Hartford & Ansilda
[2009] FamCA 23
•22 January 2009
FAMILY COURT OF AUSTRALIA
| HARTFORD & ANSILDA | [2009] FamCA 23 |
| FAMILY LAW – CHILDREN – parenting orders – Magellan – young child – allegations without foundation – credit findings against mother – risk to child’s emotional well-being – change of residence |
| Family Law Act 1975 (Cth) ss 60B(1), 60CC, 60CC(2),(3),(4) and (4A), 61DA, 61DA(2), 65DAA(1), 65DAA(2) |
| M and M (1988) CLR 69 B and B (1993) FLC 92-357 Re W (Sex abuse: standard of proof) (2004) FLC 93-192 WK v SR (1997) FLC 92-787 K v B (1994) FLC 92-478 W v W (abuse allegations; unacceptable risk) (2005) FLC 93-235 N and S and the Separate Representative (1996) FLC 92-655 S v S [1993] NZFLR 657 |
| FATHER: | MR HARTFORD |
| MOTHER: | MS ANSILDA |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 10686 | of | 2007 |
| DATE DELIVERED: | 22 January, 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | BROWN J |
| HEARING DATE: | 1, 2, 3, 4, 5 and 8 September, 2008 |
REPRESENTATION
| COUNSEL FOR THE FATHER: | Mr. Mawson SC, with Mr. Wood |
| SOLICITOR FOR THE FATHER: | Gillian Coote Family Law |
| COUNSEL FOR THE MOTHER: | Mr. Werner |
| SOLICITOR FOR THE MOTHER: | DKP Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr. Eidelson |
| INDEPENDENT CHILDREN’S LAWYER | Victoria Legal Aid |
Orders
That all previous parenting orders and injunctions in respect of the child … born … December, 2006 be discharged.
That the father have sole parental responsibility for the child.
That the father consult the mother prior to making a decision about :
(a)the kindergarten or school in which to enrol the child and any subsequent change of kindergarten or school;
(b)any significant medical intervention for the child (save in an emergency and not including routine day-to-day medical intervention); and
(c)any proposed international travel with the child.
That the child live with the father.
That the mother be and is hereby restrained, by herself, her servants and agents from removing the child from the father’s possession or the possession of any person with whom he has placed the child, save pursuant to these or subsequent orders, or the father’s specific agreement.
That until the child commences school, and subject to any agreement between the parties to the contrary, the child spend time with the mother as follows :
(a)each alternate weekend from 9:00 am. on Saturday until 5:00 pm. on Sunday, commencing on 31 January, 2009;
(b)from 9:00 am. until 5:00 pm. on each alternate Thursday, commencing on 5 February, 2009;
(c)from 9:00 am. on each alternate Monday until 5:00 pm. on the following Tuesday, commencing on 26 January, 2009;
(d)if the child would not otherwise be with the mother on Mothers’ Day, from 9:00 am. until 5:00 pm. on Mothers’ Day;
(e)if the child would not otherwise be with the mother on the child’s birthday, for four hours on her birthday at times to be agreed, and failing agreement from 10:00 am. until 2:00 pm.; and
(f)at such other times as are agreed between the parties.
That upon the child commencing school and subject to any agreement between the parties to the contrary, the child spend time with the mother :
(a)during school terms, on each alternate weekend from the conclusion of school on Friday until the commencement of school the following Tuesday, commencing on the first weekend in each school term;
(b)in the alternate week, from the conclusion of school on Monday until the commencement of school the following Tuesday;
(c)for one half of school holiday periods, at times to be agreed, and failing agreement :
(i)the first half in even years; and
(ii)the second half in odd years;
(d)for a period on the child’s birthday, at times to be agreed and, failing agreement :
(i)if the birthday falls on a school day, from the conclusion of the school day until 7:00 pm.; and
(ii)if the birthday falls on a non-school day from 10:00 am. until 2:00 pm.;
(e)if the child would not otherwise be with the mother on Mothers’ Day, from 9:00 am. to 5:00 pm. on Mothers’ Day; and
(f)at such other times as are agreed between the parties.
That notwithstanding anything to the contrary in these orders, and subject to any agreement to the contrary between the parties, upon the child commencing school :
(a)the parent who does not have the child with him or her in the first half of the summer school holiday period shall spend time with the child from 2:00 pm. Christmas Day until 7:00 pm. Boxing Day;
(b)if the child would not otherwise live with the father on Fathers’ Day, the father shall spend time with her from 9:00 am. until 5:00 pm. on Fathers’ Day; and
(c)changeovers which occur at the commencement or conclusion of a school day take place at the school.
That the mother communicate with the child by telephone, at reasonable times, PROVIDED THAT save with the consent of the father, the mother not telephone the child more than once each day.
That on or before 30 January, 2009 each of the parties do all things reasonably necessary to apply to use M Contact Centre for changeovers, and as soon as a place becomes available at M Centre, but subject always to agreement between the parties to the contrary, changeovers which occur during M Centre hours of operation, take place at M Centre, until the child turns four, and the father be responsible for the costs of changeover at M Centre.
That subject to any agreement between the parties to the contrary, and until the child turns four :
(a) changeovers prior to M Centre offering the parties a place in its changeover program; and
(b)changeovers which occur when M Centre is not open;
be undertaken by an independent person employed by Aiding and Caring Sitters Agency or other like professional agency and the person undertaking the changeovers deliver the child to the mother’s home at the commencement of a period of time with her and collect the child from the mother’s home at the conclusion of a period of time with her, and the father be responsible for all costs associated with this order.
That upon the child turning four, and subject to any agreement to the contrary between the parties, changeovers occur at an agreed neutral venue and, failing agreement, at the McDonald’s Restaurant closest to the mother’s home.
That the parties use a communication book to inform each other of matters referrable to the child’s welfare and the communication book accompany the child at changeovers.
That the father advise the mother in writing of each crèche, childcare centre or kindergarten attended by the child, PROVIDED THAT this order does not require the father to advise the mother of the name of a person who babysits the child, whether in his home or the babysitter’s home.
That the mother be and is hereby restrained by herself, her servants and agents from attending at a crèche, childcare centre or kindergarten attended by the child, save :
(a)on a day when the child is in her care pursuant to these orders; or
(b)with the written consent of the father.
That the father advise the mother in writing of the school at which the child is to be enrolled no later than fourteen days prior to her first day of school and thereafter keep the mother advised in writing of any change in the school at which the child is enrolled.
That each of the parties forthwith advise the other of any significant illness or accident suffered by the child when in his or her care.
That nothing in paragraphs (15), (16) or (17)hereof derogates from the father’s obligation to consult the mother, pursuant to paragraph (3) hereof.
That from the date on which the child commences school, the mother be at liberty to attend events, activities and functions routinely attended by parents PROVIDED THAT the mother may not remove the child from the school, save to spend time with her pursuant to these orders or with the written agreement of the father.
That the father authorise the principal of each kindergarten and school attended by the child to provide to the mother, at her request and her expense (if any), by ordinary mail, copies of :
(a)each order form for kindergarten or school photos of the child; and
(b)each kindergarten or school report for the child.
That the mother be and is hereby restrained from taking or allowing any other person to take the child for any medical examination, or therapeutic intervention by any medical practitioner, psychologist, social worker, counsellor or like professional which relates in any way to an allegation that the child has been sexually abused by the father or by any other person when in his care, save pursuant to a request from a protective worker employed by the Department of Human Services or a member of a police force.
That the father serve a sealed copy of these orders on the principal of each crèche, childcare centre, kindergarten or school attended by the child from time to time as soon as practicable after her enrolment.
That the independent children’s lawyer serve a sealed copy of these orders and the reasons for judgment on the Department of Human Services, together with a letter advising of the provisions of paragraph (21) of these orders.
That the reasons for judgment herein may be made available to :
(a)the principal of a crèche, childcare centre, kindergarten or school attended by the child from time to time and, in the absolute discretion of that principal, any teacher or staff member working with the child;
(b)a protective worker or other person employed by the Department of Human Services or to whom the Department of Human Services has referred a party or the child, who is investigating any subsequent allegation referrable to alleged sexual abuse of the child or other physical or emotional abuse of the child ;
(c)a member of Victoria Police or Australian Federal Police involved in investigating any allegation which relates to a party or the child;
(d)Constable O and any other member of Victoria Police or the Office of Public Prosecutions involved in investigation of an incident on 8 June, 2008 outside the mother’s home and involved in the prosecution of any charge laid by Victoria Police referrable to the incident between the parties that day;
(e)Dr. E;
(f)Mr. V; and
(g)any medical practitioner, psychologist, therapist or counsellor who may be treating the child at the request of the father or the Department of Human Services.
That implementation of these orders be supervised by a family consultant pursuant to s.65L of the Family Law Act 1975 for a period of twelve months and such supervision be reportable if :
(a)an application is filed in this or another court having jurisdiction under the Family Law Act 1975 by a person seeking orders referrable to the child; and
(b)the judicial officer before whom such application is listed, so orders.
That each of the parties keep the other informed of a telephone number at which he or she can be contacted in an emergency, and an email address to which written correspondence can be sent by the other.
That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal.
That each of the parties by themselves their servants and agents be and are hereby restrained from discussing the evidence adduced in these proceedings and the judgment herein with the child or in the presence or hearing of the child.
That the father pay the costs of Constable O, fixed at $529.60, within one month hereof.
That the independent children’s lawyer’s application for costs be dismissed.
That all extant applications be otherwise dismissed save that there be liberty to apply within fourteen days if a party presses a costs application.
That these proceedings be removed from the List of matters awaiting finalisation.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel, including senior counsel.
