that report around about July 2009, did you?
Ms Harke: Yes, that’s correct.
Mr Burridge: I don’t recall anywhere, in any of your material, any attempt to correct what you say is an error?
Ms Harke: And the legal advice that I had been given was that whatever was on paper would be worked out through cross-examination of the report writer and asked why, when things weren’t said, why they were said here. I didn’t know that you had to challenge the report writer.
Mr Burridge: But you could have provided – you’ve never provided an affidavit account of these events, have you?
Ms Harke: Yes, I have.
Mr Burridge: Well, when was that. The last affidavit you filed…?
Ms Harke: Yes, no, you’re right, apologies. Yes, you are correct.
Mr Burridge: Right?
Ms Harke: I haven’t provided an affidavit of this. No. The only record of this is this.
Mr Burridge: But, when you got that, you surely raised that with your lawyer?
Ms Harke: Yes, and as I said….
Mr Burridge: Because you’ve just given that evidence?
Ms Harke: And, as I said, he cross-examined – he advised that he would be cross-examining Ms J. in relation to this.”
The mother referred this particular incident to the Department of Child Safety and to the police. The Department of Child Safety notes that the mother had told the Department of Child Safety that the child had referred to, “the victim child’s mother’s fiancé”. The cross examination of this topic continues from page 72 line 36;
“Mr Burridge: And you understand that to mean Mr S., don’t you?
Ms Harke: Yes.
Mr Burridge: “Has not seen you all week,” but that’s not true, is it? He has seen her. He’s seen her after Christmas Day and, the, if there was weekend time between Christmas Day and weekend time – can I have a look at that calendar again. [Mr S.] had been present?
Ms Harke: [Mr S.] works full-time.
Mr Burridge: What, over Christmas?
Ms Harke: Yes, over Christmas. We run our own business, so he has to work. If he’s not at work, we don’t get paid.
Mr Burridge: And what about in the evenings?
Ms Harke: In the evenings, he’s home late and I care for the children.
Mr Burridge: I see. So you would never say, would you, that it could have related to [Mr S.]?
Ms Harke: The opportunity wasn’t there and that’s what I’ve said.
Mr Burridge: The victim child, then, said, “Daddy had touched her and that it was a secret.” Did you say that to the child safety officers on 5 January 2009?
Ms Harke: Not that it was a secret. She didn’t say to me that it was a secret but I told her that what she had told me.
Mr Burridge: Well, that’s not what you said earlier either. You said, initially, the child said it was [Mr S.] and you challenged her and then the child said it was [Mr Edward]?
Ms Harke: So what had that got to do with what you just asked me?
Mr Burridge: Well, listen to it again:
The victim child’s mother then said to the child, “Daddy blank,” who is the victim child’s mother’s fiance, “had not seen you all week.” The victim child then said, Daddy had touched her and that it was a secret.
Mr Burridge: That’s not what the evidence you gave to his Honour about 10 to 15 minutes ago?
Ms Harke: I know, and that’s what I said, that what you’re reading does not match the evidence that I have given.
Mr Burridge: All right. Are you saying that’s an error, as well?
Ms Harke: I don’t know. It’s – what was said in the context of what she said about Daddy – the only think(sic) that wasn’t the same was about something about a secret. And I don’t recall that every (sic) occurring.
Mr Burridge: I see?
Ms Harke: I don’t recall saying it. Do I recall that she’d said that is was Mr S. and then had said – well, I’d said to her, well, no there was no way it could have been, whatever. She said it was [Mr Edward].
Mr Burridge: I see. Now, you attended at the police station again on 12 January 2009?
Ms Harke: Correct.
Mr Burridge: At the [M] CPIU. You’re aware that the child made no disclosures on that day?
Ms Harke: Correct.
Mr Burridge: Do you accept the outcome of the police investigation?
Ms Harke: Yes, I do.
Mr Burridge: All right. Do you have any concerns about the police investigation?
Ms Harke: No, I do not.
Mr Burridge: Now the child was taken for a medical examination on 14 January 2009?
Ms Harke: Yes, she was.
Mr Burridge: Yes. At the [T] Child Protection Unit?
Ms Harke: Correct.
Mr Burridge: And they concluded that there was no evidence consistent of abuse. Do you agree with that?
Ms Harke: Yes.
Mr Burridge: And that no charges would be proceeded against either Mr S. or the father?
Ms Harke: Correct.
Mr Burridge: And you were informed of that around about 15 January 2009. Is that correct?
Ms Harke: I think, yes.
Mr Burridge: Yes. You were informed of that around that time and you’re recorded as saying in the police notes the following:
“Victim child’s mother has been notified of the outcome of this investigation who stated that she wished to clarify the disclosures made to her by the victim child, as she stated that such disclosures entered on the police report by the original reporting officer were slightly incorrect. To correct disclosures, mother said, “Who has touched you”? Victim child said, “It hurt. [Mr S.] hurt me.” Mother said, “[Mr S.] has not seen you all week.” Victim child said, “[Mr Edward] touched me and it’s a secret.”
Mr Burridge: Did you say that around about the 15th?
Ms Harke: I don’t recall saying that in whole. No, I’m sorry, I don’t.”
I note that the mother specifically queried the child when the child alleged that she had been touched by “[Mr S.]”. The mother did indeed challenge the child at that point. The mother pointed out to the child that what the child was saying was “impossible”. The mother also pointed out – “you have been with your father”.
The mother asked the child leading questions. The mother has suggested to the child, in my view, that the “touching” had been perpetrated by the father. It was the mother in that conversation with the child who specifically made reference to the father. After stating to this child, who was then aged two and a half years, that the child’s disclosure relating to “[Mr S.]” was “impossible.”
It is not surprising, having regard to the mother’s conversation with the two and a half year old child, that the child may well have then changed her allegation from an allegation that she had been touched by “[Mr S.]” to an allegation that she had been touched by “[Mr Edward].”
I note that the disclosures made by the child, [Y], were investigated by the police, the [T] Hospital and the Department of Child Safety. The allegations made against the father were not substantiated.
I find as a fact that the father did not inappropriately touch [Y].
I find as a fact that no abuse was perpetrated upon the child, [Y], by the father.
