Knibbs and Knibbs
[2010] FamCA 446
•28 May 2010
FAMILY COURT OF AUSTRALIA
| KNIBBS & KNIBBS | [2010] FamCA 446 |
| FAMILY LAW – CHILDREN – BEST INTERESTS – Whether sexual abuse – Whether unacceptable risk of sexual abuse – Finding made that no sexual abuse occurred – No unacceptable risk of sexual abuse – Parental responsibility –Determination made that equal shared parental responsibility is in children’s best interests – Equal time – Determination that equal time with each parent is in children’s best interests – Orders made accordingly |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA |
| B and B (1993) FLC 92-357 M and M (1988) 166 CLR 69 Mazorski & Albright [2007] 37 FamLR 518 |
| APPLICANT: | Ms Knibbs |
| RESPONDENT: | Mr Knibbs |
| FILE NUMBER: | BRC | 2169 | of | 2009 |
| DATE DELIVERED: | 28 May 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O'Reilly J |
| HEARING DATE: | 11, 12, 15, 16, 17 & 18 February 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr O'Meara |
| SOLICITOR FOR THE APPLICANT: | Mark Treherne & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Selfridge |
| SOLICITOR FOR THE RESPONDENT: | McMillan Kelly & Thomas Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Hogan |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O’Neill Legal Aid Queensland |
Orders
IT IS ORDERED
Parental responsibility
The parties have equal shared parental responsibility for N born … April 1999 and S born … February 2003 (the children) in relation to the major long-term issues concerning them, including their education both current and future, religious and cultural upbringing, health and any changes to their living arrangements that may make it significantly more difficult for them to spend time with the parties or either of them.
In the exercise of their equal shared parental responsibility concerning the children in relation to decisions as to any major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions.
If after consultation joint decisions are not able to be made as to an issue or issues the parties jointly are to consult a family law dispute resolution practitioner to assist them to resolve such issue or issues.
The parties each be responsible or the children’s day to day care while the children are with each of them.
Living arrangements and changeovers
The children live with each of the parties on the equal time week about basis including in relation to the March/April, June/July and September/October school holiday periods but not the Christmas school holiday periods.
In relation to the Christmas school holiday periods the children spend the first half in or commencing in even years and the second half in or commencing in odd years with the mother and the second half in or commencing in even years and the first half in or commencing in odd years with the father, with the first half to commence after school on the last school day of term 4, the second half to commence at 9.00am on the middle day of the Christmas school holiday period or if no middle day at 9.00am on the day following the midpoint and end on the morning of the first school day of the next school term
Changeover occur during school terms on Fridays after school at the children’s school, and except as provided in paragraph 6, at all other times at the parties’ homes with the party with whom the children have been spending time to deliver the children to the other party at the commencement of time and that party to deliver the children back at the conclusion of time.
Special days
If the children are not already spending time with the mother on Mother’s Day, they spend time with her on that day from 9am until 5pm.
If the children are not already spending time with the father on Father’s Day, they spend time with him on that day from 9am until 5pm.
The children spend from 3pm on Christmas Day until 3pm on Boxing Day with the party with whom they are not spending the first half of each of the Christmas school holiday periods.
The children (both) spend 2 hours on the birthday of either of the children with the party with whom they are not then spending overnight time, unless a child’s birthday is a changeover day, and if no other period be able to be agreed between the parties the 2 hours be from 4.00pm until 6.00pm.
Telephone communication
The parties are to permit the children to have liberal telephone communication with the party with whom the children are not spending time, including on special days.
Parties’ ability to make other arrangements in writing
Despite these orders, the parties may make other arrangements in relation to the children spending time with each of them, provided that such other arrangements are agreed in writing.
Parties’ communication
All written communications between the parties concerning the children, including in relation to the parties’ equal shared parental responsibility, be by email or text message and not contain any subject matter other than as may relate directly to the children and the carrying out of these orders.
To facilitate such written communication the parties as soon as practicable provide each other with an email address and/or SMS text message service number and give written communication of any change of such within 24 hours of any change.
Information
The parties must notify each other as soon as practicable of any serious accident or injury concerning the children or either of them.
The parties must notify each other of the names and addresses of any treating medical or health practitioner including any counsellor or psychologist the children attend and any hospital the children attend and authorise such to provide to the other at his/her request and expense any information or reports concerning the children provided that this order is sufficient authorisation to do so.
The parties must authorise the children’s school to provide each other at his/her request and expense information concerning the children, copies of school reports concerning the children and circular or other written information concerning school activities usually provided to parents of children at the school provided that this order is sufficient authorisation to do so.
Attendance at the children’s school
The parties may attend any school or extra curricular activities usually attended by parents such as parent teacher interviews, concerts, sports days and the like.
Physical discipline
The parties must not us physical discipline in relation to the children nor permit any other person to do so.
Non denigration
The parties must not denigrate each other or permit other persons to do so in the presence or hearing of the children.
Adult issues
The parties must not discuss adult issues with or in the presence or hearing of the children and use their best endeavours to ensure that other persons do not do so.
Allegations in these proceedings
The parties must not raise with the children the substance of the allegations in these proceedings.
Mr R
The parties must ensure that the children do not come into contact with or have any communication with Mr R.
All other orders discharged
All other orders concerning the children are discharged.
All other applications dismissed
All other applications concerning the children are dismissed.
Independent children’s lawyer
The independent children’s lawyer arrange for the children to meet with Mr P, family consultant, to enable him to explain to them these orders concerning their living arrangements.
The independent children’s lawyer provide a copy of these orders to Mr I, Principal, V State Primary School.
The independent children’s lawyer not be discharged for 12 months.
Liberty to apply
The parties and the independent children’s lawyer have liberty to apply by arrangement directly with the Associate if confusion should arise as to the intended operation of these orders or if any of them is ambiguous or unclear so as to require clarification.
IT IS NOTED that publication of this judgment under the pseudonym Knibbs & Knibbs is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 2169 of 2009
| MS KNIBBS |
Applicant
And
| MR KNIBBS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings concern N born in April 1999 now 11 years (N) and S born in February 2003 now 6 years (S) whose parents are Ms Knibbs (the mother) and Mr Knibbs (the father).
The mother, by her application filed 12 March 2009, sought orders that the children live with her, she have sole parental responsibility for them and the children have no contact or communication with the father. By her summary of argument however filed 10 February 2010 the mother sought orders that the children live with her, she have sole parental responsibility for them, the children spend supervised time with the father at the Toowoomba Contact Centre, or such other place and with supervision by whom as the Court may determine or the parties may agree, but failing agreement each alternate weekend for 6 hours between 9.00am and 4.00pm for two consecutive days, information and non-denigration orders and that the children not spend time with or communicate with Mr R, who is a person with whom the mother has had and “on off” relationship between early 2007 and mid January 2010. In final submissions the mother, by her Counsel, proposed in the alternative that if I should find that sexual abuse of the children by the father has not occurred and that there is no unacceptable risk of sexual abuse there be an order for equal shared parental responsibility and equal time on the week about basis but, having regard to some concerns expressed by the mother as to whether S would take some time to settle in to being away from her for a full week at a time there be an introductory period of six months of the children spending in each fortnight 8 nights with the mother and 6 nights with the father.
The father, by his response filed 6 April 2009, sought orders that the children live with him, the parties have equal shared parental responsibility, the children spend time with the mother as may be agreed between the parties but failing agreement on alternate weekends from after school Friday until 5.00pm Sunday, half of the school holidays and time on special days, there be telephone communication on each Wednesday at 5.30pm and that the children not spend time with or communicate with Mr R as well as ancillary orders concerning information, non-denigration and other matters. In final submissions however, the father, by his Counsel, abandoned the claim that the children live primarily with him and proposed instead, in order to avail the children opportunity to move between the parties’ households, a shared care arrangement, and that to facilitate that the orders provide a week about arrangement with changeover to occur on Friday afternoons at school.
During final submissions, it was encouraging to see the mother and the father passing notes to each other in relation to whether, if there be an equal time arrangement it be week about throughout the full year or week about only during school terms with the holidays shared on the first half second half basis. The parties’ discussions, assisted by their lawyers, resulted in agreement that if I should determine in favour of an equal time order on the week about basis, it apply during school terms and for all of the school holidays except the Christmas school holiday periods in relation to which the parties would prefer first half/second half on the even year/odd year rotating basis but with special provision that the children spend 3.00pm Christmas Day until 3.00pm Boxing Day with the party with whom the children are to spend the second half of the Christmas school holiday period.
The independent children’s lawyer, in final submissions, proposed that if I should determine that the father has not sexually abused the children and that there not be unacceptable risk of sexual abuse there be orders for equal shared parental responsibility and equal time on the week about basis, but in respect of the Christmas school holiday period as jointly proposed by the parties.
It was common ground between the parties that the orders should include specific reference to Mother’s Day, Father’s Day and other special days, that changeover during school terms occur at the children’s school, and otherwise, save for the commencement and conclusion of the Christmas school holiday period, also to occur at the children’s school, changeovers occur at the parties’ homes, with the parties equally sharing changeover responsibility for either the commencement or the conclusion of the children’s time with each of them. It was common ground also between the parties that there should be an order that each of them must ensure that the children do not come into contact with or have any communication with Mr R. It was common ground also that there should be an order that the parties not raise with the children the substance of the allegations in the proceedings.
It was common ground also that the order should include orders typically made in relation to information, non-denigration and like matters.
Although not the subject of specific reference in the parties’ final submissions, I took it to be implicit, having regard to the extent of their agreement, that there be an order for liberal telephone communication between the children and the party with whom at any stage they are not spending time.
