Hemiro & Sinla
[2009] FamCA 181
•17 March 2009
FAMILY COURT OF AUSTRALIA
| HEMIRO & SINLA | [2009] FamCA 181 |
| FAMILY LAW - CHILDREN - MAGELLAN - allegations of sexual abuse - standard or proof - analysis of article endorsed by Full court in Re W (Sex abuse: Standard of proof) (2004) FLC 93-192 - omission from quoted paragraph - expert evidence - pornography - allegations not proven - no unacceptable risk |
| Family Law Act 1975 (Cth) ss 60B(1), 60CC(2),(3),(4),(4A)), 61DA(2), 62(B), 65DA(2), 65DAA(1), (2) Evidence Act 1995 (Cth) ss 140, 140(2), 141 |
| Hartford and Ansilda [2009] FamCA 23 |
| FATHER: | Mr Hemiro |
| MOTHER: | Ms Sinla |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 9921 | of | 2007 |
| DATE DELIVERED: | 17 March, 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | BROWN J |
| HEARING DATE: | 21, 22, 23, 24, 25, 28, 29 July and 25, 26, 27 and 28 August, 2008 |
REPRESENTATION
| COUNSEL FOR THE FATHER | Mr. Clarke |
| SOLICITOR FOR THE FATHER: | Kennedy Guy |
| COUNSEL FOR THE MOTHER: | Ms. Vohra |
| SOLICITOR FOR THE MOTHER: | Hogg & Reid |
| COUNSEL FOR THE I.C.L. | Mr. Eidelson |
| INDEPENDENT CHILDREN’S LAWYER | Westminster Lawyers |
Orders
That all previous orders and injunctions which relate to the child of the marriage … born … April, 2003 (“the child”) be discharged and the husband be released from the undertaking he gave to the court on 6 September, 2007.
That the wife have sole parental responsibility for the child.
That the child live with the wife.
That subject to any agreement to the contrary between the parties, the child spend time with the husband as follows :
(a)from 10:00 am. until 2:00 pm. on Saturday 21 March, 2009;
(b)from 9:00 am. until 5:00 pm. on Saturday 28 March, 2009;
(c)from 9:00 am. until 5:00 pm. on Sunday 5 April, 2009;
(d)from 9:00 am. on Saturday 11 April, 2009 until 5:00 pm. on Sunday 12 April, 2009;
(e)thereafter, but subject to paragraphs (4)(f) and (g), (5), (6) and (7) hereof, commencing on the first weekend in the second school term in 2009, during school terms, on each alternate weekend from the conclusion of school on Friday until the commencement of school the following Monday, such time to recommence on the first weekend of each school term;
(f)commencing in 2010, in the first term holiday period as follows :
(i)if Coptic Easter falls within the holiday period and if the child was not with the husband on Easter Sunday in the preceding year, from 9:00 am. on Holy Thursday until 5:00 pm. on the following Wednesday PROVIDED THAT if the second school term commences prior to that following Wednesday, the period shall commence as many days earlier than Holy Thursday as is necessary to ensure the child spends a week with the husband, concluding at 5:00 pm. on the last day of the holiday period;
(ii)if Coptic Easter falls within the holiday period and if the child was with the husband on Easter Sunday in the preceding year, for a total period of seven days (commencing at 9:00 am. on the first day and concluding at 5:00 pm. on the seventh day) fixed so as to ensure the child is with the wife in the period between Holy Thursday and Easter Monday and, so far as is practicable, to be consecutive days;
(iii)if Coptic Easter does not fall within the holiday period, for seven consecutive days at times to be agreed, commencing at 9:00 am. on the first day and concluding at 5:00 pm. on the seventh day, and failing agreement to commence on the first Saturday of the holiday period.
(g)if Coptic Easter does not fall within a school holiday period, and if :
(i)the child was not with the husband on Easter Sunday in the preceding year; and
(ii)the child would not otherwise be with the husband pursuant to these orders on the weekend which includes Easter Sunday;
then the child shall spend that Easter weekend with the husband in lieu of the following weekend;
(h)if Coptic Easter does not fall within a school holiday period and if :
(i)the child was not with the wife on Easter Sunday in the preceding year; and
(ii)the child would otherwise be with the husband pursuant to these orders on the weekend which includes Easter Sunday;
then the child shall spend that Easter weekend with the wife and spend time with the husband in the following weekend, in lieu.
(i) commencing in 2009, in the second term (June/July) and third term (September) school holidays in each year, from the conclusion of school on the last day of the school term until 5:00 pm. on the second Saturday of the holiday period;
(j)subject to paragraph (8) hereof, from 12:00 noon on 5 January, until 5:00 pm. on 19 January in the 2009/2010 school holiday period and each alternate year thereafter;
(k)from 22 December until 5 January in the 2010/2011 school holiday period and each alternate year thereafter;
(l) if the child would not otherwise spend time with the husband on her birthday :
(i)if the birthday falls on a school day, from the conclusion of school until 6:30 pm.; or
(ii)if the birthday falls on a non-school day for four hours at times to be agreed and, failing agreement, from 10:00 am. until 2:00 pm.;
(m)from 5:00 pm. on Christmas Day (which in these orders means the day which marks the birth of Jesus Christ in the Coptic Church, not Christmas Eve) until 5:00 pm. the following day in January 2011 and each alternate year thereafter; and
(n) at such other times as may be agreed between the parties.
That if the child would not otherwise be with the husband on Fathers’ Day, then she shall spend time with him on that weekend in lieu of the next weekend on which she would otherwise spend time pursuant to these orders.
That if the child would not otherwise be with the wife on Mothers’ Day, then the husband shall spend time with her on the following weekend in lieu of that weekend.
That if the child would not otherwise live with the wife on her (the child’s) birthday, then the child shall spend time with the wife on her birthday for four hours at times to be agreed and, failing agreement, from 10:00 am. until 2:00 pm.
That the child spend time with the wife from 5:00 pm. on Christmas Day until 5:00 pm. the following day in January 2010 and each alternate year thereafter.
That the first three occasions of the husband’s time with the child pursuant to these orders be supervised by his mother, the paternal grandmother, and that she be in substantial attendance during the following three occasions.
That during the first six periods of time with the child the husband be and is hereby restrained from bathing or assisting to bathe the child and from assisting her when she goes to the toilet.
That the husband be and is hereby restrained from attending changeovers save for those which occur at the child’s school until time commences pursuant to paragraph (4)(d) hereof and that during that period the child be delivered and collected by the husband’s mother, the paternal grandmother, or another member of the husband’s family, or a family friend.
That changeovers which occur other than at the child’s school, take place at a place to be agreed between the parties and failing agreement :
(a)the wife deliver the child outside the M Police Station at the commencement of a period of time with the husband; and
(b)the husband (or family member or friend, as provided in paragraph (11) hereof, deliver the child outside the O Police Station at the conclusion of a period of time with the husband.
That subject to any agreement to the contrary between the parties, the child communicate with the husband as follows :
(a)commencing on Thursday 19 March, 2009 by telephone on no less than two days in each week, the telephone call to be made by the husband between 6:00 pm. and 6:30 pm. on each Tuesday and Thursday the child is not in his care; and
(b)by email, provided that the wife be at liberty to read emails from the husband prior to the child accessing them; and
(c)by correspondence sent by ordinary prepaid post, being cards or short notes PROVIDED THAT no more than one item be sent by the husband in any one week.
That the wife keep the husband advised of :
(a)an address to which correspondence may be posted pursuant to these orders;
(b)an email address to which emails for the child can be sent pursuant to these orders; and
(c)a telephone number on which the child can receive phone calls from the husband pursuant to these orders;
and thereafter keep the husband advised of any change of address, email address or telephone number.
That nothing in these orders precludes the paternal grandparents or other members of the husband’s extended family sending cards or small gifts to the child by post (for example, on her birthday, at Christmas and at Easter).
That the wife keep the husband informed of the school at which the child is enrolled and, in the event of change, advise the husband of such change no later than seven days prior to the child’s first day at the new school.
That the husband be at liberty to obtain, at his expense if any:
(a)copies of each school report for the child;
(b)order forms for each school photograph of the child; and
(c)newsletters and other publications routinely provided to parents;
and this order shall stand as authority to the principal of each school attended by the child from time to time to comply with such requests.
That as from 2010, the husband be at liberty to attend events, activities and functions at the child’s school which are routinely attended by parents.
That the wife be and is restrained, by herself, her servants or agents, from attending at the child’s school at the conclusion of a school day on which the husband is to collect the child for time pursuant to these orders or the commencement of a school day on which the husband is to deliver the child pursuant to these orders unless an event, activity or function routinely attended by parents occurs at such time.
That the husband be and is restrained, by himself, his servants or agents, from attending at the child’s school at the commencement or conclusion of a school day save on a day on which he is to collect or deliver the child pursuant to these orders, save (from 2010 on) if an event, activity or function routinely attended by parents occurs at that time.
