Kelso and Finch and Anor (No 2)
[2013] FamCA 875
FAMILY COURT OF AUSTRALIA
| KELSO & FINCH AND ANOR (NO. 2) | [2013] FamCA 875 |
| FAMILY LAW – CHILDREN – With whom a child shall live – with whom a child shall spend time – serious allegations of sexual abuse subsequently found to be without foundation but mother commences the hearing claiming there is no longer any unacceptable risk – mother’s evidence not accepted on the issue of change of heart – need to remove children from parent where Court not satisfied that relationship with other parent will be supported – father shown as competent and capable. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| M v M (1988) FLC 91-979 |
| APPLICANT: | Mr Kelso |
| RESPONDENT: | Ms Finch |
| INTERVENOR: | Mrs Kelso |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 7317 | of | 2011 |
| DATE DELIVERED: | 6 November 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 8, 9, 10 & 11 October 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Skerlj |
| SOLICITOR FOR THE APPLICANT: | M K Steele & Giamarrio |
| COUNSEL FOR THE RESPONDENT: | Ms Buchanan |
| SOLICITOR FOR THE RESPONDENT: | Trapski Family Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Dowler |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
That all existing parenting orders are forthwith discharged.
That the children M Kelso born … 2008 and N Kelso born … 2010 live with the father at all times other than those provided for in these orders when they shall be with the mother.
That the father have sole responsibility for making major long-term decisions about the children.
That unless the parties otherwise agree, the mother make the children available for collection by the father immediately after the pronouncement of these orders.
That the children live with the mother as follows:
(a) From the conclusion of the school day, crèche period or kindergarten session on Thursday until the commencement of the school day, crèche period or kindergarten session on the following Monday commencing on Thursday 14 November 2013 and for a similar period in each alternate week thereafter;
(b) From the conclusion of the school day, crèche period or kindergarten session on Thursday until the commencement of the school day, crèche period or kindergarten session on the Friday morning commencing on Thursday 21 November 2013;
Unless the parties agree in writing otherwise, the provisions of paragraph 5 shall continue during all school holidays, kindergarten holidays, crèche closures, Christmas periods and special days such as birthdays and Mothers’ Day and Fathers’ Day.
That the father be restrained from altering the school, crèche or kindergarten of the children until the commencement of the 2014 year.
That if the handover of the children does not occur under these orders at the school, creche or kindergarten, the mother shall be responsible for collecting the children from outside the father’s residence at the commencement of the relevant period of time and the father shall be responsible for collecting the children from outside the mother’s residence at the conclusion of the relevant period of time.
That each party keep the other advised of their relevant address and telephone number and immediately advise the other of any change.
10.That all applications are otherwise dismissed.
11.That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kelso & Finch has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 7317 of 2011
| Mr Kelso |
Applicant
And
| Ms Finch |
Respondent
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The discrete dispute in this parenting case is where the two children M, aged five, and N, aged three, should live. Should they be removed from their mother Ms Finch to live with Mr Kelso, their father?
The basis behind the application is that the mother made serious allegations of sexual impropriety against the father and whilst saying that she believes her children’s statements, she now maintains there is no unacceptable risk of the children spending unsupervised time in their father’s care. She goes further and maintains that she will never make allegations again. There are serious concerns in this case expressed by professionals about the emotional damage that the mother has done to the children as well as unresolved questions about her own psychological health.
This case revolves around what is in the best interests of the children if they are to have a secure and meaningful relationship with both parents. Having regard to the evidence below, I find it is in the best interests of the children that they live predominantly with their father but they still need a significant relationship with their mother. It is in their best interests for the purposes of their emotional wellbeing that they have less time with their mother than with their father. I find they will be much more secure, stable and well-adjusted in their father’s care and to the extent that the mother causes problems for them during the time she has their care, the father will be able to manage those problems when he is caring for them.
Background to the proceedings
The de facto relationship of four years between the mother and the father ended in July 2011. For a significant period since then, the father’s time with the two children has been severely restricted and indeed at times, excluded, as a result of the allegations made by the mother about his conduct.
The allegations of the mother were made right up until shortly prior to the final hearing which began at the end of July 2013. The evidence shows that only days before the hearing began, the mother produced an outline of case document indicating a complete about-face in respect of the time she thought the father should spend.
As the first day of the hearing began, counsel for the mother announced that her client was not only not proceeding with any such allegations of impropriety but acknowledged that the children were not at risk in the father’s care. That concession precipitated an immediate discharge of the restricted supervision orders that had otherwise precluded the father from having the children overnight. One question is why this change occurred on the mother’s part at all and if so, why so late?
The mother’s explanation was that after reading the report of the professional supervisor provided to her around the middle of July, she felt comforted that there was someone who saw the father acting appropriately and at last as she saw it, she had feedback about how the children had been going. I reject her explanation.
The explanation has a hollow ring about it as a result of the mother’s statement and actions since December 2012. Along the pathway to trial, the following things occurred:
·In March 2013, the paid supervisor was told by the mother that the father’s family was strange and that people were coming forward and talking about sexual abuse and incest involving the father;
·In March 2013 also, a clinical and forensic psychologist assessed the father and thought there was no identifiable evidence of sexual risk factors;
·In June 2013, a forensic psychiatrist expressed significant reservation about the mother’s presentation and her account indicating she remained a risk to the children;
·In July 2013, a forensic psychologist considered the risk that the children had been sexually abused by the father to be negligible but that if they remained with the mother, it would seem likely that their relationship with their father would be interrupted in the future and that the mother would be likely to continue making allegations against him.
It was the mother’s position that after seeing the family report writer in May 2013, she began receiving counselling with a counsellor and after speaking to that counsellor, she had someone to “lean on”. Despite that and having visited the counsellor six times, the first time any concession was made by the mother about the absence of risk concerning the children was at the court hearing.
In August 2013, the proceedings which had begun had to be adjourned. The mother began seeing a psychiatrist Dr W as well as continuing her personal counselling with a psychologist, a Dr A. It was striking that no evidence was called from any of these people. The mother’s explanation for that was that she understood an “order had been made under s 69ZT” of the Family Law Act 1975 (Cth) (“the Act”) precluding her from filing any further evidence. That statement had little merit. She was legally represented even if that representation became involved very close to the commencement of the trial. Indeed as I shall mention later, after the trial began, the father’s counsel sought leave to file an affidavit and leave was given. Inferences are not always drawn from the absence of evidence but in this case, the mother told the Court that each of these professionals differed with the other forensic experts who had provided significant evidence of concern about her. The mother was dismissive of any suggestion that she had a problem. The absence of her calling any evidence was very telling.
The parties as witnesses
The father
The father’s demeanour in the witness box was calm but blunt as he had been with the forensic psychologist. That it not a criticism; it is part of his nature. As the forensic psychologist described, the father preferred to be outdoors. His cultural background is Eastern European. Nothing I heard from him suggested he was untruthful. There is significance in that because in addition to the parenting proceedings, there were also property disputes which were resolved on the first day of the trial. In those proceedings, significant allegations of dishonesty had been made against the father. The mother did not proceed with them and at no stage, was his credit seriously challenged. Everything that was asked of the father appears to have been undertaken. He presented himself for a psycho-sexual evaluation and I shall refer to the results below but they indicated no concern. Serious allegations were made by the mother about the father’s alcohol consumption but apart from oblique references in psychological reports and her reference to their child seeing beer in the father’s refrigerator and reference to alcohol expenditure on his bank statements, the father was never challenged seriously about his current state of sobriety. In relation to his view of the mother, he indicated a sad air of resignation that nothing would change. Albeit that his evidence was not the major focus of the proceedings, nothing I heard indicated that he was not credible. In the case of the children, I found him to be an appropriate father.