Background matters
The mother is 44 years and the father 47 years. They married in February 1999, separated in August 2005 and were divorced in December 2006.
The parties both live at D, a small rural town between Brisbane and Toowoomba, the mother in a house property owned by her and the father in a rented house property. The parties’ homes are a very short distance apart, about five minutes walking distance. Each home has three bedrooms and all amenities.
The children attend the V State Primary School, H in Year 6 and S in Year 2.
The mother has two daughters from a previous marriage, K 25 years and A 23 years. K is married. Both K and A are in employment. Despite the age differences between K and A on the one hand, and H and S on the other hand, the mother’s four children collectively regard themselves as a close sibling group referring to each other as “my brother” and “my sister” rather than “my step brother” or “my step sister”. K and A, after the completion of their evidence, remained in the courtroom for the duration of the hearing, showing support for the mother and concern for the children.
The father has not repartnered.
The mother, between early 2007 and mid January 2010, as mentioned, was in an “on off” relationship with Mr R. The cause of the break in mid January 2010 was an indecent text message which Mr R had sent to K, which was read into the record, but which however is not necessary to set out. At the hearing, the mother was adamant that she would not resume any relationship with Mr R. He, on the contrary, said that he would like to think he could resume his relationship with her, after the hearing, or if not a relationship at least their friendship.
The mother is not in employment.
The father is in casual employment at a property about 20 minutes drive from D. He said in evidence that he is able to regulate his work hours such that, if the children should spend week about equal time with him he would be able to be with the children before school, drive them to school, collect them after school and be with them also in the afternoons and evenings after school.
At the time of the trial, the children were living with the mother and spending supervised time with the father.
Other history and history of contact since the separation
On 27 March 2006, after agreement reached in December 2005, consent orders were made that the parties share parental responsibility for the children, they live with the mother, and spend time with the father as may be agreed but failing agreement on alternate weekends, half holiday time and special days.
It appears, on all of the evidence, that until January 2009, with the exception of a brief period in late 2006 which I will mention below, this regime worked very well with the parties having amicable communication and the children, by agreement, spending more liberal time with the father than provided in the orders. The evidence included that at times the children would telephone the father to “come to dinner” with the mother and the children at the mother’s home, which occurred, and that at changeover when the children were to commence spending time with the father the mother frequently would be invited in for “a cup of tea” and that the children were comfortable with the circumstance of relatively free movement between each household and that their parents were able amicably to interact with each other.
In late 2006, as will be seen, S made disclosures to the mother concerning conduct by the father which resulted in investigation but no further disclosures and the conclusion ultimately that having regard to her age and other circumstances there was no protective regime such that time with the father resumed in March 2007.
On 4 January 2009 S made further disclosures concerning the father and on 8 January 2009 N made disclosures concerning the father, with the consequence of the commencement of these proceedings on 12 March 2009 by the mother. The proceedings were designated Magellan on 16 April 2009. On 17 July 2009, Murphy J made interim consent orders for the children to spend supervised time with the father and other orders including that the parties were restrained from taking the children to any medical practitioner, counsellor or other professional for the purpose of assessment, examination or counselling related to the alleged sexual abuse of the children unless leave had been given by the Court for the assessment, examination or counselling.
Ms Hogan of Counsel, for the independent children’s lawyer, provided a schedule of time the children spent with the father up to 4 January 2009, and the supervised time after 25 July 2009 pursuant to the interim consent orders, the schedule being agreed by Mr O’Meara of Counsel for the mother and Mr Selfridge of Counsel for the father. The schedule is ex 19, to which I would refer without setting out.
Notice of Child Abuse or Family Violence
On 12 March 2009, the mother filed a Notice of Child Abuse or Family Violence, containing the following at Part F:
The father [Mr Knibbs] –
It has been claimed by the children [S] and [N] that the father has touched them on their private parts.
The evidence
The mother relied on evidence by herself, her daughters K and A, Dr M, general practitioner, Ms B, consultant psychologist, and Ms F, a friend.
The father relied on evidence by himself, Ms T Knibbs, his sister in law, and Ms PT, the mother’s adoptive mother and thus the maternal grandmother.
The independent children’s lawyer relied on evidence by Mr P, the family consultant engaged in the matter, Dr H, paediatrician, Dr G, psychiatrist, Dr PL, clinical psychologist, Mr I, principal at the V State Primary School and Mr R, who attended under subpoena.
In addition, the evidence comprised the documentary exhibits (exs 1-22) which included a Magellan Report prepared by the Department of Communities (ex 1), several police video taped interviews and transcripts relating to them (exs 3-8 and 12-15), a transcript and DVD of the mother’s recording on her mobile telephone of S’s disclosures on 4 January 2009 (exs 10 and 11, to be read also with annexure MLK7 to the mother’s primary affidavit) and a bundle of agreed documents selected from the documents produced pursuant to subpoenae (ex 2).
It is not necessary to refer to all of the evidence. If in these reasons I should not refer to the evidence of a particular witness or parts of the evidence of any witness it ought not be inferred it has been overlooked. All of the evidence has been considered carefully.
The disclosures made by S and N
S and N have made several disclosures to several persons.
Ms Hogan, helpfully, has provided several schedules summarising the children’s allegations, cross referenced to the evidence, which Mr O’Meara and Mr Selfridge agreed comprise a comprehensive summary of the disclosures extracted from the evidence. The schedules are seven in number and comprise ex 20 being respectively (as numbered 1-7):
· S – allegations of sexual abuse made to the mother;
· S – allegations of sexual abuse made to persons other than the mother;
· N – allegations of sexual abuse made to the mother;
· N – allegations of sexual abuse made to persons other than the mother;
· Mother’s reporting of allegations made by S and N;
· S – allegations of sexual abuse (comprehensive chronology);
· N – allegations of sexual abuse (comprehensive chronology).
It is convenient to set out the first four of these. The fifth I would incorporate by reference but need not set out. The sixth and seventh contain the same information as the first four, but grouped chronologically rather than by identification of the persons to whom the various disclosures were made. For present purposes thus the first four schedules it is convenient now to set out.
[S] – Allegations of sexual abuse made to Mother
Date Particular Source Sometime in 2006
Late 2006
Mother says [S] said to her : “my fanny is poisoned” and also something about her Father rubbing up against her
Mother says [S] said : ‘Daddy said my fanny is poisoned and Daddy moved backwards and forwards on me when I was on my back’
M affidavit filed 12 March 2009
Annexure “MLK10” (being Statement to Police dated 10/1/09)
M affidavit filed 22 January 2010
Para 21 (page 4)
Late 2006 Mother says [S] told her that the father was touching her inappropriately.
True copy of letter from previous solicitor marked ‘MLK5’
M affidavit filed 12 March 2009
Para 51 + “MLK5”
23 November 2006 Mother’s solicitor (Gallagher Legal) write to father’s solicitors
Mother instructs that [S] told her that:
· Father smells her vaginal area
· Father touches her vagina
· Touches her bare bottom
· Father has “a big willy”
· Father “glides” her backwards and forwards repeatedly in a rhythmic fashion while she lies face down on the bed
“MLK5” to M affidavit filed 12 March 2009 4 January 2009 (Sunday) Children with father (pursuant to Orders)
· [S] telephones mother and says that she wants to come home : [M account]
· Mother says [S] brought her into the father’s house – pointed out a magazine showing a girl with a bikini
· Mother takes [S] with her – [N] remains with father
· Mother says that as they leave the father’s house [S] tells her (recorded on her mobile) that the father had been touching her (see Transcript marked “MLK7”)
M affidavit filed 12 March 2009
Para 65 & 66 + “MLK7”
M affidavit filed 22 January 2010
[S] 50-52 (page 5)
5 January 2009
(Monday)
Mother and [S] go to [Mr R’s] house – conversation during which [S] alleges that after toileting the father ‘uses her’ to clean himself – wipes urine and faeces on her
[S] says that the father touches her – points to genitals (front and back)
M affidavit filed 12 March 2009
Annexure “MLK10”
[Police Statement of [Mr R] dated 10/1/09]
9 January 2009 Mother says [S] said: ‘When I have a baby I am not going to give Daddy the baby because he will touch their private parts’ M affidavit filed 12 March 2009
Part of Annexure “MLK8”
10 January 2009 Mother says [S] says to Mother and [Mr R]:-
“Daddy draws on my private parts with red texta and he lies on top of me”
M affidavit filed 12 March 2009
Para 112
20 February 2009 Mother says that, while having a bath, [S] told her that the father had inserted a stick between her legs and her private parts
· [S] tells mother that the father told her to lift up her skirt and pull down her “knickers”
