Houston & Houston

[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 are inherently difficult to prove or disprove, but this is not a case primarily about the guilt or innocence of the father, although a thorough investigation of the allegations of abuse is essential. This is not the forum to convict and punish either the accuser or the person being accused. It is not a criminal trial, and the Court must not become distracted by such notions. It is a hearing designed to determine what outcome best serves the children's welfare, having regard to all of the relevant issues, evidence and principles defined in the Family Law Act.
Within that context, however, on the facts of this case, an examination of the allegations of abuse and the determinations thereon may largely dictate the outcomes on ancillary matters. If the Court determines that the children have not been abused or that they are not at risk, the mother acknowledges that the Court will make orders for increased unsupervised contact and says that she will abide by such orders. If the Court determines that the children have been abused or that they are exposed to an unacceptable risk of abuse, clearly, they are in need of protection and any contact they have with their father will have to be properly controlled.
There are ancillary issues of parental responsibility and the location in which the children should reside. However, findings in relation to the child protection issues are likely to largely determine the outcomes of those collateral matters. Accordingly, the Court should firstly address the primary issue of abuse. Before doing so, I should briefly touch upon the background leading to this conundrum.
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.
In any event, the children did make some vague disclosures about the father touching their private parts, and one of the girls suggested that she had pushed her father's hand away. It does need to be observed that, later in that conversation, the children - or at least one of them - appeared to suggest that the father had not touched them. Accordingly, that whole exercise produced an equivocal outcome.
Finally, in terms of disclosures, the children have been receiving counselling at B during the course of 2006, and it is recorded that, during that process, each of the girls have disclosed to the counsellor that their daddy had touched their private parts.
The mother asserts that the particular disclosures which she has highlighted in her evidence arose in the context of the children quite frequently engaging in spontaneous discussion amongst themselves and, on occasions, with their mother. She said there were many such occasions when the children would talk about the father touching their private parts.
Further, in terms of context, the mother says that these statements and disclosures were made during a period when she observed the children engaging in inappropriate sexualised behaviour, which she has described to include the children defecating and urinating in the yard, drawings of women menstruating, drawing genitals and breasts, simulating sex by humping pillows, talking about sex, putting their fingers in their vaginas and licking their fingers, A wanting to shower with the mother’s partner and see his "snake", and A grabbing the mother’s partner’s penis twice whilst they were in the spa.
The father vehemently denies that he has ever sexually abused any of his children, or that he has ever touched them inappropriately in the ways alleged. He contends that the whole issue is a total fabrication on the part of the mother. He says that she must be motivated by greed, retribution and/or self-interest. He suggests that her motives are to secure a greater property settlement, to punish him, or to get him out of her life, and to substitute her partner as the children's father figure.
THE COURT’S APPROACH
As is almost inevitably the case in trials involving allegations of child abuse, there is not available to the parties or the Court a body of clear-cut, cogent evidence capable of positively establishing the validity or otherwise of serious allegations made against parents. Typically, there are no admissions, no eyewitness accounts and no physical evidence. Young children, particularly those confused and conflicted, present as historians of equivocal value. Such realities leave the genuine accuser and the wrongly accused in very vulnerable positions. The allegations made and challenged are inherently difficult to prove or disprove.
The unenviable and onerous task thrust upon the Court is to do the best it can, to examine all of the available evidence and to apply careful and reasoned consideration to all relevant issues of fact, and to reach some appropriate conclusions. When considering issues of sexual abuse, the responsibility imposed upon the Court is a particularly heavy one.
The implications of a positive finding of sexual abuse are far-reaching for the parties and their children. The parties and their children are likely to be left with the prospect of dealing with the consequences of such findings for the rest of their lives. Higher Courts have prescribed that, particularly as this is not a criminal forum, the Family Court should be cautious about the prospect of making such a positive finding. It should not retreat from such a prospect where the evidence is clear, but it is not enough to make positive findings based on suspicions and concerns.
In criminal cases, guilt must be established beyond reasonable doubt. In civil cases, responsibility can be established on the balance of probability. Family proceedings are governed by principles applicable in civil cases, but it is well-established that, when a civil court is dealing with very serious issues and determinations which are likely to have a bearing upon the rights and reputations of the parties before them, the standard of proof necessarily must be set at a higher plane than the mere balance of probability test. I bear those important principles in mind in reviewing the issues and the evidence.

