HELPMAN & PURTON
[2017] FamCA 1075
•21 December 2017
FAMILY COURT OF AUSTRALIA
| HELPMAN & PURTON | [2017] FamCA 1075 |
| FAMILY LAW – CHILDREN – With whom a child spends time – Final orders – Best interests of the child – Where the mother alleges the father is an unacceptable risk to the child – Where there is no finding of unacceptable risk – Consideration given to the child having a meaningful relationship with both parents and the child’s wishes – Consideration of need for supervision of the father’s time with the child – Held: the father to commence unsupervised time with the child gradually increasing to overnight time in late 2018. FAMILY LAW – CHILDREN – Parental responsibility – Presumption of equal shared parental responsibility – Where the mother seeks sole parental responsibility and the father seeks equal shared parental responsibility – Where the mother genuinely believes the father sexually abused the child despite no such findings by the Court – Consideration given to the conduct of the parties’ in promoting a relationship between the father and the child – Held: Parties have equal shared parental responsibility FAMILY LAW – CHILDREN – Child related proceedings – Evidence – Evidence relating to child abuse or family violence – Question of unacceptable risk – Consideration of evidence – child’s record of interview – Where no application to strike out the child’s record of interview – Where the child’s record of interview became a matter of weight – Held: little weight to be given to the record of interview |
| Evidence Act 1995 (Cth) s 135 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 62G, 65DAA, 69ZN, 69ZT, 69ZV, 69ZW |
| B & B (1993) FLC 92-357 | ||
| APPLICANT: | Ms Helpman | |
| RESPONDENT: | Mr Purton |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
| FILE NUMBER: | ADC | 4103 | of | 2015 |
| DATE DELIVERED: | 21 December 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 6, 7, 8 and 9 November 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Litigant in Person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Litigant in Person |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr G Hemsley |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
Orders
That the parties have equal shared parental responsibility for B born … 2007 (“the child”).
That the child live with the mother.
That the child spends time with the father as follows:-
(a)During the 2017 Christmas school holidays, each alternate Saturday from 10 am to 7 pm;
(b)From the first school term in 2018, each alternate weekend from 10 am Saturday to 7 pm Sunday;
(c)From the third school term in 2018, from the conclusion of school (or 3.30 pm if not a school day) Friday to 7 pm Sunday;
(d)From the fourth school term in 2018, on each alternate weekend from the conclusion of school (or 3.30 pm if not a school day) Friday to the commencement of school (or 9 am if not a school day) Monday;
(e)As and from the Christmas school holidays commencing 2018, one half of all school holidays to be agreed between the parties and in the absence of agreement for the first half with the Christmas school holidays to be on a week about basis.
(f)Such further or other time as the parties may agree.
That the parties agree on the time the child will spend with each of the parties on the child’s birthday, birthdays of the parties, at Easter and Christmas but failing agreement as follows:-
(a) With the father from 3 pm to 7 pm on Christmas Day 2017;
(b)With the father from 4 pm on Christmas Eve 2018 to 4 pm on Christmas Day 2018 and each alternate year thereafter;
(c)With the father from 4 pm on Christmas Day 2019 to 6 pm on Boxing Day 2019 and each alternate year thereafter;
(d)In 2018, with the father from the conclusion of school on Easter Thursday (if a school day) to 6 pm on Easter Saturday and in each year thereafter;
(e)In 2018, with the mother from 6 pm on Easter Saturday to 6 pm on Easter Monday and each alternate year thereafter;
(f)The child will spend time with each party on her birthday and on the parties separate birthdays for a period of not less than three (3) hours at times to be agreed;
(g)The child will be with the mother on Mother’s Day from 9 am to 7 pm;
(h)The child will be with the father on Father’s Day from 9 am to 7 pm.
That paragraph 3 (d) of these orders will be suspended during all school holiday periods commencing as and from the Christmas school holidays in 2018.
That forthwith the parties do all things necessary at their joint and equal expense to instruct a psychologist as may be recommended by Autism SA or as may be agreed between the parties providing that such psychologist have expertise in dealing with children on the Autism Spectrum with such therapeutic intervention to be directed to the orders made being facilitated and to promote the child’s relationship with each of her parents NOTING that to assist in the therapeutic process the therapist is to be provided with a copy of these reasons.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Helpman & Purton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4103 of 2015
| Ms Helpman |
Applicant
And
| Mr Purton |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Amended Initiating Application filed 14 July 2017 Ms Helpman (“the mother”) seeks orders that she has the sole parental responsibility for B born in 2007 (“the child”), that she live with the mother and have communication with Mr Purton (“the father”) limited to telephone or internet communication and for the child to spend time with the father as may be agreed by the parties.
In his Response filed 22 September 2017 the father seeks orders that the parties have equal shared parental responsibility, that the child initially live with the mother, but that her time with the father shall recommence on the basis of each alternate Saturday from 10 am to 7pm (and be subject to the child’s wishes) and shall gradually increase by the forth school term in 2018 to each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday.
Whilst misdescribed as “equal shared parental responsibility” the father seeks a future review of the parenting arrangements and for consideration to be given to the child spending equal time with the parties.
Notwithstanding that the orders proposed by the mother would indicate that she is generally receptive to the child spending time with the father, the benign drafting belies her entrenched belief that the father engaged in the sexual abuse of the child on a specific occasion and it is the mother’s view that the father’s involvement with the child could well be seen as grooming the child for future sexual assault.
The mother considers that the father presents as an unacceptable risk to the child and that there should be no order that would allow for unsupervised time to take place.
The parties appeared as self-represented litigants. The Court had the assistance of an Independent Children’s Lawyer (“ICL”) to represent the interests of the child.
Neither party filed an Outline of Case document. The Court was assisted by a summary document prepared by counsel for the ICL. At the commencement of the trial the ICL was not able to provide an indication of proposed orders until the evidence had been heard.
Generally, the ICL relied upon the family reports prepared pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”) dated 10 March 2016 (“the first report”) and 3 July 2017 (“the second report”).
DOCUMENTS RELIED UPON BY THE PARTIES
The mother relies upon the following documents:-
(1)Amended Initiating Application filed 14 July 2017
(2)Trial Affidavit filed 14 July 2017
The father relies upon the following documents:-
(1)Response filed 22 September 2017
(2)Trial Affidavit filed 22 September 2017
As discussed, the ICL supported the tenor of the recommendations of the family consultant that the child live with the mother and spend with the father as agreed between the parties with the child to undergo counselling in order to assist her to spend unsupervised time with the father.
The final submission made on behalf of the ICL was that it was in the best interests of the child that she have a relationship with her father, that his time should be unsupervised starting with some few hours each week and over a period of six months to increase to a full day (but absent any overnight time) and that thereafter it is a matter for the parties, assisted by their own counselling and the child’s counselling, to resolve the ongoing parenting arrangements.
Counsel for the ICL conceded that whilst it may be open to the Court to make no order for the father to spend time with the child that would deny her an important relationship with the father.