· [S] says that the father said “Take that and now you can go home to your mother”
· [S] told the Mother she screamed “I screamed, Didn’t you hear me Mum, it hurt. I wanted to walk home to you Mum”
M affidavit filed 12 March 2009
Para 116
February / March 2009 “Recently” [S] stated to Mother and [Mr R] that “When I have a baby I’m not going to give it to Daddy to look after because he will touch their private parts” M affidavit filed 12 March 2009
Para 113
10 March 2009 [S] drew red texta on her nipples and private parts down below and told me it was blood and that’s what her father did M affidavit filed 22 January 2010
Para 53 (page 5) + Annexure ‘A’
26 June 2009 Mother says [S] was masturbating on the couch – she asked what she was doing and [S] replied this is what daddy does and the people in daddy’s magazines, she also said that she has to do it at school in the playground and her friends think I am silly M affidavit filed 22 January 2010
Para 53 (page 5) + Annexure ‘A’
19 August 2009 Mother says that she was reading to [S] whilst lying on her bed – [S] straddled her legs and said “I’ll show you what Daddy did” and continued to ride the mother’s legs in a rhythmic fashion – [S] also said that her father’s willy touched her in her private part M affidavit filed 22 January 2010
Para 53 (page 5) + Annexure ‘A’
23 August 2009 Mother says [S] disclosed to her that her father’s willy was like a fat sausage and he pulled it back and put it near her private parts and wriggled around M affidavit filed 22 January 2010
Para 53 (page 5
23 or 24 August 2009 Mother instructs her solicitors that on Sunday 23 August [S] told her that ‘Dad had a big willy like a fat sausage’ and ‘he pulled it back and put it near my private parts and wriggled around’ and further [S] said “it was the pencil that made me bleed’ M affidavit filed 9 February 2010
Para 30 and Annexure “MLK1”
25 August 2009 Mother says [S] drew picture of herself and her father in bed, she drew red texta defining blood in between her legs M affidavit filed 22 January 2010
Para 53 (page 5) + Annexure ‘A’
31 August 2009 Mother says [S] tells her (amongst other things) that the father used to play with [N’s] nipples – one day they were bleeding – [N] was crying and they tried to run home
Mother says that [S] said that [Y] was touching her with the father – the father collected from the blood from her in a container
Mother said [S] drew her father’s genitals and her and [N’s] nipples depicting the blood from them
M affidavit filed 22 January 2010
Para 53 (page 5) + Annexure ‘A’
1 September 2009 Mother says child mentions again [K] touching her private parts as well as her father M affidavit filed 22 January 2010
Para 53 (page 5) + Annexure ‘A’
2 September 2009 Mother says [S] told her that [Y] was involved with a pencil etc and her father hurting her private parts
M affidavit filed 22 January 2010
Para 53 (page 5) + Annexure ‘A’
6 September 2009 Mother says [S] tells her that [Y] rubbed his private parts on her private parts so did dad M affidavit filed 22 January 2010
Para 53 (page 5) + Annexure ‘A’
17 December 2009 Mother says [S] says to her that she feels guilty – she lied
Mother says [S] said ‘Dad didn’t touch me’
M affidavit filed 22 January 2010
Para 55 (page 6)
17 January 2010 Mother and the children visit [K] at [K’s] [V] house – Mother says that she says to [S] “Do you think you should explain to [K] what the word ‘guilty’ means” – [S] did not respond
[K] said “[S] it is important to always tell the truth”
[S] said “Dad did touch me”
M affidavit filed 22 January 2010
Para 57 (page 7)
[S] – Allegations of sexual abuse made to persons other than Mother
Date Person to whom made Particulars Reference Late 2008 [K] ‘Dolly’s safe here, but she can never sleep over at dad’s place, she can sleep over at your place’
When asked why she (dolly) can’t sleep at daddy’s place, [S] said “when I am not looking daddy will touch my dolly’
Para 29
Affidavit of [K] filed 25/1/10
7/1/09 Senior Constable [W] “Dad was touching me in the private bits”.
“I had my swimming undies on and he just touched it again at the river...”
“The father comes up [upstairs at the mother’s house] and does it.”
“When [S] came back from her father’s last time and she spoke to her mother she and her mother were talking about dad, how he goes to the toilet and wipes his private bits on her – he wipes it everywhere on my legs and sometimes on my hands – his poo and his wee sometimes – on his legs.”
“He wipes his private bit on her leg.”
“He puts his bottom on her and wipes his bottom on her”.
“Dad was touching me everywhere; Dad was touching me just on my hand and drawing on me”.
Exhibit 7 Ln 60/Pg 4
Exhibit 7 Lines 90-92, Page 5
Exhibit 7 Page 9
Exhibit 7 Page 12
Exhibit 7 Page 13
Exhibit 7 Page 13
Exhibit 7 Page 14
8/9 January 2009 [A] [S] said ”Daddy has touched me in the private parts”.
Mother then said “[S] why don’t you tell [A] what you told me earlier”.
[S] then said that “Daddy’s been touching me” – when asked where, [S] pointed to her genitals.
Para 5 Affidavit of [A] Filed 25/1/10 14/1/09 Senior Constable [W] “He was poking a pencil up in my private bit”.
“He poked a pencil in my bum”.
“He poked her again with the pencil at [EM’s].”
Exhibit Page 2
Exhibit Page 13
Exhibit Page 15
Post January 2009 [A] ”Daddy touches her private parts.
Daddy touched me down there.
Daddy used his finger to touch her.
Daddy has ‘rude magazines’ in the cupboard or wardrobe.”
[Volunteered in general conversation.
Para 12
Affidavit of [A] Filed 25/1/10
23/2/09 Relationships Australia – Victims Counselling and Support Services Case Notes [S] said her dad “hurt” her – when asked how he hurt her she said he “put a pencil in me down there” [pointing to between her legs] and said “take that”.
She said her father was happy – was laughing and that it hurt her feelings that he said “take that”.
When asked how she felt she said “bad” but she wouldn’t have to see him because “[Mr R] was going to be her dad”.
Exhibit 2 Page 30 9/3/09 Relationships Australia – Victims Counselling and Support Services Case Notes Said again Dad had “poked her” but then began to tell the counsellor about her mother’s birthday. Exhibit 2
Page 30
7/4/09 Dr [M] When asked what had been happening with her dad, [S] said that ‘Dad would touch her down” referring to her genitals
Happened lots of times
Whenever he touched her genitals, she complained
Dad would touch her and he wouldn’t stop
Paras 9-13
Affidavit of [Dr M] filed 21/1/10
28/4/09 [Ms B] When asked why she had not been seeing her Dad, [S] said that she wasn’t allowed to see her Dad.
[S] said that she didn’t feel safe there because Daddy had touched her private parts – referred to her genitals using her hand to point between her legs.
[S] showed me on her body where she alleges her father touched her and pointed to her genital area – when asked if she meant the part of her body where “wee” comes out of she said “yes” and then referred to the area as her “wee wee bum”.
[S] said words to the effect “Dad had touched my wee wee bum while I was lying on my bed and put his hands all over my body:
Para 10
Affidavit of [Ms B] filed 4/2/10
Para 11
Affidavit of [Ms B] filed 4/2/10
Para 12
Affidavit of [Ms B] filed 4/2/10
Mid 2009 [K] ‘Daddy is in trouble, He’s been touching me and [N]
When asked ‘where;, [S] replied: ‘In my private parts’
When asked how when and long this had been going on for, [S] said’ ‘at daddy’s home, Always at daddy’s house at sleep time’
Para 36
Affidavit of [K] filed 25/1/10
16/6/09 [Ms B] [S] said that her dad had “been touching her with pencils”.
[S] said her father had put things in her “wee wee bum” and pushed them in which hurt her.
[S] said that he puts pencils and pens in her “wee wee bum”.
Para 21
Affidavit of [Ms B] Filed 4/2/10
18 /6/09 [Mr P]
(Family Consultant)
Father hurt them
Happened at Dad’s house in his bedroom at night
Both children in the same bed
[S] sleeping in pyjamas
Happened more than once
Para 36 Report 30/6/09 [Ms B] [S] said her father had been telling her to rub her private parts on the couch. Para 24
Affidavit of [Ms B] Filed 4/2/10
14/7/09 [Ms B] [S] said that her dad had “been touching her with pencils”.
[S] said her father had put things in her “wee wee bum” and pushed them in which hurt her.
[S] said that he puts pencils and pens in her “wee wee bum”.
Para 21
Affidavit of [Ms B] Filed 4/2/10
14/7/09 [Ms B] [S] tells Ms [B] that her father looks at magazines with ladies like that [ladies in bikinis] and with no clothes on – referred to this as “sex things”.
[S] said her father made her look and that [C] (Dad’s friend) was there too and Dad was laughing.
[S] said her father would give her kisses and cuddles and would lie in bed with her and touch her body and say things such as “kiss me baby”.
[S] said she felt funny sometimes and when it happened it made her feel yucky and a bit scared.
Para 25
Affidavit of [Ms B] Filed 4/2/10
Para 26
Affidavit of [Ms B] Filed 4/2/10
Mid 2009 [K] When asked about whether she liked her room and bed at her father’s house, [S] said “yeah but we all sleep together in Dad’s bed”.
When asked where [N] was at that time, [S] said “he either plays or is outside”.
[S] said “Daddy touches me on the bed with the rope. Sometimes I get tied up.”
Para 37
Affidavit of [K] filed 25/1/10
Beginning January 2010 [K] [S’s] mother said to [S] “would you like to talk to [K] about feeling guilty about dad”.
[S] said to [K] “I feel guilty”.
[K] asked [S] “What does guilty mean”.
[S] said “I don’t know”.
When [S] was asked what she felt guilty about, [S] said “Dad touching me”.
[K] said to [S] “Did he or didn’t he” – [S] said “the first one”.
[K] asked [S] “So he did?” and [S] said “Yes”.
[N] – Allegations of sexual abuse made to Mother
Date Particular Source 8 January 2009
(Thursday)
Mother says she telephones the father and asks to meet at the […] car park at [D] with [N]
Mother says she says to [N] in the car “Mummy knows what’s been going on. [S] has told me everything. You don’t have to worry. Mummy won’t let anything happen to you again”
Mother says that on collecting [N] she said “Mummy was very sad last night, I was worrying about you.”
Mother said “ You don’t have to worry anymore. [S] has told me everything and mummy is not going to let anything happen to you again. You know what I mean. I know daddy has been touching your private parts.”
