HASSET & WEADER
[2011] FamCA 319
FAMILY COURT OF AUSTRALIA
| HASSET & WEADER | [2011] FamCA 319 |
| FAMILY LAW – CHILD ABUSE – Magellan case - mother alleges sexual abuse of the child by the father – father posits mother coached the child – allegations of past sexual abuse of the child by an older half-sibling – test to be applied whether an unacceptable risk exists that child will be sexually abused by father in future – allegations of past sexual abuse relevant – other relevant evidence – father’s excessive alcohol consumption – father’s propensity for impulsivity – no finding that father sexually abused the child – finding that an unacceptable risk of child abuse exists FAMILY LAW – CHILDREN – Parental responsibility – necessary to maintain the meaningful relationships the child has with both parents – unacceptable risk of child abuse – potential for child to suffer psychological harm – no finding of actual child abuse or family violence – presumption of equal shared parental responsibility applies FAMILY LAW – CHILDREN – with whom the child shall live and spend time – child to live with mother – child’s time with the father to be supervised for finite period |
| Evidence Act 1995 (Cth) s 140(2)(c) Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, |
| A v A (1998) FLC 92-800 W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 |
| APPLICANT: | Ms Hasset |
| RESPONDENT: | Mr Weader |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Fielden, Fielden & Associates |
| FILE NUMBER: | NCC | 1075 | of | 2009 |
| DATE DELIVERED: | 22 August 2011 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 26, 27, 28 & 29 July 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Duane |
| SOLICITOR FOR THE APPLICANT: | Greg Tyler & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Harper |
| SOLICITOR FOR THE RESPONDENT: | Galloway Family Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Burns |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Fielden, Fielden & Associates |
Orders
All former parenting orders relating to the child B, born … January 2005, (“the child”) are dismissed.
The parties shall have equal shared parental responsibility for the child.
The child shall live with the mother.
Subject to Order 6, each of the parties shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:
(a)During New South Wales public school terms, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, or Tuesday if Monday is a public holiday, commencing on the first Friday of each term;
(b)During New South Wales school holidays, except the Christmas school holidays, for the first half of such holidays in every odd numbered year, and for the second half of such holidays in every even numbered year;
(c)During the New South Wales Christmas school holidays, in alternate weeks, commencing in the first week of the holidays in the years when the holidays commence in an odd numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an even numbered year.
Subject to Order 6, Order 4 is suspended during the following periods:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day, and with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in odd numbered years, with the same arrangements in reverse in even numbered years, subject to compliance with Order 6.
(b)Over the Mother’s Day and Father’s Day weekends, commencing from the conclusion of school on Friday and concluding at the commencement of school on Monday, during which periods the child shall spend time with the mother on the Mother’s Day weekend and with the father on Father’s Day weekend, subject to compliance with Order 6.
For the purpose of implementation of Orders 4 and 5, unless otherwise agreed:
(a)The time spent by the child with the father shall be supervised by one of the following persons until the child attains the age of 10 years:
(i)The paternal grandmother, Ms G Weader;
(ii)The paternal grandfather, Mr D Weader;
(iii)The paternal aunt, Ms C;
(iv)The paternal uncle, Mr D;
(v)The paternal uncle, Mr K Weader
(b)The time spent by the child with the father pursuant to Orders 4 and 5 is suspended during any period in which none of the persons nominated in Order 6(a) is able to supervise.
(c)The father is restrained from consuming alcohol during any period in which the child spends time with him, and also during the period of 12 hours immediately preceding such time.
For the purposes of implementation of Order 4, the New South Wales public school holidays are deemed to commence on the first day following the last day of school term, the holidays are deemed to end on the last day preceding the day upon which the child is due to return to school, and the mid point is the day halfway between those first and last days.
For the purposes of implementation of Order 4, unless otherwise agreed, the party with whom the child is to live or spend time shall collect the child:
(a)From school, whenever such time is to commence following the conclusion of school during school term, or
(b)From the residence of the paternal grandmother whenever such time is to commence at a time other than the conclusion of school during school term.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:
(a)The father each Monday and Thursday when the child is living with the mother, between 6.00pm and 6.30pm, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother, and the mother shall ensure that the child is able to receive the father’s calls on that number at that time.
(b)The mother each Monday and Thursday when the child is spending time with the father, between 6.00pm and 6.30pm, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure that the child is able to receive the mother’s calls on that number at that time.
Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.
Each party is restrained from discussing these proceedings with or in the presence or hearing of the child.
Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
Each party shall forthwith enrol themselves to commence, and thereafter participate in and complete a post-separation parenting program, subject to the approval of that program by the Independent Children’s Lawyer.
The Independent Children’s Lawyer shall within 14 days notify the mother of the names, addresses, and contact details of therapists able to afford the child with:
(a)Formal protective behaviour training, as recommended by the single expert witness; and
(b)General play therapy, as recommended by the single expert witness.
Within 14 days of notification pursuant to Order 15, the mother shall arrange appointments for the child with the therapists and notify the Independent Children’s Lawyer and father of those appointments, and thereafter ensure the attendance of the child upon such therapists for as long as deemed necessary by those therapists, and for that purpose:
(a)The mother shall provide the therapists with a sealed copy of these orders, a copy of the reasons given for the orders, and a copy of the single expert’s report dated 6 April 2011;
(b)The mother shall meet the cost of the therapy;
(c)The father shall reimburse the mother for one half of the therapy costs forthwith upon the mother’s proof of payment and request for reimbursement;
The parties shall forthwith do all acts and sign all documents necessary so as to procure a passport for the child, which passport shall be retained by the mother.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period, or upon compliance with Orders 14-16 inclusive, whichever is the later.
Costs are reserved for 28 days.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hasset v Weader is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 1075 of 2009
| Ms Hasset |
Applicant
And
| Mr Weader |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These proceedings require determination of the parenting orders that should apply to the only child of the applicant mother and respondent father.
The parties concluded prior parenting proceedings between them before the Federal Magistrates Court in May 2010, but these proceedings were commenced shortly after the mother alleged sexual abuse of the child by the father in November 2010.
By reason of the nature of the allegation, the proceedings were entered into the Court’s “Magellan” protocol and the trial was expedited.
Background
The subject child, B, was born in January 2005 and is aged 6 years.
The parties separated in April 2008, after which the child remained living primarily with the mother.
There was some factual dispute between the parties about the frequency and amount of time spent by the child with the father after separation, at least by reference to the father’s affidavit evidence,[1] but the discrepancy fell away during the father’s cross-examination, when he conceded the child spent time with him reasonably regularly, and that he even declined further opportunities offered by the mother for the child to spend time with him for a variety of reasons, including clashing social engagements. That generally accorded with the mother’s unchallenged evidence that the child saw the father weekly, albeit not overnight.[2]
[1] Father’s affidavit, par 21
[2] Mother’s affidavit, Annexure B, par 4
The parties reached informal agreement over a parenting plan in March 2009.[3]
[3] Father’s affidavit, par 22
Parenting proceedings were later commenced before the Federal Magistrates Court in June 2009. The parties agreed to interim parenting orders in July 2009 and the proceedings were concluded on 3 May 2010, some months in advance of the appointed trial date, when final orders were made by the Court with the consent of the parties.[4] The orders made provision for:
a)The parties to have equal shared parental responsibility for the child (Order 2.2);
b)The child to live with the mother (Order 2.3); and
c)The child to spend time with the father each alternate weekend from the conclusion of school on Thursday until Sunday afternoon, on a weekly rotation during school holiday periods, and on Father’s Day (Order 2.4).
[4] Father’s affidavit, par 27
Apparently, those orders were thereafter implemented faithfully,[5] despite some residual disharmony between the parties. The mother conceded in cross-examination some dispute about the meaning of the orders in respect of the time the child should spend with the father during school holidays. The mother also said she was dissatisfied with the manner in which the father telephoned and sent text messages to her, implying her perception of harassment. It remained unclear as to whether she was dissatisfied with the timing, frequency, or content of the calls and messages, but the father did concede swearing at the mother and contacting her numerous times in the early hours of the morning using an abusive tone, and also the mother’s past complaints of harassment.[6]
[5] Father’s affidavit, par 16
[6] Father’s affidavit, pars 23-24
On Sunday 7 November 2010 the child returned to the mother after having spent the weekend with the father. Whilst the child was being showered, the mother asked her about the reason for the redness of her vulva and the child revealed she had been rubbed on that part of her body by the father while they were on the lounge together at the father’s home.
