IDANOV & DUNSTABLE
[2016] FamCA 544
•7 July 2016
FAMILY COURT OF AUSTRALIA
| IDANOV & DUNSTABLE | [2016] FamCA 544 |
| FAMILY LAW – CHILDREN – final parenting orders – mother alleges sexual abuse of three children by father – where the children have participated in multiple interviews with professionals – where the mother’s reporting of the children’s allegations is inconsistent – whether the parents should have equal shared parental responsibility – whether the mother has coached the children to make false allegations against the father – whether the children spending unsupervised time with the father amounts to an unacceptable risk – whether the children’s time with the father should be supervised. |
| Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 68P Evidence Act 1995 (Cth), ss 128, 140 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 |
| APPLICANT: | Mr Idanov |
| RESPONDENT: | Ms Dunstable |
| INDEPENDENT CHILDREN’S LAWYER: | Logie-Smith Lanyon |
| FILE NUMBER: | MLC | 7400 | of | 2014 |
| DATE DELIVERED: | 7 July 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 5, 6, 9, 10, 11 & 12 May 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Devries |
| SOLICITOR FOR THE APPLICANT: | Berry Family Law |
| COUNSEL FOR THE RESPONDENT: | Ms O'Connell |
| SOLICITOR FOR THE RESPONDENT: | Altavilla Vessali |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Gardiner |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Logie-Smith Lanyon |
Orders
IT IS ORDERED THAT
All previous parenting orders be discharged
The mother have sole parental responsibility for the major long term issues of the children B born … 2007, C born … 2009 and D born … 2011 (“the children”).
Except in the event of an emergency involving the children, the mother shall consult the father about decisions to be made in the exercise of her sole parental responsibility as follows:
(a)the mother shall inform the father, in writing, about the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and
(b)the mother shall give the father fourteen (14) days thereafter to respond; and
(c)the mother shall consider the father’s views/response when coming to her decision; and
(d)the mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.
The mother and father shall:
(a)keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within 24 hours of such change; and
(b)keep each other informed of the names, addresses and contact details of any medical or other health professionals who treat the children, or any of them; and
(c)inform the other as soon as is reasonably practicable of any serious medical condition, significant health issue or illness suffered by the children, or any of them; and
(d)keep the other informed of the details of any school, educational facility or extra-curricular activity provider attended by the children, or any of them.
By this Order, the mother and father authorise any day care, school, educational facility or extra-curricular activity provider attended by the children to provide to each parent, at that parent’s request and cost, all information about the children’s educational progress and school related activities.
By this Order, the mother and father authorise any medical or other health professionals who treat the children to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about his attendance and treatment.
The children live with the mother.
Unless otherwise agreed between the parents in writing, the children spend time and communicate with the father for a period of up to:
(a) 3 hours on a weekday each week after school; and
(b) 5 hours on a weekend day each week;
with such time to occur on a supervised basis at E Family Services, or such other independent professional supervision service or contact centre as recommended by the Independent Children’s Lawyer and at such times as may be facilitated by that supervision service.
For the purpose of the children’s time with their father pursuant to Order (8) herein, and insofar as is necessary, the parents shall both register with the nominated supervision service and complete an intake interview and attend to all other requirements of that service to facilitate supervised time between the children and the father.
The costs of the children’s supervised time with their father pursuant to Order (8) herein shall be paid by the father.
The appointment of the Independent Children’s Lawyer is to be discharged after a period of 30 days from the date of this order.
IT IS NOTED
Pursuant to s 68P of the Family Law Act1975 (Cth) (“the Act”), these orders are, and may into the future continue to be, inconsistent with an existing family violence order made by the Magistrates’ Court of Victoria. That inconsistency arises by virtue of the father named in these orders spending time with the children, albeit supervised. Insofar as it is considered necessary, further reasons for any inconsistency are contained in the Reasons for Judgment which follow.
Pursuant to s 68P(3) of the Act it is directed that sealed copies of these orders and Reasons for Judgment be sent by the Melbourne Registry of the Family Court of Australia to:
(a)the Registrar of the Magistrates’ Court of Victoria at Melbourne and it is requested that a copy of this order be retained upon that Court’s file regarding Case Number …; and
(b)the Chief Commissioner of Police for the State of Victoria for noting as being inconsistent with a family violence order made by the Magistrates’ Court at Melbourne under reference …; and
(c)to the Director-General, Department of Health and Human Services.
A copy of these orders and the Reasons for Judgment published this day may be provided to any Magistrates’ Court of Victoria for the purposes of consideration relating to any application issued by the mother for a family violence order including an extension of any such application.
IT IS FURTHER NOTED
After the expiration of the appeal period, all subpoenaed documents shall be destroyed or returned to the persons or institutions from which they emanated and all exhibits shall be returned to the party by whom that exhibit was tendered
IT IS NOTED that publication of this judgment by this Court under the pseudonym Idanov & Dunstable has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 7400 of 2014
| Mr Idanov |
Applicant
And
| Ms Dunstable |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The mother and the father are litigating about competing proposals for parenting orders pursuant to Part VII of the Family Law Act1975 (Cth) (“the Act”). There are three children of the marriage: B aged eight years, C aged seven years and D aged five years.
The parents were married for almost seven years and separated on 7 August 2012, when the mother alleges that C complained that the father had sexually abused her on that day when the mother was at the supermarket with the other children. The children have lived with the mother since separation. The father is currently spending professionally supervised time with the children pursuant to interim orders made in June 2015.
The Independent Children’s Lawyer was appointed to independently represent the interests of the three children.
The proceedings were initiated by the father in the Federal Circuit Court in August 2014 and subsequently transferred to this Court on 24 February 2015. The father seeks an order for equal shared parental responsibility for the children. At the commencement of the trial the father sought that the children reside with him and spend time with the mother. At the conclusion of the trial, the father ultimately sought that the children continue to live with the mother and spend unsupervised time with him on a gradually increasing basis, culminating in spending time in alternate weeks with each parent: such graduation commencing, for the first three months following the making of orders on an unsupervised basis each week for four hours mid-week from after school and five hours each Saturday; with time increasing each three month period thereafter. The father proposed that, commencing twelve months from the making of orders, the children spend equal time with the parents, week about, for the first term school holidays; thereafter for half the term school holidays and on a week about basis in the long summer holidays of 2017/18. The father’s proposal thereafter was that the long summer school holidays be shared equally between the parents and he detailed arrangements for the children’s time with their parents on special days.
The mother seeks an order for sole parental responsibility for the children. It is the mother’s case that there is an unacceptable risk of the children being sexually abused in the unsupervised care of the father. It is the mother’s case that, in addition to C’s allegations made in August 2012, D and B have also made complaints that the father has sexually abused them and that B has seen the father putting his hands down C’s pants while watching television. C and D have been interviewed by Victoria Police. B has not been interviewed by police.
The father denies all allegations and no charges have been laid against him. It is the father’s case that the mother is responsible for causing the children to make false allegations of sexual abuse against him because of the acrimonious relationship between the parties. It is also the father’s case that the mother has failed to facilitate his relationship with the three children and continues to do so.
The mother proposes that the children live with her and initially proposed that their time with the father be “reserved”: that is, she proposed that the children spend no time with the father. At the conclusion of the trial, the mother proposed that the father spend supervised time with the children weekly for up to 3 hours after school and up to 5 hours on a weekend day each week. She proposed that all such times be supervised by Ms E of E Family Services, who is currently responsible for supervising the children’s time with their father, or some other professional supervisor as agreed between the parties and that the father bear the costs of the supervision. She also proposed that the father attend counselling in accordance with the recommendations in the family report and that the children attend at the F Hospital, G Centre (“G Centre”) for counselling in accordance with the recommendations in the family report.
The Department of Health and Human Services (“the Department”) have also investigated the complaints made by the children and recommended that the children live with the mother and that the father spend supervised time with the children at a contact centre. The Response received by the Court in January 2015 from the Department, [1] prepared by Mr H (“the Department Response”), also recommended that the children attend G Centre for therapeutic counselling and that there be a further forensic assessment of the children.
[1] This response from the Department of Health and Human Services was received following the notification of a Notice of Risk of Child Abuse, Family Violence or Risk of Family Violence filed by the mother on 7 November 2014, pursuant to s 67Z of the Act
At the commencement of the hearing, the Independent Children’s Lawyer did not express a view as to what parenting orders might be in the best interests of the children. At the conclusion of the trial, the Independent Children’s Lawyer supported the proposal of the father regarding equal shared parental responsibility and for the children to spend unsupervised time with the father. The Independent Children’s Lawyer proposed a graduated regime for the children to spend four hours each week for a period of three months with the father, followed by a period of four hours each Wednesday and each Saturday from 9 am until 6 pm for a further period of three months. Thereafter, the Independent Children’s Lawyer proposed that the children spend each alternate weekend from 9 am Saturday until 5 pm Sunday with the father for three months, followed by each alternate weekend from 5 pm Friday until 5 pm Sunday on an ongoing basis. Thereafter, the Independent Children’s Lawyer proposed that the school term and long summer holidays to commence in the first term of 2018 be shared equally between the parties and proposed further spend time arrangements for special days.
A most unfortunate but inevitable feature of these proceedings is that the children have been subjected to many interviews. They have been serially questioned by the mother, the police, in the case of C and D, workers from the Department, and the family consultant. This may be a reason for inconsistencies in the children’s accounts as they have matured. It can be assumed that the children have also had their own discussions with each other in the absence of any adult over a period of about four years before trial.
Background
Federal Circuit Court proceedings
On 22 August 2014, the father filed an application for final and interim orders in the Federal Circuit Court seeking to spend significant time with the children and to have equal shared parental responsibility.
On 16 October 2014, the mother filed a Response by which she sought sole parental responsibility, for the children to live with her and for the father to have supervised time with the children. The mother also filed a Notice of Child Abuse setting out the 2012 allegations.
On 24 October 2014, the parents and children were interviewed by Mr I, a family consultant, for the purposes of preparing a memorandum pursuant to s 11F of the Act. Mr I subsequently gave an oral report to the Court that day.
