Kawediya and Dhiri

[2008] FamCA 1222

FAMILY COURT OF AUSTRALIA

KAWEDIYA & DHIRI [2008] FamCA 1222

FAMILY LAW – CHILDREN – Consent orders – Allegations of sexual abuse

APPLICANT: Ms Kawediay

RESPONDENT: Mr Dhiri

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 1040 of 2005

DATE DELIVERED: 26 AUGUST 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: BENNETT J

HEARING DATE: 25 AND 26 AUGUST 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS A CARTER

SOLICITOR FOR THE APPLICANT: Maria Barbayannis & Co

COUNSEL FOR THE RESPONDENT: MS M MANDELERT

SOLICITOR FOR THE RESPONDENT: Gormann & Hannan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER MS A BOYMAL

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER TJ Mulvany & Co

Orders

BY CONSENT IT IS ORDERED:

1. That there be final orders in terms of the minutes of consent orders signed by the parties and dated 27 August 2008 (“the minute”).

IT IS DIRECTED:

1. That the minute be placed upon the Court file and marked “Exhibit A”.

2. That the solicitor for the applicant wife engross the Minute and provide a clean, duly certified copy of the same (“the copy”) to the Registry of this Court electronically within two days.

3. That upon delivery of the copy to the court, the within orders be extracted and the copy be attached thereto.

IT IS ORDERED:

1. That the exhibits in these proceedings are to remain on the Court file.

2. That any documents produced on subpoenae may be returned to the party producing same.

IT IS DIRECTED:

1. That my reasons for judgement be published and that there be scanned and attached thereto Exhibit “W2”.

IT IS FURTHER ORDERED:

1. That all extant applications be dismissed and this matter be removed from the Active Pending Cases List maintained by the Court.

BY CONSENT IT IS ORDERED:

1. That all previous Parenting Orders be discharged.

2.1That the husband and the wife exercise shared parental responsibility for the child, …, born … December 2003 (“the child”).

2.2Notwithstanding the provisions of paragraph 2.1 hereof, the wife by herself, her servants and agents be and are hereby restrained from causing the child to attend upon any one or more of:

2.2.1Ms P;

2.2.2Any professional person practising at The A Centre; and

2.2.3Ms M.

2.3That the wife, her servants and agents be restrained from taking the child to health and/or attend professionals in relation to allegations of sexual and/or physical assault save with the written consent of the husband or further Order of the Court.

2.4

2.4.1Each of the husband and the wife keep the other informed of their respective addresses, telephone numbers and other contact details.

2.4.2Notwithstanding the provisions of paragraph 2.4.1, neither the husband nor the wife shall alter his or her residential address outside of a radius of 50 kilometres of their respective addresses without furnishing the other with not less than 60 days notice in writing of his or her intention to do so including in such notice:

2.4.2.1the proposed new address and its amenities.

2.4.2.2details of all persons intended to reside at such address; and

2.4.2.3proposals for any variation to these Orders.

1. That the husband and wife, their servants and agents be and are hereby restrained from discussing the allegations raised in these proceedings (save in the course of professional interventions as provided for in these Orders) with the child or in the presence or hearing of the child.

2. That the husband and wife shall ensure that the child is removed forthwith from the presence of any adult and any family members (save in the course of professional interventions as provided for in these Orders) discussing the allegations raised in these proceedings.

3. That the husband be restrained from drinking alcohol to excess during any periods of time which he spends with the child.

4. That the wife authorise any educational institution that the child may attend from time to time to provide the husband at the request and expense of the husband all school notices, photograph order forms, reports and any other documents/correspondence normally provided to parents.

5. That the husband be permitted to attend all school/activities to which parents are customarily invited.

6. That the child live with the wife.

7. That the child spend time and communicate with the husband as follows:

   9.1On not less than 3 nor more than 5 occasions in the general presence of the child at H Pre-School in the month of September 2008 and for such purposes:

   9.1.1the husband shall make arrangements for attendance with Ms L, Director of the Pre-School Centre for such attendances which shall commence no earlier than 45 minutes after the scheduled commencement time and cease no later than 30 minutes before the scheduled conclusion time.

   9.1.2the husband shall comply with all directions of Ms L or a person or persons so delegated by her.

   9.1.3subject to any contrary direction of Ms L, the second or subsequent occasion the husband be permitted to take or organise to be taken a maximum of two photographs of himself and the child or the child on each such occasion.

   9.1.4the wife by herself, her servants and agents be and are hereby restrained from:

   9.1.4.1being within 200 metres of the pre-school centre in September 2008 on any day of the child’s attendance 45 minutes after scheduled commencement time and 30 minutes prior to scheduled cessation time;

   9.1.4.2directly or indirectly informing the child of the possibility of the husband’s attendance at pre-school and/or questioning the child as to such attendance.

   9.1.5The Independent Children’s Lawyer be at liberty to provide a copy of this Order to Ms L and to discuss the implementation of these Orders with Ms L.

   9.2Commencing no earlier than 14^th of September 2008:

   9.2.1on ten (10) occasions no more than weekly and otherwise as scheduled by a supervised children’s contact facility;

   9.2.2each of the husband and the wife shall within 7 days complete and lodge all application forms necessary to apply for supervised time for the child at GordonCare Children’s Contact Service, W, and thereafter attend all such interviews as may be requested;

   9.2.3that the Independent Children’s Lawyer be permitted to provide a copy of this Order to the Manager of GordonCare and discuss these proceedings;

   9.2.4that the husband and wife do all such acts and things and sign all such documents to apply to GordonCare for the Post Orders Separation Program and thereafter comply until all reasonable requests of the Manager of the program.