That as soon as practicable the independent children’s lawyer serve a sealed copy of this order on the principal of S Catholic Primary School in G.
That the wife provide a sealed copy of this order to the principal of each school at which the child is subsequently enrolled by her and such sealed copy be provided on the day on which the child is so enrolled.
That each of the parties forthwith provide to the other, in writing, a telephone number at which he or she can be reached in the event of an emergency involving the child and keep the other advised of any change in that telephone number.
That each of the parties advise the other, as soon as practicable, of any significant illness or injury suffered by the child when in his or her care, including the name of each treating medical practitioner or like professional, and authorise the other to make all relevant enquiries of that medical practitioner or like professional and to discuss the child’s symptoms, treatment and prognosis.
That save with the consent in writing of the husband, the wife be and is hereby restrained from taking the child for any form of counselling, treatment or intervention which relates to the allegation that she has been sexually abused by the husband or is at risk of being sexually abused by the husband, save if directed by :
(a)a person employed by the Department of Human Services involved in the investigation of any subsequent complaint; and
(b)a member of Victoria Police, investigating any subsequent complaint.
That the wife keep the husband advised of the name and address of each psychiatrist, psychologist, medical practitioner, counsellor or like professional consulted by the child in circumstances where the presenting problem or issue is not a medical one (by which is meant an illness, injury or physical medical condition) and authorise each such professional to speak with the husband and discuss the child’s symptoms, treatment and prognosis and without limiting the generality of this order, the husband be at liberty to play such role in any such consultations or treatment as the treating professional deems appropriate.
That the husband be and is hereby restrained from accessing or viewing pornography, in any form, during periods the child is in his care and from allowing the child to be exposed to any form of pornography.
That the parties use a communication book to record matters of importance in relation to the child and that :
(a)such book be transferred between them at changeovers, if it is to be kept in hard copy; or
(b)maintained as an email document to which each “Replies” at the conclusion of a period of time with the child.
That each of the parties by themselves their servants and agents be and are hereby restrained from discussing the evidence adduced in these proceedings and the judgment herein in the presence or hearing of the child.
That a copy of the reasons for judgment herein may be provided to :
(a)Dr. E;
(b)Ms. W;
(c)Ms. R;
(d)the principal of each school attended by the child and, in his/her absolute discretion, any member of staff of that school who works with the child;
(e)any medical practitioner, psychiatrist, psychologist, counsellor or like professional consulted by the child; and
(f)any DHS worker or member of a police force investigating any subsequent allegation against the husband or which involves the child.
That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal.
That all extant applications be otherwise dismissed.
IT IS DIRECTED
That these proceedings be removed from the List of matters awaiting finalisation.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
That subject to paragraph (36) hereof, all documents produced pursuant to subpoenae be forthwith returned to the person/entity who/which produced them.
That the wife have leave to copy documents produced pursuant to subpoenae by I Company within fourteen days hereof and such documents then be returned to I Company.
That the DVD tendered as exhibit H-13 be released to the solicitors for the wife to allow a copy to be made by the wife on the undertaking of the wife (given through her solicitor) that within fourteen days hereof she will return the DVD (not the copy taken by her) to her solicitor, and her solicitor is requested to then return the DVD to the solicitors for the husband.
That all other exhibits be returned forthwith to the party in possession at the time of their tender.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
AND THE COURT NOTES its intention that the child spend alternate Easter weekends with each of her parents and paragraphs (4)(e), (f) and (g) should be interpreted and implemented in the light of that intention.
IT IS NOTED that publication of this judgment under the pseudonym Hemiro & Sinla is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 9921 of 2007
| MR HEMIRO |
Father
And
| MS SINLA |
Mother
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
Mr Hemiro (“the father”) and Ms Sinla (“the mother”) married in May, 2001; they were both 23. Their families are part of the Coptic community in Melbourne. Dr. E, the psychiatrist who saw them in June 2005, said the account each gave him suggested they “struggled with the business of marriage”; in his opinion “their ability to experience life beyond their families is somewhat limited” and they were, and remain, emotionally young. Ms. W, the psychologist who prepared the family report, came to a similar conclusion; having heard a summary of evidence of the parties’ interaction when together, she said it was “like two adolescents playing at being parents”.
The parties’ daughter, the subject child, was born in April, 2003. They separated on 11 July, 2004, when she was only fifteen months old. The child will be six in April. She is described by her parents, relatives, friends and experts as a delightful child. She is a socially, physically and educationally successful girl; she is healthy and confident and developing well. Reference will be made to some nightmares and an analysis of her inner emotional world. The court must not lose sight of the child at the centre of this dispute, on whose best interests it must focus.
Within a day or so of separation the mother filed an application for an intervention order against the father at the Sunshine Magistrates’ Court and it is probable an interim ex-parte order was made. Within a further few days the father filed an application for an intervention order against the mother and the cross-applications were listed for hearing together. On 29 July, 2004, some eighteen days after separation, the father filed proceedings in this court in which he sought that the child live with him, that the parties share responsibility for her long term care and development and she have contact with the mother from 5:00 pm. Friday until 9:00 am. Monday in each alternate week and 5:00 pm. Tuesday to 9:00 am Thursday in each other week. He also sought property orders.
In a response filed on 3 September, 2004 the mother sought that the child live with her, that she have sole responsibility for her long-term care and development and that the father’s contact with the child be during daylight hours only and subject to numerous conditions. She sought spousal maintenance, property orders and sole use of the former matrimonial home.
In those proceedings the mother alleged the father was physically violent, controlling and obsessive. She complained he insisted on bathing the child alone and would physically throw or push her out of the bathroom if she objected. She complained of his pornography use, including images on so called “teen sites”, and raised the possibility of sexual abuse. She alleged that the child told her that her father hit, pushed and hurt her, that the child came home with unexplained injuries and that she exhibited distress at the prospect of time with the father.
In those proceedings the father denied being violent to the mother and alleged it was she who was physically violent, controlling and obsessive, and determined to cut him out of the child’s life.
The Department of Human Services became involved as a result of a notification on 13 January, 2005, which detailed a long list of complaints against the father. In May 2005, the child was examined by Dr. Y at the Gatehouse Centre at the Royal Children’s Hospital, an examination which arose from the mother’s concern about sexual abuse of the child and which revealed nothing of concern. A psychologist, Mr. P, prepared family reports in January 2005 and April 2006 and a psychiatrist, Dr. E, saw the parties in June 2005 and prepared psychiatric assessments.
That litigation continued until 21 November, 2006 when final parenting orders were made, by consent. Pursuant to those orders the parents had equal shared parental responsibility for the child who was to live with the mother and spend two out of each three weekends with the father, with further time during the Christmas holiday period and on special days. Changeovers were to occur at a contact centre.
The parties subsequently settled their financial applications and final property orders were made by consent on 23 November, 2006, two days after the final parenting orders.
Less than a year after that litigation settled, on 4 September, 2007, the mother filed a fresh application in this court, seeking a suspension of the father’s time with the child. In the affidavit filed in support of her application, the mother revisited the numerous allegations made prior to the final orders of November 2006 and made further allegations, including an allegation that the father had sexually abused the child. She also filed a notice of child abuse. It is the proceedings initiated by that application which the court is asked to determine.
By the time the trial commenced, the mother maintained her application for sole parental responsibility for the child and for orders that the child live with her, and sought that the father have no time or communication with the child.
For his part the father sought that the orders of 21 November, 2006 be reinstated and he have frequent and regular unsupervised time with the child. He also sought an order for time with the child during half of school term holidays.
It was the submission of the independent children’s lawyer that the father should immediately resume unsupervised time with the child. For three consecutive Sundays she should see him from 10:00 am. until 5:00 pm. and then spend two consecutive weekends with him from 10:00 am. Saturday until 5:00 pm. on Sunday. Thereafter she should spend alternate weekends (with changeovers at school on Friday and Monday), half school holidays and time on special days. The ICL proposed orders restraining the father from accessing or viewing pornography when the child was with him. He also proposed an order restraining the father from bathing or toileting the child; it was submitted this was aimed at protecting the father, ameliorating the mother’s concerns and reducing stress on the child.
Much of the evidence adduced went to events prior to the making of final parenting orders in November 2006. Neither party nor the ICL submitted that the court should consider only evidence which post-dated those final orders. To the contrary, the trial proceeded on the basis that many facts in issue in those earlier proceedings were relevant, and required determination.
LEGAL PRINCIPLES
The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children as follows :
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The objects point the way to an optimum outcome. The first two are picked up in s.60CC(2) as the primary considerations when determining where children's best interests lie. The second is also reflected in the circumstances in which the presumption of equal shared parental responsibility is not to apply, those circumstances relating to findings about violence; see s.61DA(2).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests and reasonably practicable (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests and reasonably practicable (s.65DAA(2)).