The mother
The mother was at best loquacious. She rarely answered a question directly or simply. Various statements recorded by other professionals were put to her and she either had no recollection of making those statements or denied that they were said. Most of those answers had a ring of unreality about them having regard to the context in which the discussions had taken place. These were interviews at a time when the mother had a very strong belief that her children had been sexually abused by the father. She persisted in saying that she had an open mind through the investigation. That was an unrealistic statement.
I have already mentioned her failure to call her current medical treaters but she also dismissed, as not relevant, the calling of family members one of whom, her sister, made serious allegations against the father that may have had some impact on these proceedings and the other was her step-mother whom she said, heard the allegations of one of the children. Her explanations as to why these witnesses were not called were varied. It was unfortunate that these were not called because otherwise, no allegation against the father was heard to be made by any other person.
The mother said that the Department of Human Services apologised to her early in 2013 for having accused her of emotionally abusing the children. That correspondence was ultimately in evidence and it hardly supported her statement. The mother’s evidence was therefore perplexing because she endeavoured to simply dismiss all of the things that had happened as no longer relevant. She wanted the Court to accept that she had no concerns about the father and that there would be no problems in the future if the children remained in her care. The principal forensic psychologist was very cynical about that approach. I have grave doubts about the evidence of the mother and wherever the evidence of an event was conflictual, I prefer the version of the father.
The standard of proof
The standard of proof is the balance of probabilities (Evidence Act 1995 (Cth) s 140). The Court was not asked to find that there was an unacceptable risk for the children of harm in the father’s care but it was asked to make such a finding in respect of the mother should she retain them. Accordingly, wherever I have had to make a determination about what weight should be given to the evidence to support or reject a significant finding of risk, I have applied the provisions of s 140(2) of the Evidence Act.
The proceedings
The father began the proceedings in August 2011 in the Federal Magistrates Court. He there sought equal shared parental responsibility of the children and that he have contact with them on alternate weekends. The mother filed a response in that court on 29 August 2011 and the only dispute at that time related to the father’s contact with the children. She sought an order that the Court determine the father’s time after the preparation of a family report. At that time, the youngest child N was 18 months old. Why the mother did not have a clear picture and had to rely upon a family report writer, remained a mystery.
The positions set out above were entirely different when the proceedings began in this Court.
The father’s position
The father sought orders that he have sole parental responsibility for the children, that they live with him and that the mother’s time be severely restricted and supervised pending a psychiatric examination.
The mother’s position
As earlier indicated, in her outline of case document filed on 26 July 2013, the mother sought orders for equal shared parental responsibility, that the children live with her and that she undertake various mental health assessments and treatments as directed by the Independent Children’s Lawyer. She otherwise sought orders that the father have the children from Friday through to Monday in each alternate week and for half of the holidays.
The Independent Children’s Lawyer’s position
The Independent Children’s Lawyer indicated that she had a preliminary view which would see the children remain with the mother as their primary carer but on the basis that the mother did the things that she said she would and that she indicate that there was no risk for the children in the father’s care.
The position at the end of the trial
The position set out above moved markedly. The father proposed orders that the children live with him and that the mother’s time be effectively four nights out of fourteen.
The mother’s position did not alter. In final address, counsel for the mother simply indicated that she was instructed to propose the orders that the mother sought and nothing further.
The Independent Children’s Lawyer did change substantially. She supported the father’s position.
The relationship
The father is a 41 year old self-employed tradesman and the mother is a 38 year old woman who has experience in sales but is otherwise engaged in the care of the children at home.
The parties began their relationship in March 2007 when the father moved into the mother’s house. The father worked as a tradesman and the mother worked as a trainer until the birth of M. The mother worked in the father’s business restructuring his simple bookkeeping system but otherwise cared for the children who also spent time in day care.
By 2011, the mother said the relationship was intolerable because of the father’s drinking and abusive behaviour. For his part, the father said that in July 2011, the mother assaulted him and took the children away. He acknowledged that an interim ex parte intervention order was made which excluded him from the home.
In August 2011, the mother took out the intervention order after an argument over what seemed to be the use of a portable vacuum cleaner. The parties apparently wrestled in the presence of at least the child M. Police were called but did not attend for some time. Each party had a different view of what happened and because of the more significant events thereafter, it is not necessary that I make findings about the incident itself. It is sufficient to say that on 22 November 2011, a final intervention order was made without admission as to its basis against the father for a period of six months. That was subsequently extended for a period of two years.
When the relationship broke down, the father moved to live with his mother. During that time, the father’s time with the children was limited to what the mother would agree upon. Initially it was daytime only but then again, N was not quite two years old. At first there appeared to be a reasonable working arrangement between the parties including such things as the mother providing the father with the use of her motor vehicle to transport the children but that soon stopped. That led to litigation.
It was part of the father’s evidence, although not tested, and indeed, not relevant, that the mother was involved in some sort of a cult but neither party took the matter any further. It was raised in the psychiatric evaluation but I remain unsure if it was a serious issue or had some foundation in the mother’s religious beliefs. I have not taken it into account as relevant at all
The mother’s evidence relevant to the issues in dispute
In her evidence, the mother said that she discussed going to unsupervised contact with the counsellor she and the father were separately seeing at Catholic Care but that she resisted making a decision until she received a report from the supervisor Ms G. Some corroboration of that evidence would have assisted the mother, particularly as the father had been attending the same counsellor. I find it unlikely that such a discussion occurred. I do so because as the other evidence shows, in May 2013, the mother was very critical of the supervisor for allowing the father to change N’s nappy. Additionally, the first the father learnt of the change of heart was when the mother’s trial proposal was received. None of those actions indicate any lack of concern about the father’s conduct.
The mother acknowledged developmental problems were evident with the child N. I found it perplexing that these did not seem to have been raised with the father. It was in much later evidence that more precise details came out but little had been implemented. Whilst the mother had her hands full with court proceedings, forensic appointments and caring for the children, her lack of inclusion of the father in relation to developmental activities and in particular, getting N to a paediatrician gave me little comfort about her view that the parties could have equal shared parental responsibility.
The mother was at best evasive about her household. Her stepmother is apparently a member of the household but it was the mother’s view that her stepmother did not believe that the children had been molested by the father. This person had been said to have heard a statement by the child M yet no evidence was called about that.
In relation to the affidavit of her sister mentioned in these reasons, she was evasive when asked about it and said that her sister had wanted to talk to her about the father but she directed the sister to speak to her solicitor. That apparently culminated in an affidavit by the mother’s sister being drawn and filed. The inference I have drawn is that the relationship with her sister is not sound. It was noticeable and a subject of cross-examination that no other people than a friend attended the court with the mother.
One issue that Dr E raised was the mother’s inability to maintain her negative emotions and boundaries. In responding to that criticism, the mother agreed that in March 2013, she probably could not. I am not convinced on any of the evidence that she can now.
As the mother’s cross-examination proceeded, she told the Court that there were occasions such as where she stopped M putting his penis in N’s mouth and he had been urinating in his drawers. When asked why this sort of behaviour was not raised as normal childhood behaviour with someone such as Dr B, the mother said that she did not think it was anything to do with the father. When asked why she did not put all this to Dr B, the mother said that M was still in nappies and she thought these problems all had to do with his ideas of toileting. The sequence of events around December 2012 and in particular, her preciseness of language leaves me with the impression that her evidence was untrue on that issue. I have little doubt that these statements, if made at all by the children, were seen by the mother as direct criticisms of the father.