   9.3Upon the completion of the 10 supervised spend time sessions referred to in paragraph 9.2 the husband spend time with the child as follows:

   9.3.1each Saturday from 10:00am until 4:00pm for a period of six consecutive Saturdays, the first 2 occasions to be spent in a child focussed venue or venues and subsequent occasions at the discretion of the husband including the husband’s residence;

   9.3.2thereafter but not prior to the weekend following the child attending school each alternate weekend from Saturday 2:00pm to Sunday 5:00pm on four occasions;

   9.3.3thereafter on each alternate weekend from 5:00pm Friday to 5:00pm Sunday;

   9.3.4for the 2^nd mid term school holiday in 2009 for 4 consecutive nights by an additional 2 nights following the husband’s fortnights weekend time;

   9.3.5from and including 3^rd term school holiday in 2009 for one half of all mid term school holidays at times and dates to be agreed, failing agreement the first half;

   9.3.6in the long summer school holiday 2009/2010 for one half to be exercised on a week about basis;

   9.3.7from and including the 2010/2011 long summer school holiday for one half at times to be agreed, in default of agreement the first half in even numbered years and the second half in odd numbered years;

   9.3.8from 2009 from 5:00pm the Saturday preceding Father’s Day to 5:00pm Father’s Day if the father is not otherwise spending time with the child pursuant to these Orders;

   9.3.9on the child’s birthday commencing 2009 for 2 hours if a weekday or 4 hours on a weekend or school holiday period at times to be agreed, failing agreement from 4:00pm to 6:00pm if a school day and 1:00pm to 4:00pm if a weekend or school holiday period;

   9.3.10from 2010 in even numbered years from 4:00pm Christmas Day until 4:00pm Boxing Day;

   9.3.11from 2009 in odd numbered years from 4:00pm Christmas Eve until 4:00pm Christmas Day;

   9.3.12at such other times as may be agreed.

8. That the husband’s time pursuant to paragraph 4 hereof be suspended:

   (a)from 5:00pm on the Saturday preceding Mother’s Day to 5:00pm Mother’s Day;

   (b)for 2 hours on the child’s birthday (if she is otherwise spending time pursuant to these Orders other than 4.3.9) if a weekday and four hours on a weekend or school holiday period at times to be agreed, in default of agreement from 4:00pm to 6:00pm if a school day and 1:00pm to 4:00pm if a weekend or school holiday period;

   (c)from 3^rd term school holidays in 2009 the alternate weekend time and the weekends resume as if there has been no intervening holiday period;

   (d)in even numbered years from 4:00pm Christmas Eve to 4:00pm Christmas Day;

   (e)in odd numbered years from 4:00pm Christmas Day to 4:00pm Boxing Day.

9. That the husband and wife by themselves, their servants or agents be and are each hereby restrained from removing, attempting to remove, or causing or permitting the removal or attempted removal of the child,  … born … December 2003 or either of them from the Commonwealth of Australia and that the Australian Federal Police place the name of the said child on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of the Court.

10. Changeovers for the child’s unsupervised time with the husband shall be effected inside the K Hungry Jacks.

11. Within 14 days each of the husband and the wife shall make application for acceptance of themselves and the child into the B Clinic for therapeutic assistance generally and more specifically the implementation of these Orders and to follow any reasonable request by the centre for any other family member to be involved.

12. The husband and the wife shall ensure that in making the application they provide a copy of these Orders, any Reasons for Judgment of Justice Bennett, the report of Family Consultant, Ms S, and the psychiatric assessments of Dr D.

13. On acceptance into the service of B Clinic, the parties shall inform the Independent Children’s Lawyer of such acceptance and thereafter the Independent Children’s Lawyer be at liberty to discuss the child’s interests with any professional person referred by the said clinic.

14. Save for any attendances on GordonCare and/or B Clinic and/or the H Pre-School Centre, the Order for the appointment of the Independent Children’s Lawyer be discharged.

15. That pursuant to S65DA(2) and S62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet and these particulars are included in these orders.

16. Pursuant to Rule 19.50 of the Family Law Rules 2004, this matter reasonably required the attendance of counsel.

17. Applicant’s solicitors to submit typed Minutes within 7 days.

THE COURT NOTES:

A.That the wife acknowledges that there is insufficient evidence in these proceedings to meet the burden of proof to establish unacceptable risk.

IT IS NOTED that publication of this judgment under the pseudonym Kawediya & Dhiri is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: (P)DGF 1040 OF 2006

MS KAWEDIYA

Applicant

And

MR DHIRI

Respondent

REASONS FOR JUDGMENT

(ex tempore)

Introduction

1. These proceedings concern the parties’ child born in December 2003

2. In the third day of the matter being listed for final hearing the parties have resolved their differences and seek orders in the terms of a minute to which they all agree.  I have read all of the documents relied upon by the parties as well as tendered documents and have had the benefit of opening submissions by counsel for the wife.  I have also had some discussion with counsel for the husband and the independent children’s lawyer.

3. I congratulate the parents for having adjusted their differences in such a difficult case.  I will make the orders which the parents seek and which, I note, are supported by the independent children’s lawyer.  However, largely because the case is a difficult one which has developed somewhat from that which appears in the documents, I wish to record the context in which I will make the final orders.  This is essentially a procedural history.  These reasons do not constitute findings.