It is important to note, as I have stated earlier herein, that I had the opportunity to observe the father giving evidence in the witness box. The father denied ever having inappropriately touched the child, [Y]. I accept the father’s evidence in relation to this matter. I accept that the father has told the truth in relation to this matter.
Conclusion – Sexual Abuse
Earlier herein I have referred to the decision of the High Court in M v M (supra). The appropriate civil standard of proof was referred to specifically by the High Court in that case (and quoted above). The terms of s.140 of the Evidence Act 1995 (Cth) are also included above in the quotation taken from the decision of the Full Court of the Family Court of Australia in Re W (Sex abuse: Standard of Proof) (supra). Looking at the three separate sets of allegations made and for the reasons stated herein I have concluded that I am able to make a positive finding that the father has not perpetrated any abuse upon either [Y] or [X]. Furthermore, the father has not in any way abused either [Y] or [X].
Unacceptable Risk
In relation to the question of unacceptable risk, the High Court stated in M v M (supra) (and as noted earlier herein in these reasons) from paragraph 24:
“24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility"(B. v. B. (Acess) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
In a decision entitled Johnson & Page (2007) FLC 93-344, the Full Court of the Family Court made reference to an article written by the Honourable John Fogarty AM in the Australian Journal of Family Law where the then retired Fogarty J provided a summary of principles emerging from M v M. Those seven principles are as follows:
“1 The decisive issue is and always remains the best interests of that child.
All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.”
At paragraph 71 of the Full Court’s decision in Johnson & Page, the Full Court stated:
“We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).”
I will make specific reference to the relevant findings in considering this separate question of unacceptable risk.
Findings made by the Court in relation to the first allegation – alleged bruising to [Y]’s Mons Pubis – May 2008
a)I note the findings referred to in paragraphs 41, 42, 43, 44, 45 and 46 herein;
b)further, I specifically note the mother’s evidence that she did not think that it was a sign of sexual abuse (i.e. the red rash/bruise).
Findings made by the Court in relation to the second allegation – alleged disclosure by [X] to the mother on 10 May 2008
a)Concerning this allegation note in particular the matters raised specifically in paragraph 54 of these Reasons for Judgment. Also note the findings made in paragraph 55.
b)Taking all of those abovementioned matters into account and specifically reiterating that the child, [X], had not seen the father (Mr Edward) for seven months leading up to the time when the mother said this disclosure was made – I have formed the view that the combination of that evidence and the matters referred to in the abovementioned paragraphs, leads me to conclude that there is no unacceptable risk to the child [Y] (or, for that matter to the child [X]) posed by the father.
Findings made by the Court in relation to the third allegation – alleged touching of [Y]’s vagina around late December 2008
a)As to this allegation I note in particular the reasons and findings referred to in paragraphs 61, 62, 63, 64, 65, 66 and 67 herein.
b)Once again the reasons and findings referred to lead me to conclude that there is no unacceptable risk to the child from the father as a result of the third allegation.
As to the three sets of separate allegations. Having regard to the findings that I have identified above and the reasons stated, I have concluded that [Y] will not be exposed to an unacceptable risk of sexual abuse in the care of the father.
I had the distinct impression from this case that most if not all of the mother’s earlier stated concerns have disappeared. It seems to me that what might have occurred is that the mother was aware that the paternal grandfather is a convicted paedophile. It does seem to me that the mother did jump to conclusions (especially in relation to allegation number two) when there clearly was perfectly innocent explanations for what had occurred. Furthermore, the mother asked leading questions of very young children (this occurred in relation to the second allegation and the third allegation). Furthermore, the mother clearly had been talking to [X] about family law matters and had been portraying the father as a bad person. [X] at that stage was approximately four years of age. The mother’s complete lack of insight as to the inappropriateness of discussing family law issues with a four year old is nothing short of astounding. It does not reflect well upon the mother.
As noted, I have reached the conclusion that there is no unacceptable risk posed to the child [Y] by the father. Indeed I have also reached the conclusion that there is no unacceptable risk posed by the father to [X].
Further matters concerning best interests
I note that s.60CC(2) sets out the primary considerations in determining what is in the child’s best interests. Looking firstly at s.60CC(2)(a) – I have reached the conclusion that there will be benefits to [Y] in having a meaningful relationship with both the mother and the father in this case. The general thrust of the evidence from Ms J. is to the effect that she recommends [Y] lives with the father and spends alternate weekends with the mother (plus a one overnight in the alternate week). Based on Ms J.’s evidence and also based upon my impression of the mother and the father in the witness box I have reached the conclusion (as stated) that there will be benefits to [Y] of having a meaningful relationship with both parents.
Section 60CC(2)(b) includes, as a primary consideration, the need to protect children from harm. Noting the three separate sets of sexual abuse allegations that were made in this case and noting the findings and conclusions that I have made based upon the evidence – I have formed the view that both the mother and the father will protect the child from the harm contemplated by s.60CC(2)(b).
Section 60CC(3)(a) – Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
The child in this case is too young for any of her views to be taken into account.
Section 60CC(3)(b) – The nature of the relationship of the child with:-
each of the child’s parents; and
other persons (including any grandparent or other relative of the child).
It is apparent from the evidence of Ms J. (in particular contained in the latest report which is annexed to an Affidavit filed on 1 October 2010) that [Y] has a “free and spontaneous” relationship with all members of both the mother’s household and the father’s household. Ms J.’s conclusion (which I accept) is that [Y] “is a very loving, affectionate child”. [Y] clearly has a loving and affectionate relationship with both the mother and the father. There is also a close bond between [Y] and [X] as well as [Y] and [Z].
On the evidence available the child has a close relationship with maternal grandmother.
As to the paternal grandfather there will continue to be an Order that the child is not to be brought into contact with the paternal grandfather – because of his earlier convictions in relation to paedophilia. My view is also that there should continue to be an Order that the child [Y] is not brought into contact with her cousin, [K]. This is in view of an earlier incident involving [K].. [K] is the son of Ms K.. Ms K. is the father’s sister. In or about March or April 2008 the father’s child, [Z], confided in her mother (Ms L.). I note paragraphs 87 and 88 of the report of
Ms J. which is annexed to her Affidavit filed 9 September 2008. Ms J. there states:-“87. Ms L. said that [Z] had told her in about March or April this year how her cousin, [K], liked to play, ‘the massage game’. He would get her to rub his back, which she didn’t like. She does not know when this first happened, save to say that it was sometime during the last 12 months. [Z] also referred to how he had walked in on her several times while she was showering. She states that she sent an e-mail to Mr Edward immediately, telling him that this was inappropriate and requiring him to supervise the children whenever they were together.
