Harry and Harry
[2007] FMCAfam 616
•17 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HARRY & HARRY | [2007] FMCAfam 616 |
| FAMILY LAW – Parenting orders – interim – allegations of sexual abuse – unacceptable risk – supervision. |
| Family Law Act 1975, ss.60CC, 69ZT, 69ZV, 100A |
| W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129 WK v SR (1997) FLC 92-787, 22 FamLR 592 Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, FLC 93-192 Goode & Goode (2006) FLC 93-286 Vasser & Taylor-Black [2007] FamCA 547 |
| Applicant: | MR HARRY |
| Respondent: | MS HARRY |
| File Number: | SYC1928 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 20, 26 and 31 July 2007 |
| Date of Last Submission: | 31 July 2007 |
| Delivered at: | Wollongong |
| Delivered on: | 17 August 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Escobar |
| Counsel for the Respondent: | Mr Bell |
| Independent Children’s Lawyer: | Mr Holmes |
ORDERS
I vacate order 3 made by Federal Magistrate Henderson on 13 June 2007.
S is to spend time with her father subject to supervision:
(a)At a supervised Contact Centre; or
(b)By an agreed adult or adults.
S is to spend time with her father twice a week, subject to order 2 above. If the only form of supervision available is at a supervised Contact Centre, the parties are to do all things necessary to complete intake procedures at [N] and Wollongong so that S spends time with the father twice a week and, if necessary in order to implement this order, once a week at each centre. If the parties are able to agree about an adult person to supervise, that can substitute for either one or both of the father’s times with S.
Parties have leave to file in chambers proposed orders appointing a Part 15 Expert in this matter.
In relation to the wife’s application under section 79 of the Family Law Act1975, the husband is to file and serve appropriate pleadings to respond to this, together with a short affidavit in support, within
14 days. Both parties are to file and serve financial statements within
21 days.
The parties be referred for a Conciliation Conference on 2 October 2007 at 11.00 with a Registrar at the Wollongong Registry.
The parties comply with Rule 24.04 of the Federal Magistrates Rules by serving on each other copies of the documents listed in that Rule by no later than 4.00 p.m. on 18 September 2007. Namely:
(a)Copies of 3 most recent taxation returns;
(b)Copies of 3 most recent taxation assessments;
(c)If the party is a member of a superannuation plan:
(i)if not already filed or exchanged – the completed superannuation information form for any superannuation interest of the party;
(ii)for a self-managed superannuation fund- the trust deed and copies of the 3 most recent financial statements for the fund;
(d)If the party has an ABN, copies of the last 4 business activity statements lodged, if any, and:
(e)The 3 most recent financial statements and the last 4 business activity statements of any partnership, trust or company (other than a public company) in which that party has an interest.
(f)The parties complete the Conciliation Conference Document and take it to the Conciliation Conference Document.
I direct the parties to file any further affidavit material on which they intend to rely no later than 4.00pm on 17 October 2007.
The hearing fee must be paid, or a waiver thereof sought no later than 4.00pm on 17 October 2007.
No later than two (2) working days prior to hearing each party forward to my Associate a document setting out:
(a)The affidavits on which the party will rely at hearing; and
(b)The Orders sought at hearing; and
(c)One list between the parties setting out the values of assets and liabilities to be relied on at hearing, each to be marked “agreed” or “in dispute”.
I grant general leave to apply to me on 48 hours notice.
IT IS NOTED that publication of this judgment under the pseudonym Harry & Harry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
SYC1928 of 2007
| MR HARRY |
Applicant
And
| MS HARRY |
Respondent
REASONS FOR JUDGMENT
Introduction
This application initially came before me during the Wollongong circuit on 20 July 2007. For various reasons, including the unavailability of subpoenaed documents, the matter was adjourned before me in Sydney on 26 July 2007. I had indicated to the parties and their representatives that, based on my reading of the file, and the seriousness of the allegations raised, I intended to permit the parents to give evidence-in-chief and to be cross-examined, subject to time limits. Regrettably, the matter did not start until late on 26 July, so it was adjourned to 31 July in order for the evidence in these interim proceedings to be concluded. The orders that I make, and the reasons that I now provide, relate to that interim hearing. The matter is set down for hearing on Wednesday 7 November 2007, before me, for two days.
Background
The applicant father is Mr Harry who is 41 years old. The respondent mother is Ms Harry who is 28 years old. The parents commenced cohabitation in August 2002, married in November 2003 and separated in October 2006. They have one child, S who was born in 2004, and who is 3 years old.
Within a short time after separation the father commenced proceedings in the Local Court at [N] on 15 December 2006. The mother filed her material, and on 19 January 2007 the Local Court made orders in the following terms:
BY CONSENT:
1.1Without admissions, the Applicant and Respondent shall not denigrate the other and/or members of their families, to or within the earshot of S.
1.2Without admissions, the Applicant and Respondent shall not discuss the proceedings with each other, or a third person, to or within the earshot of S.
1.3Without admissions, the Applicant and Respondent shall not consume alcohol to excess when caring for S.