Factual background

1. Counsel for the wife very helpfully prepared a non-controversial chronology of events[1].  I adopt it here.

   [1] Exhibit “W3”

DATE

EVENT

September 1969

Husband born (now aged 38)

January 1975

Wife born (now aged 33)

October 1998

Parties met in Sri Lanka

November 1998

Wife immigrated to Australia

December 2001

Wife travelled to Sri Lanka

January 2002

Parties married in Sri Lanka

c April 2002

Wife returned to Australia

Husband sent wife blood smeared letter

February/March 2003

Husband immigrated to Australia

Parties lived at the wife’s parent’s house before moving into rental accommodation after several months

Husband obtained employment as a labourer

December 2003

The child was born

8 March 2004

Parties separated. Wife alleged husband assaulted her

9 March 2004

Wife obtained Intervention Order with the assistance of the Police

Husband was subsequently charged with criminal offences

14 April 2004

Intervention Order varied by consent to remove the clause prohibiting the husband from living in the family home

May 2004

Parties reconciled

2 July 2004

Criminal charges against the husband listed at the Magistrates Court at Dandenong. Matter adjourned

November 2004

Parties separated

10 January 2005

Criminal charges against the husband listed again at the Dandenong Magistrates Court. Husband signed a Diversion Plan undertaking to:

·     Complete an anger management course by 15 March, 2005;

·     Attend the Salvation Army Positive Lifestyle Centre for appropriate counselling by 15 March 2005;

·     To be of good behaviour for the period of the plan; and

·     To attend Court on 15 March, 2005.

15 March 2005

Charges against the husband discharged on basis that he complied with the Diversion Plan

June 2005

Parties reconciled and moved into former matrimonial home at C

25 January 2006

Argument between the parties. The Wife alleges the husband drank heavily and raised his hand to hit her. The husband denies drinking to excess or raising his hand to her. The wife called the police, who attended. The wife took the child and stayed overnight with her parents

April/May 2006

Husband ceased work as a labourer. Wife alleges the husband gave up his employment as he did not like it. She alleges his drinking increased. The husband says the parties agreed he would cease work to care for the child as the wife had commenced studying and the parties could not afford child care. He denies drinking to excess

June – October 2006

Wife alleges the child’s behaviour changed dramatically, and she began exhibiting behaviours, and suffered bruises and injuries to her body and genitals

The husband denies all of the behaviours and injuries alleged by the wife.

10 October 2006

Parties separated on final basis. The wife left the former matrimonial home and moved into her parents’ home

Wife alleges the child became hysterical when the wife changed her nappy, held her genital area and said “Thatha did it, Thatha did it”. Wife became concerned that the husband had assaulted the child

Husband denies the child was distressed or unhappy and denies all allegations of assault or abuse by him to the child

12 October 2006

First notification made to DHS

19 December 2006

Wife instituted proceedings, including filing a Notice of Child Abuse or Risk of Child Abuse

16 January 2007

First return date. Registrar Russell made procedural orders for filing documents, and the further listing of the matter

29 January 2007

Husband filed his responding material

5 February 2007

Matter listed before Registrar Williams. Matter adjourned to the Magellan List, Independent Children’s Lawyer appointed and s91B Order made

20 February 2007

Second notification made to DHS

26 February 2007

Conciliation Conference. Final orders made by consent in relation to property

13 March 2007

Wife commenced counseling with Ms M of the Salvation Army

20 March 2007

DHS provided Magellan Report

30 March 2007

Matter listed before her Honour Justice Brown. Orders made for a Family Report, and the husband to spend supervised time with the child at a children’s contact centre as nominated by the ICL

19 July 2007

Family Report prepared by Ms S

August 2007

The child commenced counselling with Ms P

6 August, 2007

Trial Notice Directions made. Matter listed for a Pre-Trial Conference on 22 October, 2007. Orders made by consent for the husband to be psychiatrically assessed

September 2007

Gordon Care for Children advised they would not be able to offer a service to the family

29 September 2007

Psychiatric report regarding the husband prepared by Dr D

22 October 2007

Pre-Trial Conference. Matter listed for final hearing in the Magellan list commencing 12 November, 2007

15 November 2007

Matter listed before her Honour Justice Bennett. By consent, orders made inter alia for the child to spend time with her father supervised by professional supervisor Ms H, pending acceptance at Gordon Care. The first supervised visit to occur on 20 November, 2007 and then each alternate Saturday thereafter for two hours.

15 November 2007

Ms H conducted home visit with the wife and the child

20 November 2007

First supervised visit occurred in presence of Ms H and the maternal grandmother.

No other visit occurred

Mother moved out of maternal grandparents’ home into emergency accommodation

November/December 2007

The child allegedly made further disclosures to Ms P which were reported. SOCAU re-opened their investigation

27 December 2007

Husband interviewed by the police

January 2008

Wife moved back into home of the maternal grandparents

1 February 2008

Matter listed before her Honour Justice Brown. Orders made including:

·     Wife ordered to file an affidavit updating evidence in relation to specific matters;

·     Wife ordered to provide all documents and evidence given by her to the police to the other parties in these proceedings;

·     Wife to be psychiatrically assessed by Dr D;

Matter adjourned to 16 May, 2008

6 March 2008

Psychiatric assessment of the wife prepared by Dr D

16 May 2008

Matter listed before her Honour Justice Bennett. Orders made for the matter to be listed for a Pre-Trial Conference on 31 July, 2008, and for the section 79A application to be listed for a Conciliation Conference

31 July 2008

Registrar Moser conducted a Pre-Trial Conference. Matter listed for hearing in the Magellan List of cases commencing 25 August, 2008

1. At the commencement of this hearing, the wife withdrew her application pursuant to Section 79A so that only parenting issues remained for determination.

Evidence

1. The applicant wife relied upon the following evidence:

   a)Her affidavit sworn 1 December 2006;

   b)Her affidavit sworn 10 October 2007;

   c)Affidavit of the maternal grandmother sworn on 11 October 2007;

   d)Affidavit of  Ms M (counsellor) sworn 17 October 2007;

   e)Affidavit of Ms L (the child’s pre-school teacher) sworn 19 October 2007;

   f)Her affidavit sworn on 8 February 2008;

   g)Her affidavit sworn on 9 July 2008;

   h)Affidavit of Ms P (the child’s treating psychologist) sworn 12 August 2008. A proof of evidence was also tendered which gave further detail to statements by the child[2]. Additionally, the complete file Maintained by Ms P was produced at Court this morning and available for inspection by all parties. It was not tendered in evidence;

   i)Her financial statement sworn 13 August 2008.

