Holgate and Wray (No 2)

[2018] FamCA 908

FAMILY COURT OF AUSTRALIA

HOLGATE & WRAY (NO 2) [2018] FamCA 908

Sexual abuse - severe family violence - unacceptable risk - failure of party to attend proceedings - sole parental responsibility - children to live with the mother

APPLICANT: Ms Holgate

RESPONDENT: Mr Wray

INDEPENDENT CHILDREN’S LAWYER: Ms Waters

FILE NUMBER: CAC 1395 of 2015

DATE DELIVERED: 8 November 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 8 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Elringtons

SOLICITOR FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid ACT

Orders

1. The Consent Orders dated 15 September 2015 are discharged.

2. The Applicant Mother have sole parental responsibility for the children, X, born … 2011, Y, born … 2012 and Z, born … 2014.

3. The children live with the Mother. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Y & Wray (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1395 of 2015

Ms Holgate

Applicant

And

Mr Wray

Respondent

REASONS FOR JUDGMENT

Background

1. The Applicant Mother in these proceedings is Ms Holgate; the Respondent Father is Mr Wray.  The parties have three children, X, born in 2011, Y, born in 2012, and Z, born in 2014.  The parties commenced their relationship in 2009, married in 2011 and separated on a final basis in June 2015.  The parties are not yet divorced.

2. The Mother stated that following separation, the Father spent one day per week with the Children.  This was initially 10:00am to 4:00pm on Wednesdays pursuant to Orders made 15 September 2015, and subsequently 9:00am to 3:00pm on Saturdays pursuant to a Parenting Plan made in February 2017.

3. The Mother is seeking orders that the consent orders of 15 September 2015 be discharged, that she have sole parental responsibility for the children and that the children live with her.

4. The Father did not file any material in the proceedings, despite being on notice of proceedings.  The Father attended in person on 11 September 2018, at which time he was directed to file and serve a Response within 14 days of that date.  He failed to do so, and the matter was listed for 10 October 2018, at which time the Father failed to appear.  The matter was set down for hearing on 8 November 2018.

Material Relied Upon

1. The Mother relied upon the following:

   a)Amended Initiating Application filed 17 October 2018;

   b)Affidavit of Ms C filed 15 May 2018; and

   c)Affidavit of Ms Holgate filed 15 May 2018.

   d)Tender bundle

   e)Evidence of sending amended application to the Father

Major Issues and Factual Contentions

Unacceptable Risk of Sexual Abuse

1. The Mother predicated her position as to final orders on the alleged behaviour of the Father, suggesting that he posed an unacceptable risk of family violence, in the form of sexual abuse, to the children.  The Mother particularised this as stating that the Father had inappropriately touched X’s genitals, and had put his penis in Y’s bottom and mouth, and forced Y to touch his penis.

2. The Mother stated that the children had made a series of disclosures to her, the most significant being:

   a)On 13 April 2018, Y (then aged five) stated to his paternal great aunt that, ‘Daddy tried to put his penis in my bottom” and “he wanted me to put his penis in my mouth”;

   b)On 20 April 2018, Y stated to the mother that, “Daddy make me wash his penis” and “Daddy put his penis in my mouth”;

   c)In August 2017, Y was involved in an incident at his child care where he pulled down another child’s underwear and bit her genital area. When asked why he had done this, the Mother stated that Y said, “Because Daddy bites me there”; and

   d)In May 2016, X (then aged six) started rubbing a bath toy between her legs and said words to the effect, “Daddy touches me here”.

3. The Mother said that subsequent to these disclosures being made, she became aware that the Father had been the subject of numerous reports to authorities regarding his improper conduct around children.

Y’s April Disclosures

1. The Mother described the events surrounding Y’s disclosure on 13 April 2018 as follows.[1]

   [1] Affidavit of Ms Holgate filed 15 May 2018 [17]-[34].

2. On 13 April 2018 Y and Y’s paternal great aunt Ms C, were at the Mother’s home whilst the Mother went to collect dinner.  Upon the Mother’s return, Ms C reportedly told her that Y had been reading a book called “A Secret Safe to Tell” and had said to Ms C that he had a secret.[2]  Ms C then said, “he [Y] said that he could not tell mummy because she would be unhappy but he eventually told me that [Mr Wray] had put his penis in his bottom and he also said that [Mr Wray] had tried to put his penis in his mouth… Y said he told daddy ‘no’.”