At the commencement of the proceedings consideration was given to the application of Division 12A of the Act and in particular the principles applicable to parenting cases as set out in s 69ZN and issues of evidence that arise from a consideration of s 69ZT.
Given that the mother alleges that the father has sexually assaulted the child, I considered that each of them should seek advice as to whether there should be any application made pursuant to s 69ZT(3). The proceedings were held over whilst each of the parties sought and obtained advice from the duty solicitor.
No application was made by either party or on behalf of the ICL that the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) as affected by s 69ZT(1) should apply.
BACKGROUND
The parties commenced a relationship in November 2002. They became engaged in 2005 but never married. The parties separated in February 2015. The catalyst was the allegation of abuse arising from an alleged incident on 1 February 2015 which occurred at the parties’ home.
The mother believes that whilst the father and child were engaged in play in the child’s bedroom, she heard her daughter say “hey, get your hands out of my pants”. And then “don’t do that”.
The mother considered that the child’s words were concerning and upon entering the bedroom saw the father and the child lying on the floor.
There was an exchange between the parties with the mother questioning the father as to why he put his hand into the child’s pants and the father’s denial.
The mother had previously held employment as a public servant. The mother took advice from police and a report was made on 6 February 2015.
The father was arrested on 16 March 2015 following a voluntary record of interview. He was charged with two counts of indecent assault relating to the alleged incident on 1 February 2015 and an incident that had allegedly occurred in 2014. The particulars in respect of the earlier alleged incident are unclear.
The Director of Public Prosecutions tendered no evidence and the Certificate of Record confirms that the criminal proceedings were dismissed for want of prosecution.
On 24 December 2015 orders were made that the child live with the mother and spend time with the father supervised by the paternal grandmother each Saturday from 2 pm until 7 pm, with his time supplemented by telephone or Skype communication on three occasions per week.
The mother was not content with supervision being undertaken by the paternal grandmother and orders made on 24 March 2016 reflected the ongoing disagreement between the parties but put in place an order that the child would spend time with the father as may be agreed.
From that time the parties agreed that the mother would supervise the father’s time with the child. Whilst the subject of variation to take into account the personal circumstances of the parties, the father’s time with the child has occurred on a regular basis. There is no evidence that their interaction has displayed animosity or overt conflict and the activities appear to have been entirely child-focussed.
The relationship between the parties is unusual. They have been civil and appropriate towards each other at all times and up until the proceedings their lack of animus suggested that they would reach an agreement satisfactory to each other and directed to preserving an ongoing relationship between the father and the child.
With some considerable reluctance, the mother’s position as enunciated during the trial altered. She no longer considered that her supervision of the father’s time with the child was viable. She was not prepared to consider supervision by any other person and given her reflection upon the father’s historical relationship with the child, it was now her view that his conduct taken in its entirety was consistent with him grooming the child for future abuse. The mother was not able to contemplate nor support unsupervised time.
PROPOSALS OF THE PARTIES
As discussed, the mother’s proposal is that the child live with her and spend time with the father as may be agreed between the parties supplemented by electronic communication. The position adopted by the mother at trial would suggest the mother’s preparedness to supervise the father’s time is necessarily short-lived.
The father seeks equal shared parental responsibility, readily concedes that the child should live with the mother but seeks a reintroduction of time commencing with each alternate Saturday between 10 am and 7 pm gradually increasing to each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday. His proposal promotes overnight time commencing in the second school term of 2018.
The position adopted by the ICL was unclear. At the commencement of the hearing the ICL was not able to put forward a proposal.
The recommendation of the family consultant was that the child live with the mother and spend time with the father as agreed. It was considered important that the child undergo therapy with a specialist psychologist with experience of children on the Autism Spectrum Disorder and it seems that the focus on therapeutic intervention was to assist the child in feeling safe with the father if unsupervised time was to occur and to promote the parties reaching their own agreement as to the future arrangements, in particular as to when unsupervised time should recommence.
The ICL did not consider that the father presented as a risk to the child, considered that initially the child should spend time with the father for short periods unsupervised, extending to a day a week after about six months. Thereafter, it should be left to the parties own deliberations with the assistance of the therapist.
It is notable that the Court was not provided with any assistance as to the nature and format of the suggested therapeutic process, nor was there any evidence from the proposed therapist as to how the therapeutic intervention would be conducted, the longevity of the process and whether there was likely to be any benefit to the child (assuming no detriment) in circumstances where the mother considered that the father may have been grooming the child for future sexual assault.
Whilst the parties accept that the child presents with Autism Spectrum Disorder, it is likely that she is high functioning. The family consultant was not able to provide assistance as to the effect on the child given her age and presentation of the separate proposals of the parties.
The family consultant considered that it be a consideration for the Court to make no order that the child spend physical time with the father, but such an outcome would deny the child a relationship with the father that was considered important.
The possibility of no order being made arises from the consideration that if the Court finds that either the father has sexually abused the child or that he presents as an unacceptable risk, the question of supervised time may well need to be explored.
In B & B (1993) FLC 92-357, the Court held that supervised time, particularly in a case involving sexual or serious physical abuse was not appropriate in the long term.
Supervised time has an important place on an interim basis and where it may be necessary to assist in the re-establishment of a fractured relationship between a parent and a child. Long term supervision, particularly in cases involving the potential for a child to be exposed to an unacceptable risk, may very well be the antithesis of the Court’s obligation to protect children.
Moreover, the present case does not appear amenable to supervised time as being a practical option. The mother is not only mistrustful of the father but also his extended family. No effective proposal was put by him as to the opportunity for supervision and whilst the mother’s current preparedness to supervise the father’s time with the child is to her credit, it is not her evidence that it can reasonably continue.
UNACCEPTABLE RISK
In M v M [1988] HCA 68 the Full Court gave consideration to the treatment of allegations of sexual abuse. The Court considered that treating an allegation of sexual abuse as the paramount issue was an error.
In Vasser v Taylor-Black (2007) FLC 93-329 the Full Court considered that the High Court decision in M v M (supra) had become the “touchstone” of the principles to be applied in cases of asserted unacceptable risk of any kind. Their Honour’s quoted, with approval, the following passages from M v M (supra) at pages 77,080-82:-
…In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to "regard the welfare of the child as the paramount consideration" (sec 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by s 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a Court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds(1973) 47 ALJR 499; 1 ALR 318; McKee v. McKee(1951) AC 352, at 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 CLR 447, at 450, 458, 462, 463; 69 ALR 647.
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. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
Further as 77,081 the Court said:-
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
ALLEGED INCIDENT ON 1 FEBRUARY 2015
The mother’s evidence is that the family were at home on 1 February 2015. The mother was in the dining room and the father and the child were playing a physically interactive game based on a Disney movie. The mother describes the interaction as a “character game”. It is not controversial that the game was a favourite of the child and that she and the father had engaged in this play on many occasions. The mother’s evidence was that the child constantly requested the parties to engage in the game and she was relieved that the father appeared always ready to accede to the child’s request.