I recently summarised the core principles in the determination of a case of alleged sexual abuse in Hartford and Ansilda [2009] FamCA 23, as follows :
19 The core principles are those enunciated by the High Court in M and M (1988) 166 CLR 69. The High Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) made it clear that the ultimate and paramount issue to be decided in proceedings for what are now called parenting orders is whether the making of the orders sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation of sexual abuse by the parent who seeks residence or time with a child does not alter the paramount and ultimate issue which the court has to determine. The High Court found (at 76) that although findings on the disputed allegation of sexual abuse will have an important, and sometimes a decisive, impact on the resolution of that issue,
…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318: McKee v McKee (1951) AC 352 at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447 at pp 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a context between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
20.In a joint judgment in B and B (1993) FLC 92-357 the Full Court (Fogarty, Baker and Purvis JJ) discussed the relevant principles, having regard to the High Court’s decision in M and M and at 79,778 said:
The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
21.In Re W (Sex abuse: standard of proof) (2004) FLC 93-192 the Full Court (Kay, Holden and O’Ryan JJ) examined the principles applicable in cases involving difficult questions of sexual abuse where the only witnesses to the alleged abuse are the alleged perpetrator and the alleged victim, noting the particular difficulties where the victim is young and does not give any direct testimony that can be the subject of forensic testing.
22.The Full Court considered the relevance of the decision in WK v SR (1997) FLC 92 -787. In that case the trial judge had found that the father had sexually molested both his step-daughter and his own daughter. The Full Court said, at 84,691:
26. However, the evidence of ZH was in fact the core evidence relied upon by his Honour in order to substantiate the allegations of abuse against the father. Given the gravity of the allegations raised by the evidence, and the Court's duty to apply a rigorous civil standard of proof pursuant to the test enunciated by the High Court in Briginshaw (supra) and restated in s 140 of the Evidence Act 1995(Cth), her evidence needed to be very carefully evaluated.
[…]
46.It is clear therefore, that a finding that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw. Section 140 of the Evidence Act 1995 (Cth) has adopted this test as follows:
'140 (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.'
47. In children's matters under Part VII of the Family Law Act, where the issue is a child's contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
48. This is a matter which must be specifically borne in mind by a Court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this Part, the Court's paramount consideration must be the best interests of the child, in accordance with s 65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Furthermore, when deciding what orders are in the best interests of a child, a trial Judge may often be confronted with a multiplicity of issues and facts. In these circumstances, evidence which, for example, is relevant and probative in relation to the question of an unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred.
The Full Court found that the trial judge had not paid attention to these views, and that unless the rigorous approach set out in WK v SR is taken, in circumstances where the often inevitable result of a positive finding of abuse is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and the child the disastrous effects of a positive finding that is reached in error. The Full Court found that the termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort, noting (at 79,217-8):
The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to remain conscious of this imperfection at all times.
23. The Full Court then referred with approval to the dissenting judgment of Kay J. in K v B (1994) FLC 92-478 where his Honour said, at 80, 972:
In cases of alleged sexual abuse, there is a significant risk that the ultimate effect of orders to be made by the court, and of the proper operation of the legal system, will be overlooked in the court’s anxiety to ensure that the risks of sexual interference are minimised. Where the evidence of sexual abuse consists of ambiguous statements of a pre-kindergarten aged child coupled with perceived but possibly otherwise explicable behavioural changes, it is almost impossible for the party denying any impropriety to prove that party’s position.
In an article entitled 'Prediction, Prevention and Clinical Expertise in Child Custody Cases In Which Allegations of Child Sexual Abuse Have Been Made', appearing in Volume XXVI No 2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law), at p 170, it was observed:
'Unfortunately the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draw the clinician — and perhaps even judges and jurors as well,... away from what ought always to be the starting point of her or his evaluation enquiries, which is that the event did not (or very highly probably did not) occur. Because the null hypothesis (and, correlatively the absence of an event) cannot be proved, in their testimonies concerning possibilities of alleged events, clinicians strongly resist exonerating the targets of their evaluation. Because it is always possible that a given individual — even one randomly drawn from the general or a specific population — has sexually molested a child, an inconvertible proof that the individual has not molested a child is impossible.' (emphasis in original)
The article concerns itself with research carried out at the University of Michigan. Case notes concerning the possible sexual abuse of a three year old child were provided to 8 senior clinical psychologists, 23 graduate students undergoing clinical training in psychology and 50 members of staff of child guidance clinics including social workers, clinical psychologists and psychiatrists all specialising in child development in areas of child mental health. They were asked individually and then in groups to evaluate the probabilities that sexual abuse had occurred and then to recommend what if any ongoing child/father contact should take place.
The range of opinion on whether there had been abuse was so wide that the authors concluded as follows:
The most striking feature of these studies’ findings is the extremely large range across experienced and non-experienced clinicians of estimates concerning the likelihood that M was sexually abused by her father. When given all of the relevant facts of the case, child experts and trainees varied greatly in their individual judgment... These findings lend strong support for the view that individual experts can provide courts little if any assurance that they are able to provide even crudely reasonable (i.e. objective) estimates of likelihood that child sexual abuse has occurred or will occur, when they are confronted with the same set of ambiguities faced by the courts in these cases.
24.In Re W, the Full Court concluded its analysis of the relevant legal principles by remarking, at 79,218:
The lessons to be learned have not changed. The risk that the Court will find heinous behaviour where none has occurred needs be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.
25.As I have observed before, and with respect to the Full Court, one might as well say that the harm and injustice that flows to both parent and child from an erroneous negative finding is almost too horrible to contemplate, that harm including repeated sexual abuse of a child. Nevertheless, I am bound by the exposition of principle in the judgment.
26.In W v W (Abuse allegations; unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) examined principles relevant to child sexual abuse cases with particular emphasis on what is meant by unacceptable risk, the potential cessation of a significant or meaningful parent/child relationship and the appropriateness or otherwise of supervised contact. As a starting point the Full Court referred to the significant detrimental harm to a child who is sexually abused, noting (at 79,906) the discussion by Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 where His Honour said, at 82,709:
The sexual abuse of a young child by a parent or care giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long term, can be devastating.
27.The Full Court also had regard to Fogarty J’s acknowledgement of the potential for false allegations. Referring to Thomas J’s judgment in S v S [1993] NZFLR 657, Fogarty J said (at 82,711):
Courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception or information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.
28.After considering a number of decisions in which the concept of unacceptable risk was considered, the Full Court in W v W(Abuse allegations: unacceptablerisk)concluded (at 79,910):
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognized the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty.
W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 was delivered after Re W (Sex abuse: standard of proof) (2004) FLC 93-192 and made no reference to the null hypothesis advanced in the article quoted by Kay J. in his dissenting judgment in K v. B (1994) FLC 92-478, which was endorsed by the Full Court in Re W (Sex abuse: standard of proof). Nor was there any reference to the article in Potter & Potter (2007) FLC 93-326 in which the Full Court endorsed the approach described in Re W (Sex abuse : standard of proof) or in the earlier decision in Napier & Hepburn (2006) FLC 93-303 in which the Full Court considered the approach to determining whether the evidence establishes an unacceptable risk of abuse. It is timely to say something further about that article.
Neither Kay J in K v. B nor the Full Court in Re W (Sex abuse: standard of proof) named the authors of the article in question, nor was its sub-title stated. The article is Prediction, Prevention and Clinical Expertise in Child Custody Cases in Which Allegations of Child Sexual Abuse Have Been Made : III Studies of Expert Opinion Formation. Its authors are Thomas M. Horner, Melvin J. Guyer and Neil M. Kalter. Kay J. recorded it as appearing in Volume XXVI No.2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law). The short reference for the article is 26 Fam.L.Q. 141 (1992-1993).
The article is the third in a series. Part I, sub-titled Predictable Rates of Diagnostic Error in Relation to Various Clinical Decisionmaking Strategies, was published in 25 Fam.L.Q. 217 (1991); Part II, sub-titled Prevalence Rates of Child Sexual Abuse and the Precision of “Tests” Constructed to Diagnose It, was published in 25 Fam.L.Q. 381 (1992). The authors of the first two parts are Thomas M. Horner and Melvin J. Guyer.
In the introduction to Part I the authors make clear their interest in the decision making processes that are generated under the mantle of expertise in cases of alleged child sexual abuse. The introduction to Part II sets out its focus as the problems inherent in attempting to reach firm conclusions about allegations of sexual contact between young children and adults. Part III deals with the field and scope of clinical expertise in these cases. The same case study was used in the research referred to in all three parts.
The authors frankly state their concerns about the accuracy of expert evidence and uncritical reliance on it and draw conclusions based on the research to which Kay J referred. Not all their assertions are attributable to their research; for example, in Part I they assert, at 251, that “(t)he contemporary preoccupation with child sexual abuse surely has many parallels with the preoccupations of other times, such as witchcraft and other heresies.” While a footnote is provided (Child Abuse from Salem to Jordan: Therapists as Culprits, 9 AUGUSTUS 7(1986)) the authors go on to wonder how many people over the course of history have been “mortally persecuted for the alleged practice of witchcraft, but had indeed not practiced it” and maintain and flesh out the analogy in their concluding paragraph. Part II continues where Part I left off, commencing with an aphorism attributed to Nietzsche: Convictions are the greater enemies of truth than lies.