   [2] Affidavit of Ms C filed 15 May 2018 [14]-[15].

3. The Mother reportedly travelled with Ms C and Y to the E Town Police Station.  There, they were advised that the City Police Station was the more appropriate location, and so they returned home, dropped Y home as it was later in the evening, and went to the City Police Station.  Statements were taken at this point.

4. On 14 April 2018 the Mother took Y for an interview with SACAT officers at F Town Police Station.  The Mother reported that after the approximately one hour interview, one of the officers said to the Mother words to the effect:

   [Y] has confirmed to us what has happened and made a disclosure to us. However, when we asked him other question he struggled to answer all of them correctly. For example, we asked [Y] whether I was wearing a pink or blue shirt which he answered correctly. However, when we asked him what colour the shirt my colleague was wearing he did not answer. This is an example of something that makes us concerned as to whether a child knows the difference between a truth and a lie.[3]

   [3] Affidavit of Ms Holgate filed 15 May 2018 [27].

5. The Mother questioned the significance of this, to which the officer reportedly stated, “at this stage I cannot say that we will be taking the matter further.  We are not saying that it did not happen but we are saying that at this point in time we are not sure there is enough to proceed with a criminal matter.”

6. The Mother reported that she was unsure how to deal with the issue, and so agreed to let the Father take the children for dinner on 20 April 2018 and to spend time with the Father on 21 April 2018.

7. The Mother stated that on the evening of 21 April 2018 she was driving with Y, when Y said words to the effect, “I got chocolate on my face. Daddy made me wash his chocolate off in the bathroom. Daddy made me wash his penis”.  The Mother believed she replied, “ok?” to which Y replied, “I did.  Wash it.  Daddy put his penis in my mouth.”

8. That evening the Mother contacted ACT police and took Y to the Suburb G Police Station.  There, reportedly in the presence of the Mother and a police officer, Y stated “Daddy put his penis in my bottom and it hurt”, at which point a detective asked the Mother to take Y to a child protection unit at the H Hospital. 

9. Later that evening Y was seen by the unit.

10. On 23 April 2018 Y was again interviewed by SACAT officers and two officers from ACT Care and Protection.  The Mother stated that following the interview, a police officer stated to her words to the effect, “[Y] made disclosures to us in the interview.  There will be an investigation into this.  We will need to arrange for you to bring in the other children.”

X’s behaviour in 2016

1. The Mother stated that she observed a change in X’s behaviour in mid-2016.[4]  At this time, she reportedly observed that X, after visiting her Father, would rub toys up and down between her legs, and for a time refused to wear underwear.  X would also reportedly cuddle with the Mother, and lay in the Mother’s lap, and as the Mother was patting her, X would move her hand to her genital area.  The Mother would stop patting X at this time.

   [4] Affidavit of Ms Holgate filed 15 May 2018 [27]-[46].

2. The Mother related three incidents as occurring around 18 May 2016.  The Mother’s mother (‘maternal grandmother’) was reportedly bathing X, at which time the maternal grandmother said to the Mother, “X is doing strange things with the bath toys.  She is squirting and rubbing them up and down between her legs.  She even stood up to show me saying ‘I’m squeezing it out… I asked her why she was doing it and where she had done this before and she said at Daddy’s”.

3. The Mother stated that later that week she found X touching herself between the legs after a shower.  The Mother said to X, “X, I’m not sure you should do that.  Nobody should really touch you there”, to which X responded, “Daddy touches me here.”

4. Later again that week, X was reportedly found by the Mother trying to insert soap into her vagina.  When asked as to why, X remained silent.  The Mother asked whether X bathes at the Father’s house, to which X replied yes, that her Father washes her, and that she and sometimes Z are in the bath.

5. The Mother stated that she found this odd, given the children only spend one day-time period with the Father, and always attend the Father’s house clean.

6. The Mother stated that X’s behaviour continued for a period of approximately 12 months, but that X would cease her behaviour when asked to by the Mother.  The Mother stated that she reported X’s comments to Care and Protection at the time.

Y’s incident at the child care

1. The Mother related an incident occurring on 4 August 2017,[5] where Y was involved in an incident at his child care.  He reportedly pulled another toddler’s pants down and bit her genital area.  When questioned as to why he had done this, he stated “Daddy bites me there.”