IT IS NOTED that publication of this judgment under the pseudonym Hartford & Ansilda is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 10686 of 2007
| MR HARTFORD |
Father
And
| MS ANSILDA |
Mother
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
Mr Hartford (“the father”) and Ms Ansilda (“the mother”) have a daughter, who was born in December, 2006. The mother alleged that the father is a sexual predator who started sexually abusing the child when she was a tiny baby and continued to do so while the litigation was on foot. She alleged he has acted in a physically (and possibly sexually) inappropriate way with one of her sons from a previous marriage and has been physically and verbally abusive to her. Until final submissions, it was her case that the child was at risk of further sexual abuse if allowed to spend any unsupervised time with her father. She sought an order that the child continue to live with her and she have sole parental responsibility for her.
As final submissions were about to commence, after a six day trial, counsel for the mother informed the court that she would be making a submission that the mother “needs to turn the page”. She said the mother “accepts she needs to move forward on the basis the child has not been sexually abused” and sought to reopen her case to call evidence about a changeover the previous day. By consent, four statements were read into the evidence and accepted as true. I will refer to them later.
In final submissions, it was put that the mother conceded that the evidence before the court was not sufficient to support a finding, at the requisite standard of proof, that the father poses an unacceptable risk to the child. She submitted the court should order the immediate introduction of unsupervised time with the child, on an overnight basis. Asked how much time, counsel said she had no specific instructions and was content to leave that question to the court but then submitted that “up to five overnights per fortnight” could be envisaged.
It was the mother’s submission that orders for the father’s time with the child should be interim orders and the case should be brought back for review in twelve months. The mother would submit to any mental health treatment recommended by the independent children’s lawyer and did not oppose a number of orders sought by the ICL, including orders for changeovers to be at a contact centre, injunctions aimed at protecting the child from direct implication in her parents’ dispute, and orders to ensure each party kept the other advised of contact details and used a communication book.
Despite this apparent capitulation, counsel for the mother submitted that the father fell short as a credible witness and that the court could find he had acted in some of the ways alleged by the mother.
The father denied any sexual abuse of the child or any sexually inappropriate behaviour with her. He denied he has ever physically or sexually abused the mother’s son and denied being violent to the mother. He alleged that the mother invented the various allegations to punish him for his refusal to commit to a long term relationship with her, and enlisted her other children in a destructive conspiracy designed to ensure he plays no meaningful role in the child’s life. From his perspective, her late change of heart was nothing but a cynical ploy to stave off the consequences of her manipulative and dishonest behaviour.
When he filed an amended application on 16 April, 2008 the father sought an order for equal shared parental responsibility. In final submissions that was amended to an order that he have sole parental responsibility. He sought that the child live with him. For the first three months after the change of residence she should see her mother from 9:00 am. to 1:00 pm. on two week days and from 9:00 am. to 5:00 pm. on each alternate Saturday and Sunday. Thereafter he proposed time as submitted by the ICL.
The father proposed that he look after the child on a fulltime basis. He said he was financially able to do so without taking fulltime employment. He has made general enquiries about crèches in the area and would use a facility such as “I Facility” in B or babysitters. He was criticised for not calling a young woman who has indicated a willingness to be involved as a babysitter, criticism which I do not find well based. Resident parents routinely use babysitters.
The father has completed two parenting courses, one in 2008 and the other with GordonCare. The father’s mother said that it would be feasible for her to come and assist if necessary. She thought her son would ask for her advice, and she would offer it, but she had no qualms about his capacity to look after the child on his own.
The independent children’s lawyer submitted that the child should move to live with her father and he should have sole parental responsibility for her. She should be with her mother on each alternate weekend from 9:00 am. Saturday until 5:00 pm. Sunday and on each Tuesday and Thursday from 9:00 am. until 1:00 pm., until turning three. She should then spend each alternate weekend from 5:00 pm. Friday until 5:00 pm. Sunday and each Wednesday from 9:00 am. until 5:00 pm. with her mother. Presumably, another arrangement would need to be made once she commenced school.
The ICL supported changeovers at M Contact Centre or, if that centre were unavailable, an agreed public venue. He sought injunctions restraining both parties from denigrating the other or discussing the proceedings within the child’s presence or hearing and orders relating to the provision of information about the child’s health and the utilisation of a communication book.
PARTIES
The mother is 35. She has a son, X, who is 15 or 16, from her first marriage. His father lives in Adelaide and he has little contact with him. The mother has two sons from her second marriage to Mr Ansilda; Q is 12 and L is eight. Mr. Ansilda treated X as his son; X took his surname and is financially supported by Mr. Ansilda. She and Mr. Ansilda separated when L was one. The mother and her children live in a house in B which is owned by Mr. Ansilda and she is financially dependent on him. She is not in regular paid employment but there was some evidence of occasional work.
The father is 31 and lives in an apartment in N. He does seasonal work in the media and is otherwise involved in a property development and charity work. He has no other children.
LEGAL PRINCIPLES
The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children as follows :
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The objects point the way to an optimum outcome. The first two are picked up in s.60CC(2) as the primary considerations when determining where children's best interests lie. The second is also reflected in the circumstances in which the presumption of equal shared parental responsibility is not to apply, those circumstances relating to findings about violence; see s.61DA(2).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M (1988) 166 CLR 69. The High Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) made it clear that the ultimate and paramount issue to be decided in proceedings for what are now called parenting orders is whether the making of the orders sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation of sexual abuse by the parent who seeks residence or time with a child does not alter the paramount and ultimate issue which the court has to determine. The High Court found (at 76) that although findings on the disputed allegation of sexual abuse will have an important, and sometimes a decisive, impact on the resolution of that issue,
…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 ALJR 499; 1 ALR 318: McKee v McKee (1951) AC 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 CLR 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 context 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 a joint judgment in B and B (1993) FLC 92-357 the Full Court (Fogarty, Baker and Purvis JJ) discussed the relevant principles, having regard to the High Court’s decision in M and M and at 79,778 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.
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.
In Re W (Sex abuse: standard of proof) (2004) FLC 93-192 the Full Court (Kay, Holden and O’Ryan JJ) examined the principles applicable in cases involving difficult questions of sexual abuse where the only witnesses to the alleged abuse are the alleged perpetrator and the alleged victim, noting the particular difficulties where the victim is young and does not give any direct testimony that can be the subject of forensic testing.
The Full Court considered the relevance of the decision in WK v SR (1997) FLC 92 -787. In that case the trial judge had found that the father had sexually molested both his step-daughter and his own daughter. The Full Court said, at 84,691:
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 found that the trial judge had not paid attention to these views, and that unless the rigorous approach set out in WK v SR is taken, in circumstances where the often inevitable result of a positive finding of abuse is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and the child the disastrous effects of a positive finding that is reached in error. The Full Court found that the termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort, noting (at 79,217-8):
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 remain conscious of this imperfection at all times.
The Full Court then referred with approval to the dissenting judgment of Kay J in K v B (1994) FLC 92-478 where His Honour said, at 80, 972:
In cases of alleged sexual abuse, there is a significant risk that the ultimate effect of orders to be made by the court, and of the proper operation of the legal system, will be overlooked in the court’s anxiety to ensure that the risks of sexual interference are minimised. Where the evidence of sexual abuse consists of ambiguous statements of a pre-kindergarten aged child coupled with perceived but possibly otherwise explicable behavioural changes, it is almost impossible for the party denying any impropriety to prove that party’s position.
In an article entitled 'Prediction, Prevention and Clinical Expertise in Child Custody Cases In Which Allegations of Child Sexual Abuse Have Been Made', appearing in Volume XXVI No 2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law), at p 170, it was observed:
'Unfortunately the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draw the clinician — and perhaps even judges and jurors as well,... away from what ought always to be the starting point of her or his evaluation enquiries, which is that the event did not (or very highly probably did not) occur. Because the null hypothesis (and, correlatively the absence of an event) cannot be proved, in their testimonies concerning possibilities of alleged events, clinicians strongly resist exonerating the targets of their evaluation. Because it is always possible that a given individual — even one randomly drawn from the general or a specific population — has sexually molested a child, an inconvertible proof that the individual has not molested a child is impossible.' (emphasis in original)
The article concerns itself with research carried out at the University of Michigan. Case notes concerning the possible sexual abuse of a three year old child were provided to 8 senior clinical psychologists, 23 graduate students undergoing clinical training in psychology and 50 members of staff of child guidance clinics including social workers, clinical psychologists and psychiatrists all specialising in child development in areas of child mental health. They were asked individually and then in groups to evaluate the probabilities that sexual abuse had occurred and then to recommend what if any ongoing child/father contact should take place.
The range of opinion on whether there had been abuse was so wide that the authors concluded as follows:
The most striking feature of these studies’ findings is the extremely large range across experienced and non-experienced clinicians of estimates concerning the likelihood that M was sexually abused by her father. When given all of the relevant facts of the case, child experts and trainees varied greatly in their individual judgment... These findings lend strong support for the view that individual experts can provide courts little if any assurance that they are able to provide even crudely reasonable (i.e. objective) estimates of likelihood that child sexual abuse has occurred or will occur, when they are confronted with the same set of ambiguities faced by the courts in these cases.
In Re W, the Full Court concluded its analysis of the relevant legal principles by remarking, at 79,218:
The lessons to be learned have not changed. The risk that the Court will find heinous behaviour where none has occurred needs be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.
As I have observed before, and with respect to the Full Court, one might as well say that the harm and injustice that flows to both parent and child from an erroneous negative finding is almost too horrible to contemplate, that harm including repeated sexual abuse of a child. Nevertheless, I am bound by the exposition of principle in the judgment.
In W v W (abuse allegations; unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) examined principles relevant to child sexual abuse cases with particular emphasis on what is meant by unacceptable risk, the potential cessation of a significant or meaningful parent/child relationship and the appropriateness or otherwise of supervised contact. As a starting point the Full Court referred to the significant detrimental harm to a child who is sexually abused, noting (at 79,906) the discussion by Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 where His Honour said, at 82,709:
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.