The mother took the child to consult with her general practitioner the following day and the child made a similar disclosure to the doctor. The doctor reported the matter to the NSW Department of Family and Community Services (“the Department”) and the allegation was referred to the NSW Joint Investigation Response Team (“JIRT”). The child was later interviewed by JIRT officers and she also made a similar disclosure during that interview.
Alarmed at the revelation, the mother terminated the child’s interaction with the father and commenced these proceedings by filing an Initiating Application on 1 December 2010. Contemporaneously, the mother filed a Notice of Child Abuse or Family Violence. The father filed his Response shortly afterwards on 30 December 2010.
The matter was allocated an expedited return date before the Court on 24 January 2011, on which occasion the parties reached agreement about interim parenting orders, amending the orders previously made in May 2010. Relevantly, the interim orders provided for:
a)Suspension of the former orders prescribing the time spent by the child with the father (Order 1.1);
b)The child to spend time with the father each alternate weekend, following 3 initial shorter visits (Orders 1.2, 1.8), subject to supervision by the paternal grandmother (Order 1.4);
c)Changeovers to occur at the mother’s home (Order 1.3);
d)The appointment of the single expert witness (Order 1.11); and
e)The parties to each undertake a post-separation parenting program (Order 1.12).
At subsequent Court events the parties informed the Court that the interim orders were successfully implemented, which was confirmed by the parties’ evidence.[7]
[7] Mother’s affidavit, pars 44-46; Father’s affidavit, par 17
The trial commenced on 26 July 2011 and concluded on 29 July 2011, at which time judgment was reserved.
Proposal and primary evidence of mother
The mother initially pressed for the orders set out within her Amended Initiating Application filed on 18 May 2011, which generally proposed that:
a)The orders made on 3 May 2010 be discharged;
b)The child live with the mother;
c)The child spend time with the father on alternate weekends, for half of school holidays, and on other special occasions, subject to informal supervision by various adult members of the paternal family during overnight periods until the child attains 10 years of age; and
d)Changeovers occur at either the child’s school or the residence of the paternal grandmother.
However, following disclosure of the orders proposed by the Independent Children’s Lawyer at the conclusion of the evidence, which dealt with some but not all parenting issues, the mother indicated her support for that proposal.
The mother’s proposed orders did not deal with the allocation of parental responsibility for the child. When that lacuna was identified, the mother proposed allocation to her of sole parental responsibility for the child, subject to a requirement that she consult with the father in advance of her decisions. A minute of order to that effect was later tendered.[8]
[8] Exhibit M3
In support of her proposal the mother relied upon:
a)Her Notice of Child Abuse or Family Violence filed on 1 December 2010;
b)Her affidavit filed on 17 June 2011; and
c)The affidavit of Dr E filed on 23 June 2011.
Proposal and primary evidence of father
The father initially pressed for the orders set out within his Response filed on 30 December 2010, which proposed dismissal of the mother’s Application, reversion to the orders previously made on 3 May 2010, and the mother’s payment of his costs of the litigation.
After the trial commenced, the father adjusted his position to concede all of the orders sought by the mother, save as to several discrete issues. A minute of order clarifying his position was tendered,[9] from which it was apparent that the issues between the parties were really confined to:
a)The allocation of parental responsibility for the child, with the father wishing it to be equal shared parental responsibility as it was before;
b)Whether the time spent by the child with the father should be the subject of any supervision, be it formal or informal, with the father contending there should be no supervision;
c)Whether the child should be able to travel internationally with the mother, which the father opposed; and
d)The frequency with which the parties should communicate with each other by email, with the father contending it should be “regularly” but not “daily”.
[9] Exhibit F1
In support of his proposal the father relied upon:
a)His affidavit filed on 20 June 2011; and
b)The affidavit of the paternal grandmother filed on 20 June 2011.
Proposal of independent children’s lawyer
The Independent Children’s Lawyer did not begin the trial with any settled proposal, specifically wishing to preserve her position until the evidence was tested. Just prior to the commencement of final submissions the Independent Children’s Lawyer tendered a minute of orders dealing with some, but not all, parenting issues.[10]
[10] Exhibit ICL4
As to the issue of time spent by the child with the father, the proposal was that it be strictly supervised until the child commenced secondary school.
Although the minute of order did not address the issue of parental responsibility, the Independent Children’s Lawyer submitted that parental responsibility for the child should be allocated solely to the mother.
The Independent Children’s Lawyer relied upon:
a)The Magellan report dated 10 January 2011, furnished to the Court by the Department; and
b)The report of the single expert witness, Dr F, psychiatrist, dated 6 April 2011,[11] upon which the single expert was cross-examined.
[11] Exhibit ICL3
Summary of parenting law
Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought to properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode [2006] FLC 93-286 and MRR v GR (2010) 240 CLR 461.
The “magellan” allegation
Given that the allegation of sexual abuse of the child by the father was the catalyst for the commencement of these proceedings, and the only reason why the mother was no longer prepared to abide by the orders made in May 2010, the allegation deserves close scrutiny.
On 4 November 2010 the child began spending time with the father for the forthcoming weekend in accordance with the orders made months before in May 2010. The child was returned to the mother on the afternoon of Sunday 7 November 2010.
At about 6.00 pm that evening the mother was showering the child, consistently with her usual routine. The mother observed redness of the child’s vulva, at which point the mother and child had a conversation, relevantly including the following discussion:[12]
[12] Mother’s affidavit, pars 12-17
Mother: Why is your front bottom so red?
Child: Because Dad rubs it.
Mother: Show me how Dad rubs it
([the child] then demonstrated, as requested)
Mother: Where were you when Dad did that?
Child: On the lounge watching TV.
Mother: Who is at your Dad’s house when he touches you like that?
Child: No one, just me and Dad.
Mother: What does Daddy say when he does that?
Child: Nothing.
When giving evidence in cross-examination, the mother was asked to demonstrate the action the child had demonstrated during that conversation. The mother demonstrated the child rubbing her vulva in an up-and-down motion with her hand, with her fingers extended downwards and her thumb extended at a perpendicular angle from her other fingers. It is noteworthy that the child later gave an identical demonstration to JIRT officers. It was impossible for the mother to have shaped her evidence consistently with that demonstration because the mother had not been present for the child’s JIRT interview and she had not seen the audio/visual recording of the interview.
The mother was asked why she requested the child to give such a demonstration and also why she inquired of the child whether some other person was present in the father’s home. The mother said she wanted a complete understanding of what occurred so as to avoid any potential for misinterpretation, but was conscious she should not “put anything into [the child’s] head”. I accept the mother’s evidence. Her motive was valid, particularly in light of the allegations made by the child against the father’s son a year before, which had caused upheaval within the family. The mother said “I knew the drama it would cause. I had to be sure.”
The mother was also asked whether the child really had touched herself in the way the mother described, at which point the mother said simply “Yes” while dabbing at her tears with a tissue.
The mother said during cross-examination that she made some short notes later that evening as a contemporaneous record of the conversation she had with the child, and she was not challenged about that evidence.
The mother’s evidence was restrained and convincing. Although the father does not necessarily accept the child made the disclosure either at all or in the manner alleged by the mother, I am comfortably satisfied on the evidence that the child did so. Nothing about the evidence caused me to infer the mother’s evidence was untruthful or materially inaccurate.
Understandably the mother was alarmed by what she was told and shown by the child. She determined to take the child to the family general practitioner the following day and later made an appointment to do so.
The mother took the child to the rooms of Dr E on the afternoon of Monday 8 November 2010. In the absence of the child the mother described to the doctor the child’s revelations the night before. The child was then invited into the doctor’s surgery.
There is no exact record of what then transpired in the consultation. The mother deposed to her brief recollection of the conversation between the doctor and the child,[13] and the doctor deposed to his recollection.[14] The written records of their recollections are not entirely consistent, but there is an overall general consistency about their evidence, particularly in light of their respective cross-examination on the issue.
[13] Mother’s affidavit, par 24
[14] Affidavit of Dr E, Annexure C; Exhibit ICL2
The doctor was an impressive witness. He carefully considered the questions posed to him and made a clear effort to answer both responsively and accurately.
The doctor was adamant it was he and not the mother who asked questions of the child, consistently with the evidence of the mother. He asserted he would not have permitted the mother to assume that role because he is conscious of the potential for children to be coached about such allegations. He initially conversed with the child about inconsequential topics until she relaxed. Although he could not recall the conversation verbatim, the doctor was certain the child described being touched by the father on the vulva, on the outside of her clothing, by a motion he perceived to be massaging or rubbing.