88. She says that he responded by claiming that there wasn’t a problem because [Z] told him that she didn’t want to talk about it. She said, ‘He doesn’t understand that she doesn’t want to talk about it because she is uncomfortable and upset about it’.”
In the circumstances of this case – I have come to the conclusion that it is in the best interests of [Y] if she is not brought into contact with her cousin, [K].
My view in relation to the child not coming into contact with the paternal grandfather or with [K] is reinforced by the evidence of Dr M.. Dr M.’s report is annexed to her Affidavit of 28 November 2008. Dr M. states in the last paragraph:-
“Mr Edward did not exhibit any psychiatric disorder but appeared to exhibit considerable denial in relation to his response to his father’s conviction for sexual abuse of children. It is my belief that he exhibits a lack of psychological awareness as to the importance of protecting children from sexual abuse. I cannot comment on the allegations of his sexual abuse of [X] but feel that he minimises the abuse of [Z] by her cousin. His response to the information that his father has sexually abused children is overall to be protective of his father and angry with his father’s accusers. I feel in the circumstances there is an unacceptable risk to the children if there are not Court Orders to the effect that his children do not come into contact with the paternal grandfather or [K].”
I accept the father’s evidence that he has completely complied with the Court Orders concerning the paternal grandfather and [K] to date. I also accept that he will continue to comply with those Orders in the future. In those circumstances – I have concluded that the father will be vigilant in that regard.
Section 60CC(3)(c) – The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
In considering this particular sub section it is important to review the family reports. The first family report was prepared by Ms J. and is dated 22 August 2008. It is annexed to an affidavit filed 9 September 2008. The family report at that stage was prepared in relation to the “Edward/L./Harke” families. Ms J. was considering the parenting arrangements in relation to both [Y] and [Z]. Ms J. concluded that:-
“SUMMARY ASSESSMENT AND CONCLUSIONS
157) This matter is complex and it is beyond the scope of this Report to provide definitive conclusions about safety issues for the children.”
158) The paternal grandfather was convicted on several counts of child sexual assault several years ago and served time for this. He was released on parole in 2005. His parole conditions require him never to be in the company of children without other adults present.
“159) Mr Edward’s information about these assaults was scant and I note some discrepancies between his account and that of Ms Harke, in particular that the crimes were committed in the 1970s whereas she says that they took place in the 1990s.
160) Mr Edward only ever provided Ms Harke with minimal information about the nature of the issues and allegedly told her definitively that she was not to ask questions about this. I note that she willingly complied with this, acting with what must be seen as poor judgment in this regard, particularly as they had a baby together and were actively involved with the grandparents.
161) I assume that he also didn’t provide Ms L. with much information either. It is open to assumption however that, since she and Mr Edward were estranged at the time and the case attracted considerable publicity, she either trusted Mr Edward implicitly to safeguard [Z] or she too acted with poor judgment by never questioning what was happening. She asserts that she didn’t know that [Z] was staying with the grandparents without Mr Edward being present. Her assertion was not greatly compelling during this assessment.
162) I note that Mr Edward considered it was safe for the children to stay overnight with the grandparents because his mother was in the house. This of course is an unsatisfactory supervisory arrangement since she couldn’t be awake and watchful at all times. It is my view that Mr Edward has not grappled emotionally with the full implications of his father’s crimes.
163) While it is not suggested that the grandfather has sexually abused either of the children, it is nevertheless critical that the children are protected entirely from him.
164) Both mothers have always agreed to Mr Edward having care of the girls on an equal-time basis. Indeed Ms Harke relinquished [Y] into his care for three months in late 2007 because she was not coping personally.
165) Both mothers read the Anglican Report in early January this year and I am informed that it details Mr E. (Snr)’s crimes and circumstances. They were shocked and galvanized into taking protective stances for the first real time. They reacted as though in crisis; yet there was in fact no actual new crisis.
166) Ms Harke’s insistence that [Y] was not to come into contact with the paternal grandfather was reasonable and responsible, although the manner in which she went about it has been inflammatory and provocative.
167) I cannot comment upon why Ms L. suddenly decided to commence legal measures when the only given ‘trigger’ was a New Year’s Eve party that she regarded as negligent supervision of [Z]. Mr Edward is adamant about collusion between the two ladies for ulterior motives of extruding him from the children’s lives. I doubt if this is so, although it is undeniable that it actually became the end-result. I am confident however that the two ladies had extensive discussions about the situation and that each’s fervour has been fuelled by the other.
168) In April however, [Z] was sexually assaulted by her cousin while in Mr Edward’s care.
169) At face-value, Mr Edward’s explanation for why he didn’t anticipate anything going wrong was compelling; the children had played together like brother and sister since they were preschoolers. However more penetrating examination than I could conduct here might reveal a spectrum of other questions about [K]’s general behaviour and whether Mr Edward ought to have known that the boy might have adjustment problems. It is hard to imagine that he was, in all other respects, a well-balanced socially and emotionally competent lad. Even so, it still might have been an excessive expectation that he knew what was happening.
170) Virtually simultaneously three other events happen. Mr Edward is accused of breaching the March Court Order and bringing [Y] into contact with the grandfather, [Y] has an unexplained bruise in her genital region and [X] discloses that Mr Edward sexually abused her several months ago. The data to support these assertions appears slender. The first relies on [Z]’s say-so. The mother didn’t take [Y] to the doctor with the bruise and there is no data to say whether it was actually a bruise, or an adverse reaction to medication, or something else. Just in itself, the timing of [X]’s disclosures raises serious doubt about likely sexual abuse. Moreover the mother’s account of her conversations with [X] suggests the presence of leading questions.
171) In summary, there is no data available to this assessment to support the allegations that Mr Edward has sexually abused any children.
172) On the other hand, he has been insufficiently diligent in supervising his daughter’s sexual safety. There is a question over whether his judgment is impaired in this regard or whether, as I have said, this is the unfortunate set of circumstances that could befall any unsuspecting parent.