The game was such that the father and child would imitate the voices of the movie characters and given the “dinosaur” theme, a significant component of the game saw its participants pretending to be prehistoric creatures crawling around on the floor.
The father says that the game started in the lounge room, travelled along the passageway and eventually continued in the child’s bedroom.
The mother was not a witness to the activities but could hear what was being said. The mother observed the father and the child to be engaged in the game for about an hour and whilst initially she could see them through the open doors to the lounge, she later became aware that they were now in the child’s bedroom.
Her affidavit records that she heard the child say “Hey, get your hands out of my pants” and “Don’t do that”. She then heard the child counting down from five and this then prompted her to investigate. The bedroom door was open and she says that she saw the father and child both lying on the floor. The father was faced down with his left hand over the child. She was lying face up but positioned to his left side. The father’s left hand appeared to be near the child’s hip and on the outside of her clothing.
There then followed an exchange between the parties. The mother records that she said “What are you doing? Don’t put your hand in her pants”. She records the father’s response was “She’s just dramatising”.
The father was surprised by the demeanour of the mother and he recognised that she looked angry. His evidence is that his response to the mother’s enquiry was that nothing was happening.
There is no admission by the father that he engaged in any sexual abuse or inappropriate conduct with the child. Notwithstanding that the mother confronted the father with the allegation, later that day the father and the child went on an outing.
The mother was cross examined by counsel for the ICL as to the basis of her consent to the activity. The mother’s evidence was that she was not sure why she let the child go with the father, but she considered that she had no choice. The child was keen to undertake the outing.
Up until that time the father had taken the child for an outing on many occasions. They would regularly engage in camping excursions of three to four days duration, horse riding and swimming.
The mother agreed that there had been no allegations of abuse made in the past and whilst she now had cause to reflect upon the history of the relationship, there was no issue that had presented itself at the time to suggest that the father had been sexually inappropriate with the child.
Exhibit 1 in the proceedings is an earlier affidavit of the mother’s filed 4 November 2015. Annexure “3” to the affidavit in a statement to the police (incorrectly) dated 10 March 2014. The contents of the statement more accurately describe its date as 10 March 2015. The following appears in the statement:-
About 7.00 p.m. that same evening, during bath-time, [the father] was outside speaking on the phone, I spoke with [the child] about the incident. I will recall the conversation to the best of my memory;
I said,“Did dad really put his hand in your track pants or were you just mucking around?”
She said,“No, he really did.”
I explained the importance of being honest and that making up stories could cause problems, then I went away for a few minutes. When I returned, I expressed that she had done the right thing by asking him to stop and that sometimes grown-ups, even parents, get confused. I asked if she remembered what she told him, to which she replied that she didn’t. I told her that I heard her “tell him off” and she said;
the child said, “Yes, I said ‘Five, Four, Three…”
This recollection was not suggested by me and she seemed quite proud of it.
Once again, I sought to clarify what I had heard;
I said,“When I walked in, I saw his hand on the outside of your pants, but before I came in, was his hand on the inside?”
She said,“Yes it was.”
I said,“Was it near your undies or not near your undies?”
She said,“It was near my undies, but it wasn’t inside my undies”.
The mother was challenged as to the manner in which she had questioned the child and the focus appeared to highlight that the child’s initial response to the mother was that she had not remembered what she had told him, but when promoted by the mother she did have a recollection.
Counsel questioned the mother as to her perception of the quality of the relationship between the father and the child. The mother confirmed that the child loves her father and that they have done “some great things together”.
She agreed that the father is a godfather to his brother’s children seemingly without complaint or incident.
The mother agreed that the Disney game involved rough play but did not consider that it was possible that the touching had been accidental.
The mother’s concession of the importance of the father in the child’s life was highlighted by her evidence that she had cause to comment to the child that she was lucky to have such an involved and attentive father.
The mother agreed that there was no family violence but that there had developed an “emotional distance” between them and she recognised that they were gradually drawing apart.
When asked to reconsider her observations upon entering the bedroom, the mother’s evidence was that the father’s arm as draped across the child may well have been an affectionate gesture and that the child did not appear distressed at the time.
The child’s track pants were not undone or drawn down and she acknowledged that she could have walked into the bedroom at any time.
The mother accepts that her belief that the father had engaged in sexual abuse has its foundation in her unequivocal acceptance of what the child said and her interpretation and consideration of the records of interview undertaken by the child and the father.
RECORD OF INTERVIEW
The child underwent a formal record of interview conducted by a detective from the Family Violence Investigation Section on 3 March 2015. The interviewing detective was not called to give evidence. The mother annexed the records of interview to her trial affidavit. The document had also featured in her earlier affidavit of 4 November 2015.
There was no application by the father or counsel for the ICL that the record of interview should be excluded pursuant to s 135 of the Evidence Act.
The child presented evidently prepared to assist the police. The process undertaken was one of question and answer.
The child was asked whether she knew why she had attended for the interview. She gave the following response:-
Child: It’s about Dad.
Detective: Right and is it about your Dad.
Child: My Dad, I think.
Detective:Okay. And you tell me why, what, what I’ve, what about your Dad. Why have I come.
Child:Is this a trick question.
Detective:No, it’s not a trick question. I just wanted you to tell me what, what you know about why I’ve come today.
Child:‘Cause you think – oh that was just my dinosaur.
Detective:That was a crazy noise.
…
Detective:I like this blaze. It’s beautiful. You tell me, you tell me why I’ve come to talk about your Dad today.
Child:‘Cause, ‘cause you think there might be a few things, ‘cause Mum thinks there might be a few things about him that are not quite right and he’s mixing like family love with courtship love.
Detective:Yeah.
Child:Mum told me all that.
There then followed, in question and answer style, questions about the father massaging the child and at times she found it embarrassing. The suggestion by the child of the father touching her raised the interest of the detective. The following exchange appears:-
Detective:So the hand that you’re saying is on your bottom, okay. Now when you put it on your bottom, you’re putting it low down on your bottom. You’re putting it right down on your bottom and a bit on your wee. Is that where Dad puts his hand. ‘Cause you’re showing me right down on your bottom-
Child:No he puts my hand right there.
Detective:Right there. And does, does your Dad’s hand go – where does his fingers go. I am looking there and they look like they’re in between almost there. Oh, right there. Okay. And then –
Child:It’s almost the beginning of my [whispers] private area.
Detective:Almost the beginning of your front area. What do you call your front area. Do you have a name for that.
Child:[.] privates.
Detective:Your privates.
Child:But I want to keep them private.
Detective:Yes and I agree with that.
The child appeared then to be distracted and was refocussed by the following exchange:-
Detective:That happens all the time at my house. Shut the door. Yes. All the time. Now we were talking about, you said three (3) or four (4) times your Dad has touched you in an embarrassing way on your bottom and he’s also put his hand up near your, when you get tired and also up near your boobie there and then you were talking about your Dad and have there been some other times when your Dad has touched you and that’s made you feel a bit embarrassed.