Part III of the series, which is the article referred to by Kay J., continues the critique of the involvement of clinical experts in child sex abuse investigations. As Kay J. observed, detailed case notes concerning the possible sexual abuse of a three year old child were provided to eight senior clinical psychologists, twenty-three graduate students undergoing clinical training in psychology and fifty members of staff of child guidance clinics, including social workers, clinical psychologists and psychiatrists. In one phase of the study participants were able to question the evaluating clinician who presented the case study. No participant met with the child who was the subject of the allegation or with any parent or family member of the child. They were neither treating experts nor forensic experts; the method involved the presentation of extensive clinical case material by the evaluating clinician in that case.
Participants were advised that until the allegation was made the child’s parents maintained a good relationship and the child enjoyed a positive relationship with each parent. When she was about 16 to 17 months old, the child began (on her mother’s account) to exhibit behaviours resembling ones referred to in certain media accounts as being associated with sexual abuse. They included nightmares, an interest in and references to sexuality, occasional resistance to having her nappy changed, an emergent negativism, protests against separation from her mother and, once when having her nappy changed, the child saying “daddy hurt ‘gina”, which the mother construed to mean the father had molested the child. The mother’s concerns moved to a strong suspicion when she discovered a hair in the child’s nappy which, she said, was the colour of the father’s hair, and she asserted, a pubic hair. She did not save the hair.
An examining paediatrician discovered no physical evidence of sexual contact and in the course of police investigations the father underwent two polygraphic examinations, which concluded that he was being truthful when he denied any sexual misconduct towards his daughter. The father acknowledged that his daughter had become avoidant of nappy changes and that he sometimes had to be firm with her during them. He corroborated the mother’s observations of increased negativism and oppositionality. He could not explain the hair in the nappy.
Neither police nor protective services investigations substantiated the mother’s suspicions and allegations. Following her receipt of their negative findings, the mother contacted a clinic specialising in the diagnosis and treatment of child sexual abuse; a therapist there stated that the child was being treated for (this is a direct quotation from the article) “trauma [sic] of possible [sic] sexual abuse”. The evaluation team at the clinic never contacted the father but recommended a course of treatment to deal with the child’s behavioural problems, which were deemed symptomatic of “some kind of abuse”.
The clinician who presented the case study to the participants in the research exercise had been requested by a court to complete another clinical evaluation of the allegation of abuse.
The findings of the authors in Part III could be summarised in this way.
·Expert evidence is highly imprecise and unreliable. Even if some of the experts were “correct” in their opinions, the broad spectrum of opinions makes it very difficult to discern which of those are to be trusted.
·Estimates of the likelihood of abuse did not necessarily match the recommendations made when asked about the contact the child should have with the allegedly abusing father. In the authors’ words, the implication of this is that “. . . an allegation taken alone . . . has a powerful determining effect far beyond any failure to substantiate it (p.165 (emphasis in original)).
·Where an expert is confronted with ambiguous and conflicting evidence, he or she is rarely better placed than a court to assess the evidence.
The section of the article quoted by Kay J. in K v B at 80,972 commences one sentence into a paragraph. The first sentence of the quoted paragraph, which is omitted, states :
Clinicians seem inherently averse to both the scientific standard of accepting the null hypothesis (and, correlatively, the legal standard of presuming innocence in the absence of incriminating proof) when adduced data are insufficient to make its rejection defensible. (170)
The authors’ reference to the presumption of innocence is curious. Insofar as the authors refer to the admission of expert evidence, it is to evidence adduced in civil proceedings, not criminal proceedings. This is expressly acknowledged in their comparison, at 170, of the “clinical arena” with the “civil arena” and in the Introduction in Part I of the series. In Australia, “the legal standard of presuming innocence in the absence of incriminating proof” has no role in civil proceedings and no role in the criminal standard of proof, which requires rather that the accused’s guilt must be established beyond reasonable doubt, to achieve which the elements (ingredients or ultimate facts) of the crime must be established by the evidence beyond reasonable doubt; see Evidence Act 1995 (Cth) s.141; R v Dickson [1983] 1 VR 227 at 235, Thompson v The Queen (1989) 169 CLR 1 at 12. The presumption of innocence is a vital part of the criminal law but to say an accused person is entitled to the presumption of innocence is to say no more than that a person suspected of or charged with a crime shall be assumed innocent unless and until his or her guilt is proved, either by a plea of guilty or by a jury finding.
All three authors of the article hold positions at the University of Michigan in the State of Michigan. The article quoted says nothing of the legal standard of proof (or, indeed, burden of proof) in that State however in Part I, at 250-251, the authors note that civil law generally accepts preponderance of evidence as the standard of proof that a party must meet to prevail in the judicial decision making forum while criminal culpability requires that the State meet the more stringent standard of proffering evidence of guilt beyond a reasonable doubt. A footnote, numbered 43, notes :
Certain questions brought before the courts require that the prevailing party meet a higher standard of proof than the usual civil standard. The determination of paternity, the termination of parental rights, and the civil commitment of the mentally ill, for example, all require the moving party to meet a clear and convincing standard of proof.
The authors may be working within a system in which the standard of proof in civil litigation is more variable than it is under Australian law and the court could not rule out constitutional ramifications in the United States.
While this court cannot know why the first sentence of the paragraph was omitted from the quotation in K v B, it can say that its inclusion would have caused a legally qualified Australian reader to question the apparent analogy drawn between the null hypothesis and the presumption of innocence, its relevance to the arguments the authors sought to advance and the authors’ non-expert assumptions about the law.
The authors refer to the null hypothesis as “the scientific standard” at 170, but say nothing more of it. The expression was coined by Sir Ronald Fisher, an English geneticist and statistician, in 1935; (see Fisher, R.A. (1966) The Design of Experiments, 8th edition, Hafner: Edinburgh). In statistics a null hypothesis is a concept which arises in the context of statistical hypothesis testing to describe in a formal way some aspect of the statistical behaviour of a set of data which is treated as valid unless the actual behaviour of the data contradicts this assumption. Although a null hypothesis always occurs in conjunction with an alternative hypothesis it would be misleading to consider the alternative hypothesis as the negation of the null hypothesis. Importantly, the absence of evidence against the null hypothesis does not establish its “truth”; if the null hypothesis is not rejected there is no reason to change decisions or procedures predicated on its truth but it allows for the possibility of obtaining further data and then re-examining the same hypothesis. In the article the authors appear to use it to mean an hypothesis that sexual abuse has not occurred.
Tellingly, a clause is omitted in the midst of the paragraph quoted by Kay J. The first sentence of the quoted paragraph is reproduced below with the omitted words in bold :
Unfortunately, the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draws the clinician – and perhaps even judges and jurors as well, although the safeguards against this happening seem to us stronger in the civil arena than in the clinical arena – away from what ought always to be the starting point of his or her evaluation enquiries, which is that the event did not (or very highly probably did not) occur. (170)
The omitted words, which qualify “perhaps even judges and jurors”, are consistent with the authors’ statements (at 162-163) that despite their view of the imperfection of expert evidence, “the findings do not mean, of course, that specialists in child mental health cannot be useful in the fact finding process, as they may offer modes and venues of communication that genuinely assist courts in fully weighing evidence”. The authors describe the central problem faced by courts which use experts in cases of alleged child sexual abuse as being :
. . . one of determining which of the diverse expert opinions one might solicit is veridical and which expert(s) among the many who present themselves as such in any given case can be expected and relied upon to exercise genuine expertise rather than simple ordinary judgment. (163)
The paragraph following that quoted by Kay J. is the concluding paragraph of the article, and is in these terms :
Certainly, one important implication of our observations and findings is that for each and every individual clinician an immense burden exists to demonstrate convincingly to the courts to which they testify, and to society in general (neither statements to the effect that one has seen “hundreds of cases” nor presentations of thick resumes or curricula vitae being inherently convincing), the grounds on which s/he can be confidently expected to reason or predict beyond the capacity of the ordinary judge or juror when s/he is faced with the same information. A further implication, of course, is that courts need to examine their experts beyond the customary scope (which is too often perfunctory) of voir dire, which in our opinion admits far more clinicians to the realm of privileged testimony than is justified by any reasoned appraisals that have been made of them as a class of specialists. (170)
The authors of the article place much faith in the deductive capabilities of courts (as opposed to “clinical experts”) in drawing conclusions from conflicting and ambiguous evidence. The authors do acknowledge the “pragmatic utility” in the admission of expert evidence, however unsatisfactory (166). Their main point is that the court should be cautious when considering expert evidence; as its sub-title makes clear, the article is about the formation of expert opinion, not determination of allegations by a court. At 169, the authors make this clear when expressing this caution :
Courts need to recognize, therefore, that the thought processes of most clinicians, whose modes and manners of discourse may in their aplomb and tones of unflinching conviction, appear to be authoritative, are by dint of training and practice historically rooted in the traditionally divergent, intuitive, and speculative thought processes of the clinical case conference, and not in the traditionally systematic, fact-weighing thought processes of legal discourse. Caveat curia!