When cross-examined about the Department of Human Services s 69ZW report and the specific statements she was said to have made, the mother observed:
·She did not use the word “nipples” in the expression that M had been “fondling” her “nipples” but rather used the word “breasts”;
·As to the police telling her a forensic examination would not occur, she said the police officer said he could not organise counselling but rather, just a forensic report. She said that notwithstanding what the police officer told the Department, she had spoken to him on the telephone and he had changed his mind;
·She had told the police that she just wanted a doctor to observe the cream on M rather than having him examined for evidence of sexual abuse;
·She had not used the words on 8 January 2013 as described by the Department in their interview with her;
·She had not cried on the telephone when speaking to the Department with the children in the background and she would not have spoken the way the Department officer set out the detail;
·She was unsure whether she had said to the report’s author that the child touching her was to “stimulate” her. She said that it was not her language but no other plausible explanation was given. When challenged, the mother said she would have to go back to her diary and check. This statement could not have anything to do with innocent childhood behaviour. It must have been a statement to the effect that the child had witnessed some sort of adult behaviour and was repeating it;
·She could not remember saying that the father had tools that he used in a sexual way on M.
There were other statements about which the mother was either vague or simply denied they were attributable to her. There were too many statements reported by the Department investigator, some of which were in quotation marks, for me to conclude that the author just got it wrong.
When tested about her own statements to the contact supervisor about the father’s family and incest, she deflected the responsibility to her sister.
When giving her evidence, she gave the impression of deflecting difficult questions by saying that the whole problem could have been resolved by counselling. She then added that she thought that the role of the Department of Human Services was to organise that counselling. None of this makes any sense because she was convinced that the children were telling her the truth and her change of heart did not occur until she read the supervisor’s report. This sort of evidence is consistent again with what concerned Dr B about the mother’s thought patterns and conclusions.
After the break in the proceedings, the mother attended upon her psychiatrist Dr W and she told the Court that the doctor disagreed with the assessment of Dr E even to the extent of saying that a psychiatrist could not diagnose what he did in the time allotted. Of course, Dr E was looking at traits rather than an overall diagnosis.
Thus, the mother’s evidence was very unsatisfactory leaving me with a clear inference that there was much that she did not wish the Court to know about.
The father’s evidence relevant to the issues in dispute
The father relied upon two affidavits but much of that concerned property matters. He denied any wrongdoing with his children.
Insofar as the children were to live with him, he told the Court that because he was self-employed, he was flexible with his working arrangements and he had his family’s support. He worked from 6.30 or 7.00 am to 3.30 pm when he chose to but he was insistent that his priority was the children and he would work around that.
He did not accept that any change in the mother had occurred. He well knew that she had read all of the various reports and rejected the mother’s indication of agreeing to unsupervised time as an acknowledgment of change. Counsel asked him why and his response was:
It’s like a game. She knows I’ve never done anything to the kids. I don’t believe her and I don’t trust her.
When asked whether he saw anything positive in what the mother was doing, he acknowledged there was. His response to giving the mother “a chance” was a blunt “no”.
He acknowledged the attachment of the children to their mother but pointed to the fact that the children had shown resistance to returning to their mother. Whilst that might be dismissed as the children ending a fun time, there is evidence of the experts to show that the children were very much attached to the father and surprisingly so after what they had been through. At the same time, he gave some credit to the mother for the work she had done with the children on a day to day basis save that he had not been there to see what was happening. He said the mother was responsive to the needs of the children.
When asked about an assertion he made that the mother coached the children to say the things they had, he said that nothing they had said to him indicated that but he also added that when the allegations arose, he noticed M reluctant if not scared to talk about anything. He thought that they needed to be supervised.
He had not talked to the mother for over two years so anything she said to him over two days of a court case did little to reassure him about her intentions.
Counsel for the mother asked the father whether he thought it was threatening to the mother to write that the children were at risk in her care. He denied that. I would not criticise the father for the approach he adopted. He acknowledged being frustrated but as the evidence showed, he had done everything required of him to establish his own credibility and genuineness as a parent. Rather than viewing his evidence as a threatening statement, I viewed it as exasperation with the mother’s conduct to the point that rather than simply walk away from his children, he had little choice but to pursue the course he did.
He told the Court about his own counselling and the fact that they had no desire to see him further. Indeed, it was the same counsellor that the mother had seen and the father acknowledged her as very good.
When challenged about the impact on the children of a change of residence, he showed insight by acknowledging that they would want to see their mother and he would accommodate that. He did not see a problem with changing schools because that had happened often before. He did not see it as a major upheaval but rather a short term one.
In terms of his ability to care for the children, nothing the mother said indicated she had a concern but her counsel questioned the father about it. He described “plenty” of room for the children at a three bedroom unit that he occupied. He said he intended to remain there.
Nothing I heard indicated that the father could not fulfil all of the physical requirements for the care of the children. The expert evidence suggests there is a good relationship with the children. The supervisor of the contact reported a very comfortable relationship as well.
The Federal Magistrates Court orders August 2011
The proceedings began in the Federal Magistrates Court on 30 August 2011. On that day, orders were made for the father to spend time with the children on alternate weekends during daylight hours from 10.00am to 5.00pm on Saturdays and Sundays but also on Wednesdays from 5.30pm to 7.30pm.
The mother observed that she agreed to the orders made by the Federal Magistrates Court. Thus, it must be concluded that as at August 2011, despite the concerns about the father’s drinking and violence, the mother was content for him to care for the two children. This first court order brought in Dr B whose first report was published in November 2011.
The first Dr B report
Dr B is a clinical psychologist. In this case, she prepared three reports for the parties and the Court and on 9 October 2013, gave evidence by telephone where she was cross-examined by all counsel.
In her first report, Dr B observed that there was conflict in both backgrounds. In the father’s case, his first marriage had ended in divorce over drinking and as he saw it, being told what to do. In the mother’s case, there were various conflicts and long estrangements with her own family members. The description by the mother of her family members was not complimentary.
The mother had attended counselling for what she described as the problems arising from her experiences with her own parents’ separation. She expressed concern about the father’s drinking of alcohol.
For his part, the father described stress from money issues.
Dr B opined that the mother was a person whom she described as drawing very tenuous inferences to reach various conclusions. That was a prophetic observation having regard to what was to follow in relation to the statements made by the children.
Dr B reported the mother’s concerns about the father but those related to neglect from drunkenness, his lack of emotional interest in the children and that he was a poor role model. Dr B did not see that at all.
Ultimately, none of the evidence in this case supported any of the mother’s concerns expressed to Dr B back in 2011. Indeed, it was the opposite.
Dr B opined that the father was uncomfortable about the assessment environment, preferring to be outdoors. She thought he lacked imagination, interest and understanding in others. He was seen as blunt which was a description arising from his views about his rights.
Dr B observed both parents with the children. The mother was seen as attentive and very loving with them. Similarly, the children were relaxed with a responsiveness towards the father. Dr B said that the father impressed as a devoted father. The children were “remarkably satisfied” and easily entertained by him. He was described as patient, inventive and creative. The father’s discipline in those circumstances was seen to be appropriate.
Various tests were undertaken by Dr B. She thought the mother had not been completely forthright. Again somewhat prophetically, Dr B said that the mother was uncritical of her own behaviour and insensitive to the negative consequences associated with her behaviour. That resonates now after all of the evidence has been tested.
Overall, Dr B said that each parent lacked insight into the impact of behaviour on their children and each needed an experienced psychologist to appreciate the needs of their children. When giving evidence two years later Dr B expressed concern that after two years, that recommendation had still not been followed.
The hearing in the Federal Magistrates Court in February 2012
The orders made by the Federal Magistrates Court proved troublesome. The father took contravention proceedings in that court in February 2012. For whatever reason, and unfortunately, it was not until 17 August 2012 that that court dealt with those issues. There, with the mother represented by counsel, she admitted a breach of the orders.
The order resolving the contravention issues curiously was endorsed with the following notation:
The father does not seek any further orders with respect to the contravention admitted to by the mother and seeks no penalty be imposed.
The cause of all of the problems in the late 2011/early 2012 period giving rise to the contravention proceedings only received oblique reference during this trial. The mother indicated that she had been away and one of the children had been ill. She could not however avoid the fact that she conceded that there had been a breach without reasonable excuse.
2012 year
During 2012, there were also considerable hearings about interlocutory financial issues.