   [2] Exhibit “WI”

1. In the opening by counsel for the wife, she foreshadowed an application to adduce viva voce evidence from her client about statements and observations which are said to be indicative of sexual abuse of the child by the husband which are not particularised in the wife’s four affidavits.  The matter has resolved prior to the wife being sworn or the application being made.  However, in the course of opening, Counsel for the wife undertook to prepare a statement, in table form, of the various statements and observations which the wife contends constitute evidence that the child spending time with the husband will expose her to an unacceptable risk of sexual, emotional or physical abuse.  Counsel for the wife tendered the document today and I have marked it Exhibit “W2”.  I direct that it remain on the court file as if it were a document filed in the proceedings. Additionally, I direct that it be scanned and a copy annexed to these reasons.

2. The respondent husband relied upon the following evidence:

   a)His affidavit sworn 29 January 2007;

   b)His affidavit sworn 15 October 2007;

   c)His affidavit sworn 14 May 2008;

   d)His financial statement sworn 21 July 2008.

3. At the commencement of the hearing, Counsel for the independent children’s lawyer indicated that the independent children’s lawyer would be responsible for securing the attendance at court of the following persons:-

   a)Ms S, family consultant, who prepared a family report  dated 19 July 2007;

   b)Dr D, psychiatrist, who swore affidavits annexing his assessments of the parties sworn 21 and 29 July 2008;

   c)Ms H, contact supervisor who swore an affidavit on 21 July 2008.

4. Additionally there were a number of exhibits.

5. The wife’s Notice of Risk of Child Abuse was filed on 17 December 2006 and appears as Folio 5 on the court file.

The proceedings

1. The proceedings were commenced by the wife on 19 December 2006. In that application the wife sought that the child live with her and that the husband spend no specific time with the child.  The husband’s response filed on 29 January 2007 seeks conferring equal shared parental responsibility, day time periods with the child for a month and then to spend time on an overnight fortnightly basis for a further month followed by a shared care arrangement equivalent to 5 out of 14 nights.

2. The wife alleges, and the husband denies, that whilst the family was intact, the wife was attending university during the day and the child was in the daily care of the husband that he sexually abused the child. The child was aged between two and a half years old and two years and 10 months old.  The wife alleges that:-

   1.In or about May or June, 2006 the child began to display disturbing and sexualised behaviour. The child was constantly angry and she was crying all the time and her sleep patterns were disturbed.

   2.On or about 10 October, 2006 the child made a disclosure which indicated that she had been sexually abused.

3. At paragraphs 30 to 35 of her affidavit sworn 1 December 2006[3], the wife particularised the then relevant evidence as follows:-

   31.In or about May or June, 2006 the husband stopped working.  The Husband had constantly complained about his employment and stated that he wanted a better job.  I always told him that if he wanted a better job that he needed to go out and find one however he was not motivated to do so.  Eventually he said he did not want to work anymore and quit his employment.  At this time his drinking worsened because he was able to drink all day and night.

   32.During this time the Husband would care for the child whilst I was studying at university.  Following the Husband taking over the care of the child, the child’s behaviour began to change and deteriorate.  The child was constantly angry and she was crying all the time and her sleeping patterns disturbed.  I also started to notice bruising on the child.  I also stated to notice other disturbing behaviour displayed by the child.  If I tried to change the child’s nappy she would not let me and she would scream and tell me to go away.  Also during the process she would protect her genital area and not want me to go anywhere near it.  I would also kiss the child and the child would respond by kissing me on the lips and sucking my lips.  I told the child that this wasn’t appropriate behaviour but she continued to do so.  Her behaviour also deteriorated towards other people and she would be screaming and crying and she would also hit people.  I was extremely disturbed by this behaviour.

   33.On or about 10 October, 2006 I came home from university and the child had been cared for by the Husband all day.  I went to change the child’s nappy and she became hysterical.  The child was holding her genital area and saying “daddy did it, daddy did it”.  I also noticed that her genital area was red and sore.  I became concerned because of the previous disturbing behaviour and I became concerned that the Husband may have assaulted the child in some way.  The Husband’s sister was raped and the Husband had claimed that his brother was the perpetrator.  I believed that the Husband was in fact the perpetrator because of his previous comments made to me and I became concerned that he may have hurt the child. 

   34.Following this I immediately left the house and went to SECASA and to the police.  The Police contacted the Department of Human Services and we went to Monash Medical Centre for the child to be forensically examined.  The child was hysterical during the forensic examination  and was not able to be examined in any way. 

   35.Following this SECASA made an appointment for a Paediatrician to see the child.  I have also made arrangements for the child to seek counselling.  Since we have left the former matrimonial home the child’s behaviour is changing. The child is calmer and she is displaying less sexualised behaviour.  However, every time I do change her nappy the child says “daddy did it, daddy did it”.  The child is still displaying some disturbing behaviour but it has lessened since we left the home.

   36.I am concerned that the husband has sexually assaulted the child and I believe that it is not appropriate that he spend any time with the child.  I am also concerned about the Husband’s drinking and so not believe that he is an appropriate carer for such a young child.

   [3] The wife described the relevant affidavit evidence as being pars 31 to 35 in the Form 4 Notice of Child Abuse or Risk of Child Abuse filed by the wife on 19 December 2006 as the affidavit evidence relating to the allegations.

4. Whilst there have been further alleged statements and behaviours by the child which the wife contends are indicative of her having been sexually and physically abused by the husband, they are extrapolations or permeations or manifestations of the same alleged abuse.

5. The wife also alleges domestic violence perpetrated by the husband against her.

6. The parents separated on 10 October 2006 when the child was about 34 months old.  She has only seen the husband once since the parents separated.  That was in late November 2007.