[N] said “No he hasn’t.”
M Affidavit filed 12 March 2009
Para 72
M Affidavit filed 12 March 2009 Para 74
M Affidavit filed 12 March 2009
Annexure ‘MLK10” (Police statement dated 10/1/09)
8 January 2009
(as the day went on)
Mother says [N] said to her that he had told her in the past that his father had been touching him (Mother says that she has no memory of this and would have thought that it would be something that she would remember) M Affidavit filed 12 March 2009
Annexure ‘MLK10” (Police statement dated 10/1/09)
8 January 2009
(on way to Brisbane)
Mother says [N] says to her :”I go to roll over but then daddy rolls me back again and plays with my private parts”. M Affidavit filed 12 March 2009
Annexure ‘MLK10” (Police statement dated 10/1/09)
9 January 2009
(Friday)
Mother says [N] sits down and writes his thoughts on [hotel] letterhead M Affidavit filed 12 March 2009
Annexure ‘MLK10” (Police statement dated 10/1/09)
8/9 January 2009 Mother says [N] writes text message on [A’s] mobile telephone M Affidavit filed 12 March 2009 Para 77 Later in week (perhaps starting 8/9 January 2009) Mother says [N] told her (and Mr [R] and [A]) that the father had been touching his ‘nelson’ (not a word the mother has used for ‘penis’) M Affidavit filed 12 March 2009
Para 79
[N] – Allegations of sexual abuse made to persons other than Mother
Date Person to whom made Particulars Reference 8/9Jan 2009 [K] “Dad plays with my Nelson” pointing to his genitals.
We ([A]) and [N] had a “brief chat” about what happened with [S] and [the father] – [A] asked [N] if this had ever happened to him and he replied with “Dad plays with my Nelson” – he said this was happening around the time he was playing rugby.
[N] wrote on [A’s] IPhone: “Daddy touched me in the private part and I rolls away but he rolls me back over…”
Para 6
Affidavit of [A] filed 25/1/10
Para 7
Affidavit of [A] filed 25/1/10
Para 9
Affidavit [A] filed 25/1/10
10/1/09 Senior Constable [W] “I was away with him for three weeks and Mum took me away and now I won’t be able to see him. Mum said I have to get away for a while – Dad was touching me in the private bit.
He was touching me on the private bit and I rolled over but he rolled me back over”.
“He was touching my private bit, his hand was down near my willy – his hand was on top of my undies.
“He did the same thing last year and last week.”
When asked to say what had happened last week, [N] said “he played with my willy”.
“That no-one else was there at the time because [S] was up at her mother’s.”
“Two weeks before this the father had his hand on top of my undies and was playing with my willy”..
Exhibit 13
Page 3
Exhibit 13
Page 4
Exhibit 13 Page 6
Exhibit 13 Page 7
Exhibit 13 Page 8
Exhibit 13 Page 10
17/2/09 Relationships Australia – Victims Counselling and Support Services Case Notes [N] said he wanted to see his father but “understood” why that was not possible.
When I asked if he knew why he said “he touched my private parts”.
When asked how he felt he said “bad” and “angry at everyone”.
That he felt angry because he “wanted to see his dad”.
Exhibit 2
Page 29
9 /4/09 Dr [M] [N] explained that his Dad would push his hand under his underwear (‘dad would put his hand under my undies’)
It had happened before
Paras 15 & 16
Affidavit of [Dr M] filed 21/1/10
27/4/09 Dr [M] [N] said he was anxious because of what had happened to him in the past
[N] said his dad touched him and it worried him
[N] said dad was upsetting him and he was anxious about what had happened to him
[N] referred to the abuse as ‘what dad was doing to me’
Para 26
Affidavit of [Dr M] filed 21/1/10
18 /6/09 [Mr P]
(Family Consultant)
Father was touching them
Father didn’t really hurt them
Happened at Dad’s house in his bedroom at night – both children in the same bed
[N] had undies on and dad had boxers and no shirt
‘Touch’ has happened more than once
Para 36 Report Mid 2009 [Ms F] [Ms F] said – “[N’s] dad is a bad man and touched the kids where he should not have done – in naughty places. His father was looking at dirty magazines and porn movies and pictures over there and he touched the kids where he should have done.” Para 4
Affidavit of [Ms F] filed 9/2/10
14/7/09 [Ms B] [N] said his father was touching his “private parts” – used the word “penis” when referring to his genitals.
[N] said he likes seeing his dad but he didn’t always feel safe and said he was worried about being “hurt again”.
When asked why he didn’t feel safe, [N] told Ms [b] it was because dad had touched his penis and nipples.
[N] said he was not allowed to see his father because of his “touching” – said he misses his father and has fun when he is with him.
Para 17
Affidavit of [Ms B]
Filed 4/2/10
Para 16
Affidavit of [Ms B]
Filed 4/2/10
About November 2009 [K] Asked whether anyone had made him feel uncomfortable or touched him inappropriately
‘No’
Asked whether he was sure, is there no-one else
Replied ‘no, only dad’
Para 32
Affidavit of [K] filed 25/1/10
Principles relevant to parenting orders
Children’s best interests paramount
Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.
Objects and principles underlying objects
Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
·and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
·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
·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
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children; and
·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). Determining what is in a child’s best interests
Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.
Parental responsibility
Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.
Equal time/substantial and significant time
Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.
Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays;
and:
·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and
·allows the child to be involved in occasions and events that are of special significance to the parent,
although regard may be had to other matters.
Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
·how far apart the parents live from each other; and
·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and
·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
·the impact that an arrangement of that kind would have on the child; and
·such other matters as the Court considers relevant.
Prior parenting plans
Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.
Other provisions
The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.
Weight
Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.
Principles relevant to findings of sexual abuse
In M and M (1988) 166 CLR 69 at 77, the High Court said:
[T]here are strong practical reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In order to make a positive finding that sexual abuse has actually taken place, the Court must be satisfied on the balance of probabilities, but bearing in mind such matters as the seriousness of an allegation, the inherent unlikeness of an occurrence of a given description and the gravity of the consequences flowing from a particular finding, which satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences. Briginshaw v Briginshaw (1938) 60 CLR 336. Hilton v Allen (1940) 63 CLR 691. Reifek v McElroy (1965) 112 CLR 517. M and M (1988) 166 CLR 69 at 76-77. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-1, in which the High Court, in relation to the “ordinary standard of proof” required in civil litigation said that nonetheless the “strength” of the evidence required “may vary according to the nature of what it is sought to prove” and that authoritative statements such as “clear or cogent or strict proof” are to be understood in this context and not as directed to the standard of proof.
Section 140 of the Evidence Act 1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In Johnson & Page (2007) FLC 93-344 the Full Court observed, at [70], that although cases such as Neat were decided before the introduction of the Evidence Act, the principles in them have been applied in decisions after its introduction. In short, it seems plain that s 140(2) has “picked up” the earlier principles, which thus are useful in its application.
In several cases, including since the introduction of the Evidence Act, the Full Court has made clear that in parenting cases, the grave consequences of a finding of sexual abuse cannot be overstated. See, for example, WK v SR (1997) FLC 92-787 at 84,694. Further, in Re W (Sex abuse: standard of proof) (2004) FLC 93-192 the Full Court at [18] referred to the need to be satisfied on the balance of probabilities that “something has actually occurred”, and said:
18. … Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
In Nikolakis & Nikolakis [2010] FamCAFC 52, the Full Court at [89] approved the following observation in Murphy & Murphy [2007] FamCA 795 at [205] per Carmody J, in relation to evidence sufficient to meet the “requisite standard”:
What is clear however, is that without the alleged victims giving direct evidence, the forensic investigation of the sexual abuse issue may well be inadequate, and the evidence insufficiently exact, definite or precise enough to meet the requisite standard. Without any independent source of substantiation or corroborative confirmation of the alleged abuse, secondary evidence of untested disclosures of alleged child victims, will rarely satisfy the court on the balance of probabilities of anything. …
Approach to the analysis of evidence relating to sexual abuse disclosures
In B and B (1993) FLC 92-357 the Full Court at 79,772 described as “logical and comprehensive” the approach of the trial Judge, Warnick J, to the evidence in that case:
His Honour then considered whether there were explanations for the children’s statements and behaviour other than sexual abuse by the husband, which he considered under the following headings:-
(a)Abuse by other persons;
(b)Children fabricating the allegations;
(c)Innocent statements misinterpreted.
His Honour, in our view, dealt with all these matters in a logical and comprehensive fashion. He then considered the nature of other evidence which was suggestive of sexual abuse having occurred … .
Although there is no binding methodology of approach to the analysis of evidence relating to sexual abuse disclosures, in particular because the facts and evidence in each case will be different, his Honour’s approach, in my respectful view, is a useful tool in the process of considering and evaluating the veracity of children’s disclosures, bearing in mind always the relevant legal principles to which I have referred.
Principles relating to unacceptable risk of sexual abuse
In determining what is in a child’s best interests, which is the paramount consideration, it is necessary to balance the level or degree of any identified risk of harm to a child from spending time with a parent or other person against the possible benefit to the child from spending time with that parent or person, and, accordingly, come to a conclusion as to where the balance lies. This is referred to, generally, as the “detriment/benefit” test, so that it is only if the level or degree of any identified risk of harm to a child from spending time with a parent or person outweighs the possible benefit to the child from spending time with that parent or person that the risk of harm is said to be an unacceptable risk.
These principles were summarised by the Full Court in B and B (above) at 79,778:
The High Court in M and M referred to the “imposing array” of tests which had been formulated by the Family Court to determine whether access to a child should be denied in such cases. The Court held that the various tests expressed endeavours by the Family Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”.