The authors refer to the problematic relationship between a low assessment of abuse and a “conservative” recommendation for contact. An example given involved a risk assessment by participants falling between 0.001 and 0.25 (mean probability : 0.11) where despite this low likelihood of abuse, several experts expressed the opinion that contact between the father and child should be supervised as a caution. That approach was criticised and attributed by the authors to “individual differences in tolerance for risk, as well as non-expert based views of parental rights”.
As the article was not concerned with the court process, it did not take into account the potential for such a poor correlation between a clinician’s assessment of risk and his or her recommendation for contact to be tested in cross-examination and the contradiction exposed. Nor did it take into account a court’s obligation to act according to law, rather than on personal views of “parental rights”.
By quoting that part of Kay J’s earlier dissenting judgment which includes an edited quotation from the article, the Full Court in Re W (Sex abuse:standard of proof) cannot have meant to endorse an approach which would have the court take as its starting point a premise that the sexual abuse did not, or “very highly probably did not” occur, as that would be inconsistent with s.140 of the Evidence Act 1995 (Cth) and inconsistent with decades of jurisprudence about the standard of proof in civil cases, before and after the proclamation of the Evidence Act 1995. A revisiting of the article, and of the series of which it forms part, leads one to wonder whether it was considered in its entirety by Kay J in K v B. As the Full Court itself made no reference to the article, save by quoting that part of K v B which refers to it, there is no reason to infer that it considered the whole of the article, or the series.
On occasions, submissions made in this court suggest that some readers extrapolate from the first paragraph of the article quoted by Kay J. that the starting point of a judge’s evaluation should be the null hypothesis. The article does not support such a reading; nor does s.140 of the Evidence Act 1995 (Cth) or any of the other authorities to which I have referred.
While Dixon J.’s classic discussion in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 of the operation of the civil standard of proof may appositely express the considerations which s.140(2) of the Evidence Act 1995 (Cth) requires a court to take into account, the correct approach (as recently observed by Branson J. (with whom French and Jacobson JJ. agreed) in Qantas Airways Ltd v. Gama (2008) 247 ALR 273, at para. 139 is that :
. . . references to, for example, “the Briginshaw standard” or “the onerous Briginshaw test” . . . have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s.140 of the Evidence Act provides.
Similarly, in Johnson & Page (2007) FLC 93-344, at 81,891, the Full Court of this Court expressly agreed with the “view that reference to the Evidence Act, rather than Briginshaw, is appropriate”.
Section 140 is as follows :
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account :
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
The court is not in general required to exclude all reasonable hypotheses consistent with the non existence of a fact, or inconsistent with its existence, before the fact can be found. However, all the circumstances must be considered together at the final stage of the reasoning process and where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved; Palmer v Dolman, [2005] NSWCA 631, Ipp JA at para 41.
In Westbus Pty. Ltd. (Administrators Appointed) v Ishak [2006] NSWCA 198 at para 20, the Court of Appeal, citing a number of earlier authorities, observed that the standard of proof is not met if the circumstances appearing in evidence do not give rise to “a reasonable and definite inference”, but at most give rise to “conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture”.
In Kuligowski v Metro Bus (2004) 220 CLR 363 at 385, the High Court, in a joint judgment, noted that disbelief of the case presented by the moving party does not necessarily permit the court to conclude that the positive case of the opposing party is correct. Quoting Rhesa Shipping Co. SA v Edmunds [1985] 1 WLR 948 at 955, the High Court endorsed the finding that in a particular case it may not be possible for the court to reach a conclusion either way and in those circumstances the court is not bound to do so but may take the third course of finding that the party on whom the burden of proof lies has failed to discharge it.
Thus in this case, as in every case, the court must assess the competing probabilities of facts in issue, whether directly in issue or to establish a fact from which a further inference is to be drawn.
EVIDENCE
Findings are made on the balance of probabilities, having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.
The mother relied on her amended application and affidavit filed 11 July, 2008. She also relied on an affidavit sworn by her mother, the maternal grandmother, filed 11 July, 2008; a friend, Ms T, filed 11 July, 2008; a paediatrician, Dr N, filed 8 July, 2008; and a general practitioner, Dr F, filed 11 July, 2008. In her case summary the mother also listed an affidavit of a psychiatrist, Dr I, filed 22 May, 2006, however that was not relied on by counsel for the mother, which is unsurprising as the evidence was of the parties attending Dr. I for marriage counselling, prior to separation. I note that the affidavit of Dr. I filed 22 May, 2006 was annexed to the mother’s trial affidavit as annexure DS19. I place no weight on it.
The mother, her mother, Ms.T, Dr. F and Dr. N were cross-examined.
The father relied on an amended response and affidavit filed 14 July, 2008 and affidavits sworn by his mother, the paternal grandmother, and a friend, Mr G, both filed 20 September, 2007. All three were cross-examined.
The independent children’s lawyer adduced the following evidence :
· two reports of Dr. E, psychiatrist, dated 17 June, 2005 and 28 April, 2008;
· a family report of Ms. W, psychologist, dated 9 May, 2008;
· two reports of Ms. R, a child psychotherapist, employed at the Gatehouse Centre, dated 30 January, 2008 and 14 July, 2008;
· two Department of Human Services’ reports prepared at the request of the court, dated 21 September, 2007 and 30 October, 2007.
Dr. E, Ms. W and Ms. R were cross-examined. No protective worker or other person involved in the Department of Human Services’ investigation was called.
Family reports prepared by Mr. P in the first round of proceedings were provided to Dr. E; they are referred to in his report of 28 April, 2008. Reference was made during the trial to Mr. P’s opinion that his observation of the child’s interaction with her father was positive and that the mother’s then concerns were not borne out by the quality of the interaction, but the reports were not in evidence.
Parties
The mother is 31 and lives in a unit in the northern suburbs with the child. She has a science degree and works some 40 hours a fortnight. The child started prep at the S School, a Catholic primary school in G, in 2008.
The father is 31 and lives with his parents in the south-east suburbs. He is an engineer. Save in the course of the preparation of the family report, he has not seen the child since signing an undertaking on 6 September, 2007 in which he said he would not spend time or communicate with the child pursuant to the orders of 21 November, 2006 pending a proposed interim hearing on 25 September, 2007 or until excused by the court.
I am satisfied each of the parties exaggerated and distorted accounts of events which occurred during their marriage and after their separation. Neither appeared able to make any concession, even with the benefit of hindsight. Both relied on letters exchanged in happier times and obsessively documented complaints against the other. Both called on family and friends to support their accounts. Both say that any physical injury the other party suffered at his or her hands occurred only in the context of self defence. Both gave the impression that the case was about their respective honesty or lack of it, rather than about the child’s welfare. Both alleged the plausible presentation of the other was a front and hid a manipulative and dishonest person.
Dr. E described the mother’s account of her experiences with the father as unremitting and withering in intensity; he said she was engaged “in almost mortal combat” with the father. That is consistent with her presentation and demeanour. While Dr. E described the father’s presentation as more open, self disclosing and believable than the mother’s, he did agree that the failure of the father to disclose a number of aspects of his past meant that assessment needed to be reconsidered. In the two sets of proceedings the father made numerous allegations against the mother and many which related to her parenting were built on no, or scant, foundations. He was as disdainful of her as she was of him and as prone to see the world in a simplistic black and white way.
Dr. E spoke of the possibility of seeing aspects of the father’s behaviour (it was raised in the context of the father collecting a box of evidence in case the mother killed him, as well as the pornography) as malevolent and planned and quite dark, but also the possibility of seeing them as very unsophisticated and emotionally naïve and histrionic. He said the father may well experience the mother as quite formidable, not so much at a physical level but at other levels; he experiences her as someone who could cause him trouble and do him harm. That assessment is consistent with the father’s demeanour.
I have little confidence in the capacity of either party to recollect events objectively. It is probable each is convinced of the accuracy of the account advanced. It is not a case in which the court can find that one party’s evidence was always more reliable or cogent.
Lay Witnesses
Unsurprisingly, this dispute has polarised the parties’ families and allegations and cross-allegations have been aired within the reasonably close knit Coptic community. This partisanship was reflected in the evidence of the mothers of each of the parties.
The maternal grandmother may genuinely believe that events occurred as she now recalls but I am satisfied they emerged through a filter of anger and disdain for the father and a conviction that he is a paedophile. I am not satisfied weight should be placed on her evidence of observations (or lack of observations) of injuries or marks on the father, or on her recollection of arguments or fights between the parties.