Also on 24 October 2014, Orders were made by consent before Judge O’Sullivan providing for the children to live with the mother and spend time with the father on an unsupervised basis, each Saturday from 9 am to 7 pm, Wednesday after school to 6 pm and on other special days.
On 7 November 2014, the mother filed an Application in a Case seeking to transfer the case to the Family Court for consideration for inclusion in the Magellan List, for the children’s time with the father to be supervised and for an Independent Children’s Lawyer be appointed.
In her affidavit filed in support of that application, the mother alleged that the father had sexually abused D on a contact visit on 25 October 2014 – being the day after the making of the consent orders permitting the children to spend unsupervised time with him. The allegations were referred to the police and the Department.
Also on 7 November 2014, the mother filed a Notice of Child Abuse alleging that the father had sexually abused D.
On 23 January 2015, a Response was received from the Department setting out the history of the parents’ and children’s involvement with the Department; including reports made in 2012, October 2014 and November 2014 (“the Department Response”).[2] The police Sexual Offences and Child Abuse Investigation Team (“SOCIT”) advised the Department that D had stated to them “I drank daddy’s penis”. However, D did not pass “the truth and lies test” or the word test. Accordingly given this and the children’s ages, SOCIT were of the view that the disclosures could not be used in criminal proceedings.
[2] This response from the Department of Health and Human Services was received following the notification of a Notice of Risk of Child Abuse, Family Violence or Risk of Family Violence filed by the mother on 7 November 2014, pursuant to s 67Z of the Act
In November 2014, C disclosed without prompting to the Department that the father “puts his hands down my vagina”. She also said that “one time I told him to stop because it hurted (sic), he was wobbling it, the little circle inside it”.
B initially raised no concerns with the Department workers but later informed them that “after cricket dad took me into his office and told me to suck his penis. I would get an ice cream if I did it and would go to the naughty corner if I didn’t.” This apparently occurred when B was 4 or 5. B also told the workers that he had seen the Father put his hands down C’s pants.
The Department recommended that the children remain with the mother and the father have supervised time with the children at a Contact Centre. They also recommended that the children attend G Centre for therapeutic counselling and there be a further forensic assessment of the children.
On 18 February 2015, the mother filed an affidavit in which she alleged that in November 2014, B informed her that he had also been sexually abused by the father. The allegations against the father by all three children involve him asking them to touch, lick and suck his penis, as well as touching C’s vagina inappropriately.
On 19 February 2015, the father filed a Response to the Application in a Case seeking a dismissal of the orders sought by the mother.
On 24 February 2015, Judge O’Sullivan transferred the proceeding to the Family Court.
Family Court proceedings
After the appointment of an Independent Children’s Lawyer, the Department prepared a Magellan report on 2 April 2015 (“the Magellan report”).
On 15 April 2015, Senior Registrar Fitzgibbon made orders suspending the children’s time with their father and requiring the preparation of a psychiatric and psychosexual report in respect of the father and a psychiatric report in respect of the mother. The matter was adjourned for further hearing to 25 June 2015.
On 25 June 2015, upon the receipt of the psychiatric report when the matter returned, Senior Registrar Fitzgibbon reinstated the children’s time with their father, on a supervised basis, to occur three hours on a weekday evening and up to five hours on a weekend day. Further orders were made in relation to the filing of trial material and the preparation of a family report. The children have been spending time with their father on a supervised basis in accordance with that Order since August, however, the supervision service had not been able to facilitate twice weekly time, so the children were only spending four hours weekly with the father, on a weekend day.
The matter was set down for trial commencing on 8 December 2015 but was not ready to proceed to final hearing until 5 May 2016.
The relevant law
These proceedings are brought under Part VII of the Act. In making any parenting order, the children’s best interests are the paramount consideration mandated under s 60CA of the Act.
What orders are in the best interests of the children must be determined in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.
Determining the children’s best interests
Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in the child’s best interests.
Primary considerations
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The key issue here is whether there is an unacceptable risk of the children being exposed to sexual abuse in the unsupervised care of the father when they spend time with him such that it overrides the benefit to the children of having a meaningful relationship with the father. A meaningful relationship with the father would be of benefit to the children, provided it does not expose them to unacceptable risk and is otherwise in their best interests.
Although Part VII of the Act has been amended, the substance of the principles expressed in the decision of the High Court in M v M (1988) 166 CLR 69 (“M v M”) apply in determining parenting orders in a case involving allegations of sexual abuse.
The fact that a case involves an allegation of sexual abuse does not alter the Court’s paramount obligation to determine what is in the best interests of the child and make orders that will best promote them. The High Court in M v M pointed out that the determination of the best interests of the child should not be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.[3]
[3] Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ at 76.
An allegation that a parent has sexually abused a child is often easy to make but difficult to refute. As the High Court stated in M v M:
…There will be many cases…in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.[4]
[4] Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ at 77.
A positive finding that the allegation is true should not be made unless the Court is so satisfied on the balance of probabilities and having regard to the factors mentioned by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”). These factors are reflected in s 140 of the Evidence Act1995 (Cth) (“the Evidence Act”).
The evidence does not support a positive finding that the father has sexually abused the children. Counsel for the mother does not submit that any finding should be made. Counsel for the Independent Children’s Lawyer also does not submit that any finding should be made.
In considering the wider question as to whether there is a risk of sexual abuse occurring if the children spend time with the father, the Court must determine:
(a) whether, on the evidence and circumstances, there is a risk of sexual abuse occurring in future; and
(b) the magnitude of that risk; and
(c) whether and how that risk may be addressed; and
(d) whether, because of the nature and magnitude of the risk, there would exist an unacceptable risk that the children would be exposed to sexual abuse by the form of parenting orders made.[5]
[5] M v M (1988) 166 CLR 69 at 77.
Unacceptable risk
In M v M, the High Court referred to the protection of the child’s best interests by endeavouring to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. The test to be applied in considering the magnitude of the risk was expressed as “a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse”.[6]
[6] Ibid at 78.
The “unacceptable risk” test is the standard used by the Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. The finding of unacceptable risk is a finding that the risk of harm to the child in having access with a parent outweighs the possible benefits to the child from that access.
The High Court stated in M v M that “[i]n access cases, the magnitude of the risk may be less if the order in contemplation is supervised access”.
In Johnson & Page (2007) FLC 93-344 at [68] (“Johnson & Page”), the Full Court endorsed a list of principles emerging from M v M, as enunciated by Fogarty J in his extra-curial essay “Unacceptable risk – A return to basics”. Since then the Full Court in Slater & Light (2013) 48 Fam LR 573 (“Slater & Light”) has referred to what was said in Johnson & Page with approval.
The following summary was set out by the Full Court in Johnson & Page at [68]:
1.The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2.The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3.Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4.The circumstances if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5.The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6.The onus of proof in reaching that conclusion is the ordinary civil standard.
7.But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
In W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 (“W & W”), the Full Court stated at [111] that the questions posed by Fogarty J in N & S and the Separate Representative (1996) FLC 92-655 (“N & S”) provide a framework which may assist a trial Judge to assess future risks to a child. Those questions are:[7]
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom has the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
[7] N & S and the Separate Representative (1996) FLC 92-655 at 82,714, endorsed in W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 at 79,909.
These questions were highlighted by counsel for the Independent Children’s Lawyer in final submissions when he referred to a decision of Brown J at par 37 in McCoy v Wessex [2007] FamCA 489 (“McCoy v Wessex”).
Evidence
The documents relied upon by each party are listed in Annexure A. The father, the mother, a police officer and the family consultant Mr I were cross-examined. The expertise of the family consultant was not challenged.
An undated Department Response to the mother’s November 2014 Notice of Child Abuse (“the Department Response”) and a Magellan report from the Department dated 2 April 2015 (“the Magellan report”) were in evidence before the Court. The author of the Department Response, Mr H, and the author of the Magellan report, Ms J, were not cross-examined in the trial.
An Aide Memoire compiled from the documentary evidence, detailing the complaints made by C and B to the mother, the workers from Department and the family consultant, was utilised by agreement between the parties and the Independent Children’s Lawyer. This table is not evidence but was referred to throughout the trial. It was of assistance in making comparisons of the complaint evidence of the children as recorded.
The father had made recordings of conversations between the parties on his iPhone which he had transcribed into an affidavit filed 2 May 2016. He claimed that the mother was aware of the recordings being made at the time although this was disputed by the mother during her cross-examination. The mother did not object to this evidence being admitted and it was admitted into evidence as being relevant and probative.
It is not practical to comprehensively discuss in these reasons every aspect of the evidence, documentary and oral, in the trial. I have taken the totality of the evidence into account. If particular evidence is not mentioned here, it should not be assumed that I have disregarded it.
Standard of Proof
When determining what final orders the Court should make, the relevant standard of proof is the balance of probabilities (the Evidence Act, s 140). Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.[8]
[8] Evidence Act 1995 (Cth) s 140.
There are serious allegations made by the mother about complaints she claims were made to her by the children about the conduct of the father. The children have also made complaints to workers from the Department. C and B also complained to the family consultant. The father denies the allegations. C and D were interviewed by police. B was not interviewed by the police at any stage. After an investigation no charges were laid by police.
Credibility
Counsel for each of the mother and father made various submissions about the credit of the other party.
Counsel for the father submitted that the mother’s evidence – that she could not countenance any situation in which the children’s time with their father would be unsupervised regardless of whether the Court found he posed an unacceptable risk or not – is contrary to the ultimate position advanced by her. The mother’s final position was that, in the event the Court was not persuaded the father posed an unacceptable risk to the children, the children’s time with him ought to occur in the manner she proposed, albeit unsupervised.
Counsel for the father further submitted that the mother was an unreliable witness: that she gave “editorialising non-responsive answers” to questions and would say “whatever it took” to promote her case. In support of this proposition he pointed to the following as being deliberate attempts to misrepresent the evidence:
·That when it was put to the mother in cross-examination that she had provided the father with an application for a contact centre and told him if he did not sign it he would not see the children, she denied the same until confronted with the email by which that application was provided (Exhibit D);
·D’s non-attendance to spend time with his father was, according to the mother, a matter agreed between the parties and the mother produced text messages that she said evidenced such agreement, however the content of those messages could not be said to demonstrate any kind of agreement between the parties to that end; and
·The various differing accounts of prior events contained in affidavit material sworn by her previously in the proceedings.