The Full Court also had regard to Fogarty J’s acknowledgement of the potential for false allegations. Referring to Thomas J’s judgment in S v S [1993] NZFLR 657, Fogarty J said (at 82,711):
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 or 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.
After considering a number of decisions in which the concept of unacceptable risk was considered, the Full Court in W and W concluded (at 79,910):
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 recognized 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.
EVIDENCE
Findings are made on the balance of probabilities, having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.
The father relied on an affidavit sworn by him on 3 July, 2008, together with an affidavit of a friend, Mr K, sworn on 3 July, 2008 and an affidavit sworn by his mother, the paternal grandmother, on 19 February, 2008. The father, Mr. K and the paternal grandmother were cross-examined.
The father also relied on affidavits sworn on 3 July, 2008 by Ms C and Mr T. Ms. C deposed to a friendship with the father since 2002 (her husband has known him for much longer) and to her observations of the warm bond and positive interaction between the father and the child. Mr. T deposed to his contact with the father from late 2000, the father’s interaction with his own children and his confidence in the father’s parenting capacity. Neither Ms. C nor Mr. T were required for cross-examination.
Pursuant to a subpoena the father called Constable O who attended the mother’s home on 8 June, 2008 in response to a call to 000 and who took statements from the mother on 8 June and 16 July, 2008, a statement from Ms G on 8 June, 2008 and statements from the father on 8 June and 19 August, 2008. He completed an investigation into the mother’s allegations of assault that day and his report has been submitted to his sergeant, whose role it is to decide whether charges should be laid. Constable O’s recommendation is that a prosecution not be authorised. Constable O was cross-examined.
The mother relied on affidavits sworn by her on 31 January and 20 August, 2008 and an affidavit sworn by a friend, Ms G, on 20 August, 2008, as well as an affidavit sworn by her sister, Ms M, on 20 August, 2008. All were cross-examined.
The independent children’s lawyer relied on two reports prepared by Dr. E (dated 18 February and 30 June, 2008) and a family report prepared by Mr. V, dated 4 April, 2008. Dr. E and Mr. V were cross-examined. The ICL also relied on a medical report prepared by a paediatrician, Dr. LO, for the Department of Human Services, dated 25 March, 2008 and the Department of Human Services report dated 4 January, 2008 prepared in response to a request from the court. Neither Dr. LO nor any protective worker was called to give additional evidence or be cross-examined.
I must find that I have no confidence in the mother’s capacity for objective recollection. Dr. E’s opinion was that the mother is a vengeful woman, intractably hostile to the father and consumed by her rage against him, and this assessment was borne out by her presentation in court. It is not uncommon for a witness to reconstruct events to put him or herself in a better light. An account of events given many months after those events may contain omissions or inaccuracies but not be formulated with any intent to deceive. It is understandable that a woman who believes her child has been sexually abused may interpret words and actions of the alleged perpetrator in the way most adverse to that alleged perpetrator, evaluating observations through a lens of fear and anger.
In this case, I must find it more probable than not that the mother was motivated not by a desire to protect her daughter from the harm alleged, but by a desire to punish the father, and that the child became the vehicle by which to inflict that punishment. I am satisfied she endeavoured to tailor her evidence to suit the case she wanted to make and did so deliberately, with the aim of persuading the court that the father is a violent sexual predator, who has abused the child since she was a baby and continued to do so when the court allowed him to have unsupervised time with her. To this end, she reconstructed events as if writing and editing a script; she deleted words and actions which did her no credit and contradicted the case she sought to make; she inserted fictional vignettes; she rewrote previously written accounts, on realising inconsistencies within them; she put words into the mouths of bit players.
In Dr. E’s first report, he noted that the mother told him that her former husband, Mr. Ansilda, was aggressive, sometimes physically and would hit her in the stomach. She said he blackened her eye and banged her head on the floor; he could be verbally abusive and would throw plates. The mother took issue with Dr. E’s account. When pressed, she would concede only that her former husband had been violent to her on one occasion and that on that occasion, he pushed her and did not hit her. She said she hit the edge of a table, and fell. It was her evidence that she had never required an intervention order against Mr. Ansilda.
There may be many reasons why a woman who has lived with a violent man may repress or deny the violence. Recollection may revive not only the physical pain but feelings of fear, humiliation, powerlessness and despair. She may be concerned about fresh violence or the withdrawal of financial support. A sense of safety, hard won, may dissipate.
I have no doubt the mother told Dr. E the things he reported and, as the evidence eventually demonstrated, she had reason to do so. It may have been hard for her to speak about that aspect of her relationship with Mr. Ansilda. However, her subsequent denial of the history given to Dr. E and of the violence itself must raise significant concerns about her truthfulness, particularly as I am satisfied the denials were motivated by a desire to discredit an objective witness, who she saw as undermining her cause. The mother’s reconstruction of this period may well be an illustration of a tendency, to which Dr. E adverted, to re-arrange events and repress anything too difficult to acknowledge.
Cross-examination revealed that the mother applied for an intervention order against Mr. Ansilda on 21 February, 2002 and that police were involved after a number of altercations between the mother and Mr. Ansilda. Police records note involvement in December 1997, February 1998, May 1998, July 1998, November 1998, April 1999 and April 2001. They record allegations that the mother was hit in the stomach and the face, was pushed out of a moving car, was grabbed and assaulted when attempting to flee, was slapped in the face and pushed into a wall (to the extent that plaster was damaged) and to arguments. The mother agreed that DHS were involved with the family when she had a black eye; she said she could shed no light on a DHS report of an investigation conducted between 12 and 19 April, 2001 arising out of alleged concern that the mother had been violent to Mr. Ansilda and had hit him, at a time she was regularly using marihuana.
The mother seemed plausible and genuine when talking of her relationship with Mr. Ansilda but the scenario she painted was contradicted by other evidence; the picture was false. These lies reinforce the need for caution when assessing the evidence of the mother.
Ms. G has been a friend of the mother for some six years. Her evidence was of the mother raising a number of the allegations with her prior to the litigation. She undertook a number of changeovers as, according to the mother, the mother could not physically bring herself to hand the child to the father. Her evidence was of particular relevance to events on 8 June, 2008, a day on which police were called to the mother’s home. I will refer to events on that day in more detail later but Ms. G was adamant that she did not hand the child to the father. In her affidavit she deposed to him snatching the child from her and that was the thrust of her oral evidence; she said she did not hand the child into the father’s arms and “it is not correct I handed her to him”.
In evidence was a video of part of that incident. There was a dispute as to the time the video was taken, and what part of the dispute it captured, but one thing was very clear; Ms. G handed the child into the father’s arms. Her actions were gentle and considered; so were his.
In a statement made to police on the day the incident occurred, Ms. G said that she checked that it was alright with the mother (that is, to take the child out to see the father) and continued : “So I opened the gate and handed the child to the father.”
Ms. G is a good friend of the mother and has obviously been very supportive of her and her children. It is unsurprising, in such circumstances, that a witness will be partisan to the friend’s cause and may colour evidence to assist that cause. Ms. G was given a chance to consider whether that might have been the case here; that, having given the child to the father on 8 June, and then witnessed the subsequent dispute, she exaggerated or reconstructed events so she could tell her friend the child had been snatched. Ms. G did not use that opportunity; she remained adamant that that part of the incident occurred as she alleged in her affidavit and that she “got it wrong” in the police statement. Having heard that evidence, the court could not be confident of the accuracy of the balance of her evidence about events on that day, or more generally.
Ms. M’s evidence went only to conversations with her sister in which she was told, variously, that the father had licked the child’s private parts, placed the child on his erect penis and bruised the child’s lip by sucking on it. Ms. M presented as nervous and reluctant to be involved. She impressed as an honest woman, doing her best to tell the truth as she recalled it.
The father made no secret of his frustration at the allegations of abuse and the impact they have had on his relationship with his daughter. It is probable he initially tried to deal with the allegations by accommodating the mother’s concerns but became increasingly reluctant to do so. I am satisfied the parties maintained a sexual relationship well after the allegations were aired and the litigation commenced, and the father appeared either oblivious of or indifferent to the potential for his behaviour to lead the mother to believe she might yet achieve the committed relationship she sought to have with him. It is probable he has made rude and snide remarks to Ms. G in the course of some changeovers, although she has probably exaggerated them; she said nothing of them in her affidavit.
A man of more insight would have withdrawn from the relationship with the mother much earlier, recognising its destructive orbit. A man of more insight may have been able to walk away from some situations which escalated into highly conflictual ones, although walking away from the mother or refusing to engage with her was no guarantee of a peaceful outcome, as events in June and July 2007 illustrate. I do have more confidence in the father’s truthfulness than that of the mother and save for express findings to the contrary, I find him to be a generally honest witness.
Mr. K was a very impressive witness. When the father came to Melbourne as a very young man he lived with Mr. K’s family and the men have remained close. Despite the vitriolic allegations made against him (the mother accused him of joining the father in paedophilic abuse of the child) Mr. K presented as wry and detached and displayed a remarkable lack of animosity towards the mother. I find him a truthful witness.
The paternal grandmother was also an impressive witness. She was present on at least one occasion when, the mother alleged, the father behaved in a sexually explicit way towards the child. I have no hesitation in finding that she told the truth about those events and was a reliable witness.
Dr. E’s evidence was cogent and insightful and I place weight on it.
As Mr. V observed, Dr. E saw the parties again after Mr. V completed the family report and a number of critical events occurred in the period after Mr. V’s report was released. Mr. V agreed with much of Dr. E’s evidence and readily conceded their respective areas of expertise; at one point he said he was a social worker, not a psychologist, and did not feel qualified to give an expert response to a particular question. I place weight on his evidence.