The paternal grandmother, too, was partisan to her son’s cause, albeit a little more detached than the mother’s mother. The father typed her affidavit and discussed its contents with her and while I find nothing sinister in that, it can effect its probative value. She is convinced of her son’s innocence and recalls events through that lens.
Mr. G is also a member of the Coptic community and has known the father for many years. His evidence went to the father’s relationship with the child and with Mr. G’s children, and to events on the weekend of 18 and 19 August, 2007. Again, the father typed Mr. G’s affidavit and was thus involved in its preparation. Having observed Mr. G I have no hesitation in finding him an honest and responsive witness and place no weight on the asserted disparity between his spoken and written/read English.
Ms. T has known the mother for over thirteen years; the mother confided the current allegations against the father to her in August 2007. Her evidence went to her observations of the mother and of the mother with the child. Much of her evidence went to observations in the mother’s family home and little to observations of the parties’ home, while they were together.
Dr. N is a consultant paediatrician who was first consulted by the mother with the child on 29 April, 2005 as a result of concerns about possible sexual abuse and problems in the home situation. He never met the father. Reports by him dated 24 June, 2005 and 3 March, 2006 were adduced into evidence in the earlier proceedings, and again into these proceedings, together with a further report dated 29 January, 2008. I place weight on his evidence.
Dr. F is a general practitioner who has been consulted by the mother and the child for some years. He also saw the father in the past, and continues to see the maternal grandmother. He prepared three reports, at least one of which was relied on in the earlier proceedings. A number of statements made by him (for example, an opinion the mother is not controlled or controlling, or suffering from an obsessive compulsive disorder) were obviously responsive to advice from the mother about aspects of Dr. E’s reports, although he seemed not to have read the reports himself. His support for the mother can be gauged by his description of her, in a letter provided to Dr. E, dated 31 July, 2005, as calm, wise, mature, intelligent and respectable.
Single Expert Evidence
The mother was critical of Dr. E and unsuccessfully resisted an order for a reassessment of the parties by him in 2008. She deposed to being “resistant and afraid” of returning to see Dr. E and took issue with a number of statements which he attributed to her.
In her affidavit the mother deposed to using Freedom of Information legislation to obtain information from police, Medicare, banks and medical files to disprove what she saw as the father’s false evidence in the litigation. She seemed unable to differentiate between significant and insignificant errors. For example, she took time in her affidavit to complain that, in his second report, Dr. E’s summary of the 2006 consent orders was inaccurate. She complained that he said that the father’s contact with the child was to increase from Friday afternoon to Monday morning on two out of every three weekends when she started school (he spending time with her from Friday evening until Sunday evening until then) when, in fact, the increase was not to occur until she had been at school for twelve months.
Some of the mother’s complaints about the history given by the father to Dr. E were related to things said by him and some to things not said by him. Evidence supports a finding that the mother did experience significant health problems after a car accident shortly prior to the marriage, including chronic pain. Cross-examined, Dr. F referred to this pain but in the letter he wrote dated 31 July, 2005 (which the mother gave to Dr. E) he said nothing about that earlier car accident or that it was relevant to her account of back pain. That letter detailed the treatment provided to the mother and Dr. E was entitled to rely on it when assessing the evidence given by each of the parties about the back injury and the mother’s pain.
On occasions, the father presented a personal diagnosis to Dr. E as if it were a medical or psychological one; an example is his evidence that the mother suffered from obsessive compulsive disorder. The mother told Dr. E when she first saw him that she was concerned about pornography found on the father’s computer and also about material on the computer about obsessive compulsive disorder; in that first report, Dr. E observed that it did not appear “to have gelled with her” that the material might be referable to her. The father can be criticised less for his evidence relating to post-partum depression, which was an assessment based on a number of criteria which were referred to in discussion with a health professional. Nevertheless, I accept that the mother was never formally diagnosed with post-partum depression or OCD. I also accept that she was involved in tertiary studies after the parties’ marriage and the father gave her little credit for the effort involved in that, or in paid work.
It is clear that the father did not tell Dr. E of the few appointments he had had with a psychiatrist at one point, an omission on which I place little weight.
I am satisfied the father exaggerated the mother’s asserted obsession with cleanliness and that of her family and strove to paint her as a neurotic as well as a violent woman. I will deal further with evidence relating to violence, but the father’s capacity to take responsibility for his actions in those respects can be gauged from his evidence that, in his mind, pushing is not violence.
It was submitted that the errors (of omission and commission) in the history the father gave to Dr. E were fatal to Dr. E’s conclusions, a submission I do not accept. The evidence in his reports needs to be read in conjunction with his oral evidence. Dr. E was cross-examined at length and his evidence was cogent, lucid, insightful and objective. I place weight on it.
Ms. W’s qualifications are annexed to her report and were not challenged. She is a registered psychologist and her social work degree and experience renders her eligible for membership of the Australian Association of Social Workers. For 32 years she has worked with families and children, including a stint with the Department of Human Services and many years as a family consultant in this court.
As with Dr. E, the mother was critical of Ms. W, taking time in her affidavit to complain about conversations Ms. W had with the child and alleged failures to report the child’s wishes or, in sufficient detail, disclosures made by the child to her. She complained that Ms. W did not “adequately evaluate or interpret [the child’s] disclosures”.
I must find that the mother’s criticism of Ms. W had far more to do with dissatisfaction at her recommendations than with any objective grounds for complaint. Ms. W’s evidence was thoughtful and compelling and I place weight on it.
Ms. R is a child psychotherapist, and a registered psychologist; she has been a child psychotherapist for 17 years and has worked as a psychologist for more than 26 years. When she prepared her first report, dated 30 January, 2008, Ms. R had seen the child with her mother twice (after three earlier consultations with the mother alone) and the child alone on six occasions. By the time of the second report, dated 14 July, 2008, Ms. R had had thirteen more sessions with the child. When first cross-examined she initially said she thought she had seen the child on one or two further occasions but later said the last consultation was 7 July, 2008.
The role of a psychotherapist at the Gatehouse Centre is different to that of a psychologist or psychiatrist preparing a forensic assessment. As is routine, Ms. R never met the father and most of the background information conveyed to her, including advice of disclosures of sexual abuse, came from the mother. It is not her role to consider alternative scenarios or to challenge the parental account. Ms. R’s commitment to assisting and supporting the child was manifest.
Ms. R was cross-examined prior to Ms. W. As a result of evidence given by Ms. W, an application was made, and granted, to recall Ms. R. I must find that the evidence Ms. R then gave, and her demeanour in the witness box, raised concerns about her objectivity. I am satisfied she attempted at that time to interpret observations of the child on 21 April, 2008 to present a picture of the child behaving differently after spending time with her father and, as she struggled to do so, her analysis of the child’s behaviour became increasingly strained and her conclusions increasingly tenuous. Having observed this, I am satisfied some caution needs to be exercised when assessing her earlier evidence.
CHRONOLOGY
During the marriage : May 2001 to July 2004
It is probable the parties struggled to make their marriage work from the outset. The mother’s evidence was that :
During our marriage, the father would dominate our household. In accordance with our Middle Eastern traditions he would have to have “control”, which often led to domestic violence often over trivial matters. I would be blamed for it.
I cannot say if the mother’s parents, in whose home she lived prior to marriage and for more than two of years after separation, also follow the “Middle Eastern traditions” described.
Both parties told Dr. E that they had no sexual experience prior to marriage. The father told Dr. E that he viewed pornography in the context of sexual frustration in the marriage, a claim the mother said was “dishonest”. She alleged he had accessed and downloaded pornography prior to the marriage, too, which is probably correct. The father also attributed the purchase of a penis pump to a desire to improve his sexual performance so that aspect of their life would not be as unsatisfactory as the mother (according to him) found it. It is probable the problems in this area did not improve after the child’s birth and their sexual congress (Dr. E’s word) during the marriage was as infrequent as the father told him, being some twelve times in three years.
Listening to the parties’ evidence of physically tussling over the child as a baby, they gave the impression of having devised rituals or ways of behaving which allowed them, albeit in a tense and even hostile environment, to touch each other; the only way they seemed able to relate to each other was to push and shove and scratch each other. From an objective perspective, it is hard to see how either got any personal gratification out of their life together.
By 2003 the father was, he alleged, so scared of the mother’s potential for violence that he feared she would kill him in his sleep. He began secretly documenting his concerns, and gave his parents a sealed box, with instructions to open it if “anything happens to me”.
To prove that violence emanated from the other party, each of the parties sought to rely on letters written by the other during the marriage and the attendance of an ambulance and police on occasions. An ambulance was called after the mother suffered a blood nose on 6 June, 2004; a copy of the ambulance record notes a history that “pt said she was wrestling with her husband and pt was hit on the nose”. Unsurprisingly, the note records “no emergency” and no treatment. It is probable an ambulance was also called in 2003, sometime after the child’s birth. The father’s recollection was of the mother slipping and falling flat on her back when she was fighting with him but his account was jumbled and internally inconsistent.
