Hollywood and Harper

FAMILY COURT OF AUSTRALIA

HOLLYWOOD & HARPER

[2007] FamCA 1063

FAMILY LAW – CHILDREN – Sexual or emotional abuse – Preliminary determination of primary question – Positive findings – Unacceptable risk – Judgment delivered – Parties agree to orders

APPLICANT:

MR HOLLYWOOD

RESPONDENT:

MRS HARPER

FILE NUMBER:

BRF

2776

2005

DATE DELIVERED:

25 July 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

The Honourable Justice Jordan

HEARING DATES:

23-26 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr George

SOLICITOR FOR THE APPLICANT:

Family Law Doyle Keyworth & Harris

COUNSEL FOR THE RESPONDENT:

Mr Byrne

SOLICITOR FOR THE RESPONDENT:

Brown & Baker

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr McGregor

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Carter Naughton Rice

Orders

IT IS ORDERED BY CONSENT THAT

Orders be made in accordance with the Minutes of Consent Orders attached hereto.

Pursuant to s65DA(2) and s62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

MINUTES OF CONSENT ORDERS

IT IS ORDERED BY CONSENT

That all previous Orders relating to the child …born … June 2000 be discharged.
That the child live with the mother.
That the mother and the father jointly make decisions concerning the long term care, welfare and development of the child.
That the decisions concerning the day-to-day care, welfare and development of the child be made by the parent in whose care the child is.
That the father spend time with the child at all such reasonable times as may be agreed between the parents, with such contact to include:-
(a)    Each fourth weekend (except during school holidays) from 6:00pm Friday until 4:00pm Sunday (Qld time) commencing 3^rd August 2007;
(b)    For the first week of the September NSW school holidays in each year commencing at 9:00am on the first Saturday of that period and ending at 5:00pm on the middle Sunday of that period, but this period shall commence on 22 September 2007 and conclude on 30 September 2007;
(c)    For one (1) week in each Christmas NSW school holidays, being the week commencing at 9:00am on 19 December 2007 and ending at 4:00pm on 26 December 2007 and in each alternate year thereafter and the week commencing at 9:00am on 27 December 2008 and ending at 4:00pm on 2 January 2009 and in each alternate year thereafter (Qld Time);
(d)    For the whole of the NSW Easter school holidays from 5:00pm on the last school day until 4:00pm on the Sunday before school resumes in 2009 and in each alternate year thereafter (Qld Time);
(e)    For the first week of the NSW June/July school holidays in each year (commencing in 2008) commencing at 9:00am on the first Saturday of that period and ending at 5:00pm on the middle Sunday of that period;
(f)    By telephone on at least one (1) occasion each week on Sundays at 5:00pm (or on the following evenings at that time if the father is rostered to work on Sunday) as well as on the child’s birthday, the father’s birthday, Easter Sunday, Christmas Day and Father’s Day - the father to initiate such calls to the mother’s landline telephone number;
(g)    That in the event that the father is unable to exercise contact in the September school holidays, contact for one week in lieu thereof will occur in the Christmas school holidays by agreement between the parties and failing agreement, contact will occur the 2^nd week after the Christmas holiday contact period as specified in 5(c) above.
That the changeover point for all contact be at the paternal grandmother’s home at M with the Mother to deliver the child to and collect the child from that residence.
That the paternal grandmother supervise any time spent by the father with the child, and in her stead for short periods of her inability to provide such supervision one of the following: Mr J Hollywood, Ms S, Mr B or Ms H.
That in the event that the paternal grandmother is unable to supervise contact for more than a short period an alternative supervisor must be agreed between the parties before contact takes place.
That when the child goes to sleep at night her sleeping quarters will be locked off from access to the father.
That each parent encourage and facilitate telephone calls between the child and the other parent whilst the child is in their care.
(a) That each parent keep the other informed of their current residential address and mobile and landline telephone numbers and any available e-mail addresses and advise the other parent of any change thereto within seven (7) days of such change.
(b)That either parent give to the other 30 days written notice of any intention to move to a location beyond 200 kilometres of their current residence.
That the Respondent mother and the child be allowed to re-locate to regional NSW.
That the Father undertake and complete a PPP Parenting course as soon as possible.
That these Orders be sufficient authority for any school or health professional attended by the child to provide to the father, at his cost, any information pertinent to the child’s progress and development.
That the father be entitled to attend at all of the child’s school events - including activities such as school concerts, sports days, parent/teacher interviews and the like.
That each parent keep the other informed as soon as is possible of any medical emergency or treatment involving the child - including details such as the name and telephone of the hospital and the treating medical practitioner.
That neither party will discuss with the child or within her hearing any matter pertaining to this proceeding.
That the Child Representative be discharged.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Jordan delivered this day will for all publication and reporting purposes be referred to as Hollywood & Harper.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 2776 of 2005