In May 2012, the parties appeared before Turner FM (as his Honour then was) and because the parenting dispute was unresolved, agreed to a further family report being prepared by Dr B at their joint expense. Interviews for that report were to begin in September 2012 for the purposes of a trial that his Honour was going to hear in December 2012.
On 10 October 2012, Dr B delivered her report.
The second Dr B report
The parties attended interviews in September 2012.
Dr B noted that the children had had a variety of carers whilst the wife was working. She noted the childcare centre in Suburb D, one in the central business district, a full-time nanny, the child M attending kindergarten in Suburb T and the child N attending a childcare centre adjacent to M’s kindergarten. Whilst there had been no complaint about this in the evidence, it is consistent with what the husband said about the adaptability of children to change.
When Dr B saw the mother, the focus of the discussion was on the father’s negligence in respect of physical health and safety. The mother told Dr B she had been taking photographs of injuries because they were so frequent. No suggestion arose of any sexual impropriety nor did any suggestion arise of any sexualised behaviour.
Dr B challenged the mother about her views concerning the father’s relationship with the children and the mother denied she was doing anything to thwart it.
For his part, the father complained that his view was that the mother was on a mission to stop him having any relationship with the children. He made reference to the breaches of the order and how he was not able to see the children.
Dr B challenged the father about how the children would cope with living with him because at that time, it was his application that that occur. He observed the point that I have just made about the changes of childcare and added that the children were wanting to stay with him for longer periods. He acknowledged his work commitments but said that his mother would assist him.
Dr B observed the children to be quite relaxed with their mother as well as confident. She noted a good relationship with the father.
Dr B recommended that there should be regular and frequent time with the father and she was critical of the mother who although a loving parent, did not appreciate the children’s relationship with the father. She thought that the mother’s alienation and estrangement from her own family may have had the effect of causing her difficulty to accept the father’s relationship with the children.
Dr B dismissed any suggestion of the injuries reported by the mother as being of any significance. She then said:
I do not consider the risks to the children in their mother’s care are to such a degree that would make consideration of them living the majority of time with their father to be a feasible or desirable outcome for them at this stage.
Dr B moved from that position significantly later as a result of what was about to unfold. At the time however, she thought the children’s strong and secure attachment was with their mother and they were very young. She said they obtained most of their emotional security from their mother’s care. That said, Dr B thought the children should be spending more time with their father including overnight.
Thus, to the extent that the proceedings might have continued without alteration of the evidence in December 2012, it would have been anticipated that the father would have had significant time and involvement in the children’s lives. As the proceedings loomed, things changed.
A text message from the mother to the father
On 4 November 2012 having possession of the Dr B report and with the final hearing looming, the mother sent the father a text message complaining about his honesty and that of his family. She indicated that she was going to various government authorities to report him and his family. Dr B was asked in cross-examination about whether there was any significance in that message and she thought it not unusual for couples in the throes of conflict. I do not agree. It was around this time, on the mother’s evidence, that problems started to begin. The nature of the email indicated that the mother had a very poor opinion not only of the father but of his family but it also showed she was out to get him. Even with a hearing looming, she could not restrain herself from venting her spleen.
Because of the nature of the relationship at that time, the father sought to increase his time with the children arguing that the mother would not “promote relations” between he and the children. The mother’s response was to say that she wanted the father to have extra time but that he had refused to take it. She said he had a serious dependency on alcohol. Lots of disputes were going on at this time most of which related to finances. The mother moved house because she could not meet the mortgage commitment and the property had to be sold. Child support was problematic and the father had unsuccessfully sought to review the assessment.
In her 2012 trial affidavit, the mother took umbrage at Dr B’s conclusions in the 2012 report. Unfortunately or otherwise, the affidavit was simply a stream of consciousness on the part of the mother rather than being focussed on the issues in dispute.
The December 2012 hearing
6 December 2012 was to have been the final hearing before Turner FM. On the day before that hearing, the mother filed and served an affidavit which described “disturbing and concerning developments that occurred last weekend”. She was specifically referring to sexual abuse allegations. At the same time, the mother filed a Notice of Risk of Child Abuse. In that document, she said:
[M] has been displaying some concerning sexualised behaviour which has been involved him (sic) requesting his sister to sit on his face and pushing his sister down into his groin area and spoke in front of his mother about wanting to urinate in his sister’s mouth.
It then went on to say:
Whilst the disclosures to the mother by [M] specifically implicate the father, the mother cannot be certain that the father is responsible and has requested his comments as to any explanation about this behaviour on the part of the children.
The perplexing part of that last statement is that no discussion had taken place between the parties.
Turner FM transferred the proceedings to the Family Court of Australia on the basis of the sexual abuse allegations and importantly, suspended the father’s time with the children. No reasons appear to have been published but it was implicit in the notations to the order that his Honour was concerned about the sexual abuse allegations and the case was then estimated to take six days. The documents of the mother triggered the involvement of the Department of Human Services.
The proceedings begin in the Family Court
On 17 December 2012, a registrar ordered the appointment of an Independent Children’s Lawyer and a report from the Department of Human Services under s 69ZW of the Act. That report was provided to the Court on 30 January 2013.
Section 69ZW(2) provides that information falling within that section includes any assessments by the relevant agency, of investigations into a notification or the findings and outcomes of those investigations along with any reports commissioned by the relevant agency in the course of investigating a notification.
Section 69ZW(5) provides that the Court must admit into evidence any documents or information provided in response to the order on which the Court intends to rely.
No party took issue with the fact that the document provided by the Department of Human Services was admitted. In addition, it was not challenged by any party through the calling of any of the authors of the report. Accordingly, I accept the Department’s report.
It is important to record that the mother was cross-examined about a number of statements that were said to have been made by her to the Department. Whilst at times, she doubted the precise words quoted by the Department in parenthesis, she did not deny the gist of the conversation. Because there were significant statements by the mother to the Department’s representatives at the time, notwithstanding the absence of the calling of the Department witnesses to give evidence, I find on the balance of probabilities, the mother did use the language recorded by the Department representatives.
Thus, the gist of what the Department recorded was as follows. First, there were a number of reports between August 2011 and February 2012 all of which concerned physical safety of the children. None of these seemed to have caused the Department any concern.
Secondly, the Department noted “allegations” were made on 30 October 2012 of both children being involved in inappropriate sexualised behaviour. This was after Dr B’s interviews in September 2012 where no such concerns had been raised. In her Notice of Risk of Child Abuse filed 5 December 2012, the mother only made reference to sexually inappropriate behaviour in between 1 and 5 December 2012. The mother had signed her first trial affidavit on 30 November 2012 and no reference was made to such behaviour. In her affidavit filed on 5 December 2012 she did set out the details but introduced them by saying:
For some time now I have had concerns in relation to the children displaying signs of sexualised behaviour.
She then described the events which she said had “occurred in the past”. It was the Notice of Risk of Child Abuse document that went to the Department of Human Services for the mandatory investigation.
The explanation of the mother for not raising these issues before that date was that she had “been discussing these matters” with her counsellor for some guidance and felt it was not necessary “at that stage” to do anything because she did not know if it was normal behaviour for young children. Two troubling features of that evidence immediately arise. First, no evidence was presented as to these discussions with the counsellor. Secondly, it is hard to simply accept this was “normal” child behaviour. As the father said, there seemed to him to be a lack of boundaries. No notification to him had been made nor requests for explanation bearing in mind he had been caring for the children and his mother had also been involved. That focusses on the nature and precise wording of the allegations which were thought by the mother to have possibly been normal behaviour or as the mother said in her December 2012 affidavit, were not possible to overlook any longer.
At paragraph 22 of her affidavit just mentioned, the mother said:
I am anxious and deeply concerned as to what has transpired and struggling to find explanations that may alleviate my fears for the children. I do not know what to believe but say that the words and actions of the children do need investigating and some explanation provided. I am trying to keep an open mind about what has occurred and liaising with DHS as to the way forward.