The evidence of the mother was that the father was not always responsive to her attempts to include him in decisions about the child’s health or education. I accept her evidence of overtures, to which no responses were received. One of the difficulties faced by parents in a case such as this, is that the litigation commenced less than a fortnight after the parties separated and that first round did not resolve for 28 months. In the course of the proceedings very significant allegations were made by each of the parties against the other; the battlelines were clearly drawn as the parties and some members of their extended families litigated in this court and the Magistrates’ Court. A person charged with breaching an intervention order may be very cautious about any subsequent interaction with the person in whose favour the order was made. Nevertheless, I accept that the mother did try to keep the father involved in important aspects of their daughter’s care.
Despite her rhetoric, I cannot find that the mother wholeheartedly supported a relationship between the child and the father after separation. That needs to be put in the context of her view of the child’s father and one needs look no further than the allegations made to DHS in January 2005 to see how negatively he was viewed. She subsequently let go of a few of those allegations but the significant ones (sexual abuse and conduct indicative of sexual abuse and physical violence) were maintained.
As found, both parties failed the child by their apparent incapacity to protect her from the consequences of their own dysfunctional relationship. If the mother’s account of the father’s violence were accepted in full, her failure to remove the child from that environment would reflect very poorly on her and could not reasonably be explained solely by reference to “Middle Eastern values”. That she had financial, practical and emotional support from her parents is clear. Similarly, if the situation were entirely as described by the father, the same criticism could be levelled against him. In fact, both perpetrated violence and were the victims of violence. Both can be criticized for exposing the child to their violence and allowing it to impact directly, and indirectly, on her.
I am satisfied each of the parties has the capacity to meet the child’s physical and intellectual needs. Both still present as possessive of the child and both may struggle to acknowledge the other’s strong attachment and importance to the child. It is probable the mother, in particular, will struggle to accommodate a relationship between father and daughter which is not under her surveillance and control.
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from :
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The evidence of Ms. W satisfies me that the child has the psychological and emotional resources to cope with spending time with her father and then returning to her mother’s home. She is a resilient, articulate and loving child and there is no reason to doubt she could revert to an arrangement in which she spends frequent and regular time with her father and his family, and resides principally with her mother.
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The mother lives in the northern suburbs; the father in the south east of Melbourne. There is thus a reasonable distance between their homes. The child has started school and if she is to spend time with her father it is probable that school pick ups and returns, when possible, will minimise stress for her and the complexities of changeover arrangements.
An intervention order is still on foot and orders of this court should not be inconsistent with it unless necessitated by the child’s best interests. It will contain an exclusion for contact between the father and mother pursuant to orders of this court but the spirit of the intervention order should be maintained, as far as practicable.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Although now polarised, the child’s extended families on both sides are members of the Coptic community. It seems the immediate potential for direct hostilities (spelt out clearly in the transcript of the hearing of the application to extend the intervention order, in December 2006) has been minimised by the families now attending different churches. The child can learn about her rich cultural heritage in both homes.
(j)any family violence involving the child or a member of the child’s family;
(k)Any family violence order that applies to the child or a member of the child’s family, if :
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
I have made findings referable to family violence earlier and referred to the one remaining intervention order, which names the mother as the complainant and the father as the defendant, and which is current to the end of 2009.
A court needs to be cautious about finding that violence is situational; that is, in this context, finding that absent the unique dynamics of this marriage, neither party is prone to violence. Each has demonstrated a capacity for violence and cannot escape responsibility by blaming the other. Their violence has impacted adversely on their daughter’s life. Nevertheless, I do not find that either is now likely to be violent to the child or in her presence, or to third parties.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
From the parties’ perspectives, it must seem as if this litigation has been on foot since July 2004. In the course of the first set of proceedings they and the child met with Mr. P and Dr. E; in this round of proceedings they met with Ms. W and again with Dr. E. The child has been consulted and interviewed by a number of medical practitioners and police and spent many sessions with Ms. R. I have no doubt the litigation has impacted adversely on both parties’ enjoyment of life and caused them and their families considerable stress and anxiety. For the child’s sake, the litigation must end.
(m)any other fact or circumstances that the court thinks is relevant;
It is convenient to deal with the evidence referable to supervision here.
Ms. R’s evidence was that time with her father, in a safe context, was most likely to promote the child’s healthy development. Cross-examined, she made it clear that, in her expert opinion, it was in the child’s best interests to have contact with her father in a safe environment. By that she meant a supervised environment and it was her recommendation that supervised contact be introduced now. Ms. R had earlier recommended that supervised contact be introduced at a time and frequency in line with the child’s readiness; cross-examined, she said the child is ready herself and ready emotionally to have supervised contact with her father. She was opposed to a regime of no contact.
Ms. R’s evidence was that supervision was warranted by the child’s very clear and articulate statements about wanting to see her father and wanting him not to hurt her. She said :
I suppose the supervision is take account of the particular difficulties that may be present if her father is in a situation where he feels he cannot control urges of that sort, that’s where the safety provision needs to come in for the supervision. But I guess it’s for the court to determine whether there is that degree of risk.
Ms. R’s recommendation of supervised time is the recommendation of a child psychologist and child psychotherapist and arose from her professional expertise and experience. While not based on the legislative considerations it mirrored them, balancing the child’s perceived need and desire for a meaningful relationship with her father with the importance of ensuring her safety.
Although the mother sought to rely on Ms. R’s evidence supportive of sexual abuse, she submitted that the court should not follow Ms. R’s recommendation that the child have supervised time with the father.
Counsel for the mother cross-examined Ms. RRe at some length about her support for supervised time between the child and her father. Ms. R made it clear that in her professional opinion, and having weighed up the risks and the benefits, and considered the child’s overall development, she maintained her support of supervised time. She agreed that she would support supervised contact in conjunction with ongoing therapy. While she did agree with counsel for the mother that her recommendation was an equivocal recommendation, in the sense of a balancing of factors, and that no contact at all might be the safer or safest option for the child, she did not resile from her own recommendation.
Ms. R saw supervised time commencing at a contact service, initially fortnightly and perhaps shifting to weekly if there were a positive response.
Ms. R’s evidence was that the mother was upset when she learned that Ms. R had recommended contact with the father and concerned even though the recommendation was for supervised time. The basis for her distress was concern that supervised access meant a starting point and that unsupervised access would follow, leaving her daughter at risk.
Ms. R’s recommendation must be seen in the light of my earlier findings and the resultant qualification of her evidence.
Ms. W’s recommendation was for the immediate resumption of unsupervised time, if the court determined the child was not at risk of sexual abuse.
I do not find that supervision of the father’s time with the child is warranted; I am not satisfied she is at risk in his care.
Ms. R’s sessions with the child concluded in July 2008, but she spoke of seeing the child for another six or twelve months. However, if there were a determination by the court of no abuse then “it becomes an issue for the Gatehouse centre to continue involvement”. I am mindful of Dr. E’s caution about the potential harm which can be done if a child who has not been sexually abused, is brought up to believe that she has been. There is no doubt that the child has a view that her father has done something to hurt her and she has been given an opportunity to express that view.
In my judgment the child needs time to settle. The court could not rule out an improvement in her emotional functioning consequent upon a renewed relationship with her father. She is at school and will be monitored there. I am not satisfied she should recommence therapeutic counselling with Ms. R, even if the Gatehouse Centre would accommodate it.
Reference was made for the potential for the mother to obtain some counselling to assist her were orders to provide for the child to spend time with her father. If the mother seeks to do so, I have no doubt that Dr. N or Dr. F would be able to assist with an appropriate referral. I do not propose to order her attendance or make it a condition or any parenting orders made. It is important that she, and the father, each do all they can to ensure that there is not further litigation, in this or other courts, as that has a capacity to impact on their parenting capacity and, indirectly (and on occasions, directly) on the child.
PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY
The orders made by consent in 2006 provided for equal shared parental responsibility for the child. I am not satisfied an order in those terms is viable, being clearly contrary to the child’s best interests. I place weight on Ms. W’s opinion in this respect and on the complete lack of a parental alliance. The only practicable solution is for the parent with whom the child primarily lives to have sole parental responsibility for her. Orders can provide for the other parent to be kept informed of important aspects of her education and health and allow active involvement in her schooling.
Having made that finding it is not necessary to consider whether spending equal time with both parents is in her best interests or reasonably practicable.
CONCLUSION
The father sought the reinstatement of the 2006 orders, with the addition of time during term school holidays. Pursuant to those orders the child would spend two out of each three weekends with him. The ICL proposed less time, being alternate weekends during school terms. I am satisfied that arrangement is more likely to foster the child’s best interests. In making that finding I take into account the capacity of orders in those terms to maintain a meaningful relationship between the child and her father and the importance of minimising the stress on the child’s primary residence parent. It is probable the mother will be extremely stressed and anxious when the child is with the father and there is little the court can do to ameliorate that, having found such time to be in the child’s best interests.