The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
“that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.” (at page 77,081)
The “unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access. (emphasis added).
Such a conclusion however may be a finding in relation to unsupervised access only. This is demonstrated by the High Court’s further statement in M and M that:-
“In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.”
Thus, a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the Court stated:-
“Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.” (emphasis added)
Therefore, if supervised access poses an “unacceptable risk” of harm (or “disturbance”), whether physical, emotional or psychological, it should not be granted.
It should be noted that the M and M “unacceptable risk” test is employed within the context of “resolving the wider issue”, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be “subservient and ancillary”. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act [now s 65E] and Brown and Pedersen (1992) FLC 92-271.
The Full Court then dealt with the Family Court’s obligation to protect children and said at 79,780:
Given the obligation to protect children from abuse, the Family Court should be careful to ensure that any order for supervised access is not attended by any risk of infringement of the child’s right to safety, in the widest sense of that word. …
In our opinion, a trial Judge who has made a finding that an unacceptable risk of sexual abuse exists, or that sexual abuse did occur, should look at the level of trauma, in the widest sense, that has been occasioned to the child or children or may be occasioned in the future, to determine whether supervised access is appropriate. If there is an unacceptable risk of the child or children being exposed to physical, emotional or psychological harm by reason of contact with the abusing parent, then an order for supervised access is not appropriate because of the Court’s obligation to protect children from such harm.
More recent Full Court cases concerning unacceptable risk have discussed the application of, but not restated, these principles. In Napier and Hepburn (2006) FLC 93-303 at [56] Bryant CJ and Kay J, however, drew attention to the importance of careful consideration by trial judges of all relevant matters before a finding of unacceptable risk is made, and at [114] Warnick J observed that once made such a finding “can come down between a parent and child like an iron gate, that no subsequent efforts can raise”.
In Johnson & Page (above) at [68] the Full Court set out, with qualified approval, an extract from the article “Unacceptable risk – A return to basics” by the Honourable John Fogarty AM (2006) 20 Australian Journal of Family Law, p 249 at pp 265-6, being a summary of the principles which Mr Fogarty identified as emerging from M & M:
1The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6The onus of proof in reaching that conclusion is the ordinary civil standard.
7But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
At [69], the Full Court noted Mr Fogarty’s observation (at p 266) that whilst it still may be convenient to refer to “the Briginshaw test” (as the High Court had in M & M, decided before the Evidence Act), “It may now be preferable to refer to the statutory formulation”, which Mr Fogarty described (also at p 266) as one “which effectively replicates that approach”.
At [71] and [72] the Full Court then said:
71We generally agree with Mr Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v JC Hutton Proprietary Limited (1990) 169 CLR 638).
72We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.
The Full Court did not elaborate on its reference to Malec, a well known case concerning the assessment of future probability rather than past fact: see at 643 per Deane, Gaudron, and McHugh JJ; and 639-40 per Brennan and Dawson JJ. However, in this context, in N & S (1996) FLC 92-655 at 82,713-5 (set out exhaustively in Johnson & Page at [66]), Fogarty J referred to the inevitability of making some effort to “quantify” the relevant risk (at 82,713):
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that Courts will have to make some effort to quantify the relevant risk. … ;
and said (82,713-4):
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.;
and further (82,714-5):
If the Court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The Court must still ask the “unacceptable risk” question. An example of this is Thomas J’s approach at 681-682:
I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. (emphasis added)
In Johnson & Page, the Full Court did not cast doubt upon these observations by Mr Fogarty. Indeed, the Full Court emphasised (at [66]) the concluding part of the passage set out above, namely that there is a requirement to ask whether the evidence establishes an unacceptable risk.
In Lindsay & Baker (2007) FLC 93-347, Bryant CJ referred with approval to [78] - [80] of the first instance decision then under appeal of Carmody J describing at [3] those paragraphs as “a useful summary of what is required”. For my part, [79] and [80] are of particular practical assistance:
79. The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.
80. Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it.
In Nikolakis & Nikolakis (above) the Full Court at [96] reinforced that the unacceptable risk inquiry involves a “real and substantial” consideration of whether or not “particular facts” raise an unacceptable risk.
The findings urged by the parties
Ms Hogan of Counsel, for the independent children’s lawyer, in her written submissions submitted that on the evidence I would not conclude that the children have been sexually abused by the father or that there is an unacceptable risk to the children of sexual abuse if they spend unsupervised time with him. In oral argument, Ms Hogan supported positive findings that the children have not been sexually abused by the father and there is no unacceptable risk to them of sexual abuse by him.
Mr Selfridge of Counsel, for the father, urged to similar effect.
Mr O’Meara of Counsel, for the mother, urged that there be the positive finding that the father sexually abused S at the V swimming area, on the day of the Amberley Air Show, by touching the outside of her swimming togs with his fingers near her vaginal area while applying sunscreen to her, and sexually abused N by touching his penis on two occasions while rolling him over in bed, the first occasion being sometime during 2009 and the second occasion two weeks before N’s police interview on 10 January 2010 being “the week before last week”, but that if I should not make those positive findings the mother did not contend that any other circumstance would warrant the conclusion of unacceptable risk of sexual abuse to the children by the father.
Findings – whether sexual abuse
Against that background, I will deal first with the two positive findings sought by Mr O’Meara, and then more generally with the other allegations and disclosures made by the children.
S – V Swimming Area
S disclosed to Police Officer W on 7 January 2009 that the father had touched her “in the private bits”. She said this was at the river when she and N went for a swim, the touch was “with his fingers”, “on top” of her “swimming undies”, before she went into the water. She said it was “near the cruiser” (the father’s Toyota Landcrusier) “and I was putting sunscreen on” but the father did not let her put sunscreen on and she had to go into the river without it. She said this occurred “about two weeks ago” and that the father “opened the door” of the crusier and “then he just touched me”: ex 7, pp4-8.
The father was asked on 21 January 2009 to attend for a record of interview and did so voluntarily: exs 14 and 15. Police Officer W told him that allegations had been made of indecent treatment by him of the children and identified initially four allegations, and later in the interview a fifth allegation. She identified the third allegation as one by S that at the V swimming area, while she was putting on sunscreen the father had touched her vaginal area, outside her swimsuit, with his fingers.
The father plainly was shocked by the allegations made, but was fully cooperative with the interview process. He said that there had been two occasions when he was at V swimming area with the children. The first was on the day of the Amberley Air Show. He said no sunscreen was applied to S on that day, that she did not have on a swimsuit but a pink T-shirt and “a little pair of shorts” and that the children had splashed around enjoying themselves. He said the second occasion was “just before Christmas” (2009) and that on that occasion the children had taken the dog for a swim, the children did not apply sunscreen and did not themselves go for a swim but rather had tied the dog’s collar to a rope so the dog could go for a swim, the rope inferentially being so that the dog would not be carried away in the water.
Before the interview between Police Officer W and the father was played in the courtroom, it having been recorded by video tape, the father had said in his oral evidence that on the occasion of the Amberley Air Show there had been “many people” at V swimming area, there were “four other adults there”, and “many friends” there, and it had been the first time that he had taken the children to V swimming area for a swim. He described the area as one of “grass and gravel” at the swimming area. He said he had stopped “at a servo” and bought sunscreen on the way, but he had not put sunscreen on S that day. He then said “Why would I want to touch [S’] little vagina?”, and “I only put it on her little face and nose”.
Mr O’Meara, in his written submissions, said that the father’s evidence was “unsatisfactory and unreliable”, and referred to the inconsistency in the father’s oral evidence that he had bought sunscreen at the service station and put it on S, which was different from his interview in which he said he had not put sunscreen on S at the river.
After the playing of the record of interview, however, when the father’s attention was taken to the inconsistencies concerning the sunscreen the father said, which I accept, that during the interview he was “sick of the shit” that was being put to him, and that maybe he had made “mistakes”. Earlier, before the record of interview was played, the father had said that during it he was in a state of shock of “all this hitting me.”
In my observation of the father during his record of interview he appeared candid, honest and genuinely shocked. He had had no prior warning on 21 January 2009 of the allegations, nor of the request for a record of interview, no time for “preparation” for it and readily participated in it voluntarily.
The father was educated to grade nine and has worked as a farm hand in and around D since leaving school. When asked as to his interests he nominated magazines such as Queensland Country Life and Fishing and Hunting magazines, and in relation to DVDs “Westerns” such as John Wayne and Clint Eastwood but “nothing girly”.
Generally, the father struck me as a man incapable of sexually abusing his daughter, such that if there had been any touch as disclosed by S to Police Officer W it seems to me that such would have been inadvertent, unintended and not sexual.
Moreover, there is no reason to doubt the father’s evidence that S was not wearing a swimsuit on the day of the Amberley Air Show but a T-shirt and “a little pair of shorts”. The father’s evidence, which I accept, is also that there were many people in the vicinity. Such venue is not likely to be a context in which a father would be likely to perpetrate a sexual touching of his daughter.
Ms Hogan, in her written submissions, at par 8a, referred to the differences between the father’s record of interview and his oral evidence as being explicable either by the father being untruthful or alternatively as the result of “the stressors under which he operated” both in the record of interview process and the cross examination process.
In my view, having observed the father very closely throughout the six days of the hearing, during his record of interview as played in the courtroom, and in particular during his cross examination, I have no hesitation in concluding that the father did not sexually abuse S at V swimming area and that the inconsistencies in his evidence are readily explicable by the “stressors” to which Ms Hogan referred.