Child:Not really.
Detective: Mm. Was there another time when your Dad has touched your private parts.
Child:No, he does, he, he doesn’t literally go like that.
Detective:Right. What does he do.
Child:Well, mm, hard to, mm, mm, mm, well I, hard to, just let me think. Oh, what was the question again.
Detective:Yes, you were going to tell me something but you said it’s a bit hard to – it’s a bit hard to –
Child:Say, no, it’s a bit, I don’t know. I don’t know what to make of it and –
Detective:You tell me and we, perhaps we can work it out together.
Child:And so, mm, ah, mm I, bother. What else. I really don’t know what to say.
Not content with the child’s inability to either recollect or understand the focus of the detective’s questions, the child was asked to recollect any embarrassing things or interaction with her father:-
Detective:Yes I want to hear the most embarrassing things. That’s important today.
Child:Well, well Dad’s done some, telling me lots of fart jokes and well I, it’s kind of a good thing ‘cause it’s kind of like okay ‘cause I’ve got a fart humour, [.]
Detective:So –
Child:And one day I made a mistake and called a [.] frog and well, sometimes those fart jokes get a little too far and he actually jokes about well, poo.
Detective:Oh, does he. Okay. I’d like to hear about the time when you were in your bedroom with Dad and Dad has done something that was, wasn’t quite right.
Child:Well that’s actually been at least two (2) times.
Detective:Mm. First you tell me about the one time first.
Child:Well it’s – haven’t I already told you this.
Detective:What was that. You tell me and I’ll tell you if you have.
Child:He puts his hand, his hand there and his other hand there-
Detective:Mm.
Child:Well his hand goes right between there.
Detective:His hand goes where, sorry.
Child:He goes, [.] on my back and that’s relaxing as you could see-
Detective:Yes.
Child:But he rubs down there.
Detective:Okay and you’re showing me the lower part of your bottom. He rubs down there. Mm. And how does that make you feel.
Child:Bit embarrassed.
In attempting to identify the area of touching the following exchange appears:-
Detective: And all areas of your bottom.
Child: All, not, not that area but-
Detective: So not your front privates.
Child: Not my front private area. He actually hasn’t touched [.]
Detective: But what.
Child:But he hasn’t actually touched it but he’s gone sort of near it.
The father underwent a record of interview on 16 March 2015 comprising 938 questions and answers.
The detective put the following allegation to the father and elicited a response:-
Detective:Okay. So I’ll go through the allegation with you and in the first instance, it’s that after [the child] has turned seven (7) on at least three (3) occasions you have touched her to her bottom area.
Father:Okay.
Detective:Would you like to comment on that.
Father:Well I need more specific. I mean of course I’ve touched her on the bottom area. I’ve bathed her, I’ve washed her.
Detective:Yep
Father:I don’t wash her privates because once you’ve got to about the age of six (6) I think we had an agreement that she would wash her own privates-
Detective:Yep.
Father:But of course, I’m in the bath. I’ve got to towel her down.
Detective:Yep. What’s –
Father:I, I, I need more specific-
The father was asked about the child’s bedtime routine and gave a detailed response to the manner in which the child was prepared for bed. The father agreed that he would read to the child until she had fallen asleep. He also agreed that during the bedtime settling he had rubbed the child’s back area. He was asked how far down her back he went and the father’s response was that he would rub the child’s back down to the small of her back but always over her pyjamas.
The father gave the following response:-
Father:And I have rubbed right down her legs because I mean the full story with [the child] is that she has a sensory issues because she is a premature baby and through the occupational therapist there’s certain methods to try and calm her down and, and that is they call it weightings. They put weights on her legs and stuff, just a little bit of pressure-
Detective:Yep.
Father:So yeah, she’s lying down face down. I’ve been known right up her legs and her back because she needs that little bit of weighting just to settle her down.
Detective:Yep.
Father:Because unfort – well fortunately she’s like she is and she doesn’t, she has some sensory issues that need to be dealt with.
Detective:Okay. So when did you last have advice about sensory issues.
Father:We’ve constantly got advice. I mean she does OT every Tuesday still now, so –
Detective:Occupational Therapy.
The father was asked in his touching of the child and in particular on her bottom whether his hands had ever gone any lower than that namely towards her vagina.
The father denied that the activity had ever occurred and responded that there was no need to do so given the purpose of his touching was to assist in the child’s sensory issues.
The detective then advised the father of the allegations namely that on at least three occasions from 12 May 2014 he touched the child to the lower bottom area outside her clothing with the lower part of his hand and that the fingers moved towards her vagina.
The father denied that it had happened or indeed that he had ever touched the child under her clothing in this way.
The father then spoke of the activity and game playing with the child on 1 February 2015:-
Father:Okay, but this is what has happened. We’ve gone role playing to her bedroom because that’s where the play started to go. She went to get some more characters.
Detective:Yep. I’ll just-
Father:So-
Detective:Move over here.
Father:I’m, ‘cause she’s down there so I’m on all fours like that-
Detective:Right. Yep.
Father:And then she’s gone and our little character’s down here so she says I’ll go and get some more so I’ve just gone like that-
Detective:Yep.
Father:And okay. and I’ve just come off shift work so I’ve just thought well, she’s doing that, I’ll have a bit of a snooze. She’s come in, jumped on my back –
Detective:Yep.
Father:And I’ve said “Keep walking round on my back,” and then she’s decided no, ‘cause she said “You’ll fall asleep, Dad,” cause that’s what happens sometimes.
Detective:Yep.
Father:And so I pinched her on the bum just like that to say now keep walking on my back. So I’m trying to figure out how, if that’s related to the incident she’s talking about-
Detective:Mm.
Father:That’s, that’s what I’ve done and I pinched her on the bum outside her pants whilst she’s been climbing around on my back to get her to keep jumping around on my back to try and help my back.
Detective:Okay. So why did you pinch her on the bottom.
Father:Well it’s just a pinch. That’s, that’s why. I mean there’s you know, I mean I could’ve pinched her anywhere but it’s just her bum.
Detective:Mm, but why did you pinch her on her bum if you could’ve pinched her anywhere.
Father:Well because that’s just, it was just, just to get her to move.
The father then gives the following response to a question by the detective as to what may have been said by the child when he pinched her:-
Father:That’s when she yelled out about stop trying to pull my pants or do something, whatever she said. Don’t, don’t pull my pants down is what, but I don’t think that’s the exact words but I don’t know what [the mother], I’m surprised doesn’t have any recall of that because that’s what she talked about.
Detective:Why have you noted that.
Father:Because that’s what [the mother] has accused me of. That’s when [the mother] has accused me of touching [the child].
Detective:And when did you make those notes.
Father:Well prob’ly the week after when she told me to get out of the house.