The doctor explained the child explicitly described that the event occurred whilst seated on a lounge with the father at his home, and that the father held her legs with one hand and massaged her vulva with the other. The doctor was also left with the impression from the child’s description that such incidents had occurred more than once, over a period of some months.
The doctor asked the child to demonstrate what had occurred and then witnessed the child do so on both herself and the mother. Seated in her own chair, the child reclined and rubbed her vulva in a circular motion with one hand and then changed position to lean forward with her legs extended together to show how she was grasped around the shins by the father’s other hand. The child also leaned over to the mother, who was sitting in an adjacent chair, and made a hand movement over the mother’s clothing in the region of her vulva.
All the while, the doctor noticed that the mother was neither encouraging nor discouraging the child. He regarded the mother’s conduct at the time as unremarkable. He observed nothing that caused him to believe the child was being coached to make such allegations against the father.
Following the child’s descriptions and demonstrations the doctor examined her body. He observed no bruising on the child’s body, either in the region of her shins or anywhere else. That evidence conflicted with a previous statement made by the mother to a counsellor to whom she had been referred in late November 2010, to the effect that she observed small bruises on the child’s shins. Although the mother must have reported that to the counsellor, it was never a feature of her evidence or submissions in these proceedings. It is feasible the mother exaggerated the circumstances to the counsellor, as the father contended, but such exaggeration does not detract from the direct evidence available to the Court. I am not satisfied any such exaggeration of that sort by the mother on an isolated occasion renders the remainder of the mother’s evidence inherently unreliable.
Despite the mother’s recollection to the contrary,[15] the doctor did not believe he would have asked the child why her genitals were red. The doctor said he noticed no “vaginal” abrasion or redness. I impute the doctor meant he saw no “vulval” abrasion or redness, because no-one suggests the child’s vagina was penetrated.
[15] Mother’s affidavit, par 24
I accept the mother’s evidence that she observed redness of the skin over the child’s vulva on the evening of 7 November 2010, but I do not regard that observation as corroborative of the child’s allegation against the father. The mother properly conceded that she had observed redness of the child’s vulva on numerous occasions, even when in her care, which she attributed to the child aggressively wiping herself with toilet paper or to simple skin irritation.[16] Of itself, the mother suspected nothing sinister about the child’s reddened vulva.
[16] Single expert report, page 9
The consultation with the doctor occurred over a period of about 40 minutes, during which time the child’s allegation was discussed twice, separated by discussion of inconsequential topics. The child’s descriptions were consistent over the entirety of the consultation. The doctor was alive to the prospect of a young child’s allegations being contaminated by prior discussions with others, but did not believe the child’s disclosures to him were contaminated.
The doctor was satisfied the circumstances warranted mandatory report of the situation to the Department, which he duly did then report.
The mother was subsequently contacted by JIRT officers about the child being interviewed and the interview occurred about a week later on 16 November 2010.[17]
[17] Mother’s affidavit, pars 28-32
Tendered in evidence was an audio/visual recording of the interview[18] and a transcript of the interview.[19]
[18] Exhibit M1
[19] Exhibit M2
The child was just short of attaining 6 years of age at the time the interview was conducted. Despite her tender age her answers to the questions were explicit, direct, and responsive. Although she was distracted at first, she soon settled. Any initial concern about her appreciation of the difference between truth and lies was satisfactorily dispelled.[20]
[20] Exhibit M2, Q.28-29, 227
When the allegation against the father was first broached in the interview, the child seemed momentarily demure and reluctant, but she then engaged the interviewer with little further hesitation. The description offered by the child about the father’s behaviour towards her was largely consistent with the mother’s evidence about what she was told by the child. The child confirmed her vulva was reddened,[21] which was the reason she was questioned by the mother and why she provided the inculpatory explanation about the father.[22]
[21] Exhibit M2, Q.113-116
[22] Exhibit M2, Q.160-165, 170-171
The demonstration by the child of the manner in which she was handled by the father largely matched the demonstration she formerly provided to the doctor and the mother. She demonstrated sitting on the lounge with her legs extended together with a hand placed on or around her shins.[23] She also demonstrated the way she was rubbed on the vulva, which entailed moving her hand in an up-and-down motion over her vulva with her fingers pointed downwards and her thumb extended perpendicular from her fingers,[24] just as the mother had demonstrated whilst giving evidence. At the conclusion of the interview the child was invited to mark on a diagram of a child’s body the area of her body upon which she was rubbed by the father and she drew a small circle around the vulva of the figure in the diagram.[25]
[23] Exhibit M2, Q.119-124
[24] Exhibit M2, Q.125-126
[25] Exhibit M2, Q.232-236
The child also offered extra detail about the incident during the interview, which tended to imbue her story with greater credence. She explained how the father was sitting on the lounge with her in a quite specific way, with his feet extended outwards towards the wall at an oblique angle to the lounge, which she graphically demonstrated.[26] The child specifically explained, and also demonstrated, the pressure used by the father when he pressed his hand upon her vulva.[27]
[26] Exhibit M2, Q.193, 195
[27] Exhibit M2, Q.142, 186
I do not place any real weight on the details provided by the child about the event occurring on a single seat lounge,[28] which was brown in colour.[29] The father conceded that such a lounge existed in his home, but such details would be known to the child irrespective of her allegations.
[28] Exhibit M2, Q.149-151, 157, 188-189
[29] Exhibit M2, Q.152
The child confirmed it had happened on more than one occasion,[30] just as she earlier told the doctor. The child also said that it occurred when she and the father were alone at his home,[31] just as she earlier told the mother.
[30] Exhibit M2, Q.96-97, 132-136, 148
[31] Exhibit M2, Q.42, 49, 101
On the evening following the child’s participation in the JIRT interview the child volunteered to the mother:[32]
…When Dad rubbed my front bottom he rubbed it really hard and I thought I was going to wet my pants all over the lounge. I don’t want him to do that again.
[32] Mother’s affidavit, Annexure B, par 11
Following the child’s interview with JIRT officers, proceedings were instituted in the Local Court of NSW by police to obtain an apprehended violence order against the father for the protection of the child. Although an interim order was made, the order was subsequently discharged.[33]
[33] Mother’s affidavit, pars 33, 41-42; Father’s affidavit, pars 10, 15
A few months later, in February 2011, the child was interviewed by the single expert. In the course of that discussion the child gave the single expert a similar account of how the father had touched her genitals whilst they were seated on the lounge.
There were, however, aspects of the account given by the child that the single expert considered merit attention. Firstly, the child only divulged the information about the father following the single expert’s leading questions about the father being “naughty”. Secondly, the child said the incident occurred only once, not more often as she had earlier told the doctor and JIRT. Thirdly, the child did not describe having her legs held by the father’s spare hand, contrary to her description and demonstration to the doctor and JIRT.
The single expert said in cross-examination she asked leading questions of the child only because of time constraints. Although the single expert gave the child the opportunity to recant from her allegations against the father, by permitting the child to admit that she only identified the father as rubbing her on the vulva so as to deflect blame from herself for masturbation, the child did not take that opportunity. Rather, she affirmed what the father had done to her and proceeded to demonstrate.[34]
[34] Single expert report, page 4
The single expert was willing to concede the possibility that the child simply reverted to a standardised response, implicating the father, on each occasion she was asked any questions which expressly or inferentially related to her being touched on the genitals. She agreed it was a “reasonable hypothesis” that the child became “locked in to the story”. However, the single expert was not asked, and did not volunteer, that such explanations were probable. The single expert said there were interviews where “you know children are not telling the truth”, implying this instance was not one of them. She was conscious she had offered the child an opportunity to recant from the allegation against the father, by admitting masturbation, but the child did not do so. Rather, the child adhered to the allegation. The single expert remained “concerned” that the child had been sexually abused by the father in the manner described.
For his part, the father flatly denied sexually interfering with the child in the manner alleged, or at all.[35] He adhered to his denial in cross-examination, denying that he abused the child deliberately, and asserting it could not have happened inadvertently, even whilst intoxicated.
[35] Father’s affidavit, par 36; Single expert report, page 6
Although the father entertained the idea that the child had not reported to the mother his sexual abuse of her, as the mother alleged, he cannot deny that the child repeated those allegations to the doctor, JIRT, and the single expert. The child’s reports are verified by those independent sources.