1.4Without admissions, the Applicant and Respondent shall not consume illicit substances when caring for S, and for the 24 hour period preceding the commencement of such care.
1.5The Applicant shall not take S to the tattoo shop whilst she is in his care, unless he is required to so attend from some administrative reason, and in such event he shall remain on the premises only for so long as is necessary and S is to remain in his care.
1.6The Applicant shall have telephone contact with S each day by telephoning the Respondent on [X] between 6pm and 7pm.
1.7The Respondent shall ensure the telephone number [X]is:
i.Charged
ii.turned on
iii.in a mobile telephone service area.
1.8For the purposes of telephone contact:
i.the Respondent shall not answer the telephone between 6pm and 7pm.
ii.the Respondent shall not interfere with the telephone call between the Applicant and S in any way whatsoever.
iii.the telephone calls shall be no more than 15 minutes duration.
1.9For the purposes of facilitating contact:
i.the Respondent shall deliver S to the [X,] [N] at the commencement of contact.
ii.the Applicant shall deliver S to [V] at the conclusion of contact.
…
3Court restores recent arrangement as to spend equal time with each parent as far as possible in the following:-
a)each alternate week between 12 noon Sunday to 12 noon Wednesday and,
b)6pm Saturday to 12 noon Wednesday.
Shortly thereafter the matter was transferred to the Federal Magistrates Court in Sydney. On 13 June 2007, Henderson FM suspended the orders made in [N] Local Court, insofar as they related to S living with the father. Indeed, the relevant orders made by Henderson FM on that day are as follows:
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1. Orders made by the [N] Local Court on 19 January 2007 be suspended in so far as they related to the child S, born in 2004, [“S”] living with the father on a shared care basis.
2. S live with the mother.
3. S spend time with the father on as many occasions as may be arranged at the [N] Contact Centre and the parties forthwith do all acts and things necessary to complete the intake procedures at the [N] Contact Centre to enable such supervised time.
4. S to be returned to the mother’s care no later than 7p.m. on 13 June 2007, changeover to occur inside the foyer of [N] Police Station.
THE COURT ORDERS THAT:
5. The matter be adjourned to 31 August 2007 at 10.00a.m. for interim hearing.
6. Pursuant to section 68L Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed and the I request the Legal Aid Commission of NSW to provide such representation.
7. The parties provide to the Legal Aid Commission, of NSW, PO Box K847 HAYMARKET forthwith all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.
8. The matter be adjourned to 2 July 2007 at 9.30a.m. for further mention and it is noted that consideration will be given to the possibility of an earlier interim hearing date.
On 6 July 2007 the Independent Children's Lawyer, Mr Duncan Holmes, caused to be filed in the Court a Notice of Child Abuse or Family Violence.
In short, the mother alleges that since the beginning of this year S has made certain disclosures to her, and has exhibited various behaviours including sexualised behaviours, that indicate that she may have been sexually abused. The mother alleges, based on things that S has said, that the father is responsible for this abuse. The details of these disclosures, and allegations, are set out below. The father strenuously denies that he has sexually abused, or in any way acted inappropriately in relation to his daughter, S.
The mother's application, for all practical purposes, is that the orders made in the Local Court at [N] on 19 January 2007 be set aside. In lieu thereof, the mother seeks orders that S live with her, and spend supervised time with the father. For all practical purposes, the father's position at the hearing of this matter was that the parenting orders revert to the arrangement reflected in the orders of [N] Local Court on 19 January 2007.
Issues
For all practical purposes, particularly having regard to the fact that these are interim proceedings in respect of which the evidence was necessarily curtailed, the issue is whether there is an unacceptable risk for S to spend time with her father on an unsupervised basis. The relevant legal authorities are discussed at length in the section below dealing with the applicable law. In short, however, I must decide whether on the evidence there is a risk of sexual abuse to S if she spends time with her father. I need to assess the magnitude of that risk. The authorities clearly state that I cannot allow S to spend time with her father if I decide that, based on the available evidence, that would expose S to an unacceptable risk of sexual abuse. Of course, one of the matters that I can also consider is the availability of supervised time, and the extent to which that overcomes what I might decide is an unacceptable risk. All of this analysis takes place in the context of the broader statutory framework created by Pt VII of the Family Law Act. Ascertaining whether there is an unacceptable risk is not a substitution for determining what is in S's best interests. Rather, it is the manifestation of what is in S's best interests in the context of a case where allegations of sexual abuse have been made.
The applicable law
A comprehensive statement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what the relevant law is:
92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
...
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
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 C.L.R. 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, 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 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.
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’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] FLC 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. 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.”
97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:
“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
‘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.’ (at page 77,081)
The ‘unacceptable risk’ test is therefore the standard used by the Family Court 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’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
...
It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”
99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”
107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
(b) The contact issue112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.
In WK v SR (1997) FLC 92-787, 22 FamLR 592 the Full Court emphasised the standard of proof that applies in these cases at para 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 s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, FLC 93-192, in referring to WK v SR the Full Court observed at paras 18 and 19:
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.
19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at paras 38 and 39:
38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."
39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.