When further questioned about pinching the child on the bottom the following exchange appears:-
Detective: And whereabouts on her bottom did you pinch her.
Father: I don’t know because I was like that.
Detective: You couldn’t see where you were pinching.
Father: Couldn’t see where I was pinching.
Detective:So it could’ve been on her lower bottom near her vagina.
Father:Could be but that’s not where I was aiming for.
Detective:You could’ve pinched her on her vagina.
Father:I wouldn’t think so but mm.
Detective:You wouldn’t think so.
Father:Well-
Detective:But it’s possible.
Father:It’s possible.
Detective:Okay.
The record of interview was recorded as to audio and video. The father provided a demonstration of the manner in which he and the child had interacted on the floor in the child’s bedroom.
TREATMENT OF CHILD’S RECORD OF INTERVIEW
Section 69ZV of the Act is in the following terms:-
69ZV(1)This section applies if the court applies the law against hearsay under subsection 69ZT(2) to child-related proceedings.
69SV(2)Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay.
69ZV(3)The court may give such weight (if any) as it thinks fit to evidence admitted under subsection (2).
69SV(4) This section applies despite any other Act or rule of law.
The now repealed s 100A of the Act was the precursor to s 69ZW.
In his second reading speech the then Attorney-General said:-
The most important of the amendments to be made by the Bill are aimed at improving the handling of custody and access disputes in which allegations of child abuse are made by one party against another. In preparing these amendments the Government is being guided by the findings and recommendations made by the Family Law Council in its 1988 report on child sexual abuse. One amendment to be made by the Bill will give statutory force for the Family Court’s established practice of admitting hearsay evidence of statements made by children to adults about abuse they have suffered. The Family Court already admits evidence of this kind because of its long established policy that children should not be drawn into Family Court proceedings by being called as witnesses from either side in a custody or access dispute. The weight to be given to any hearsay evidence will of course remain a matter for the Court to determine in each particular case.
In VJ v CJ (1997) FLC 92-772 the Court referred to s 100A and said at page 84,524:-
S 100A is an enabling section. It enables evidence of representations made by children to be given notwithstanding the rule against hearsay. It was enacted to clarify any doubts that may have existed about the common law admissibility of children’s statements. A significant line of authority existed indicating that as a general rule hearsay statements by children were admissible for limited purposes in cases relating to the welfare of children.
The Court then said:-
The rule has not been applied in such a manner as to enable lengthy and detailed statements of children to be introduced into evidence in lieu of the filing of an affidavit on behalf of the child.
The difficulty with this appellate court excluding the evidence at this stage, is that the trial Judge’s attention was never drawn to the provisions of s 135 [of the Evidence Act]. His Honour did not turn his mind to the issue of prejudice but simply ruled on the admissibility of the statement on the basis that it might be relevant to the inquiry that he had to make. It cannot thus be said that his Honour improperly exercised his discretion when he was never asked to do so.
In S v R (1999) FLC 92-834 the Full Court referred to a New Zealand decision of S v S [1993] NZ FLR 657 and said:-
This very caution is totally applicable to proceedings under the Family Law Act and evidence received by the provisions of s 100A. Where the witness whose evidence is to be relied on has not been seen nor heard by the trial Judge, and his evidence has not been tested by the person against whom any adverse finding is sought to be made, then utmost caution needs to be taken before such evidence can be relied upon to establish such a serious allegation as sexual abuse.
In the present case, no application was made to strike out the child’s record of interview.
Accordingly, whatever misgivings may appropriately arise in respect of the use to which a record of interview involving a subject child can be put, ultimately it is not now a matter of admissibility but rather weight.
Whilst not expressed with clarity, the submission on behalf of the ICL is that the record of interview was flawed in its approach, was unreliable given the prior questioning of the child by the mother and the obvious difficulty that the detective had in keeping the child focussed on the mother’s allegation that little weight should be given to the evidence arising from the interview.
The record of interview involving the father is clearly admissible and does not suffer from any evidentiary challenge.
Notwithstanding careful consideration of the record of interview and the cross examination by counsel for the ICL, ultimately there is nothing that arises from the record of interview that would inculcate the father either in respect of the alleged incident on 1 February 2015, behaviour on or after 12 May 2014 or any other conduct considered by the mother to constitute “grooming” of the child.
EVIDENCE OF THE FAMILY CONSULTANT
Ms D (“the family consultant”) published reports dated 10 March 2016 (“the first report”) and 3 July 2017 (“the second report”). She was called to give evidence and was the subject of detailed cross examination by counsel for the ICL and limited cross examination by each of the parties.
The family consultant sought information from a range of sources:-
·The Court file
·A report from Families SA (as it then was known) dated 23 November 2015
·Development Summary Report prepared by Women’s and Children’s Hospital dated 1 October 2010
·Psychological Assessment of child dated 20 December 2012
·Autism Spectrum Disorder Report dated June 2015
·SAPOL transcript of interview on 3 March 2015
·Records of interview and observations of the parties and the paternal grandmother with the child on 18 February 2016.
·Records of interview and observations of the parties with the child on 23 June 2017.
·Telephone contact with each of the parties on 28 June 2017.
The first report was ordered to assist the Court in determining the interim arrangements for the child to spend time with the father.
The family consultant correctly identified the primary issue in dispute, namely whether the father presented a risk to the child if allowed to enjoy unsupervised time.
The allegations as recorded by the family consultant was that the father had been “sexually inappropriate” with the child.
The family consultant also considered that the level of play that the father engaged in with the child may have “blurred the parental boundaries”. The extrapolation of that proposition is that the child may be at future risk by not being able to recognise and respond appropriately to potentially harmful and abusive behaviour by the father.
The father’s explanation to the family consultant of his interaction and conduct with the child on 1 February 2015 was consistent with his previous affidavit material and statements made to the police. He continued to deny any allegation of sexual abuse and highlighted his seemingly good relationship with his daughter as evidenced by his involvement of all aspects of her care and parenting.
The family consultant interviewed the paternal grandmother. She found that the paternal grandmother had developed a close relationship with the child and whilst disbelieving of the allegation that the father had sexually abused the child, she appears to have worked cooperatively with the mother to the child’s benefit in that whilst no longer considered by the mother to be able to fulfil the role of supervisor, arrangements are made for her to spend time with the child.
The mother remains mistrustful of the paternal grandmother. She was prepared to foster and maintain a relationship but would not countenance the child spending unsupervised time with her.
Whilst not raised during the trial, the family consultant referred to an incident which occurred on 23 January 2016 where the mother alleges that the paternal grandmother (as supervisor of the father’s time with the child) did not properly observe the obligations to supervise the child at all times.
That issue had been previously heard and determined by the Court as having little substance.
In her interview, the mother presented as clearly distressed and overwhelmed by the proceedings and the complexity of the situation that the family found itself in.
The mother acknowledged that it was important for the child to “maintain her carefree and fun-filled view of [the father]” but she maintained her belief that the child would not be safe in his unsupervised care.