Self-evidently, the parties and the Court can only speculate upon why the child may have implicated the father in her allegations. The father deposed to a belief that the child may have been coached by the mother to make the allegations against him.[36] Indeed, the paternal family is angry at the mother, not the child, for the allegations made against the father.[37] The father also told the single expert that the mother “could be nasty and might give [the child] ideas”,[38] which he conceded in cross-examination was a reference to his speculation about the child being coached by the mother. The father admitted in cross-examination he did not know whether the mother coached the child to make the allegations, and was prepared to agree the child appeared in the audio/visual recording of the JIRT interview to be describing actual events realistically.
[36] Father’s affidavit, par 46
[37] Father’s affidavit, par 56
[38] Single expert report, page 6
The single expert was quite satisfied the mother had not coached the child to make allegations implicating the father in her sexual abuse. In cross-examination the single expert expressed “confidence” that the mother had not done so. In part, the single expert’s opinion was based upon the child’s reticence to discuss the allegations, whereas coached children habitually display no such reluctance.[39] Nor did the single expert believe the child had implicated the father in order to please the mother.
[39] Single expert report, page 14
It has been authoritatively determined that allegations of child sexual abuse made by one party against another ought to be critically analysed, but only within the context of the Act. It is not the function of the Court to necessarily adjudicate upon the veracity of the allegations of abuse. The Court should not divert its attention from the task imposed by the Act, which is to reach a parenting outcome on the evidence which is in the best interests of the child.
As the High Court said in M & M (1988) 166 CLR 69 at 76-77:
…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…
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362…
in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.
The test to be applied is whether an unacceptable risk exists that the child will be sexually abused by the father in the future. The answer to that question will necessarily shape the parenting orders formulated by the Court.
The allegations of past sexual abuse are relevant to the issue because they provide a foundation for prediction about the child’s exposure to similar abuse in the future. The Court’s inquiry is directed both to the existence and quantification of risk. That must be so, since there is a discernable difference between a “risk” and an “unacceptable risk”. As the High Court made plain in M & M (at 71, 78), an unexcluded possibility of past abuse is capable of supporting, but does not demand, a finding that the child is at unacceptable risk of future abuse. The rejection of allegations of past abuse by reference to the civil standard of proof does not preclude a finding of unacceptable risk of future abuse. Other aspects of the evidence, apart from alleged past abuse, may also bear upon the existence of a risk of future abuse (see Nikolakis v Nikolakis [2010] FamCAFC 52 at [95-96]).
In this case there are other aspects of the evidence that bear upon the existence of such a risk, to which evidence it is now convenient to turn. Such evidence includes the level of the father’s alcohol consumption and his propensity for impulsivity. The father’s staunch insistence of his complete detachment from any association with the child’s genitals is another consideration, but of less weight.
The father is indifferent to the concern of others over his alcohol consumption, both as to its pattern and the sheer amount of his consumption. He is not oblivious to the concern because he acknowledges that his consumption constitutes binge drinking and is harmful to his health.[40]
[40] Single expert report, page 7
In cross-examination the father said he did not drink alcohol every day, but when he did drink he admitted it was to a “significant level”. He admitted drinking on several days each week, and estimated on each occasion drinking 12-15 full strength beers, which he conceded was “a hell of a lot” of drinking.
The comments made by the father to the single expert, and the evidence to which he deposed in his affidavit, minimised the extent of the problem. The father admitted as much in cross-examination. He told the single expert he only drank about 10 beers in a session, which only made him a “little bit tipsy”.[41] In his affidavit, the father asserted he was a “social drinker” and there were only “times when I have drunk heavily”, but did not offer any contextual measurement of his consumption.[42] The inference intended by the father was that he did not misuse alcohol. The father then inconsistently said in cross-examination he may have had a problem with alcohol in the past, but he does not now.
[41] Single expert report, page 6
[42] Father’s affidavit, par 51(a)
The father was forced to admit heavy alcohol consumption had justified his admission to hospital for treatment on two separate occasions, albeit some years ago. On one occasion he injured his head when diving into a pool whilst intoxicated. On the other occasion he was vomiting uncontrollably.
The father was also impelled to admit he had used threatening and abusive language towards the mother in the past whilst affected by alcohol.
The father said in cross-examination he changed his drinking practices about 17 months ago. He alleged he does not drink at all when the child is in his care, although he formerly did in moderate amounts.[43] The father was unable to clearly articulate what caused his change of heart at that point in time. He said he “just thought it would be better off not drinking around [the child]” and the decision was made by him “out of the blue”. He still drinks regularly when the child is not with him, but now tends to do so at licensed premises rather than at home.[44]
[43] Father’s affidavit, par 51(d)
[44] Father’s affidavit, par 51(c)
The father’s evidence left me with the distinct impression he continues to drink with such frequency and in such quantities that he is at risk of physiological harm. Despite acknowledging to the single expert the harmful repercussions of his existing drinking practices, even allowing for his now moderated consumption, his failure to abstain from or further decrease his alcohol consumption justifies an inference he is either unable or unwilling to do so. In either case, the likelihood is the father will continue drinking at objectively harmful levels. He did not perceive any need for him to undertake counselling to assist in his reduction of alcohol consumption.
That is a factor of significance for obvious reasons. If the father is beholden to alcohol he probably has impaired self-control over when he resorts to alcohol use. Moreover, intoxication will likely relieve his behaviour of ordinary inhibition. I accept the logic of the single expert’s concern that the father may have sexually abused the child whilst “disinhibited by alcohol”.
In cross-examination the single expert rejected the proposition her concerns about the child being in the care of the father would be allayed by imposition of a restraint upon the father which prohibited his consumption of alcohol at or about the times during which the child was with him. The single expert observed that “people who need to drink will drink regardless of promises they make”. The very reason the single expert recommended informal supervision of the time spent by the child with the father was her concern about the father consuming alcohol in the evenings and the role alcohol may have played in the allegations made against him by the child.
The father is also prone to act impulsively, irrespective of whether he is affected by alcohol. I remain alert to the potentiality for the child to be molested on an impulse, rather than pursuant to premeditation.
The father admitted having called and sent text messages to the mother on numerous occasions in the middle of the night, which incidents often occurred whilst he was intoxicated. There was no good reason for the father to attempt contact with the mother at such late hours. Axiomatically, he impulsively decided to contact her regarding some issue about which he had been thinking. At those times he was abusive and discourteous to the mother. He agreed his behaviour was bound to cause the mother apprehension and undermine the civility of their relationship.
On another occasion the father shot and destroyed his dog after it nipped the child on the arm. The father admitted his annoyance because he had repeatedly instructed the child not to go near the dog in the shed. She disobeyed him. The dog nipped her, without inflicting injury, but causing the child to be distressed. The father told the child he intended to shoot the dog and instructed her to remain within the house while he did so. He then recovered his firearm, shot the dog silently, returned to the house, and informed the child he had shot and killed the dog.
Although angry, he denied he was intoxicated at the time. He regretted his behaviour on that occasion, acknowledging it probably caused emotional distress to the child. He was simply unable to contain his impulsivity, even though his decision was unaffected by intoxication. The father conceded in cross-examination he had reacted violently and angrily on that occasion, but was confident he would not do so again. I do not share his confidence.
The evidence of the father about his intentional avoidance of any conduct associated with the child’s genitals was quite curious. It would be quite natural for a father to touch a young daughter’s pubic anatomy in certain circumstances, such as when bathing the child, properly drying the child’s body, or applying cream for therapeutic purposes. However, the father strongly disavowed participating in care of the child in any of those ways.
In November 2010 the child had not even attained 6 years of age. The father deposed that he played little or no part in her toileting or bathing routines.[45] In cross-examination he said that he sat outside the closed door of the bathroom while the child bathed, implying that he took deliberate steps to avoid seeing the child naked. Even though the father deposed to his knowledge of the child’s occasional genital irritation,[46] the father also said he had never noticed any redness on the child’s vulva.[47] In fact, in cross-examination, the father asserted that, apart from perhaps a “quick glance”, he never looked at the child’s genitals even when he did assist to bath or dry her body. The single expert reported, and confirmed when cross-examined, that the father was adamant he did not look at the child’s genitals.[48] Even when the child required ointment to sooth genital irritation the father alleged he gave the cream to the child to apply herself, as he declined to do it.[49] The father’s assertive disavowal of ordinary parental care involving contact with the child’s pubic anatomy was quite enigmatic. His protest almost seemed too loud.