In respect of the statement in her December 2012 affidavit sworn the day before the December hearing about having wanted to have an explanation from the father, the closest the mother could be said to have sought his views was in a letter dated 5 December 2012 from her then lawyers to the father’s lawyers. As it was sent by facsimile transmission, presumably, the father got it late on the night before the hearing before Turner FM. The letter said that the mother was perplexed about the children’s behaviour but that the children could speak and act in such a way that might provide an alternative explanation. She sought that he provide an explanation for the “disclosures” particularly having regard to the activities that the children were engaged in. The letter went on to say that the mother was attempting to keep an open mind.
The allegation made by the mother was that whilst in the father’s care, the two children and a cousin were naked, as was the father, and cream was rubbed all over them. She said that the child M specifically indicated that the father rubbed cream over his scrotum and penis and that M said to her that his father had digitally penetrated Ml’s anus and then that of N.
The Department of Human Services’ response
The Department of Human Services spoke to the mother on 1 December 2012. Thus, this information was in their hands prior to the mother completing her affidavit or the Notice of Risk of Child Abuse. The workers noted that the mother advised that M told her that the father and N had a “cream fight” and that the father had put his finger in the anus of both children. M said that the father put cream in their eyes.
The mother told the workers that a few months earlier, M returned from time with his father and began lying on the floor requesting N to sit on his face and would say that he wanted to urinate in N’s mouth explaining to the mother that he wanted to do that because he liked it and N liked it too.
The mother told the workers of the Department of Human Services that she had already been to the police sexual offences and child abuse unit but M did not make any “disclosures”. She told them she wanted a doctor to examine the children but the police said she could not do that. She said she then went to the X Hospital and was going to take the children in for an examination.
The Department of Human Services then spoke to the police unit who gave further details beyond what the mother had said. The child M had reported that he had had a cream fight with his father when he and the father were outside “both naked shooting cream at each other”. He said he got cream on himself, his head, arms and legs. Importantly, the police indicated that M made no “disclosures of abuse”. Because of that, the police told the mother that a forensic medical examination would not occur but the mother was insistent that it occur and offered to pull down the pants of both children to show the police its necessity.
When M was asked by the police about whether the father had put cream on his penis or whether the father had touched M’s penis, the child replied “No”.
The Department of Human Services’ report noted that the police indicated that despite saying that a forensic examination was not necessary, the mother was insistent on the children being examined and told them that she was taking the children to the Royal Children’s Hospital.
Having heard that this discussion had taken place between the mother and the police, the Department of Human Services’ representatives told the mother that it was not in the best interests of the children to be taking them to numerous doctors because it was an invasive experience.
On 1 December 2012, the mother took the children to the X Hospital. Her explanation was that she was not pursuing a forensic examination for sexual abuse purposes but rather that the child N had “cream in her eyes and it was leaking”. In cross-examination, the mother told the Court that she wanted someone to look at the cream and where it was. It was said that the child M had pulled his pants down and told her what his father had done to him. That explanation does not sit at all comfortably with a discussion between the mother and the Department of Human Services.
On 2 December 2012, the Department of Human Services noted that the mother contacted them asking them to instruct her not to allow the father contact so that she could take the children to another doctor for a forensic examination. There can be little doubt that the mother did want a forensic examination. In her evidence, she said she did not know what a “forensic examination” was and whilst that may very well have been true, I find there can be no doubt that she wanted a medical examination relating to collecting evidence to prove sexual impropriety on the part of the father. Support for that can certainly be found in the discussion she had with the police unit.
On 3 December 2012, the mother again spoke to the Department of Human Services. This time she raised a number of other matters all of which were of a sexual nature. She noted that N was now pulling her bottom cheeks apart and trying to put her own fingers into her anus and that M was complaining that he had a sore bottom following time with his father. She also observed M force N’s head down into his groin area and M doing actions like he was masturbating. She said she saw N try and put toys in her anus when in the bath and both children played with their genitals asking her to watch because they were playing games like they played with Dad.
A variety of other matters were mentioned by the mother to the Department none of which appeared in her December 2012 affidavit material and collectively, gave a very clear picture of desperation.
On the following day, 4 December 2012, the mother contacted the Department querying whether this was a sexualised thing and not just a game. She said to the Department that her lawyer had warned her how badly it would come off in court. Unfortunately, the mother then said:
From my perspective, [the children] do not have any bleeding or injuries or complaints of soreness from their privates.
As observed by the Department, that was inconsistent with the complaints she had made three days before relating to the sore bottom complaint.
On 6 December 2012, the Department of Human Services intake received a further complaint which related to an allegation against the father that he had sexually abused his own sister as a teenager. That was a curious allegation. The Department of Human Services’ report does not say who made the allegation and nor should it. On 21 December 2012, the mother filed an affidavit by her sister deposing to the fact that she was the best friend of the father’s sister. In the proceedings before the Court, the mother’s counsel submitted that this issue was no longer relevant because the mother was not seeking to say that the children were at risk in the care of the father. Despite that, the outline of case document which had only been provided to the father immediately prior to the hearing indicated that the mother was relying on her sister’s affidavit. In cross-examination, the mother tried to distance herself from this affidavit saying that it was her sister who “did” all this herself. That does not sit comfortably with the fact that the affidavit was endorsed as having not only been prepared by the mother’s lawyer at that time but it was also sworn before that same lawyer.
The mother’s sister deposed to the fact that between 1996 and 1998, the father’s sister revealed to her that the father had sexually abused her but that his family found out about it and punished him. So confident of this material was the mother that in attending Dr B in May 2013, the psychologist said:
She had then been confronted by her sister’s revelations that [the father] had sexually abused his sister in their adolescent years. [The mother] stated that for her “the penny dropped and the children’s behaviour became understandable…[The mother] stated that in December 2012 her sister had made the disclosure and she had been “flabbergasted” and understood that [the father’s] sexual abuse of the children was “hereditary”.
The reliance upon this affidavit bearing in mind that the outline was served very late, led the father’s sister to file an affidavit. She emphatically denied ever stating to the mother’s sister about those events.
When cross-examined about the content of her sister’s affidavit, the mother observed that she was shocked by what her sister had said but more so that she had never been told of these revelations by her sister. When tested as to why she was no longer relying on the affidavit, the mother said that this was all her solicitor’s doing. She said that her lawyer told her that it all had to be put into the outline of argument document even though she was not going to rely upon it. She said she did not ask her solicitor to file the affidavit in the first place and it was all the sister’s doing at that time. She nodded sagely that she thought she should have taken it “off” the list provided by her solicitor in the outline of case although she acknowledged that she had certainly intended to rely upon it in the hearing when the matter came before the Court early in 2013 because she was shocked at the revelations at that time.
This whole incident creates real concerns about the mother’s truthfulness for three reasons. First, I do not accept her explanation that the sister was not called to give evidence because there was no longer an issue about risk of abuse. The outline of case document had been carefully prepared. The sister’s affidavit was not an inadvertent inclusion; it was there for a purpose and it was drawn by the mother’s lawyer. Secondly, there was a very clear allegation in the sister’s affidavit that the father was punished by his parents for his misconduct towards his sister. The father’s mother gave evidence because she was required for cross-examination. Nothing was put to her to suggest that any such problem ever existed.
To simply wave away the evidence of the mother’s sister on the basis of there being no assertion of risk of abuse would be inappropriate because the father sought leave to file an affidavit by his sister. On any view, the mother knew that he was persisting with the evidence that there was no foundation ever to the mother’s allegations.
The very clear impression created by the mother’s evidence was that the father and his family were complicit in some sort of sexual deviant behaviour. The third reason why I doubt the mother’s truthfulness is that in March 2013 or thereabouts, the mother spoke to the professional supervisor of the children. This meeting was also controversial from the mother’s perspective but the supervisor was not called for cross-examination even though the Independent Children’s Lawyer relied upon her affidavit.