7. The proceedings were placed in the Magellan list on 5 February 2007. The Magellan list is a highly resourced list maintained by the court to hear cases involving allegations of sexual abuse and serious physical abuse of children.  Mr Timothy Mulvany, solicitor, was appointed as the independent children’s lawyer for the child within the meaning of Division 10 of Part VII of the Act.  As such, his role is to form an independent view, based on available evidence, of what is in the child’s best interests and then act in these proceedings in what he believes to be the best interests of the child.[4]  He is not a legal representative retained by the child and he is not bound by any instructions from the child.[5]  The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the child are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention.  The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[6] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[7]

   [4] s 68LA(2) Family Law Act 1975 (Cth).

   [5] s 68LA(4) Family Law Act 1975 (Cth).

   [6] s 68LA(5)(d) Family Law Act 1975 (Cth).

   [7] s 68LA(5)(e) Family Law Act 1975 (Cth).

8. On 20 March 2007 the Department of Human Services (“DHS”) provided a report to the Court[8] detailing its two investigations into the matter.  The first investigation was commenced following a notification received on 12 October 2006.  In part, the notified facts were that the mother thought that the child was being sexually abused by the husband because the wife “had told [the child] to wash herself and [the child] suddenly screamed put her hands in front of her genitals and then the back and then sat in water then stood up then put her hands at the front of genitals and cried “Parta did, parta did” (“parta” meaning father)”. On 13 October 2006, the wife and the child attended upon the Sexual Offences and Child Abuse Unit (“SOCAU”) of Victoria police but the child was assessed as “not verbal enough to do a disclosure with police.”

   [8] Exhibit “C1”

9. On 2 November 2007, DHS decided to close the case as the mother was considered to be acting protectively, was engaged in family law proceedings “and there was no(sic) information to warrant further investigation.”

10. DHS received a second notification on 20 February 2007 in which it was informed, inter alia, that whatever time or communication the father could have with the child was reserved until a hearing on 23 March 2007 and that the husband had “abused and neglected the child in a number of ways including sexual abuse”.  DHS reports that, included in the information provided by the mother, was the following:-

    On the 1st March the mother, Ms [Kawediya], was contacted and provided further information.  The mother stated that when the father drinks alcohol every day it can be seen that he had red eyes and would smell strongly of alcohol.  Sometimes the mother would not attend class as she was concerned that the father may drink alcohol, at that time the father would slur his words.  The father would usually drink  6-8 beers, half bottle of wine, Johnnie Walker or Scotch Whisky at times in the evening after [the child] was in bed and that the father would not drink during the day.  At times the  father would vomit from drinking to excess, this occurred on a few occasions when the mother was home caring for [the child], one time he was sick on the floor in the lounge.  There were occasions during this time that the mother requested assistance from extended family who were also witness to the father drinking to excess.  The father would be inconsiderate with lights and music on until early in the morning when drinking with a friend or other family member.  Normally when drinking alcohol or next morning when caring for [the child] the father would have red eyes, however he was not slurring his words, he was able to walk and able to drive, however the mother has a strong opinion about alcohol and is of the strong belief that no one should drink alcohol at all.  At the time that the mother became most concerned was when [the child] was saying Tha Tha (father) did it and pointed to her genitals.  [The child] said a short time later when in the bath, pointing her finger to her genital area, “Mum, tha tha cut it, Mum it’s better now”, ‘Tha Tha did it on the bed Mum, Tha Tha hit my leg Mum”; she has also said “Mum tha tha hit, small baby hit”’ also “That Tha naughty”  Mother is of the opinion that the father has sexually abused [the child] by penetrating her with his penis.  Family GP has been able to examine [the child] on a number of occasions and has not expressed concern about [the child’s] health or that she has been sexually abused.  [The child] is still wearing a nappy, the mother has tried to help her toilet train but [the child] is not willing to do this.  The mother totally and absolutely knows that [the child] has been sexually abused by her father, this is because of [the child’s] behaviour and comments to the mother.  For example when she would need to be dressed or have her nappy changed she would run away and tell everyone “I hate you”.  Also Paternal Aunt told the mother many years ago that the father sexually abused her and this is also a reason that the mother now knows that [the child] has been sexually abused.   Mother agreed to get the name and contact details for paternal aunt and provide them to Child Protection.  The mother is seeking ongoing support from VISY Centre for individual counselling, as well as [W] Family Support.  [The child] has started Pre-School and the mother has told the teacher [Ms L] about the father having sexually abused [the child] so that [Ms L] can support [the child].  The mother remains residing with maternal grandparents who are very supportive.  The mother cannot live with this and does not want him to have any contact.  The mother will only agree to the absolute minimum of limited/fully supervised access for [the child] with the father at least until [the child] is several years older and able to verbalise properly any concerns she may have.

11. The report of DHS concluded as follows-

    Child Protection are of the opinion that there is not sufficient information at this point in time to warrant further investigation into the allegation that [the child] has been sexually abused by the father.  This opinion is based on the source of the allegations along with follow ups conducted with police, GP, counsellor, and kindergarten teacher, all of whom had contact with [the child] and or her mother,  The mother gives a strong unwavering opinion that [the child] has been sexually abused, despite a lack of evidence to the contrary.  The father has vehemently denied the allegations to the Family Law Court and at this time there is insufficient information to strongly indicate otherwise. 

    Child Protection are of the opinion that there is not sufficient information at this time to suggest that [the child] is at significant risk of harm whilst in either parent’s care.  This opinion is based on the lack of evidence and information to the contrary.

12. On 30 March 2007 orders were made by Brown J which provided that the child spend time with the husband at a contact centre and that the husband only speak English when he was with the child. 