In her closing address, counsel for the mother referred to the father’s refusal to answer questions concerning finances and the allegations that the father had a gambling account in the mother’s name, credit cards in the mother’s name and borrowed money in the mother’s name. It was submitted that the father’s refusal to answer these questions diminished his credibility. Counsel for the mother submitted “that [this] calls into question the husband’s credibility, as does his refusal to answer those questions…”[9]
[9] Transcript of proceedings of 12 May 2016 at page 22, lines 23-40
The allegations
Given that the parties were ultimately agreed that the children should continue to live with the mother, it is logical to consider the mother’s case first – that is, to consider whether the children spending unsupervised time with their father would put them at an unacceptable risk of suffering physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
It is the mother’s case that the children would be at an unacceptable risk of being subjected to harm if they were to spend unsupervised time with their father. She says this risk arises because the children have made complaints to her that the father has behaved in a sexually abusive manner toward all three children. She particularises four occasions on which she says the children made complaints to her about sexual abuse by their father:
· When B was about two and half; and
· On 7 August 2012, when C complained, which led to the parties’ separation; and
· On 25 October 2014; and
· On 12 November 2014.
The father strongly rejects any assertion that he has behaved in an inappropriate manner toward any of the children. He contends that the mother has coached the children to make the allegations against him. He maintains that this conclusion is supported by :
·the various inconsistent accounts provided by the mother of the children’s descriptions of what occurred;
·the inconsistent accounts of the children to the workers from the Department and the family consultant;
·the timing of each allegation. The father suggests that the mother has used C’s complaint as an excuse to separate from him and that the later allegations were raised at a significant time in the parents’ post-separation relationship; and
·the mother’s negative attitude toward him.
The alleged historical assault against B
The mother deposes that when B was approximately two and a half years old, that being in or about early-2010, he complained to his mother that the father had laid him on the bed and touched his penis and that it (his penis) was sore. She says when the father returned home that evening, she told him about what the child had said, at which time, she says, the father became verbally aggressive toward her saying, “how dare you accuse me of such a disgusting thing?” and accusing her of being “sick in the head”. She says she was intimidated by the father and so let the issue go.
The father denies this ever happened. He deposes that he does not recall the mother raising any allegation of this nature with him and that it did not happen. He does not recall having an argument with the mother about allegations he “interfered” with B, he says she did not confront him with allegations of that nature. His evidence is that the first time he was aware of that allegation was when he saw the mother’s affidavit.
In August 2012, according to the Department Response, a notification was received in relation to allegations the father had sexually assaulted C. Included within that report was detail about an historical incident in which B is said to have alleged the father “pulled it” (in reference to his penis) but that when the mother confronted the father with this allegation he denied it and she dismissed the matter.
The alleged 7 August 2012 assault on C and the parents’ separation
The mother deposes that on 7 August 2012, she left C in the father’s care while she took the two boys shopping with her. C was, at that time, nearly three years old. The mother deposes that later that afternoon, when the father had gone to work, she had dropped B at kindergarten and put D down for a nap, when she decided to make a batch of cookies with C.
She deposes that when she suggested that C go to the bathroom before they began baking, the child said she did not need to go because she had already been with her father. The child then reported, “he [the father] put me up here [the bathroom bench] and lay me down with [a white towel]”. She says at this time she observed that items which were usually on the bathroom counter were out of place.
The mother asked C why the father had put her on the counter and the child said “so I can suck his gina”. The mother sought to clarify and asked C, “daddy’s gina?” and C replied, “oh no I mean daddy’s penis.” The mother sought to clarify with the child that what she had reported actually happened and the child said, “Yes and then he gave me a chocolate shell and told me it’s a secret and not to tell mummy or B”. The mother then asked C if she had done this before and the child said she had, “at the other house, at night in daddy’s office”.
The mother deposes that she and C proceeded to make the cookies they had planned earlier. She says partway through the process, she telephoned the father and advised him that their marriage was over and suggested he return home to “sort everything out”.
She told him that C had told her “everything” and then told him that she did not want him to come back to the house.
The mother then took the two younger children to a local police station and informed them that she was leaving the father that afternoon and she had concerns for her safety. The mother did not inform the police what the child had told her earlier that afternoon. She says she was “unable” to do so because she was in shock and could not function properly.
When the father returned home that afternoon, the mother deposes that they argued, and the father accused her of having lost her mind. She deposes that he said, “You have accused me of this before and it was all bullshit”. She says the father accused her of making the allegation as a ploy to leave the marriage.
The father denies ever saying anything to the effect that the mother had accused him of this before. He says the mother never particularised what she was accusing him of during their argument, but rather continued to use phrases like, “You know what you’ve done” and he responded by saying, “Whatever you’re doing or trying to do is … wrong”. He says, despite the mother’s failure to particularise the accusation, he understood that he was being accused of inappropriate behaviour toward C.
The mother deposes that the father then attempted to offer an explanation, asking if she wanted to know his “version” of what happened. The mother deposes that the father then told her that he had taken C to the toilet while the mother was at the supermarket at which time the child had complained that her vagina was sore and he put her on the bench and applied cream. The father maintained during cross-examination that he had assisted to toilet C and that he had applied cream to the child.
The mother considers this explanation to be unlikely because she deposes that the father “had never attended to the child’s physical needs in the past.” The mother also deposes that the father said, “Anyway, is she coming to you crying and upset? No.”
The parents then argued about who would leave the former matrimonial home.
The mother deposes in her affidavit that she tried to telephone Child Protection however the call did not connect and she then decided to wait until the next morning.
The father left the residence for a time. The parents’ argument continued later that evening. The mother telephoned the police who attended at the home. At this time, the mother told them about what C had said earlier that day. She deposes that two detectives from SOCIT attended the parties’ property at approximately 9.00pm and considered that it was unlikely that there would be any DNA evidence and given that C was asleep it was best not to disturb her.
On 7 August 2012, the Department received a notification in relation to the safety of the children. The Department Response records that it was reported that C had “disclosed” to her mother on that day that the father had laid her down on the kitchen bench and had put his penis in her vagina and in her mouth.
In the mother’s affidavit filed 16 October 2014, the mother’s recounting of what C said is as follows at [23]:
He had touched her gina with his fingers and it hurt a little. I asked her if daddy had put cream on her vagina because it was sore and she said, “No it wasn’t sore that day”.
During cross-examination, the mother maintained that the children were unaware of the parents’ argument at the time when the police attended the home, because she had shielded them; she stated that “the children were in the car. I had the music turned up loud. I was protecting them wholly about the situation. Once everything had been sorted and the police left, the children asked why the police was there and I specifically said to them, ‘Don’t worry about it, kids. Just something had happened at the other house and they just had to come and talk to daddy about it.’ They were completely and utterly unaware of any issue whatsoever”.
There are inconsistencies between what the Department Response records of what C is reported to have said and the mother’s sworn material. There is no reference in the Department Response or the Magellan report to this conduct happening on more than one occasion, unlike the mother’s sworn material which details the child disclosing that this had occurred previously.
Whereas the Department records that the child said the father put his penis in her mouth and vagina, the mother’s affidavit material contains no recounting of any allegation that the father inserted his penis into the child’s vagina.
The Department material does not refer to the mother reporting that the father had proffered an explanation for what occurred in the bathroom with C.
Evidence of Detective Senior Constable K
C was interviewed by the police on 8 August 2012 in a video recorded interview where the police were satisfied that she made no disclosures about the conduct of the father which were appropriate for prosecution.
Prior to that video recorded interview a disclosure interview was conducted with C by Detective Senior Constable K who made diary notes verbatim of the responses made by C to questions posed by another police officer (Exhibit 4). The police officer asked the child about the visit made to the child’s house by the police the previous day.
The diary notes record that in response to a number of questions C said “I don’t know”. The diary notes record in response to questioning (“Did he take you into the bathroom?”) the following exchange occurred:
Daddy pulled my pants down, he pulled his pants down he put ? on there (point to vagina) then I lay on the carpet. I sucked his gina.
What else did you do
Secret things
When you say suck
He say do it, he just tell me
What did you do
I jump in w [B]
In the bathroom what did you do
I just wait, dad he came in he wasn’t finished
What do you mean he wasn’t finished
In bath
What is a gina
Where food goes
Where on your body is it (point to lower stomach area)
Does daddy have a gina
No, he has a penis.
The cross-examination of Detective K did not add anything of significance.
Questioning by the mother of C on 9 August 2012
The mother deposes that on 9 August 2012, she sought advice from G Centre. Acting on that advice, the following day the mother deposes that she had a discussion with C about “touching rules”. She deposes that she told C “that I wanted to talk to her about some of the things that happened with daddy and said that some people don’t know about the touching rules, because they either forget about them or maybe their mummy or daddy didn’t teach them, so we needed to make sure that daddy knows about the touching rules.”
The mother then proceeded to ask C what happened two days earlier. At this time the child reported that the father had put his penis in her mouth while they were in the bathroom. She said the father laid a towel on the benchtop and laid her down, removed her pants and touched her “gina” with his fingers and it hurt a little. The child denied that the father had put cream on her vagina because it was sore. In response to her mother’s question, the child also reported that “it” had happened before in her father’s office at the other house.
C was interviewed by police again on 14 August 2014; however the contents of that interview are not in evidence. The Police coversheet referable to that interview, as contained in the Aide Memoire, and put to the mother during cross-examination reveals the following notes:
Nil disclosure was conducted on this occasion … Again the victim struggled a little with truth and lies. When asked why the victim was here at the police station she responded with “I can’t remember.” After a while the victim stated that “mummy had to teach daddy no [sic] to do that.” The victim then stated “I suck his gina.” When asked where a “gina” is the victim pointed to her vagina area but said that girls have a “gina” and boys have a penis but then said “Daddy has a gina.” The victim stated that he lay her down and got a white towel. The accused then put white soap on hand and put it on her gina. When he was finished he gave the victim a chocolate sea shell and told her not to tell anyone about the chocolate. This all happened whilst her mother and two brothers were at the supermarket.