Another important statement from this Full Court decision is found in paragraph 45. It is important because it is in the interests of the administration of justice, and more importantly in the interests of the children involved in these cases, that sensible concessions be made so that both interim and final hearings can focus on real issues.
45. The concession by counsel in final address that the evidence would properly lead the trial Judge to conclude the much lower barrier of "unacceptable risk" had been reached could not be seen as some sort of admission of guilt by the husband and those appearing for him. It was no more than an acceptance of the forensic reality. The child had made damning disclosures. The father had denied them. All the Court needed to be satisfied of was whether an order for contact "would expose the child to an unacceptable risk of sexual abuse". An acceptance of the husband's unshaken denials would leave the child's disclosures unexplained. An acceptance of the disclosures as proof that the father behaved with gross impropriety towards G would mean a total rejection of the denials. In our view an acceptance by counsel that the likely outcome lay somewhere in between was not surprising nor could it be seen as an admission of guilt.
It is frequently the case that allegations of sexual abuse are raised in interim proceedings. Wherever possible it is important for the evidence of the protagonists, usually but not always parents, to be tested by cross-examination in some limited fashion. This enables the Court to form an impression, albeit only an impression, about the veracity of the claims made and of the character of the parents. Notwithstanding this, a Court should be wary about making findings of credit after only an abbreviated hearing.
Often it will not be possible to test the evidence in interim proceedings. The Full Court decision in Goode & Goode (2006) FLC 93-286 continues to apply in these cases. The Full Court in Vasser & Taylor-Black [2007] FamCA 547 made these comments, at paragraph 52 of its judgment, about allegations of abuse in interim proceedings:
At paragraph 5 of her written submissions counsel for the independent children’s lawyer, having earlier referred to the test set out in M and M (supra) namely, “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”, submitted:
When allegations of abuse arise in interim proceedings, the court must weigh the competing risks of abuse, including the risk of interrupting or severing a relationship between a child and a parent. In order to weigh the competing risks, the court should analyse what the risk is. To simply state that there is a risk of psychological abuse is not providing an analysis of the risk to the child, nor does it assist in determining what, if any, safeguards could be put in place to ameliorate the risk. (paragraph 5).
It should also be remembered that Division 12A of Part VII of the Act applies as much to proceedings involving these serious allegations as it does to other child-related proceedings. In each case consideration needs to be given as to whether s.69ZT(3) should be invoked, thus reinstating the application of certain provisions of the Evidence Act 1995, in whole or in part, as regards an issue in the proceedings. The Court needs to give consideration to this, whether or not it is raised by the parties, but the Court also needs to have regard to the need to protect the child from harm, as well as protect the rights of those against whom serious allegations are directed. The Court must also not lose sight of the fact that even though s.100A of the Act has been repealed thus potentially excluding evidence of disclosures made by children if s.69ZT(3) is invoked, s.69ZV seems to be intended to, in effect, reinstate s.100A.
Evidence about disclosures made by S.
The disclosures that S allegedly made that might indicate that she has been sexually abused are contained in the affidavits of her mother, filed 12 June 2007 and 13 July 2007; the affidavit of the respondent mother's father, Mr C, filed 13 June 2007; the affidavit of the applicant father filed 13 July 2007; and the affidavit of Ms H filed 20 July 2007. I will deal with each of the allegations chronologically, and make observations about the evidence in relation to the disclosure, where appropriate.
First Disclosure
At paragraph 49 of the mother's affidavit she makes the generalised statement: "Since late 2006 S has also demonstrated sexualised behaviours that seemed more explicit than those that might be expected of someone her age. In paragraph 50 of the mother's affidavit she deposes to the fact that around Christmas time 2006 S was laying on the floor at the home of the mother's friend, H. The mother describes S as having her legs in the air and slapping her vagina. The mother asked S what she was doing and, according to the mother, S said to her words to the effect: "I just have to, mummy."
For all practical purposes I will treat this as the first alleged disclosure by S. The mother alleges that she was at the home of her friend, H, who was present, together with H's mother in law. Neither person has filed an affidavit to corroborate the disclosure. It is possible that the H referred to in paragraph 50 of the mother's affidavit, is Ms H.S. who filed an affidavit on 18 July 2007. If it is the same H, it is curious that she does not give evidence about this incident. I mention that neither the mother nor the father were shy in terms of putting forward affidavit material in support of their case. As at 13 July 2007 the father was relying on 15 affidavits, and the mother 11.
It is also important to note that in the mother's affidavit filed in the proceedings at [N] Local Court on 18 January 2007 she makes no mention whatsoever of S's alleged sexualised behaviours. The said affidavit of the mother is very detailed. It is hard to understand why in an affidavit filed 12 June 2007 the mother would refer in both a general and specific way to S's behaviour, but not refer to it in her affidavit filed 18 January 2007.
The absence of corroborating material, the mother's failure to disclose her concerns in the January [N] Local Court affidavit, and the absence of any convincing explanation for this in the evidence she gave before me, all cumulatively leads me to one of two possible conclusions. It is possible that the events referred to did not occur. However, it is also possible that the events occurred, but that even the mother was not concerned for various reasons that might include the fact that children of S's age sometimes do demonstrate a curiosity and exploration of their bodies that could be confused for inappropriate sexualised behaviour.