I make this finding also against the background, in assessing the evidence as to whether the father sexually abused S on this occasion, or on any other, Ms Hogan’s careful submissions in the wider context of the matters in pars 5, 6 and 7 of her written submissions. The matters referred to by Ms Hogan provide a background context to S’s disclosures to Police Officer W on 7 January 2009 (and indeed also on 14 January 2009) to permit the ready conclusion, which I make, that by 7 January 2009 S had been groomed by the mother, wittingly or unwittingly, to make disclosures of things which did not occur.
On all of the evidence, I reject Mr O’Meara’s submission that I should make a positive finding that at V swimming area on the occasion of the Amberley Air Show the father sexually abused S and, on all of the evidence, make the positive finding that no sexual abuse occurred on that occasion.
N – “rolling me in bed” and “touching my willy”
After a Legal Aid Conference on 17 December 2008, the children were to spend time with the father from about 19 December 2008 until 12 January 2009.
S returned to the mother on Sunday 4 January 2009. On that evening, the mother interrogated S to seek that she “open up” as to the father’s sexual abuse of her. The mother recorded some of her conversation with S that evening by means of her mobile telephone: annexure MLK7 to the mother’s affidavit, and ex 10. These transcripts of the conversation show blatant leading questions by the mother of S, seemingly commencing at about 9.30pm (annexure MLK7) and continuing until beyond 10.00pm (the time specifically mentioned in track 3, ex 10). Tracks 1 and 2 of the mother’s recorded conversation with S, or rather, as it appears, part of the conversation is annexure MLK7, with tracks 3, 4 and 5 (ex 10) comprising the balance.
S’s disclosures to the mother on that Sunday evening, 4 January 2009, lead her to collect N from the father on Thursday 8 January 2009, cutting short the children’s intended time with the father which was to have continued until Monday 12 January 2009.
The mother took the children to Brisbane, and booked into a hotel.
There is no criticism of the mother in relation to her actions, having regard to S’s disclosures on Sunday evening 4 January 2009. Plainly, the mother thought that she was acting appropriately to protect the children. However, as I have observed already, it is clear that the mother, wittingly or unwittingly, had invited S’s disclosures.
This background is important having regard to N’s disclosures to the mother, and subsequently to Police Officer W and others.
At some time between the mother collecting N between Thursday 8 January 2009 and Friday 9 January 2009, apparently in the car while driving from D to Brisbane, N had made a disclosure to the mother such that, at the hotel the mother asked N to “open up” about the father and to “put his feelings down on paper”.
This process resulted in N writing on hotel letterhead the following (annexure MLK8) reproduced below:
| [Hotel] […] Street Brisbane Queensland 4000 Fax: (07) […] Brisbane 4001 Ph: (07) […] tollfree […] fax (07[…] Email […]
FASCIMALE TO mum FAX NUMBER COMPANY […] DATE 9/1/09 FROM your son [N] PAGES (inc cover sheet) 16, 17 SUBJECT football
xoxoxoxoxx NAME [N] ROOM NUMBER […] COPY REQUIRED DATE |
Saliently, N recorded that he hoped he could “open up”, so he could get a “boy guinea pig” (spelling corrected). The document shows, fairly self evidently, that the words “touching my private parts”, after the word “for”, were added after N had completed his note. In this regard, the mother expressly was asked whether she had read over N’s note to him, pointed out that he had not put in it that the father had touched his private parts and suggested that he add in those words to which the mother responded “Pretty much, yes”. At the Bar table, Counsel all agreed that the added words were not part of N’s original text.
The mother took N to the Queensland Police Service on 10 January 2009. He was interviewed by Police Officer W: exs 12 & 13. N disclosed in the interview with Police Officer W that he would not be able to see the father because “Dad was touching me in the private bit”. He said the father was touching him “on the private bit”, “and I rolled over but he rolled me back over”, and that this had occurred in the father’s bed and while N was “trying to go to sleep”. He said that he had been wearing “undies”, that the father was in “boxers”, that the father’s hand was “down near my wily”, “on top” of his undies, not underneath, and that with his hand the father “played with it”. He said the father did not say anything and nor did he, but that he “just rolled over”, “and he rolled me back” and “started playing with it again”. He said this had happened twice, “last year before football started” (it being established later that football started in February 2009) and “last week”, which N then corrected to “not last week but the one before that” and that such had been a weekday and not a weekend day: ex13, pp3-6.
The record of interview contains other information, for example, that this happened “a lot”, and that in the father’s room (which N described in detail) there is a fan. N described that at the father’s home he normally sleeps in the father’s bed, but if the father tells him to sleep in his own bed, he does. He said that he and S “sleep in there with dad” meaning, in the father’s bed.
Police Officer W asked N whether he had told anyone “what dad had done”, to which N responded “no”, “except mum”. Police Officer W asked N “when did you tell mum” and N responded “when she picked me up”, with the following then being stated by N “when she picked me up from [D], um, the day after I told her, she asked me was dad playing with your private bit and I said yes and then mum said well you will have to stay away from him for a while.”
It is not clear from this extract exactly what N had told the mother when she collected N from D on 8 January 2009. However, the mother’s own evidence is instructive, as set out in her affidavit, and summarised in the synopsis document headed N – Allegations of Sexual Abuse made to Mother, already set out above, to which I would refer in full without repetition. In particular, it appears that on 8 January 2009, the mother said to N “I know daddy has been touching your private parts” to which N responded “no he hasn’t” but that later in the day, on the way to Brisbane N disclosed to the mother “I go to roll over but then daddy rolls me back again and plays with my private parts”. Thus, the evidence would seem to be fairly plain that before N’s initial disclosure to the mother in the car on the way to Brisbane the mother had put into the child’s mind “I know daddy has been touching your private parts”, and, as is evident by annexure MLK8, had asked N to “open up” about this.
However, the child “opened up” in the hope of getting a “boy guinea pig”.
N was asked by Police Officer W “how did it stop” to which he responded “I moved over and went to sleep” (ex 13, p17) and that he “didn’t like it” when the father touched him (ex13, p18) and that he had written it down on a piece of paper saying “I wrote all the things that dad did” and that he had given the piece of paper to the mother.
N’s demeanour during the interview with Police Officer W could only be described as “flat”. Notably, when he said that the father “played with my willy” (ex 13, p7), he did not appear to be distressed or to alter his tone or presentation.
I would refer also to N’s use of the term “Nelson” rather than “penis” or “willy” in a separate conversation later in the same week with the mother, Mr R, and A, which the mother said is not a word that she has used for a penis and which, according to other evidence, may be likely to be an expression that N perhaps picked up from class mates at school. N did not say that this was a term which he had heard the father use, and, as I recall the father’s evidence, he also was unfamiliar with this expression.
The father said in evidence that N would sometimes get up during the night to come to his bed, but that when N does that he, the father, goes to “[N’s] bed or sleeps on the lounge”. He said that N sleeps across the bed, corner to corner, and on one occasion had nearly fallen out of bed. He said N sometimes would wake wanting a drink of water and sometimes he would hear S “squeaking” in her bed. He said that on occasions he has put both N and S in his bed and then gone to the kitchen or the lounge to “make sure they’re going off to sleep”. In detail, the father described that N “sleeps on an angle”, “really stretched out”, “over three quarters of the bed”. The father said that he would put N’s head on the pillow and pull the cover over him but he has “never rolled him over”. He said N normally sleeps on his side. He said that one night N was mumbling and kicking his legs. The father put one arm under his shoulders and one arm under his knees to “slide him” back into position so that he was not lying across the bed.
He said that if S came in while N was in his bed, that is, the father’s bed, he would straighten N “to put [S] in”. He referred to N on one occasion “moaning” and “nearly falling out of bed”, being “half in it and half out” and that if he had not “straightened” him he would have “plonked to the floor”.
He described one night when two cats were fighting and the dog was “going off”. He turned on two lights. He said he put the kettle on for a cup of coffee then “[S] came out towards the bedroom and she climbed into the bed with [N].”
He said that the night he straightened N there was “no rolling” but “one movement”.
He said that if S “naps on his bed” he is not in the bed with her but goes to another bed or to “the lounge”.
Specifically, he said that at his current address, there is no fan in his bedroom, but there had been one in an earlier premises which he had occupied.
During repeated questioning, the father said to similar effect, for example, “[N] will go to my bed. If I can’t get to sleep on the lounge I will go to his bed.” He said that on the night the two cats were fighting N had come to his bedroom, that is, the father’s bedroom. Then the father put the lights on, then S woke and came walking out from her room. In his oral evidence, under cross examination in relation to his affidavit as to the times the children would come into his bed, the father was adamant that he had never remained in his bed “after the children had come in”, but had gone to “the lounge”.
The father had not seen the videotape of N’s interview with Police Officer W before it was played in the courtroom. After the father had seen the videotape of the interview, he was asked about N’s disclosure to Police Officer W that he had “touched [N’s] willy”, to which the father said very firmly “He is not telling the truth”, and that N has been “brainwashed”. He said “I think these kids have been twisted in their brain and they don’t know what they’re saying.” Later he said, also very firmly, and with apparent bewilderment “I have never touched my boy.”
The statutory matters
The children’s best interests
Having dealt with the matters of alleged sexual abuse and unacceptable risk, I will turn now to the statutory matters concerning the children’s best interests.
Section 60CC(2) – the primary considerations
Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of the children’s parents
The concept of “meaningful relationship” was examined by the Full Court in McCall & Clark [2009] FamCAFC 92 at [108]-[122]. At [119] the Full Court concluded in favour of “the prospective approach”, accepting at [121] as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright [2007] 37 FamLR 518 and Bennett J in G & C [2006] FamCA 994. Thus, the Full Court concluded at [122] that the legislation requires a court to focus on the benefit to a child of a meaningful or significant relationship.