The victim stated that she was on the toilet but didn’t do wee’s or poo’s and then the accused came in and lay her down on the white towel and rubbed the white soap on her (from a squirter thing).
The victim couldn’t describe what suck meant or what she used to suck.
“I just think are you going to give me a prize?”
The mother’s statement to police on 22 August 2012 (Exhibit 3)
On 22 August 2012, 15 days after the alleged incident, the mother made a formal statement to the police about what happened on 7 August when C first complained (Exhibit 3). The mother states that upon her return from the shops with the two boys C was in the same position on the couch as when she left. She states that when they returned home, B started calling for C and as she was putting the groceries away she saw the children whispering.
About 12:30 the father went out and the mother took B to kindergarten across the road and put D to sleep at home.
She states that before she and C started baking, she suggested the child go to the bathroom and the child responded “I don’t need to, I already went in here with Daddy and the he put me up here…with that [a white towel]”. She says when she asked the child why the father had put her on the bathroom bench the child said, “So I could suck his gina and then he gave me a chocolate sea shell”. The mother then asked, “His gina, that sounds a bit silly, are you sure?” and the child replied, “Oh, I mean his penis”.
The mother states “I asked if this was supposed to be a secret and C said that she was not supposed to tell me or B.” The mother then goes on to describe clarifying with the child how she was lying on the bench and the child physically demonstrating her position. She states: “I was conscious of trying not make a big deal of what she was telling me so I didn’t go into too many questions. I did ask if she had done this with daddy before and C replied ‘Yes at the house, at night time, in the office.’ ’’
The mother describes how she went into the backyard and rang the father to tell him that she needed him to come home straightaway, that the marriage was over and C had told her everything. She then told him not to come home and hung up. She then became scared that the father would come home and went to the police and told them she was leaving her husband that afternoon and she was concerned for her safety. She stated “I was still processing everything that C had told me and I didn’t feel that I was ready to disclose it all to the police at that moment in time” but that the police were very sympathetic.
She states that she sent a text message to the father saying that she had been to the police station and registered that she was leaving him and that she was concerned for her safety.
The mother states after the father left in the afternoon she made a number of telephone calls to try to obtain some advice. She says she spoke with someone at Lifeline and told them the “full story” and they provided her with a number of other contact numbers, however she did not have an opportunity that night to contact those services.
She states that when the father returned home later that evening she telephoned the police in circumstances where the father’s van was parked behind her car stopping her from leaving the house with the children and threatening and verbally abusing her. She noted that the father was accusing her of making “fraudulent accusations.” Whilst on the phone, she told the policeman she had spoken to earlier the “details about the sexual abuse” and the police arrived later and removed the father from the premises.
The mother then recounts speaking with C a number of days later, having received advice from G Centre about how to speak with the child. She states that she said to C that she just wanted to talk to her “about what happened the other day with daddy” and that she asked the child to give her details about what had happened while she was at the shops.
The mother stated that the child would only speak in short sentences so the mother had to “help her put the events in order.” She says the child then reported that the father asked her to go into the bathroom and he put her on the bench and she had to “suck his penis or gina (I can’t remember the word she used).”
The child then reported that the father put soap on his hands and rubbed it “here” while pointing to her vagina. The mother asked if the child had her pants on or off and the child said off and upon further questioning the child stated the father’s pants were also off.
The mother states that the child :
…then said that he put his finger in there. I said ‘Did he put his finger in?’ and she said ‘Yes and it hurt’ I asked her if she said stop or no but [C] didn’t answer me. I was trying to stay calm because these were details that I didn’t know previously. [C] was quite distracted by her dolls and wanting to play games so I didn’t push her to keep talking about things. [C] was very matter of fact when she was talking to me and I could tell that she wasn’t making it up that she was just to relaying back to me what had happened. I did ask [C] if anything had come out of daddy’s penis when she was sucking it but she said no and didn’t seem to understand. [C] did use the word swallow which was a word I have not heard her use before so that was why I asked this question.
That was the last conversation I had with [C] about the incident prior to making the second statement with the [Suburb L] Sexual Offences Unit.
In her police statement the mother refers to the father’s explanation of what happened when he took C to the toilet. When the mother confronted him when he returned home, she stated that the father said the following:
He was helping [C] in the toilet and she complained that she had a sore vagina, so he put her on the bench and put some cream on her. I asked him what cream he used and he said ‘I don’t know’ and he mentioned some sort of cream that I thought was that brand of nappy rash cream but it could have been Sorbelene cream that is in the bathroom. I still found this strange as [the father] has never tended to any of the kids hygiene, sores or rashes in the whole time we have been together, so why would he do it this time when I was only gone for a short time. He then said ‘You’ve accused me of this before and it turned out to be bullshit’. I asked him not to come back to the house and asked him to find somewhere else to stay tonight so I could work out what I was going to do. He started swearing at me and said it was his fucking house and he wasn’t going anywhere and that if I wanted to leave I could but I wasn’t going to take the kids with me. He also said that it was a plot for me to be able to leave the marriage.
During cross-examination, the mother accepted that her statement to police that she had attended to every single need of C was inaccurate. There was cross-examination of the mother directed to the father’s involvement with the daily needs and care of the children where the mother conceded that the father had on rare occasions attended to some of the children’s needs such as taking C to the toilet, drying her after baths and applying cream to C’s body when she had eczema.
The children’s time with their father immediately post separation
The parents dispute what time the children spent unsupervised with their father following the making of these allegations. Despite these disagreements, it is broadly agreed that this time consisted of daytime time only and did not involve any overnights.
The father asserts that following separation, and in spite of the allegations that he sexually abused at least C, the mother permitted him to spend regular time with the children at the former matrimonial home several times a week, such time including time when she was not present.
The father asserts that the children’s time with him was largely controlled by the mother who, he says, sought to connect the children’s time with him to the financial support he was then providing for her. He details numerous occasions on which, he says, the mother made threats to him to cease facilitating the children’s time with him unless he made specified payments, and threatened to “renew” the allegations against him if he did not abide by her demands.
It is evident that the parties experienced various financial pressures post separation. The former matrimonial home was sold in January 2013, and the mother and children vacated that property in May 2013. Throughout 2013 the parents had numerous acrimonious conversations about their financial position and in May 2014 the mother was declared bankrupt. It is the mother’s broad contention that the father had undertaken various courses of conduct during the parties’ relationship which contributed to her bankruptcy, including dishonestly incurring various liabilities in her name without her consent.
The father deposes to spending time with the children after separation and until June 2013 at the mother’s residence and for activities at a local venue.
The mother deposes that on 10 October 2012, the father was spending time with the children at the former matrimonial home when he accused her of being “cold and heartless” and said he could not believe she was doing this. She also says she told him he was a paedophile and needed treatment at which the father became angry and said he should have beaten her up in front of the children on 7 August 2012. She says after this exchange she sought to have the children spend time with the father at a contact centre and emailed him an application form the following day.
The father asserts that in May 2013, he travelled with the mother and children for a family holiday and they all stayed in the same apartment for a period of two weeks. He says during this holiday he was alone with the children on numerous occasions both at the apartment and elsewhere. He deposes to the mother frequently leaving him alone with the children while she performed errands or left the house for other reasons.
The father says on or about 11 July 2013 he instructed his solicitors to correspond with the mother with a view to finalising the parenting arrangements and proposing that he spend time with the children overnight and on each weekend. He says no response was received to that correspondence, however shortly thereafter, on 27 July 2013, the mother emailed the father as follows (Exhibit D):
Listen you FUCKING ARSEHOLE!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Since you have stopped making payments including my mum’s house you can only see the kids at the contact centre.
You thought I wasn’t serious when I said if my mum loses her house!! This is only the start and by the time I am finished you will probably end up in jail!!
Application is attached. If you don’t complete the application I will cease visits until you do and don’t bother coming to the house anymore!!!!!!!!!
In August 2013, the mother brought an application for an Intervention Order, which was listed for hearing in October 2013. The father deposes that after the first return of that application the mother sought to discuss financial matters. He says he subsequently agreed to continue funding the mother on an interim basis and she allowed the children to spend time with him and withdrew her application for an Intervention Order.
The recordings
The father recorded numerous conversations between himself and the mother during which the mother makes threats of violence toward him and threats to stop the children’s time with him; the transcripts of these conversations are in evidence.
The father’s evidence in cross-examination was that the mother was aware of the recordings. The father does not actually depose that the mother was aware of the recordings in his affidavit. He says he made the mother aware of the recordings by having the phone in his hand and highlighting for her the fact of the recordings taking place.[10] The mother denied that she was aware that she was being recorded at the time. During the recorded exchange of 7 February 2014, the mother says, in response to the father asking her to repeat her statement, “Well quick, tape it.” This could indicate that the mother was aware that the father was recording the conversation, or could be simply be an allusion to the father having allegedly previously videotaped the mother during an incident in November 2013 (see mother’s affidavit paragraph [79] ).
[10] Transcript of proceedings of 6 May 2016 at page 31.
On 7 February 2014, the father recorded a significant argument in the presence of the children. This was the recording produced by the father to the workers from the Department. In that recording the mother asserted to the father that she and the children were living in poverty. As the argument progressed the father suggested the mother needed to “get help”. The mother responded, “I need to fucking get you hit”. She continued, “I said get you fucking hit. Don’t worry, I’ve got people that are fucking sitting there wanting to fucking cut you in a dark alley mate, and I fucking say everyday, just hold a little bit longer.” The mother then said she was going to the police and asked the children if they should go to the police. The mother follows that with “…because I will fucking expose you and your arse will be in jail so quick…so fucking quick.”
The parties then proceeded to argue about bankruptcy and whether it would please the mother for the father to declare himself bankrupt. The mother accused the father of colluding with the Trustee in Bankruptcy, taking money and “put[ting] her in trouble with fucking Centrelink”.