MR HOLLYWOOD

Applicant

And

MS HARPER

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

Yes, ladies and gentlemen, before I commence the judgment proper, there are one or two things I think it is appropriate I record. As I have indicated on a couple of occasions during the course of these proceedings, these types of cases are inherently difficult and, in this case, it is particularly difficult. The reality is, in all of these cases, that there is only one person in this Court who knows the truth about what has, or has not, happened to the child and that is, of course, the father. The rest of us are guessing and doing the best we can.
The onerous task that now falls to me is to do the best I can to try and provide these parties and, more importantly, the child, with the most appropriate outcome in all the circumstances. I do not profess to have any magic wand, I do not profess to know the truth, and all I can say to the parties, and through them eventually to the child, is that I have applied my mind to the heavy responsibility I have. I have done the best I can and reviewed all of the evidence relevant to this point. In this case, I have received invaluable assistance from the legal representatives for each of the parties and the Independent Children's Lawyer. As grave as the consequences of the Court's determinations in these matters are always going to be, I trust everyone will bear that in mind.
It is my intention at the conclusion of this judgment to stand the matter down until tomorrow morning to enable the parties, in consultation with their legal representatives, to consider the implications of the findings that the Court will make and to determine what matters may be capable of resolution as a result of such determinations and what matters will remain for determination by this Court.
Now, to deal with the judgment in relation to the discrete issue, I need to observe as follows. This case concerns the welfare and future of the seven year old child of the parties. There are competing applications for various parenting orders before the Court and, within that context, the mother produces evidence indicative of serious sexual abuse of the child by her father. The father strongly denies those allegations and asserts serious emotional abuse of the child by the mother, in that he contends that the mother has pressured the child to make false allegations of sexual abuse against her father and then subjected the child to the burden of enduring the extensive consequential investigations and limited contact with her father. He asserts the mother did so to meet her own needs to have the relationship between the father and daughter reduced or severed.
The mother asserts that, as a consequence of the sexual abuse concerns, any future contact between the child and her father should be limited, supervised and safe. The father contends that the mother's conduct is so harmful and reprehensible as to justify, if not require, the child's immediate removal from such harmful influences and the placement of the child in his full-time care.
The child and each of the parties are legally represented and it was agreed that, on the facts of this case, given the gravity of the alleged abuse raised by each of the parties, the age of the child, the history of care and matters of logistics, the Court's findings on these competing applications were likely to be largely, if not entirely, decisive in determining all remaining applications before the Court.
With the agreement of all concerned, it was determined that this was a matter where it was both viable and appropriate to hear the case relating to sexual abuse or, in the alternative, emotional abuse, as discrete issues, and that such inquiry should proceed first in time and proceed to judgment, with a view of enabling the parties and their legal representatives to then consider the viability of pressing the remaining issues.
A determination of the issue of the mother's alleged emotional abuse of the child necessarily turns upon a consideration of the bona fides of the mother's own case on the issue of sexual abuse, and that latter issue will necessarily be the primary focus of these abridged deliberations. In that context, I need only provide a brief description of the background of the matter so that there is an understanding of the people involved.
The parties commenced cohabitation in about April of 1999, separated later in that year until January of 2003, and finally separated in October of 2003. The child was born in June 2000 and was, therefore, some three-and-a-half years of age at the date of separation. The mother has three children by previous relationships, two of whom feature in this matter. E, who is now an adult child, is married and, I believe, living interstate. O is her 18 year old son, who has been resident with the mother and the child at least for the bulk of the child’s life. The mother re-partnered one, Mr K, in about April of 2005.