13. In July 2007 the parents attended an intake interview at W Contact Centre but the Centre declined to offer its services to the family because, I was informed, they regarded this case as one which involved complex sexual abuse allegations and that the child was reluctant to separate from the mother and spend time with the father.  As a result no time was spent by the child with the husband pursuant to the first order which provided for supervised time to be spent.. 

14. On 19 July 2007 a Family Report was completed by Ms S, family consultant,  recommending that the child continue to live with the wife and that the father “continue” to spend time with the child at a contact centre.  Prior to long term matters being determined the family consultant recommended that the husband undertake a mental health assessment, including for substance abuse, a psychosexual assessment and that a report be obtained from a contact centre.  The family consultant, Ms S, was unable to interview the child and the husband because, she reports, the child was too distressed.  It is reported that she did not engage with the child at all. 

15. A psychiatric assessment of the husband was undertaken by Dr D.  His report is dated 29 September 2007[9] and he offered the following conclusions:-

    [The husband] presented as mentally well during the period of interview with no objective signs of psychiatric illness.  He denied a past psychiatric history.  There were no reported historical factors predisposing [the husband] to mental illness.  [The husband] denied all allegations of sexual abuse with his daughter and that he had been required to significantly contribute to her general care.  He denied any observations of [the child’s] behaviour that alarmed him in any fashion.

    There is no objective evidence that [the husband] be required to attend for psychiatric management. 

    [The husband] denied any history of sexually oriented misconduct including paraphilia behaviour or paedophilia.

    I note there are significant discrepancies between allegations made by [the wife] and reports from [the husband].  I understand that there has been no substantiation of claims of sexual abuse by [the husband] to his daughter.

    Based on this assessment, and unless there is corroborative evidence to confirm that [the husband] has sexually abused his daughter, there are no specific psychiatric issues that should influence parenting arrangements with his daughter [the child].

    [9] Affidavit of Dr D sworn 16 November 2007

16. The husband did not undergo a psycho-sexual assessment.  On the afternoon of the second day that this matter was listed for final hearing, the husband did seek to be excused so that he could undergo liver function tests.

17. In November 2007 the matter came before me but was resolved on a consensual basis providing for the child to spend time with her father at a contact centre and, pending acceptance into a centre, for two hours each alternate Saturday supervised by one Mrs H and an adult selected by the mother and known to the child.  The matter was otherwise adjourned to the Magellan Directions list on 1^st February 2008. 

18. The supervisor, Ms H, conducted a visit to the wife’s home on 15 November 2008 to introduce herself to the wife and to the child.  There is a conflict between the evidence of the mother and the evidence of Ms H as to how the child received Ms H.  Without the evidence of the wife or Mrs H having been tested, I am cannot make any finding as to whose version is closest to the truth.

19. The first, and only, time that the child spent with the father was at McDonalds Family Restaurant on Tuesday 20 November 2007.  The maternal grandmother attended and observed.  Ms H reports[10] that the child enjoyed her time with the father.  There is a conflict between the evidence of Ms H and the mother as to how the child reacted following the visit. Without the evidence of the wife or Mrs H having been tested, again I am unable to find whose version is closest to the truth.

    [10] Affidavit of Ms H sworn 21 July 2008

20. The next period of time to be spent between the father and the child did not eventuate because the mother and child did not attend.  The supervisor was subsequently advised by the mother that there would be no further periods of time spent between the father and the child.  There has been no further time.

21. At about this time, the wife and the child moved out of the maternal grandparents’ home and could not be reached.  She and the child were accommodated in emergency housing.

22. In November and December 2007 the child had allegedly made further disclosures to the child’s therapeutic psychologist, Ms P, which had been reported to Victoria Police.  This complaint resulted in SOCAU reopening the investigation.

23. On 10 December 2007 the mother and the child attended upon the police.  It is recorded[11] that

    “victim attended office with mother and disclosed that her father had cut her vagina with his penis.  Difficult to engage and unable to VATE.  Mother has video recording of subject when she was 3 making disclosure of abuse.”

    [11]  Exhibit “ICL1” page 45.

24. Victoria Police arranged for the child to be examined by Professor W on 12 December 2007.  The Professor reports the examination as follows[12]:-

    [12] Exhibit “ICL1” pages 1 to 3.

    EXAMINATION

    The subject presented as a chatty young girl whose physical and intellectual development appeared consistent with her age.  Her weight was 24 kg and height 109.4 cm.

    The general physical examination was unremarkable.

    There was limited cooperation with the genitor-anal examination and for this reason no colposcopy was performed.  Puberty was at Stage 1.

    The genitalia were examined with the subject in the dorsal position.  There were no signs of recent or past trauma to the external genitalia.  The hymen was a crescentric structure with a wide posterior rim and a thin regular free margin.  There was no clinical evidence of a sexually transmitted infection.

    The anus was examined in the lateral position. No abnormalities were detected to this structure.

    SUMMARY

    There are concerns that the subject may have been physically or sexually assaulted in the recent past.  The examination did not reveal any objective abnormalities that might reflect recent or past trauma.  It should be noted that there are a range of sexually assaultive behaviours that are not associated with injury production.  Further, minor injuries to the genital region will heal rapidly without any residual signs of trauma.

    Arrangements have been made of the subject and her mother to access counselling. (The subject is currently seeing a counsellor and a psychologist – an arrangement made by their local doctor).

1. The wife gave a statement to Victoria Police on 12 December 2007[13].  The child’s then teacher at Pre-School, Ms L, gave a statement to the police on 12 December 2007[14].  Ms P gave a statement to Victoria Police on 18 December 2007 which appears in the bundle of police records[15]. 

   [13] Exhibit “ICL1” pages 5 to 13

   [14] Exhibit “ICL1” pages 14 and 15

   [15] Exhibit “ICL1” pages 17 to 19.