[45] Father’s affidavit, par 37
[46] Father’s affidavit, par 38
[47] Father’s affidavit, par 37
[48] Single expert report, page 6
[49] Father’s affidavit, pars 39, 41
Neither the mother nor the Independent Children’s Lawyer submitted for the Court to find, on the balance of probabilities, that the father did sexually abuse the child as she alleged. Instead, they each invited the Court to find the existence of an unacceptable risk of sexual abuse of the child by the father. The father, of course, contended that no such finding should be made. He asserted the Court should find as a fact he had not sexually abused the child.
In assessing the evidence and those submissions I have had regard for the principles established by the High Court and Full Court of the Family Court (see M & M (1988) 166 CLR 69 at 76-77; In the Marriage of B and B (1993) FLC 92-357 at 79778; WK v SR (1997) FLC 92-787 at 84694; Re W (Sex abuse: standard of proof) (2004) FLC 93-192 at 79217-79218; W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 at 79910; Napier & Hepburn (2006) FLC 93-303 at 81114 - 81117; Potter & Potter (2007) FLC 93-326 at 81636-81637). I have also had regard to the standard of proof imposed by the Evidence Act 1995 (Cth) (s 140(2)(c)).
I make no finding that the father sexually abused the child, as she alleged. The evidence is insufficiently compelling. The mother conceded to the single expert that the child “does shift blame to avoid saying what she has done”,[50] which adds some weight to the single expert’s concern the child may have implicated the father to deflect blame from herself for masturbation. The mother also told the single expert she did not think “deep down” the father would molest the child.[51] Nevertheless, the mother credibly denied she had coached the child to implicate the father and was unable to say why the child did implicate the father voluntarily. The mother was left in the quandary of being unable to reconcile the child’s coherent allegations with her past opinion of the father’s disposition. The mother plaintively and honestly said in response to questions about the alleged sexual abuse “I can’t know. I wasn’t there” and “to this day I don’t know whether it has happened or not”.
[50] Single expert report, page 9
[51] Single expert report, page 9
The evidence, however, demands a finding that an unacceptable risk of such abuse does exist. I accept the submission to that effect by the mother and Independent Children’s Lawyer. The finding is underpinned by numerous considerations.
Firstly, the cogency of the child’s allegations about the father to various independent persons is a factor of considerable weight. The child gave a similar, but not identical, account of events to the mother, doctor, JIRT officers, and the single expert. Although the child did not describe to the single expert having her legs held by the father’s spare hand, it should be remembered that her account was given to the single expert some months after her interview with JIRT officers and she was prompted by different questions in each instance. It would evoke more curiosity if the child’s versions of the event were identical on every occasion she recited it, as if it was a rehearsed story. The tale is more credible given the consistency of the core details and the careful and detailed manner in which the child related the story, particularly in the JIRT interview that even the father found credible.
The father’s strident minimisation of his physical connection with, and visual observation of, the child’s pubic anatomy only serves to arouse curiosity about why he would avoid natural and innocent interaction with the child and compound suspicion that his denials are disingenuous.
Secondly, the disinclination of the father to further attenuate his frequent and excessive consumption of alcohol is a consideration, despite his denials of intoxication whilst the child is in his care. Once this litigation is concluded and attention upon his behaviour is relaxed, the potentiality for the father to consume alcohol when he desires and then behave in a more unrestrained way when intoxicated is obvious.
Thirdly, the father’s propensity for impulsive behaviour is unlikely to change. It is part of his character and overlays his desire to periodically intoxicate himself. The prospect of the father opportunistically taking advantage of the child’s innocence whilst they are alone, perhaps while intoxicated, remains a concern.
As the Full Court said in A v A (1998) FLC 92-800 at 84996 – 94997, it is an entirely artificial exercise to carry out an analysis of the statutory factors affecting a child’s best interests in isolation from the conclusions reached about the existence of an unacceptable risk of abuse to the child. To do so would sideline the major factor in the case. Consequently, consideration of the criteria under s 60CC of the Act should occur in the context of the finding of unacceptable risk.
Best interests of the child – primary considerations
Section 60CC(2)(a)
The single expert reported the child to have a meaningful relationship with the father. The child spoke positively of him and happily interacted with both the father and paternal grandmother when observed by the single expert.[52] That evidence was confirmed by the single expert in cross-examination.
[52] Single expert report, pages 3-4, 14, 15
The mother agreed in cross-examination the child loves the father and enjoys being with him.
Similarly, there was no issue about the quality of the child’s relationship with the mother, with whom she has a meaningful relationship. The child’s expressed preference to live with the mother suggests her primary attachment lies with the mother.[53]
[53] Single expert, page 4
I accept the single expert’s evidence that it is necessary to preserve the meaningful relationships the child enjoys with both parents, subject to her protection against the risk of harm already found to exist.
Section 60CC(2)(b)
There is an unacceptable risk of the child being sexually abused by the father, with consequent potential for the child to suffer psychological harm. The child must be protected against that risk, which can be satisfactorily attenuated by supervision of the time spent by the child with the father for a given period of time.
There is no suggestion the child is at risk of physical or psychological harm through exposure or subjection to any other form of abuse, neglect or family violence.
Best interests of the child – additional considerations
Section 60CC(3)(a)
The child told the single expert she wanted to spend more time with the father, including sleeping over at the father’s home.[54] She confirmed that wish, even after relating to the single expert the allegations of sexual abuse against the father.[55]
[54] Single expert report, page 3
[55] Single expert report, page 4
The child’s expressed wishes are symptomatic of the depth of her feelings for the father and confirm the evidence about the existence of a meaningful relationship between the child and the father, but do not influence the Court’s determination about the parenting orders that should be made in her best interests.
Section 60CC(3)(b)
The child has a warm and loving relationship with the paternal grandmother, with whom she was observed by the single expert to play and cuddle.[56]
[56] Single expert report, page 4
The child also has positive relationships with the mother’s current partner and the maternal grandparents, each of whom she depicted in a family drawing.[57]
[57] Single expert report, page 3
Sections 60CC(3)(c), (4)
Despite the father’s reticence to acknowledge it, there can really be little doubt the mother is willing and able to facilitate and encourage a close and continuing relationship between the child and him.
Although the mother harbours grave concerns the father sexually abused the child, she is still sufficiently objective to extend to the father the benefit of any doubt that exists about the child’s allegations. She candidly told the single expert she really did not think the father was capable of perpetrating such abuse on the child. The mother frankly said to the single expert she just wanted “[the child] to be safe…to spend time with the father (and) [to] get to the bottom of (the disclosure)”.[58] That was a remarkably fair attitude for the mother to adopt in the circumstances.
[58] Single expert report, page 9
The mother credibly asserted in cross-examination she wanted the child to have a relationship with the father, but simply wanted re-assurance the child was safe in his care, just as she deposed in her affidavit.[59]
[59] Mother’s affidavit, par 48
In conversation with the single expert[60] and also in cross-examination the mother said she had contemplated alternate explanations for the child’s allegations against the father. She had wondered whether the father had just given the child an “affectionate pat”, which the child misinterpreted, whether the child had seen such an incident on the television, or whether the child had masturbated and blamed the father to divert attention from her own behaviour and minimise her embarrassment. It is unlikely any mother intent upon causing deterioration in the relationship between her child and the child’s father would be so open-minded as the mother in this instance.
[60] Single expert report, page 15
The mother admitted she was protective of the child, but denied she was hyper-vigilant or overly anxious about the child’s safety as a consequence of her own privations as a child. I accept the mother’s denial as accurate and truthful.
As already noted, the single expert considered the mother was empathetic enough to genuinely desire retention of the relationship between the child and father. She said in cross-examination she had no sense that the mother was “trying to alienate the father”, just as she earlier reported.[61]
[61] Single expert report, page 15
The mother was not challenged about her evidence that, following an occasion on which the paternal grandmother was unable to supervise the child’s time with the father, she offered compensatory time.[62] Such behaviour eloquently demonstrates her willingness to promote the child’s relationship with the father. The mother has merely been cautious and protective of the child, not punitive or vindictive.
[62] Mother’s affidavit, par 47
Equally, it can properly be said that the father is willing and able to promote the child’s relationship with the mother. His response to the child’s allegations of sexual abuse was not to rail histrionically against them by demanding the removal of the child from the mother’s care. Given his denial of the allegations, the father contemplated the possibility of the child being coached by the mother, but did not assert that as the only explanation for the allegations being false. He has sufficient insight to realise the child is primarily attached to the mother and needs to continue living with her.