At all material times, the father has been employed by a transport company and this has resulted in him being stationed at various points throughout Queensland. At the time of the final separation, the mother remained in rural South-East Queensland with the children and, at about that time, I believe the father had been transferred to the Fraser Coast. The father was required to work long shifts and this made the prospect of regular contact difficult for all concerned. However, as I understand the evidence, in the early weeks and months after separation, the parties were able to successfully negotiate contact as regularly as could be organised, having regard to the father's work commitments, so that he would see the child every few weeks, sometimes for up to two nights at a time. He would drive to the child's residence to collect the child and then most often take her to his parent's home either in Brisbane or on the Sunshine Coast. These casual and largely successful arrangements for contact continued until about the middle of July 2005 when, according to the mother, issues of potential abuse were acted upon.
Before I examine the evidence on these important issues, I should make brief mention of the proper approach of the Court on such matters. This Court is a civil Court. It is not a criminal Court designed to determine the criminal guilt or innocence of the parties, and it certainly is not a Court which works from the premise that an ongoing relationship between a child and a parent is a reward for an acquittal and a denial of that relationship is a punishment for a conviction.
As I say, this is a civil Court and, within that arena, this is a Court created expressly for the purpose of dealing with matters in this context relating to the welfare of children. Within that jurisdiction, it is well established that, when the Court is dealing with serious allegations such as sexual abuse or serious emotional abuse, and where the consequences and findings of the Court are so grave for children and adults alike, the Court should not make positive findings of such serious misconduct except upon a thorough consideration of all of the relevant evidence, and then only upon being satisfied that there is available to support such a finding cogent evidence and convincing proof. I am acutely aware of, and mindful of, such cautions. At the same time, I remain acutely aware of my obligation to both protect the child from harm and not to lightly interfere with her relationship with each of her parents.
To return to the issue under examination, the cornerstone of the case advanced against the father rests, firstly, on the fact of the series of alleged disclosures made by the child and, secondly, upon the reliability of those disclosures.
The disclosures were made on a number of occasions to a number of different people. The first disclosure arose on about 27 February 2005 and was made by the child to the mother's sister, Ms L. Ms L has provided an affidavit and was cross-examined. The thrust of what Ms L was to tell the Court was that, in a fairly spontaneous way and for no apparent reason, the child was to tell Ms L that she had seen her father on the bed without any clothes on and that, at that time, she had touched his willy.
The second alleged disclosure which is mentioned in the material was one made to a friend, Ms T, in March or April of 2007. On that occasion, the child is alleged to have told Ms T that her father had "touched her". I mention this disclosure only by way of including it in the chronology and including it in the background when one examines the mother's reactions, conduct and motives. It needs to be observed that Ms T did not provide an affidavit and, of course, did not give evidence and it would be inappropriate to place weight on the truthfulness of the asserted disclosure allegedly made at that time. Rather, as I say, I record it as evidence from the mother about the receipt by her of some relevant information from a third party. I do not take that into account in a more direct sense in the case against the father.
The third alleged disclosure occurred in or about the middle of 2005 and occurred when the child was with her sister, E, and on this occasion she is alleged to have informed E that her father was tickling her, or playing with her "boobies", whilst the child was not wearing a top. As will be examined in a little more detail subsequently, the mother says that she received that information about these matters from each of the three people I have referred to. She said that her reaction at that time was confused and uncertain. She said variously that she did not know whether the disclosures were true, she did not want to believe they were true and, in any event, it is a fact that contact continued after the mother had been alerted to these disclosures until about July 2005, when the mother says she then made a decision to suspend contact.