2. On 27 December 2007 the husband was interviewed by the police.  There is an affidavit by Senior Constable N deposing to a recorded interview with the husband, as to allegations of incest by him of the child, which is of 45 minutes duration[16].  The husband was interviewed voluntarily.

   [16] Exhibit “ICL1” pages 21 to 22..

3. On 1 February 2008 the matter came before Brown J in the Magellan Duty List and it was ordered that the mother file an affidavit updating her evidence as to the meeting with, and facilitation of, time spent with the husband with Ms H from her explanation for changing her and the child’s residence, the circumstances of her knowledge leading to the then police investigation, that  the wife provide copies of all documents she had provided to the police and that she undergo psychiatric assessment with Doctor D.

4. On 8 February 2008 the wife swore an affidavit in which she explained her change of residence in the following terms:-

   6.That following the Consent Orders on the 15^th November 2007, my parents and I had a falling out about the family law proceedings.  As a result of tension, I decided to relocate to rental accommodation which was arranged by Women’s Liberation Halfway House Collective Inc.  This is government funded housing.  I was placed on an interim basis in [the eastern suburbs].  I lived in [the eastern suburbs] from late November 2007 until early January 2008.  I moved back in with my parents in January 2008.  My relationship with my mother has since improved and we have a greater degree of understanding with respect to the issues we need to deal with at the present time.

   7.That unfortunately my mother had had a difficult time coping with the idea of [the child] seeing her father.  Culturally it is very difficult for my mother to separate her anxieties and fears about [the child] seeing her father from the reality that [the child] may be required to see her father on a continuing basis.  This caused a great deal of tension between my mother and I which led to me moving out of her home for a short period of time as referred to herein.[17]

   [17] Affidavit of the wife sworn 8 February 2008, paragraphs  6 and 7.

5. On 6 March 2008 Doctor D prepared a report in relation to his assessment of the wife.  His conclusions contained the following opinion:-

   [The wife] genuinely and sincerely reported that she was convinced that [the child] had been sexually abused by [the husband].  She based her conclusion on the collaboration of a number of behaviour and physical changes noted in [the child] whilst she was primarily in the care of [the husband].  It would appear that her vague suspicions ‘crystallised’ when [the child] repeatedly remarked ‘ta ta did it’.  [The child] appears to have been nearly three years old at the time.  Of potential significance is that [the wife] had not seemingly considered other possible explanations for [the child’s] behaviour including emotional changes such as temper outburst.  Some of these behaviours may be considered in the normal range for an infant.  Further, [the child] may have been reacting to the relative absence of her mother who had returned to full time studies.  [The child] allegedly presented with a range of bruises, genital changes, urine infections that were examined by her GP.  I gather there have not been any suspicions of abuse by the examining medical officer.

   [The child] was not able to be forensically examined.  Reports from the treating psychologist for [the child] have not been made available. 

   [The wife] expressed her concerns without qualities that would normally raise suspicions that she was deliberately concocting the allegations.  She became acutely distressed and communicated this distress appropriately.  There were no signs that these beliefs were part of a delusional process or psychotic illness.

   [The wife’s] family appear to have supported her concerns although there is evidence of recent tension between her and her parents given her transient separation in late 2007.  Her parents incessantly reminded her that she left [the child] in the care of an untrustworthy father.  There may be historical family resentment towards [the husband] compounding their lack of emotional support for [the wife].

   [The wife] had been completely trusting of [the husband] at the time she handed primary care responsibility to him when she returned to studies.  Her trust was absolute in spite of her concerns that he consumed alcohol excessively and had developed a limited bond with [the child].  Currently she is hoping that [the child] can form a meaningful and appropriate relationship with [the husband] as she recognises the importance of a paternal bond.  She reported that [the husband] is currently under police investigation for the allegations. 

   Without substantiation of the allegations it is difficult to clarify the obvious discrepancy between [the husband’s] and [the wife’s] reports.  Further there are marked differences in the account of the marriage provided by [the wife] and that in the Affidavits of [the husband].

   [The wife] does not present with features of a psychiatric illness that should interfere with her parenting capacity.  Whilst she maintains her conviction that [the child] has been abused, and if these allegations are not substantiated, there is a potential risk of [the child] being contaminated with her anxieties.  Evidence from [the child’s] therapist may prove to be helpful in guiding further parenting arrangements.[18]

   [18] Affidavit of Dr D  sworn 29 July 2008.

6. On 8 February 2008 the wife swore an affidavit in which she described the child’s behaviour following her return from spending time with the father at Mcdonalds.  She deposed that:-

   5.That when [the child] returned from time with her father on the 20^th November 2007 she was quite confused.  [The child] often confuses “thatha” and “daddy”.  [The child] often talks about thatha being a bad person and daddy being a good person.  I verily believe that when [the child] saw her father for the first time on the 20^th November 2007, she was confused about her feelings.  [The child] was extremely clingy to me following the visit with her father.  Sometimes [the child] cries for no apparent reason.

7. The wife deposed to the circumstances of the second police investigation in the following terms[19]:-

   8.That to my knowledge, the present Police investigation in relation to [the child] and her father came about as a result of disclosures that [the child] made to her counsellor, [Ms P].  [Ms P] told me that [the child] made several disclosures to her as follows:

   (a)      Thatha cut my chu dala (which means genitals);

   (b)Thatha bite here (pointing to her lip and to her genitals); and

   (c)[The child] referring to her father hitting her on the head and on the bottom.

   9.That I have been advised by the Police investigating the matter, not to advise the father of any further evidence provided to the Police at this stage.