Mr P said that he has no doubt that N and S have equally sound attachment with each parent. He said that in relation to “the concept of meaningful relationship”, what could be described as “classically fortnightly contact” with the father may not be enough to maintain the type of relationship the children desire to have with the father and which Mr P said in his opinion is necessary for the children and in their best interests. In his report, at par 62, Mr P already had observed that the children “clearly enjoy a close and meaningful relationship” with the father.
In the same paragraph however Mr P warned:
62. …It is crucial for the children’s sake that [the mother] recognises that whilst she is entitled to pursue a post-divorce life of her own it was the marriage that was dissolved in 2005 and not the children’s relationship with their father. I urge her to recognise the meaning [the father] has in her children’s lives and that to undermine or disturb this relationship is, in my opinion, tantamount to deprivation or neglect on her part. ….
There is no doubt, on all of the evidence, that the children have a meaningful relationship with the father and, applying “the prospective approach”, there is no reason to conclude that there is other than benefit to the children of continuing to have a meaningful relationship with the father.
However, although on the evidence the children also presently have a meaningful relationship with the mother, applying “the prospective approach”, whether there is benefit to the children of its continuance will depend very much, in my view, on whether after these proceedings have concluded the mother is able to accept my findings or continue to put into the children’s heads that they have been sexually abused by the father.
Section 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence
I have dealt sufficiently with matters relating to risk of sexual abuse and found there is no unacceptable risk and thus not a need to protect the children in this regard.
There is not any case of the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence in the father’s household.
There is not any case of the need to protect the children from physical or psychological harm from being subjected to or exposed to neglect in the mother’s household.
There is however a need to consider the evidence of disclosures by the children to the father of physical abuse in the mother’s household, and also consider whether the mother’s coaching of the children as to sexual abuse allegations against the father is or may be tantamount to abuse such that the children should be protected from the mother.
Ms Hogan prepared a schedule of the children’s disclosures to the father of physical violence by the mother towards them, ex 22, to which I would make specific reference, but without setting out.
It was not suggested by Ms Hogan or Mr Selfridge that these matters have the effect that the children should be protected from the mother by the children spending only supervised time with her. Thus, I need not make specific findings as to the children’s allegations. However, the mother needs to be cautious to ensure that she does not hit the children nor permit other persons to do so.
Similarly, neither Ms Hogan nor Mr Selfridge submitted that the children should be protected in the mother’s household from potential psychological harm to them if the mother should not be able to discontinue putting into their heads that they have been sexually abused by the father. Moreover, there is no expert evidence that the children have suffered or may be likely to suffer psychological harm if the mother fails to desist in this. Mr P touched upon it in the part of par 62 of his report which I have set out, however, this was more directed to the mother’s undermining of or disturbing the children’s relationship with the father rather than actual potential psychological harm for the children. Indeed, although Mr P is a psychologist, his role as family consultant did not extend to such assessment. If, in the future, the mother continues to coach the children to make disclosures of sexual abuse, which turn out to be false and have been caused by coaching by the mother, then in my view it will be imperative that the children be assessed for actual or potential psychological harm if the children should be left unprotected in the mother’s care.
In my observation of the mother in the witness box and throughout the 6 days of the hearing, it appeared to me that she had little or no insight into the potential harm to her children from such false suggestion to them.
A very troubling piece of evidence in relation to S is ex 9, which as I have said needs to be seen in colour, which I have previously described, depicting S with blood flowing from her vaginal area with the father a dark green figure nearby.
However, as mentioned there was not any expert psychological evidence at the hearing for me to consider further whether the children have or may in the future suffer psychological harm in the mother’s household, with the result that, properly, that was not urged by either Ms Hogan or Mr Selfridge. Potentially however that may be an issue for another day unless the mother is able to desist in coaching the children to make fabricated disclosures, with the consequence of further interview and further trial process.
Mr P in his family report, par 64, recommended that the Court consider making orders that “will protect either child in this matter from being negatively affected as a consequence of further forensic assessment.”
Further, Dr G, psychiatrist, in her report dated 26 August 2009 said at p10:
I have not assessed the children and I note the opinion of the Department of Child Safety in particular that further forensic examination would be harmful to the children. I think that there is a risk of systems abuse in subjecting the children to further examination and think it unlikely that any useful information would be obtained from such an examination.
Indeed, acting upon Mr P’s recommendation, by consent orders made on 17 July 2009 the parties were restrained from taking the children to any medical practitioner, counsellor or other professional for the purpose of assessments examination or counselling related to the alleged sexual abuse of the children, unless leave has been given by the Court to participate in the counselling examination or treatment.
During final submissions, I expressly raised with Counsel whether such order should be continued on the final basis. However, Counsel persuaded me that whilst such an order may be important on the interim basis until proceedings are concluded, problems may ensue if such order be made on the final basis. After discussion with Counsel as to various conditions, exceptions or circumstances of exception which might apply, I am persuaded by Counsel that such is not appropriate as a final order but be regarded as an aspect of parenting such that if in the future inappropriate parenting conduct is demonstrated by taking the children inappropriately for examination or counselling then that too would need to be a further issue for another day.
Section 60CC(3) – the additional considerations
Any views expressed by the children
Mr P’s report, 25 June 2009, appears to have been styled as an interim report, in the sense of appearing to make interim recommendations. At the time of Mr P’s interviews with the children they had not seen the father since January 2009. Thus, the views and wishes expressed by the children to Mr P were in the context of both children wishing “to see dad again”: see pars 34, 37, 38, 39, 42 and 62. The circumstance that there was no updated family report, and thus no updated evidence of the children’s views expressed to the family consultant in terms of whether they wished to live with the mother or the father, or have a week about arrangement, or some other arrangement, unfortunately was not the subject of evidence.
However, Counsel all submitted at the conclusion of the evidence and before final submissions were made that for a variety of reasons there were special circumstances within the meaning of s62G(3B)(b) so that s62G(3A) in relation to the children’s views as to their living arrangements does not apply. After hearing argument, I accepted Counsels’ submissions that there were special circumstances and directed that s62G(3A) not apply.
Importantly, as Ms Hogan submitted, Mr P’s evidence and Dr G’s evidence was to the effect that the children ought not be subjected to further forensic interviews.
Moreover, as will be seen, by the conclusion of the trial the parties had reached agreement, in effect, that if I should determine that there has not been sexual abuse of the children by the father then it would be in the children’s best interests to live with each of the parties on the week about basis, although, from the mother’s perspective, she considered it would “take time” for the children to be away from her for “a week at a time” so that in relation to S, potentially, there be a graduated introduction of week about time. The parties’ own positions thus lessened the difficulty of there not being any evidence as to the children’s views as to their living arrangements.
The nature of the children’s relationships
I have dealt sufficiently with the children’s relationships with the parties.
The children have appropriate relationships with their sisters A and K and K’s husband.
There is evidence that the children have appropriate relationships also with extended family on the father’s side.
The mother does not encourage the children to have a relationship with her adoptive mother Mrs PT.
Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent
Mr P, in his report, at the end of par 62, in the context there stated, expressed a reservation as to the mother’s ability to encourage and facilitate a relationship between the children and the father. Certainly, at the time of Mr P’s report, there was that difficulty.
During the hearing it was plain that the mother, A and K believe that the father has done to the children the things that the children have described that he has done such that, until the later stage of the hearing, the sentiment of the three women towards the father plainly was hostile.
However, to the mother’s credit, she acknowledged that if I should conclude that there was no sexual abuse of the children by the father and no unacceptable risk of sexual abuse she would not see a problem with the children spending time with each of the mother and the father on the week about basis with changeover at school on Fridays, acknowledging that she has “other acquaintances that do a similar thing.” The following passage of evidence thus is important:
Her Honour: If in this case I should determine that on all of the evidence there has not been any sexual abuse of [S] or [N] and that there is no unacceptable risk of sexual abuse of [S] or [N] if they spend time with [the father], you would support an order that there be more time for the children with [the father] than alternate weekend and half holiday I take it?
Mother: Its hard for me to say yes but yes
……..
Her Honour: If I should conclude that there was no sexual abuse of your children by [the father] and no unacceptable risk of sexual abuse so they could freely go between the home what do you would what do you say would work? 50/50 time with changeover at school on Friday’s?
Mother: I have other acquaintances that do a similar thing
Her Honour: And knowing your children as you know them do you think that is something that would work for them? – only if I should make a finding that they are ok
Mother: [N] I wouldn’t see a problem but [S] is still mummies girl and… it would take time for her to be away from me a week at a time.
Her Honour: Sure..
Mother: and I wouldn’t want it to be all of a sudden
Her Honour: and that’s where parental flexibility can come in – [S] wants to come home can she come home Thursday instead of Friday
Mother: yes, yes.
Thus, by the conclusion of the hearing I formed the view that the mother has both the willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father, provided that I should conclude that there was no sexual abuse of the children by the father and no unacceptable risk of sexual abuse, which are conclusions, which, as already explained, I have come.
The father acknowledged similarly that he has the willingness and ability to facilitate and encourage a close and continuing relationship between the children and the mother and acknowledged her importance in their lives. Indeed, initially in the proceedings the father sought that the children live with him and spend only alternate weekends and half holiday time with the mother, however, altered this to enable the children “to move between the households under a shared care type arrangement”, which plainly indicated willingness and ability on his part to facilitate and encourage a close and continuing relationship between the children and the mother.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other child or person (including any grandparent or other relative of the children) with whom he or she has been living
Mr P’s report, as I have mentioned, was prepared many months before the hearing and before the parties had formulated their final proposals.