In August 2005, the father was seeking contact and the mother refused. As an adjunct to her decision to cease contact in July, the mother chose to approach the authorities through the P Juvenile Aid Bureau with her concerns.
I need to record that the child was interviewed in August 2005 and she did not make any disclosures during the course of those interviews.
The next disclosure was alleged to have occurred on or about 6 November 2005 and was made to a boarder, one Ms R, who had only been boarding with the mother for some three days prior to the alleged disclosures. Apparently, Ms R and the child were playing on swings when, out of the blue and in answer to some innocuous questions from Ms R about where they used to live, the child volunteered that, on one occasion, she was lying on the bed with her father and that her father told her to touch him on the penis whilst he was touching her. She apparently went on to say to Ms R that she asked him not to do it and he continued. Ms R said that she was shocked and surprised by this suggestion and, again, asked her where her father, in fact, touched her and indicated her private parts, and she records that the child appeared to nod somewhat embarrassingly. Ms R told the mother of this and subsequently was encouraged by the mother to make notes of what was said.
Ms R had another conversation with the child on the following day when the child told Ms R that her father, that is, the child’s father, had tickled her private parts. The child said that the father was naked at the time and that she was wearing clothes. She reiterated that her father had asked her to touch his private parts and that she remembered the father touching her whilst she was in bed.
The mother says that from early in 2005, she started to observe episodes of some disturbed behaviour on the part of the child. In particular, she had disturbed sleeping patterns and she commenced soiling her pants, having previously been toilet trained. The mother says that, by the end of 2005, her behaviour had deteriorated further. She was presenting at times of being moody, disobedient, answering back, exhibiting disturbed sleep, at one stage started banging her head against the wall, she became cruel to pets and started to talk about dreaming about killing herself.
As a consequence, the mother said that she took the child to a general practitioner with a view of securing an appointment with Dr J, a family therapist. She had her first appointment with Dr J in December 2005.
The next disclosure was alleged to have occurred on 16 May 2006. I need to record that the parties had continued in their litigation and the matter had been listed for trial in March 2006. I have been informed, I believe from the Bar table without opposition, that at that time the matter was not reached because of the unavailability of Judicial officers. The matter was to be sent away but, in any event, the parties negotiated a resolution of the matter, which included consent orders that provided that the father have contact, including overnight contact, provided it "involved" his mother during contact periods, at least until he attended the Triple P Parenting Course. What was envisaged by the consent orders was that, in the not too distant future, the father would be entitled to enjoy unsupervised contact on weekends and during school holiday periods.
It appears that the father exercised two or three periods of such contact up to 16 May, when there was another alleged disclosure. These disclosures were made to the child’s brother, O. On this occasion, as O tells the story, he says that the child and O were in the TV room watching some TV. The mother and Mr K were, I gather, in an adjoining room. O asked the child something along the lines of, "How was your Easter?" She indicated to O that she had something to tell him, but she was whispering whatever it was and O was unable to hear what she had to say. When he indicated that he could not hear her, as I understand it, the child suggested that they should go upstairs and it became apparent, if not then, certainly later in the conversation, that she was anxious about the prospect of her mother or Mr K hearing what she had to say. It was the child’s suggestion, I believe, that they then go upstairs and they did, in fact, go upstairs, where they went into a tent. Even in that context, it is to be observed that the child was whispering to her brother and O has set out in his affidavit what was said on that occasion. He provides notes of what was said as a consequence of his realisation that what the child had told him was important. He was aware of his mother's ongoing anxiety about contact and he thought that, as the information was important, he would make some effort to record it. He attempted to do so by the use of his mobile phone, which could only make short grabs of conversation at a time of up to about a minute.

