Houston & Houston - [2007] FamCA 228

[2007] FamCA 228

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT BRISBANE No. BRF 15008 of 2006

IN THE MATTER OF:	HOUSTON	Mr	Applicant
AND	HOUSTON	Mrs	Respondent

REASONS FOR JUDGMENT

EX TEMPORE

CORAM:	The Honourable Justice Jordan
DATE OF HEARING:	12-16 February 2007
DATE OF JUDGMENT:	28 February 2007

APPEARANCES:

Mr Davies of Counsel	Instructed by Stacks, appeared for the Applicant Father
Mr Theobald of Counsel	Instructed by WP Lawyers, appeared for the Respondent Mother
Mr Graham of Counsel	Instructed by Legal Aid New South Wales, appeared for the Independent Children's Lawyer

FAMILY LAW – CHILDREN – Living and care arrangements – Allegations of sexual abuse – Unable to make positive findings – Unacceptable risk – Supervised contact only – Property settlement by consent

ISSUES TO BE DETERMINED
This is a trial addressing issues relating to the living arrangements for, and the care of, three young children; a daughter, born in May 1999, and twins, the first twin, born in August 2000, and the second twin, born in August 2000. I have also been asked to make property orders by consent.
In relation to the children's issues, the parameters thereof have been very narrowly defined by the parties. The father would like to spend time with the children for substantial periods each week, up to four days, and for other significant periods during the year. At the very least, he would like to have the present contact regime substantially increased and the conditions thereon removed. He does not conduct a case suggesting that the children should not also enjoy substantial time with their mother.
The mother says she would also prefer to allow the girls to have significant time and a meaningful relationship with the father. She acknowledges that the girls love their father and enjoy their time with him. However, she maintains that there are elements of the history of the father's dealings with his daughters which would suggest that they are at risk of sexual abuse and in the need of protection. She contends that the only viable contact, given the gravity of her concerns and the ages of the children, is a limited regime of supervised contact.
This case and those parameters bring into focus and potential conflict two of the primary principles which govern the Family Law jurisdiction. That is, the right of children to a meaningful relationship with each of their parents on the one hand, and the right of children to be protected from harm on the other.
Each of the parents has a vital interest in the outcome and a right to be properly heard. In the case of the father, potentially, he has much to lose. However, the legitimate interests and concerns of the parties are subordinate to the interests of their young children. In all proceedings of this type in the Family Court, the welfare of the children is, and remains, the paramount consideration.
This is a matter where the mother raises very serious allegations which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Houston & Houston

Details

AGLC: Houston and Houston [2007] FamCA 228
Case: [2007] FamCA 228
Decision Date: 28 February 2007

CaseChat Overview and Summary

The case of *Houston & Houston* concerned allegations of sexual abuse made by a mother against her estranged husband, the father of their children. The mother alleged that her children had disclosed inappropriate sexual touching and behaviour by the father, and she expressed a genuine concern for their future safety if left in his unsupervised care. The father, who suffered from a disability, consistently denied the allegations.

The court was required to determine the veracity of the mother's allegations of sexual abuse and, consequently, the appropriate arrangements for the children's contact with their father. Key legal issues included assessing the reliability of the children's alleged disclosures, the potential for coaching or suggestion, the significance of the children's presentation and behaviour, and the corroboration of the mother's claims. The court also had to consider the father's denials and his overall profile in relation to the likelihood of such abuse occurring.

The court applied general principles regarding child sexual abuse, acknowledging that while such behaviour is abhorrent and uncommon, it does occur. It considered the susceptibility of young children to suggestion and exaggeration, while also recognising their inherent unlikelihood of fabricating clear allegations against a trusted parent. The court found the mother to be a credible witness, whose conduct throughout the proceedings appeared consistent with genuine maternal concern. While some alleged disclosures were equivocal, the court noted that specific claims of genital touching and pain, if true, were strongly indicative of abuse. Expert evidence suggested the language used by the children was age-appropriate and not necessarily indicative of coaching. Despite the father's denials and the children's occasional refusal to repeat allegations, the court was inclined to believe that the children may have been exposed to inappropriate touching and sexual behaviour by their father.

Given the gravity of the allegations and the potential risk of future abuse, the court determined that any ongoing contact between the children and their father must be supervised. The court noted that while a trusted relative was suggested as a supervisor, this proposition had not been properly canvassed or supported by evidence during the trial.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

