J & C
[2002] FMCAfam 183
•5 December 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| J & C | [2002] FMCAfam 183 |
| FAMILY LAW – CHILDREN – contact –best interests –allegations of sexual abuse – application to remove children interstate. B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 |
| Applicant: | D E J |
| Respondent: | A C |
| File No: | HBM2095 of 2001 |
| Delivered on: | 5 December 2002 |
| Delivered at: | Hobart |
| Hearing Dates: | 30 April 2002; 1, 2, 30 & 31 May 2002; 3 June 2002 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | Mr. Bugg |
| Solicitors for the Applicant: | Dobson Mitchell & Allport |
| Counsel for the Respondent: | Mr. Trezise |
| Solicitors for the Respondent: | Trezise Lawyers |
| Counsel for the Children’s Representative: | Mr. Turnbull |
| Solicitors for the Children’s Representative: | Ogilvie Jennings |
ORDERS
That the Orders of the Family Court of Australia of 21st November 2000 bearing Number HB1647 of 2000 be and are hereby discharged.
That the children M A C born 7th April 1997 and F E C born 7th March 2000 (“the children”) reside with D E J (“the Mother”).
That each parent be responsible for the day to day care, welfare and development of the children at such times as the children are in that parent’s care.
That the children have contact with A C (“the Father”) as follows:
(a)for four consecutive Sundays from 9.00 a.m. until 1.00 p.m. commencing on 15th December 2002 and concluding on 5th January 2003
(b)for six consecutive Sundays from 9.00 a.m. until 5.00 p.m. commencing on 12th January 2003 and concluding on 16th February 2003
(c)for four consecutive weekends from 4.00 p.m. on Saturday until 5.00 p.m. on Sunday commencing on Saturday 22nd February 2003 and concluding on Sunday 16th March 2003
(d)thereafter until further order each alternate weekend from 9.00 a.m. on Saturday until 5.00 p.m. on Sunday commencing on 4th April 2003
(e)for four hours on Christmas Day 2002 commencing at 3.00 p.m.
(f)by telephone between the hours of 3.30 p.m. and 4.00 p.m. on Tuesdays and Thursdays of each week, unless otherwise agreed between the parties, and for that purpose the Mother shall make the children available to speak with the Father by telephone
That in order to facilitate the contact referred to in paragraphs (a) to (e) inclusive of the preceding order hereof the handover of the children at the start and end of each contact period shall take place at the Children’s Contact Service in Hobart if those facilities are available to the parties or at the McDonalds Family Restaurant in Sandy Bay if the facilities of the Children’s Contact Service are not available.
That the parties do each undertake such counselling as may be arranged by the Children’s Representative with Relationships Australia, and for such purpose make the children available at such times as the relevant counsellor or counsellors may reasonably request.
That for the purpose of Order 6 hereof the parties are to provide Relationships Australia with such consents and authorisations as may be reasonably required and in particular provide Relationships Australia with authority to be able to report to the Children’s Representative.
That the Children’s Representative be at liberty to provide Relationships Australia with a copy of the Reasons for Judgment provided by the Court this day if he considers it appropriate to do so.
That neither party denigrate the other party in the presence of the children or either of them.
That the Mother’s Application to relocate with the children to New South Wales be adjourned to the sittings of this Court in Hobart commencing 5th May 2003.
| FEDRAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBM 2095 of 2001
| D E J |
Applicant
And
| A C |
Respondent
REASONS FOR JUDGMENT
Background & Applications
The Applicant, D E J (“the Mother”) and the Respondent A C (“the Father”) lived in a defacto relationship in Sydney between early 1992 and early 1999. They moved to Queensland with their son M (“M”) who had been born on 7th April 1997. Their other child, F (“F”) was born on 7th March 2000.
In or about June 2000 the Father travelled to Italy to undertake a cooking course that would enable him to be employed as a chef.
In July 2000, while the Father was away in Italy, the Mother moved with the two children back to Sydney to live with her parents.
In proceedings in the Family Court of Australia in Hobart in November 2000, Rourke J set out some of the history in relation to those proceedings. I quote below from his Judgment dated 21st November 2000 because it sets out the circumstances in which the parties and the children came to Tasmania and how those proceedings in the Family Court of Australia were commenced:
“On 27 July the father returned to Australia and had a discussion with the mother. He arranged to travel to Noosa to pick up the parties' goods and chattels so that he himself could live in Sydney and be near the children. I accept his evidence that the mother informed him at that time that she was intending to remain living in Sydney with her parents.
On 28 July the father telephoned the mother's stepfather's residence and tried to speak to (M), but without success. Thereafter he kept telephoning that residence but was unable to make telephone contact with his former partner or with (M). Neither was their any face-to-face contact between him and the children, or either of them, at this time.
Unbeknownst to (the Father), the mother had moved to Tasmania with the two children on 28 July.
I am satisfied that the mother's relocation to Tasmania was carefully timed and well-orchestrated. It was a manoeuvre executed with some stealth and has all the hallmarks of meticulous planning. It appears that the mother has a brother in Tasmania who lives on a farming property and that is where she went when she took the two children to this State…….
In early August the father, still not knowing that the mother had moved interstate, made a number of attempts to speak to the mother and (M) on the telephone, but without success. On 9 August the mother filed the Form 7 Application initiating these proceedings in the Hobart Registry and also a Form 8 Application seeking urgent interim orders. On 11 August in the Launceston Registry the mother secured ex parte orders which were made returnable in Hobart on 22 August. Those orders provided inter alia that until further order the respondent father be restrained from removing the children from the State of Tasmania or from the Commonwealth of Australia and that, until 22 August the return date, the father should have such contact with the children as is agreed with the mother, or ordered by the Court.
On 17 August the father was still unaware of the geographical situation of his former partner and the children. He initiated substantive proceedings in the Sydney Registry for urgent contact orders in the belief that the family was still residing in that city.
It was only on 21 August that the father became aware for the first time that the mother had taken the children to Tasmania on 28 July and had secured ex parte orders. He wasted no time: his solicitor wrote on 22 August to the mother's solicitors requesting telephone contact with (M). There was then a flurry of correspondence about how often telephone contact should take place.
In August and September the father persisted with his efforts to make contact with his children……
Ultimately, in early October the father flew to Hobart and secured limited contact to the two children on 9 and 10 October. Significantly, no supervision was required. Some time after this the father made what must have been a difficult decision for him, which was to leave the employment in Sydney that he had obtained as a chef, and to travel to Tasmania to live in order to be near the children. On 27 October his solicitors advised the solicitors for the mother of that intended move. The father duly abandoned his employment in Sydney and arrived in Hobart on 7 November. He has remained in residence in this city ever since.
On 12 November there was a period of some three hours' contact between 1 pm and 4 pm with both the children ……”
In his Judgment of 21st November 2000, Rourke J went on to say:
“When the matter came before me yesterday morning I was asked to determine in the first instance an urgent Form 8 Application brought on the mother's behalf seeking the following orders:
That the contact proceedings be adjourned for a period of four weeks to enable the mother to seek expert advice and to call evidence on (M)'s response to contact and the management of that.
This application was supported by an affidavit sworn by (the Mother), on 17 November, deposing to some uncharacteristic and serious misbehaviour on the part of (M) towards herself, his grandmother and even his eight months old little sister. This behaviour appears to have commenced following (M)'s contact with his father on 12 November. In her affidavit the mother says she is seeking expert advice and contends that (M)’s contact with his father should, in effect, be suspended until some expert in child psychology can deliver appropriate advice….”
His Honour refused the Application for an adjournment and made orders that provided for the Father to have initial contact as follows:
a)with M every Sunday from 9.00 a.m. until 6.00 p.m.
b)with F every Sunday from 9.00 a.m. until 1.00 p.m.
c)with both children every Wednesday from 10.00 a.m. until 1.00 p.m.
d)at such other times as may be agreed between the parties.
After three months, the Father was to have contact with the children as follows:
a)with both children on Wednesday of each week from 10.00 a.m. until 1.00 p.m
b)with F every second Sunday from 9.00 a.m. until 5.00 p.m. until she was eighteen months old
c)with M every second week from Sunday at 9.00 a.m. until Monday at 6.00 p.m.
d)from the time that F attained the age of eighteen months with both children every second week from 9.00 a.m. on Sunday until Monday at 6.00 p.m.
e)at such other times as may be agreed between the parties.
Various other orders were made in relation to contact that I do not need to repeat here, other than to say that the Father was to have telephone contact with M between the hours of 3.30 p.m. and 4.00 p.m. on Tuesday and Thursday of each week.
It appears that the Father had contact in accordance with those Orders until 18th February 2001. On that day the Mother did not make the children available for contact and the Father filed a Contravention Application (Form 49) on 19th February 2001.
On 23rd February 2001 the Mother filed an Application seeking to suspend the contact orders made by Rourke J on 21st November 2000. Both of those Applications came before me in this Court on 7th, 8th and 9th March 2001.
The Mother relied upon affidavit material from herself, her mother, C J (“Mrs. J”), her stepfather M E (“Mr. E”), a child psychologist M S (“MS”), a general practitioner, Dr. A (“Dr. A.”) and a psychiatrist, Dr. S.
The affidavit material from the Mother, her mother, her stepfather and the child psychologist detailed behaviour of a disturbing nature on the part of the child M. The psychiatrist had not seen the child, but commented that if the children, particularly M, had been behaving over recent months in the manner described by the Mother and her mother in their affidavits then he strongly believed that there should be a cooling off period to enable the situation of the children to be properly assessed.
The affidavit of the general practitioner Dr. A. indicated, inter alia, that he had examined M on 15th February 2001 because he was complaining of anal pain and discomfort. He stated that he examined M’s anus, in the presence of the Mother and found “a small fissure, or split of the skin, of approximately a couple of milimetres in length in (M)’s anus at what I would describe as the twelve o’clock position. There was generalised irritation uniformly around the anus, manifested by redness and inflamation. I consider that the fissure and condition of (M)’s anus are consistent with three possibilities: poor toileting habits, constipation or interference by another person. “
On 9th March 2001 I indicated that I would be dismissing the Contravention Application because it was my view that the Mother had a reasonable excuse and that I would be ordering supervised contact. The matter was adjourned for a period to enable the parties to explore the possibility of agreeing upon supervised contact. At that stage, I had indicated that I preferred that the Father have more contact than would be normally available through the Children’s Contact Service in Hobart.
On 16th March 2001 I made orders dismissing the Contravention Application and suspending Rourke J’s face-to-face contact orders on an interim basis. I also made an interim order that the Father have such supervised contact with the children as may be agreed between the parties.
At that time, I also made an order that had been agreed by the parties that an Order 30A report be provided to the Court by Ann Stark, a psychologist.
Orders were also made for the children to be separately represented.
As it happens, the parties were not able to agree upon a regime of supervised contact other than through the Children’s Contact Service.