I do not find it practicable to make final orders which would preclude the father from ever playing any role in bathing or toileting the child. The motive for the advancement of that order was sound, being to protect the father, ameliorate the mother’s concerns and reduce stress on the child. The ICL made it clear that the order was not sought on the basis it was necessary to guard against any risk. While not a factor I take into account when declining to make an on-going order in those terms, the court can note that no evidence advanced by the mother suggested the child had been sexually abused when being bathed or toileted.
The child is now almost six. Children of that age can still need assistance, on occasions, when bathing or showering. The father presently lives with his parents and has for some years but the court cannot act on the basis he will always do so. It can proceed on the basis that he will be living there during initial periods of time with the child, pursuant to fresh orders.
Although the mother has not been prepared to allow the paternal grandparents or other members of the father’s family to spend any time with the child since the father’s time with her was suspended, as she viewed them as complicit in his abuse, I am satisfied that the paternal grandmother would take very seriously any order which would require her specific presence at particular times. The paternal grandmother played a role in caring for the child prior to the separation, as did the maternal grandmother. Nothing in the evidence satisfies me that the paternal grandmother would not be diligent in protecting her grandchild from harm or the risk of harm. I am satisfied it is also probable that she would understand the protection offered to her son by any initial requirement for her presence, or short term limitation on his involvement in bathing the child.
I have not ignored the mother’s evidence of the nightmares the child is said to experience and the child’s account of some nightmares. It is possible the reintroduction of her father into her life, in the absence of overt parental conflict, will lead to a reduction in those nightmares. They do not appear to be impacting on the child’s physical, social or intellectual development.
The orders proposed by the ICL involved initial time between the father and the child on a Sunday. I am mindful of the role that church attendance has played in the lives of the child and the parties and that Sunday School occurs on a Saturday afternoon, at least on occasions. There is thus the potential for any orders to impact on the child’s present routine. It will be easier once she spends whole weekends with her father, as she can follow each of her parent’s routines on the weekend she is with each of them; as they now attend different churches, that should not lead to conflict. I am satisfied the father’s initial contact should be on a Saturday which will allow the mother to follow her usual routine with the child on the following Sunday. That may be to the child’s advantage.
I am satisfied the child should spend time with the father from 10:00 am. until 2:00 pm. on Saturday 21 March, 2009 and from 9:30 am. until 5:00 pm. on the following two Saturdays, being 28 March and 4 April. The last day of the Gazetted first school term is Friday 3 April, 2009 so the child will see her father on the first day of the school holiday period.
In the Western church 10 April, 2009 is Good Friday but the Eastern church observes Easter a week later. The second school term is Gazetted to commence on 20 April.
The child will be with the father from 9:00 am. on Saturday 11 April until 5:00 pm. on Sunday 12 April, 2009. She will be on holidays at that time. Commencing on the first weekend of the second school term, the child will have time with the father during school terms on each alternate weekend, from the conclusion of school on Friday until the commencement of school the following Monday. Orders in those terms will allow the father to be involved in her school life and minimise the potential for tension at changeovers.
I appreciate that orders in these terms will mean that the father does not see the child on the weekend on which he and his family observe Easter this year. However, the focus of orders must be on the child’s best interests, not the wishes and desires of her parents, and I am satisfied that is likely to shield the child from a potential source of tension soon after contact is reintroduced.
Commencing with the school holiday period between the second and third terms in 2009, the child will spend a week with her father during term breaks and two weeks with her father during the summer school holiday period. Orders will also provide for time with each parent on her birthday on (respectively) Fathers’ Day and Mothers’ Day and at Christmas and Easter. Orders will also provide for the child to communicate with the father by phone no less than twice a week, by correspondence, and by email. The mother will be able to read email correspondence.
The ICL proposed that the father be restrained by injunction from accessing or viewing pornography whilst the child is in his care. I do propose to make an order in those terms.
Orders will provide for the father to obtain information about the child’s progress at school and her health. As from 2010 he will be able to attend events, activities and functions routinely attended by parents which are at her school. The mother will be required to keep him advised of any change in the child’s school but will have sole responsibility for decisions relating to the child’s education.
The ICL sought an order in the following terms :
That the Mother shall ensure the child receives therapeutic assistance in relation to any issue that arises for her in relation to the time spent with her father, and where consistent with the child’s best interests, the Father and Mother shall both be given the opportunity to participate in a therapeutic process at the discretion of the therapist.
I find it probable that an order in those terms would be fraught with potential for confusion as to its meaning. Having regard to the findings in respect of the allegations of sexual abuse, it is unlikely the Gatehouse Centre would offer further therapeutic counselling to the child. Whether it would or not, I am satisfied it should not. There is no evidence the child has regressed since ceasing contact with Ms. R in July 2008. Orders will restrain the mother from taking the child for counselling or any form of therapeutic intervention which is premised on her having been sexually abused or being at risk of sexual abuse, save if directed to do so by DHS or police. Orders will require the mother to advise the father, in writing, of the name of any medical practitioner, psychiatrist, psychologist, counsellor or like professional to whom the child is taken for any intervention which does not relate to illness, injury or a medical condition. Orders will require the mother to authorise any such treating professional to discuss the intervention with the father and allow the father to be involved in it.
To minimise the potential for fresh allegations, and notwithstanding my finding that supervision is not necessary to protect the child from a risk of abuse, I propose to order that the paternal grandmother supervise the first three periods of time between the child and her father and be in substantial attendance for the following three periods. By supervision I mean that she should be present at all times; at all times she should be in a position to observe the father and the child and she should ensure that the door to the child’s bedroom is open, as is hers. I make it clear that the purpose of such an order is not to guard against the potential for the child to be abused by the father but to protect him against further allegations. It may offer a modicum of comfort to the mother, although I am not confident about that.
Changeovers remain of concern. In the past both families have videotaped aspects of these. From 24 April, 2009 all weekend changeovers will occur at the child’s school and orders can prescribe the mother’s attendance, or the attendance of her agents, such as members of her family, when the father is collecting or returning the child. Similarly, orders can restrain the father and his agents from attending the child’s school at the beginning or close of a school day on which he is not collecting or returning the child, unless (from 2010) an event, activity or function routinely attended by parents is occurring at that time. The child must be protected from hostile interaction between her parents and between members of her parents’ families. To that end I propose to restrain both parties from videotaping or recording changeovers, as the signal such activity is likely to give the child can only be detrimental to her welfare. It is time the parties focused on the child rather than on evidence collection.
I propose that someone other than the father collect and return the child until weekend changeovers both commence and conclude at the child’s school in late April 2009. That will involve only a few changeovers. The paternal grandmother would be ideal, accompanied by her husband or a daughter, or a friend. While that may be an onerous obligation, I am satisfied it is likely to minimise stress on the child and it will only occur on a few occasions.
The venue when changeovers are not at school needs to be determined. Ideally, the child should be delivered to the father’s home at the commencement of a period of time and returned to the mother’s at its conclusion. As a fall-back, orders will refer to M and O police stations but it is to be hoped the parties can do better than that.
The ICL proposed that the child spend time with the father during the summer school holidays from 22 December until 5 January in one year and 9 January until 23 January in the other. Other orders related to the child spending time with the father on “Orthodox Christmas”.
Although no specific evidence was adduced about the Coptic calendar, the court hears many cases which involve adherents of the Eastern church and routinely makes orders premised on Christmas being celebrated on 7 January. The maternal grandmother’s evidence was of such a celebration of Christmas Eve on 7 January, 2008. If that is correct, the order proposed by the ICL would mean that the child would only ever spend that time with the father pursuant to the default provision (1:00 pm. until 5:00 pm.) rather than the immediate lead-up to and bulk of time on Christmas Day. Given the importance of religion to both parents, the child will benefit by being able to spend Christmas Eve and Day with each parent in alternate years, with the capacity to spend time with the other parent on the evening of Christmas Day and the following day.
To achieve this the child will be with the father from 22 December, 2010 until 5 January 2011 and each alternate year thereafter, and from 5 January 2010 , until 19 January in 2010 and each alternate year thereafter. Unless the parties make an arrangement to the contrary, she will spend time with the parent with whom she is not living in that period from 5:00 pm. Christmas Day until 5:00 pm. the following day.
Orders providing for time at Easter are potentially more complicated, given the Coptic calendar. As with other Christian calendars, Easter is a movable feast. In some years it falls on the same day it is celebrated in the Western Church but on others it does not. By way of illustration, Easter Sunday falls on the same day in 2010, 2011 and 2014. The Coptic church celebrates a week later in 2009 and 2012 and in 2013 the dates are divergent, the Coptic church celebrating on 5 May and the Western churches on 31 March. This means that in some years Coptic Easter will fall within what is commonly called the Easter holiday period (the holiday at the end of the first school term) but in other years it will not. The court can take this into account, however the parties cannot rely on orders to take account of every potential variation and will need to learn to accommodate these vagaries and negotiate arrangements themselves.
I certify that the preceding
418 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.
Dated the day of 2009.
…………………………………………
Associate.
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