   [5] Affidavit of Ms Holgate filed 15 May 2018 [47].

Mother’s concerns regarding the father’s prior and current behaviour

1. The Mother noted a number of concerning issues in relation to the Father’s alleged behaviour:[6]

   [6] Affidavit of Ms Holgate filed 15 May 2018 [52]-[67].

   a)That in late 2011 the Mother found a number of photographs of young children on the Father’s computer.  When questioned as to their existence, the Father reportedly stated, “no idea, why are you going through my stuff anyway?”

   b)That due to the parties’ devices being linked via Apple ID, the Mother has had a number of teenage pornography websites show up on her devices.  She did not raise these matters with the Father;

   c)In late 2011 the Mother found a photograph on the Father’s computer that appeared to be of a man with his penis on a baby.  The Mother ‘freaked out’, deleted the photo and shut down the computer.  The Father reportedly later stated to the Mother, “what have you been doing on the computer? There are things missing now”, to which the Mother responded, “nothing. All I did was turn the computer off.”  The Father apparently gave this computer to his son Mr D shortly thereafter;

   d)In 2015 the Mother was advised that the Father had been fired from his previous employment at B Centre which involved working with children.  A Ms J reportedly told the Mother she believed the Father was fired “for taking photos of some of the kids”.  A Ms K, a Director of the centre, reportedly provided the Mother with a signed statement, saying:

   [Mr Wray] Wray worked at [B Centre] around 2000 ... During his time there it was brought to the attention of the Authorised Supervisor that his interaction with some of the children was inappropriate. [Mr Wray] was dismissed immediately and the Police were called. There was a Police investigation; however, I do not know the outcome of that.

   e)In or around 2016 the Mother came to be in contact the Father’s former partner, Ms M.  Ms M advised the Mother as follows:

   [My daughter] was nine at the time he [the Father] assaulted her.  My son who was also sexually abused by him, was five at the time.  He is now 16 but I don’t know how much he remembers.  They both spent years in therapy.  I’m still there.  I haven’t spoken to him since mid-way through 2005.

   f)In late 2017, the Father’s sister, Ms N Wray, informed the Mother that the Father had a son, Mr D, from a previous relationship.  Ms Wray reportedly told the Mother than Mr D had disclosed to her that the Father had “done something sexual to him” when Mr D was in primary school, and that Mr D had said that the Father “put his penis in [Mr D’s] bum.”

   g)The Mother also stated that he believed the Father to currently be in a relationship with a Ms O, with whom he commenced a relationship in 2016 at a time Ms O was 15 or 16 years old.  The Mother stated that in 2013, Mr D and Ms O (who was Mr D’s girlfriend at the time) stayed with the parties for a period of two or three months.  At that time Mr D was approximately 15 years old, and Ms O was 13 years old.  The Mother stated that the Father’s brother, Mr P Wray, informed her that in late 2014 he, the Father, Ms O and Mr D went swimming, and the Father was touching Ms O “in a way that made me [Mr P Wray] very uncomfortable.”  The Mother stated that in late 2015, post-separation, Mr D and Ms O lived with the Father.  In 2016 Mr D moved out, at which point the Father and Ms O continued to live together.  The Mother reported that in late 2016 the Father’s sister, Ms N Wray, stated to the Mother, “[Mr Wray] [the Father] announced that he and Sam [Ms O] are together now.  Mum and I reported it to the police because I don’t think he can do that with a 16-year-old.’’  The Mother stated that the Father told her solicitors that Ms O is currently pregnant with his child.  The Mother believes that Ms O fell pregnant when she was 17 years old.

Subpoenaed material

1. Material was produced under subpoena and incorporated into the Mother’s tender bundle.  It is not necessary to deal with this material at length.  Saliently it contains reports from an unknown person in 2005 reporting that her child had reported the Father sexually interfering with him, and that she had walked in on the Father holding the child down naked with his hands tied, with the Father having an erection.

2. Further material was produced involving a complaint by a person by his father, the Father, of multiple instances of severe sexual assault.

3. Although this material is limited, in the sense that the identity of each complainant is not disclosed, nor is the evidence on affidavit, it is consistent with the concerns raised by the Mother as to sexual risk.