CHRONOLOGY
It is common ground that the parties met in about September 2005 and commenced a sexual relationship soon thereafter. They do not agree on the nature or extent of that relationship. I am satisfied they never lived together. Despite the allegations of sexual abuse raised by the mother in early August 2007, and the filing of proceedings in this court by the father on 25 September, 2007, the father deposed to a continuing sexual relationship until January 2008. The mother’s evidence was of ending the relationship on 6 August, 2007. Taxed with her own evidence of sexual intercourse with the father on 27 November, 2007, the mother characterised it as an isolated event and did not resile from her evidence that it was she who called the relationship off on 6 August. It is probable the parties did not have intercourse between about early August and November 2007, but then resumed that aspect of their relationship until January 2008.
It is probable the parties’ relationship was casual and highly sexualised from the outset. While it is tempting to draw inferences from their continuing sexual relationship after litigation commenced, I am mindful of Dr. E’s caution and simply make findings that the parties continued the sexual relationship into 2008, that their intimacy on 27 November, 2007 was not the isolated occasion to which the mother deposed and that into early 2008 the mother harboured hopes that the father could be persuaded to commit to a long term relationship.
The father told Dr. E that the mother was “a woman scorned” and the evidence supports findings that the mother wanted far more from this relationship than the father was ever prepared to give; that the mother’s characterisation of their relationship as a mutually committed one was false; that the mother told the father, in the presence of Mr. K, that she and the child came as a package; and that when the father maintained his position that there was no prospect of him forming a family unit with the mother, the subject child and the mother’s other children, the mother determined on a course of conduct designed to humiliate the father and destroy the opportunity for him to have a meaningful relationship with his daughter.
The mother sought to rely on a series of romantic and/or lustful text messages which the father sent her in 2006, when she was pregnant with the child. They cannot carry the forensic weight attributed to them and do little other than substantiate Dr. E’s evidence of a lack of a “certain moral awareness of his (the father’s) responsibilities” to the mother. By this Dr. E meant that in continuing to conduct a relationship largely of a sexual nature, when he knew the mother wanted him to care for her in a committed life long relationship, and knew that she was insecure and emotionally needy, was not to consider the mother’s well-being.
The child was born in December, 2006. The mother complained the father was emotionally distant before the birth. He was present at the birth but he left for Adelaide to see his mother just prior to the mother and the child’s discharge from hospital, and the mother, reasonably, felt unhappy about the lack of support from him at that time. Nevertheless, on his return their sexual relationship resumed and the mother and the child often spent time with the father, commonly at his home. He also had the child alone on a few occasions.
By mid 2007, tensions between the parties were more evident. The father remained opposed to a committed relationship; the mother was probably increasingly distressed by this, which she found hard to accept, and became more strident in her accusations about a relationship between Mr. K and the father, and the father’s perceived inadequacies.
In late July or early August 2007 the father decided he had to make the mother understand that the relationship between them as individuals (but not as parents) would not work on a long term basis. The conversation was heated; at one point the mother said “Is this our last conversation?” She said she would make sure the child despised him as much as she did.
The mother alleged that on 6 August, 2007 she rang the father and said she “couldn’t do this any more because of the things he had been doing”. The mother may genuinely believe she told him then that the relationship was over but I am not satisfied she conveyed that as now recalled. Nor am I satisfied she accurately recalled a conversation she had with the paternal grandmother on 4 August, 2007.
In August 2007 the father consulted a solicitor and on 10 August the solicitor wrote to the mother putting forward proposals for a child support agreement and formalising contact arrangements. His solicitor advised that although he would ultimately like to work towards an arrangement of equal shared care of the child, he recognised that “because of [the child’s] young age, she has a primary attachment to you”. He proposed spending time with her from 11:30 am. until 4:30 pm. on Mondays, Wednesdays and Fridays, and on each alternate Sunday, with the time increasing to include at least one 24 hour period per week, at times to be agreed, after the child first birthday in December.
By letter of 28 August, 2007, solicitors advised the father’s solicitors they acted for the mother. The letter commenced by stating the mother’s instructions that she and the father “lived together but have now separated”. There is no reason to doubt the instructions were accurately reported but the proposition (that they lived together) was baseless. The solicitors advised that the mother :
. . . holds real concern about [the father’s] conduct towards their daughter. It is her hope that these concerns can be addressed but, at present, she can only agree to [the father] spending time with [the child] provided that this occurs in her presence.
The balance of the letter related to financial issues.
On Fathers’ Day 2007 (2 September, 2007) the father attended the mother’s home to spend time with the child. Unbeknown to him, she taped the conversation with him, much of which was an interrogation designed to elicit admission of inappropriate and sexualised behaviour with the child. She annexed an alleged transcript of the conversation to an affidavit sworn by her on 31 January, 2008. The father agreed with the general gist of the transcript, although it was his evidence that some of it was out of order and some words were omitted; this was confirmed when the tape was played. The mother alleged that the father made admissions to sexually abusing the child in this conversation. She ignored the relevance of tone (for example, a phrase made with a downward intonation, indicative of a statement, or the same words with an upward, and questioning, intonation, indicative of a question).
On 14 September, 2007 the father received a letter from solicitors for the mother in which most of the allegations of inappropriate sexual behaviour raised in these proceedings were listed. Rather surprisingly, it concludes :
[The mother] is not a person who has a history of levelling accusations against her first two partners. Within that context, her concerns regarding [the father] have significantly more gravitas then otherwise.
The father filed an application in this court on 25 September, 2007 in which he sought equal shared parental responsibility, that the child live with the mother and that he spend time with the child under a regime to be phased in over eighteen months, culminating in a week and week about arrangement.
In September 2007, as a result of threats made by the mother, the father sought an injunction in the Supreme Court of Victoria, enjoining the mother from discussing the allegations of sexual abuse with journalists or anyone other than her lawyers, DHS, etc. An ex-parte injunction was made, probably on 26 September, 2007 and a continuing injunction granted on 28 November, 2007, by consent. The mother denied either initiating media involvement or co-operating with members of the media in various articles which appeared, despite the attribution of certain comments in the articles to her; I prefer the father’s evidence.
The mother’s evidence was of two conversations with the father within the first week or so of him returning from overseas in late October 2007, in which he agreed he would accept supervised time with the child if she remained silent about his sexual abuse. The mother would have the court believe that she agreed to that proposition. According to her, the first conversation arose after the father told her (on learning that she had seen a solicitor) that her solicitor would be legally obliged to advise DHS of the allegations.
The mother’s own account of this conversation is bizarre, in rational terms, as (on her account) the father believed her solicitor had a legal obligation to notify DHS and no private agreement made between him and her would alter that. Further, if she genuinely believed him to be the sexual predator she alleged and still made such an arrangement, it would not reflect well on her as a parent, given the serious nature of the allegations made by her.
The mother deposed to a second conversation on 8 or 9 November, 2007, when the father allegedly begged her, on literally bended knees, not to speak with DHS. She deposed to yet another conversation a week or so after orders were made on 12 November, 2007, in the presence of her friend Ms. G, during which the father turned to Ms. G and asked her, in front of the mother, to tell the mother that there was no need to talk to DHS. I am satisfied that by that time, the mother was insistent she be present whenever the father saw the child and that her motive had more to do with her aspiration to have him commit to a long term relationship with her than with her daughter’s safety.
Ms. G recalled the father saying “[Ms G], tell her, [the child] is being supervised, nothing is going to happen”. Ms. G deposed to both of the parties saying then that they had been contacted by DHS, indicative of DHS current involvement.
I am satisfied the mother crafted accounts of these conversations, and another account which involved DHS workers refusing to respond to her phone calls, to meet criticism (including comments made in a judgment delivered on 25 February, 2008) of her refusal to co-operate with DHS and police after a notification was made on 13 November, 2007 and, perhaps even more surprisingly, after she filed a form 4 on 16 November, 2007, in which the allegations of abuse mirrored those made in the earlier notification. When she was contacted by police in November 2007, she refused to co-operate with their requests to speak with her or the child.
The DHS report makes it clear that the father co-operated with all enquiries, as he has with police requests for interviews since the DHS investigation, arising out of other alleged incidents.
The case was first listed in this court on 12 November, 2007. On that day orders were made, by consent, providing for the father to spend short periods of time with the child, supervised by the mother or other people to be agreed. The parties were to attend Dr. E for psychiatric assessment. The following day DHS received a notification alleging the child was being sexually abused by the father; the notifier indicated it was based on information given by the mother.
On 16 November, 2007 the mother filed a response, seeking that the child live with her and “other final parenting orders as it (the court) may find appropriate.” On the same day the mother filed a form 4 Notice of Abuse in which she described a number of acts by the father alleged to constitute abuse, as follows :
1.The Applicant father licked the child […] at the top of her vagina.
2.The Applicant father permitted [the child] to suck his tongue for an extended time.
3.The Applicants (sic) father sucked [the child’s] lip to the point where it was bruised.
4.The Applicant father supported [the child] on his erect penis. At the time he did so, he gyrated and said words to the effect of “…ride daddy’s see-saw”.
5.The Applicant father attempted to continue and (sic) interrupted sex act after the Respondent mother had picked up [the child] to comfort her. In the process, the child […] was sandwiched between the Applicant father and the Respondent mother while the Applicant father attempted to have intercourse with the Respondent mother.
6.After the Respondent mother refused reengagement of intercourse referred to immediately above, the Applicant father masturbated himself in front of the Respondent mother and the child.
In the space reserved for facts alleged to constitute a risk of abuse, she stated :
1.The Respondent mother is concerned that the Applicant father may attempt to repeat the same or similar acts to those described at Part E.