In any event, S made no disclosure, according to the mother, that implicated the father.
Second Disclosure
The next alleged disclosures are referred to in paragraphs 51-54 of the mother's affidavit, and all allegedly take place in February 2007. At paragraph 51 of her affidavit the mother describes an incident that allegedly occurred on 7 February 2007 when S was standing in the bath with one leg up on the edge of the bath and the other in the water. The mother described that S was flicking her vagina with her hand and fingers. The conversation is set out in full at paragraph 51, but the mother alleges that S said: "You do this like this, don't you, mummy" and, later: "My daddy showed me how you do." In paragraph 52 of her affidavit the mother alleges that on 14 February 2007 S told her that her father had taken her to the doctor's who, according to S, checked her vagina. At paragraph 53 of the mother's affidavit she alleges that on 16 February 2007 she observed S stroking her vagina repeatedly. The mother said: "What are you doing and where did you see that?" S said: "You do this." The mother said: "No, I don't, S. Who said that?" S said: "Yes you do. My daddy tells me and showed me that 'cause he said you do mum all the time." The mother then deposes that on
19 February 2007 she telephoned the Department of Community Services and reported to them S's behaviour and her conversations with me.The father gives evidence about the allegations of sexual abuse against him at paragraphs 92-107 of his affidavit filed 13 July 2007. He alleges that on 5 February 2007 S had said to him that: "The naughty girl touched my minny, daddy." S had been to day care that day. The father alleges that on the next day he spoke to Ms J, the Director of the Child Care Centre, explained what S had said to him, and asked whether she, ie Ms J, had seen anything. The father then deposes to having a conversation with Mr G, a psychologist. He also deposes to the fact that on the next day S spent some time with Ms H and that when he went to collect S Ms H said to him that S had made a similar disclosure to her, ie that a naughty girl had touched her minny. Indeed, S disclosed to Ms H that the naughty girl was: "The naughty girl at [M's] house". Later, the father deposes that S confirmed that to him. The father then deposes to taking S to see a Dr T on 7 February 2007.
The father's evidence is corroborated by the affidavit that Ms H filed 20 July 2007. In short, Ms H deposes to the fact that S said to her that: "The naughty girl hurt me", and that the naughty girl is: "a girl at [M's] house." Ms H understood this to be a reference to M who she knew to be a friend of the mother's.
The documents produced on subpoena by [J] Children's Centre, exhibit ICL3, contains an incident report form dated 8 February 2007 in which Ms J records that: "Mr Harry was concerned that S was sore in the genital area and asked if she complained when at the Centre. I said S didn't complain and checked with other staff. Mr Harry was also concerned that S called another girl she plays with 'out of the Centre' a 'naughty girl'." This tends to corroborate the father's version of the events.
The annexure C to the father's affidavit is a copy of what appears to be the progress notes for S prepared by Dr T. The note is dated Wednesday February 7 2007 and is in fact timed at 11:15, and again largely corroborates the father's evidence.
In relation to the mother's evidence at paragraph 51 of her affidavit about S in the bath, the father deposes at paragraph 105 of his affidavit as follows: "The only possible thing that I can suggest as a reason for that is that I was teaching S to wash herself properly by washing her minny with soap and then splashing water on her minny. I felt that she was old enough now to wash herself in this way rather than me do it."
In relation to the mother's evidence at paragraph 54 that she telephoned the Department of Community Services on 19 February 2007, the documents produced on subpoena by the Department, exhibit ICL1, indicate that the mother contacted the Department in person at their [N] office at 3:50 pm on 8 February 2007, 11 days earlier than the mother deposes to in her affidavit. The file note of this meeting is as follows:
"Ms Harry said that she is concerned for her daughter S and that she tried to ring the Helpline today in the morning but was kept on hold. Ms Harry said that she is no longer with S's father as they have not been together now for six months and there are Family Court orders in place. S has contact with the father,
Mr Harry, on weekends and is going to his place this weekend. Ms Harry said that for the last two-three months S has been displaying sexual behaviour which has increased more frequently recently especially after S has been at her father's home.