Family Violence

1. The Mother alleged that on a number of occasions the Father engaged in family violence. Family violence is defined at s 4AB(1) of the Family Law Act 1975 (Cth) as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful’.

2. Specific examples of behaviour that may constitute family violence are given at s 4AB(2), which includes, relevantly here, assault,[7] sexual assault,[8] stalking,[9] and financial control.[10]

   [7]Family Law Act 1975 (Cth) s 4AB(2)(a).

   [8]Family Law Act 1975 (Cth) s 4AB(2)(b).

   [9]Family Law Act 1975 (Cth) s 4AB(2)(c).

   [10]Family Law Act 1975 (Cth) ss 4AB(2)(g), (h).

3. The Mother outlines a significant number of instances of family violence committed against her by the Father.  

4. The Mother describes a number of instances of sexual violence, including compelling the Mother to have intercourse when she did not want to.   The Mother also outlined instances where the Father commenced to have intercourse with the Mother despite her refusal, where she ultimately acquiesced.   The initial refusals mean that the conduct constitutes serious instances of sexual assault.   This is not necessarily ameliorated by later acquiescence.   Acquiescence is not necessarily to be taken to be consent, particularly under the described circumstances.

5. In November 2010 the Father assaulted the Mother and locked her in a storage unit.

6. The Mother describes an incident in October 2011 where the Father had anal intercourse despite the Mother’s refusal, and continued despite the Mother screaming, crying, and indicating her ongoing lack of consent.

7. The Father, in early 2014, set up the Mother’s telephone in a manner that meant he was able to keep track of what she was doing on the phone, and see her geographic location.  He was also able to see when the Mother had contacted lawyers and other persons.

8. The Mother recounts that during 2015 the children returned with a number of injuries following spending time with the Father, although none of these could be specifically connected to family violence.

9. The Mother outlines threatening behaviour by the Father, accompanied by an assault in June 2015,[11] and threatening and intimidating behaviour toward Y. At this point the Mother sought to leave the home with the children, but the Father took Y and hid the children’s passports and birth certificates.

   [11] Affidavit of Ms Holgate [106]

10. The Mother also describes financially abusive behaviour by the Father, whereby she was left with inadequate resources to support herself and the children.

11. The parties then separated. 

Care arrangements

1. In September 2015 final orders were entered into by consent, which allowed the Father daytimes with the children each Wednesday.  This was modified by agreement in February 2017 to spend time each Saturday with the children.

2. The Father is currently not spending any time with the children.

3. The Mother has outlined appropriate arrangements for the care of the children.  She has secured appropriate and stable accommodation.

Discussion

1. The Father has not filed a response.  He has failed to contradict the Mother’s evidence.  Under those circumstances her evidence may be more readily accepted.

2. Her evidence speaks to her being the subject of terrible family violence and to the subjection of Y to family violence in the form of sexual abuse.  Y’s descriptions as reported by the Mother forms an adequate basis to conclude that he has been sexually abused by the Father.

3. The evidence speaks to a strong risk of harm to the children should they be in contact with the Father.  Even without having recourse to the description of injuries to the children, or potentially sexualised conduct of X, the abuse of Y and of the Mother means that the Father poses an unacceptable risk of harm to the children.

4. Where he has sexually abused Y, any contact with the Father carries with it the risk of further emotional harm to Y.

5. Where the Father has acted in such a deleterious manner to Y and the Mother, it should not be taken that meaningful relationship with him will carry significant benefits for the children.  His capacity to nurture the children, or to provide a relationship of some value to the children is demonstrably absent given his conduct toward the Mother and Y in particular.  It is not in the children’s interests to have contact with him.

6. The circumstances of family violence mean that there is no applicable presumption in favour of equally shared parental responsibility.  The sexual abuse of Y, and the serious violence perpetrated upon the Mother mark the Father out as a person ill-suited to making decisions in respect of the long term issues for the children. 

7. Given that it is not in the children’s interest to have contact with him, the sole responsibility for the raising and nurturing of the children will fall to the Mother. 

1. Given the above circumstances, it is appropriate that the Mother have sole parental responsibility.

2. It is not appropriate that any provision be made for the father to spend time with the children.

3. Orders will be made in accordance with the Mother’s amended Initiating Application filed 17 October 2018.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 8 November 2018.

Associate: 

Date:  8 November 2018