2.The acts described at Part E occurred at different times over a time frame of onths. (sic)
3.The Respondent mother believes that the acts described in Part E were not jokes, accident or events to be laughed off.
On 19 November, 2007 the case was placed in the Magellan list. An ICL was appointed and DHS invited to intervene and prepare a report. The DHS report was released on 4 January, 2008.
On about 28 November, 2007 the mother attended the father’s home at about 9:30 pm., banging on the back door and yelling to be let in. Mr. K was present. The mother accused the father and Mr. K of being in a sexual relationship, told Mr. K the father was still fucking her and abused the father for not going ahead with a plan to be involved with a church group supporting her. She was angry and abusive; she told Mr. K it was clear the father didn’t love the child, as he didn’t love her (the mother) and that she would make sure the child despised the father, as she did.
The mother’s preoccupation with Mr. K’s sexuality was not new. As early as June 2006 Mr. K observed the mother to leave a note on his car, which was parked outside the father’s home; the note read “FAGGOT PS HAVE PROOF”.
Just over a year later, in July 2007, the mother forced her way into the father’s home, over his objection, at about 10:00 pm. Over his objection she went upstairs, flung open the door of the spare bedroom in which Mr. K was sleeping, and pulled the covers off him; she then told him she had photographs of him (Mr. K) and the father having sex together. She would not listen to his denials of any sexual encounters with the father and said she could not understand why the father would not spend nights at her home, with her and the child.
On 4 August, 2007 Mr. K was present when the mother told the father, who had reiterated that he could not live with her and her children, that she and the child came as a package, evidence I accept.
The mother then made application to the Magistrates’ Court of Victoria for intervention orders to protect her and her four children, alleging that the father had threatened her, and them, in a phone conversation on 24 January, 2008, in which he said words to the effect “You watch your back, your house and your kids”.
The father agreed that they had a conversation that day after he learnt she had taped their conversation on Fathers’ Day 2007 and was alleging he had made admissions to sexually abusing the child. He agreed he was pretty frustrated and angry, and that he felt entrapped. His evidence was of a sarcastic conversation (on his side) in which he said “Congratulations, you are a real pro, you taped me for an hour and thirty minutes”. He denied any threatening remarks, a denial I accept.
The mother’s application for an intervention order commenced before Magistrate Patrick (now her Honour, Judge Patrick) on 5 February and continued through the next day. When the court adjourned on 6 February the mother and her witnesses had given evidence and been cross-examined; she had sought (and been granted) leave to call her son, X, then 14 or 15, who gave evidence and was cross-examined. The father was in the witness box and had given most of his evidence in chief. The case was adjourned to 9 April. The mother sought an interim intervention order, pending the resumption of the case, which was refused. With the consent of both parties, an order of the Magistrates’ Court prohibited any publication of the proceedings.
X’s evidence went to the mother’s allegation that on 31 December, 2007, the father attended her home at 5:45 am., repeatedly banged on and kicked the door and made threatening statements when she refused to open it. For X to have seen or heard things referable to the mother’s allegations, he had to have been sleeping in her bedroom. X’s account was of him sleeping in her bed that night because she was fearful and of it being an isolated event; the mother’s account (before me) was that X, at 14 or 15, regularly slept in her bed, ostensibly because he fell asleep watching her television and could not be woken or moved.
On 18 February, 2008 Dr. E’s reports were released.
On 25 February, 2008, after an interim hearing (on the papers and submissions), interim orders were made in this court, providing for the child to live with the mother and to spend time with the father on an unsupervised basis. A family report was ordered.
On 7 April, 2008 the family report of Mr. V was released.
On 8 April, the day before the adjourned date in the Magistrates’ Court, the mother’s then solicitor wrote to the Magistrates’ Court, indicating that the mother would seek to withdraw her application for intervention orders. On 9 April the father and his legal representatives attended court, and learnt of this. The mother did not appear that day. The mother was granted leave to withdraw her application for intervention orders for herself and her four children and no orders were made as to costs. In their letter to the court, the mother’s solicitors advised of her instructions that she “no longer joins with [the father]” in seeking a prohibition on publication of the proceedings to date. The father sought and obtained an order prohibiting publication of the part-heard proceedings.
That very day the mother attended police at Moorabbin SOCAU and made a statement to Senior Constable F; she was at the unit for some four to five hours. As a result of allegations made by her in that statement, police issued an application for an intervention order to protect the child, which was filed in the Children’s Court. It is now clear that they did not know that an application for an almost identical order had been withdrawn by the mother in the Magistrates’ Court that very morning or that the sexual abuse allegations were at the heart of the dispute before this court.
The Children’s Court application was served on the father late on 9 April, and was returnable the following day. It was not reached on 10 April. On 11 April Senior Constable F gave evidence to the Children’s Court. The court refused to make an order and adjourned the application, pending the outcome of the proceedings in this court.
On 16 April, 2008 the father filed an amended application, seeking that the child live with him. He also filed an application to have the mother dealt with for contravening the orders of 25 February, 2008, in which he alleged the mother failed to make the child available on 15 April, 2008.
On 18 April, 2008 further interim orders were made; the father’s time with the child was increased to 9:00 am. to 1:00 pm. on each Tuesday and Thursday, 9:00 am. to 3:00 pm. on four consecutive Sundays and then 9:00 am. to 5:00 pm. on each Sunday. The parties were ordered to attend Dr. E again, for further reports, focused on a psycho-sexual assessment of the father and a consideration of the mother’s state of mind in respect of the allegations. The mother was restrained from taking the child for any counselling, therapy or medical examination concerning any allegation of sexual abuse by the father without the written agreement of the father or the ICL, or written direction of DHS. The father’s contravention application was struck out, with a right of reinstatement and directions were given for trial.
On 8 June, 2008 an incident occurred outside the mother’s home when the father was collecting the child. The evidence supports a finding that the previous day (communicating via text messages) the mother had advised the father that the child was ill and should not go for contact on 8 June, which was a Sunday. Sundays are the only days on which the father has the child for a whole day and it was his evidence (which I accept) that the mother had made a number of excuses on other Sundays in what he saw, reasonably, as attempts to stop him spending that time with the child.
The mother’s evidence was that on 7 June the child was unwell and had “what looked like conjunctivitis”. She did not have a temperature but was clingy and “I knew that her condition would worsen”. The father responded to the text by saying that she should stick to court orders. In response, the mother sent a text message (this is her account) :
. . . saying that the orders were a product of his lies and manipulation and that he had molested [the child] and that was something he had to live with. I confirmed I would stick to orders.
According to the mother, the child developed a temperature and she knew the child had tonsillitis and conjunctivitis. At 8:00 am. on 8 June she took her to the doctor, who said she had tonsillitis, an ear infection and conjunctivitis. The mother obtained a doctor’s certificate which stated that the child should remain with her primary carer. As the doctor was not cross-examined, it is idle to consider the basis for that recommendation but I am satisfied the mother wanted to use the doctor’s certificate to give effect to the decision made the day before to decline contact. According to the mother, the doctor wrote two scripts, one for antibiotics and the other for drops for the child’s ears and eyes; the scripts had not been filled when the mother took the child home.
In due course the father arrived to collect her and was shown the doctor’s certificate and the scripts. He offered to take the scripts to the chemist and the mother agreed. The father then asked (all this was done through Ms. G) if he could see the child. According to the mother she agreed, albeit hesitantly. It was when she took the child out to the father that, according to Ms. G, the father snatched her.
It is probable that having been handed the child, the father told Ms. G that he was a capable father and could look after the child; if she was very unwell he would return her within the hour. He then crossed the road towards his car, which was about thirty metres from the mother’s home. He had unlocked the car and started to put the child into her car seat when he was approached by Ms. G and, a short while later, the mother.
Accounts of what occurred are contained in the affidavits of the father, mother and Ms. G and in the police statements of all three. While Ms. G is not an objective witness, particularly in relation to this event, the statement made by her on the day of the incident, about four hours later, is the only third person account of events until police arrived. Her account in that statement is very different to her account in her affidavit and the account she gave when cross-examined, which was itself inconsistent with the affidavit account in some respects.
In the police statement Ms. G reported that the mother replied “no problem” when she relayed the father’s request to see the child. When he started to walk towards his car, she said he could not take the child until she asked the mother and when he continued to the car, she went inside and told the mother, who came outside and crossed to where the car was parked. At that time the father was trying to put the child into the back left passenger door of his car. According to Ms. G, the child tried to reach out to the mother and the mother tried to reach for her but the father pushed the mother back with his left arm and it was then that she decided to call police. Her statement continues :
[The mother] stumbled back and she grabbed [the father] to stop herself from falling over. But she still ended up hitting a metal gate that was next to the car. [The father] then started to walk off down the road away from his car. [The mother] has again tried to get [the child] away from [the father] but [the father] kept pushing her away from him. I tried to get inbetween them to keep them separated but it was difficult to keep them apart. I felt very angry when this was happening and I felt threatened to an extent while standing between both of them. I didn’t feel threatened from [the mother] but I was concerned that [the father] might become aggressive towards me. I was also concerned for [the child’s] safety while all of this was happening. [The mother] kept begging [the father] to give [the child] back to her. He kept saying “No”. It was during these struggles that some of [the mother’s] hair extensions were pulled out. [The father] continued to walk off away from his car towards the canal down the road but then turned back towards his car. I called the police again to tell them that he was walking away from the house as well as giving a description of what [the father] was wearing and what he looked like. As he got further down the road towards […] Street I saw the police arrive and start to talk to [the father]. I kept holding [the mother] back to stop her from following [the father] down the road.
It is of note that in this account there is no mention of the father hitting, kicking and abusing the mother. There is no mention of him ripping her top or bloodying her nose, all of which surfaced later in Ms. G’s account. In this account the father keeps trying to walk away; Ms. G keeps trying to stop the mother approaching him. Ms. G was concerned the father “might become aggressive” to her; there is no suggestion he was.