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.

(2) & (5) Profile, Presentation and the Conduct of the Parties, the Context of the Allegations and Possible Motives
Dr G, psychiatrist, conducted an evaluation of the parties and provided a report which is attached to her affidavit filed on 1 December 2006. As to the father, Dr G observed that there were no features of the father's history which were indicative of the profile of a sexual abuser. In his appearance before me, the father presented well. He was clear and consistent in his denials of abuse and nothing emerged during the course of the limited cross-examination of the father on this topic which gave rise to a concern about the veracity of his testimony. The father has consistently denied the allegations throughout the course of the investigations and has on occasions been proactive in assisting authorities in that regard.
As to the mother, Dr G concluded that "She did not exhibit any evidence of mood disorder, disorder of thought, nor any psychiatric disorder." In her presentation before me, the mother was most convincing. She was clear and consistent in her accounts. Her demeanour and presentation were entirely believable. During the course of lengthy testing of her accounts, she displayed appropriate and not disproportionate levels of resolve and distress congruent with the gravity of the issues being canvassed. She displayed a willingness to make admissions and concessions against interests. Particular examples which come to mind include describing the father's relationship with the children, their affection for him, the purpose of the tape-recording, and her acknowledgment that she had discussed financial matters with the children.
The independent children's lawyer subjected the mother to lengthy and testing cross-examination without, in my view, exposing any fundamental deficiencies in her stories or in her presentation. With one notable exception, to which I will refer, there was a telling consistency between the accounts the mother gave to this Court and those she has given to a wide range of Government agencies and professionals over the period of the last three years.
The one exception in terms of consistency relates importantly to the mother's affidavit of evidence-in-chief. It is abundantly clear to me that the mother and the father have been largely consumed and driven by the implications and consequences of these allegations of abuse dating back to early 2005. The mother has made multiple notifications and pursued the matter actively through Government and police agencies in two States. She has followed up with medical and counselling services. She has actively pursued remedies through the legal process. She asserts a genuine belief that all three children have been sexually assaulted by their father, and that they are at grave risk from him.
In that context, the wife's affidavit of evidence-in-chief is incongruent. The document is not insubstantial, describing in some detail the history of the matter, the matrimonial difficulties and the basis for the mother's claim for property settlement. However, on the central issue of sexual abuse, the document is curiously abrupt. Under a heading, "My Concerns for the Children", only seven paragraphs covering one page of this large affidavit are dedicated to this most serious issue of sexual abuse.
The mother's account set out in her affidavit is striking in its lack of detail and particularity. There is no reference to a series of potentially very significant disclosures allegedly made by the twins in June of 2005, described by the mother during cross-examination. There is no reference to the disclosures made by the children which were recorded in Exhibit 22. There is no mention of a referral to her general practitioner, Dr Y. Nor is there any account in relation to key events and decisions made by the mother during the course of the investigation and litigation.