Mr P said in his oral evidence that in his opinion the children’s best interests would be served by an equal time week about arrangement, but that there was “no differential of benefit” and “no differential of detriment” between an equal time arrangement and an 8 nights mother/6 nights father arrangement, and that indeed “any from 7/7 to 5/9 would not have differentiation from the children’s point of view”. Mr P emphasised that it is important that children have a sense of connection and of “belongingness” to each parent and that if N and S should spend only three, four or five days in each fortnight with the father that sense of connection and “belongingness” would be absent.
As to whether, in respect of S, there should be a gradual regime to equal time week about or “straight into” that arrangement, Mr P said “[S] and [N] will cope” if the week about arrangement were to commence straight away but, moreover, emphasised that there should not be differentiation between S and N in the time they spend with the father because S and N have a strong sibling dynamic or bond to the point where they have developed a “mild type of co-dependent relationship” such that in his view it is in their best interests to “keep them together”. Mr P said that S might be “slow” to adjust, but that “probably also would apply to [N]”, however, in respect of both children the adjustment would be “just a normal pattern of childhood adjustment.”
Practical difficulty and expense
The geographical proximity of the parties’ homes and the children’s school have effect that this is not a significant factor.
The parties’ capacities to provide for the children’s needs, including emotional and intellectual needs
N has complained to the father of being given insufficient food in the mother’s household, in particular, for breakfast. Both parties should take advice as to the children’s dietary needs according to their age, level of sporting activity and so forth.
As to the children’s intellectual needs, the information by Mr I, the principal of the children’s school, is encouraging, except for several unexplained absences noted in the annexures to his affidavit.
I relation to the children’s emotional needs, I would refer to the observations already made in relation to s60CC(2)(b). Otherwise, it appears that the parties each have the capacity to provide for the children’s day to day emotional needs.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant
The children appear to achieving well at school. I have made reference already to the evidence of Mr I, Principal at V State Primary School, where N is in Year 6 and S in Year 2.
N has a keen interest in football.
The children enjoy their pet animals.
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents
Each of the parties loves the children and each accepts the responsibilities of parenthood.
However, since January 2009 there have been the particular difficulties to which sufficient reference has been made.
Family violence involving the children or a member of the children’s family or family violence order
Temporary protection orders were made in August 2005 at the time of the parties’ separation but by consent final orders were not made as the issues between the parties were resolved.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
The extent of the cooperation between the mother and the father evident towards the end of the hearing and their express willingness to cooperate so that the children may resume an easy transition between households has effect that a shared care arrangement to enable the children to move easily between households, in so far as may be predictable at this stage, would be least likely to lead to the institution of further proceedings in relation to the children.
Whether the order be equal time, or a different proportion of time, is not likely to effect whether there be the institution of further proceedings because it was common ground that the order concerning the time the children spend with each party be couched as being subject to any agreement in writing between the parties, to maximise flexibility.
These types of variables are such as are unlikely to lead to further proceedings so that in this context none is more or less preferable than another.
I would anticipate, in relation to the parties and the children, that there would not be further proceedings unless there be further allegations of sexual abuse, which hopefully will not be the case.
Section 60CC(4) – the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent
It is necessary to consider the extent to which each of the children’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent; and in particular the extent to which each of the children’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children; and to spend time with and communicate with the children; and has facilitated or failed to facilitate the other parent participating in making decisions about major long-term issues in relation to the children; and spending time with and communicating with the children; and has fulfilled or failed to fulfil the parental obligation to maintain the children.
There is no evidence as to any failure by either parent in his and her obligations as a parent in relation to the specific matters referred to, save in relation to the matters concerning the children’s disclosures already dealt with.
Discussion and conclusions
Parental responsibility
The presumption in s61DA(1) that an order for equal shared parental responsibility is in the children’s best interests would seem to apply, in particular when, having regard to s61DA(2), I have determined that there has not been abuse of the children and although there was a temporary protection order at the time of the parties’ separation its subject matter ultimately resolved.
It is not necessary however to deal with this aspect of the matter in more detail because Counsel for the independent children’s lawyer and the father both supported an order for equal shared parental responsibility and Counsel for the mother did also by the time of the final submissions. Independently, having regard to all of the evidence I am satisfied that an order for equal shared parental responsibility is in the children’s best interests and will make that order.
Equal time
The circumstance that I will make an order for equal shared parental responsibility invokes s65DAA(1) so that I must consider whether the children spending equal time with each of the parents would be in the children’s best interests and reasonably practicable, and if it is, consider making an order to provide for the children to spend equal time with each of the children’s parents.
In Goode & Goode (2006) FLC 93-286, the Full Court said at [64] that the juxtaposition of s 65DAA(1)(a), (b) and (c) suggests a consideration tending to result in or the need to consider “positively” the making of an equal time order. In Korban & Korban [2009] FamCAFC 143, the Full Court explained that in Goode the Court did not intend to put a “gloss” on the plain wording of s65DAA(1) by its use of the word “positively” such that the Court should only make an order for equal time if there are no disqualifying factors: [83]; and that “consider” means to assess whether equal time is in a child’s best interests by weighing factors both positive and negative: [85]; but that the inquiry is a “positive one”, in order “to ascertain whether equal time is in a child’s best interests”: [86]. The Court further observed, as is plain by the legislation, that it is only if the trial judge concludes from the overall assessment that an equal time order should not be made he or she then would move to consider whether substantial and significant time is in a child’s best interests.
Thus, it is incumbent upon me first to consider whether the children spending equal time with each of their parents is in their best interests, in the manner explained, and then to consider whether such is reasonably practicable.
The children’s best interests
It is significant, and a positive factor, that in the circumstances of my having determined that there was no sexual abuse of the children by the father and no unacceptable risk of sexual abuse of the children by the father the parties are both of the view that an equal time week about order is something that “would work” for the children, particularly because before January 2009 the children moved relatively freely between the two households. I have referred already to the mother’s evidence as to her concern that S is “still mummy’s girl” and to her view that it would “take time” for her to be away from the mother for “a week at a time” and that the mother herself “wouldn’t want it to be all of a sudden”, with her Counsel thus urging a six month period of 8 nights mother/6 nights father in each fortnight and then equal time week about. However, against this is Mr P’s evidence that it is in the children’s best interests to “keep them together” especially because they have a “mild type of co-dependent relationship” which for each is “protective”, and also his opinion that the children would cope if equal time were commenced on the “straight in” basis.
It is a positive factor also that Mr P said that in his view “seven/seven”, that is, equal time week about, is in the children’s best interests, although, as already explained, he did not differentiate between “seven/seven” and “eight/six”.
In these circumstances I am not able to identify any negative factors against an equal time week about arrangement, and none were drawn to my attention by Counsel.
I have carefully considered however the specific matters raised by Mr O’Meara in weighing carefully whether on all of the evidence an equal time week about arrangement is in the children’s best interests.
Conclusion as to the children’s best interests
In my view, having regard to all of the evidence, the submissions, the statutory matters I am required to consider, and in particular having considered the positive factors and whether there are any negative factors as to whether an equal time order is in the children’s best interests I have determined firmly that it is.
Put simply, the positive factors of the parties having come from polarised positions at the commencement of the hearing to the position of near commonality by the conclusion of the hearing, combined with Mr P’s very firmly expressed view that an equal time week about order is in the children’s best interests, is highly persuasive.
Reasonable practicability
It is necessary to have regard to each of the matters in s65DAA(5) in order to determine whether it is reasonably practicable that there be an equal time order. MRR and GR [2010] HCA 4.
How far apart the parties live from each other
The parties live about five minutes distance from each other.
The parents’ current and future capacity to implement an arrangement for the children spending equal time with each of the parents
Based on the evidence already mentioned and the parties’ “near commonality” of position by the conclusion of the hearing, I am satisfied that each of the parties has the capacity now and in the future to implement an equal time week about order.
The parents’ current and future capacity to communicate with each other and to resolve difficulties that might arise in implementing an arrangement for the children spending equal time
Before January 2009, the parties communicated amicably with each other in relation to the children in all respects. Each expressed the view during the hearing that subject to my determination as to the sexual abuse disclosures they could see no difficulty in relation to communication with each other. I have mentioned already the encouraging circumstance that during final submissions the mother and the father were communicating directly with each other by passing notes to achieve a common position in relation to holiday time. There is no reason on the evidence to think that in these circumstances they would be unable to resolve day to day difficulties in implementing the arrangement as they may arise.
The impact on the children of an arrangement for the children spending equal time
I have dealt with this aspect of the matter sufficiently and in particular would refer again to Mr P’s very positive evidence that in his opinion an equal time week about arrangement is in the children’s best interests.
Conclusion as to reasonable practicability
Having considered the matters required to be considered, I am satisfied that the children spending equal time with each of the parents is reasonably practicable.
Other matters
I have mentioned already the parties each seek a restraint concerning bringing the children into contact with or communicating with Mr R. I will make that order.
The parties by the conclusion of the hearing were able to agree a holiday regime and other orders typically made.
Having regard to certain of the children’s allegations (ex 22) it is prudent that I include an order that neither party physically discipline the children and not permit other persons to do so.
Despite the parties’ agreement as to certain matters, the history and the nature of the past allegations has effect that the independent children’s lawyer not be discharged for twelve months.
I certify that the preceding two hundred and twenty-seven (227) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly
Associate:
Date: 28 May 2010
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Duty of Care
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Negligence
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