The tension for the mother is conveniently summarised in paragraph 35 of the first report:-
Similar to the father’s earlier report, the mother described in positive terms the previous Saturday when [the child] and spent time with her father in her presence. She said, “I came away feeling positive. It all went so well. It’s so easy to slip back into that mode”. She said that she and the father spoke for an hour about what might be best for [the child]. She said “[the child] has complex needs…she still can’t shower independently despite her intellect…he’s kinda (sic) forgotten how different she is”. She added that the father had told her that he didn’t want shared care and that the only reason he had applied for shared care was for ‘a stamp of approval…to say I’m innocent’….
The mother considers that the child’s allegation is an “unwavering description of her father putting his hands in her pants as well as what she actually heard at the time…”.
At the time of interview the child was 8 ½ years. When asked as to whether the time with her father should be supervised, the family consultant recorded that the child “seemed at her most articulate and emphatic”.
Her response as to her level of understanding of the issues confronting the family elicited the following response in paragraph 42:-
I’ve been seeing him with Mum…I do want to see him but we haven’t figured out a supervisor yet.
When asked why she sees her father with a supervisor [the child] said:-
Because he did the wrong thing… he’s got a serious issue….He put his hand in my pants which could lead to a serious issue of having sex with children which is the wrong thing to do.
Whilst the mother considered that her own reservations of the child spending unsupervised time with the father were overwhelming, the issue was further complicated by the child seeking supervision. The child was not as emphatic as to the need for supervision as considered necessary by the mother. When asked she responded:-
Okay, if the Judge says I can see Dad with Nan as supervisor then Nan needs to be given strict instructions if she is going to be supervisor again.
And at paragraph 48:-
When asked out of ten where she was on the happiness scale [the child] replied, “If there’s a supervisor when I see Dad I’d be not bad happy…eight out of ten…if there’s no supervisor I’d be a bit sad…four out of ten”.
When asked about the incident on 1 February 2015, the child’s response was in the following terms:-
My dad HAS done something wrong…BELIEVE ME…he’s telling a lie when he says he hasn’t cos (sic) I know what I saw. I saw him stick his hand in my pants. Now I KNOW he actually did. I experienced it and I know the truth. Dad did do the wrong thing…me and Mum ARE telling the truth. Dad isn’t. He put his hands between my legs.
The tenor of the evaluation by the family consultant is that notwithstanding the father’s denial that he was sexually inappropriate with the child, she considered the child’s “disclosures” as requiring considerable weight.
She did not agree with the father’s assessment of the child that she was prone to exaggeration and whilst she was prepared to concede that the child’s language and description of the incident in February 2015 as being a mirror to the mother’s own account, it was also possible that the child’s high level of intellectual functioning could explain her ability to describe in detail both the incident and also how she felt about the sequelae namely, her desire to continue to see the father but to have the safety of supervision remain.
Whilst the family consultant has accurately recorded matters raised by the child and the parties, in evidence she readily conceded that it was beyond her function to attempt to assess the genuineness or otherwise of the alleged sexual abuse.
The family consultant did not subject the parties to any significant interview process nor did she consider the possible contamination of the child’s language and report by the reality of the child having undergone repeated questioning and interview by the mother and the police.
An example of the mischief created by the child being inculcated into the process arises from a concession by the mother that she explained to the child that by the father putting his hand into her pants this could lead to a “serious issue of having sex with children…”.
The initial recommendations of the family consultant are of little assistance in that they are predicated on the parties having apparently reached some agreement that would enable time to continue provided it was supervised by the mother. The apparent preparedness of the parties to continue the unusual arrangement did not require the family consultant to consider the effect on the child of the consequences of no time taking place in the absence of an available supervisor.
The second report was prepared for the purposes of the final hearing. Both parties were no longer represented and the family consultant noted that the father had been spending regular time with the child supervised by the mother.
The focus of the parties’ presentation to the family consultant was again the issue of the requirement for supervision.
The family consultant considered that the parties should have been able to resolve their differences. She was clearly surprised by the apparent ability of the parties to negotiate liberal and child-focussed activities involving the child and the parties.
For his part, the father acknowledged that “we get along so harmoniously…we don’t argue…we don’t yell”.
At the time of interview the child was aged 10 years and in year 5 at primary school. It was still her position that she wanted to see her father but only with a supervisor. She was open to day-time visits if she was able to have a mobile phone and her mother could pick her up after the visit.
The dichotomy for the child is highlighted in paragraph 37 of the second report:-
Asked what worried her most about seeing her father without a supervisor [the child] said, “I’m worried about what if he does something wrong again and I don’t get to see him ever again”. [The child] seemed visibly genuinely fearful of such a prospect.
The unusual nature of the circumstances in which the parties found themselves is highlighted by the observation of the family consultant that the parties and the child presented as a relaxed family against the background of litigation.
The focus of the family consultant was not so much directed to matters pertaining to the child and the potential effect on the child of the separate proposals of the parties but rather on what she considered to be a tentative agreement between the parties that had been brokered by her.
The recommendations of the family consultant were that the child continue to live with the mother and spend time with the father as agreed between the parties. Any movement towards unsupervised time should only occur with the assistance of a psychologist experienced with childhood Autism.
Under cross examination by counsel, the family consultant conceded that the child may want supervision because of her concern that without it she would not see the father as opposed to wanting to see the father with supervision because of safety or protection issues.
The family consultant conceded that she was not able to be definitive as to whether sexual abuse had occurred. She did not consider that an unacceptable risk was presented by the father but alluded to the possibility that irrespective of whether the father had sexually abused the child the mother held a trenchant belief that it had occurred and the child may well now be mirroring the mother’s need for supervision because of the possibility that without it she may not see her father again or with the level of regularity that had been occurring to date.
Ultimately the Court was not significantly assisted by the evidence of the family consultant.
PRINCIPLES RELEVANT TO PARENTING ORDERS
The child currently lives with the mother and spends time with the father only as may be agreed between them and in any event under the mother’s supervision.
The ICL supports the continued relationship between the child and the father. Unsupervised time is supported but initially only for a short duration with the time gradually increasing provided that the child receive therapeutic intervention to assist with the transition to unsupervised time consistent with the child’s ability to cope.
Whilst the father seeks equal shared parental responsibility, the mother is supported by the ICL that she should have sole parental responsibility.
S 60CA of the Act requires that the best interests of the child are the paramount consideration. The best interests of the child are to be considered by the application of the objects of s 60B(1).
I bring to account the primary considerations and the additional considerations in respect of the matters as set out in s 60CC(2) and (3).
I am mindful of the directions contained in s 60CC(2A) and have regard to the allegations by the mother that the father engaged in sexual abuse of the child on 1 February 2015 and on other occasions in the past.
I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) and underlying principles in s 60B(2);
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of the child having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to the additional considerations under s 60CC(3);
(6)The evidence adduced by each of the parties in respect to the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.