173) Ms L.’s concern about Mr Edward having [Z] at adult parties takes on stronger focus in the light of his above-mentioned lack of diligence in supervising her. I am unable to say whether he had rationalized his actions or whether Ms L. has actual cause for concern.
174) [Z] has been missing her father profoundly. It is my view that Ms L. hasn’t wanted to acknowledge the depth of their attachment. It is notable that Ms L. is agreeable to [Z] having day contact but, on the face of it, even her daughter’s distress has not engendered her to make overtures to commence this prior to the Court Hearing.
175) It was not possible to assess what impact separation from her father has had on [Y]. While she related brightly with him, she spent the bulk of her time pursuing toys that attracted her curiosity – what 2-year-olds normally do.
176) Like Ms L., Ms Harke’s anger for Mr Edward lies not far below the surface. During this assessment, she refused to allow [Y] to spend extra time with Mr Edward whiles she was being interviewed, even though this would have been supervised. She rejects the idea of his girlfriend’s 4-year-old son sleeping in the same room as [Y]. In my opinion, Ms Harke is struggling to apply any effective balance or moderation to her now passionately protective instincts.
177) For his part, Mr Edward’s cold anger and disdain towards both ladies is raw and barely contained. It is easy to see that he would have been unlikely to listen to complaints that either of them raised.
178) It is my view that a psychiatric assessment may help to shed light on the personal functioning of each of the adults.
179) There is a further issue of which I am mindful and which I have not been able to address effectively during this assessment, namely Ms Harke’s capacity to parent effectively and consistently. She has suffered from a psychiatric illness that I know little about, and there are indications that she struggled with developing a maternal bond with [Y].
180) In the meantime I am inclined towards reinstating the previous care arrangements but including Orders that
Mr Edward doesn’t bring [Y] or [Z] into contact with the grandfather or [K].181) In recommending this, I am conscious that more information may come to light which suggests greater risk in
Mr Edward’s care than I know about and that this might need to be reviewed again. I have weighed up the delays in gathering greater information against the emotional cost to the children of having their relationship with their father severed. I have favoured the latter as being the greater known risk at present.182) RECOMMENDATIONS
183) From the information available to me at the time of this report preparation, it is recommended that the following actions be given serious consideration at this stage;
a) [Z] returns to spending week-about in each of her parents’ care.
b) [Y] returns to the care arrangements outlined in the March 2008 Consent Orders.
c) Mr Edward is to ensure that neither child comes into contact with the paternal grandfather or [K].
d) The Independent Children’s Lawyer arranges for an independent psychiatric assessment of the father, Ms Harke and Ms L., with the psychiatrist having access to any available medical health records.”
Ms J. prepared a further report dated 11 July 2009. It is annexed to an affidavit filed 4 August 2009. Ms J.’s conclusions in that report are as follows:-
“44) SUMMARY ASSESSMENT AND CONCLUSIONS
45) As I have noted in my earlier Report, this family system is complex. Two mothers dispute with one father about appropriate care arrangements for their daughters. Last year they worked closely to bring their respective concerns to Court. There appeared some possibility that their combined efforts carried secondary agendas, although this remained a speculative question.
46) This time I have prepared separate Reports for the purposes of updating matters. The reason for this pertained to Ms Harke not attending the first interviews and the matter between
Mr Edward and Ms L. seeming to have reasonable prospects of settling.47) Ms L. told me that she has not had any substantial contact with Ms Harke since my previous Report. Ms Harke told me that they have been in frequent contact. I am left with the view that these ladies’ close association has continued.
48) In the eleven months since I have seen [Y], Ms Harke has withheld the child from about 4½ months of visits.
49) [Y] seemingly made a disclosure of sexual abuse in early January. Ms Harke was seemingly instructed not to bring her into contact with Mr Edward or Mr S.. Mr S. was ‘cleared’ within 2½ weeks of the disclosure and allowed to return home. Mr Edward had to wait a further four months – and another contravention application – before he was allowed to see [Y].
50) In my opinion, Ms Harke’s explanation of needing to wait for confirmation from the Police was not greatly compelling and resonates with similar reasons for delaying resumption after sexual abuse allegations in 2008.
51) Ms Harke’s presentation during this assessment suggests that she may consider settling this matter for a Final Hearing.
52) In my opinion, the underlying conflict and suspicion is not settled however. Ms Harke appears to believe that Mr Edward is capable of sexual abuse and that he may have done so to one or both of her daughters in the past. She has raised concerns about child abuse three times in the past 18 months. There is a strong likelihood of further allegations arising in the future requiring further investigations and consequent withholding of the child from visitation. Hence I believe it would be valuable for ultimate resolution of the conflict if a Hearing were to take place now.
53) It is my view that a 50/50 arrangement could not work effectively in this family. The distrust and anger between the parents is too great. [Y] needs to live primarily with one parent and spend time with the other every second weekend.
54) [Y] appears to be developing satisfactorily in her mother’s care. Since she has been there for 18 months, it would be disruptive and possibly dislocating for her to move into her father’s care.
55) If Mr Edward is considered a safe parent however and
Ms Harke is considered unable to support the stable development of [Y]’s relationship with him, it may be necessary to move [Y] into his full-time care. If the Court were minded to do this, there seems little doubt that he could manage her day-to-day care. He had raised her on a full-time basis for about three months when she was still a baby. He has had the half-time care of [Z] for several years.56) RECOMMENDATIONS
57) From the information available to me at the time of this report preparation, it is recommended that the following actions be given serious consideration at this stage;
a) This matter proceeds to a Final Hearing for determination of [Y]’s care arrangements.”
Ms J.’s final report was dated 5 September 2010. It is annexed to an affidavit filed on 1 October 2010. Ms J. concluded in that report:-
“75) SUMMARY ASSESSMENT AND CONCLUSIONS
76) As a result of the mother’s non-attendance at Court for the Final Hearing, the Court made Orders in her absence for [Y][4] to live with the father and spend time with the mother every second weekend.
[4] It is noted that the family report writer, Ms J., refers to the child [Y] throughout her report as “[Y]”.
77) [Y] appears to have flourished in her father’s care.