Ms Harry said that she is concerned S would put one foot up on the bath and she would flick her private parts telling her mother that she has to do this. Ms Harry said that there has been D/V in the past with S's father but said there has not been police involvement. I explained to Ms Harry the process on reporting and advised Ms Harry to ring the Helpline and that she was welcome to ring now. Ms Harry appreciated the offer and rang the Helpline from the [N] CSC office."It is curious that the mother would depose to ringing the Department on 19 February 2007, but not to the fact that she personally attended at the [N] office of the Department, together with S, at 3:50 pm on 8 February, which is the day after the mother alleges S was flicking her vagina in the bath. The documents produced by DOCS are in response to a widely drawn subpoena that, one would normally expect, would result in the production of all records. Of course, documents are withheld pursuant to s.29(1)(d) and (e) of the Children and Young Persons (Care and Protection) Act 1998. This might explain, for example, why there is no record of the notification allegedly made by the mother on
19 February. Nonetheless, I regard it as curious indeed that the mother went to DOCS after the incident on 7 February 2007, but presented her evidence to this Court on the basis that she went to DOCS after the incidents on 7 February, 14 February and 16 February 2007.Before discussing these allegations further, there is one other independent piece of evidence to refer to. Exhibit ICL4 is a copy of a patient assessment form relating to S, which is dated 15 March 2007. Accordingly, it is about a month after the February disclosures, and a month before the April disclosures, to which I will shortly refer. The patient assessment form purports to record matters reported by the mother, in relation to S. It is clear that the mother takes her to the place where the patient assessment form was prepared (but it is unclear precisely where this is). The document purports to record the behavioural and psychological problems experienced by S relating to the breakdown of the parents' relationship. However, there is no reference to sexual abuse allegations at all. There is no reference to S's sexualised behaviour, or the events of the preceding month. This is very curious indeed. The mother was concerned enough about S's behaviour on 7 February 2007 to report it to DOCS the next day. There were two other incidents on 14 February and 16 February which clearly have concerned the mother. And yet, on 15 March 2007, in a context where one would have thought it was perfectly appropriate for the mother to have expressed her concerns about S, there is no mention whatsoever of sexualised behaviours, or concerns that she has been abused.
It is possible that the father's evidence at paragraph 105 of his affidavit explains S's behaviour described at paragraph 51 of the mother's affidavit, on 7 February 2007. S's disclosure to her mother on 14 February 2007 is entirely consistent with S having been taken to the doctor on February 7 2007. As to the reason for the visit to the doctor, as S disclosed to both her father and to Ms H that she had been hurt in the vaginal area, by another girl at M’s house. The events of 16 February 2007, as described by the mother at paragraph 53 of her affidavit, could easily be explained by reference to the above. Taken in isolation, however, it would give concern about inappropriate behaviour, either verbally or physically, by the father. But nonetheless, the inconsistencies in the mother's evidence that I referred to above inclines me to the belief that the 16 February 2007 disclosure does not raise sufficient concerns in her mind to link them to anything the father has done. Indeed, it is quite possible that the mother's failure to disclose these events in the patient assessment form dated 15 March 2007 is a more objective indicator of the fact that she too was not sufficiently concerned to link S's disclosures and behaviours to anything the father had done.
Third Disclosure
What I will refer to as the April disclosures, are referred to at paragraphs 55-57 of the mother's affidavit. The mother deposes that on 18 April 2007, whilst she was bathing S, she noticed that the skin on her vagina looked red. The conversation is set out in full at paragraph 55. S disclosed to the mother that: "I just put my finger in my minny like this." She demonstrated this to her mother, by parting her legs and putting her finger inside her vaginal opening and dragging her finger in and out. The mother alleges that S said to her: "Daddy say he just say I have to." She then said: "He just showed me and asked me to do." The mother deposes that she took S to the hospital where S was examined by a paediatrician. The mother was informed that S had Thrush. The mother believes the paediatrician telephoned DOCS. The mother then indicates that on 19 April 2007 S was interviewed by JIRT officer
Ms B. Then, on 20 April 2007 the mother deposes that S said to her: "I put my finger in my minny like this till I make it sore, mum." When the mother asked S why, the mother deposes that S said: "Because my daddy likes that, mummy."
Mr C gives evidence about the events of 18 April 2007 at paragraph 22 of his affidavit filed 13 July 2007. His evidence is that: "On 18 April 2007 sometime after 7 pm I heard [Ms Harry] and S talking in S's bedroom. I heard S say: 'I stuck my finger in my minny.' [Ms Harry] said: 'Why?' S replied: 'I want to.' Later that evening while S was watching a movie I heard [Ms Harry] speaking on the telephone to the Department of Community Services." I note there are minor inconsistencies between the mother's evidence about 18 April 2007, and that of her father. For example, the mother deposes that the conversation took place whilst bathing S. The maternal grandfather deposes to a discussion in S's bedroom. I do not think the inconsistencies amount to much. I am satisfied that S probably said something along the lines asserted.
The documents produced by DOCS do not refer to the JIRT interview or the report made by the paediatrician on 18 April 2007. The absence of JIRT records including a record of interview is an omission that, I trust, will be remedied by the time of the final hearing. However, the DOCS record under the date 21 May 2007 does at least confirm that S was interviewed by JIRT in April. Indeed, it is common ground between all parties that S was interviewed by JIRT and made no disclosure, that DOCS have investigated the allegations, and that both DOCS and JIRT are taking no further action.
The documents produced on subpoena by [X] Hospital record that on 18 April 2007 S did attend with her mother who reported that S had a red vagina and had returned today from her father's home. Curiously, however, the emergency department clinical record indicates that it was the mother who rang DOCS and was given the event number 1-AOQZHJ, and not the paediatrician as the mother asserts at paragraph 55 of her affidavit. A handwritten note on the record refers to a separate DOCS referral number 1-AOROBF which might be the report made by the paediatrician. It is curious that the mother has not deposed to the report that she made to DOCS. This is now the second example of the mother giving incorrect evidence about her contact with DOCS. In any event, the hospital record contains the following notes:
"A tinea or Candida infection. Unable to properly assess because of screaming. Rang DOCS and asked for her to be assessed before her Saturday access visit with dad."