The Court has listened to a copy of those recordings and it needs to be observed that some of them are difficult to discern. Nevertheless, the combined effect of what O says he heard his sister say and what he recorded is to the effect that, during Easter, one gathers the father had touched her inappropriately by placing his tongue on her fanny, by pinching her clit, by putting a leaf and a flower in her fanny and, in particular, in the first part of the conversation, she said, and I quote directly from par 7 of the affidavit:
Dad sticks his fingers like this (and she put her hand up showing her index and middle fingers together) and puts them in my fanny.
O told his mother about these disclosures and the mother had some discussion with the child about such matters. The mother subsequently rang Dr J and made an appointment to have Dr J see the child, which she did on 18 May.
Again, it needs to be recorded that the child had not made any disclosures to Dr J in the five prior visits.
Dr J provided an affidavit and gave oral evidence. In her evidence, Dr J described how, on 18 May, the child told her how her father had both fondled her vaginal area and put his fingers in her vagina.
The matter was reported to the authorities and, on 19 May, Detective Sergeant H from the Juvenile Aid Bureau attended upon the child at G School without notice to the child or her mother. During the course of a very long interview, which will need to be the subject of closer examination subsequently, it is to be observed that the child disclosed that her father came into her bedroom at night, tickled her, licked his fingers and stuck two fingers into her bottom causing pain like a needle. That is, I hasten to add, a very abridged and filtered version of some of the things that the child had to say. Even at this stage, I should record that such disclosures were made only after the child had made a series of statements which had the effect of either failing to implicate the father or, in some cases, exonerating him from any inappropriate behaviour. Further, they emerged only after quite direct questioning, and even then only as part of a confused and confusing series of statements. Regrettably, the usefulness of this evidence is further compromised by defective recording which resulted in key questions and answers becoming inaudible.
As is almost invariably the situation in cases of this type, there is no physical evidence of sexual abuse. The case against the father rests largely upon the probative value of these disclosures. The forensic exercise to be undertaken by the Court includes, firstly, determining whether those disclosures were made and, secondly, evaluating the content and context of any such disclosures. In terms of context, the Court should examine the presentation, conduct and potential motives of the parties, the presentation of the child, and also consider any collateral indicators which might be capable of supporting inferences one way or another.
On the first point, I find conclusively that the child did make the various disclosures to the various people set out above. There is no contest that she made the disclosures to Dr J and Detective H, and I accept absolutely that she also made the statements to Ms L, her sister E and her brother, O. The witnesses were not seriously challenged on that point and, in any event, I found each of them to be entirely convincing in their accounts of such matters. Indeed, in his own evidence, the father was to acknowledge that his daughter must have, in fact, made a number of those statements. The father’s case was that all of the allegations of sexual abuse against him are false and that, as a consequence, he believes the mother has manipulated and induced the child to make these allegations against him.
In considering the issues of fact in this case, there are a number of fundamental propositions which need to be identified. Perhaps as a starting point, the Court needs to take account of the notion that fathers do not normally sexually abuse their children. It is an inherently improbable proposition which is against our society's norms and against the order of nature. Similarly, in my view, it is inherently unlikely that a caring mother would falsely raise such serious allegations against the child's father and compel that child to participate in that exercise and thus subject the child to the emotional abuse attached to the ordeal of, and the consequences of, necessary investigations.
Experts advise that, amongst other matters to be considered in such cases, is the need to determine whether either of the parties present with psychiatric, psychological, personality or emotional deficits which might leave them more predisposed to such abhorrent behaviour. These parties were assessed by social workers, Ms S and Ms H, and most relevantly, a psychiatrist, Dr M. It is to be noted that the experts concluded that there was nothing in the history or presentation of either of the parties which would be indicative of a predisposition or profile such as to increase the likelihood of such abusive behaviour.
The father comes from a good family background. He has had a largely uneventful life. He has not experienced any relationship difficulties. He has not been guilty of substance abuse. He has been in constant employment. His interactions with his daughter have been observed to be entirely appropriate. His presentation before me was calm, resolute and convincing.
Dr M observed that, whilst the mother presented with a history which included elements of dysfunction in childhood and adolescence, there was no current evidence of disorder of thought, mood or perception and Dr M expressed the view that the mother did not give her the impression of deliberately alienating the child.
My impression is that the mother's presentation to various people involved in the investigation and valuation process has been reasonable and measured and consistent with the actions of a genuinely concerned mother and devoid of the vindictiveness and histrionics so often observed in these cases, particularly of those engaged in some vendetta against their former partners. The mother's presentation before me was to that effect and she was no less convincing than the father.
There are several features of the presentation of the child which warrant careful consideration. In my view, it is of some significance that the child generally volunteered disclosures to third parties and not to the mother. Discussions with the mother were generally by way of follow-up. In cases of fabrication, one would perhaps be more likely to hear of disclosures allegedly made to the mother, who then takes the child to third parties or various authorities to have her repeat those disclosures. Alternatively, if the opposite modus operandi was being used, one would probably expect a young child to disclose at some stage that her mother had wanted her to tell these things to the various relatives and investigators.