Section 60CC(3)(d)
The orders do not entail any significant change from existing arrangements under the interim orders made in January 2011, requiring supervision of the time regularly spent by the child with the father. Hence, no immediate adjustment is required of the child.
That regime will change in several years, by which time the single expert considers the child will be of sufficient maturity to capably protect herself from the risk of abuse, justifying relaxation of the requirement for supervision.
Section 60CC(3)(e)
Subject to one reservation, the orders do not impose any practical difficulty or expense upon the occurrence of regular interaction between the child and the father. The parties anticipate they will continue to live in relatively close proximity to one another.
The father contended the imposition of the necessity for supervision of the time spent with him by the child would necessarily cause a practical difficulty, in that his extended family members would be unable to provide such regular supervision, thereby depriving the child of the benefit of the time she would ordinarily expect to spend with him.
To alleviate inconvenience, the mother was prepared to countenance numerous members of the paternal family as suitable supervisors,[63] but the father discounted them in his evidence.[64]
[63] Amended Application filed 18 May 2011, Order 6
[64] Father’s affidavit, pars 53-57
The father confirmed his evidence in cross-examination. He said the paternal grandfather was “pretty busy” and could only help “every now and again”. His sister and brother-in-law would not willingly assist because they were “too scared their boys would be accused [of sexual abuse]”. Although his brother only lived a few doors from the paternal grandmother, he also was “pretty busy” and could only likely help from “time to time”.
The paternal grandmother was the most likely candidate as a supervisor, because she accepted that role pursuant to the interim orders made in January 2011. She was prepared to accept that role on an interim basis, but is reluctant to supervise regularly over the next few years. The reluctance of the paternal grandmother is completely understandable in the face of the reasons she offered.[65] In cross-examination the paternal grandmother agreed she would continue to assist by providing supervision at times, but not with the regularity she now does. The father also said the paternal grandmother would provide the supervision “if she feels up to it”.
[65] Affidavit of paternal grandmother, pars 3-4
The imposition of supervision does not render the child’s time with the father unworkable – simply more inconvenient. The father’s grievance is primarily that supervision is a hamper and causes him some embarrassment.[66] That may be so, but it is not too a high a price to pay to alleviate the risk to the child. It could not be cogently asserted that because of some difficulty in ensuring regular supervision, the Court should dispense with the requirement for supervision otherwise thought to be necessary.
[66] Father’s affidavit, pars 58-59
The orders cater to the inconvenience of regular supervision by permitting use of numerous paternal family members as supervisors for the period during which supervision is required.
There is an added comfort to the imposition of supervision, apart from protection of the child against the risk of sexual abuse. If the child’s past allegations of abuse against the father were false, and if she were inclined to make more false allegations against the father in the future, his denials of the allegations could be corroborated by the supervisor. The single expert foresaw that advantage,[67] and in cross-examination the father conceded the logic of that consideration.
[67] Single expert report, page 14
Section 60CC(3)(f)
The parties conducted the litigation on the premise that, aside from the potential for the father to compromise the child’s psychological state through sexual abuse, each of them have the capacity to provide for all of the child’s physical, emotional and intellectual needs.
The parties will only be assisted by their respective family members in meeting the child’s needs.
Section 60CC(3)(g)
Apart from the father’s excessive consumption of alcohol, which has already been addressed, there was no other aspect of the parties’ maturity, sex, lifestyle or background asserted to be relevant to the outcome of the proceedings.
Section 60CC(3)(h)
Neither party identifies themselves nor the child as Indigenous Australian.
Sections 60CC(3)(i), (4)
The evidence suggested the father lacked commitment to financially maintain the child, as was his obligation. The mother reported to the single expert the father pays to her child support of only $20 per week,[68] which was the subject of adverse comment by the single expert.[69]
[68] Single expert report, page 11
[69] Single expert report, page 15
The mother confirmed in cross-examination that even the small amount paid by the father exceeded the existing child support assessment, and that the father gave her an extra single payment of about $100 when the child commenced school.
The father said he voluntarily paid child support of $100 per week until the property adjustment orders were made between the parties, after which time his payments decreased to $20 per week. The father asserted he could not afford to pay more, but he was impelled to concede that his discretionary weekly expenditure on alcohol consumption far exceeded the amount he currently paid in child support. He admitted to spending about $60 in a single drinking session, and indulging in several such sessions each week.
There is no avoidance of a conclusion the father could do much more to assist with the financial maintenance of the child, which reflects poorly upon his attitude to the child and responsibilities of parenthood. However, given the relatively narrow scope of the issues at stake in these proceedings, the father’s lamentable attitude to the financial maintenance of the child does not materially influence the orders made by the Court.
Despite being ordered in January 2011 to participate in a post-separation parenting program, the father has not yet done so. He is enrolled to complete such a program.[70] The evidence is silent as to whether the mother completed such a program in compliance with that order. I draw no adverse conclusion against either, but note the facts as unsatisfactory.
[70] Father’s affidavit, par 52
Overall, apart from issues already discussed, the parties were apparently satisfied with their respective attitudes to the child and the responsibilities of parenthood.
Section 60CC(3)(j)
There was scant evidence adduced of family violence involving any member of the child’s family.
The mother told the single expert of her past verbal abuse by the father when he was intoxicated, but the evidence does not permit a finding that the abuse caused her to be actually or reasonably fearful or apprehensive about her personal wellbeing or safety, in which case such episodes were not instances of family violence.
The single allegation of actual or threatened physical confrontation made by the mother related to an incident in which the father grabbed her on the arm during an argument in the car,[71] which the father denied in cross-examination.
[71] Single expert report, page 10
Even allowing for the truth and accuracy of the mother’s evidence on the issue, it is not such as to influence the orders which are the subject of contest.
Section 60CC(3)(k)
The evidence discloses that two relevant family violence orders have been made since the parties separated, but none are now current.
An apprehended violence order was taken out by or on behalf of the mother against the father in April 2009, but withdrawn in June 2009.[72]
[72] Father’s affidavit, pars 23-26
The most recent family violence order was the apprehended violence order procured by police against the father in favour of the child following the child’s revelations in the JIRT interview conducted on 16 November 2010. The Local Court of NSW granted the family violence order on an interim basis, but the order was later discharged consensually in April 2011.[73]
[73] Mother’s affidavit, pars 33, 41-42; Father’s affidavit, pars 10, 15
Section 60CC(3)(l)
The imposition of supervision upon the interaction between the child and father over the next few years is likely to reduce the prospect of further litigation in respect of the child. That is because supervision will diminish, if not eradicate, the prospect of any further allegations of sexual abuse of the child by the father. Even if further allegations are made, the supervisor will be able to either corroborate or affirmatively deny the veracity of such allegations.
Section 60CC(3)(m)
Substantial time in the trial was devoted to other allegations made by the child against the father’s son G.
In December 2009 the mother reported to the father that the child had complained of having been handled roughly by G at the father’s home.[74] At that time G was aged 17 years and the child nearly 5 years.
[74] Father’s affidavit, pars 31-34; Mother’s affidavit, pars 49-53
In cross-examination the mother explained the child complained to her:
My [described either as “front bottom” or “private part”] feels yukky.
When I was at Dad’s in the shower, G did this to me.
The child then demonstrated how G had placed his hands upon her abdomen. She placed one hand over her vulva, with the fingers extending under her crotch, and the other hand over her buttocks, with the fingers extending under her crotch. The child then lifted her hands, indicating that G had lifted her with that hold between the legs. The child alleged that had been done to her in the bathroom whilst she was naked, after just having showered.
Although the child did not specifically say so, the mother imputed from the demonstration that G had penetrated both the child’s vagina and anus with his fingers in the course of that manoeuvre. The mother admitted she could not be definitive and her imputation may have been mistaken, but maintained she had honestly interpreted it in that way.
Apart from reporting the matter to the father, the mother also reported the incident to the police.[75] The child was later interviewed by JIRT in December 2009. It is common ground that in the interview the child did not make the same allegations as she had to the mother. The allegations made by the child to JIRT were restricted to rough physical handling by G, apparently without sexual connotation. JIRT told the mother sexual abuse was not substantiated and the matter rested there.