On 18 April 2007 it seems that S was suffering from Thrush, or a similar condition. The mother alleges that S's disclosures include a direct link to the father, but it is clear that S made no disclosures to the JIRT officer. Even though the mother does appear to be minimalising the extent of her willingness to report matters to DOCS, I am satisfied that S was demonstrating sexualised behaviour and had said things which could implicate her father. There is certainly not the weight of evidence to lead me to find that the father acted inappropriately as regards S. However, I cannot rule it out even though, I note, neither JIRT nor DOCS appear to be taking the matter further.
Fourth Disclosure
What I will refer to as the May disclosures are referred to in paragraphs 58-60 of the mother's affidavit. The mother deposes that on 16 May 2007 whilst S was in the bath she noticed that S was red on her vagina and anus. The evidence is set out in full at that paragraph. When asked what happened S said: "Nope, it's sore, mum. I just made it sore with my fingers at daddy's." When asked where, S allegedly said: "On my daddy's bed." When asked where was daddy S said: "He was watching, mumma. He say I can and he say to." The mother deposes in paragraph 59 to taking S to the hospital on the evening of 16 May because of her concern that her vaginal redness looked like Thrush. As the waiting time was too long she ended up taking S to her GP the following morning. The doctor confirmed that S did have thrush. The mother deposes to reporting the matter to DOCS.
These events are largely corroborated in paragraphs 27 and 28 of the affidavit of Mr C sworn 13 July 2007. The mother's evidence is also largely corroborated by the [X] Emergency Department clinical record which indicates that the paediatric registrar telephoned the mother and records the conversation that was held. The record indicates that the mother attended with S on 16 May 2007 at 21:03 and left at 0034. The note refers to a telephone conversation that occurred at 0915, presumably the next day.
At paragraph 60 of the mother's affidavit she deposes that on 24 May 2007, after S had had a shower and gone into her bedroom to be dressed, and whilst she was still naked, she said to her mother: "You can't go in my minny. You go in my hair." The mother observed S putting her hairclips in her vagina. When asked why, the mother deposes that S said: "My daddy asks me to." The mother deposes that she then telephoned DOCS and reported what S had said.
The DOCS record of 21 May 2007 refers to S being taken to hospital with thrush and the allegation that she had made it sore with her fingers whilst at daddy's, and daddy said she could. There is a further record dated 29 May 2007 which referred to the child as having been the subject of numerous reports to JIRT but as having been previously interviewed by JIRT with no disclosure. The report goes on to say that: "This current report contains no fresh information that would warrant a fresh JIRT investigation." There is a further document on the DOCS file that confirms that as at 29 May 2007 neither DOCS nor JIRT were prepared to take any further action.
Mr C, in his affidavit 13 July 2007, gives evidence at paragraph 32 about another example of S's behaviour that might be characterised as sexualised behaviour, in his presence, and in the presence of the mother. This allegedly took place on 31 May 2007. Curiously, the mother does not give evidence about this event at all.
I am satisfied that S made the disclosure on 16 May and possibly also on 24 May 2007. The disclosures are linked to her father. There is no evidence that would enable me to find that he acted inappropriately. However, I cannot rule this out.
Fifth Disclosure
Further disclosures are alleged by the mother in June. At paragraph 63 of her affidavit the mother alleges that on 6 June 2007 S had said to her, in the presence of the counsellor Ms A, that: "Daddy asks me to put stuff in my minny." She also referred that disclosure to DOCS. In the affidavit of Ms A sworn 16 July 2007, she corroborates that S said to her mother, in her presence: "Daddy says to put things in my minny."
In the affidavit of Mr C at paragraph 33 he deposes that on 13 June 2007 after dinner S said to her: "Poppy, I show my daddy my minny." When asked why, the maternal grandfather deposes that S said: "He likes that and he wants to but I leave it alone now when I come here, hey, Pop."
The mother deposes about further disclosures made by S during the month of June, at paragraphs 6, 11 and 16 of her affidavit filed 13 July 2007. For example, at paragraph 6 S is alleged to have said: "I get a bit sore when I go to daddy's. Daddy asks me to stick stuff in my minny." At paragraph 11, the mother deposes that on 18 June 2007 whilst putting S to bed S said: "I don't touch my minny here. I don't have to, hey, mum." She then alleged said: "But I have to at daddy's, mum, hey." She then is said to have stated: "I have to because daddy say I like it he wants to." At paragraph 16 the mother deposes to further sexualised behaviour by S on 21 June 2007. She describes S putting her index finger in her mouth, moving it in and out and saying: "Oh yeah baby." The mother deposes that she did this in a way to simulate oral sex. She says that she was distressed at what S was doing and asked her: "What are you doing?" to which S said: "This. My daddy gets me to do it."