On 8th January 2001 an Order was made that the Order 30A report prepared by AS be released to the solicitors for the parties and the Children’s Representative.
On 8th April 2002 the solicitors for the Mother completed an application seeking the Court’s permission for the Mother and the children to relocate to New South Wales. (It appears that that application was filed on 9th April 2002. However, at the time that the competing applications came before the Court, that application had not reached the Court file.)
On 26th April 2002 the Father filed an Amended Response seeking, inter alia, that the Mother’s applications of 23rd February 2001 and 9th April 2002 be dismissed, and that the Mother be restrained from removing either of the children from the State of Tasmania without the prior leave of a Court of competent jurisdiction.
On 12th November 2002, the Children’s representative filed an application seeking leave to re-open his case. I have dealt with that application in a separate oral decision.
The law
Section 60B of the Family Law Act 1975 (“the Act”) states:
(1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children.
Section 65E of the Act provides that: “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
The Family Law Act gives clear guidance to the court in relation to what must be considered when determining what is in a child’s best interests. Subsection 68F(2) sets out a number of matters that the court must consider. They are:
·any wishes of the child and any factors that the court considers relevant to the weight that should be given to those wishes;
·the nature of the child’s relationship with each parent and with other persons;
·the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either parent or any other person with whom the child has been living;
·the practical difficulty and expense of the child having contact with a parent and whether that will substantially affect the child's right to maintain a relationship and direct contact with each parent on a regular basis;
·the capacity of each parent (or any other person) to provide for the needs of the child, including emotional and intellectual needs;
·the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court considers relevant;
·the need to protect the child from physical or psychological harm which is or may be caused by abuse, ill-treatment, violence or other behaviour, or by being exposed to such behaviour that is directed towards, or may affect, another person;
·the attitude of each parent to the child and to the responsibilities of parenthood;
·any family violence involving the child or a member of the child's family;
·any family violence order that applies to the child or a member of the child's family;
·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; and
·any other fact or circumstance that the court thinks is relevant.
In B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 the Full Court of the Family Court of Australia considered the interrelationship of sections 60B, 65E and 68F. The Court said:
“Section 65E is the fundamental section in relevant proceedings under Pt VII. It makes it clear that the best interests of children is the paramount consideration. The interrelationship of s 60B, 65E and 68F was the essential issue in this appeal. It is also central to the correct approach to be adopted in all cases under Pt VII where the best interests of the children is the paramount consideration.
A court which is determining issues under Pt VII starts from that essential premise and it remains the final determinant. In that process the Court is required to have regard to the provisions contained in s 68F(2) and s 60B.
Section 68F(2) makes it clear that the Court must consider the various matters set out in paras (a)-(l). In stating "any other fact or circumstance" para (l) underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.”
However, the High Court of Australia has made it clear that the best interests of the child is not the only consideration. See AMS v AIF; AMS (1999) FLC ¶92-852.
Following the decision of the High Court in that case and the decision of the Full Court of the Family Court that followed it A v A; Relocation Approach (2000) FLC ¶92-035, it is clear that in determining an application to relocate the residence of a child, the following principles apply:
·The best interests of the child remains the paramount consideration, but it is not the only consideration.
·The court cannot require the applicant to demonstrate “compelling reasons'' for the relocation.
·It is necessary for a court to evaluate each of the proposals advanced by the parties.
·A court cannot proceed to determine the issues in a way that separates the issue of relocation from that of residence.
·The evaluation of the competing proposals must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
·The Court must follow the directions set out in sections 60B and 68F of the Family Law Act 1975. The wording of subsection 68F(2) requires the Court to consider the various matters set out in that subsection.
·The object and principles in section 60B also provide guidance to the Court.
This case involves allegations of sexual abuse of the children. Issues of that nature were considered by the High Court of Australia in B and B (1988) FLC ¶91-978 and in M and M (1988) FLC ¶91-979 and from those two cases the following is now clear:
·The paramount issue to be decided in residence and/or contact proceedings is whether the making of the order sought is in the interests of the child's welfare;
·The resolution of an allegation of sexual abuse against a parent is subservient to the Court's determination of what is in the child's best interests; and
·Courts must not grant residence or contact to a parent if that would expose the child to an unacceptable risk of sexual abuse.
In WK v SR (1997) FLC ¶92-787 the Full Court of the Family Court was required to consider a trial Judge's positive finding that sexual abuse had occurred. The Full Court held:
·Findings that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw v Briginshaw (1938) 60 CLR 336; and
·In children's matters under Pt VII of the Family Law Act, the grave consequences of a finding of sexual abuse cannot be overstated. Before trial Judges make positive findings of sexual abuse, as opposed to findings of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Brigginshaw and Section 140 of the Evidence Act 1995.
Evidence and issues
During the final hearing of this matter, which took place over six separate days, the Mother relied upon affidavit material from herself, her mother Mrs. J, her stepfather Mr. E, the psychologist MS and her fiance, M E S (“the Mother’s fiance”).
Although she did not rely upon the earlier affidavit of Dr. A., he was called to give evidence by the Children’s Representative.
The Father relied upon an affidavit sworn by himself on 24th April 2002.
The Order 30A Report by Ms. Stark forms part of the evidence and a further psychologist Yvonne Malakoff (“YM”) was called by the children’s representative. She was the coordinator of the Children’s Contact Centre run by Relationships Australia in Hobart.
All the people referred to above were cross-examined.
The Father also submitted affidavits from three people whom I shall call “character witnesses”. They were not cross-examined but their evidence was not particularly helpful to me in relation to the issues to be decided.
It is clear that the two main issues before the Court are: (a) the allegations by the Mother that M and F have been sexually abused by the Father and what contact the father should have with them; and (b) whether or not the Mother should be allowed relocate with the children to Neville in New South Wales. (Neville is a small country town approximately forty minutes’ drive from each of Bathurst, Orange and Cowra and a little less than four hours’ drive from Sydney.)
The best interests of the children are paramount in this matter, and it it is my view that it is important to analyse the two main issues separately in order to properly appreciate their significance. I shall therefore firstly consider the allegations of abuse and then the issue of the Mother’s desire to move to New South Wales. To me this is the logical order in which to deal with matters. I will not be determining the issues of contact and relocation separately. However, if the allegations of abuse against the Father are found to be proved, or of such a nature that there is an unacceptable risk to the children, it seems unlikely that the Court would order contact, so there should be no impediment to the Mother moving to New South Wales with the children.
Allegations of abuse
It was the Mother’s evidence that she believes that the children have been sexually abused by their father. On a number of occasions during the hearing she made statements like “the children have been sexually abused by their father”, “My children have been abused. They have been raped.” and “there’s abuse going on here”. Her conviction in this regard in relation to M was 100% but in relation to F she said: “I am not 100% sure.”
The Father absolutely denies any abuse has ever occurred.
It was the Mother’s evidence that she first started being suspicious that such abuse had occurred on or about 28th January 2001.
It seems to me to be important to carefully analyse the witnesses’ accounts of incidents involving M and F to see whether the Mother’s suspicions are well founded.
I will start with the Mother’s evidence. A summary of the evidence from her affidavits is as follows:
12/11/00 After contact with his father M became aggressive. He attempted to harm a dog by placing an elastic band around its neck. He wet and soiled his pants.
26/11/00M screamed when collected from his father’s home and continued to scream for approximately ten minutes while being driven home in the car. (The Mother says this happened on each occasion that she collected M for approximately three weeks after that).
29/11/00After collection from contact M punched F very hard in the nose.
30/11/00After telephone contact M said to the maternal grandmother: “I hate you. I want to get rid of you.” He pointed a finger at her and said “You old fat bottom”. He was aggressive and negative.
01/12/00M said: “I hate you Mummy”. He soiled his pants and wet himself.
02/12/00M asked the maternal grandmother what would happen if his mother had her knees broken, what would happen if she was in a wheelchair and what would happen if the house burnt down. (The Mother referred to these in her affidavit as “intimidating questions”.)
04/12/00M began stammering after contact. He had trouble going to sleep and was aggressive towards F. He was defiant. F did not react normally to the Mother and “appeared to be in a daze”.
05/12/00M kicked the maternal grandmother and did not want his mother to read to him in bed. He cried when he could not get what he wanted.
06/12/00F appeared to be in a daze for approximately one and a half hours after collection from contact.
11/12/00When scolded, M hid under the bed and told his Mother that he was scared of her. He said that his Father had told him not to talk to her.
13/12/00M complained of a tummy ache on four separate occasions and on one occasion asked his Mother to put cream on his bottom because it was sore.
15/12/00M complained of a tummy ache on five occasions.
F “cried frequently and threw tantrums”.
17/12/00While returning home in the car, M produced a rubber band and said: “Mummy, look what I’ve got”. The Mother says that it was said in a threatening way and linked what was said with the incident involving the dog on 12/11/00.
18/12/00M said to the maternal grandmother: “Your sick, you need to go to a doctor. I want to see lots of blood”.
19/12/00M said to the maternal grandmother: “What would happen if you go to hospital?”
21/12/00M held F’s face and said to her on approximately ten occasions: “You never have to leave. You need have to go.”
22/12/00F woke up six times crying and screaming during the night.
28/12/00M said: “Stupid, bloody, fuck” after slipping on a wet patch in a fish and chip shop.
29/12/00M urinated on the floor of his bedroom and attempted to urinate on F. He said: “Daddy did not make me clean up the poo at his place”.
07/01/01After contact, F was very upset and was screaming and tossing her arms and legs about. It was difficult to get her to sleep. M appeared to be having bad dreams.
15/01/01M appeared to have bad dreams throughout the night. He mentioned ghosts and monsters. On another occasion about that time M asked: “What would happen if F got a nail in her throat? Would she have blood? Would she die?”
16/01/01M said he was frightened of “creatures” on the back of his door and that “scary eyes” were watching him from the jacket that had been given to him by his father that was hanging on the door.
18/01/01When sitting with his maternal grandmother, M picked up one of her legs, crawled under it and said: “Its heavy, just like a penis on top of me”. (The maternal grandmother states that this happened on or about 18th January. She states further that she was fully dressed on her bed at the time and M started to put his bottom in the air and pushed his head into her crutch while trying to pull her legs apart. After that he came to the side of the bed and starting licking her face and rubbing around one of her nipples.)
26/01/01M slapped a friend of the Mother across the face as she was falling asleep in the car.
27/01/01M said to a friend of the Mother that he wanted to “tongue kiss”. (In an affidavit filed in the interim proceedings before me, that friend described the incident as “(M) suggested that we kiss with our tongues”. She was not a witness at the final hearing.)
28/01/01M held F’s head, looked directly into her eyes and said: “Look into my eyes, believe me, you must do what I say”. Later, after he had his bath he wanted to lie naked in his Mother’s arms like a baby. He prodded his finger into her mouth aggressively and said while looking at the ceiling : “Its sore, cool it down, I must do what all grown ups want”. When M was put to bed that evening he started to lick his Mother’s right eye. When asked: “Who does that?” he replied: “Daddy teaches to lick all over”.