[75] Exhibit ICL1
The child continued to spend time with the father in accordance with the parenting regime that then prevailed. The mother was then satisfied the father would protect the child, once alerted to the allegations made against G.
The father said in cross-examination he discussed the matter with G. However, he apparently only raised with him the allegations of rough handling, and not the specific allegation made by the mother which raised the spectre of sexual abuse. Apparently G denied any unduly rough handling of the child. In any event, G vacated the father’s home and began living with the paternal grandmother to avoid the prospect of any further allegations being made against him.
Although the father was resistant to the idea, he eventually conceded it was possible G had handled the child roughly when he was not present to observe.
Without the issue being made explicit by the father, the plain inference was he entertained the notion the allegations made against him nearly a year later were just another example of the baseless allegations that began with those made against G in December 2009. Whatever the father’s genuine belief may be, I do not accept that the child’s allegations against G in December 2009 have any probative bearing upon the veracity of, or motives for, the child’s allegations against the father in November 2010. Ultimately, nobody expressly submitted they did.
It seems obvious members of the paternal family harbour significant antipathy towards the mother as a consequence of the allegations made against the father. The father said so in his affidavit[76] and in cross-examination. His belief was confirmed by at least the paternal grandmother, who plainly disbelieved the allegations of sexual abuse of the child.[77]
[76] Father’s affidavit, par 56
[77] Affidavit of paternal grandmother, par 10; Single expert report, page 13
However, in cross-examination, the paternal grandmother was prepared to modify her harsh criticisms of the mother. Her willingness to do so may be partly explained by her acquiring some new perspective by sitting in Court to view the audio/visual recording of the child’s interview with JIRT during which the child made her credible allegations against the father.
The paternal grandmother agreed she did not believe the mother coached the child to make the allegations, which she considered were volunteered by the child. In the face of such allegations, she agreed the mother was obliged to have them properly investigated. She agreed if she was confronted with such allegations by her own daughters or granddaughters she would have acted just as the mother did. The paternal grandmother was also now open to the possibility that the child’s earlier allegations against G were not made vindictively by the mother and that the mother then only acted cautiously.
In light of those concessions, there is hope the relationship between the mother and the father and his family will stabilise – perhaps even improve.
Parental responsibility
The issue of the allocation of parental responsibility for the child was vexed.
It pays to remember that as recently as May 2010 the parties agreed they should have equal shared parental responsibility for the child in order to meet the child’s best interests, and the Court agreed by granting such an order.
Despite their disaffection with one another, the parties contentedly abided by that order until the revelation of sexual abuse by the child in November 2010. That was the only material change in circumstances after the parental responsibility order was made in May 2010.
The submissions of the parties and Independent Children’s Lawyer as to the allocation of parental responsibility were intriguingly different. The father wished to retain the existing order of equal shared parental responsibility.[78] The mother desired sole parental responsibility for the child, subject to an antecedent obligation to consult with the father.[79] The Independent Children’s Lawyer submitted orally that the mother should have sole parental responsibility for the child without restriction.
[78] Exhibit F1
[79] Exhibit M3
There is no finding of actual abuse or family violence so the presumption of equal shared parental responsibility applies (s 61DA(2)). However, the Independent Children’s Lawyer submitted the presumption of equal shared parental responsibility was rebutted on the evidence (s 61DA(4)). The relevant evidence, as submitted, was the father’s abuse of alcohol, the father’s action in shooting his dog, the father’s harassment of the mother through telephone calls and text messages, and the increased conflict and distrust between the parties.
Relevantly, almost all of that evidence pertained to events which occurred and were known to the parties in advance of their agreement and request for the Court to allocate equal shared parental responsibility in May 2010. True it is that the level of conflict and distrust between the parties has elevated since the sexual abuse allegations were made in November 2010, but allegations of that sort were bound to engender such results.
The father contended the evidence did not warrant rebuttal of the presumption of equal shared parental responsibility. It was asserted the mother was not unduly critical of the father and appreciated the importance of retention of the relationship between the child and the father. Although there was undoubtedly some disharmony between the parties, the father submitted they did not think the worst of each other. The father did however concede in cross-examination the parties did experience difficulty communicating with one another. He could hardly have done otherwise in light of his admissions about his occasional drunken and abusive encounters with the mother.
For her part, the mother acknowledged the agreement about equal shared parental responsibility she struck in May 2010. Although she said she found it difficult to deal and reach agreement with the father in the past, difficulty is altogether different from incapacity. The mother was certainly willing to mediate with the father concerning major long-term issues of importance in the child’s life, but remained concerned about the prospect of a deadlock over such issues. In that event she desired the right of veto.
The mother’s residual concern about a future impasse is not unreasonable, but there is no evidence to presently suggest such an impasse will probably arise. I am not inclined to make an order vesting sole parental responsibility in the mother on merely a hypothetical possibility. That is an insufficiently solid foundation upon which to conclude rebuttal of the presumption of equal shared parental responsibility is justified. The presumption should apply and an order is made accordingly.
In all probability, the need for discussion between the parties about significant issues in the child’s life will not regularly arise. Neither party contended it would be impossible or practicably unreasonable for them to confer with one another when the need does arise. If it makes the process easier, the parties may confer in writing rather than face-to-face.
Living arrangements
In light of the allocation of equal shared parental responsibility, the Court is obliged to consider living arrangements under which the child lives for equal time in each household, or alternatively, lives primarily with one parent and spends substantial and significant time with the non-residential parent. As required, I will deal with those alternatives sequentially.
An “equal time” parenting regime is not in the best interests of the child. The father does not propose it, the mother does not want it, and the single expert recommends against it. The parties are presently too conflicted for such an arrangement to be successfully implemented. Although the parties have the capacity to negotiate matters of parental responsibility, their relationship is insufficiently harmonious to cooperatively parent the child dealing with the day-to-day matters required by an “equal time” regime.
It is desirable for the child to live primarily with one party. It is uncontroversial that the mother is the appropriate residential option for the child.
The question then arises as to the appropriate arrangements for the child to spend time with the father, with the Court mandated to firstly consider the alternative of that time amounting to “substantial and significant time”, as defined in the Act (s 65DAA(3)).
The father adopted the mother’s proposal about the time to be spent by the child with him, but then in final submissions the mother adopted the Independent Children’s Lawyer’s proposal about the time to be spent by the child with the father. Although the proposal on that discrete issue made by the Independent Children’s Lawyer was slightly different from the mother’s original proposal, both proposals still met the statutory definition of “substantial and significant time”. Despite the minor discrepancies, each proposal generally entailed the child spending time with the father each alternate weekend for three consecutive nights and for approximately half of all school holiday periods. That was the gist of the agreement formerly struck between the parties in May 2010.
In view of the broad agreement, I accept it is both reasonably practicable and in the child’s best interests for her to spend substantial and significant time to that extent with the father.
The critical question is whether the time spent by the child with the father should be the subject of supervision, and if so, the circumstances under which it should occur.
The father strongly rejected the need for supervision of the time spent by the child with him. He said so to the single expert,[80] and again in evidence.
[80] Single expert report, page 7
The single expert took a different view, observing in her report:[81]
The inconsistencies and uncertainties about the molestation issue lead me to conclude one should take a conservative approach to [the child’s] time with the father: to be protective but not exclude him and his family.
[81] Single expert report, page 14
On that basis the single expert recommended:[82]
[The child] spend alternate weekends with her father, from after school Friday to before school Monday, provided there is another, familiar adult present in the home during the evenings and overnight and she sleeps in her own bed. Extended holidays with the paternal family should be based [in the paternal grandmother’s] home until [the child] is around ten [years of age].
(original emphasis)
[82] Single expert report, page 16
The issue was taken up with the single expert in cross-examination, at which point she effectively accepted that, should the Court find the existence of an unacceptable risk of sexual abuse, the requirement for supervision might properly be even tighter than she recommended in her report.
The single expert said in cross-examination words to the effect “I was not comfortable advocating no supervision, but didn’t think it warranted strict supervision, so I proposed a ‘mid way’ alternative”. The single expert did not accept the proposition that the imposition of supervision would likely impair the relationship between the child and father, but was prepared to concede that possibility in the event that either party made a “big deal” out of it. I am not satisfied the mother will vengefully make a “big deal” out of the imposition of supervision, and I am certain the father and members of the paternal family will make efforts to handle it discreetly. The submission of the father that supervision would potentially impair the child’s relationship with him therefore had little evidential support.