The mother makes two further general statements that are relevant in this context. Firstly, at paragraph 64 of her affidavit filed 12 June 2007 she states:
"I feel that in light of her disclosures and the lack of DOCS intervention that I have no option but to seek orders to cease all unsupervised time between S and Mr Harry. I have not wanted to act outside of the current Court orders and so have permitted S to continue spending time with Mr Harry. She is currently in my care having returned to me on 6 June 2007."
Then, at paragraph 27 of her affidavit filed 13 July 2007 the mother states:
"S's sexualised behaviour has continued but I have not made any further reports to the Department of Community Services. When I have observed S touching herself I have said to her: "You shouldn't do things like that in front of anyone, sweetheart."
There is a clear sense of the mother's frustration at the lack of intervention by the authorities, including DOCS and JIRT.
I am satisfied that, on balance, during the month of June S made disclosures, and was exhibiting the behaviour that is deposed to by both the mother, and the maternal grandfather. There is no evidence that would lead me to find that the father has acted inappropriately in relation to his daughter. However, I cannot rule this out.
I again record the fact that the father's evidence both in his affidavits, and in Court, is to deny that he has ever done anything inappropriate with S.
Other Evidence
The documents produced on subpoena, exhibit ICL3, by [J] Children's Centre contains no observation of any sexualised behaviour by S. These documents cover the relevant period.
The documents produced by [X] Preschool Unit, exhibit ICL2, also contain no information indicative of sexualised or other inappropriate behaviour by S. Again, these documents cover the relevant period. It is interesting, however, to note that when the mother enrolled S on
22 February 2007 she records in the enrolment form that: "Father and I separated, I would appreciate being made aware of anything causing concern relating to S, ie behaviour, becoming upset or alarmed or any concern she may express." The mother makes no reference to any of the matters to which she deposes in paragraphs 49-54 of her affidavit, namely the February disclosures. Indeed, she does not refer to the fact that she has reported the matter to DOCS. This is consistent with the mother not being overly-concerned as at that time, notwithstanding what she had observed.Nonetheless, as the Independent Children's Lawyer, Mr Holmes, observed in his closing submissions - the absence of any evidence of sexualised or other inappropriate behaviour at preschool is significant.
The affidavit of Ms A, a registered psychologist who has been working with S and her mother since 28 February 2007 contains this observation at page 4:
"I am also of the opinion, although S is not yet talking openly about it, that there could very well have been sexual abuse. This was the reason I suggested that Ms Harry take S to see the GP after a visit to her father. If abuse had occurred there could have been some physical evidence."
I place no weight on the evidence of Ms A, in this regard. In accordance with well established authority, as she had not interviewed the father and, indeed it would seem had never interviewed S without the presence of her mother, her observations would be given very little weight indeed.
Evidence of the Parties
As indicated above having regard to the nature of the allegations I allowed, indeed required, both the applicant and the respondent to give evidence in person and to be cross-examined, albeit in an abbreviated fashion. Both the applicant father and respondent mother were given leave to adduce evidence-in-chief. Both were cross-examined by the other's counsel for approximately an hour. The Independent Children's Lawyer was also given the opportunity to cross-examine.
Much of the cross-examination was designed to undermine the credit of the parents. It was, for the most part, unsuccessful. The fact is that in a case like this, with multiple allegations, and with other significant issues apart from the sexual abuse allegations, cross-examination lasting approximately an hour is likely to result, at best, in an impression being formed, but it did not leave me in a position where I would feel confident to make a finding about the credit of either party.
Despite the concerns that I expressed in the previous part of my judgment relating to inconsistencies in the mother's evidence in the context of disclosures made by S, and her response to those disclosures, I was not left doubting the veracity of the vivid description she gave in evidence of behaviour by S that could be characterised as sexualised behaviour. The mother believes that S has been sexually abused, and that the father is the perpetrator of this abuse. She believes what S is saying. She is clearly disenchanted with the authorities for failing to act further.
The father strenuously denies any involvement in any inappropriate behaviour as regards S. Whilst his attempts to explain away S's behaviour may, perhaps, be minimising its significance, I was left with no doubt that he genuinely believes that even if she is exhibiting this behaviour it can be explained by reference to innocent events and are not necessarily consistent with the perpetration of abuse. His denials that he is the perpetrator of the abuse are convincing.
The reality is, however, that when cross-examination is limited by reference to time, and when one considers that these proceedings were brought on in a relatively short period of time so that the parties had limited opportunity to gather probative evidence, findings of credit simply cannot be made. It is probable that at a final hearing, more definitive findings can and will be made. For example, the stark contrast between the evidence given by the mother, and the evidence given by the father's witnesses including the graphologist, could not be resolved because only the mother and the father gave evidence.
The limited nature of the proceedings meant that other important aspects of the affidavit evidence could not be tested. Thus, for example, the evidence that the wife gave in her affidavit filed 18 January 2007 in the Local Court [N] indicates that both parents were involved in various forms of sexual activity that might include pornography. At a final hearing one would trust that at least the Independent Children's Lawyer will explore a possible hypothesis that S's sexualised behaviour is explicable by reference to what she has seen and heard, rather than that which she has been subjected to.