Mr George, counsel for the father, offers an explanation for the disclosures in terms that the mother was, in fact, coaching the child and sending her out to third parties to repeat her rehearsed lines. For my part, I am not able to see that theory sustained.
Firstly, in the early stages, the lines allegedly given to the child were hardly clear evidence of sexual abuse. Indeed, as Mr George himself was to observe in the course of both cross-examination and argument, the disclosures made to Ms L in February 2005 were entirely equivocal, and certainly equivocal on the question of abuse and certainly would not lead third parties or any subsequent investigators to necessarily conclude that the child was reporting an episode of sexual abuse on behalf of her mother. Similarly, in the context that I have referred to, the disclosures allegedly made to Ms T, I simply record that they were vague and general in the form the father had "touched her". Similarly, the alleged rehearsed disclosures made to E were about tickling and touching her boobies. If they are the sorts of broad allegations the mother was inventing with a view of establishing a case of sexual abuse, she certainly could be seen to be failing miserably in the face of the prospect that it would have been a much easier task to have the child repeat something which was unequivocal and clearly implicated her father in clearly inappropriate conduct.
Secondly, when dealing with Mr George's theory, I gather that the purpose Mr George would maintain was behind having the daughter make these, albeit vague, disclosures to the various third parties, was to produce evidence of abuse and, in turn, to produce an outcome which would justify her stopping contact. Well, the evidence discloses that the mother did neither. She did not run off to the authorities or police as soon as her sister talked about the naked incident. She did not run off to the police when Ms T told her about touching. She did not even run off to the police when E talked about touching the boobies. The mother’s response and conduct do not seem to be consistent with the proposition that she was having her daughter say these things to gather evidence, as she did not then turn around and use that evidence to further her cause. Further, and importantly, she did not use those early disclosures of the child to immediately stop contact.
The mother’s conduct during that time, in my view, is indeed entirely consistent with the evidence that she gave, that is, that she heard of these things for the first time from third parties, that she was troubled by them, she was uncertain about the reality, she did not want to believe that the father did it and she was not sure that he was capable of doing it. The mother continued to provide contact in the context of the vagueness of what was said and her uncertainty about the consequences. Both the disclosures and the mother's conduct, in my view, is inconsistent with the theory advanced by Mr George.
Indeed, on this whole proposition of coaching, in my view, there is a stark and striking absence of indicators of such matters. In this case, in both these earlier vague allegations and the more specific ones which emerge, the child either fails to implicate her mother or, on occasions, expressly rejects the notion that her mother either has knowledge of, or has asked her to say, these things. To the contrary, on a number of occasions, far from feeling pleased that she has repeated what her mother had told her to say, she presented as being extremely apprehensive about the prospect that her mother might find out about the things she was disclosing. If these disclosures were the actions of a young child who was on some mission at her mother's behest, it is hard to understand, firstly, how such a young child over such a long period of time to such a wide range of people managed to keep that secret and failed to expose her mother's conduct. Not only did she fail to expose her mother’s directions, but the young child was clever enough to, as it were, feign apprehension about her mother coming to acknowledge that she was talking about these things. We are really asking of a very young girl a very skilled performance to be able to manage that entire exercise over such a prolonged period of time.
The disclosures to Ms L, E, Ms R and O, rather than appearing measured, scripted and rehearsed, all appear to come out of the blue and be entirely spontaneous. There was no express or implied involvement or hand of the mother disclosed or to be observed in these episodes. As I say, the child was only four or five at the time of these spontaneous disclosures and one would have expected some telltale signs if each of them had been orchestrated by the mother.
In my view, the disclosures to Ms K and her brother, O, were particularly telling. One was to a relative stranger who was asking her harmless, open questions about where she used to live. The other was to her brother who asked her an entirely innocuous question about her Easter holidays. I expressly reject the notion that O forced or prevailed upon his sister to invent these things against her father. I observed him closely in the witness box. He was unsophisticated, unguarded and appropriately incredulous when confronted with propositions which were inconsistent with his account. Further, to my view, that whole story told by O about the child’s performance in making the disclosures had a childlike ring of truth about it. We are dealing with a five year old who had a secret. She decides to tell one of the most logical people she might tell, her older brother. She is worried that her mother might hear. She asks to go upstairs and she goes into semi-hiding in a tent. To the extent that one can now decipher the child’s spoken words on the recordings of those conversations with her brother, they appear to be spoken without hesitation or prevarication.
The child's presentation before the experienced Dr J is also telling. She was at various times observed to be agitated, anxious, distressed, teary and upset. True it is that some of that reaction could have been due to Dr J’s revelation that she could not keep the child’s secret, but I have noted Dr J’s evidence carefully on this point, and her oral evidence is that the child became "more" distressed at that time and that her earlier account had been accompanied by teariness, signs of worry and a stop/start component. Dr J felt that the child’s displays of embarrassment and fear and her statement that what she disclosed made her feel yucky, were entirely congruent and consistent with the topic being discussed and, as Dr J observed, consistent with the presentation of a child who had been abused.