The father also submitted the imposition of supervision would introduce an air of artificiality to the child’s relationship with him. That could be so, but not if the parties handle the issue sensitively, as I am satisfied they probably will.
The father contended the imposition of supervision will likely mean the child spends considerably less time with him than envisaged by the mother, the Independent Children’s Lawyer, and the single expert because of the difficulty he will encounter in regularly organising a supervisor.
Whilst that is a consideration, it attracts little weight. The orders contemplate five different members of the paternal family as suitable supervisors, all of whom live in relatively close proximity to the father. For reasons already elaborated, the father’s argument is merely one of inconvenience not impossibility. The probability is that the father will be able to avail himself of the orders enabling the child to see him regularly.
If occasionally a supervisor cannot be arranged then the orders permit the parties to reach alternate agreement. Depending upon the circumstances, the mother may see fit to permit the child to safely spend some abbreviated time with the father in a public setting to retain continuity with the child’s interaction with the father. That type of arrangement was apparently an outcome anticipated by the father, as when asked about the unavailability of supervisors he responded to the effect “I haven’t really thought about it – probably just get her [the child] alternate Saturdays during the day”.
Although the mother could be obstructive about alternate arrangements in such circumstances, I did not infer she was inclined to be so. In any event, there is presently insufficient evidence to justify a finding at this point in time that an alternate order regulating such contingencies is reasonably practicable (s 65DAA(5)), but the parties would be free to negotiate alternatives in view of circumstances then known if the issue arises.
I do not accept the father’s submission that the Court should be satisfied with the imposition of an injunction restraining the father’s consumption of alcohol, without the need for the imposition of supervision. An injunction alone would not be a satisfactory bulwark against the existent risk of sexual abuse, for the reasons articulated by the single expert and earlier discussed in these reasons.
I accept the submissions of the mother and Independent Children’s Lawyer that the informal supervision proposed by the single expert, only during the evenings, is an inadequate protective measure in the face of the finding of unacceptable risk of sexual abuse.
I am satisfied the supervision should be strict, as it ordinarily is when deemed necessary. Supervision is pointless if the supervisor is not always in the immediate vicinity to perceive the interaction between the child and supervised adult. A supervisor who is merely present, but unable to observe and hear interaction between the child and adult, simply represents a disincentive and not an impediment to abuse.
I am also satisfied the supervision should be constant, not merely confined to the evenings. Sexual abuse can occur at any time. Relevantly, when the child made her allegations against the father in the JIRT interview she said the incident with the father occurred in the “daytime”.[83]
[83] Exhibit M2, Q.104
The single expert envisaged the supervision should extend until the child attained the age of 10 years. It was only during final submissions that the Independent Children’s Lawyer, and then the mother, proposed extension of supervision until the child commenced secondary school at around the age of 12 years. That idea was not canvassed with the single expert in cross-examination. In the absence of any evidence to explain the fresh proposal I am disinclined to accept it. No aspect of the single expert’s evidence caused doubt about the validity of her opinion that supervision could be relaxed upon the child’s attainment of 10 years of age.
By that age and level of maturity, and subject also to the child’s intervening education about protective behaviours, the unacceptable risk of abuse will be ameliorated. The risk may still then exist, but I am satisfied on the available evidence that by that time it will no longer be characterised as unacceptably high.
Since the allegations of sexual abuse by the child in both 2009[84] and 2010, the child has been instructed by the mother that her genitals are private and should not be touched by any other person. The child was also advised to inform the mother if she was touched on the genitals by some other person. I accept the mother’s evidence she does not wish to endure another incident like this, which provoked intense investigation and keenly contested litigation, but is prepared to do so if serious allegations are again made. She has little option. Serious allegations should be properly investigated and not ignored.
[84] Single expert’s report, page 9
The single expert recommended the child undertake “formal protective behaviours work with an experienced mental health worker”.[85] The mother intends for that to occur but has not yet arranged it because she believed the Court’s decision about it was pending. I accept her evidence she did not realise she could or should act on that recommendation in advance of the Court’s determination. An order is made requiring arrangements to be made for the child’s participation in such therapy.
[85] Single expert’s report, page 15
When the mother was previously referred to a counsellor by JIRT the counsellor provided to the mother an educative children’s book entitled “Good Touching, Bad Touching”. The mother has not yet read that book with the child, but will soon do so. That will reinforce the child’s understanding of self-protective measures. The mother’s explanation for not already having done so was, similarly, her belief she should not speak with the child about the allegations and proceedings until the litigation was concluded. The mother also anticipated the counsellor “would go through that with [the child]”. I accept the mother’s evidence as truthful.
The additional advantage flowing from the imposition of supervision, which will likely be provided by the paternal grandmother more frequently than the other nominated supervisors, is probable moderation of the hostility which has crept into the parties’ relationship. The mother said in cross-examination the involvement of the paternal grandmother at changeovers had settled the hostility between her and the father, and the father agreed.[86] The paternal grandmother also agreed in cross-examination she was facilitating the communication between the parties.
[86] Father’s affidavit, par 19
Other orders
Changeovers for the child will occur either at the child’s school or at the home of the paternal grandmother, unless the parties agree otherwise.
The mother’s attitude about a venue for changeover has vacillated. In May 2010 the parties did not need an order designating the changeover venue. In January 2011 the mother agreed changeovers should occur at her home. In her Amended Application filed in May 2011, the mother proposed changeovers occur at either the child’s school or the home of the paternal grandmother, as circumstances required. The father agreed to that proposal. However, the mother then adopted the orders of the Independent Children’s Lawyer, which proposed changeovers occur at either the child’s school, the mother’s residence, or an unidentified McDonalds Restaurant.
Neither party adduced evidence or was cross-examined about changeover venues. I adopt the child’s school and the home of the paternal grandmother as the appropriate venues, absent agreement between the parties to the contrary. Both venues offer some degree of neutrality and both are conveniently close to the parties’ homes. Use of the paternal grandmother’s home as a venue may also aid the implementation of the required supervision. On occasions she is not a designated supervisor there is no impediment to use of her property as a changeover venue. The parties do not need to enter her house.
The single expert recommended the child participate in “general play therapy sessions to allow her to express her anxieties”.[87] An order is made to that effect. The Independent Children’s Lawyer should investigate and nominate the identity of a suitable therapist and venue for that purpose.
[87] Single expert report, page 15
The mother sought orders permitting the procurement of a passport for the child, which she would hold.[88] The father did not oppose such orders, which are therefore made.
[88] Amended Application filed 18 May 2011, Orders 11, 13
The mother furthermore sought orders permitting her to travel overseas with the child with minimal restriction.[89] The father did oppose those orders. The only evidence on the issue was a brief mention by the mother in oral evidence that her brother lives in New Zealand and she entertains the idea of visiting him with the child “one day”. She has no present intention to do so. I am not inclined to make the orders sought by the mother on such tenuous evidence. The child will have a passport, which will be held by the mother. When and where the child travels overseas will need to be discussed and resolved between the parties as an incident of their equal shared parental responsibility, when the need arises.
[89] Amended Application filed 18 May 2011, Orders 12, 14
Until the final submissions, the mother sought an order restraining her from relocating beyond certain nominated local government areas.[90] At the commencement of the trial the father signified his consent to such an order and the matter was not raised again until literally the last moments of the trial. The father pressed for such an order to be made, even though the mother resiled from her application for it. I decline to make the order.
[90] Amended Application filed 18 May 2011, Order 15
The father may have raised the matter in cross-examination had he known the matter would later become contentious, but it is unlikely his deprivation of such an opportunity amounted to a denial of procedural fairness. Ultimately, the law requires the Court to fashion parenting orders that permit parents to enjoy as much freedom as is compatible with their obligations pertaining to the child (see AMS v AIF (1999) 199 CLR 160 at 223-224, 231-232; Sampson v Harnett (No.10) (2007) FLC 93-350). The Court would not likely have been persuaded to unnecessarily impose an injunction upon the mother restricting her residential movement. The reasons for that are obvious. Neither party suggested that residential relocation was even a remote possibility for either of them, and the mother should be permitted to live wherever she likes provided she adheres to the parenting orders made by the Court.
The other orders made which have not been individually explained are either generally consistent with the orders mutually proposed by the parties or do not permit rational objection.
I am satisfied the orders set out at the commencement of these reasons are made in the best interests of the child.
I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on Monday, 22 August 2011.
Associate:
Date: 22 August 2011
Notation D made on 28 March 2011
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