29/01/01M left faeces on the lounge room floor in three different spots. When asked about that he said: “I did not make it”. The Mother subsequently found three more pieces of faeces in three spots in his bedroom and it looked as though he had urinated on the floor in two places. Later that day he commented to his mother that the previous day (which was a contact day) was awful and spoke of his father’s dirty bathroom. He said that his father made him: “Lick poo off the toilet”. He also said: “Daddy taught me to lick poo” and: “I told him I was scared of you when you smacked me on the bottom.” Later that day he complained that his bottom hurt.
For a few days prior to 29/01/01 when reprimanded M would kneel on the floor with his elbows on the ground and his bottom in the air.
30/01/01The Mother took M to a doctor (not Dr. A.) who had wanted to examine M’s bottom but he was not keen for that to happen. The doctor referred her to Child Protection.
Later that day M said to his maternal grandmother:
“I am going to stick my tongue in my tummy”. When questioned about it, he said it was a secret and hid under a blanket. When the maternal grandmother told him that nobody should stick their tongue in his tummy, M replied: “Not any boys or girls, other children aren’t allowed to know about it”.
31/01/01When sitting next to his maternal grandmother, M made a circular motion with one of his fingers around the area of one of her nipples. She reprimanded him and M said: “You stupid idiot”. M was aggressive throughout the rest of the day.
06/02/01M stuck one of his elbows into his Mother. When told not to do that, he replied: “I am not inside you”. He then asked whether boys turn into girls. When his Mother replied: “No”, he said: “Well, Daddy does not know that”. He then held his Mother’s neck and looked into her eyes and said: “Believe in me”. He then put his head in her crutch. His Mother said to him: “You don’t let anyone do that”, to which he replied: “Well somebody has, like a stranger that says they love me”.
09/02/01M said to F: “I am going to kill you” as he pointed a finger at her as if it were a gun. That night he appeared to have bad dreams and said he was scared.
10/02/01M prodded a rose petal into his maternal grandmother’s mouth and said: “Do you want to stick that up my bottom?”, while poking out his tongue.
11/02/01M said a number of things that appeared to suggest that his father had said he should try to shoot his mother.
12/02/01M said: “I had a bath with Daddy yesterday. I have a secret to tell you. Put your hands over your ears. I carry a toy in my body”. Later he said: “Pointing fingers are like toys”.
14/02/01M appeared to be in a trance after contact and was disoriented. He woke up crying during the night.
15/02/01The Mother went to see the Child Psychologist MS with M. After the appointment M said to MS: “I love you”. M had also been taken to day care as a trial for two hours during that day. Later that day when M complained that his bottom was sore, the Mother took him to see Dr. A.
16/02/01M was taken to day care for a trial few hours again. When collected he was aggressive he said he enjoyed day care apart from: “The wet pants accident there”. He was rough and aggressive with F when he got home.
17/02/01When M woke in the morning he said: “I am going to see my father today”. (He was mistaken about it being a contact day). He was naughty and demanding. Later in the morning while F was being bathed, M tried to insert a toy in her bottom. That night he screamed out that he was scared a number of times and had a very disturbed night.
18/02/01At breakfast M pointed at F with his finger and said: “Kill, kill” repeatedly. He did the same to his mother later in the day and also soiled and wet his pants.
19/02/01M thrust a toy into one of F’s eyes.
22/02/01M was in the bath with F and said to her: “Don’t ever say that word again”. He took toys from her and smacked her across the back and then tried to spread the cheeks of her bottom apart and look between them. When asked by his mother what he was doing he stated: “Just looking”.
Later that evening he painted red face paint on his legs and pretended to his mother that he was hurt. He said: “Look at my legs. It is blood.”
26/02/01While in the bath with F, M said to her: “You know that hole, that is where poo comes out and you have to push hard.” He told his mother to put her hands over her ears when he said that.
08/03/01M said he played a game “lying down with Daddy” and then said: “You will have no receiver. You have no remover. You can caress me.”
09/03/01M said: “I am the receiver, you can receive me”. When asked by his mother where he played the game, he said: “At Daddy’s under/on top of the blanket”. He also said that he played the game: “At a stranger’s house. I did not like it. She had two boys and two girls.”
Later M approached F from behind while lying on the floor and put his face in her bottom as if he was trying to smell it.
Later that day M put his hands inside the maternal grandmother’s shirt. When reprimanded he said: “I am not happy about that. I am the receiver”.
10/03/01M touched his bottom and genitals constantly.
13/03/01After telephone contact with his father, M said: “Daddy and I have secrets’.
Both M and F were said by the Mother to be: “Very glassy eyed, almost trancelike” and M was particularly afraid of eye drops. F had a sore bottom and M a loss of appetite. The Mother stated that she believed that the father had given vitamin tablets to the children.
18/03/01After the children returned from the first supervised contact visit at the Children’s Contact Service, M stated on four occasions that he did not want to see his mother. He also referred to someone called “Jack”. He said that Jack had hurt him and that he had been sent to the corner by Joe, one of the supervisors at the Contact Service.
That night he spoke to his teddy bear and dog at about 9.30 p.m. saying: “I am too scared to go to sleep/ ghosts and monsters”. He woke every hour between 10.30 p.m. and 3.30 a.m.
30/03/01While playing with F, M started to undress dolls saying that they needed to have a shower. He appeared to speak to one of the toys saying: “You will just have to get your long pipe and get it and bring it up into your bottom and do poos out of your bottom”.
01/04/01After contact M said: “It is good to have people at the play centre, so I don’t get any monsters and ghosts.”
08/04/01After contact M began spitting and was rude to the mother and her mother.
11/04/01M woke at approximately 6.00 a.m. told his mother that he wanted to go to the toilet. He came back about two minutes later and told her: “I didn’t make it. You will be cross when you see it.” He had defecated and urinated on a rug in the bathroom. His mother asked him who takes him to the toilet at the Contact Centre and he said: “Daddy, but I don’t do poos there”.
13/04/01M spoke about “Jack” at the Contact Centre. He referred to him as hurting him and wanting to turn him into a statue. He said: “Jack should not do this to me. He hurts me. His eyes look strange.”
15/04/01The Mother spoke to one of the supervisors at the Contact Centre about not allowing the Father to take M to the toilet. When the Mother arrived to collect the children from the Contact Centre, M was throwing sand at a boy and punched him. She says the Contact Centre staff reported to her that M had been “full on” and that he had been speaking about Jack and that Jack had hurt him. That evening he lay on the floor with his bottom in the air.
16/04/01M woke at approximately 4.00 a.m. and did not go back to sleep. He said to his mother: “Daddy took me to the big ship playground and Jack’s sister Savana a big girl, she has got long hair, light brown same as (F). I loved Savana”.
Later he tried to put his head under his mother’s top.
He put his hands in the maternal grandmother’s pocket and “did a circular motion on one of her nipples”. A few minutes later he said: “Daddy touched my wee wee.” When asked where by his mother, he said: “At the play centre”. He said that he had told one of the staff at the Contact Centre about it.
22/04/01After contact at the Contact Centre, M said: “I only have to go there one more time and then he (Jack) is going back to Sydney and I will never have to see Jack again”. That night he was scared and fearful about a monster being in the lounge room. He wanted to sit between his mother’s legs saying he was scared to be in his bedroom.
29/04/01After contact F was very unsettled. When collected she clung to her mother very firmly and was upset, crying as if in pain. She had to be settled on three occasions on the way home in the car and her mother states that she “thought that she might have been constipated”.
M mentioned after being collected that Jack had poked him in the eye. He said: “I will kill Jack. Actually, he was not there today”.
30/04/01M said: “Jack’s mother drives a blue car”. He also said: Daddy did not really do anything to me in the toilet”.
10/05/01When M was having a bath with F he said to her: “Don’t stick your bottom out (F) otherwise I will have to stick my finger in your bottom”. The Mother asked him who told him to speak like that and he said: “Daddy did. He told me that at the play centre last week. I told him not to do that, wash your hands or you will get germs. I thought he would die for having poo on his finger”. The Mother’s evidence goes on to say that shortly after taking notes of what M had said she said to him: “(M) do you remember that time I took you to see the doctor about your sore bottom?” She also asked him: “How do you think it was sore?” He said: “Because Daddy did that with his finger at his house”. The Mother says that she asked him which house and he replied: “The new house near the rivulet”. She goes on to say that after he had his bath he said: : “I was so sad about that, but I still love him. I lay on the couch after it happened.”
19/05/01When having a bath M commented: “The plug feels like a finger up/in my bottom”.
The Mother also states that M appeared fearful and aggressive after speaking to the Father for telephone contact and afterwards had said: “Close that door so that Jack does not come in”.
08/06/01When referring to a visit at the Children’s Contact Centre, M said: “Well I told Daddy not to do those things ever again to me. He promised. He said Jack and him would never do that again. He promised if he does not do those things again can we all live together again.”
11/06/01In response to a query from the Mother, M said that his father had taken him to the toilet the day before at the Children’s Contact Centre because they were too busy looking after the other children.
15/06/01M wet his pants while being babysat. That evening he made various statements threatening violence towards Jack at the play centre.
16/06/01After a bath and before dressing M got behind F and spread her bottom.
03/07/02In the presence of the Mother, M told his maternal grandmother on the telephone that he had seen Ms. Stark and his father and that his father: “Does not do anything to me anymore”.
08/07/02The Mother says that M: “Smelled of vomit breath when I collected him after contact”. His manner was aggressive and he informed her that he had wet his pants at the contact centre.
22/07/01While taking M to the contact centre he told his mother that he did not want to see Ms. Stark there and said: “She will ask me to pretend and do all that pretending about Dad and toys and stuff”. He later asked: “Why did Ann (Stark) go today? She did not want to play or anything. She just sat there.” The Mother went on to comment that M’s breath smelt of vomit and F was tired and grumpy after the contact visit.
28/07/01While the Mother was talking to M about seeing his father he told her that he had not been supposed to tell her about what had happened to hurt him and that his father had promised he would not do that stuff to him anymore.
05/08/01The Mother says that she has noted that for the previous four visits there had been no mention of Jack by M. She asked him whether Jack went any more to the contact centre and he said that he did and again made some aggressive comments about getting rid of Jack. The Mother commented that M’s breath again: “Smelt of vomit”.
18/09/01M said that he wanted to kill Jack and that he was the only one that could do it. He commented that he would not be put in goal and that only grownups get put in goal. He said nobody else could kill Jack, not even MS.
23/09/01M commented that it was all “fibs and lies” about his father hurting him. The Mother comments that “fibs” is not a word that she uses.