Later during the argument, the mother said, “[You are] fucking 50%. If you don’t want to fucking pay 50% for these kids, then that’s it, we’re fucking done.” Despite the father seeking clarification of her meaning, the mother did not clarify what “done” means. She accused the father of ignoring her attempts to contact him and discuss finances and then said, “You fucking ignore me at your own fucking pleasure… You fucking ignore me. You fucking treat me like shit, and I’m not fucking put it up with it.”
The mother then told the father to leave the house and when he said it was his time that night the mother replied, “It will be your fucking last time unless you start pulling your weight and keep paying…”
At the end of the recording, the father asked the mother why she was sitting there because it was his time with the children and the mother replied that the father is invading her time and that she had let the father come early.
There is no reference to the allegations that the father sexually abused the children during the recorded exchange; the mother references only the family’s financial pressures and the father’s actions in relation to financial matters.
The transcript of those recordings was read by the family consultant, Mr I prior to him giving evidence and he listened to part of a recording of one of those arguments.
The father deposes that in or about May 2014, he informed the mother that he was no longer able to afford to meet the financial expenditure he was then meeting for her and the children and thereafter the mother informed him that he would not be spending any time with the children.
On 16 May 2014, the parents had another argument when the father apparently came to collect the children, the transcript of which is annexed to the father’s affidavit. The mother made various comments throughout that conversation about financial matters, including calling the father a “tight arse fuck”. At the time, B was resisting going with his father and the mother said that the father could not take the other two children without him “because [she] said so…[and because she is] the primary carer of [her] children”. The mother made various veiled threats that things are going to change and referred to an agreement the parents had about the children’s time with their father. When the father referred to it being “his time” with the children the mother told him to bring the children inside and states that “there’s no court order stating that”.
On 21 May 2014, the father brought the children back to the mother’s house and the parents had a further disagreement. On this occasion, the mother asked the father if he was going to pay her rent and when he said he did not have any money the mother said, “Things are about to get a lot worse for you then, a lot worse”. When the mother again asked the father if he was going to pay their rent, and he said he did not have any money the mother’s response was, “Then you’re done…if you’re not – if you’re not keeping a roof over these kids’ heads you’re done. No more. You need to go and see your lawyer. Okay? So don’t’ come back here.”
On 23 May 2014, the parents had a further exchange during which the mother told the father that he was “done” and would not see the children anymore because he was no longer able to afford to pay her rent. She told him that he “no longer had an interest in them” and when he said that it was his day with the children she told him to “go to court” and “get your fucking lawyer” and that it was not his time anymore and that “everything changes”.
The father says from mid-2014, the children recommenced spending time with him, albeit supervised by their mother, and that again the children’s time with him was halted from 26 July 2014. He was not permitted any contact with D on his birthday.
The mother was cross-examined extensively about her attitude towards the father and the impact upon the children. The mother acknowledged that when the father recorded arguments in February and May 2014 that she had lost control and was extremely angry with him about his lack of financial support for the children. The mother accepted the veracity of the transcript made by the father of those confrontations. The mother accepted that the children were present and that her attitude would have been witnessed by them and that they would have been in no doubt about her anger towards the father. She responded in explanation that her response at that time was a “fight or flight response”.
The mother denied having any recollection of these conversations or the specific content. She claimed that it was “an orchestrated event” and that the father had been baiting her all day with text messages. She conceded that she was “beside herself” and “wound up to the extreme”. She claimed that she was not sure if the children were there at the time that she told the father that she would “get him hit” and “cut” in a dark alley. She stated that her tone and aggression would have been more alarming to the children than the content, because she didn’t think they would understand it. She conceded that she had “vented to her utmost”. She agreed that there was no censorship and no self-control in her conduct and that she did not raise any of the allegations of sexual abuse with the father at that time.
The mother conceded that she was extremely angry with the father and that she continued to be extremely angry with him. She agreed that her anger had not abated since then but maintained that, since then, she had “taken great lengths to hide” her feelings from the children.
The father filed his Initiating Application on 22 August 2014. When the matter first returned before the Court in October of that year, orders were made by consent that the children live with their mother and spend time with their father on an unsupervised basis on Saturdays from 9.00am to 7.00pm and after school Wednesdays until 6.00pm as well as on special days.
The father deposes that the children then spent time with him on 25 October 2014 at the paternal grandparents’ house and the paternal aunt’s residence and spent some time at a Halloween function at a local cricket club.
The October 2014 complaints
The mother deposes that the children were returned to her care at 7pm on the evening of 25 October 2014.
The following morning, the mother says D woke her and asked to go to the bathroom. She deposes that while in the toilet, the child said he had gone to the bathroom the day before at “[Pa] and [Nana’s] house” (being the paternal grandparents’ house). The child then said “and I drinked [sic] daddy’s penis in my mouth”.
The mother deposes that she was startled by what the child had said and asked him how he did that and the child made “tongue and mouth actions resembling licking and sucking”. When asked by the mother, the child reported that the other children were downstairs and not present.
The mother telephoned the maternal grandmother and then the Police, who told her to bring D in within the hour.
D subsequently had a discussion with a police officer however the child did not say anything about what he had told the mother.
The mother then determined to stop the children spending unsupervised time with their father.
On 28 October 2014, the solicitors then acting for the mother corresponded with the legal representatives for the father advising “our client instructs that she cannot comply with the current orders and seek that your client agree to his time with the children being supervised by her mother until such time as SOCA has finalised their investigation.”
D was interviewed a second time by police on 30 October 2014. The hearsay evidence of the mother is that the child made “a disclosure” during the recorded interview however the police officer observed it was “very hard to get the information they needed from a three year old”. The matter was referred to the Department.
During November 2014, the children spent time with their father largely “supervised” by the mother.
The November 2014 complaints
According to the Department Response, the mother was interviewed by Departmental workers on 12 November 2014. She reported to the workers that C had previously been interviewed by SOCIT officers and had disclosed sexual abuse however no charges were laid given the child’s age. The report does not provide a clear picture of whether C received any therapy from G Centre. The mother told the workers that she was advised by G Centre to educate the children about safety and what to do if they felt unsafe.
The mother reported that three weeks ago the children had spent time with their father and the next morning D had told her that he “drank daddy’s penis” and had made a licking motion with his tongue. She subsequently contacted SOCIT and D was interviewed however made no disclosures of sexual abuse.
The mother told the workers that she contacted her lawyer after this and was advised to continue facilitating time between the children and their father, but that she was fearful to continue given what D had said and what her children had said in the past.
While the mother acknowledged to the workers that there were financial difficulties in the relationship after B’s birth, she reported the father was never physically abusive during the relationship. She did not believe the children could have been exposed to sexually explicit material which might be influencing what the children were saying.
The mother referred the workers to an incident at B’s school on 12 November 2014 when the father attended to collect the child to spend time together pursuant to the October orders. The mother had attended to collect B. She says the father confronted her and was aggressive toward her.
In her affidavit material the mother deposes that at dinner that evening, C asked if they could have a “safety talk”. She says they spoke about car safety, crossing the road safety and body safety. She says she discussed with the children that you are not to touch other people’s bodies and specifically their “private areas”. She said she told the children that no one is allowed to touch their bodies and if someone tries to touch them, they are to tell that person to stop.
C then said to her mother, “Only mummy is allowed to touch our bodies” and the mother told the children that some grownups did not know the touching rules or had forgotten them.
At this point, the mother claims B said, “Mummy I think dad doesn’t know the touching rules.” When the mother asked why he thought that, the child said it was “a bit rude”. The child then told the mother that a while ago, after cricket the father took him into his office and asked him to “suck his penis”. The child stated that it had happened on a few occasions and the father would sometimes buy him things if he did suck the father’s penis as requested.
At this time, C, who had heard the discussion between B and the mother said that the father always puts his fingers in her vagina every time she is at the paternal grandparents’ ([Pa and Nana’s]) house but that the paternal grandparents were always in the kitchen when it happened.
B then told the mother that D had told him the father had done naughty things to him.
The mother told the children she had concerns about what they had told her and that these were not things grownups should do and asked if they would like to speak to someone; they agreed to do so.
The following day, the mother informed the Department of what the children had said to her.
The Department records indicate that on 13 November 2014, the mother reported the children had made further allegations in relation to being sexually abused by their father. She reported on the previous evening, the children had been sitting around the dinner table and C had asked her mother to talk about safety, a common occurrence and one recommended by G Centre. During this conversation, B had said, “I don’t think daddy knows the safety rules”. The mother encouraged the child to explain what he meant by this statement, B reported “a little while ago when dad took me to the cricket before you came home. Daddy tried to make me suck his penis and put me in the naughty corner when I didn’t want to”.
The mother also reported that at this time, C reported that “dad always puts his fingers in my vagina” and spoke of him “playing with the middle part” of her vagina.
The Department records that on 13 November 2014, a worker from the Department spoke with SOCIT and was informed the children had been interviewed and had made “slight disclosures”, including D stating that he had “drank daddy’s penis” but was unable to elaborate further and did not pass the “truth or lies test”. The officer indicated there may be some truth to what the children are saying, however given their ages and the fact that they could not pass the “truth or lies test”, their evidence could not be used in a criminal court.
On 14 November 2014, a worker from the Department wrote that the Department had received a report in relation to the safety of the children and that an investigation was underway. That report also recommended that the children’s time with their father should be supervised until further notice.
The children were interviewed by workers from the Department on 20 November 2014.
Mr H in the Department Response reported under the heading ‘Outcome’:
Child protection has substantiated the sexual abuse perpetrated by the father. [C] has made a clear disclosure to workers and despite her age was able to articulate in significant detail the abuse that occurred… Over the period of my involvement with the family, the mother has presented as protective and able to prioritise the children’s needs. The mother has referred the children to [G Centre] for therapeutic treatment as a result of her children’s disclosures however this cannot commence until the Family Law Court process is complete. The father has denied all the allegations despite [C] making a clear disclosure to Child Protection of sexual abuse perpetrated by her father. Despite her disclosure, [C] continues to want contact with her father as do the other children however [C] does not like the “naughty stuff”. It is not uncommon for children who have been subject to sexual abuse to continue to want contact with the perpetrator especially if this is a parent. Child protection seeks for the children to have a positive relationship with their father however seeks to minimise the likelihood of sexual abuse occurring again.