THE BACKGROUND The mother is 33 years of age, she was born and raised in the Ukraine. The father is 43 years of age. The parties met, as I understand it, through some type of internet dating service, and began to communicate, culminating in the mother travelling to Australia in August of 1988. The parties married in February 1998. They separated in August 2004. The father is afflicted by a disease which inhibits his strength and physical capabilities, and he is currently on a disability pension. The mother has re-partnered with one, Mr M. They entered into a relationship in 2004. There is one child of that relationship, L, and she was born in March 2006. The mother and her partner moved to Queensland in August of 2005. Prior to that, both in her relationship with her partner and her relationship with the father, the mother had resided in the central New South Wales coastal region. I now turn to the allegations and particulars of alleged abuse. The mother alleges that there have been a number of disclosures made by the children, and a number of observations she has made about the children's behaviour, which have ultimately resulted in her having an absolute conviction that the children have, in the past, been exposed to some forms of inappropriate sexual abuse. She is adamant that she has a genuine concern that they may be at risk in the future if they are left in the unsupervised care of the father. The mother says that the disclosures commenced one night in August of 2003, when she heard the eldest child wake up screaming "Daddy, don't touch me." She said that she spoke to the child the next morning about what she had said, and she said that the child confirmed that her father had "tickled her on her woozer", a term apparently used by the children to describe their genitalia. The mother says further that in about January of 2005, the first twin, in discussions with the mother, disclosed that her "Daddy had a game with his snaky snake", and "Daddy's snaky snake hides, then gets bigger and blows bubbles." At about the same time, the mother alleges that A suggested that her father makes her sleep in his bed by not giving her blankets; that she also said that he had touched her private parts, put his finger in her woozer, and rubbed, and that she asked him to stop and that he would not. The mother alleges further that, in about June of 2005, the first twin indicated that her daddy tickled her on the woozer and smacks her on her woozer. The mother alleges that, in or about November of 2005, the second twin said that her father had stuck his finger in her privates and it was hurting because his finger was too big. Finally, the mother produced in evidence a DVD recording of a conversation. It is not clear to me whether that conversation took place in November of 2005 or February of 2006. That recording was played in Court. It is a little difficult to hear what is being said at all times, and it is clear that the children were engaged in play and were quite distracted. It is also clear that the mother raised with the children the topic of inappropriate touching. The mother earlier told the Court that, prior to the recording, the children had made disclosures; that her partner, of his own volition, and without the knowledge of the children or the mother, had commenced to play a video to record what was being said, and that she noticed it on the ironing table partway through that process. It would appear that, as part of that process, the mother was either, if we look at it from a sinister point of view, leading the children, or alternatively, endeavouring to bring them back to the topic they had been discussing prior to the commencement of the video.

Evidence

Evidence Before The Court

ASSESSMENT OF THE ALLEGATIONS OF ABUSE AND THE AVAILABLE EVIDENCE The forensic exercise to be undertaken in matters such as this should include an examination of the following matters: (1) Considerations of some general propositions based on expert evidence, experience, common sense and inherent probabilities. (2) The profile and presentation of the parties and their conduct in dealing with the allegations. (3) The nature of the disclosures and allegations. (4) The presentation of the children. (5) The context of the allegations and motives; and (6) Corroboration. (1) General Principles A consideration of some general propositions based on expertise, experience and common sense would include the following: (a) It is against the order of nature for adults to engage in sexual activity with children. Most healthy adults do not engage in such abhorrent behaviour. When dealing with a father, such abuse involves not only a breach of social norms, but also engaging in behaviour which breaches the love and trust which should exist between fathers and their children. Most fathers do not sexually abuse their children and, as a general proposition, the Court is entitled to start from the premise that it is improbable that such behaviour would be engaged in. At the same time, the Court needs to be mindful of the fact that the sad reality is that such abuse has and does occur. (b) The prospect of a father engaging in such behaviour is greater in circumstances where there are aspects of his past or profile which may leave him predisposed to such conduct, for example, if he was sexually abused as a child, or if he is a person suffering from some mental or personality disorder. At the same time, such a profile is not a precondition to the prospect of abuse. (c) Young children ordinarily have limited exposure to, and understanding of, matters sexual. Adult-type sexual matters are likely to be mimicked or discussed by children only if those children have had some experience or exposure to such matters. (d) As historians, young children are susceptible to suggestion and emotional pressure, and are capable of exaggeration and of describing matters not based in reality. (e) At the same time, young children are inherently unlikely to invent or fabricate clear allegations of sexual abuse against a loved and trusted parent or carer (see Dr G’s oral testimony). (f) When considering the evidence of an accuser, three possibilities would need to be taken into account. The first is the genuine, based on fact and a realistic reaction to the actual circumstances. The second is the malicious, based on deliberately false or exaggerated accounts. The third possibility is the one which creates the greatest difficulty for the Courts, and that is, the honest but mistaken belief. Within this category, there can be a wide range of causes, including the genuine concern arising from actual observations which may have an innocent explanation, and which can subsequently be reinforced or highlighted by the consequences of the investigation process itself. In this third category, such mistaken belief can also be based on a premise almost approaching the delusional level involving a parent whose profile might include some aspects of thought disorder caused by the combination of a number of possible contributors, such as his or her own life experience of being sexually abused, with the result and prospect of that person becoming hyper-vigilant. This is all the more likely to occur in the context of escalating feelings of antipathy and mistrust. It has been my experience that parents in this latter category tend to be more prone to exaggerate, to manipulate, or even invent some evidence, including manipulating the children themselves in a misguided endeavour to prove their case and, as they perceive it, to properly protect their children.