78) The mother seeks to reverse these arrangements however. Her time with [Y] was increased to five nights per fortnight when she re-opened proceedings.
79) She is available to care for [Y] on a full-time basis, which she sees as better for [Y] than the long hours of daycare five days per week. She has [X], to whom [Y] is close in age. They love each other dearly and play together well. Beyond this – and probably more significantly – [Y] asks constantly to see more of her. It is my view that all of these are valid arguments for consideration.
80) The father believes that the mother is unwell and he is anxious that she masks her true beliefs with a ‘show’ of good will and a more mature approach to his role in [Y]’s life. While he recognises [Y]’s close relationship with [X], he believes that the mother’s household is an unhealthy environment for her to be in for long periods.
81) The information available to me suggests that the mother’s bipolar disorder is under control. Aside from this, however, it is my view that his arguments are central to the decision-making process.
82) Despite the mother’s statement that she considers it unlikely that the father might sexually abuse [Y], it is my view that she still considers that abuse was likely to have happened. She doesn’t trust him. Mr S. appears to feel just as strongly that the father is of dubious character.
83) Although the mother spoke well, there was little real balance in her comments about the father. She does not display any compassion for what he has experienced over the past two years. She gives him minimal credit for the quality of his parenting since [Y] has been in his full-time care. I hold reservations about [X]’s ‘memories’ of the father’s violence and how close to the surface these appear to be – even though she hasn’t seen him for over two years.
84) The father’s cold anger at the mother has been consuming. It is my view that it will be a long time – if ever - before he can think of her with any objectivity or balance. He holds her directly responsible for withholding [Y] from him long after his name was cleared. Likewise he sees her as responsible for his desperate financial plight, fighting through Court to relate with his daughter when there was no basis for the mother preventing this.
85) I continue to hold the view that an equal-time arrangement for [Y] cannot work in this family because of these factors.
86) In my opinion, the father has provided excellence parenting for [Y]. A year ago, I was concerned about the possible emotional disruption for [Y] of a change of residence. She has seemingly accommodated this well.
87) While each of the parents has vulnerabilities, it is my overall view that the mother’s vulnerabilities have a more unpredictable quality than those of the father. To this end, I support [Y] continuing to live primarily with the father.
88) In my opinion, [Y]’s time with the mother needs to be every second weekend and one overnight stay in the alternate week. I anticipate that she can manage half of the school holidays even at her tender age, but I suggest that this is not more than a week at a time for the next two years unless one parent has an away-holiday planned for longer than this.
89) RECOMMENDATIONS
90) From the information available to me at the time of this report preparation, it is recommended that the following actions be given serious consideration at this stage;
a) [Y] lives with the father.
b) [Y] spends time with the mother every second weekend from Friday afternoon until Monday morning as well as one overnight in the alternate week. Changeovers take place via daycare as far as possible.
c) [Y] spends half of the school holidays with the mother.”
Prior to the conclusions stated by Ms J. - I note paragraph 73 of her report where she stated:-
“73) Each parent encouraged her relationship with the other when talking to her. Nevertheless I anticipate that she is quite a resilient child. Despite the history of conflict between her parents, she moved easily between the two waiting rooms. It must be apparent to her – as it is to the outside observer – that there is enormous tension surrounding the possibility of the parents coming into contact with each other, particularly on the father’s part. He was constantly vigilant in this regard.”
I note the evidence of the father at page 181 of the Transcript from line 20 wherein it is stated:-
“MS LYONS: How do you foster [Y]’s relationship with her mother, if at all?
Mr Edward: I constantly talk positive about everything to do with her, [X], the things that they do. My personal opinion has nothing to do with that. Doesn’t come into it. I know how happy it makes her. She’s happy to do the things that she does, so I only speak about that in a happy way.
MS LYONS: Does she have photos of her mother at her mother’s home – at your home, sorry?
Mr Edward: She does, yes. The mother gave them to us.
MS LYONS: Yes. Literally right by her bedside.”
I accept this evidence on the part of the father. I accept that the father speaks positively about the mother in the presence of the child.
It is apparent that the mother has spoken in a negative way about the father to the child [X]. I have referred to that specifically earlier herein in these Reasons for Judgment. I remain concerned that the mother may speak in derogatory terms about the father – in the presence of the child [Y]. It is imperative that the mother realise that she must not do so. In any event an order whereby the child lives primarily with the father (in accordance with the recommendation of Ms J.) should protect the situation in that regard.
Ms J.’s conclusion is that the child has thrived in the care of the father. The period of time between December 2009 and the present seems to have been the only time when it can conclusively be said that the mother has been supporting the father’s relationship with the child.
Ms J. gave evidence on 4 February 2011 at the trial of this matter. I note that Ms J. was very concerned about the behaviour of the mother’s partner (Mr S.) at interviews conducted by Ms J.. I note the evidence of Ms J. at page 192 wherein she stated:-
“Ms Lyons: Now, in your report, you talk about Mr S. interrupting on your interview with [X]?
Ms J.: Yes, I do.
Ms Lyons: Was that an unusual occurrence in your practice?
Ms J.: It is. It’s very rare.
Ms Lyons: And what were your thoughts in relation to that?
Ms J.: I was certainly somewhat taken aback when it happened. I viewed it as an action which suggested very controlling behaviour on the part of Mr S.. I was troubled at the time as to whether that would influence the way that [X] was speaking with me, but more to the point, I was concerned that, even if it didn’t affect her and there was no particular signs that it did affect this child, it was nevertheless indicative to me of what had probably been said or the attitude taken by that family to the prospect of [X] being interviewed by myself, and so what influence potential indirect pressure was that having upon the child.
Ms Lyons: And [X], as you’re well aware, is not subject to these proceedings?
Ms J.: No.
Ms Lyons: But [X]’s views clearly will impact upon [Y], particularly given her comments to you that she’d like to tell [Y] about what Mr Edward had done to her?
Ms J.: Yes. I think it’s very – I couldn’t – I would find it difficult to foresee the child not saying anything to [Y], sooner or later. Yes, she said that mummy had told her that [Y] was not old enough to understand that, and that might have an adverse effect on – those are my words – might have an adverse effect on [Y] if [Y] were to say something to the father about what he’d – what he’d done, but she’s six, and she’s quite – look, she just travelled into this discussion like as though it was right at the forefront of her mind, so it’s difficult to imagine that this six year old child wouldn’t directly or indirectly say something to [Y] about the views that that household hold at any rate about the father and his prior activity.