10/12/01At approximately 6.00 a.m., M was awake and playing in F’s cot. He had taken his clothes and the bedcovers off and he said to F: “Suck on my penis. Put it in your mouth.”
27/12/01M went behind the couch where the Mother was sitting and started whispering to himself. He talked about shooting cannon balls into his bottom and then said: “Hit my penis, bang”. The Mother says that when she looked behind the couch, M was lying on the floor with his bottom in the air. Touching his bottom with his finger. When she asked him what he was doing: “ I am pretending a bad man is shooting a cannon ball and lollies into my bottom and penis.” She asked him why they would do that and he replied: “Because they are naughty and nasty. Well they are not naughty.” He then said: “I pretended I was dying because I could not carry that much weight”. He also said: “A naughty man shooting stuff in my bottom. It was fun pretending that”.
13/03/02M said to his mother: “Have you ever seen private world?”When asked about that he said: “You see pictures of naked people”. When asked what he meant, he said: “People in frames. Paintings of naked people.” The Mother then asked him whether they were “really pictures, paintings or what?” M did not say any more but sat on her lap and appeared very shy.
At the start of the incidents referred to above in the Mother’s affidavit material (i.e. 12th November 2000) M was three and a half years old and F was only eight months old. At the end of the sequence of events (ie. 13th March 2002) M was almost five years old and F was just two years old.
The Mother’s affidavit evidence goes into significant detail. It was her evidence in cross-examination that she kept a diary. Although she has always kept a personal diary, she acknowledged that she started keeping a separate “contact diary” the day after contact orders were made by Rourke J in the Family Court of Australia on 21st November 2000.
In her affidavit sworn 29th April 2002 the Mother also says:
“In February, March and April 2001, I noticed that (M) frequently fondled his penis after he had a bath. (M) would often rub himself with a towel until he had an erection and he often fondled his penis on his bed. It happened on average two to three times each week throughout this period. (F) also touched her vagina on quite a number of occasions during this period. At the time I did not regard this behaviour by either (M) or (F) as being out of the ordinary, attributing it to their age and them being inquisitive. However, with hindsight and in the context of the sexualised behaviour by (M) I am now concerned by that behaviour.”
A number of things should be said about that particular paragraph of her affidavit. Firstly, her statement that she did not regard the behaviour in February, March and April 2001 as being out of the ordinary at the time appears to be in stark contradiction to her evidence when cross-examined that she started being suspicious that M had been sexually abused on 28th January 2001.
Indeed, it is clear me that the Mother and at least one member of her family first started talking to each other about sexual abuse by the Father in late January or early February. It is the Father’s evidence that the Mother’s brother went to the restaurant where the Father was working on 3rd February 2001 and made allegations that the Father had been “fiddling around” with M. The Father stated in an affidavit filed in relation to the earlier hearing before me that the Mother’s brother had said at that time: “You had better leave him alone and stop seeing him, or you will have to deal with me”. I accept that evidence as being true and I note that the Mother’s brother, who lives in Tasmania, was not called by the Mother to rebut that evidence in any way.
The evidence of the Mother about the behaviour of the children appears to fall into a number of distinct categories. They can be summarised as follows:
a)At times the children have been “glassy eyed” and “trancelike”
b)F has been constipated
c)M has had toileting difficulties, including defecating and urinating in inappropriate places
d)The children do not sleep well and M has nightmares
e)M has been aggressive and violent towards pets, his sister and to a lesser extent his mother and grandmother
f)M has made enquiries about people being hurt and made references to blood, hospitals and the like
g)M has used inappropriate language
h)M has appeared to be scared of ghosts and monsters
i)M has invented “Jack” who is said by M to be aggressive towards M and hurts him
j)M has spoken and acted in a sexualised way and made inappropriate references to bottoms, poo etc.
It is quite clear from the evidence of the Mother that she interprets even the slightest adverse or unusual behaviour on the part of the children, and in particular M, to be the fault of the Father. This is so, notwithstanding the fact that the Father has not had any unsupervised face to face contact with the children since early February 2001. Further, all such contact since then has taken place at a location specifically designed for supervised contact.
The facts also show that the Father did not have any contact at all between mid February 2001 and 18th March 2001, when supervised contact at the Children’s Contact Service in Hobart started. In addition, at the time of the hearing of this matter, all face to face contact had ceased because those in charge of the Contact Centre had effectively told the parties that their time was up and that they could no longer provide such a service to them. Contact has since resumed and I shall refer to that below.
I have some difficulty with the concept that the Father is to blame for two children being “glassy eyed and trancelike” on 13th March 2001, when they had not had any contact with their father for approximately a month. Similarly, I cannot see how he could possibly be to blame for F’s sore bottom or M’s loss of appetite at that time.
The Mother appears to blame the Father for the fact that F was very unsettled after contact on 29th April 2001 and that she had to be settled on three occasions on the way home from the Contact Service. In her affidavit, the Mother says that she “thought” that F may have been constipated. While it is very difficult to see how she could blame the Father for that immediately after a contact visit, her answers in response to cross-examination by the Father’s counsel were illuminating. She said the following: “……and she was clinging to me like this, in pain, and as soon as I got there I had to lie her down. I knew that she was distressed and in pain and she was just screaming like in absolute pain. So I lay her on the floor. I looked at her nappy, changed it straightaway, couldn’t see anything, but you know, I had to rock her 10 minutes before I put her in the car. I had to stop on the way home, and then eventually she had a poo that she – I had to help her get it out of her bottom, she was so physically in so much pain from being constipated.”
This evidence is significant in that the Mother has elevated F’s possible constipation in her affidavit to actual constipation in her oral evidence. She says that she had to stop on the way home and “help her get it out of her bottom, she was so physically in so much pain from being constipated”. In my view, her statement about this is significant because, if the later version is the correct one, it is perfectly clear that M must have been in the car at that time and the process must have involved some anal touching, and possible digital penetration, that M could have witnessed. Even if it did not happen on that particular day, it suggests to me that the Mother may well have done something similar at some other stage when M could have been present.
On their own, poor sleep, nightmares and being scared of ghosts and monsters are not necessarily signs of sexual abuse. If those events occurred, they could very easily have a variety of different and innocent causes.
Similarly, aggression towards pets, one’s sister and adults could very easily be a reflection of the way in which a child’s parents deal with each other. In my view, M’s behaviour of this nature is more likely to be a result of the “antagonistic and suspicious relationship between the parents and their lack of any history of co-operation around these problems at least since separation” as described by Ms. Stark in her report.
It is also of some interest that, when asked by the Children’s Representative what F was like, the Mother said that she is now “very aggressive” and she hits M. Given all the evidence from the Mother and her witnesses about M’s aggression at times, I find it difficult to accept her statement that M “never physically reacts back” when F hits him. However, I would not find it unusual if he did.
In my opinion, M’s enquiries about people being hurt in various ways and his references to blood and hospitals are more likely to be the products of an intelligent and enquiring mind of a young boy than the result of sexual abuse. All the evidence that I have supports the view that M is an intelligent and enquiring child. However, I must express a concern that the Mother (and possibly her relatives) have not reacted properly in relation to such enquiries. Indeed, it is the Mother’s habit to take notes of such conversations in her contact diary and I have absolutely no doubt that M has observed this. Although the Mother says that she does not write her diary in his presence, I am sure that he is well aware that she is observing virtually every move that he makes. That must create in him an expectation that he must “perform”.
On occasions M appears to have used inappropriate swear words. However, I cannot say that the Father is responsible for that. Children pick up such words in many situations. Very often, those words are uttered by adults at a time of stress or excitement, which can have an even greater impact upon a child. It is not surprising, that children often repeat such words, particularly, if they are indulging in some attention seeking. In this case, I cannot see why M would be any different from other children.
M’s invention of Jack as a child who appears to be around when he is with his father is clearly a complex issue. It is disturbing that a child of M’s age needs to invent a character who has some sinister characteristics. It is clearly not the same as a child inventing a friend out of loneliness, as sometimes happens.
It is my view that M invented Jack to shift some of the blame from himself for his own bad behaviour, and also from his father (whom he loves) because M is aware that his mother believes that his father has done something to him. In this regard, when questioned by the Children’s Representative, the Mother conceded that M was aware that she thought that his father had done something bad to him.
Toileting difficulties and regression in relation to toilet training are often seen in cases that come before Courts where the child’s parents are clearly hostile towards each other and there are significant difficulties over contact. In this particular case, I do not see any particular sexual significance in the fact that M has on a number of occasions wet and soiled his clothing or defecated and urinated in inappropriate places. Indeed, on some of those occasions, his explanation to his mother was: “I did not make it”. That suggests to me that, for one reason or another M did not get to the toilet in time and the results were accidental.
It is clear from the evidence of the maternal grandmother, Mrs. J that M was not completely toilet trained at the beginning of 2001. Her evidence was that M was still wearing a type of nappy/pant to bed at night and at times he hid them when they were wet. Further, in response to cross-examination, the Mother’s evidence was that in June 2001 she was still helping him wipe his bottom.
At this point, it is probably worth noting the evidence of Dr. A. His affidavit evidence is referred to at paragraph 13 above, but it is worth repeating that he found: “a small fissure, or split of the skin, of approximately a couple of milimetres in length in (M)’s anus at what I would describe as the twelve o’clock position. There was generalised irritation uniformly around the anus, manifested by redness and inflammation. I consider that the fissure and condition of (M)’s anus are consistent with three possibilities: poor toileting habits, constipation or interference by another person.”
As stated, the Mother did not rely upon that earlier affidavit of Dr. A. in these proceedings before me. However, he was called to give evidence by the Children’s Representative and his medical notes became an exhibit. Those notes show simply that there was a complaint of anal discomfort and the only observations are: “Small fissure” and “pruritus ani”. It was Dr. A’s evidence that on 15th February 2001 he had informed the Mother that the likely cause was poor toileting or constipation and she had asked whether it could be interference by another person. Dr. A. was quite clear in his evidence that the possibility of any interference by another person was raised by the Mother and not by him.
The fact that M had his anus inspected by Dr. A is clearly an explanation for his subsequent apparent preoccupation with matters associated with the anus. Further, his noting that his mother reacts to his behaviour is, in my view, likely to have a reinforcing effect upon him.
In her evidence, the Mother attempted to play down the significance to M of Dr. A’s examination of his anus. She said initially that the examination took only a few seconds. In re-examination, she extended that to approximately fifteen seconds. Dr. A’s evidence was that the anal examination was likely to have been between thirty seconds and a minute.
When Ms. Stark was cross-examined, she clearly accepted that it was not possible to say with one hundred per cent certainty that M had not been abused. However, she also said that children retain memories of medical procedures for quite some time. When asked by the Children’s Representative whether it was likely that M builds upon it when he sees his Mother react, she said that it was “highly likely”. She had said earlier in relation to a question about the possibility of M picking up on his mother’s reaction: “When I talk about this, Mummy attends. If I talk about it more, Mummy attends more. One would see a reinforcement of behaviour”.