It is appropriate to observe that Dr M also gained a sense that the child appeared distressed and restless when talking about the worst thing that had happened in her life, and gave Dr M the impression that there was something she wanted to discuss but that she was too anxious to do so. This resulted in the child asking for the session to be terminated without making disclosures.
I next turn to the all important content and presentation of the child during the police interview. It is appropriate that this important part of the evidence was subject to close scrutiny, both by the Independent Children's Lawyer and by Mr George. Of course, there are features of an exercise of a police interview which are inherently more reliable than disclosures made to interested parties or even to third parties. Regrettably, again, as in almost every aspect of these types of cases, there are aspects of interviews between police officers and children which would indicate that it is not necessarily the case that the most reliable information will be provided by a child to a police officer. However, in considering the father's position in this matter, as part of the totality of the evidence, one needs to, at the same time, examine that record of interview at face value. The overall impression is one of a confused child, one capable of exaggeration, fantasy and uncertainty, and there was, on occasions, both internal inconsistency within that exercise and a number of statements which are inconsistent with the earlier disclosures I have referred to. She appeared particularly unreliable about issues relating to when, where and how often certain events were alleged to have occurred.
Further, it is very important to record that, in the early stages of the interviews, not only did the child fail to implicate her father, she positively asserted that he had never touched her. When talking about things that made her feel unsafe in the house, which one would have expected to be a fairly pointed exercise, the child referred to some fairly innocuous events and then asserted that nothing else made her feel unsafe. Any disclosures made by the child really had to be quite vigorously pursued by the investigating officer and, as was observed by counsel, and indeed by the police officer, it is important to note that this interview took place but three days after the supposedly clear disclosures to O and one day after the equally clear disclosures to Dr J.
Counsel and the police officer are entirely correct in their observations that it was very surprising that the child was unable or unwilling to volunteer similar information which should have been so fresh in her mind. She was only able to acknowledge the conduct incorporated in her earlier disclosures after she was taken directly to such topics by the investigating officer. As I say, there are also a number of telling inconsistencies which emerged during this process in relation to particulars of a number of the events which were alleged to have occurred.
There are other improbable or fanciful layers which seem to be added, particularly in relation to events occurring whilst she was asleep and involving previously unmentioned foreign objects like potato chips.
There are a number of possible explanations for this body of evidence. On the one hand, it could be indeed the most inherently reliable account because, as Mr George suggests, the police officer's attendance at the school and upon the child was unannounced, so that the mother, as it were, was unable to prepare her daughter. It could be indicative of the fact that, in such an unscheduled set of circumstances, the child was not able to sustain her full story in an interview context. It could have been that she became more worried about maintaining her lies in the presence of the policeman. On the other hand, of course, it may be indicative of the prospect the child was more anxious about opening up to a strange male policeman, particularly in the presence of her headmaster, as opposed to a brother or a trained therapist.
These difficulties in evaluation are compounded, as I say, by the poor quality of the tape and transcripts. Nevertheless, the totality of that evidence does cast a shadow upon the reliance which should, in turn, be placed upon the earlier disclosures.
At the same time, amongst this now quite murky body of evidence, there is a consistency of significance. The child has now told Dr J, her brother O, her mother and Detective H of a particular episode or episodes of use by the father of two fingers to manually stimulate a part or parts of the child’s genitalia. With Detective H, she added an element clearly beyond the knowledge or experience of a five year old, that is, that prior to inserting his fingers, he put them in his mouth, an action consistent with lubrication and a detail a child would be unlikely to invent.
In the end result, I am left in the uncomfortable position that I am inclined to disregard some of the more fanciful aspects of the child’s disclosures but feel unable to reject absolutely all that she has had to say and, in particular, this recurring theme about inappropriate touching. Of course, the disclosures are but one aspect of this case. I have already referred to the profile, personality and presentation of the parties. Those observations push the Court in opposite directions towards exoneration of the mother and the father from the conduct alleged against them.
Aspects of the child’s presentation are also capable of supporting propositions for and against sexual abuse. I accept the mother's evidence that the child exhibited encopresis and enuresis and disturbed behaviour at about the time of the disclosures and around the times of contact. I note Dr M’s evidence to the effect that such matters may be indicative of abuse. I also accept the proposition that they can be indicative of stress and this could be contributed to by an awareness of the child about the mother's anxiety about contact and/or about the child’s own reaction to the disjointed and limited relationship she enjoyed with her father during this period.
Further, in terms of the child's presentation, I must take account of the close, warm, affectionate and entirely healthy interaction observed between the father and his daughter. Again, these factors are not decisive one way or another.