In her first police statement, signed at 2:20 pm. on 8 June, 2008, the mother spent a page and a half outlining her concerns about the father, his inappropriate behaviour towards the child and his bad behaviour towards her. Halfway through the second page, she commenced an account of events that day, describing the child’s illness and her visit to the doctor. On the third page she described events after the father “snatched” the child from Ms. G. The mother stated :
I walked up to [the father] and very calmly pleaded to him that [the child] should be with me due to her being unwell. He had [the child] in one hand and she was reaching out to me and as this was occurring, [the father] was squashing her towards him so she wouldn’t reach out to me. I had my arms out at this stage trying to get [the child] but [the father] grabbed my hair at the rear with his left hand and swung me around towards the ground and I thought I was going to hit my head on the ground. I felt a sharp pain on my head and I am still feeling the pain as I am giving this statement. It has developed into a headache. This pulling of my hair has caused numerous strands of hair to be ripped off. I didn’t expect him to react in this way as I was calm and polite towards him. I was upset and said “Please stop this and give her to me.” [Ms G] was present during this whole incident and said, “that’s it, I’m calling the Police.”
We kept arguing over things said at the Family Court. I was retaliating verbally throughout this because he was abusing me and squeezing [the child] throughout this. I told him “Don’t do that to her”. He also said while smiling “this is another nail in your coffin”. During this time, he then began recording this incident on video and he was swinging the phone towards me as though he was trying to make it look like I was coming towards him. At some point he reached out and grabbed my top and pulled me towards him. This caused the top part of my top to rip. This also caused some pain to the upper part of my chest near the shoulder joint. There is slight redness that has come up due to this. While he did this, he looked at my breasts and he seemed pleased that it was semi-exposed. [The father] then paced up and down the street while we were waiting for police and I followed him and kept my distance because I wasn’t sure where he was going or what he may do to [the child] as he was aggressive towards her each time she reached out to me.
A short time later police arrived.
In this account, which is very different to that of Ms. G, there is no mention of a bloodied nose or of kicking, both of which allegations appeared in a second statement made by the mother to police, more than a month later. In that second statement the mother said the father struck her right forearm repeatedly with his phone.
The father made a police statement on 8 June, 2008, which was signed at 5:15 pm. He told police of events early in the day and of the mother coming over to the car and trying to grab the child when he was trying to put her in the back seat. According to him, she grabbed his head and started scratching the back of his neck, while threatening and abusing him, then turned and said “look at this [Ms G]” while grabbing hold of her own shirt and ripping it. She then turned around. He said “you ripped your own shirt [mother’s name] how evil are you” to which she said “no, I didn’t”.
At this point the mother was abusing the father, the child was crying and Ms. G rang the police. According to the father, the mother and Ms. G blocked the car door so he couldn’t put the child into the car and leave, and the mother leant into the car and grabbed his garage door remote. He then walked about 200 metres away in an attempt to diffuse the situation, while the mother followed him; he then rang B police, who told him to ring 000. While he was doing that a police car came around the corner and he spoke to the officers in it.
The father videoed much of this incident on his mobile phone, a video played in the courtroom. After seeing it, both the mother and Ms. G changed their versions and the mother admitted to errors in both of her police statements.
It is of note that in neither the mother’s account nor Ms. G’s account was there any mention of the mother’s abuse directed at the father and, in particular, of her saying “Is it [Mr K’s] turn to lick [the child’s] vagina today?”, a statement Constable O confirmed was made in his presence.
Constable O confirmed the truth of the father’s account (contained in his police statement) of the mother going to the father’s car again, and trying to take the child out of the car, while the father was speaking with police. Constable O told the mother to give the baby to the father and told the father to go to his home.
The video records the father’s outraged response to the mother allegedly ripping her own top, and it is probable she did so. Constable O said he observed a tear or a stretch mark in the material towards her left shoulder; he confirmed that when he looked at the video, no part of her breast was exposed and nothing was exposed when he arrived. Ms. G admitted she did not see the father tear the mother’s top; the mother told her he did it. Constable O saw no injury to the mother’s face or to her nose; he noted a little bit of bruising on her arm, of which photos were taken by police.
Constable O deposed that about a week later the mother provided him with photos depicting injuries she said she sustained in the incident. She told him that her son took the photos on 8 June.
The mother’s explanation for the huge difference in the account given on the day and that given later was that she was too emotionally distressed to be lucid on 8 June and that she told police she did not want to give a statement. Constable O said that was not his perception. He said it was not correct that on 8 June he told the mother not to worry about the detail and that she could come back on another day. Constable O’s evidence was that for over two hours he tried to get the mother to focus on events of the day but she wanted to focus on events in the past, and on the sexual misconduct the father had directed at his daughter.
It is unsurprising that each of the protagonists sought to portray him or herself in the best possible light when recalling events on 8 June. It is probable the father gave the mother and Ms. G the impression he was not going to take the child with him and his actions in doing so were deceitful, provocative and guaranteed to lead to conflict, once the mother was on the scene. It is probable the mother’s anger had far more to do with her own disappointment and distrust of the father than with the child’s health, and that she took the opportunity to abuse the father, as she had in the text message sent the day before. The presence of Constable O did not act as a deterrent to her abuse. As for Ms. G, she was implicated in the drama, probably tried to restrain the mother while it proceeded and later saw it as necessary to endorse a significantly embroidered account.
This is clearly relevant to the potential for the child to grow up believing she has been abused by her father, if those in the mother’s household continue their campaign against the father. Dr. E’s evidence was that children who believe they have been abused experience some of the very problems which dog children who have been abused; they can doubt their self worth, experience guilt, and their capacity to trust and have faith in others is damaged. The child is in exactly the same position as L but at the moment she is too little to know what is going on, so is not yet adversely affected. Until the mother abandons her campaign the court can have no confidence the child could grow up free of a belief she has been sexually abused.
Considering Mr. V’s evidence of L contacting him after the initial consultations, Dr. E said this was yet another example of the mother’s preparedness to recruit someone to support her feelings, while ignoring the effect on L. He said the children will continue to be involved in the mother’s issues and that there was every prospect that the mother would involve the child in these ways, as she gets older. The child will pick up signals from her brothers, as the three boys have taken on their mother’s perception that the father is the enemy, and it is “nigh on a certainty” that over time the child will be involved by her mother in the adult conflict, as have X and L.
Dr. E was asked whether the mother’s assertions of sexual abuse should be seen as inventions or indicative of a preoccupation or over-valued idea. His response was that, in one sense, it does not matter as both are a means to an end. The implications for the safety of the child’s relationship with her father were prognosticly poor, whichever was the case. In Dr. E’s opinion, the mother exhibits a complete lack of containment and her allegations “gather pace”, not only against the father, but against others who support him, such as Mr. K.
Considering the evidence of the mother’s visits to the father’s home, Dr. E’s evidence was that her sense of loss and uncontained jealousy leads her to do what is essentially a form of stalking. There is something unbearable for her in the fact that the father can be free to do what he likes; she feels she must go and see for herself.
Asked about the evidence of the mother’s discontinuance of the proceedings in the Magistrates’ Court and the complaint to the police, which led to the filing of proceedings in the Children’s Court, Dr. E expressed the opinion that it was indicative of the mother’s vengeful, destructive and litigious response to the father. He described her as “totally insightless”.
Dr. E was asked about the potential for counselling or psychotherapy to assist the mother in acknowledging that the child needs to have a relationship with the father. Dr. E said that she would have to accept she was wrong or misguided before any intervention would be successful and, in his view, the prospects of any form of therapeutic intervention were not good. His evidence was that therapy can be a “mistaken enterprise”; he said “reality is sometimes a better and more helpful experience to effect change”.
That evidence was given in the context of cross-examination about the likely impact on the child were she to move to her father’s care. Dr. E spoke of a period of adjustment, that the child’s responses would be referrable to the level of attachment she has with both parents and that such a move could cause upset to her over a period of time. While acknowledging it would be a “difficult experience for everyone” he described that as the “smaller of the two problems”, the much bigger problem being the probability that the father will have no relationship with the child if she remains living where she is. Dr. E’s evidence was that a move to live in the father’s care may be a very effective way to modify the mother’s views. He said that in some ways, it could be helpful for her, as it would bring to bear a reality she has to face, and cannot avoid.
It is not uncommon when courts are balancing the potential risks to a child in living where she is, with the potential risks of removing her from her primary attachment figure, to speak of the preferred situation as the lesser of two evils. Dr. E made it clear that he did not think that was an accurate or useful characterisation in this case, saying it was “unfair on the possibility of something better for [the child]”. He said that while change can be very difficult, it is amazing how children, in particular, adjust and that a move to her father’s care could bring “quite a lot of good, for the child and for the adults”. If the court determined that the father has not sexually abused the child, the most helpful intervention would be a significant change in the child’s current living arrangements. If that were not done, Dr. E was very pessimistic about the child’s future development. The mother’s fabrication of sexual abuse allegations constitutes a serious focus of emotional abuse of the child.
Dr. E’s evidence was that the alignment of the three older boys with their mother boded ill for the child’s relationship with her father. Having enlisted her sons to her cause, loyalty means that they see the father as “the enemy”; their mother’s anxiety is manifest and it is probable they do and will experience misgivings and anxiety whenever the child spends time with her father. Dr. E said that for them, every episode of her time with the father may be very painful. The household dynamics in the mother’s home are conducive to the collapse of any relationship between the father and the child; in Dr. E’s opinion, if the child remains living with her mother, “the news is all bad for the father”. As I am satisfied the child is entitled to have a relationship with him, that means the news is also bad for the child.