Moreover, even a cursory examination of the affidavit material indicates that the level of conflict between the parents is exceptionally high, even putting aside the abuse allegations. The mother makes very strong assertions of violence both during cohabitation and afterwards, which the father denies. Whilst the hearing did not focus on this aspect of the matter, there is extensive evidence that currently remains untested, relating to family violence which, if observed by S, might also help to explain S's behaviour.
In view of all of the above matters, even though being able to see and hear the parents was useful, and even though it enables me to form an impression about each of the parents, it does not enable me to make findings as to credit. This leaves me with the findings I was able to make about S's disclosures to her mother, and to others, which are linked to her father; with uncontested evidence such as the fact that DOCS and JIRT are not proceeding with their investigation; and with independent evidence such as the documents produced on subpoena. I am also left with being able to draw inferences or possible inferences arising out of inconsistencies in the evidence, particularly the mother's evidence, and her failure to express concern about S's sexualised behaviour at a time, and in a context, when one would have expected a mother to express such concerns.
The submissions
On behalf of the applicant mother, Mr Bell submitted that S has said things that must lead to a finding, even at an interim level, of the existence of a risk of sexual abuse. His submission was, in effect, that there was an unacceptable risk of abuse if S spends time with her father, except in a supervised environment. He emphasised that the burden of dealing with unacceptable risk in these cases is much easier because of the availability of supervised contact facilities, and other supervisors.
Ms Escobar, for the applicant father, submitted that there was no risk of sexual abuse, and that basically the detailed review of the evidence, complete with multiple inconsistencies, leads to a situation where the wife's evidence about S's disclosures lack credibility. She emphasised that a number of the mother's allegations can be explained by innocent behaviour (teaching S how to wash herself in the bath) or independent events (S being hurt by another girl) or by unrelated illness (S suffering thrush). She emphasised the significance of both DOCS and JIRT having investigated the matter and not proceeding. Ms Escobar quoted the words of Fogarty J in M & S and the Separate Representative to the effect that ambiguous events often have an innocent explanation.
Mr Holmes, the Independent Children's Lawyer, commenced his submissions by expressing his deepest concerns about this matter as the evidence indicates that S has already been exposed to multiple interactions with doctors, psychologists, JIRT and DOCS and was rapidly becoming a victim of systems abuse. He voiced concerns about the exposure of S to the significant hostility between her parents. He submitted that I should put considerable weight on the orders made by the Local Court Magistrate in [N], and to the independent evidence that tends to undermine the mother's concerns. He submitted that the totality of the evidence, especially the objective evidence, enables the Court to conclude that there is no unacceptable risk. However, he conceded that in view of the high levels of conflict it was still necessary to protect S in all of this.
Discussion
This is a finely balanced case. Whilst the test in these cases is expressed as whether there is an unacceptable risk of abuse to S if she spends time with her father, there can be no doubt that I still have to make a decision having regard to S's best interests as the paramount consideration: s.60CA. Cases such as this one require me to reconcile two primary considerations expressed in s.60CC(2) that, prima facie, compete with each other. It is indisputable that there is a benefit to S of having a meaningful relationship with her father. However, it is equally inescapable that I must protect her from any form of harm associated with being subjected to, or exposed to, abuse or family violence. In the context of interim hearings such as the present one I am satisfied that S's disclosures to her mother, and to the maternal grandfather, require me to firstly protect her from the risk of further abuse. The powerful and persuasive submissions of the father's solicitor, Ms Escobar, and the Independent Children's Lawyer,
Mr Holmes, may well carry the day at a final hearing, particularly after all the evidence is tested and, importantly, I can make findings as to credit of the mother and the father, but in an interim hearing I cannot take any chances with S. I am satisfied that S will continue to have a meaningful relationship with her father by seeing him as regularly as possible in a supervised environment. I am comforted in making this decision by the fact that planning is already underway to appoint
Dr Antony Milch as the Pt 15 expert, and also by the fact that it has been possible to find hearing time as early as 7 November, less than three months away. Whilst there would be irreparable harm to S if she were abused in an unsupervised time context with her father between now and the hearing, by contrast the damage that would be caused to S's relationship with her father as a result of supervision can, I am confident, be repaired within a short time.
I am conscious of the fact that the father gave evidence about supervised time with S, and how unsatisfactory he believed it was both for her, and for him. The Court acknowledges this. I was left wondering, however, whether it was the father who would cope less with supervised contact, than S. I make these comments to the father. S loves you, and she needs you. It is not S's fault that I am imposing supervision. I have not made any findings that you have acted inappropriately with S. However, the nature and the frequency of the disclosures made by S also mean it is not possible for me to exclude the possibility that you are linked to inappropriate behaviour with her. A final hearing is less than three months away. There will be much more evidence at that time on which to make more confident findings. Even if you are uncomfortable about supervised time with S, for her sake, and her sake alone, you might consider putting aside that discomfort. I remind you that supervision not only protects S, but it also protects you from further allegations.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Monique Robb
Date: 17 August 2007
3
1