The supervisor said that it was unusual to meet the mother in the way that the mother was then demanding so she met her over coffee. Of that discussion, the supervisor wrote;
[The mother] spoke about how strange the father’s family was, and she was glad she was out of it. People were now coming forward and talking about sexual abuse and incest; they are going on affidavit for her.
When this statement, recorded by the supervisor, was put to the mother in cross-examination, she vigorously denied the conversation ever occurred. She said it was implausible for it to occur because the discussion took place in a public place namely at a café. She maintained that the only thing she ever discussed with the supervisor were things such as toileting of the children. She told the Court that she had suggested that the supervisor should read the various reports.
Credibility
My doubt about the mother’s truthfulness adds weight to my concern that she has not resiled from her previously held position that the father is an abuser of his children. That finding is important having regard to the evidence of Dr B. Dr B’s view was that if that finding was made, it was very likely that there would be a repeat of what the children had been put through in 2012 and 2013. Dr B was very concerned that the children’s relationship with their father would be at risk. Whilst that could arise during any time that the mother had the children in her care, at least in the father’s care, there was a greater chance of a stable relationship where boundaries would be set.
The hearing on 6 February 2013
The parties came before Senior Registrar FitzGibbon on 6 February 2013. He ordered a resumption of the supervised time which led to the involvement of the supervisor who I have already mentioned. That supervisor was Ms G.
The Senior Registrar also ordered that there be psychiatric examination of both parties and a psycho-sexual assessment of the father by Dr K. The Registrar also made an order under s 69ZT(3) of the Evidence Act that the rules of evidence should apply. This was a Magellan directions hearing and therefore the Court was hoping to expedite the hearing.
That hearing then led to two significant witnesses providing affidavit material and neither was called for cross-examination.
Dr E
Dr E is a forensic psychiatrist. He has had extensive experience. No party challenged his credentials.
Dr E interviewed both parties and provided a psychiatric assessment on 2 April 2013. The significance of the date is that, by this time, the father was having supervised time with the children.
The facts as described to Dr E were hardly controversial and very much consistent with the position that each party had portrayed. The mother was describing the allegations of the children of a sexualised nature and the father indicated that he had not seen that nor been involved in any sexually inappropriate conduct himself.
Dr E recorded that the father was distressed whilst describing the sexual allegations and noted that the child N could not speak in the manner that was descriptive of the disclosures that she was said to have made.
The father told Dr E that he thought the mother had changeable mood states and was demanding of him.
To Dr E, the father acknowledged that he had had a problem with alcohol in the past and that he regretted the role it played in the demise of his marriage to his first wife. Dr E noted that the father spoke with conviction about changing his habits when the mother was pregnant with M and that he had curbed his alcohol consumption.
In a thorough examination which was unchallenged by any party, the father was assessed with Adjustment Disorder with Depressed Mood in remission.
Dr E then saw the mother.
The mother gave Dr E an extensive history of her childhood, interests and work habits. None of that material was challenged by anybody.
Dr E described the mother’s mood as being shocked and totally preoccupied by the sexual allegations.
Of some note, Dr E noted that the mother was a discursive and over-inclusive historian. He said she was inclined not to answer questions directly and would provide various explanations of her behaviour which contained a number of rationalisations on her part. He said her narrative account was often circular and as such, considerable guidance and direction were required in the interview process. I find that has some resonance in this case because that is exactly how the mother gave her evidence when being cross-examined whether by counsel for the father or indeed counsel by the Independent Children’s Lawyer.
Dr E opined that the mother’s description of the father was “unremittingly negative”. He said she remained highly anxious as to the prospect of the children being cared for by the father. She said this was a prospect she simply could not herself agree to. Whilst this report was delivered in April, it was the mother’s evidence that it was not until she received the report of Ms G, the supervisor in July, that her situation changed. Having regard to the comprehensive detail and assessment of Dr E and also looking at the simplicity of the evidence of Ms G, the mother’s statement about her change of attitude is implausible.
Dr E had the benefit of the previous reports of the Department and Dr B. He said he found the father to be a man who appeared genuinely connected with his children. In respect of the father, he did not consider him to be a risk to the children or for that matter, to their relationship with their mother. However, he then said this:
In contrast, I have significant reservations as to [the mother’s] presentation and account. She remains completely convinced that the children have been abused. Her emotional and psychological functioning continues to be dictated by unresolved issues from her childhood. [The mother] is a person prone to inevitable feelings of disappointment in those around her, particularly those close to her.
Dr E then said:
[The mother] remains a risk to the children due to her inability to maintain her own boundaries. Her various anxieties have clearly flowed onto the children. Her constant requests for reassurance and “further discussion” in respect of these matters simply serve as a temporising factor in the proceedings against the likely reality of [the father] having contact with the children. In my opinion, [the mother] has little or no ability to support the relationship between [the father], [M] and [N].
In respect of that last quote, two significant observations have to be made. The first is that the mother was seeking “further discussion”. That was an explanation she gave to the Court as to why witnesses were not called. She said she did not need to proceed with proving these things because she had an avenue of discussion and she relied on other people to sort out why the children behaved as they did. There is a very clear resonance with what Dr E said in these proceedings. The second issue relates to Dr E’s conclusion that the mother has little or no ability to support the father and child relationship. Nothing I heard from the mother indicated that she had any real respect for the father as a parent. Her constant statement was that they should go to counselling and work the matter out. As Dr B however said, bearing in mind the diagnosis of Dr E, any counsellor in this case would have to be very experienced.
I accept Dr E’s evidence as critical in these proceedings.
Dr K
Dr K is a forensic and clinical psychologist who was specifically requested to prepare a psycho-sexual report on the father arising out of the orders made by the Senior Registrar in February 2013. Again, no-one challenged Dr K’s expertise and no-one called him for the purposes of cross-examination.
Dr K set out the methodology he used and the various tests he applied.
Dr K noted that the father’s early development was not problematic. There were no criminal charges relating to sexual conduct. There was no indication of mental health problems and that was consistent with what Dr E found. The father had not sought treatment or anti-depressant medication but did acknowledge some past alcohol abuse. Dr K was aware of the allegation of sexual abuse involving his sister but that was denied by the father.
Dr K opined that there was no evidence of a significant sexual risk factor identified. There was no evidence of a constellation of risk factors which would lead to the conclusion of high risk of sexual offending.
Although not specifically the issue, Dr K thought that the father’s evaluation identified that there were no significant factors that would prevent him from having normal time with his children providing the other professionals indicated that he had a decent relationship with them.
That evidence was made available to the mother in March 2013. It did not give the mother much comfort at the time.
The Hearing on 27 March 2013
On 27 March 2013 the matter was listed before me for the first time. I made an order for Dr B to do an updated report. On that occasion, the mother appeared unrepresented. At various times during her cross-examination in the August and October 2013 hearing, the mother said that she had not filed any affidavit material from further witnesses because of the orders I had made. I have earlier mentioned that in these reasons. To the extent that that was a misunderstanding by her, it could easily have been cured by her legal representatives immediately before or indeed during the trial. I made clear in the orders of March 2013 that no further material was to be filed without leave of the Court.
The evidence of Ms G (the supervisor)
Ms G conducts a professional supervising arrangement but consistent with the policy that I instituted, before she commenced her arrangement with these children, she was required to file an undertaking with the Court. She clearly understood her duties and I am satisfied she carried them out faithfully. Indeed, the mother had no serious complaints about Ms G save for one issue which I found quite perplexing.
During the course of the supervision, Ms G broke her wrist. In the mother’s mind, Ms G’s incapacity meant that she would not be able to change the nappy of N. The mother insisted that Ms G was the only person who could change the nappy of N and that in her view, that had arisen from the undertaking that Ms G had given to the Court. A careful examination of the undertaking filed with the Court indicates no such thing. It gives to Ms G the responsibility of taking the children to the toilet and attending to associated arrangements. Ms G’s responsibility was to supervise.