Section 61DA requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having regard to whether the matters as set out in s 61DA (if relevant) would rebut the presumption.
In that respect the provisions of s 61DA(2) are relevant:-
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in:-
(a)abuse of the child or another child who at the time was a member of the parents’ family (or that other person’s family); or
(b)family violence.
The presumption may also be rebutted if there is evidence to satisfy the Court that it is not in the best interests of the child for the parties to have equal shared parental responsibility.
This consideration is relevant in these proceedings as the father seeks an order for equal shared parental responsibility and it is opposed by the mother.
If the presumption is rebutted, the Court can proceed to make parenting orders having regard to the provisions of the Act but based on findings pursuant to s 60CC. If the presumption applies (and in any event the parties seek an order of equal shared parental responsibility) and it is not rebutted, then s 65DAA requires a Court to consider whether there should be an order for equal time. If not, then substantial and significant time. The test is whether the orders would be in the best interests of the child and reasonably practical. As was said in MRR v GR (2010) 240 CLR 461, the consideration of whether equal time is feasible “requires a practical assessment”.
I am of the view that notwithstanding that the provisions of s 65DAA would not apply if the presumption of equal shared parental responsibility is rebutted, nonetheless, the separate proposals of the parties and the orders that each of them seek would nonetheless require a consideration as to whether they are reasonably practicable.
PARENTING CONSIDERATIONS
Meaningful relationship
The orders sought by the mother would significantly impact upon the relationship that the father has with the child.
As discussed, against the background of the mother’s belief that the father had engaged in the sexual abuse of the child (and more latterly that he may well have been grooming the child for some time) she nonetheless facilitated a relationship continuing notwithstanding that her supervision of the father’s time was a significant disruption to her life and created ongoing emotional distress.
It is not controversial that the child seeks an ongoing relationship with the father. The family consultant recognised the strength of the relationship and highlighted the child’s attitude to her father.
Whilst not finding favour with the concerns of the family consultant that the father’s relationship may have been too close to the child and blurred the boundaries of parent and child, nonetheless even that consideration does not detract from the mother’s evidence of there being a close connection with the father.
Whilst the family consultant and perhaps even the parties believed that a negotiated settlement would be achieved, the reality is that the mother remains opposed to the father spending unsupervised time with the child and does not consider that there is any other viable supervisor available. Moreover, she now recognises that her continued supervision other than in the short term is unlikely to be an ongoing option moving forward.
For his part, the father rejects that supervision is required and continues to deny the mother’s allegations of sexual abuse.
The difficulty for the child is that if the Court finds either on the balance of probabilities that the father perpetrated an act (or acts) of sexual abuse, or that he presents as an unacceptable risk, the father’s relationship with the child would of necessity be reduced to the sharing of information rather than physical contact. Consideration was not given to whether electronic communication should remain as an alternative option.
On the mother’s case such would be the disruption to the relationship between the child and her father that consideration needs to be given as to the benefit to this child of maintaining a meaningful relationship with both of her parents.
The mother’s proposal would not equate to the promotion or maintenance of a meaningful relationship. The father’s proposal would clearly support the relationship.
There is no evidence that would suggest there is any advantage to this child of there being no relationship with her father. She has sufficient understanding of her circumstances to recognise that there is a risk of her not seeing her father again.
The mother properly concedes that the child and the father enjoyed a close relationship. She described it as “loving”.
The family consultant considered the relationship to be meaningful and of consequence. There is no suggestion in the recommendations of the family consultant or in the submissions put on behalf of the ICL that the relationship should not continue. The orders sought by the ICL appear not to be predicated on any risk that the father presents to the child but rather the predicament of the child being placed in a situation where the mother strongly believing the father has abused the child and his strong denials.
I find that it is an important consideration in terms of determining what is in the best interests of this child that any orders made should be directed to fostering and maintaining a meaningful relationship between the child and her father.
Notwithstanding that position, it must be subservient to the need to protect the child from physical or psychological harm or being subjected to or exposed to abuse, neglect or family violence. If such a finding is made then it must be afforded greater weight than the desirability of maintaining a meaningful relationship.
Risk to the child
Any evidence that the father has sexually abused the child is only to be found in the mother’s report of what she considers the child said on 1 February 2015.
The mother made no observations that would assist in determining on the balance of probability whether the father acted inappropriately. There has been considerable emphasis placed on the child’s record of interview. Careful consideration has been given to the circumstances in which it occurred. I have found that the child has been the subject of considerable discussion with the mother and whilst it is not easily discernible, given the age of the child and her high functioning Autism, it is likely that the child’s presentation to the police has been significantly compromised.
The child demonstrated considerable reluctance to undergo the interview process and the record highlights a number of areas where the interviewing officer felt obliged to press the child and refocus her attention on issues as alleged by the mother.
I do not consider that any complaint made by the child could be described as spontaneous. She was clearly led with the very real suggestion that nothing may have been said by the child unless so directed.
The interviewing officer was not called to give evidence and the acceptance of an interview with a child in these circumstances must be undertaken with considerable caution.
No application was taken to have the record of interview struck out on the basis that it was more prejudicial than probative. Such an application may well have had merit. Whilst I treat the record of interview as admissible, I find that it has little or no weight in terms of any evidentiary assistance as to whether on the balance of probabilities the father sexually assaulted the child on 1 February 2015 or on any earlier occasion.
The subsequent observations by the family consultant in 2016 and 2017 are of no assistance. The family consultant did not have regard to the extent to which any matters raised by the child during the assessment may have been coloured by repeated questioning from the police and the mother.
In the circumstances I am not able to find on the balance of probabilities that the father sexually abused the child as alleged.
The Court is obliged to consider whether the father presents as a risk and if that risk is unacceptable. The consideration of unacceptable risk is not to be determined in a vacuum. Regard must be had to the evidence and the particular aspects that might form the individual building blocks of a determination of unacceptable risk must nonetheless be established on the balance of probabilities.
The evidence is not established by a consideration of the mother’s observations, matters raised by the child in the record of interview, the child’s presentation during the assessments for the family reports, nor in the father’s conduct or matters raised by him in his record of interview.
There is no other evidence promoted by the mother. The converse is likely to be correct. The mother’s observations are of the father historically having a close and loving relationship with the child. The child interacted with the father without fear (and still continues to do so) and moreover there is a history of the child seeking out the father’s attention.
I find that there is no evidence that supports the mother’s allegation that the father engaged in the sexual abuse of the child on 1 February 2015 or on any other occasion. There is no evidence that the father engaged in conduct consistent with the “grooming” of the child for further sexual abuse.
Whilst I have found that the mother believes that the child is at risk in the unsupervised care of the father, the evidence supports a finding that the child may well be open to unsupervised time albeit with some level of reservation and that the mother recognises the importance of the child having a relationship with her father that she will comply with an order of the Court and support the relationship.