Dr. E’s evidence was that the court needs to do something “substantive but sensitive”. He said if there was a scintilla of room or a loophole or a possibility, the mother “may get back into the saddle”. It was clear that by this he meant she would continue to allege past and ongoing abuse and would try to build scenarios aimed at removing the father from the child’s life. Her state of mind is entrenched; it is presently not amenable to persuasion or influenced by objective reality.
Dr. E did agree that if the child moved it could be useful for the mother to undergo some form of therapeutic intervention, if she could form a supportive professional alliance with a psychologist who is able to help her to move to the idea that there was something good in what had occurred. To be effective he envisaged that the mother would need to see such a psychologist at least once a week for three months and then either continue at that frequency, or at greater intervals, for at least a year, and possibly longer. He said if the removal of the child resulted in her not sleeping, or if she were very anxious and tearful, some psychotropic medication could be of use, or anti-depressants in a therapeutic dose.
Mr. V was in court when Dr. E was cross-examined and said that what he heard “made sense to me”. He said Dr. E saw the parties after him, and was in a better position to make a current assessment. He agreed that he gained the impression that the three boys were fully immersed in their mother’s issues and spoke of the psychological and emotional harm done to children who are exposed to what he called “scenario building”.
Mr. V agreed that if the court found that the allegations were unfounded and that the mother was fabricating scenarios, the maternal environment would be an increasingly risky one for the child. At the moment she is not overtly aware but she will become more aware of her mother and brothers’ convictions as she grows older. He spoke of the capacity for the views of her mother and brothers to impact on her emotional and psychological functioning and on how she senses the world, and of the potential for her to start to question her own sense of reality. Mr. V also expressed concern about the ramifications for the child of her mother spending so much energy and time in her vendetta against the father; he was concerned at the potential for this to impact adversely on her emotional availability to the child.
Mr. V’s evidence was that while the father was very critical of the mother, he nevertheless believed that it is important the child have both a mother and father in her life and appeared genuinely saddened that the conflict meant it may not be as possible as he would like. Nothing in the father’s presentation caused Mr. V to doubt that he would promote the mother in the child’s life and he stressed the child’s need for parents who can promote a relationship with the other. I must find that the mother has no such capacity. Only one of the child’s parents genuinely acknowledges the importance of a meaningful relationship with both parents; that is the father.
ADDITIONAL CONSIDERATIONS
(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 is far too young for her views to be relevant.
(b) The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The child’s primary attachment is with her mother, a proposition not contested by the father or ICL. Mr. V spoke of a hierarchy of attachment relationships and the capacity of children to prioritise one, but have others. He said given the present living arrangements, the child’s primary attachment would be with her mother but the time she has spent with her father would have allowed her to develop an important attachment relationship with him, as well.
Speaking of the attachment between the child and the father, Mr. V said that an important attachment base had developed and that activities which the father regularly undertook with the child, such as feeding her, putting her down to sleep and getting her up are important attachments activities. He noted that although there were other people in the childcare room, the child actually chose to stay with her father, rather than move to play with the other children, indicative of a positive attachment. In his opinion that would make it easier for the child to manage a transition to spending overnight time or much more time with her father.
The mother agreed that in affidavits filed earlier in the proceedings she described the relationship between the father and her three sons as being like that of a stepfather. When she saw Dr. E she told him that the father was good with her children. By the time she saw Mr. V in March 2008, her position had significantly changed.
When the mother saw Mr. V she told him that X was very angry and had recently told her he wanted to kill the father. When X saw Mr. V he reiterated a number of his mother’s concerns but also described the father, in general terms, as having been “nice to us”. X’s identification with his mother and her concerns can be illustrated by his comments when asked if there was anything else he wanted to say to Mr. V, at which he responded :
. . . one of [the father’s] friends, [Mr K], is obsessed with [the child]. [Mr K] constantly buys [the child] things and he is isn’t related. He always stays at [the father’s] house. I think [Mr K] is weird.
These allegations – that Mr. K is obsessed with the child and buys her inappropriate presents – were also made by the mother; it was clear that she was angry about and jealous of the friendship between Mr. K and the father, and had communicated that anger to X. Cross-examined, it was also clear that there was no objective foundation for the mother’s allegations of Mr. K’s inappropriate focus on the child. For example, she complained that, by subterfuge, the father arranged for Mr. K to be on a beach at a time she, the father and the child were there. It transpired that it was she who spoke on the phone with Mr. K and invited him to, or agreed to meet him, at the beach. The wildly inappropriate present he brought with him for the child was one pink cupcake. There is as little substance in X’s complaints as there is in his mother’s; it is very clear he was simply parroting her concerns.
There is no doubt the mother loves her three sons and believes she acts in their interests, but she has difficulty differentiating her needs from theirs and has implicated them in her vendetta against the father, to their detriment.
Mr. V’s evidence was that his observations of the child with her three brothers were of good interaction; he said that they were “really, really, really energetic and were very attentive to her”. He agreed that siblings bonds are very important as they often provide the only constant in a child’s life; they may not always be positive but they are certainly important.
(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
(f)the capacity of :
(i)each of the child’s parents; and
(ii)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)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
These s.60CC(3) factors relate to parental capacity and attitude, as do s.60CC(4) and (4A) of the Act, which are as follows :
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
A number of matters referable to these paragraphs have been referred to when evaluating evidence referable to the primary considerations and I will not repeat them.
The mother’s evidence during the trial was that she was physically and psychologically incapable of undertaking changeovers; she simply could not hand the child over to be sexually abused by the father. Her evidence was that when the child is with the father she cannot sleep, eat or function properly. When the child is to go through a changeover, the mother’s palms are wet and her knees shake; she cannot be involved.
As the mother saw herself as unable to undertake changeovers, these were done by her friend Ms. G, a number of other friends and, I am satisfied, on numerous occasions by X. The mother said X wanted to be involved and wanted to help, although she denied he was involved as often as asserted by the father. She agreed he did do changeovers on Sundays and on a few Wednesdays.
The mother’s own evidence was that X is very angry with the father, so angry that he has said he wants to kill him. He is so angry that she saw it as necessary to take him for counselling at CASA. She knew that X expressed to her and to Mr. V significant misgivings about letting the child spend any time with the father. Nevertheless, she was apparently comfortable in allowing X to deliver the child to the father, alone. This is a telling illustration of her focus on herself and her disregard for the emotional well being of her son. It is particularly telling having regard to the statements read into evidence just prior to the commencement of final submissions, which related to a changeover on the previous weekend.
The statements are these. The mother herself attended that changeover and handed the child to the father. Ms. G was present but the mother entered the police station unassisted. The child brought with her a present for the father (it was Fathers’ Day). The present was accepted graciously by the father.
This change of heart, and of actions, was relied on by counsel for the mother as signifying a change in her attitude. There is no doubt that it would be to the child’s advantage to see her parents co-operating at changeovers, and to X’s advantage to be released from that adult role. Nevertheless, the scepticism expressed by counsel for the father is explicable. Suddenly, one might say miraculously, the physical and psychological symptoms which precluded the mother playing this role in the months prior to trial disappeared or were rendered manageable, on the cusp of final submissions. Until then, it suited the mother’s case to be so disabled; the symptoms she described emphasised her conviction of abuse and the harm which would be done to the child were she to continue to have unsupervised contact with the father. Faced with unpalatable evidence from the experts, the symptoms resolved. The symptoms were either invented or functional; Dr. E noted the existence of such non-organic complaints when describing hysteria.
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from :
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Dr. E was asked about the development in very young children of notions of attachment and the impact of removal from a primary attachment figure. He agreed that between birth and thirty months, children develop an internal representation of an attachment figure; within their worlds, the primary attachment figure is the pillar of comfort and stability. Separation from the primary attachment figure can result in stress but children can separate as long as the separation is brief, predictable and in a supportive setting. By way of illustration, Dr. E spoke of very young children in day care.
It was put to Dr. E that between eighteen and thirty months the impact of separation was even more critical and that one could anticipate extreme stress in a child separated from a primary attachment figure from whom she had never slept apart. Counsel for the mother sought to draw an analogy by asking about the effect on an eighteen month old child if the primary attachment figure died. Dr. E responded that this was an over-statement. In this case, no-one was talking about a situation where the child would have no contact with her mother, or where her mother would simply disappear. If she moved, familiar things would go with her. She would be going to her father, to whom she is attached. She would still see her mother. In his opinion, what was envisaged was not as draconian as counsel submitted.
Dr. E did not deny that the child’s needs needed to be considered in a substantial way, as did her sensitivity to change. But he would not accept that it was impossible to separate the child from her mother without occasioning serious trauma for the child. When it was put that a child so separated could become catatonic at changeovers, Dr. E said that was “a rather extreme idea” and that, as far as he was aware, there was no suggestion that it was likely. He agreed that the child could exhibit problems with sleep and in settling but said it was important to realise the situation would be fluid and plastic. If there were a change, attachment bonds would be increasing with the father; there would be a shifting of attachments, rather than a total loss of one.
When it was put to Dr. E that the child would experience less trauma if removed from her mother at thirty months, Dr. E said it would depend on the context. In this case, there was a chance that it would be even more difficult, if the mother’s present state of mind continued in the intervening period.
Dr. E was also asked about the effect of separating the child from the siblings with whom she has lived all her life. He said the separation would certainly be noted by the child, as the children were bonded and part of her family, but it was not envisaged there would be a complete termination of contact with them. When she was with her mother there would be an opportunity for all the usual interactions, including room for these sibling relationships.
Dr. E made it clear that he saw ongoing time with the mother as important if the child moved, and that it should occur right from the outset; there should not be a period in which the child does not spend time with her mother.