Ms Lyons: The mother gave evidence yesterday, using words to the effect that [Y] plays over the domestic violence in her mind over and over.
Mr Burridge: [X].
Ms Lyons: Sorry, [X]?
Ms J.: [X], yes.
Ms Lyons: My apologies. And I understand she’s not the subject of these proceedings, but given that link between [Y] and her in the mother’s household, is it your opinion that some intervention would be helpful for [X]?
Ms J.: When I saw the family, [X] had commenced counselling. I didn’t go into the issues behind that. I think that, if this is an issue so present at the forefront of her mind, there are indications that counselling might be helpful. However, you have to weigh that up with whether or not you think that that’s what the real issue is. Is it the child upset and worried about this, or is the adults in the household? Because unless the adults get this into a balance and a perspective, all the counselling in the world isn’t going to help a six year old to get it into perspective, I don’t think.”
I accept the evidence of Ms J. stated above.
The evidence of Ms J. referred to above confirms my view that the conclusion reached by Ms J. is correct. That is, the child [Y] should live primarily in the father’s household.
Section 60CC(3)(d) – The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom or she has been living.
Many of the comments that I have already made herein will relate to this particular subparagraph as well.
It seems to me, from the evidence of Ms J., that if the child [Y] were to spend more time in the mother’s household (than she currently is doing) then she may be exposed to more negativity about the father.
[Y] has lived primarily in the father’s household since December 2009. The view of Ms J. is that the child has thrived in the full time care of her father. It seems to me that the child’s best interests would be served by allowing her to remain primarily in the father’s care.
Section 60CC(3)(e) – The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There are no particular practical difficulties or expenses with the child spending time with the parents in this case.
Section 60CC(3)(f) – The capacity of:-
each of the child’s parents; and
any other person (including any grandparent or other relative of the child)
to provide for the needs of the child, including emotional and intellectual needs.
I accept the evidence of Ms J. as stated in her most recent report. I note paragraph 86 of Ms J.’s report annexed to her Affidavit filed 1 October 2010. Ms J. there confirmed that the father, “has provided excellent parenting for [Y]”. Ms J. goes further and refers to both parents having some vulnerabilities – but states (in paragraph 87) that it is her overall view that the, “mother’s vulnerabilities have a more unpredictable quality than those of the father”.
My conclusion is that both parents have the capacity to care for the child. Ms J.’s opinion of the mother – as someone who is somewhat unpredictable – is, in my view a correct assessment. For that reason the child should live primarily in the father’s household.
Section 60CC(3)(g) – The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the Court thinks are relevant.
There are no particular findings to be made concerning this subparagraph in this case.
Section 60CC(3)(h) is not relevant in this case.
Section 60CC(3)(i) – The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents have a good attitude towards the child. They both appear to have accepted the responsibilities of parenthood.
Section 60CC(3)(j) – Any family violence involving the child or a member of the child’s family.
There is evidence of family violence. The father gave evidence in relation to the violence as follows:-
“His Honour: How long ago was the last threat, do you say, from Mr H?
Mr Edward: Well, on that December 9 when we were last here in court, him and Ms Harke - - -
His Honour: You mean December 2009?
Mr Edward: Yes, sir. I ---
His Honour: And the other instances occurred before then, did they?
Mr Edward: Yes, because obviously we had a very volatile relationship. She would be upset. She would go to her parents’ house. We would argue – there is certainly no denying that – and he, like Mr S., felt the need to involve himself.
His Honour: Well, did he have – do you consider that he had any grounds for being upset with you during the course of your relationship with the mother?
Mr Edward: He would be upset because his daughter was upset, for sure.
His Honour: Well, just tell me a bit about that. Why was his daughter upset?
Mr Edward: There’s 1000 reasons. For just the ---
His Honour: I mean, is there any particular instances you can recall? Were the ---?
Mr Edward: No. No specific – I know that – I don’t remember what the reason was, but I do know that she did call one time and apparently had me on speaker phone to a whole room full of people, and intentionally started an argument and at the end of that argument is when the father got on the phone and threatened to sort me out if I didn’t fix this problem or something. That actually stems back to when I had [Y] full-time for that three month period.
His Honour: Yes. What happened – you will have heard some evidence that apparently the child, [X], on one version of the evidence that has been given, [X] told or [X] has said that she saw you push the mother or in some way physically assault the mother?
Mr Edward: I never physically assaulted the mother, though through arguing and her refusal to move out of the way, I am sure that she would have been pushed. Whether or not [X] might have seen that – but Ms Harke would get very feisty and very animated and refuse to get – if I was in the bathroom she would refuse to get out of the way of the door. If I was in the bedroom she would refuse to get out of the way of the door because I don’t want – I don’t enjoy arguments. I don’t like arguments. All I want to do is walk away from them. Whereas she likes an argument; she likes the passion and the anger and she would refuse for me to leave. Ironically, the best way for me to get out of that situation is to push her aside and go.
His Honour: And how many times did that occur?
Mr Edward: Maybe two or three. Only – and there was not – again, I guess there is obviously different descriptions or variances on what abuse is abuse, but I never, ever hit her though I would have to, in effect, wrestle my way out is, I guess, a way to put it, because I would ask her to move. She wouldn’t move. So I either stay there and get the full verbal abuse or I push past and go away or make it go away. So, you know, I guess maybe in hindsight it’s not necessarily the right thing to do, but I also don’t believe standing there and copping the abuse that I would get from her was also healthy.
His Honour: This is in the course of your one year relationship or something?
Mr Edward: Well, we were actually together for two years. I don’t know why she said 12 months.
…
His Honour: All right. Any other questions, Ms Harke?
Ms Harke: Yes. In December 2006 is it correct that you spent anywhere from two to four hours in the [omitted] watch house?
Mr Edward: I don’t remember the date but, yes.
Ms Harke: And what did you spend that time in there for?
Mr Edward: We were arguing. You and I were arguing.
Ms Harke: And you were sent there because? Can you explain; be a bit more elaborate?