   [19] Wife’s affidavit sworn 8 February 2008, paragraph 8

8. When the matter commenced before me there was no evidence from Victoria Police and no indication that they would be called. I granted leave to the Independent Children’s Lawyer to serve a subpoena on an abridged times basis. On the second day of the hearing Senior Constable N of the Criminal Investigation unit at W attended and gave evidence.  She confirmed that since December 2008 she and one Senior Constable R have had conduct of the matter and that a brief is being prepared in relation to possible criminal charges being laid against the husband.  The charges have not been formulated but range from indecent assault to recklessly causing injury. The Senior Constable informed me she had not requested that the mother refrain from advising the father of any further evidence provided to the police or documents which could be produced by Victoria Police were produced by Senior Constable N.  I also granted leave to the Independent Children’s Layer to issue a subpoena to GordonCare to produce records.

9. From the documents produced by SC N certain items were extracted and put into a bundle of documents which were photocopied and tendered.[20]  Those documents were tendered by consent and contained statements, including a statement of the wife, a report dated 12 December 2007 by Victorian Institute of Forensic Medicine and several LEAP entries. 

   [20] Exhibit “ICL 1”

10. Counsel for the wife informed me that the wife’s evidence would be that she had been advised by Senior Constable O, not SC N, to refrain from advising the husband of the further evidence. I note from documents tendered in evidence that there is an email communication from SC O to the Criminal Investigation Unit at C dated 19 December 2007 which, inter alia, states “[…] the offender’s solicitor wants to know what’s going on as he knows there is a police investigation because we advised the subject’s solicitor that supervised access visits may not be good for [the child’s] welfare.[21]”  There is also the following narrative entered on 12 December 2008 (prior to the matter being transferred):-

    “Mother’s solicitor requested we contact the child solicitor and discuss our concerns re the supervised access with him.  Spoke to him and he stated that it was FLC ordered supervised access and therefore would need to go ahead.  He was of the belief that mum was behind the allegations and had bought it up to Police due to impending FLC hearing.

    […]Spoke to [Ms B] DHS re the possibility of having any sort of influence with regard to the impending supervised access.  She will consult and get back to me.

    […]Spoke to [Ms B] who said she had consulted with [Ms F].  Basically DHS cannot advise anyone to breach the Family Law Court Order.  They can not tell them the following either, but believe police could.  Mum could not allow access because she was wanting to protect her daughter’s emotional wellbeing and they believe the court would just give them a slap over the wrist because she was acting protectively.

    […]Rang and spoke to Mum’s solicitor re her ability to stop the access.  She said it basically couldn’t be stopped because of the time frame.  There isn’t enough time to get the matter before the court before the 15^th.  If she did want to take the matter back to court urgently she stated she would need something in writing from the Police (Fax […]) to support this or support her advice to mum to breach the FLC Order.  There are also issues with mum being a legal aid client and funding would have to be applied for.  […] did say that the information she received regarding the first supervised access was positive.  The access is being supervised by an ex-DHS worker who is a counsellor.

    [21]  Exhibit “ICL 1”page 44.

11. At the commencement of this trial, the wife’s position was that she should have sole parental responsibility for the child who should live with her and have no time, or relationship, with the husband. Initially, she sought those orders regardless of whether I found that the child spending time with the husband in the future would expose the child to an unacceptable risk of sexual abuse. However, by the end of the second day of the matter being listed for final hearing, counsel for the wife informed me that the wife was prepared to countenance supervised time in the event that there was found not to be an unacceptable risk but there was no timeframe within which the supervision would/could be lifted.

12. Counsel for the husband confirmed that the husband was seeking orders in the terms of his amended response to an application for final orders filed 14 May 2008.

13. Counsel for the independent children’s lawyer said that Mr Mulvany was unable to provide a preliminary view without having heard the evidence. I agree that this is one of the rare cases where the evidence did require to be tested before being able to reach even a preliminary view.

14. It is noteworthy that as at the commencement of this matter for trial:-

    ·There has been no observation by a family consultant or psychologist of the child with the husband. The only independent person to have observed the child in the company of the husband is Ms H in November 2007 and her evidence is not accepted by the wife;

    ·Counsel for the wife indicated that she would cross examine Dr D (psychiatrist) and the family consultant and hoped to get from each of them expert opinion about the adverse impact on the mother’s parenting capacity of  and outcome requiring the child to spend time with the husband. Otherwise, there is no expert or even lay evidence in relation to maternal anxiety vis a vis the wife’s capacity to parent.

Relevant law – parenting issues

1. These proceedings are brought under Part VII of the Act.  Pursuant to s 60CA, in deciding to make any parenting order in relation to the child, I must regard her best interests as the paramount consideration.

2. Subject to the best interests of the child being the paramount consideration,

   
   

   s 60B sets out the aims and principles of Part VII.  The section provides the context within which the relevant best interests factors listed in s 60CC are to be examined and ultimately weighed.  The importance of s 60B factors varies from case to case.  Where there are no countervailing factors or considerations, the s 60B objects and underlying principles may be decisive.

3. Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the children are met’ by:-

   (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. The objects may be regarded as the core values of the legislation.  Sub-section 60B(1)(a) of the Act has particular relevance in these proceedings.  It emphasises that the involvement of both parents in the child’s life should be meaningful as to its quality and to the maximum regularity and frequency permitted by the child’s best interests.

5. The principles which underlie the objects are more specific but not exhaustive.  They are that, except when it is or would be contrary to the 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 to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)  parents jointly 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; and

   (e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

6. In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. 

7. In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in

   
   

   s 60CC of the Act.

8. The primary considerations echo the first two objects set out in s 60B of the Act.  The primary considerations are set out in s 60CC(2) and are described as follows:-

   (a)  the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

9. This is a case where both of the primary considerations are relevant and, quite possibly, in competition. However, the parties have reached an agreement between themselves. I respect the fact that they have done so. I am prepared to make orders in the terms sought which, I note, are supported by the independent children’s lawyer.

10. I am satisfied that the orders represent a result which is consistent with the child’s best interests at this stage.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  28 August 2008