Mr H assessed that the disclosure was not coached.
The assessment made in the Department Response was that “there is the likelihood of risk of harm to the children in the care of the father and if they have unsupervised contact with him.”
20 November 2014 interviews
C
An interview with C by Mr H and Ms J, in the absence of the mother, is described in the Department Response in the following terms:
During the interview with [C], she disclosed that her father “puts his hands down my vagina” without prompting. She advised that she couldn’t remember the first time this occurred however recalled being at the father’s home in the “television room” and it occurred whilst watching “Spongebob”. She stated it occurred on the couch and that [B] and [D] were in the room when it occurred. When asked if this is the only time when this has occurred, [C] spoke of another incident which occurred at the paternal grandparent’s home whilst the father was having contact with the children. She stated “he sticks his hands down my vagina” and advised that the grandparents were in the kitchen at the time of this occurring. She further stated “one time, I told him to stop because it hurted [sic], he was wobbling it, the little circle inside it.” She advised that he “always wobbles the little circle” inside her vagina. When a safety scale was completed with [C] she advised that she feels 3 out of 10 in safety when with her father. When asked why she feels this way she stated “sometimes I’m sad at dad’s”. She stated she feels sad “when he does all that stuff”.
B
According to the Department Response when interviewed by the workers B spoke positively of both parents but when asked about his father he stated “he’s been naughty”. He referred to an incident at school where the father was taking video as they left and stated, “When we went to the park he tried to take us away.” He said, “We went to the game centre, Mum told us he couldn’t take us anywhere. He tried to take us through the emergency exit.” B did not disclose feeling unsafe with either parent.
B later returned to the workers in the company of his mother and she told them that B had said to her that he forgot to tell Child Protection the “important thing”. The workers asked him about what he forgot to tell them and he stated, “After cricket dad took me into his office and told me to suck his penis. I would get an ice cream if I did it and would go to the naughty corner if I didn’t.” B was asked when this happened and he stated “when I was four or five” he further stated that “I didn’t do it so I went into the naughty corner for 30 minutes and just got out when mummy came home”. B was asked if anything like this had happened to his brother or sister and stated, “He put his hands down [C’s] pants”, “I seen him touch [C]”. He advised that he, D, C and the father were watching “Spongebob” at the paternal grandparents’ home and that he observed the father’s hand down C’s pants for about a minute and stated that he heard the father say to C, “Don’t tell”. B said that he had seen this happen once or twice but could not remember the other times. When asked why he didn’t say anything earlier to workers he stated, “I don’t know”. He was asked if what he disclosed was truthful to which she said, “Yes.”
D
D was also interviewed. The workers observed him to be distracted by his toys. He did not make any disclosures of sexual abuse on questioning.
13 January 2015 interviews
Ms J and a different worker from the Department attended upon the mother and children on 13 January 2015. The children were interviewed again at this time.
C
According to the Magellan report, during that interview C reported that she sometimes felt sad at her father’s house and when asked why, said it was “all the naughty stuff dad does”. She told the workers that she wanted to see her father and was not scared to be alone with him but did not like the “naughty stuff”. She referred to the same information she told workers on 20 November 2014.
B
According to the Magellan report B was interviewed again on 13 January 2015. The workers asked him to identify his worries at each parent’s house and the “happy stuff” at each parent’s house. B identified his worries at his father’s house as being spiders and that the dog might bite him.
He told the workers that he was worried about being left alone with the father and does not feel happy to be alone with him. When asked why he was worried about this he stated “because of the naughty stuff dad does”.
B said he wanted to see his father but wished to live with his mother.
D
On 13 January 2015, when D was interviewed by Departmental workers again, he informed them that he was afraid of the “pussy cat” at his father’s house. He said he was not afraid to be alone with his father but stated “dad done naughty things to me”. He was, despite prompting, unable to elaborate on that statement and appeared unwilling to speak further about it. He reported he was not scared of anything at his mother’s house.
March 2015 interviews
On 26 March 2015, workers from the Department attended at the mother’s residence to obtain an update of the protective concerns known to the Department. The Magellan report of 2 April 2015 outlines what occurred in the following terms.
The mother informed the Department that she had obtained an Intervention Order which included the children as protected persons. She further alleged that the father had been harassing the maternal grandmother by telephoning her regularly, including in the middle of the night, and that she (the mother) had assisted the maternal grandmother to obtain an Intervention Order against the father. The mother also stated that the father had left the mother and children in “financial ruin”.
The Departmental workers interviewed each of the children to obtain an update as to how they were progressing.
D recalled that the workers’ role was “to tell the naughty things” and that “when Dad’s naughty, you’re not allowed to live with Dad.” The child went on to report that his father “does naughty things” but could not, when prompted, elaborate or further detail what he meant by this statement.
C reported that she enjoyed seeing the father and was not sure why she had not been able to see him recently. She could not, when prompted, remember any of the disclosure she had made about the father during the earlier investigation. She reported that she was not scared of her father but would prefer to live with her mother and did not feel unsafe in either parent’s care.
B reported that his father had not given him a birthday present yet and that he was sad that he had not seen his father. He said he missed his father. B then proceeded to disclose similar sexual abuse allegations as he had previously made: that when the family lived in their previous house, the father asked B to “suck on his penis”, that he would get angry if the child refused and would offer him a lolly or ice cream if he did. The child further indicated that when he refused, the father would send him to the “naughty corner” and that he had seen his father’s penis but could not remember what it looked like.
B also reported that he remembered seeing the father touch both C and D inappropriately while at the paternal grandparents’ house. He said that he had been in the kitchen and had walked into the lounge room where he saw the father touching C under her clothing. He recounted another occasion on which he saw the father touching D but could not provide any further detail. He stated that he had never been inappropriately touched by his father while at the paternal grandparents’ house. This was the first occasion on which B reported having witnessed the father inappropriately touching either of his siblings. The child was specifically asked if anyone had encouraged him to say the things he had and the child reported “only mum”. When the officer sought to clarify this comment, B said his mother always told him to tell the truth.
It is obvious that the children have a continuing affection for the father but I accept the evidence of the family consultant that the attitudes of C and B were consistent when they told him that they were sad when the father behaved in the manner of which they complained.
I find that the mother is entirely convinced that the father has sexually abused the three children on more than one occasion and that the children will not be safe spending time with the father unless there is supervision.
I find that the mother has been the primary carer of the children and without doubt has had a major influence over them. In all probability the safety talks have invited further allegations of sexual abuse from the children but the veracity of those later complaints is unclear in the context of the safety talks and the suspicion of the mother overlaid by an acrimonious relationship between the parents about the mother’s financial hardship.
I find that the father withdrew financial support for the children from May 2014 and has not provided them with financial support since then. I find that from May 2014 the financial burden of caring for the children, with the exception of the costs of supervision, has fallen to the mother.
Unacceptable risk
In answering the questions posed in W & W outlined earlier I have come to a number of conclusions. The nature of the allegations by each child is serious. There is no dispute about the recording of what the children said to the workers from the Department or to the family report writer. The workers from the Department were not cross-examined and the account in the reports was not challenged. There is no dispute about the recording of what C said to the police. The allegations have been made between 2012 and 2015 and there is no real clarity about the timing of any of the alleged events complained of by the children other than the event on 7 August 2012 by C when she was aged three.
C
C has made a complaint to the mother and the police in 2012, and in October 2014 to the mother again and workers from the Department. C also made a complaint regarding sexual abuse by the father to the family report writer in September 2015 and demonstrated what occurred with the aid of a doll.
The particulars of the complaints made to the mother by C over time are not clear but refer to “sucking” the father’s “gina” or “penis” and the father touching her vagina and putting his fingers in her vagina, and the father putting his penis in her mouth. C told the police in her first interview “Daddy pulled my pants down, he pulled his pants down, he put on there (pointing to vagina) then I lay on the carpet. I sucked his gina”.
In her second police interview C struggled with the truth and lies test and stated “I suck on his gina”. When asked where a “gina” is C pointed to her vagina area and said that girls have a “gina” and boys have a penis but then said “Daddy has a gina”. She went on to describe the father putting white soap on his hand and then on her “gina” and that this happened whilst her mother and two brothers were at the supermarket. She went on to explain that the father lay her down on a white towel and rubbed the white soap on her (from a squirter thing).
In cross-examination the father provided an explanation of what occurred in the bathroom with C when the mother and the other children were at the supermarket. His evidence was that he had applied cream to C’s general genital area because she had stated that her “bum” was sore. When asked why he applied cream to her genital area if her bottom was sore, he stated that he could not specifically recall the precise place where he had applied cream, stating that it was done quickly as he had to get back to work. The mother gave evidence of this explanation by the father when she first confronted him with the allegations. There was no evidence that this explanation was provided to the police by the father or that he provided this explanation to the workers form the Department or the family consultant.
C told the workers from the Department in November 2014 that her father “puts his hands down my vagina” and stated “one time, I told him to stop because it hurted [sic], he was wobbling it, the little circle inside it.” She told the workers that the father “always wobbles the little circle” inside her vagina. She told them that she feels sad “when he does all that stuff”.
C told the family consultant that the father had touched her and demonstrated the touching pointing to the genital area of a doll and explained that the touching had not been associated with a request from her or because she felt “sore” or needed a wash. She described how he touched her “once” and “in the vagina”. She maintained that the touching only occurred “one time”. She explained that she had felt sad when this occurred because she didn’t like it and that her father ceased when she had told him to stop. She specifically demonstrated the nature of the touching, pointed to her own genital area and placed her finger on the dolls genital area and then moved her finger around. The family consultant confirmed that this was not an accidental movement.
D
D is only four years old. D has made a complaint to the mother that “I drinked daddy’s penis in my mouth” in circumstances where he was heavily under the influence of the mother’s safety talks and discussions with the other children. D has not articulated any specific complaint to the police, the workers from the Department or the family consultant.