It was also Ms. Stark’s evidence that it is likely that M’s statements are made in the knowledge that his mother believes that his father has done something bad. However, I shall refer at greater length to Ms. Stark’s evidence below.
The Mother is convinced that the Father has abused the children at the Children’s Contact Centre. Her evidence is that M made statements such as “Daddy touched my wee wee” and, when asked where that had happened, M had said “at the Play Centre”. She says that is clearly a reference to the Children’s Contact Centre. It is the Mother’s view that the child was abused at the Centre on 8th April 2001. She instructed her solicitor to write to Relationships Australia about the incident and in the letter responding, the coordinator YM stated that it was considered very unlikely that any abusive incident took place. She commented specifically as follows:
“The supervisor noted on her report dated 8 April 01 that (the Father) took (M) to the toilet. Her verbal account is that there were lots of people around. The supervisor observed (the Father) and (M) enter and leave the toilet area. They were in the toilet for a brief period. There was nothing to indicate anything suspicious.”
YM’s letter noted that the Mother had requested that staff help M with any toilet needs and that is consistent with the Mother’s affidavit material. However, up to that point the only mention by M of his father taking him to the toilet at the Contact Centre was in response to a direct question from the Mother on 11th April 2001. On that day, M said nothing suggestive of any abuse.
A few days later, on the day after the Mother’s request at the Centre to have staff assist M with his toilet needs, he apparently reported that his father touched his “wee wee” at the Contact Centre. It appears that he did not say any more than that about the touching. However, a simple mention of a touching is not necessarily suggestive of abuse. Clearly, there can be many situations in which parents are required to touch their young children’s genitals that are entirely innocent.
The Mother’s evidence of her conversations with M on 10th May 2001 is set out above in paragraph 43. It is not clear to me whether her allegation is that the Father spoke to M at the Contact Centre about sticking fingers in bottoms or whether she believes that it actually happened there. However, it is clear from her evidence that the Mother went on to talk to M about the visit to Dr. A approximately three months beforehand. That conversation with M could only serve to reinforce his memory of the incident.
In relation to M’s statements on 8th and 9th March 2001 about being “a receiver”, it was the Mother’s evidence in cross-examination that on 8th and 9th March 2001 M said those things in “a robotic way”. She said that on 8th March 2001 “…. I could not understand what he was saying. The next day it became clearer…”. This is inconsistent with her affidavit, in that she said she asked him to speak more clearly on 8th March. However, nothing really turns on that.
It is surprising that the Mother, who was keeping a very detailed diary of events, did not ask M what he meant by the conversation involving “receiver” and “remover”. It is quite possible that the child was copying something that he had seen, probably on television, especially as the Mother describes his manner as being “robotic”. However, it is clear that the mother would prefer to interpret the event as further evidence of sexual abuse.
The Mother’s diary of events for 13th March 2001 shows that both M and F were glassy eyed and almost trancelike. However, it is of some significance that that was almost one month after contact with the Father had ceased. In cross-examination, she even attributed F’s sore bottom to the Father one month after contact had ceased. When it was put to her that that was “just a little bit ridiculous”, she said: “No, the children had been sexually abused by their father”. When pressed further about this, she appeared to become confused. It was put to her that she was saying that F’s sore bottom had something to do with what the Father did. Her response was: "Perhaps”. When it was put to her that what was “yes” previously was now “perhaps”, she responded:
|“I don’t know what (the Father) is capable of”.
As cross-examination continued, the Mother attributed M’s loss of appetite to the Father’s contact. Further, in relation to her statement about the Father giving vitamin tablets to the children, when it was put to her that she was talking about something that could only have occurred a month beforehand, she said that she had noted it in her diary and said: “I didn’t know that it would come out here. It’s a diary”. Pressed further about this, she said: “I think what I am saying is the problems the children are experiencing are ongoing”.
In my view the matters set out in the two paragraphs immediately above are illustrative of the Mother being fixated upon the Father being the cause for almost every ill that befalls the two children. Her views are at times neither logical nor realistic.
It is clear from the evidence of the Mother that she believes that some form of sexual abuse has taken place at the Children’s Contact Service, notwithstanding that there is supervision and the Father would have been well aware of the allegations that were being made against him.
Having heard the evidence of YM and in the light of the diagram of the Children’s Contact Service facilities that was provided to the Court by her, I find that the likelihood that the Father abused his children at that location to be remote in the extreme. Firstly, the time frame during which he would not have been observed by staff at the Contact Service was extremely limited and the risk of being caught would have been extremely high. The supervisors move about to interact with the children and the parents. Further, the Father was well aware of the allegations that the Mother had been making and of the risks any untoward behaviour would have upon his contact with his children.
The Mother’s fiance swore an affidavit in February 2002 in support of the Mother’s Application to relocate to New South Wales. That affidavit confirms the Mother’s evidence that he and the Mother met approximately twenty five years ago and that they went out with each other for approximately six months in 1990/91, prior to her relationship with the Father. He met the Mother again in April/May last year when he was visiting her brother in Tasmania. During that time his relationship with the Mother was rekindled.
There was nothing in the Mother’s fiance’s affidavit that was suggestive of any sexual abuse. However, in response to cross examination by the Father’s counsel, the Mother’s fiance indicated that he had seen “sexualised behaviour”. When questioned about that he said that M had been hiding behind a door straight out of the bath “trying to fondle his sister. Trying to be involved, whispering, things like that.”
He said that the Mother had observed that. When asked why he had not mentioned the incident in his affidavit, his response was that he did not believe that he had seen enough behaviour at the time. He said:
“it was a very fleeting moment that I saw it”.
Notwithstanding this, the Mother’s fiance appears to be convinced that some abuse has occurred and states that M “has been tampered with in some way”.
When he was cross-examined by the Children’s Representative, the Mother’s fiance confirmed his belief in the sexual abuse of the children by the Father and expanded upon the incident that he had previously described as being something that he had seen in a fleeting moment. He said: “What exactly happened was that he went behind an open door and was making lewd and sexualised movements towards her.” When questioned further about what that meant, he said: “Well, it was very hard for me to see, so I opened the door to see what was going on and I found him with her pushed up against the corner and rubbing himself against her”.
When he was asked what made him think that it was being done in a sexual way, the Mother’s fiance said: “Well, because I’ve seen all my nephews and nieces grow up from that age and I have never seen anything like it before from any of them, so I just believe that a child would not naturally do that unless they had been exposed to some kind of sexual behaviour.”
It was very clear to me that in relation to the question of sexual abuse, the Mother’s fiance was making up and embellishing the story as he went along.
I have a further concern that the incident described by the Mother’s fiance was said by him to have taken place in June or July 2001 but he did not refer to it in his affidavit sworn in February 2002. Further, he commented that the Mother had seen the incident, but she did not refer to in her affidavit either.
Given that the core issue in relation to the Father’s contact is whether or not there is an unacceptable risk of sexual abuse by the Father, I find it very hard to believe that the Mother’s fiance would not have been asked any questions prior to the preparation of his affidavit about any behaviour that he may have observed. Consequently, the fact that it was not in his affidavit simply adds to my belief that his evidence about “lewd and sexualised movements” was of recent invention.
The Mother’s stepfather, Mr. E had sworn an affidavit in February 2001 in relation to the interim proceedings and on 19th April 2002 in relation to the final hearing.
It is clear that the relationship between Mr. E and the Father is not good. This is hardly surprising because Mr. E clearly assisted the Mother to remove herself and the children to Tasmania without the Father’s knowledge in mid 2000 and it is clear that he was less than honest with the Father at that time.
It is Mr. E’s evidence that M’s behaviour has improved since he swore his first affidavit in February 2001.
The only direct evidence that Mr. E gave in relation to possible abuse relates to an incident on 26th May 2001 when the Mother and the children visited him and Mrs. J in Sydney. The Mother’s fiance was there as well. Mr. E reports that M said: “There are videos with children with their bottoms in the air. Adults like to watch them”. He also says that M went on to say: “Daddy showed it to me. We got it at a shop. You would like to watch them wouldn’t you Grandpa?” Mr. E replied that he would not like to watch those videos.
Mrs. J (whose evidence I shall also refer to later) repeats the exact words that M is reported by Mr. E to have said on 26th May 2001. However, she adds that M touched her nipples at that time.
This was obviously an incident that assumed some significance in the mind of Mr. E. However, his affidavit makes no comment about the nipple touching and in cross-examination Mr. E did not mention that either.
Mr. E described the event as being “quite shocking to the extent that I actually took note of it which, I don’t normally do”. What is unusual is the fact that the event was shocking enough for Mr. E to take note of it but he does not appear to have a memory of important events surrounding it. During cross-examination, he was asked whether he had enquired of M when he had seen the video and his evidence was that he thought that the Mother may have asked that question but he did not recall the response.
I gained the clear impression that Mr. E is an intelligent and capable man. I therefore find it unusual that, on an occasion when he is shocked by something said by a small child whom he loves, he cannot recall the event in much better detail.
The Mother’s own mother, Mrs. J swore an affidavit for the interim proceedings and another in relation to the final hearing. Both affidavits were relied upon. Essentially, Mrs. J’s evidence is very similar to parts of the evidence of the Mother, because she was present at various times when visiting Tasmania or when the Mother and the children were visiting her in Sydney.
She refers to the incident on 26th May 2001 when M is alleged to have referred to the videos with children with their bottoms in the air. She uses exactly the same words in her affidavit as those that are used in Mr. E's’affidavit. However, she does not refer to M asking Mr. E whether he would like to look at such videos. Again, that seems to me to be a significant omission.
In her affidavit, Mrs. E refers to being with the Mother when contact commenced at the Childrens Contact Centre. She says that after further visits to the Childrens Contact Centre M “complained in my presence that his bottom was hurting”. She says that she became concerned that M was not being supervised properly when he went to the toilet at the Centre and she raised those concerns with the Mother. However, the Mother does not refer to that in her affidavit and it appears from her evidence that the Mother’s concerns about M being taken to the toilet at the Children’s Contact Centre arose from a direct question that she put to M.
Mrs. J reports that on 10th May 2001 M telephoned her and during the conversation he said “Daddy put his finger up my bottom in the toilet and then he rubbed my penis with his finger. He had to wash his hands because he had poo on them.”
When she was cross-examined about that incident, Mrs. J could not recall whether the telephone call occurred during the morning or the evening. Further, it was only in cross-examination that she stated that she had spoken to the Mother about that telephone conversation. It is curious that the Mother, who appears to have kept a meticulous diary in relation to these matters did not mention that in her affidavit. Her evidence in relation to what occurred on 10th May 2001 does not include reference to any telephone conversation with her mother.