Because of a variety of factors, the father changed N’s nappy in the presence of the supervisor around May 2013 and when the mother learnt of that, she was quite upset. In my view unnecessarily so but it clearly indicated that at the time that that occurred, the mother was still concerned about the sexual abuse allegations rather than anything associated with a breach of an undertaking or a court order.
Examining the evidence of Ms G who was not required for cross-examination indicates that the father and the children had a normal and successful relationship and there was nothing inappropriate about any of that. It was clear from the dialogue between the mother and Ms G that at least by the end of May, when the nappy change incident occurred, the mother had not accepted that there was no foundation for any sexual impropriety allegation. The mother wrote a text message to Ms G in which she said:
I have said in my affidavit that they are not scared of Dad, they think that it’s part of the games that they play and they don’t comprehend that it’s wrong. It’s me who is trying to make them well aware its wrong and not to do it again.
There was one unusual observation by Ms G. She thought that M had given N a cuddle then pulled N’s clothes away from her neck and kissed her on the neck. The father too had very recently seen some sexualised behaviour between the children and had to step in and pull them apart. This was the first time the father had seen such conduct and he had no doubt that it was not simple childhood behaviour. Where they learnt it and how they learnt it remains a mystery but as he observed and I agree, this is more a reflection on lack of boundaries. To the extent that the mother should have been vigilant about it, she had failed.
On 16 July 2013, Ms G provided her 38 page report to the Independent Children’s Lawyer and the mother received it shortly thereafter. Ms G set out that all interaction between the father and the children had been appropriate, spontaneous and caring. She said there was a very strong loving bond and attachment between the children and their father and that was again the observation of Dr B. She saw the father giving lots of encouragement, praise and endearment to the children and that he was playful with them and shared time equally between them. She said both children appeared very excited and happy to be spending time with their father and were often reluctant to leave.
In a strange statement, the mother told Ms G that as Ms G had observed N on a number of occasions when she was changing nappies, she could see for herself that the child’s genital area was enlarged and opened and not closed over like other three year olds. The only inference that could be drawn from that statement was that it had something to do with sexual abuse and that the father, by virtue of the allegations relating to putting cream on the genitalia of N, was clearly responsible.
According to Ms G, there had never been a time where she had been required to intervene in relation to any of the activities of the father.
This report was the catalyst, according to the mother, for changing her views. There is nothing in the report that indicates to me that it was of such note that it would have had such an effect particularly having regard to the reports otherwise received from other professionals.
Dr B (third report)
Dr B prepared a third report after meeting the parties and it was provided to the Independent Children’s Lawyer and the mother by post on 2 July 2013. By this stage, Dr B was well aware of all of the allegations and all of the investigations.
A careful reading of Dr B’s evidence indicates that she very carefully examined all of the reports in detail and nothing I read or heard amounted to a criticism of the way she approached her task. Dr B had the benefit of the reports of Dr K and Dr E and also correspondence from Ms G in April 2013.
Of the mother, Dr B reported that she presented as calm and cooperative. She seemed convinced that her beliefs that the children had been sexually abused were correct and the concerns expressed by the Department of Human Services were no longer an issue because the Department had apologised to her and resiled from their conclusions. This interview with Dr B occurred on 9 May 2013.
The mother told Dr B that she was continuing with the counselling that she had been asked to undertake and that the psychologist had found that she did not have a personality disorder. What Dr B said was that the mother believed that what the Court had ordered, by way of supervised time with the father, had protected the children from further sexual abuse and allowed them to have a relationship with their father. The only inference open from that statement was that she believed that the father had sexually abused the children.
Dr B interviewed the father who observed that if the children lived with him they would experience a better model of behaviour and that there would be less risk as they grow up of replicating “their mother’s alleged behaviour”. The father said he thought that the children would be happier living with him and they would not be exposed to pressure applied by their mother. Dr B agreed.
Dr B made observations of the children. She inquired of the child M whether he wanted to spend more time with his father and he indicated that he did not know why he did not want to sleep over but he just did not. She thought that M appeared to be a young boy in the lower ranges of development for his age who had been exposed to a hostile parental relationship as well as physical violence.
The child N on the other hand impressed as a child who was independent and confident and in the very lower ranges of development for speech.
Nothing was seen by Dr B that might have indicated that the father was not capable of caring for the children.
Dr B also made inquiries of other people such as the childcare centre and school and there were no significant issues of note.
By this stage, Dr B noted that the mother presented consistently with previous assessments but she was concerned at the escalation of her allegations against the father. She thought the mother a rather manipulative woman who was motivated by a strong dislike of the father.
Dr B then opined:
[The mother] also appears determined to ignore any information that challenges her beliefs, such as her reliance on the belief that [M] has come to know that his father’s alleged sexual behaviour with him is abhorrent, when claiming that [M] was apparently unconcerned at first but has become more disturbed over time, without apparently making any allowance for the consideration that her behaviour may be influencing the children.
Dr B noted that the mother was heavily reliant on information received from the children but consistent with the concerns expressed by the Department of Human Services, Dr B was worried about the context in which the mother had obtained that information. In Dr B’s view, the mother was encouraging the children to make disclosures to others. She was concerned that when an allegation was not made by the children at a childcare centre, the mother moved the child N to another centre. Those observations were professional judgments based on all the facts known to Dr B. I agree with her conclusions.
Dr B acknowledged the vulnerability of the children and the close attachment to their mother but observed that the important question appeared to be whether the children’s broad best interests were being met by the mother’s care. In her view, much depended upon whether or not the Court accepted that the change in the mother’s position was real as a result of receiving the G supervision report. For the reasons articulated earlier, I do not accept that the mother has changed her views at all.
It was Dr B’s view that if the children lived with their mother, the relationship with their father would be interrupted again in the future and that it was likely that the mother would make further allegations against him. She described the mother as showing little insight and particularly, was choosing not to take a self-critical approach to her own behaviour. That resonates with me having regard to the fact that the mother had the benefit of not only three reports from Dr B but also the reports of Dr E and Dr K. She also had the observations of the Department which expressed concern about her own conduct.
Dr B thought that further changes in the life of the children would be problematic but in the long term, the children were more likely to be settled in their father’s care.
Dr B thought that if the move was made, then the mother would need to see the children frequently for the benefit of the children.
Dr B was cross-examined by all counsel. It was explained to her that the mother’s position was a “180 degree” turnaround and that the catalyst for this change was the G report. Dr B well knew what the mother’s position was. She described the mother as meeting the children’s needs but so did the father in relation to his attention and care. As for the impact on the children of removing them from their mother, Dr B said that both children were in the lower range of development and there were certainly question marks over N. She was concerned about delayed speech as well as her walking but otherwise had quite sophisticated cognitive skills in relation to her play. Dr B thought that a paediatric assessment was urgent. She was horrified to think that that recommendation had been made months ago and nothing had been done. She thought that some of the problems observed by people who described N as “zoning out” might be witnessing a child suffering stress.
Dr B said that both children had a strong relationship with their father having regard to what they had been through and were amazingly close. Both children had had lots of changes already and there was a requirement to try and maintain M’s security with his school. The father has indicated that he would do that until the end of this year. Dr B observed that it was not about the day to day things but about whether all of the things that the mother was doing were creating stress for the children. The mid and long term effect depended on whether the mother was creating these pressures by her negativity. In my view she has been and I am not at all convinced that there has been any change in her views.
Dr B was complimentary of the fact that the mother had attended upon a psychiatrist and she knew Dr W by reputation. Unfortunately, as I observed, I have no evidence as to exactly what Dr W was treating and what he thought the prognosis was. That was a telling omission on the mother’s part. Dr B was concerned that the mother was likely to seek out treaters who colluded with her and it was not clear whether they were fully conversant with what was going on. That heightens my concern about what Dr W has been told.