Mr Edward: Well, it just so happens the police were next door doing a drug bust and – which is ironic in the little cul-de-sac that we were living in. Ms Harke had started on me early that day. The kids weren’t even awake yet, and ultimately a big verbal, and only verbal, argument started. And this – because of the loudness and the aggressiveness of this argument is what brought the police to our door and they then just took me away.
His Honour: Well, what do you say it was about? Put it to him.
Ms Harke: Your Honour, we actually have subpoenaed documents in those documents – they are here. I don’t have them in front of me. I believe they have them down there. The police actually state in their report that the reason why they came over to our then residence was because of Mr Edward’s incessant yelling. Do you agree or?
Mr Edward: I was – yes, I was very angry.
His Honour: Just hold on a minute. Mr Edward, why were you so angry? What was this about?
Mr Edward: I had a school friend coming up from Sydney that night.
His Honour: Right?
Mr Edward: One of my best mates I had not seen in a very long time, and she – the mother was actually going to let me go out, which was very rare, because she understood, in effect, he was one of my best mates. And yet ---
His Honour: A boys’ night out or something?
Mr Edward: Yes, or just a catch up, you know. Which, again, you don’t catch up the same way in a house full of three kids than what you do going out for a drink and two mates catching up. It appears you understand that concept, yet she – I hadn’t even had breakfast and she was already accusing me of, you know, girls I was going to sleep with, the hookers, the strippers, the whole kit and caboodle. And I just was, like, this is absurd. This is one of my best – I mean, he’s like a brother. I want to go and see him and catch up. How can you be accusing me of these things again for like the thousandth time? And, yes, I did. I lost it. I was so looking forward to seeing him, and all she could do was accuse me of sleeping with some girl I hadn’t even met yet. And that’s it.
His Honour: And how long – how many hours did this argument last?
Mr Edward: Only about three or four minutes.
His Honour: Three to four minutes?
Mr Edward: Yes.”
I accept the evidence of the father. There seems to have been a number of loud verbal disputes – with some “pushing” by the father to escape the verbal altercation.
The parents had a short relationship. As noted earlier it was characterised by conflict. The family report writer, Ms J., has been made aware of all of such evidence. She has nonetheless concluded that the child should remain living primarily with the father. I accept Ms J.’s evidence.
Section 60CC(3)(k) is not relevant.
Section 60CC(3)(l) – Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
There is no particular order that could be made here which would necessarily be less likely to lead to the institution of further proceedings in relation to [Y].
Section 60CC(3)(m) – Any other fact or circumstance that the Court thinks is relevant
I note the view stated by the Full Court of the Family Court in Collu & Rinaldo [2010] FamCAFC 53 at paragraph 355 where the Court stated:-
“… in determining best interests the obligation is to ‘consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all those matters, a trial Judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out’.”
I have placed a good deal of weight on the evidence of Ms J. in this case. In particular, over the course of the various reports written by
Ms J., she has been concerned about the mother’s unwillingness to facilitate the child’s relationship with the father. That is a matter that has weighed quite heavily in the Court’s assessment of the case.
I also note the evidence of Dr M. concerning the mother. Dr M. prepared a report which is annexed to an Affidavit filed 28 November 2008 where she stated her opinion:-
“OPINION
Ms Harke has a psychiatric history which presented as postnatal depression after the birth of her child [X] – DOB [omitted] 2004 and necessitated a 4 week admission to [omitted] Hospital and treatment with antidepressant medication. From her account the condition worsened after the birth of [Y] and was interspersed with periods of irritability and sleeplessness. She has been diagnosed with a bipolar affective disorder and is on a mood stabiliser, Valpro 5 mg bd. In addition her current psychiatrist, Dr W. has diagnosed her with attention deficit hyperactivity disorder and she is on a large dose of dexamphetamine. Her history is consistent with the diagnosis. She also has a history of substance abuse at a young age. It is noteworthy that in 2007 she asked Mr Edward to have fulltime care of [Y] and had a period of 3 months when she did not see the child.
I understand from my reading of the material that she was sexually abused as a child but I did not obtain this history from her.
On examination there was some intensity of speech but no indication of mood disturbance. However her history indicates that at time she has demonstrated impulsivity and poor judgment and I believe that she most likely diagnosis is (sic) bipolar affective disorder. In terms of her parenting it is of significance that she had a prolonged period of absence from [Y] in the past.”
Dr M. considered that the father did not exhibit any psychiatric disorder. You will note that I have referred to Dr M.’s evidence concerning the father earlier herein as well.
Conclusion on best interests
I have formed the view, based upon the matters referred to earlier herein and in particular the opinion of Ms J. that the child should remain living primarily with the father. I note Ms J.’s evidence from page 193 of the Transcript concerning the nature of the arrangements is as follows:-
“Ms Lyons: Ms J., currently the application before his Honour from the mother is that [Y] returns to reside in her household and spends time with the father. The father’s proposal is that the current time as it stands, seeing the mother between a Thursday and a Monday and with a dinner date in the off week on a Wednesday is reduced so that [Y] resides under his roof and spends alternate weekends with the mother. The father’s proposal, by all accounts – sorry, the current orders, by all accounts, have been working quite well. Would you see any difficulty in a reduction of time on the father’s proposal between [Y] and the mother?
Ms J.: So the father wants to make it from when to when, sorry?
Ms Lyons: Friday.
His Honour: And just explain also to Ms J. when the order was made extending it, Ms Lyons.
Ms Lyons: Thank you. When was it extended?
His Honour: October.
Mr Burridge: October.
Ms Lyons: October. Thank you, your Honour.
That time has recently been – the current orders are Thursday to Monday with a dinner date on the off Wednesday with [Y] residing with the father. That order was made in October of last year.
His Honour: On 7 October.
Ms Lyons: Prior to that, whilst [Y] had been residing in the father’s care, [Y] had been spending alternate weekends with her mother. The father proposes to change the current time arrangements so that [Y] continues to live under his roof, but in a two week cycle she spends from after school Friday until 9 am or before school Monday with her mother, and from after school, or from 3 pm Thursday, until 9 am on the Friday in the second week.
His Honour: You better say that again, sorry. Just say – this is what the father now wants, is it? So it’s after school Friday to before school Monday?