The significant period of the father’s time being supervised by the mother and the credit that falls to each of them for their civil and respectful conduct towards each other is a good indication of their ability to remain child-focussed and supportive of the child’s needs.
The child’s wishes
The evidence does not demonstrate that the child is resistant to a relationship with her father. She seeks him out and has enjoyed her time with him both historically and under the somewhat constrained circumstances of the mother’s supervision.
The child appears to relish her parent’s positive interaction in her presence and the family consultant clearly records the child’s concern that without supervision a circumstance may arise whereby her father may not be able to spend time with her.
The child is also 10 years of age and is considered by the parties to be highly intelligent and high functioning.
There is no suggestion that she is other than articulate. Her views of her father expressed to the family consultant are without equivocation in terms of the importance of a continued relationship.
There is some uncertainty as to the extent to which the child seeks supervision. I consider that the evidence is more consistent with the child requiring supervision because it has been promoted by her mother rather than any considered approach by the child.
I have found not only that the mother has not established on the balance of probabilities that the father has sexually abused the child, but also that he does not present as a risk. Other than the unfortunate involvement of the child in the litigation and in particular in the active promotion of the allegations, it is likely that without being exposed to the mother’s concerns there would not have been any reference by the child to the incident on 1 February 2015.
The presentation of the child was entirely unaffected on the day. She was happy to go for an excursion with the father to a local conservation park.
I consider that some weight must be given to the manner in which the child’s time with the father should continue into the future. The ICL does not consider supervision to be required but proposes a graduated transition starting with some few hours on a weekly basis, extending to a full day over a period of six months and thereafter the further time to be spent is to be by negotiation between the parties and with the assistance of the child’s therapist.
There is merit in a graduated approach and whilst the child may be assisted by some therapeutic intervention, I am not satisfied that the interests of the child will be served by orders being conditional upon the progress of the proposed therapeutic intervention.
Willingness and ability of each parent to facilitate and encourage the child’s relationship with the other
The mother considers that the father presents as a risk. It is hoped that following the resolution of the proceedings (noting that the parties have also resolved property issues) that she will develop a more benign view of the father. As discussed, the parties are capable of mature, civil and respectful conduct towards each other. They are able to communicate both directly and via electronic or written form with the beneficial result of the child being happy to interact with each of them.
Whilst it may be a bridge too far to suggest that the mother will encourage the child’s relationship with the father, I am satisfied that whatever her misgivings she will focus on her daughter’s needs first.
For his part, the father has been entirely respectful of the mother notwithstanding that he rallies against the allegation that he subjected the child to sexual abuse.
The parties are entirely decent and loving parents. Their history of working cooperatively in circumstances where the child was significantly premature and required extensive medical involvement and post-natal care is to their credit. Their management of the child with a diagnosis of high functioning Autism Spectrum Disorder has also thrown up challenges.
I consider that at the very least each will facilitate the child’s relationship with the other. The father bears no malice towards the mother.
The capacity of the parents to meet the child’s needs
The mother has been the child’s primary carer since separation. It is unlikely that any orders will be made which will change that status. The father does not complain of the child’s presentation, development or advancement. In that regard he is respectful of the mother and complimentary of her parenting. Prior to separation the mother’s position was also to highlight that the father had an active involvement with the child and was much sought after by her.
The father has not spent significant or substantial time with the child since separation, but it could not be said that he is unfamiliar with her. There has been an appropriate exchange of information relating to the child’s academic performance and in respect of her medical and/or behaviour requirements.
I find that each of the parties have the capacity to meet the child’s needs.
The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
This is not a case where the mother has demonized the father or has set out on a campaign to “decimate” the child’s relationship with the father. She remains mistrustful of the father and believes that the child is at risk in the father’s unsupervised care.
The parties recognise that the child will benefit exercising their skills as parents.
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings?
There is little doubt that an end to litigation is always in the best interests of a child. This litigation is no different. I have found that an adverse consequence of the litigation is the repeating of the mother’s allegations by the child.
The orders sought by the mother would potentially achieve an outcome least likely to lead to further litigation. The father was sanguine in his evidence and final submission that if the Court determined he should not spend time with the child then he would accept that outcome and hope that in years to come his relationship with his daughter could be restored.
In this case I have found that there is a considerable risk to the child in not having a relationship with the father. Whilst there may well be further proceedings, it is so important for the child to maintain a relationship with her father that the risk of future litigation is easily considered subordinate to the benefit of a meaningful relationship being maintained.
PARENTAL RESPONSIBILITY
The mother seeks sole parental responsibility, whereas the father seeks equal shared parental responsibility.
Ordinarily it would be difficult to conceive of parties having shared parental responsibility in circumstances where there is an allegation genuinely held by one party that the other has engaged in the sexual abuse of the child.
In this case the parties are able to communicate and have demonstrated an ability to be respectful of the other.
It must be remembered that the child is now 10 years of age. Much is to be gained by the continued involvement of the parties in the child’s education, health and the management of behaviour and developmental issues arising from the child’s diagnosis on the Autism Spectrum.
There is no reason why there cannot be appropriate communication between the parties as to matters pertaining to the ongoing needs of the child. To some extent it occurs now. The father is in receipt of school and other reports pertaining to the child. The parents interact with each other during their current supervised time arrangement.
I find that it is in the best interests of the child as determined by a consideration of the primary and additional factors pursuant to s 60CC that the parties should have equal shared parental responsibility.
Whilst such a finding requires a consideration of factors in respect of s 65DAA, I consider that the matter is easily dealt with by a consideration of the orders that the father seeks. He does not seek equal time other than at some indefinite point in the future. I indicated to the father that I would not be giving consideration to that order given its lack of particularity and that it was conditional upon a future review taking into account “[The child’s] age related individual/special health needs and [the parent’s] work commitments as may be reviewed by a family counsellor or family psychologist”.
The father’s proposed order in that regard is vague and of such uncertainty that it should not be given serious consideration.
CONCLUSION
I bring to account the proposal of the ICL that there should be a resumption of time between the father and the child on an unsupervised basis but limited to a few hours duration extending to a full day unsupervised over a period of about six months.
I do not accept that the child will benefit from the uncertainty that is likely to arise from requiring future arrangements to be determined by the parties with or without the assistance of an appropriately qualified psychologist.
What is required at this stage is certainty of outcome rather than a stepped approach that is conditional upon the uncertainty of ill-defined and poorly targeted therapeutic intervention.
I propose to bring to account the combined approach of the family consultant and the ICL that there is no requirement for supervision, but to approach the time that the child is to spend with the father as a graduated process that will be assisted by the involvement of an appropriately trained therapist who will have the advantage of these reasons. The child’s time with the father will transition to overnight time and consistent with the unusual aspects of the parties’ relationship with each other, they will have the flexibility to supplement these orders.
I make orders as appear at the commencement of this Judgment.
I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 21 December 2017.
Associate:
Date: 21 December 2017
Key Legal Topics
Areas of Law
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Family Law
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