Mrs. J’s evidence includes reference to two occasions on which M touched her nipples. It seems to me clear that he did this through her clothing. In my view, touching of that sort is not necessarily suggestive of sexual abuse. Children are naturally inquisitive and they tend to poke and prod as part of their inquisitiveness. It is sometimes necessary for children to be taught that some such poking and prodding is inappropriate.
It may also be of some significance that the child F was still being breastfed until late February 2001, according to the medical notes of Dr. A that were an exhibit in the proceedings. That could have increased M’s attention to women’s breasts.
Mrs. J gives evidence that when speaking with M by telephone on 12th June 2001 she enquired whether he was going to see the psychologist MS on that day. His response was to say that his father had promised that he would never do anything nasty again. This is similar to the evidence of the psychologist MS that I will refer to below.
Three affidavits by MS were filed in relation to these proceedings. The first was filed on 2nd March 2001 in relation to the interim proceedings. The second was filed on 2nd May 2001, shortly after contact had started at the Children’s Contact Centre and the third affidavit was filed on 19th April 2002. That third affidavit is only seven paragraphs long but it annexes the following:
a)a psycho-educational evaluation prepared by MS on 15th April 2002 in relation to M
b)a copy of a report dated 30th July 2001 which MS forwarded to Ms. Stark
c)a copy of a report dated 14th November 2001 which she sent to Ms. Stark
d)copies of five pages of the Mother’s notes from her diary
The material contained in the annexures to the third affidavit of MS is quite voluminous.
MS has been seeing M in a therapeutic role since December 2000 and she has reported some of the same things that other witnesses have reported. For example, she reports that M had stated to her that his father touched his “wee wee” at the “play centre”.
If the reports and evidence of MS were to be considered on their own, they could possibly be construed as being supportive of the suggestion that M has been sexually abused. However, I have some significant concerns about the evidence and recommendations of MS.
My first concern arose out of what she said in her affidavit sworn on 2nd March 2001 in relation to the interim proceedings. However, that concern did not arise until I read the affidavit sworn by her on 19th April 2002 and in particular the report forwarded by her to Ms. Stark on 30th July 2001. In her first affidavit she said that she saw M on 21st February 2001 for approximately an hour in relation to that session with M. She said, inter alia: “He would not tell me anything about his father’s house. He talked easily about his mother’s house and also his uncle’s, ……… house.” She noted in that affidavit that she had tape recorded that session. Her letter to Ms. Stark dated 30th July 2001 gives a transcript of that session noting that it had been taped “because a hearing regarding access was scheduled and I had been asked to testify as to my observations…”.
It is quite clear from that transcript of the session with M on that day that her statement in her first affidavit that M would not tell her anything about his father’s house and that he talked easily about his mother’s house was completely inaccurate. My reading of the transcript shows that he was quite happy to talk about his father’s house and what he played with when he was there. When asked what else he did at his father’s house his response was to say: “lots of fun things”.
If anything, the transcript shows that M was scared of monsters at his mother’s home, but not at his father’s home. It is therefore difficult to understand why MS would state in an affidavit that M would not tell her anything about his father’s house and talked easily about his mother’s house. That is completely misleading.
When I questioned MS about that, her response was: “Okay. Well, it was not completely correct. In this particular transcribed session he did talk quite favourably about his father, but on most other occasions he wouldn’t”. That is also an answer that is totally unsatisfactory. If her first affidavit is to be believed, 21st February 2001 was only the third occasion on which she had seen M.
In her first affidavit MS also says that on 21st February 2001 M: “described the incident with the dog when he put a rubber band around its neck.” In fact, the transcript reveals a long discussion with M about an incident concerning a dog called “Tex”, during which M explains his violent actions towards that dog because the dog had bitten him very hard. In my view, it is significant that MS does not mention that in her affidavit, and further, that neither the Mother nor any of her witnesses put forward the fact that the dog had bitten M as an explanation for his apparent violent reaction.
It is clear to me that in relation to ascertaining whether M has been abused, I am not greatly assisted by the evidence of MS. I say this for a number of reasons. They are as follows:
a)In cross-examination she stated: “When I’m working with kids I have to believe what parents tell me.” She went on to say: “I have to believe parents’ description of their children’s behaviour and I have to believe what they report to me their children say.” This means that she was unable to provide an objective assessment;
b)The Father was not involved in the process conducted by MS. This is not a criticism of MS, because it appears that she may have attempted to involve him. However, by that stage the parties had agreed that Ms. Stark should provide an expert report. (The role of MS in relation to M was that of a therapist, and she was not brought into the proceedings simply to bolster the Mother’s case. Consequently, that does not put her in the same category as the “Dr. W” referred to in Re W and W: Abuse allegations; expert evidence (2001) FLC ¶93-085, as suggested by counsel for the Father);
c)On a number of occasions MS has asked M leading questions (some of which quite clearly made M angry); and
d)As mentioned above, some of her evidence was clearly misleading.
In my view, MS came very close to abusing M’s trust by suggesting to him that if he provided answers to certain questions she may be able to provide a reward that was not within her power to provide. In this regard, she reports that during a session on 14th February 2002, M said that he wanted to see his father at his house. She reports that he said: “I want to go there again with my daddy to his house. But mummy won’t let me, mummy doesn’t want me to go by myself to dad’s house”. At that point she reports that she said: “(M) if you could remember to tell me something about those bad things that daddy used to do that might help me to help you and your dad be able to be together at Daddy’s house. If I understand what those bad things are maybe I can talk to your Dad about them.”
It is of some significance in my view that throughout her attempts to have M say what the bad things were that his father was alleged to have done, M resisted those attempts, and that included the occasion when MS even offered a significant inducement that she was unable to deliver.
In my view, MS appeared unable to entertain the possibility that when M said that his father would not do bad things to him any more, that may just have been a small boy’s attempt to get the adults around him to stop blaming his father, and to reassure them that all was well.
M’s behaviour appeared to improve during a period of some months when he did not see MS while she was on leave. That may just be coincidental, but it may also be that M was relieved of a source unwanted pressure during that period. In my view, the questioning of him by MS was at times very direct and quite persistent.
Compared with the evidence of the Mother and her witnesses, the evidence of the Father was quite short. He denies any sexual abuse and states that he finds that he is in “the difficult position of having to, in effect, disprove a negative ….” He states that he had hoped that the release of the report by the Court Expert Ms. Stark would have dispelled the allegations that the Mother has raised. He says that the allegations are “false, unworthy and, in (his) view, are a cruelly calculated measure to destroy the relationship which (he has) been able to develop with (the children).” He denied each and every allegation of abuse that was put to him in cross-examination.
The Father has been able to obtain employment as a chef at a restaurant in Hobart. It was clear from the evidence that he gave when he was cross-examined that he has established a new life for himself in Hobart and he does not want to move.
The Father is of the opinion that, because he has not seen such activities by M, some of the allegations made by the Mother and her witnesses about M’s behaviour are not true. At one point he said that the Mother’s diary sounded like fiction, so I can only assume that he believes that she has invented some of the alleged behaviour of M.
It is the Father’s evidence that he does not say unpleasant things in the presence of the children and he assumes that the use of inappropriate language must come from the Mother’s home because that is where M is living. He said that M had told him that his mother had said: “Fuck” and “Shit”. This was at about the time that M had spoken about “Jack”.
In addition, he stated that he has not ever told M not to discuss matters with his mother. He also said that he had not talked to M about MS.
During his contact period he would mainly play with M around the sandpit and talk about toys. He commented that two hours go very quickly.
The Father considers Mrs. J and Mr. E. to be the driving force behind the Mother’s actions in these proceedings.
The Father regards the allegations that he was teaching M to “lick all over” and to “lick poo” as absurd.
It was the Father’s evidence that M has been told about the sexual parts of his body since he has been able to talk. Further, he said that the words “wee wee” are not used by M to describe his penis. He uses the word “penis”. However, he uses the words “wee wee” to describe urination.
In relation to the allegation that he had shown or watched inappropriate videos in the presence of M, the Father indicated that he had not owned a video recorder at anytime when M had come to his home. In this regard, it his evidence that he did not receive his furniture, including the video cassette recorder until after the contact at his home had been suspended.
When he was cross-examined by the Children’s Representative, the Father revealed that he has a girlfriend but he does not live with her. She appears to be a student of horticulture and natural therapy. She does not have any children.
The Father and his girlfriend have plans to move in together and have discussed marriage but they are not engaged. His girlfriend has not met the children.
From the evidence that the Father gave while being cross-examined by the Children’s Representative, it is clear that there were occasions when the Father and Mother had arguments and voices were raised. He conceded that it was quite possible that M witnessed those arguments. However, he said that the Mother “gives as good as she gets”.
The Father conceded that he had witnessed aggression on the part of M when he did not get his own way. However, he stated that M apologised when he realised what he had done.
The Father admitted that he had taken M to the toilet twice at the Contact Centre, but that was only when M had asked for help. He said that he did not think that the Mother would make an allegation that he had abused his son in the toilet while supervised contact was taking place at the Centre and said that he had been a little naïve to put himself in a position where that could be alleged. However, he denied that there had been any abuse.
During cross-examination, the Father’s evidence was that he did not bear a grudge against the Mother except she was attempting to alienate him from the children. Although, he was very controlled while giving his evidence, his evidence of not bearing a grudge does not sit well with Ms. Stark’s evidence that he can be “fiery” and very angered by the Mother’s actions.
I turn now to the evidence of Ms. Stark. An Order 30A Report was prepared by her as a consequence of Orders made on 16th March 2001. That Report was ordered pursuant to the Family Law Rules, prior to the introduction of this Court’s Rules. It is a very thorough report.
Ms. Stark noted that the Father felt excluded from the processes being conducted by MS and at page 8 of her Report she stated the following:
“Therefore, in assessing (M’s) responses in relation to contact, it seemed important to set up a process whereby he would become familiar with the settings and be given an opportunity to perceive his parents as being equally involved. It was arranged that his initial contact with me would be in the familiar company of his mother and sister. He was then given an opportunity to become familiar with my rooms without his mother’s presence, with observations of his play and responses in this setting. The presence of his father, then, in the next session, resulted in only one variable at a time being changed. Again, following the principle of keeping as many variables as possible constant, he was then observed in the company of his father and sister, at the Children’s Contact Centre. For completeness, contact was established with the Co-ordinator of the Children’s Contact Centre to compare my observations with those of staff who have been involved with the process over time. On all of these occasions (M) was delivered and collected by his mother. Thus it should have been possible during this process to ascribe causality to any noticeable changes in behaviour across settings.”
Ms. Stark then goes on to say:
“What was noticeable however, was that (M’s) behaviour, as I observed it, was remarkably consistent across settings. He was confident and happy in the presence of both parents, approaching both for help and clearly expecting to get his needs met. I was particularly struck by some idiosyncrasies of his play which were present both in his individual session with me and in the session with his father. These centred around the manner in which he dealt with frustration when his plans for an activity did not turn out exactly s(sic) he would have liked.