Of course, if the mother raised such important matters only for the first time whilst she was subjected to the rigours of cross-examination, one would readily draw the conclusion that such accounts were but recent inventions to bolster her case against the father.
One ordinarily treats the response of a witness to entirely legitimate questions, "Why wasn't this important information included in your affidavit?", with the response, "I told my solicitor but they did not put it in the affidavit", with a very healthy dose of scepticism. However, in this case, I find it impossible to reject that explanation. That part of the mother's affidavit of evidence-in-chief dealing with sexual abuse is entirely inadequate on any measure. It is entirely inconsistent with, and certainly not a reflection of, the mother's determined, persistent and extensive pursuit of these issues over at least two years. Various portions of the wife's oral testimony not included in the affidavit have clearly been reported by the mother to Government agencies and/or professionals consistently down the years. If she has repeatedly informed police officers, welfare officers, counsellors, doctors and Dr G, and now the Court, about these matters, it is difficult, if not impossible, to comprehend that the solicitors drafting the affidavit were not also in possession of such information and such detail. The mother is a comparatively recent immigrant to this country, and English is not her first language. I accept she is largely unfamiliar with our legal process. She was heavily dependent upon her solicitor to properly present her case, particularly in relation to the allegations of sexual abuse.
On any objective view, the form and content of that portion of the affidavit dealing with this most fundamentally important issue is inadequate in form, content and detail. In the circumstances described above, I am unable to accept the proposition that the responsibility is entirely the mother's and that I should draw adverse inferences against her credit because of the inadequacy of her affidavit of evidence-in-chief. To be fair, counsel for the father and counsel for the independent children's lawyer were appropriately circumspect in relation to the prospect of making any such suggestion. I fear that the trial affidavit of the mother is not a proper reflection of her concerns and instructions and that, as a consequence, the interests of the mother, the father and the children have been somewhat compromised.
The mother's conduct throughout the relevant period has, in my view, been consistent with the behaviour of a woman with a genuine belief and/or concern that sexual abuse may have occurred. She has pursued the matter consistently and appropriately. She has sought out, and reported to, appropriate people, including nurses, doctors, welfare agencies and police. She has engaged in legal process. She has organised appropriate counselling and support for the girls and has followed up with the requirements thereof.
The father suggested that the allegations of abuse are all about property settlement. Clearly, however, the mother's concerns and actions predate the dispute about the father's proposal for property settlement first communicated in May of 2005. Significantly, the first allegation of abuse predated even the separation between the parties, and occurred in August of 2003. The mother was sufficiently concerned about A's disclosures at that time that, notwithstanding the ongoing marriage to her husband, she took the matter seriously enough to report her concerns to the authorities.
One poses the question: what did she stand to gain in August of 2003 by placing herself, her husband and her daughter in such a difficult position? What could have been her motives? Further, having taken what would have been an inherently difficult decision to report the matter and to separate from her husband and confront him with the allegations, she was open to his denials. She subsequently accepted his denials and reassurances and resumed her relationship with her husband within four days. Again, it is difficult to find motives of mischief in relation to this incident dating back to August of 2003.
The father's alternate theory is that the mother is raising such matters to alienate him from his children by way of retribution, or to have her partner substituted as the father figure in the children's lives. Whilst that must remain a prospect to be considered, many aspects of the history would appear to mitigate against that theory. Certainly, the mother's decision to reconcile in 2003 is entirely inconsistent with that proposition. Further, after the parties separated in 2004, and notwithstanding a serious physical altercation between the parties at the time of separation and considerable acrimony thereafter, even on the father’s version, the mother continued to voluntarily provide extensive contact, including contact on almost every weekend from Friday to Sunday.
Further, the mother continued to provide the father with extensive contact during a period of great turmoil, when the father's house was raided by the police, when his house was suspiciously burnt down on the very same day he was charged with cultivation of drugs, and there were substantial legal struggles relating to the provision of DNA, and in circumstances where the mother gave a statement against the father to the police which, according to the mother, resulted in her being subjected to threats made against her and her partner. As Mr Theobald, counsel for the mother, submitted, she continued to provide contact in that environment, and in doing so she was displaying actions which were not those of a woman determined to use every excuse to withhold the children and embark upon a process of alienation. It might be thought that, after separation, after the altercation, and during the time of these quite significant criminal events, the mother had ample excuse to curtail or withhold contact. However, in terms of evaluating the mother's motives since separation, it is telling, in my view, to note that she chose not to avail herself of any of those opportunities and rather chose to continue to provide contact.
Subsequent to the allegations of abuse, and subsequent to the matter coming before this Court, the mother has continued to abide by Court orders for contact, and has done so at times of quite substantial hardship to herself, her partner and the children, given the tyranny of distance between the parties and given the young children's apparent resistance to extensive car travel.
Most important in relation to this alienation theory of the father, are the children themselves. They present as being largely untainted by the consequences of any suggested campaign of alienation. They do not speak poorly of their father. The children say they love their father and, in turn, display clear attachment to him. The mother says that she has been told not to discuss her concerns with the children, and says she has followed that advice, and the children's presentation is consistent with that conduct. If the mother was, indeed, highly motivated to alienate the children from the father, one would not expect to observe the history of ongoing contact, and one would expect to see some evidence of ambivalence in the children's discussion about, or interaction with, their father. None of that is evident in this case.
In the main, the mother's presentation and conduct has been entirely consistent with the actions of a woman of genuine conviction and concern, who has battled with her responsibilities to protect her children against a background of acknowledging the children's ongoing love and affection for their father, and her own stated preference to allow him to continue to have a relationship with his children.
I next turn to consider the alternate theory of the father that the mother is motivated by financial considerations. There are some aspects which could give credence to the husband's concerns. The matter of particular relevance is that, when the children were interviewed after the June 2005 disclosures, the first twin was asked did she understand why she was no longer staying over at her father's house. The first twin told the interviewer that her mother had said that they were not seeing their father because he would not give them enough money. For obvious reasons, that is a potentially very relevant and damaging disclosure, and may well be consistent with the father's theory that the mother is motivated not by a concern for the children, but by the prospect of financial gain associated with having full-time care of the children.
The mother was cross-examined about this disclosure, and she did not hesitate to admit that she had made such a suggestion to the girls. She said that she responded in that way when the girls were questioning her about their reduced contact with the father. She reiterated that she had been under a direction from the Department not to discuss the possible sexual abuse of the children by their father with them, and she explained to the Court that she basically said the first thing that came into her mind. Notwithstanding the mother's explanation, I must take that statement by the first twin into account, together with its implications. At the same time, I note the candour of the mother on the point, and her version is consistent with her earlier evidence to the effect that she had to abide by the recommendations.
At the same time, I have no doubt that financial issues have remained to the forefront of the parties' thinking and have contributed to the prevailing antipathy between them. I am not, on this evidence alone, prepared to find that I should conclude that the mother's motives throughout in relation to all of these allegations and concerns have been solely founded in an effort to gain monetarily. On another front, it is noteworthy that the mother apparently declined the opportunity to instruct her children that they were not spending nights with their father because he had sexually abused them, or that he was a bad man.
The other matters I take into account, as highlighted by Mr Davies, counsel for the father, is that the period of the second and third major reporting exercises were at times proximate to significant developments which might bring into question the mother's motives. The January 2005 reports were made shortly after the mother had taken up with her partner, and it is arguable that that development may have been a catalyst for an attempt by the mother to marginalise the father's relationship with his children. Secondly, it is an inescapable fact that the reports of June 2005 were made within days of the mother receiving what she clearly regarded as an entirely unacceptable offer of property settlement, which ran contrary to the father's previous promises. The implication of the possible link between the two events is self-evident.