Ms Lyons: That’s so. And in the off week, after school Thursday to before school Friday.
His Honour: Thank you.
Ms Lyons: The father has given evidence that’s based on your recommendations in your third report.
His Honour: But I think you – the other thing to keep in mind there, Ms J., is that what Ms Lyons mentioned earlier, that from all accounts the current arrangement, which has been in place since 7 October, has progressed well?
Ms J.: Yes.
His Honour: There’s no dispute about that, is there, Ms Lyons?
Ms Lyons: Not that I’m aware of. Mr Burridge will no doubt – or Ms Harke will jump to their feet if they ---
His Honour: No, that’s right.
Ms Lyons: --- see otherwise? So the difference, therefore, is that instead of – one, two – four night blocks, we’ve got three nights plus a midweek in the alternate.
Ms J.: Yes?
Ms Lyons: And we don’t have a dinner date in the alternate. Is that right?
Ms J.: That’s so? Okay. Look, I don’t have a problem about which way it goes. I think that the – it – I think it is probably beneficial for [Y] to see her mum in the alternate week at some stage. I also think that this is a family in which it will be preferable to reduce the number of times that mum and dad come into contact with each other, so I think the arrangement of changeover at day care or school or whatever we’re at is probably the preferable arrangement rather than bringing them into direct contact, because these two cannot – can rarely manage any contact with each other without a serious risk of coming into conflict, which is played out in front of children.
Ms Lyons: And in light of that, there’s just been evidence this morning to suggest the father has been recording with a tape recorder each changeover visit. That, in your opinion, Ms J., would be important to keep those changeovers at a day care centre to stop the parents coming into contact?
Ms J.: Yes, I think so. I’m not surprised that the father is recording – I mean, I think I did know that or at least that he was recording some of them. That seems to stem from his feeling that he’s been burned so many times with stuff that – he said, she said, he’s never able to prove his situation one way or the other, he thinks, and it’s just – it’s just not good for children. It’s just not good for children. Even if there is no conflict played out, all of that tension is – children are sensitised to all of that. They don’t need to see or hear things directly to know what’s really going on in the background.
Ms Lyons: Ms J., the mother proposes that [Y] resides in her household?
Ms J.: Yes.
Ms Lyons: And in effect, the father spends from Thursday to Monday with [Y]?
Ms J.: Yes.
Ms Lyons: With no time in the off week. Firstly, [Y] has been living with the father for a significant period of time now, since December ’09. What effect would a change of residence to [Y], so that she resides predominantly in the mother’s household have, if any?
Ms J.: I think – I think we could assume that she would manage a changeover to live predominantly in mum’s house without undue emotional grief and mayhem. I think that the immediate issues are not the primary concern in that regard. I mean, I was – as I’ve said in the report, somewhat – it was – it was notable that [Y] seemed to have managed that changeover to living with dad without much effect back when that took place, and she has flourished since then. She impresses as quite a resilient little girl who loves both mum and dad very dearly, and seems to manage the time that she has with them. Again, I would have thought that if the court were minded, that the child lived with mum primarily, that she should have some contact with her dad in the alternate week, and again, that should preferably take the form of changeover taking place at day cares come school.
Ms Lyons: Is it still your recommendation that [Y] resides predominantly with her father?
Ms J.: Yes, it is.
Ms Lyons: And why is that, Ms J.?
Ms J.: I’ve come to that conclusion over the length of this matter, and the length of the – and the length and intensity of the dispute, which has been, as I see it, largely driven by the mother’s concerns, anxieties, about sexual – the father’s propensity or possibility of sexually abusing children, and that’s led to lengthy periods in which he has had no contact with – sorry, that [Y] has had no contact with her father. That – the absence of a father for that – of a parent, should I say, for that length of time, is simply not good for [Y] in terms of the balanced, natural development. I formed the view, as I’ve said in the report, that I don’t – I don’t think that the mother is convinced that nothing happened, nor do I think she’s really convinced that, because of that, you know, the likelihood of something happening is extraordinarily slip. So on – so the overall thing is that, as I see it, the history shows us that when the child is living with the father, the child has the benefit of a relationship with both parents. When the child has been living with the mother, there have been long periods when she has not had the benefit of a relationship with both parents.
Ms Lyons: Thank you, Ms J..”
Therefore, Ms J.’s concluded view (after many years of involvement with this family) is that the child, when living primarily with the father, has the benefit of a relationship with both parents. I accept this evidence on behalf of Ms J.. I note that Ms J. concluded in one of her reports that there was nothing to suggest that the father had at any time behaved inappropriately.
Section 61DA
In my view there should still be an order for equal shared parental responsibility in this case notwithstanding the fact that there has been a good deal of conflict between these parties. The child will be living with the father but my view is that the current arrangements should remain in place. That is, the arrangements that have persisted since October 2010. Ms J.’s support for that proposal appears at page 194 of the Transcript at approximately line 20. Changeover should be from childcare/school.
Section 65DAA
Because there is to be an Order for equal shared parental responsibility the Court must consider section 65DAA.
Ms J. provides no support for an equal time Order. I note that Ms J. has concluded that the level of conflict is too high for there to be an equal time Order. I accept this evidence.
Therefore it is not in the best interests of the child for there to be an equal time Order.
It is worth noting that it would at least have been reasonably practicable for an equal time Order to operate in this case – but in view of the conclusion on best interests – such an Order will not be put in place.
Section 65DAA(2) – substantial and significant time
The Order to be made will come within the definition of “substantial and significant time”. In my view such an Order is in the child’s best interests. This accords with the recommendation of Ms J.. Furthermore, such an Order is reasonably practicable given that the parents both live in Brisbane.
Conclusion
The arrangements that have remained in place since October 2010 should continue. The arrangements provide for the child to live primarily with the father and spend substantial and significant time with the mother. It is imperative that the mother (and her household) speak in a positive manner in relation to the father. As noted earlier, I am satisfied that, in recent times, the mother has complied with Court Orders. I expect that the mother will continue to do so.
I would like to see the Independent Children’s Lawyer forward to the Court Orders to reflect the Reasons for Judgment within the next 21 days.
I certify that the preceding one hundred and twenty two (122) paragraphs are a true copy of the reasons for judgment of Howard FM
Date: 25 July 2011
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