Consistent with (MS’s) observation he presented as an articulate, lively and strong-minded child who was highly aware of his surroundings. I observed him test limits with both of his parents and both handled potentially challenging situations with considerable skill.”
Ms. Stark went on to note that M’s —
“inter action with his father was as happy and confident as his inter action with his mother. He approached his father with enthusiasm and appeared to have a firm and loving relationship with him. There was excitement and anticipation in his coming on both occasions this was observed and such a comment is consistent with the reports of the Children’s Contact Service. In this setting, on no occasion has (M) been observed as wary or frightened of his father, displaying inappropriate sexualised behaviour or speaking in the fashion reported by (the Mother). My direct observations of the contact between (M) and (the father) yielded similar conclusions.”
Ms. Stark then goes on in her Report to address some of the matters referred to in subsection (2) of section 68F of the Act. I take note of all that she has said but I will only refer to parts of her comments and observations.
In relation to the capacity of each of the parents to provide for the needs of the children, Ms. Stark states that in her opinion both are “clearly loving and competent parents”. She also notes that both children approach their parents individually with love and confidence and there is repeated and pleasurable eye contact.
In relation to the need to protect the children from physical or psychological harm, Ms. Stark states that both parents were hypervigilant. She says that both appeared aware of when either child was about to indulge in some potentially risky behaviour. She said that both parents displayed the typical “eyes on storks” behaviour of parents of very young children. It seemed to her that neither would be likely to place either child in a position of potential harm.
Ms. Stark refers to the reports of M’s unusual behaviour as reported by the mother and her witnesses and states that they were not in evidence during her contact with M. She also said:
“If (M’s) behaviour is accurately reflected in these reports it is a source of concern that such a young child would behave in such a fashion and have developed such an awareness”. She went on to say: “However, in my opinion, it is not possible to clearly ascribe responsibilities for such behaviour and awareness to any one individual, particularly, one of his parents…. It is also necessary to acknowledge that both children approached both parents when in individual contact with no apparent wariness and with the utmost confidence”.
Ms. Stark commented that it did not seem to her that there was a clear indication that contact with one or either parent was likely to bring direct physical harm. She also noted that a number of reports had been made to the Child Protection authorities in relation to the Mother’s fears for M. It was Ms. Stark’s understanding that neither the Child Protection authorities nor the Police have any intention of acting upon current reports. Certainly, there was no evidence before the Court that the State child welfare authorities or the police were actively pursuing any enquiries at all. If those enquiries were being actively pursued, I have no doubt that the Mother and her legal representatives would have made sure that I was made aware of it.
In relation to psychological harm, Ms. Stark noted that MS in a report in July 2001 referred to M as being —
“at great risk”. “From the behaviour I have witnessed, as well as my experience with his thought process, he has the potential for developing serious psychological as well as behavioural pathology, that may have long term effects on his personality.”
In relation to that, Ms. Stark says:
“Whilst I would agree with her assessment, given his presentation to her, it is my concern that such potential for being placed at risk may be derived from the actions of both parents, specifically from their relationship attitude to one another”.
She went on to say:
“(MS) has apparently accepted accounts of (the father) whispering in (M’s) ear as indicative of him (the father) fuelling the discord between the parents. Having had the benefit also of (the father’s) reflections on these occasions and his claims that he was encouraging (M) to be good, it would seem to me that the discord between the parents was of equal standing and seated deep in their relationship, rather than necessarily the responsibility of one parent and relating to incidents solely associated with contact”.
She stated in her Report that it appeared that the relationship between the mother and the father had been troubled for some time prior to their final separation. She says that the Mother and her own mother were deeply resentful of the manner in which the father had treated the mother during the relationship, referring to “his putdowns” and to verbal intimidation and attacks.
Ms. Stark commented that the father had demonstrated that he could be “fiery” and that he was clearly very angered by the mother’s unilateral decision to end the relationship and by what he saw as a consistent campaign to remove him from the children’s lives.
Ms. Stark went on to say the following:
“Thus, during the preparation of the Report, each displayed a deep-seated anger and mistrust of the other as people, an anger which appeared to be of long-standing and related to a fundamental distrust of each other.
It has been described (Johnston & Roseby, 1997) how even very young children are able to pick up very subtle, non-verbal signals of anger, fear and hostility between polarised parents, for instance as they are being handed from one to the other. It is very possible, given his clear attachment to both parents and his awareness of his surroundings that (M) has picked up on the fear of (the mother) on the one hand and the anger of the (the father) on the other and has been reacting to this. Given the intensity of feeling displayed to me in individual sessions it would not be necessary for (M) to be in the company of both parents at once to pick up on these feelings. In my opinion therefore, (M), and possibly (F) are at significant risk of psychological distress if not damage from exposure to the attitude of each of their loved parents to each other”.
In the preparation of her report, Ms. Stark had been asked to comment “whether the presentations by the parents and/or the children are symptomatic of psychological abuse, physical abuse, parental alienation syndrome or any other cause”. In relation to this she commented that the reports of M’s behaviour do give rise for concern. She said that in an intact family, the most logical accounting for a child observed to be behaving in the manner reported by the mother would be that the child was behaving in a fashion consistent with having been exposed to inappropriate sexual behaviour. She went on to say:
“However, it is clear that the situation in separated families is more complex and the existence of overt or covert hostility between two dearly loved parents can also elicit behaviours of similar concern. The confidence and happiness displayed by both children in the presence of their parents individually mitigates against them having been exposed to sexual abuse through the agency of either parent. However, psychological issues are of great concern.”
Ms. Stark stated that in relation to “parental alienation syndrome”, neither child was refusing contact or behaving in a manner suggestive of the syndrome.
In commenting upon the relationship between the Father and the Mother and how that relates to the issue of the Father’s contact with the children, Ms. Stark said that while both parties clearly expressed the principle of wanting to value the involvement of the other party in the lives of the children, the behaviour of neither of them was congruent with that.
She said that the Mother placed responsibility for the problem solely with the Father and that her solution was that he would have to stop doing what he was doing. She said that M’s problems had nothing to do with her actions and she was clearly anxious about the outcome of the proceedings. Ms. Stark commented:
“Such an attitude of fear and blame is likely to interfere with (the Mother’s) ability to provide reassurance or encouragement in the event of a resumption of unsupervised contact….. and she may well require considerable support to be able to give her children the freedom to move easily between parents.”
Ms. Stark went on to say:
“(The Father), on the other hand, was quick to ascribe blame to (the Mother) and her family for the current difficulties, accusing her of all sorts of pettiness. He was however, more reluctant to acknowledge the impact of these problems on (M) and there is a risk that, in his concern to prove (the Mother) to be at fault, or to prove his conspiracy theory, he may not be able to perceive the very real challenges that (M) may present in the situation of contact resuming, as he attempts to negotiate the difficult territory between his parents at such a young age.”
In commenting upon the emotional well-being of the children and the appropriateness of the parents’ contact proposals, Ms. Stark stated that to attempt resumption of contact in accordance with the previous pattern, without attempting to address the underlying relationship problem would be to place both children at risk of further subtle and overt damage. She went on to say:
“Likewise, given that the Child Protection authorities do not apparently consider there is sufficient indication even to investigate the allegations of sexual abuse, it is unrealistic to base the relationship of (F) as well as (M) with their father on the condition of the presence of others.”
She said that it seemed to her to be necessary to address two main issues:
a)The Mother’s fear of harm to her children based upon her distrust of the father; and
b)The Father’s propensity to blame the Mother for any problems and therefore his inability to acknowledge when M may be struggling.
Ms. Stark said that both tasks require intensive intervention, preferably by the same organisation so that issues of polarisation and split loyalties do not arise.
Ms. Stark then made the very telling observation that in her opinion:
“In relation to the resumption of contact, it is the parents who are requiring of assistance and challenge to change, not the children.”
When addressing the nature of the relationship of the children with each of their parents or any other person, Ms. Stark commented that each child appears to have a warm, loving and confident relationship with each of their parents when in their presence alone. She said:
“The eager anticipation with which I observed (M) wait for his father on two occasions in two different settings was not that which would be expected of a child who was wary of violation or abuse. (F’s) relationship with her father has apparently blossomed as she has become more competent and able to interact.”
In relation to the Mother she said that she displayed a loving enjoyment of her children and they were equally confident and loving with her. They competed for her attention on occasions but she was able to cope with that competently.
Ms. Stark commented that M reflected positively on the other significant adults in his life, being the Mother’s brother, mother, stepfather and fiance. Further, he was relaxed enough to talk about them in the presence of the Father.
In commenting upon the effect upon the children if contact with the Father does not take place or does not take place regularly, Ms. Stark said as follows:
“It was clear in all my observations of the contact between (the Father) and his children, and, reportedly, in those of Contact Centre staff, there was much love and enjoyment amongst the three. To remove this contact would seem to me to remove a source of love from the children’s lives. The only justification for this would be if they were shown to be so damaged by ongoing warfare between their parents that removal of this destructive force was seen to be paramount (i.e. the least detrimental alternative principal). It is not clear to me that the intervention aimed at improving the working relationship between the parents for the benefit of the children has been given sufficient weight to allow for this conclusion to be reached yet.” (Ms. Stark emphasised the words “for the benefit of the children”).
Ms. Stark commented that due to M’s age he was not asked directly about his wishes in relation to contact and he did not volunteer a direct opinion. However, when he knew that he was to see his father at Ms. Stark’s rooms, there were a number of behavioural cues which would appear to indicate that M welcomed contact with his father. She added:
“In my opinion the most significant aspect of (M’s) attitude to contact was his lack of fear or wariness and his open anticipation. In his behaviour he gave no indication that he was in any way fearful of his father, that he did not feel safe around him or that he was distressed in any way by having contact with his father. In the light of the necessity to extrapolate the abuse allegations from behaviours of concern, in my opinion this is a significant argument against his father having been the perpetrator of alleged sexual abuse. Again, (the Mother’s) expressed inability to encourage him even in relation to this telephone contact with his father is an indicator that it is most unlikely his anticipatory behaviour was the result of prior coaching or encouragement.”
Ms. Stark was questioned at length by all three counsel.
She confirmed that she could not state categorically that M has not been abused. However, she saw no evidence that was consistent with such abuse. Further, she confirmed her conclusion that it is the relationship between the mother and the father that is the real cause of M’s unusual behaviour.
Ms. Stark appeared quite definite in her view that the mother and the father need the assistance of some professional intervention in order to assist them to repair their relationship in the interests of their children.
In response to questions from the Children’s Representative, Ms. Stark suggested a regime of staged increases in unsupervised contact.
I found the evidence of Ms. Stark to be logical and considered and, of the experts involved in this matter, I find that I much prefer her evidence to that of MS. In this regard, I have referred above to my concerns about the evidence of MS.