(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.
I note that there is very little to corroborate the mother's accounts. The first twin did make some statements to authorities in January of 2005, but it was equivocal and not a repetition of what she had allegedly told her mother leading to the report on that occasion. The children are said to have disclosed touching during counselling, but little weight could be placed on these equivocal assertions in the context of the girls, no doubt, being "educated" about such matters.
The statements made by the girls in Exhibit 2 do provide some limited corroboration of the mother's assertions, but again, one needs to be cautious about the weight to be placed on such statements made and recorded in the mother's home, and without knowledge of what preceded the recording. Further, even in that context, it needs to be observed that the children's statements in that recording were vague, equivocal, and contained suggestions consistent with innocent touching, as well as that which would be described as inappropriate. Great caution is, therefore, required in relation to that evidence.
The mother’s partner did provide corroboration of the mother's account, both in terms of the disclosures and the observed sexualised behaviour. Of course, the partner is clearly aligned with the mother, and there is a strong mutual antipathy between the father and him. At the same time, it was my observation that the mother’s partner presented before the Court in a convincing and forthright manner, including displaying a frank ability to make admissions against his own interests.
Importantly, I must take account of the various positive relationships between the girls and their father. At the same time, Dr G cautions against drawing firm conclusions in relation to such matters, given that abuse and attachment are not mutually exclusive. Nevertheless, it is appropriate that I take account of the observable reactions between the children and their father, which would indicate that they are entirely relaxed and comfortable with him and do not exhibit any signs of fear or reservation that could provide evidence to support conclusions of abuse.
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.