I am left returning to the Independent Children's Lawyer's appropriate warning delivered at the outset by Mr McGregor, counsel for the Independent Children's Lawyer, when he highlighted the principles governing abuse cases and of the dangers of inappropriately making positive findings which parties and their children carry with them for the rest of their lives. In this case, during the course of this judgment, I have sought to highlight competing factors and indicators, equivocal indicators, inherent reliability in some of the disclosures made by the child and, at the same time, limits to the weight which can be placed on a number of those disclosures.
The father's presentation and profile is inconsistent with the allegations against him as, in my view, is the mother's profile inconsistent with the allegations against her.
Whilst, on the one hand, I am cautious about making positive findings, I am also uncomfortable with the notion that parties leave this Court without a clear outcome one way or another. Nevertheless, sometimes that is the reality and, in this case, I find myself in the same position as the Independent Children's Lawyer and Mr McGregor, who submitted that, on the totality of the evidence, the Court could neither make a positive finding that sexual abuse had occurred, nor could it make a positive finding that sexual abuse had not occurred.
Within those parameters and turning to the supplementary consideration of the ongoing contact between the child and her father, on the totality of the evidence, I am certainly unable to rule out the prospect that she has been the victim of some inappropriate touching in the past. I am left with a real concern that the child may well have been describing, in her childlike, troubled way, incidents of inappropriate conduct on the part of the father. I am concerned that it is possible, if not probable, that the father has, on occasions, touched his daughter inappropriately in and around her genitalia, and that such conduct may have occurred or continued after the earlier consent orders and in the grandmother's home.
I am concerned about the disturbed presentation of the child as described by the mother and as discussed by Dr M. Obviously I would be gravely concerned about leaving the child exposed to any such conduct in the future and the dangers that would present to her health, welfare and safety.
In all of the circumstances, I am satisfied that the prospect of unsupervised contact between the child and her father in the future would expose the child to an unacceptable risk of harm.
As I indicated, ladies and gentlemen, everyone needs the opportunity to consider that determination and the consequences thereof.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate:

Date:

[2007] FamCA 1063

25 July 2007

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Procedural Fairness

Remedies