The timing of D’s complaint occurring immediately after the mother had regrets about consenting to an order for the children to spend unsupervised time with the father is significant. In these circumstances the veracity of his complaint must be questioned and I find that it is more likely that D’s complaint has been prompted or elicited from questioning by the mother and the influence of the other children. In all likelihood D has made this complaint to the mother or the other children in order to seek favour or attention. I cannot be satisfied that these allegations are reasonably based or genuinely believed by D and a satisfactory explanation would be the influence of the mother and the other children.
B
B has stated to the mother that his father asked him to suck his penis and this was repeated by B to workers from the Department and the family consultant. He has consistently stated to his mother, the workers from the Department and the family consultant that this occurred when the father took him into his office.
It was the unchallenged opinion of Mr H from the Department (see the Department Response) that the mother had not coached the children. It was also the opinion of the family report writer that the mother had not coached the children. The submission of the Independent Children’s Lawyer conceded that the evidence does not support a finding that the mother has coached the children to make these complaints. I am satisfied that the mother has not coached the children to make any complaints against the father.
However I am satisfied that the safety talks engaged in by the mother in 2014 have encouraged the children to make further complaints. The timing of those further complaints made to the mother after the first period of unsupervised time spent by the father with the children raises concern about the veracity of those complaints.
There is confusion in the accounts of the children C and B about the timing and circumstances of the allegations and it is more probable than not that the children would have discussed the allegations on other occasions between themselves. B’s statements that he witnessed the father putting his hands down C’s pants in the TV room at the home of the paternal grandparents are concerning. These statements by B were made to the mother, the workers from the Department on two occasions being 20 November 2014[22] and on 26 March 2015[23] when he was interviewed. B told the family consultant in September 2015 that he had witnessed his father in reference to C and D “squeezing their private parts” in the TV room at the home of the paternal grandparents. The family consultant reported that B was clear that he had seen his father engage in behaviour with his siblings, which involved “squeezing their private parts”.
[22] Undated 67Z, 67ZA Response from the Department of Health and Human Services referring to interview on 20 November 2014
[23] Magellan report from the Department of Health and Human Services dated 2 April 2015 referring to interview on 26 March 2015
Unacceptable risk finding
The contact being sought by the father with the children here is for the children to spend unsupervised time with him with the implementation of an increasing regime of unsupervised care.
In considering the magnitude of the risk, I am satisfied that the risk is unacceptable having regard to the seriousness of the allegations, and the other matters I have found in answering the questions posed by Fogarty J in N & S and the Separate Representative.
The father in his affidavit material did not put his version of events regarding C and the complaint on 7 August 2012 but denied that anything untoward had occurred. The explanation he gave to the mother about applying cream to the child’s bottom was adopted in his evidence in court but does not appear in his affidavit. Of course, the father is legally not required to give any explanation to the police. There is no evidence about whether he was interviewed by the police during their investigation or whether he provided any explanation to the police.
The father was not forthcoming about any of the circumstances surrounding the bankruptcy of the mother notwithstanding that he was offered the protection of a certificate under section 128 of the Evidence Act. This did not assist his credit.
I have carefully considered the whole of the evidence of the family consultant Mr I and whether, as submitted by counsel for the father, he has aligned himself with the mother. I reject that submission because the evidence of Mr I was compelling. Mr I had taken great care to avoid any leading questions when interviewing the children and appropriately confirmed with the children whether they were telling the truth during the course of the interview. I accept his evidence that the interview with the children did not demonstrate a scripted response from the children.
I have considered the nature of the events alleged to have taken place, the seriousness of the allegations and who made the allegations. C has made the allegations of sexual abuse outlined previously to the mother, the workers from the Department and the family consultant. The family consultant accepts that the allegations made by C reflect her lived experience and that both B and C could distinguish the difference between things they experienced, things their mother said and things said by their siblings. The allegations have been made by C from 2012 until 2015. The effects exhibited by C were outlined by Mr I and I accept his evidence. The allegations are genuinely believed by C on the evidence of the family consultant, Mr H from the Department and the mother. I accept that the family consultant ensured that the children understood the meaning of telling the truth when he interviewed them.
The explanation provided in the evidence by the father regarding C in 2012 was that he placed her on a bench and applied moisturiser to her genital area because she told him it was sore when he took her to the toilet. He was unclear about what the type of cream that he applied. The mother’s evidence was that at 3 years of age C did not need assistance with toileting and was not wearing nappies from the age of two years. The father’s explanation is inconsistent with what C has told the mother, the family consultant and the workers from the Department as to whether she told her father that she was sore. I have considered the alternative explanation for the allegations raised by the father. It is the considered opinion of the family consultant and the workers from the Department that the mother has not coached the children. The submissions for the Independent Children’s Lawyer also support that view.
The effects exhibited by B and C as described by the family consultant and outlined previously indicate that C in particular wanted the conduct of the father she described to cease.
Inconsistencies
I have given careful and extensive consideration to the aide memoir document provided to the Court detailing the inconsistencies regarding the surrounding circumstances of each allegation. The content of C’s allegations and demonstration about the father touching her vagina were consistent as between what she told the workers from the Department and what she told the family consultant and what she told her mother at a time later than the day of the separation. There is a consistent theme to the complaints of both C and B referring to the father touching C inappropriately at the home of the paternal grandparents and whilst watching television with the father.
B has stated to the mother that his father asked him to suck his penis and this was repeated by B to workers from the Department and the family consultant. He has consistently stated to his mother, the workers from the Department and the family consultant that this occurred when the father took him into his office. There is no clarity about when this incident occurred except that it was an historical account by B.
On the mother’s evidence when C first complained to her in 2012, C told the mother that the father had done this before in his office. The complaints have been maintained over a considerable period of time and there is an accumulation of factors which warrant a finding of unacceptable risk.
I do not place any weight on the complaints made by D to the mother after the safety talk and to the female police officer, having regard to his age and the likelihood of his comments being influenced by the mother’s safety talk and the comments of the older children.
I have considered all of the expert evidence including the psychosexual assessment of the father and the assessment of the mother undertaken by Associate Professor N. I accept the unchallenged evidence of Associate Professor N but note that he was not in a position to consider the family report which was conducted at a later time.
In weighing the risk, the more serious the consequences the higher the risk, even if the odds of the happening of the relevant event are comparatively low. The potential benefit to the children of spending unsupervised time with the father is not outweighed by the serious consequences and detriment to the children of the type of sexual abuse complained of here.
I am not satisfied balancing the risk to the children of sexual abuse with the benefits of a meaningful relationship with the father, that the risk to the children would be outweighed in the children spending unsupervised time with the father.
I am satisfied that B and C continue to seek to spend supervised time with the father and that there is a benefit to all of the children to continue to spend supervised time with the father.
I am satisfied that the children’s current supervised spend time arrangements with the father have been satisfactory and that it is appropriate to incorporate that regime into final orders. I am satisfied on all the evidence that those arrangements are in the best interests of the children having regard to the unacceptable risk of sexual abuse should the children be placed in the unsupervised care of the father.
These orders will provide for those spend time arrangements to be changed by written agreement between the parties to provide further flexibility into the future.
Exposure of the children to family violence
It is the father’s case that the mother has exposed the children to family violence because of her attitude towards him in the presence of the children which includes verbal abuse, threats and denigration. He relies on the recording of the mother’s language, threats and verbal abuse in the presence of the children (Exhibit A).
In evidence, the mother conceded that her conduct was inappropriate and that she was so upset about her financial circumstances in May 2014 that she does not recall exactly what she said. She did not dispute that the transcript of the recording was accurate.
It is the mother’s response to the father’s case that the father has exposed the children to family violence by unreasonably withholding financial support needed to meet the reasonable living expenses of the children at a time when the mother was entirely or predominantly dependent on the father for financial support.[24]
[24] See definition in Family Law Act 1975 (Cth), s 4AB(2)(h)
The mother also relies upon the allegations of sexual abuse made by the children as evidence of the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse or family violence.
The outcome of this case is determined on the relevance of the sexual abuse allegations to the question of unacceptable risk and does not turn on the other allegations of family violence.
The additional considerations
The additional considerations are listed at s 60CC(3) of the Act. I have referred to only those which are relevant to the facts and circumstances of this case.
Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The views of the children can be gleaned from the family report and their interviews with the workers from the Department which have been previously outlined. The children have expressed a wish to continue to live with the mother and to continue to spend time with the father.
Given the relatively young ages of the children, only the views of B who is eight years of age have some weight. However the risk identified in these reasons is of far greater weight. The level of understanding of the children is low having regard to their ages.
Section 60CC(3)(b): the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child)
All the evidence supports the fact that the children have a close relationship with both parents albeit the family report writer observed that the mother may have engaged more appropriately including setting boundaries for the children. The family report writer did not observe any fear on the part of the children when interviewed with the father.
There is evidence, in the E reports about the supervised spend time arrangements, of the two boys having difficulty separating from the mother at times. I do not place any weight on this and consider that it may be accounted for by the acrimonious relationship between the parents. The time spent by the children with the father under supervision has progressed reasonably well and the children continue to seek to spend time with the father.
However the allegations relate to circumstances where the children are alone and unsupervised with the father. The report of the family consultant reveals the concern of C and B about the conduct of the father.
Section 60CC(3)(c): the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
The mother has effectively had the sole responsibility for the primary care of the children and making decisions about long-term issues because of the allegations of sexual abuse and the level of conflict between the parties. The father has been deprived of an opportunity to participate in making decisions about major long-term issues and spending time with the children other than by way of supervision.
Section 60CC(3)(ca): the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
There is evidence that the father supported the children financially immediately after separation and that he paid half of the rent when the mother was required to leave the family home with the children. I accept the evidence of the mother that she was financially dependent upon the father after separation and until she registered for Centrelink benefits. It is not in dispute that the father has not financially supported the children since May 2014. There is no evidence that the father has paid any child support.