Dr B’s evidence is very significant in this case. She had very little that was complimentary to make of the mother other than the fact that there was a good job being undertaken as a parent in relation to daily activities. It was the long term as well as the medium period that was of concern.
This case had clearly been put by the mother on the basis that these allegations arose shortly prior to December 2012 and she was convinced that there was no problem after receiving the G report in July 2013. However, Dr B observed problems in 2011 so to that extent, the mother’s approach to the father has to be looked at in the context of the entire period subsequent to separation. In that period, there were difficulties in communication between the parties, accusations by the mother against the father in relation to his honesty, problems over contact orders culminating in an acknowledgement of at least one breach by the mother and then there were the sexual abuse allegations.
This has been a troublesome relationship and I am not convinced that the mother has any intention of letting the disdain for the father go. These children are therefore very much at risk in the mother’s care.
The Paternal Grandmother
The father’s mother supported the evidence of her son and submitted herself for cross-examination. She too has paid work but it is flexible.
I accept that there is a good relationship between the grandmother and the children and that she would be very supportive of the father in his parenting role.
The Statutory Pathway
Part VII of the Act provides the basis upon which the Court exercises its power to make parenting orders.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met. The Act provides principles underlying the objects (s 60B(2)).
Section 60B(1) provides:
(1) The objects of this Part are to ensure that the best interests of 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.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies primary and additional considerations by reference to which the Court must determine what is in the children’s best interests. There is also a requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent (60CC(4)).
In this case, I propose to examine all of those requirements drawing upon the findings I have made on the evidence set out above.
I am asked to make parenting orders in this case. S 65D of the Act provides the source of the Court’s power to make a parenting order. That provision is subject to the application of a presumption that it is in the best interests of the children for their parents to have equal shared parental (s 61DA).
In this unusual situation, the Court is asked by the mother to continue an order previously made that each parent have equal shared parental responsibility. Despite her optimism about the continuation of that order, the father’s unchallenged evidence was that he had not spoken to the mother for two years. The mother’s evidence was that she had invited him to go to counselling and he had not responded. The mother’s evidence was also that there were developmental problems for the child N yet nothing I heard suggested that she had involved the father in any dialogue as to how that would be resolved. All of that suggests no trust and importantly, little prospect of meaningful consultation.
Section 61DA(1) requires the Court to apply the presumption unless it is rebutted in one of two statutory circumstances. First, it does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2). In this case, there is evidence of a family violence order but there is also unchallenged evidence that the mother assaulted the father at the time of the separation which ironically, seems to have given rise to the family violence order in her favour.
On any view of that evidence, the presumption should be rebutted.
Even if that was not the case, the second situation arises as a discretionary consideration. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility (s 61DA(4)). For the reasons earlier outlined about the parties’ view of each other, there is no prospect that any of the requirements of s 65DAC(3) will be met.
With the rebuttal of the presumption, there is no further need to follow the pathway of whether equal time or significant and substantial time should be considered. That said, the Court is at large on what is a proper order for the children.
Section 60CC Considerations
S 60CC(2) requires the Court to consider as primary considerations the benefit of the children having a meaningful relationship with both parents. That cannot happen here if the children remain with the mother. The evidence above shows that she has no respect for the father and her mantra-like statement that she had an avenue for discussion has little to support it. Her very recent statements indicate that she will not support a relationship with the father and to that end, I have the very powerful evidence of Dr B that if the “epiphany” is rejected as not genuine, it is likely that there will be more allegations. The children therefore are unlikely to benefit from a relationship with their father whilst the mother has that dominant role of caring for them. I have no similar concerns about the father. He has satisfied me that he will support a future relationship between the children and their mother.
It is important to observe that the children need to benefit from those relationships. The evidence supports a clear statement that the children have benefited from their time with the father. I am unsure about the benefit they currently receive from the time with their mother.
The Court is also obliged to ensure that in contemplating what is best for these children it takes into account the need to protect them (s 60CC(2)(b)). The various descriptions here do not suggest any physical risk in the care of the father and indeed, that is supported by the mother. The children have a right to be protected from being brought into the sexual abuse complaints area if that is not a justifiable intrusion into their world. The obsession of the mother is worrying. The children need protection from that. They also need time with their mother and the orders I shall make enable her to continue her role but give the father a greater amount of time to create a stable, secure and loving environment. I cannot see that happening in the mother’s house.
Both children are vulnerable and very young. Neither child’s views could carry much weight. Dr B gave evidence about how M might feel about spending time overnight with his father and the child was simply resistant. That said, he has shown enjoyment with his time with his father.
The nature of the relationship of the children with each of the parties is clear. Both parents have close and loving relationships.
Dr B opined that the children were attached to the mother but have an amazing relationship with the father. Nothing suggests that that will not continue.
I find that the children have been exposed to emotional harm by the behaviour of their mother and not just since December 2012. They have also suffered emotional harm by being subjected to the acrimony in their parents’ relationship. I am satisfied that with the children predominantly in the care of the father, that is likely to stop. I am satisfied the father is adept at setting appropriate boundaries but I could not say the same for the mother.
I find that for the purposes of s 60CC(3)(c), it is likely that the Mother would be unable to facilitate a relationship between the children and the Father notwithstanding what she says has given her comfort about the father since about July 2012. I suspect and am comfortable to so find, there is every likelihood that on the current state of the professional evidence, the mother will not foster a relationship between the children and their father.
There is no suggestion otherwise than that both parents have been and are, capable of providing for the children’s intellectual and emotional needs (s 60CC(3)(f)). In the father’s case, although not an indoor person, the supervisor Ms G saw him well prepared for the needs of the children. It was not suggested by the father that the mother was not providing the day to day care.
I do not know of the nature and extent of the relationship of the children with the mother’s extended family because the evidence was not called. I am satisfied that the mother has endeavoured to keep the children away from the father’s family. She has said disparaging things about the family and there is little trust. Left with the mother, I have doubts as to whether she would ever encourage that relationship which the children clearly were observed to enjoy. There are also cultural issues here which the father has and the children have the right to enjoy those as well.
The father was the person who best satisfied the Court that he would give the children security and boundaries.
Whilst the children were exposed to family violence between the parties, it has now slipped largely from their memories and in the child N’s case, she could not have remembered it. Both parties contributed to those matters but with the separating of their ways, there are limited possibilities of the children being exposed to that again.
The mother conceded there was no unacceptable risk in the father’s care. I agree. There is every reason to be concerned about their safety in her care for the reasons outlined earlier.
In M v M (1988) FLC 91-979, the High Court authoritatively determined the applicable principles that should be applied in determining parenting orders in a case involving allegations of sexual abuse. The Court made clear the duty of the trial judge was to look at the best interests principles and noted that it was not the task of the Court to make findings about whether the sexual abuse occurred. The Court said that if those findings could be made, there was no problem in so doing. In my view, it is appropriate in this case to dispel any suggestion of doubt. I am satisfied that the father has not sexually or in any other way abused these children.
The test of whether a child is at risk of emotional harm must be determined on the balance of probabilities. I am satisfied for all of the reasons earlier set out that the mother has not changed her views, does harbour dislike of the father and his family and would be likely to use the children to such an extent that there will be allegations in the future. I make that finding even though I intend to give the mother unsupervised time with the children. In my view, the amount of time that the father has and the way he will raise these children, lends itself to overcoming the emotional problems for the children even if their mother does raise the allegations again.
The Independent Children’s Lawyer supported the submission of the father that based on the history of the parties it would not be in the children’s best interests for the parties to have equal shared parental responsibility. To date, the mother has at best, ignored the father. I accept those submissions.
Accordingly, I make the orders set out at the commencement of these reasons on the basis that they are in the best interests of the children and otherwise proper.
I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 6 November 2013.
Associate:
Date: 6 November 2013
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Natural Justice
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Procedural Fairness
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