Because Ms. Stark had suggested that Relationships Australia is probably in the best position to provide the necessary professional intervention (particularly if that is to continue in New South Wales if the mother relocates with the children), the Children’s Representative re-called YM to give evidence about that. She assured the Court that Relationships Australia would be able to find a suitable counsellor or counsellors to assist the parties through the Parents in Contact Programme. She advised the Court that it would be possible for such intervention to be reportable through the Children’s Representative.
Conclusions re abuse
In coming to my conclusions in relation to the Mother’s allegations of sexual abuse against M, and possibly F, I have kept in mind the matters that I referred to in paragraphs 29 and 30 above.
In his submissions to me, the Children’s Representative said that the Court can find on the balance of probabilities that abuse has not occurred and that there is no unacceptable risk. Counsel for the father was more forthright. He said that this is one of those cases where the Court should feel impelled to make a positive finding that abuse has not occurred. It was the submission of counsel for the Mother that I should make a positive finding that abuse has occurred and that the Father was the perpetrator.
I have considered all the evidence very carefully and I find that I cannot possibly come to the conclusion, on the Briginshaw test referred to above, that there has been any sexual abuse on the part of the father.
In Briginshaw v Briginshaw (1938) 60 CLR 336, at page 361, Dixon J (as he then was) said:
“The truth is, that when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independent of any belief in its reality.”
In this particular matter, I am not pursuaded that the Father has abused his children in the manner suggested by the Mother. Indeed, if I feel any “actual persuasion”, it is that he has not sexually abused either of them.
During the hearing of this matter I gained the very clear impression that, in the presence of his mother or her family, M has been “playing to an audience” and that the reactions of the Mother and of her family have served to reinforce his expectation that he needs to play that role. He is well aware that his mother believes that the Father has done something wrong to him and his actions and reactions are shaped by his knowledge of his mother’s view and by her reactions.
While I have not come to any firm conclusion that the mother has deliberately set out to make false allegations of abuse, I am quite sure that she has reacted inappropriately on numerous occasions to things that M has said or done. I am also quite sure that M is well aware that she has been keeping careful notes in her diary of what he says and does.
Instead of ignoring M’s behaviour on occasions, or perhaps steering it gently in the right direction, the Mother has asked inappropriate questions and then made those notes in her diary. This has only served as a reinforcement in the mind of M.
I am of the clear view that M’s unusual behaviour at times is the product of the parties’ poor relationship with each other, compounded by the over-reaction at times by the Mother and members of her family. I am sure that M feels the need to act in accordance with “the script” that the Mother and her supporters have created (although possibly unwittingly).
It follows that I find that there is no unacceptable risk of abuse to the children if they are to have unsupervised contact with their father. However, it is clear that the parties relationship needs some work from both of them and that they need some professional help if M and F are to benefit from meaningful relationships with both their parents. I shall refer to this further below.
Application to relocate
As mentioned above, the Mother wishes to relocate to Neville in New South Wales. She and her fiance wish to get married and settle down on her fiance’s farm in the Bathurst/Orange area of New South Wales.
It is clear from the matters set out in paragraph 28 above that the Court cannot require the Mother to demonstrate compelling reasons for relocation. However, it does seem to me that the wish to be with her future husband is, for the Mother at least, a compelling reason.
In his affidavit, the Father is strongly opposed to the Mother relocating to New South Wales. He says that if the children’s time with him is further diminished then that would impact adversely upon both of them. He says:
“Because of their age, because of (the Mother’s) evidently hostile and calculating attitude to my contact with the children and because of the costs and practical difficulties which would be associated with contact interstate, it is almost certain that if the children and I are not living in the same city, then they will find it impossible to maintain a relationship with me.”
When cross-examined, he reiterated his opposition to the Mother relocating with the children. In his view she is well established in Tasmania and it is a good place to bring up children. He hopes that she will not be allowed to move because he has already had to move a number of times to keep in touch with his children. He says that he has no desire to return to live in Sydney.
The Father said that he had no reason to doubt the genuineness of the Mother’s fiance.
I also note that the Father is not seeking residence orders in relation to the children, notwithstanding that his counsel’s cross-examination of Ms. Stark appeared to suggest that at one stage.
Ms. Stark’s opinion was that it would be counter productive to require to Mother to stay in Tasmania and that the Mother would need to know that there would be an end to the time that she was required to stay in Tasmania. Ms. Stark suggested that six months should be a maximum period that the Mother should be required to stay here. I will refer to this further below.
Section 68F(2) factors
I now turn to consider the relevant section 68F(2) factors, although it is clear that I have to some extent already given those factors consideration in the matters referred to above.
In general, the wishes of M and F are not particularly relevant to a consideration of the matters before the Court. They are both very young but it is quite clear from the evidence that M wishes to maintain a relationship with his father.
It is also clear, particularly from the evidence of Ms. Stark, that the children have warm and loving relationships with both parents, notwithstanding the difficulties in the relationship between the parents themselves.
It is quite clear that if the children move to New South Wales, it could have a significant effect upon their relationship with their father. Currently, the children are having contact with their father on a supervised basis on one day per week. That was provided for in Consent Orders made approximately two months after the hearing, following a further application by the Father.
I am sure that if the Mother departed immediately for New South Wales with the children, that would probably destroy the relationship between the children and the Father. It is clear that the relationship is not yet at a stage that it would survive such a separation. Further, the Father’s contact with the children needs to be built up so that the relationship is given a chance of surviving. As a consequence, it is clear to me that a decision about the Mother’s departure must be delayed. This is because the Court needs to assess how the children and the parties react to the Orders that I will be making. In this regard, I will be ordering that there be staged increases in unsupervised contact (similar to that suggested by Ms. Stark when cross-examined by the Children’s Representative) and that the parties take advantage of the professional help that is available to them from Relationships Australia. I will also be ordering that the relevant officers or employees of Relationships Australia be able to report to the Children’s Representative.
The timing of the departure of the Mother for New South Wales will be very much affected by the acceptance by both parties (and to some degree, their supporters) of the following:
a)my finding that there is not an unacceptable risk of abuse occurring during unsupervised contact;
b)the very clear need for both parties to work at improving their relationship with one another in the interests of the children; and
c)the fact that both parties need professional assistance.
In those circumstances it is my view that I should adjourn any further consideration of the Mother’s relocation application for a period of approximately five months. In arriving at a period of approximately five months, I considered a period of four months to be too short and, in any event, I am not sitting in Hobart during April 2003.
Generally, parties have a reasonably good attitude to the children and to the responsibilities of parenthood. However, it is also clear that both have failed to appreciate that the damage that their own relationship and their attitudes to each other is doing to the children. In this regard, the Court has a need to protect children from psychological harm that is caused by being exposed to abuse, ill-treatment, violence or other behaviour that is directed towards another person. The evidence in this case is that the children, and particularly M, may be psychologically damaged by the way in which the parents treat each other. It is my sincere hope that they will both make the most of the professional assistance that they can receive from Relationships Australia and both work very hard at repairing their own relationship. In this regard I do not mean that it should be put back to the loving relationship that it must have been at one time. I simply mean that they should each be able to treat the other as a valuable human being and promote the image of the other in the minds of their children.
I am mindful that I must consider whether it would be preferable to make orders that are least likely to lead to the institution of further proceedings in relation to the children, and that my order to adjourn consideration of the relocation application appears to conflict with that. However, I am also mindful of the fact that I must consider the children’s best interests as the paramount consideration (although it is not the only consideration). I am of the firm belief that the Mother’s departure should be delayed, and to some extent the timetable for her departure will be dependent upon her own actions after receiving these Reasons.
The mother and her fiance say that they are in love and that they have had to endure some separation to date. I am sure that their strong feelings for each other will help them to cope with the continuing period that the Mother must remain in Tasmania in the interests of the children.
General comments and explanation of orders
It seems appropriate for me to discharge all the Orders made by Rourke J in the Family Court of Australia and remake orders in relation to residence and day to day care, welfare and development.
During cross-examination, Ms. Stark provided to the Children’s Representative a rough program of contact that she considered appropriate over a six month period. Because I consider it appropriate to delay consideration of the Mother’s application to relocate to New South Wales for a period of five months, I have compressed her suggested program slightly and made it a little more intensive.
I consider this to be necessary for the re-establishment of a proper relationship between the children and their father. Consequently, it is my intention to order that the children have unsupervised contact with their father on the following basis:
a)for four consecutive Sundays from 9.00 a.m. until 1.00 p.m.;
b)for the following six Sundays from 9.00 a.m. until 5.00 p.m.;
c)for the next four weekends from 4.00 p.m. on Saturday until 5.00 p.m. on Sunday; and
d)thereafter each alternate weekend from 9.00 a.m. on Saturday until 5.00 p.m. on Sunday.
I am of the view that I should also remake an order for telephone contact on the same basis as that made by Rourke J.
In order to minimise any tension between the parties at the handover of the children at the start and end of each contact period, I will order that the handover take place at the Children’s Contact Service if those facilities are available. However, I am mindful of the fact that they may not be available, so it is my view that in that event, the handover should be at a public child oriented place. I have had no submissions from the parties in relation to that so I have chosen that the alternate handover venue be the McDonalds Family Restaurant in Sandy Bay. That is relatively convenient for both parties. However, I can see no reason why that order could not be varied by consent if the parties are able to agree upon some other venue.
I will also order that the children have contact with their father for four hours on Christmas Day. It is clear that the children have a good relationship with him, and M in particular is fond of the toys that he gives him.
As mentioned above, the parties need professional intervention in relation to this whole matter and, while the Parents in Contact Program seems to be an appropriate program, I do not believe that I should decide which of the programs offered by Relationships Australia is the most appropriate. I will therefore simply order that both parties undertake such counselling as may be arranged by the Children’s Representative with Relationships Australia and, if it is considered appropriate by the relevant counsellor(s), they should also make the children available.
The counselling to be provided by Relationships Australia is to be reportable to the Children’s representative. In this regard, I have in mind that Relationships Australia should be able to report on progress, attendances and, hopefully, improvements in relationships to the Children’s representative.
Because I will be relying upon the Children’s Representative to make the arrangements in relation to the Relationships Australia counselling, it is appropriate for him to be able to provide Relationships Australia with a copy of these Reasons if he considers that it is appropriate. It seems to me that it may assist the counsellor or counsellors involved to know the reasons why counselling is considered necessary and why particular orders have been made.
I will also make an order that that neither party denigrate the other party in the presence of the children. Ms Stark was of the view that there should not any such denigration.
Although the Father seeks an order to prevent the Mother from removing the children from Tasmania, I do not see that one is required. The regime of contact that I will Order will be sufficient to ensure that she is not able to remove them for any great length of time.
It is my intention to adjourn the Mother’s Relocation Application to the first sittings of the Court in Hobart in May, being the sittings commencing 5th May 2003.
I certify that the preceding two hundred and seven (207) paragraphs are a true copy of the reasons for judgment of Roberts FM
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