Mr. V was asked about the potential stress for the child were she to be moved to live primarily with her father. He said he would expect a level of distress but the nature of the child’s relationship with her father, and his level of attunement to her needs, suggested the prospect of a successful shift in primary attachment was quite high. He said the father would need to be aware of the child’s potential to stress and ensure he was available and attentive. There is a possibility the child may regress a little and she would need nurturing to assist with the process. In his opinion, the father presented as keen to learn and his recognition of this gave Mr. V confidence that he would be able to make the necessary adjustments. Mr. V said the father was very aware of the child’s emotional functioning, as well as her physical needs.
In oral evidence, Mr. V said that the nature of the child’s relationship with the father would allow her to manage a transition to his primary care. If that occurred, she should have at least weekly contact with her mother, and ideally, more; he said time every second weekend would not be appropriate for her at the moment. As she gets older it could change; older children can manage separations better and hold the memory of an absent parent more readily. By the time the child is three or four she could have less frequent but longer, regular periods of time with her mother.
It was Mr. V’s evidence that the child should spend unsupervised time with her mother initially but if the mother continued to make unfounded allegations, this may need to change to supervised time. He supported changeovers occurring at a contact centre, to shield the child from any adverse interactions.
Asked about the time the child should spend with the mother if she moved to live primarily with the father, Mr. V spoke of a pattern similar to that which she presently spent with the father, a pattern she is used to, with the potential for overnight time. He was reluctant to be more specific. He said that if the court made findings against the mother, it would be important she obtain some assistance to manage the change, whether through a counselling process or another adult friend, but he shared Dr. E’s view that there should not be a suspension of time following any move.
Mr. V expressed the view that it might be useful for the mother to have another adult present when she spent time with the child in the period after a move, as he feared she would struggle to contain herself and could continue her campaign against the father. The other adult would need to be someone who could challenge the mother; he said it would not be helpful if it were someone who had supported her campaign. The motive for such an adult presence would be primarily to assist the mother but it would also be very helpful for the child, as if the mother could not contain herself, and became highly distressed, that itself would be very distressing for the child.
The evidence did not disclose anyone able to play that role.
(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;
The child is entitled to learn of both her parents’ cultures and family traditions, which she can do while spending time with each of her parents and members of their respective families and communities.
(j)any family violence involving the child or a member of the child’s family;
It is probable the altercation on 8 June, 2008 was distressing to the child. I am not satisfied she or any of the mother’s sons have been subjected to physical or sexual abuse at the father’s hands. Nor am I satisfied the father has been violent to the mother.
(k)Any family violence order that applies to the child or a member of the child’s family, if :
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
As found, the mother discontinued her application for an intervention order against the father and the Children’s Court declined to make an order in the child’s favour.
(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;
The interim orders sought by the mother would result in at least one further court hearing. While the evidence is of the mother overcoming the blocks to her involvement in changeovers, the court could not assume her three sons will so easily or swiftly accommodate a different view of the father and of the risk he poses to their sister. If, as the mother reported, Mr. Ansilda expresses the view that the father is “a fucking paedophile”, all three boys are likely to hold fears for their sister in her father’s care. If the child saw more of her father she would be able, as she grows, to measure the reality of her time with him against any contradictory reality espoused by her brothers or mother. But the odds are high that she would be living in a household whose members view the father as a dangerous and perverted man and that this would expose her to the risks of which Dr. E and Mr. V spoke.
(m)any other fact or circumstances that the court thinks is relevant;
It is important that the Court considers the objects and principles set out in s.60B.
CONCLUSION
I am satisfied that the child’s best interests demand that she live primarily with her father and spend regular and frequent time with her mother and the siblings who live in her mother’s home. If this does not occur the prognosis for the child’s relationship with her father is grim; she will live in an environment in which she is poisoned against him and may grow up believing she has been subjected to significant sexual abuse, abuse which did not occur. She is entitled to a meaningful relationship with both her parents, as long as that can be done in a way which renders her safe and secure. In my judgment, it is only by living primarily with the father that she will be able to have those meaningful relationships. It is true that the father has not been a fulltime parent but the court can be confident he has the capacity to provide for the child’s physical, emotional and intellectual needs, and that he will deal sensitively with any distress which manifests as a result of the significant change to her living arrangements.
Pursuant to existing orders, the child will be with her father this morning. She will remain living with him, pursuant to these orders.
No expert supported a moratorium on the mother’s time with the child were such a move made and I am satisfied she should have regular and frequent time with the mother, from the time of the move. Mr. V’s evidence of the usefulness of an independent person’s attendance was soundly based but, in this case, not practicable as no such independent person presents him or herself.
I have found that the mother’s conduct has exposed the child to psychological harm, being emotionally abusive. In those circumstances, the presumption of equal shared parental responsibility does not apply. Were the presumption to apply I would have to find that it was rebutted, and that it would be contrary to the child’s best interests. The mother has not been able to put the child’s interests ahead of her own desire for vengeance; she has implicated her other children in the dispute and enlisted them in her cause, with scant regard for the destructive impact of that on them and the child; the court could have no confidence the situation will change if the child remains living in her household. It is possible the reality (of which Dr. E spoke) of a move to the father’s primary care will lead, in time, to a change in the mother’s attitude and approach.
It may be that, at some time in the future, the child’s parents can co-operate and rationally discuss matters referrable to her health, education and other significant aspects of her development, and make decisions together. At the moment, that is not feasible and her best interests demand that the father be the person responsible for such decisions. Orders can provide for important issues to be discussed with the mother and this may lead to agreed outcomes. If the parties then cannot agree, the final decision will rest with the father. The child also needs to be protected against the potential for the mother to take her for further medical examinations or other interventions based on her conviction that the child is being exposed to sexually abusive behaviour in the father’s home. Orders will restrain that conduct. Such orders will not stop the mother from obtaining medical assistance if the child is ill or injured in her care, or from taking her to see any professional if directed to do so by the Department of Human Services. Orders will also provide that the reasons for judgment may be made available to police or protective workers investigating any fresh allegation of sexual or other abuse of the child.
I am mindful of the potential for changeovers to be stressful for the child and not only because they are opportunities for tense interaction between her parents. She herself must cope with moving between two people, and two homes. The ICL’s submission would involve numerous changeovers in each fortnight. A balance needs to be struck between the importance of ensuring the child feels anchored in her new primary home and the importance of her maintaining a relationship with her mother and siblings, through direct contact. I propose that she spend time with her mother on three occasions in each fortnight and stay overnight on two of those occasions. Orders will provide for her to be with the mother from Saturday morning until Sunday evening in the first week, then from 9:00 am. to 5:00 pm. on the following Thursday, and from 9:00 am. on the following Monday until 5:00 pm. the next day. Pursuant to such a regime there will not be more than three clear days between visits to her mother and siblings’ home. She will be there each second weekend, which maximises the capacity for her to spend time with her siblings. Orders will provide for additional time as agreed between the parties and to spend time with her mother on special days, such as her birthday and Mothers’ Day.
This regime will operate until the child commences school, when it will need to be modified. I make it clear that the parties have the capacity to make the arrangements they consider to be in the child’s best interests, if agreement is possible. Nevertheless, the court needs to provide a structure which will foster the child’s security and stability into the future. Once the child is at school, and in the absence of agreement to the contrary, the child will spend an extended weekend with her mother in each fortnight, plus one overnight stay in the alternate week, and time during school holidays and on special days.
There is sense in the ICL’s proposal to utilise a contact centre for changeovers and orders will require the parties to make application to do that. Despite the mother’s change of heart, and her involvement in the changeover during the trial, I do not propose to require her to be present at changeovers. If the parties can reach an agreement on that, well and good. If they cannot, orders will require the father to pay for an independent person employed by Aiders and Carers or a similar professional agency to deliver the child to and collect her from the mother’s home at the commencement and conclusion of periods with her mother until a place is available at a contact centre and on days on which the centre is not open. He can afford to do that and it will eliminate the potential for altercations such as that on 8 June, 2008.
Time should ameliorate many of the tensions which presently dog changeovers. The parties cannot use a changeover service forever. These arrangements will operate until the child is four. Changeovers can then be at a neutral venue. Once she starts school, she can be collected and returned there. I stress that the parties can make other arrangements, by agreement.
I am satisfied this is a case where the court should make a supervision order pursuant to s.65L of the Act. This means that a family consultant will be available, for a period of twelve months, to speak to the parties if one or other wishes to discuss issues referrable to the implementation of the orders and the child’s welfare. The family consultant will not contact the parties but will respond to contact by them. That supervision will be reportable only in the event another application is filed and the judicial officer before whom it is listed seeks a report. If the mother’s sons have difficulty in understanding or accepting the arrangements which are to operate for their sister, the mother can discuss that with the family consultant and he or she could speak to the boys, if thought appropriate.
Orders will provide for the use of a communication book and for the father to keep the mother informed of decisions about childcare centres or kindergartens attended by the child. However, until the child starts school, orders will restrain the mother from attending at such childcare centres or kindergartens, save with the written consent of the father. Once at school, the mother will be able to attend events and activities routinely attended by parents without first obtaining his written consent.
COSTS
Senior Constable O made a claim for $529.60 costs, being eight hours at $66.20 an hour. That reflects to time spent responding to subpoena and attending court to give evidence and I am satisfied it is a reasonable claim. He was called by the father and the father will pay those costs.
The independent children’s lawyer sought costs from each of the parties. The ICL played a very important role in these proceedings, a role which has benefited the child. Neither of the parties is legally aided and counsel for the ICL is required to make the application. In this case, I am not satisfied it would be appropriate to require either party to contribute to the costs of the ICL and the application will be dismissed. Neither party made any submissions referable to costs although, as is common, applications for costs were included in their applications. If a costs application is pressed, that can be mentioned before me in the next fortnight.
I certify that the preceding
263 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.
Dated the day of 2009.
…………………………………………
Associate.
8
2
1