Decision

Reasons for decision

CONCLUSIONS I have found this matter very difficult to resolve. The father's presentation and profile were not consistent with those of a person predisposed to sexual abuse. He has been strong and consistent in his denials. He gave his evidence in a believable fashion. I have referred to the positive relations he continues to enjoy with his daughters. When given the opportunity to repeat recent allegations, the children have either failed to do so, or on occasions have actively refused to do so. These are all matters of significance. The mother's case against the father rests almost entirely upon the Court accepting her evidence relating to the children's disclosures and sexualised play. I have already observed that the mother presented as a most credible witness indeed. Her conduct throughout this long process has, in my view, been entirely consistent with the actions of a genuinely concerned mother, torn between her own fears and the love of her daughters for their father. I find that the fact that the mother raised these concerns firstly during the continuation of the parties' relationship, is a particularly telling aspect of the history in terms of the mother's bona fides and motivation. It would appear she has resisted any temptation to bolster her case through the children. I find that she is unsophisticated and inexperienced about these matters, and about the legal process generally, which causes me to place some considerable weight on the fact that the mother reports language and behaviour age-appropriate and entirely consistent with sexual abuse as assessed by Dr G. Given the competing tensions in this review, and mindful as I am of the counsel of the High Court against making positive findings of abuse unless presented with a very strong case, I regret that, in this matter, I feel unable to positively rule in or out the prospect of sexual abuse. On balance, I am inclined to the view that it may well be that some or all of these children have been exposed to inappropriate touching by their father and/or other inappropriate sexual behaviour. There is evidence capable of supporting a finding that there has been sexual abuse of these children by their father in the past. If it has happened in the past, both before and after separation, on multiple occasions and with more than one child, one could not rule out the possibility that it would occur again in the future. Given the ages of the children and the gravity of the alleged abuse at face value, the prospect of exposing these children to further abuse would be entirely unacceptable. These children have been said to describe exposure to the father's erect penis, possible ejaculation, and to genital stimulation causing pain, which was persisted with despite their protests. Clearly, young children need to be protected against the risk of such treatment. THE CONSEQUENTIAL DETERMINATION The consequences of my determinations are far-reaching. It is common ground that any such conclusion should result in any ongoing contact between the children and their father being supervised. There was a faint suggestion by counsel for the independent children's lawyer and the father during submissions that the Court might consider using a trusted relative (presumably of the father) to do the supervising. The difficulty is that no such proposition was canvassed during the course of the trial. No such relative came forward, was identified, and gave appropriate evidence in relation to that prospect.

Ratio Decidendi

Legal Principle Established

(3), (4) & (6) The Disclosures and the Presentation of the Children, and Corroboration Some of the alleged disclosures when the children described touching and tickling are entirely equivocal and capable of innocent explanation. However, the statement attributed to the first twin, when she describes, "The snake hiding, getting bigger, and then blowing bubbles", is clearly open to very sinister interpretation. The specific claims by the children alleging that their father had touched their privates, rubbed their privates, caused pain and refused the girls’ requests to stop, if actually said, are really only capable of being interpreted as evidence of sexual abuse. Dr G offered the opinion that the language quoted by the mother "is the type of language that would be used by children of the girls' ages and was not indicative of coaching". On the issue of coaching, I find that there is very little evidence, indeed, to support such a proposition. To the contrary, the children have been largely presented as being entirely unprepared, consistent with the mother's assertion that she abided by the directions from the Department not to discuss matters under investigation with the children. Indeed, it is noteworthy that, notwithstanding the mother presented the children to interviews in general, they failed to make any disclosures during interviews with people in authority. There is nothing in what any of the children have said which is indicative of coaching. Young children are very susceptible to manipulation and pressure. They are also prone to let it slip that their mother or father has told them to say something. These children have been almost entirely under the influence of their mother during the various investigations and have generally declined to identify anything bad about their father and have not once indicated that their mother has told them what to say. The mother was subjected to some criticism for prompting the girls during the recorded disclosures. For my part, I viewed the mother's conduct on that occasion at the very lower end of the scale. If the children had spontaneously started to talk about wrongful touching and the father had unilaterally produced the video, the mother's responses were understandable and not disproportionate. The recording was running, but the children's conversations had moved on. The mother tried to bring them back by talking in a calm and rather detached way about inappropriate touching, whilst she continued to apply makeup. There was no suggestion about what to say, or make positive assertions of bad touching. The children continued to happily colour in and talk about a wide range of topics, largely oblivious to the mother's efforts. I was left unconcerned about the mother's conduct during that whole taping exercise. As to the allegations of sexualised behaviour, again, I note the evidence of Dr G confirming that the behaviour described by the mother and her partner is of a type typical of the behaviour observed in children subjected to sexual abuse. Again, the Court's determination on this point rests very heavily on the reliability of the mother, because there are no other reports about such matters, apart from the accounts of the mother’s partner. At the same time, I note that the mother was raising those concerns early in the process and has done so consistently.