In any event, as Mr Theobald suggested, the father's family have filed affidavits in support of the father's case and those affidavits disclose two critical matters. Firstly, they were all absolutely convinced that the children were not at risk from the father, and each presented as having a closed mind on that topic, and, secondly, they each presented as having extremely poor opinions of the mother, and appeared to bear her a good deal of ill-will. Two of the essential features of the role of supervision are a vigilant mind and the capacity to engender trust in the absent parent. There is a distinct lack of evidence of either feature within the father's family option.
Regrettably, the only viable alternative is to continue to have the contact supervised at a professional contact centre. Traditionally, the scope of such contact is limited by available resources. It needs to be observed that long-term supervision of contact, certainly of the limited type made available by contact centres, is not viable or likely to be in the children's best interests. Children tend to become resistant to the confinement of contact centres and either become resentful of the whole exercise or, alternatively, resentful of the curtailment of their time with the parent under supervision. For obvious reasons, it is not an environment likely to provide children and parents alike with the scope for significant enhancement of relationships.
Regrettably, given the ages of the children and the way the case has been presented, it is the only option available, at least in the short term. Perhaps when the children are a little older, and the father has been given the opportunity to consider and propose some other appropriate options, the question of the terms and conditions of any ongoing contact may be revisited. It will be for the father to firstly satisfy the mother that his proposals are safe and appropriate, and if he is unable to do so, he will then have to satisfy a Court, on some properly presented case, with clear proposals and supporting evidence, that a variation to the terms of contact should be made. Given the ages of the children, my findings and consequences thereof, and the burden of litigation, I would not anticipate that it would be appropriate to bring any such application inside a period of, say, at least 12 months.
In the meantime, it is necessary to examine the logistics of the contact centre regime. In the past, the parties have used a contact centre in northern NSW, and that centre remains an option available to the parties and their children. It is common ground, and hardly surprising to hear, that the girls are struggling with the long distances to be travelled which are necessary to enable them to participate in contact at the NSW centre. Unfortunately, this burden appears to be having an adverse impact upon the girls' enjoyment of contact, with individual girls exhibiting resistance to contact from time to time. It is to be anticipated that such a trend would be unlikely to abate if the current travel requirements remain.
The father did seek orders requiring the mother to relocate to the northern NSW region to better facilitate his relationship and contact with the children. My finding and consequential orders for limited supervised contact negate the need to contemplate my capacity to, in fact, require the mother to move and to consider the merits of such an application.
The mother has proposed that the parties alternate contact centres between northern NSW and Brisbane, and that prospect was not resisted by counsel for the father. Although the mother chose to move to Brisbane and the father will find the task of travelling to Brisbane difficult physically, the focus must remain upon the children. Under such a regime, the children will be required to travel to northern NSW only once per month, rather than fortnightly, and this manoeuvre should hopefully reduce the children's resistance to that exercise.
Unfortunately, orders for joint parental responsibility are simply not appropriate in this case. The mother presents as having a genuine concern that the father has sexually abused their children. She would find it extremely difficult to be inclusive of the father in that context. The parties are unable to communicate amicably, and there has been physical violence, at least on the occasion of separation, from the father to the mother. There has also been a serious physical altercation between the father and mother’s partner. There is open hostility between each of the households, including extended family on the father's side. Finally, there are very serious logistical and geographical impediments to a viable arrangement for joint parenting.
Having regard to those determinations, I therefore make the following orders:
1     That the children, a daughter born in May 1999, and the twin daughters, each born in August 2000, live with the mother.
2     That the mother have sole parental responsibility in relation to the children.
3(a)   That the children spend time with the father for up to four hours, or such lesser time as a contact centre can make available, each alternate weekend on a Saturday or Sunday as may be accommodated by the contact centre.
(b)That such contact between the children and the father be supervised.
(c)That the fortnightly contact alternate between the I Contact Centre at northern NSW and the L Contact Centre, or if the L Contact Centre is unavailable to provide such services, such other contact centre in the Brisbane or Gold Coast regions as may be available to accommodate the children.
4     That the mother take all steps necessary to secure the services of the L Contact Centre, or such other contact centre in accordance with the provisions of para 3(c) hereof.
5     That the mother deliver the children to the contact centres at the commencement of each contact period.
6     That the father have telephone communication with the children each Wednesday night at 6 pm Queensland time, with the father to initiate such telephone calls and the mother to provide the father with a contact number at all times.
7     That after the expiration of 12 months, the father be at liberty to apply in relation to the conditions of ongoing contact.
8     Property Settlement: It is ordered by consent by way of property settlement between the parties that the funds held at the Commonwealth Bank, M, in the names of the husband and the wife be paid out as follows:
(a)To WP Lawyers, the sum of $163,037.72, plus 40 per cent of all interest accrued on the account since inception, in trust for the wife; and
(b)The balance to Stacks in trust for the husband.
9     That otherwise each party retain as against the other all property presently in his or her possession or control.

____________________________

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan.

Associate:
Date:

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HOUSTON & HOUSTON

[2007] FamCA 228

28 February 2007

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