There is no satisfactory explanation by the father for his reasons for failing to support the children financially since May 2014. He suggested that the mother refused to accept financial assistance, relying on an offer made during the recorded conversation where the mother was verbally abusing the father. I do not accept that the father was bona fide in making that offer at the time he was recording the conversation. I accept the explanation of the mother that the money offered by the father at the time must be seen in the context of her bankruptcy, her lack of paid employment, her full-time care of the three children, the maternal grandmother’s house being in jeopardy, and the prospect of the mother being homeless. The evidence of the mother was that she regarded the father’s offer to pay her $300 as an insult in the circumstances.
Section 60CC(3)(d): the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
There will not be any changes in the circumstances for the children if the status quo is continued.
In the long term the requirement for the children to spend supervised time with the father is onerous but having regard to the seriousness of the risk involved, this measure is justified. The mother has facilitated the children spending supervised time with the father.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
There was reference in the evidence to the expense for the father of the continuation of professionally supervised time with the children. The father references the “significant cost” associated with supervision in his case outline and at [62] of his affidavit; in the latter he says he has been unable to have contact with the children twice a week as provided for in the orders due to the cost but also due to the supervisor’s “lack of availability on weekdays”. However there is no dispute that the father has not financially supported the children since May 2014 and he gave evidence he is a property developer by occupation and the registered proprietor of approximately 20 properties. Although he claimed in cross-examination that the mortgage payments exceed the rental income received from those properties, I do not accept that the costs of supervision are prohibitive for the father.
The children have spent supervised time with the father consistently since August 2015 and this has allowed them to have direct contact with the father on a regular basis. The evidence is that this has not affected the positive relationship between the children and the father.
Section 60CC(3)(f): the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
On all the evidence the mother has the capacity to provide for the needs of the children including their emotional and intellectual needs. Since separation the father’s capacity to provide for the emotional and intellectual needs of the children has been restricted to supervised time. The children have not lived with the father since separation in 2012.
There is opportunity for the extended family of the father to spend time with the children during supervised contact visits.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
There is no evidence that the mother has been irresponsible in the parenting of the children in difficult circumstances. There is some foundation for her negative attitude towards the father because of her financial plight after separation and the allegations of sexual abuse. The mother has demonstrated irresponsibility in her denigration of the father in the presence of children. The father has been irresponsible in his parenting obligations having withdrawn financial support for the children since May 2014.
Section 60CC(3)(j): any family violence involving the child or a member of the child's family
The sexual abuse allegations made by the children would constitute family violence but there is no finding that this has occurred.
The mother’s verbal abuse of the father and threatening language in the presence of the children would constitute family violence. The mother conceded and volunteered that her tone and aggression towards the father would have been alarming to the children. However the father was complicit in exposing the children to this for the purposes of acquiring the recordings when there may have been an opportunity to disengage.
The father was responsible for and controlled the family finances during the marriage and in the period after separation and until May 2014 when he withdrew financial support. As a result of the voluntary bankruptcy, the mother was forced to find alternative accommodation. Whilst there appear to have been actions taken that could amount to financial abuse early after the separation, it would appear that the father did provide some financial support at that time. These issues reflect on the credibility of the parties but do not take priority over the principal question about whether the father constitutes an unacceptable risk to the children.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter
A final intervention order was made at the Melbourne Magistrate’s Court on 28 August 2015 where the father was not present. The intervention order and application and summons for an intervention order were tendered by counsel for the mother as Exhibit 2. The father denies that he was aware of the hearing date.
The intervention order was made on the application of the mother and provides for the mother and three children as affected family members. The order was made “until further order” but a notation on the order indicates that the respondent, who is the father, was not served with a copy of the application and summons.
The father through his counsel indicated that he had made an application to revoke the order but that it could not be listed until after the determination of the family law proceedings.
There is no evidence of any findings made by the Magistrates’ Court other than the making of the order in the absence of the father and it would appear that the father had not been served with the application and summons. Accordingly there are no inferences which can be drawn from the circumstances of the application which might assist in this hearing. It would appear that the father was made aware after the hearing of the making of the order.
The fact that the order was made and that the father was prohibited from, amongst other things, contacting, communicating with or approaching the mother and children and going to or remaining within 200 m of any address or other place where the mother or children lived and worked or attended school or childcare is part of the factual matrix of the case.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Having regard to the history of the children making a series of complaints to the mother about the conduct of the father and D’s young age, it is possible that there may be further complaints made by the children over time. This might be as a result of the children having discussions together or with their mother or in some other context. Further complaints by the children whether true or not are likely to result in further litigation unless the father’s time with the children is supervised for the foreseeable future. On the other hand there may be a change in circumstances which would permit the father to apply for the children to spend unsupervised time with him if there is no agreement reached between the parties into the future.
The presumption of equal shared parental responsibility
Parental responsibility is defined in s 61B of the Act and means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
Section 61DA of the Act provides that I must apply a presumption that it is in the best interests of the children that the parties have equal shared parental responsibility. I have made no finding that the father has sexually abused the children.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility. It is on this basis that I find that the presumption has been rebutted on all the evidence which satisfies me that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
The family consultant recommended that the mother have sole parental responsibility for the children in the event that the father was found to be an unacceptable risk. He also recommended that the mother should keep the father informed about issues relating to the children’s care and that the father be provided with information about the relevant educational, medical, social and sporting activities of the children.
The evidence of the family consultant regarding parental responsibility was that there is no effective communication between the parents, both parents allege various forms of family violence against each other, the parental relationship has historically been problematic and remains so, the parents do not share a workable parental relationship and there is no commitment to cooperation between them. It is clear on all the evidence that the parents’ relationship is acrimonious and has not been improved during the litigation. Equal shared parental responsibility is likely to lead to continuing conflict between the parents which will obviously impact upon the children. Both B and C articulated their concerns about the conflict to the family consultant.
I am satisfied that the presumption is rebutted by the evidence taken as a whole, and that it is not in the children’s best interests for the parties to have equal shared parental responsibility. I have found that the father is an unacceptable risk to the children on the basis of all of the evidence in the trial.
I accept on all the evidence that the mother would find it extremely difficult to consult with the father concerning issues relating to the children in these circumstances. This is not unreasonable having regard to the strength of the mother’s conviction about the veracity of the allegations made by the children and her conviction that the father has brought about her financial ruin. The mother has been involved from the outset with the children’s accounts of the conduct of the father and dealt with the legal processes which ensued. She has been involved with the police and Detective K (whose diary notes gave her cause for concern), workers from the Department and she has obtained advice from the G Centre at the F Hospital. Not surprisingly, the mother’s conviction has been reinforced by the complaints made by C and B to the workers from the Department and the family consultant. The mother has some reasonable foundation for her beliefs.
The mother has effectively been making all decisions regarding the children in circumstances where she has had all financial responsibility for the children since May 2014.
The prospect of the mother consulting and cooperating with the father concerning issues relating to decisions about the children’s future is unrealistic and would inevitably fail.
As there will be no order for equal shared parental responsibility I am not required to consider whether it is in the children’s best interests, and reasonably practicable, that they spend equal or substantial and significant time with their mother and father. I am at liberty to determine directly which parenting orders are in the best interests of the children.
There is no question that the children benefit from and enjoy spending time with the father despite the fact that their time with the father has been restricted because of the periods of supervised contact since separation.
Conclusion
In considering the magnitude of the risk, I am satisfied that the risk is unacceptable having regard to the seriousness of the allegations, and the other matters I have found in answering the questions posed by Fogarty J in N & S and the Separate Representative.
I find that there is an unacceptable risk of the children being sexually abused in the unsupervised care of the father. I am satisfied that it is in the best interests of the children to spend supervised time with the father in accordance with the current arrangements under the interim orders. This is the only realistic option here.
Orders for supervised time are usually limited in time, and the father may consider making an application if he can demonstrate a change in circumstances as the children mature, if there is no agreement reached between the parties about the parenting arrangements in the future.
The mother seeks an order that she facilitate the children’s attendance at the F Hospital, G Centre for counselling in accordance with the recommendations in the family report. The father in evidence stated that he would have no objection to the children being counselled by an independent person. There were no submissions about this issue and the father did not seek such an order.
The family consultant, in his report, recommended in the event the Court substantiates the allegations, that the children attend upon a counsellor to process their experience of abuse from their father.
As there have been no findings regarding the veracity of the allegations of abuse, it is inappropriate to make such an order. The mother has sole parental responsibility for the children and it is appropriate for her to make decisions about counselling for the children if required in the future.
For the same reasons, it is inappropriate to make any order that the father undertake counselling as proposed by the family consultant and the mother.
I certify that the preceding four hundred and forty-six (446) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 7 July 2016.
Associate:
Date: 7 July 2016
ANNEXURE A
The applicant father relied upon the following documents:
Amended Initiating Application filed 23 October 2015;
Trial affidavit of the applicant, filed 22 October 2015;
Affidavit of Ms E, filed 3 December 2015; and
Affidavit of the applicant filed 2 May 2016.
The respondent mother relied upon the following documents:
Amended Response filed 11 November 2015;
Trial affidavit of the respondent filed 11 November 2015; and
Family report dated 25 September 2015.
The Independent Children’s lawyer relied upon the following documents:
Report of Associate Professor N in relation to the applicant father;
Report of Associate Professor N in relation to the respondent mother; and
Family report dated 25 September 2015.
ANNEXURE B
Exhibits tendered by the applicant father:
Exhibit A – one CD of recordings of conversations between the mother and father;
Exhibit B – certificate indicating completion of post-separation parenting course by the father;
Exhibit C – affidavit sworn by the applicant on 6 April 2016 in support of application to re-hear Intervention Application;
Exhibit D – email addressed to applicant from respondent dated 22 July 2013 at 9.27pm, referring to application in relation to contact centre.
Exhibits tendered by the respondent mother:
Exhibit 1 – Live Titles for Proprietor Mr Idanov dated 11 June 2014;
Exhibit 2 – Final Intervention Order dated 28 August 2015 with affected parties being the mother and the children;
Exhibit 3 – mother’s statement to police dated 22 August 2012;
Exhibit 4 – diary notes of Detective Senior Constable K dated 8 August 2012.
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