Lambourgh and Gerder and Anor

[2010] FamCA 316

FAMILY COURT OF AUSTRALIA

LAMBOURGH & GERDER AND ANOR [2010] FamCA 316

FAMILY LAW – CHILDREN – Magellan – Interim

APPLICANT: Mr Lambourgh

RESPONDENT: Ms Gerder

RESPONDENT: Ms Ardle-Gerder

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 1214 of 2009

DATE DELIVERED: 27 April 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 17 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT: Mr Weaver

SOLICITOR FOR THE RESPONDENT: Kinchington Solicitors

INDEPENDENT CHILDREN’S LAWYER Ms Wearne,
Legal Aid NSW

Orders

1. That P born … December 2005 shall reside with the father who shall have sole parental responsibility for her.

2. That the father is hereby restrained from permitting C Lambourgh to reside in the same home as the said child and from permitting the said child to be in the company of C Lambourgh without another adult being present.

3. That the mother and the maternal grandmother are each hereby restrained from face-to-face contact with the said child either together or alone unless in the presence of a supervisor approved by the Court.

4. That the determination of the identity of a supervisor or supervisors for the purpose of Order 3 is hereby reserved to a date to be fixed.

5. That the time and extent of supervised contact between the mother and the child and the maternal grandmother and the child or both and the child is hereby reserved to a date to be fixed.

6. That costs are reserved.

7. That the Orders of the Federal Magistrates Court of 9 March 2009, Judicial Registrar of 11 August 2009 and Judicial Registrar of 3 March 2010 are to the extent they were in force and operative at the time of this Order are hereby discharged.

8. That the proceedings be expedited and placed in the Magellan list.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1214 of 2009

MR LAMBOURGH

Applicant

And

MS GERDER

Respondent

And

MS ARDLE-GERDER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In these proceedings I made orders on 17 March 2010 but reserved my reasons. These are my reasons. I am confronted with the need to decide serious issues relating to the protection of a young child from sexual abuse and or psychological abuse. Because the proceedings are for urgent interim orders, I must make a decision without knowing all the facts, without the assistance of expert advice or opinion and without being able to decide where the truth lies in important factual conflicts. In this instance, because the two parties who are the principal protagonists both seek that the child live with him or her and allege the child has been sexually abused in the other’s care, I am left to determine in whose care the child will be at less risk until the facts are able to be established as best they can be at a final hearing.

2. Although the parties to the principal proceedings are the applicant mother, the second applicant maternal grandmother and the respondent father and there is an independent children’s lawyer, the mother is not playing a part in the proceedings I am now deciding. She is currently an inpatient at a psychiatric institution and has been for some weeks. Before me, the father is the applicant, the maternal grandmother (“grandmother”) is the respondent and the independent children’s lawyer supports the orders sought by the grandmother.

3. The child who is the subject of the proceedings is P who was born in December 2005. The father alleges the grandmother has sexually abused her. It is implicit in his case and he explicitly alleges that she has also emotionally abused her.

4. The grandmother alleges the father’s seventeen year old son, C, has sexually abused P. She has, earlier, alleged that the father’s de facto wife, Ms L, sexually abused P. I do not know whether she is still pressing the latter allegation but, because it was made, what is relevant is the allegation rather than whether she is pressing it now.

5. As I must decide where the greater risk to the child lies, in the circumstances which the evidence presents at a prima facie level, the issue of coincidence is quite significant. In any event, consideration of coincidence here is nothing more or less than an approach to weighing and determining the risks inherent in the possibilities which are raised by the evidence.

6. The consideration of coincidence is raised by a very alarming fact which is not in dispute when compared with the allegations the grandmother makes and has made. It is alarming that the mother was sexually abused by her step-father from about the age of 3 years until about 15 years when the grandmother claims she first disclosed it to the grandmother. The grandmother also claims that, until this disclosure, she did not have the slightest suspicion that it had occurred. It would be surprising that, in those 12 years which the mother was being abused, the mother did or said nothing which would arouse her mother’s suspicions.

7. During the hearing before me, I gave leave to the grandmother to give some oral evidence. She was not cross-examined, although I asked her a few questions. The inferences from some of her oral evidence are nothing if not bizarre. The grandmother said she asked her daughter why she had said nothing earlier. She said the mother had not disclosed what had happened because she did not want the grandmother to be faced with abandonment by her husband. The police were not informed on the disclosure being made although the step–father, when confronted, admitted the abuse. The grandmother said, she was, as a result of the disclosure and admission, thereafter able to protect the mother from further sexual abuse and the mother did not want to inform the police because she feared her step-father may suicide.

8. He has since died, but it is not suggested that his death is relevant. One must ask why the grandmother chose to act on her 15 year old daughter’s wishes, if they were her real wishes, rather than her own sense of right and wrong. One must also ask why, if her sense was that what had occurred was a heinous wrong perpetrated on an innocent child over many years and which undoubtedly must have done enormous harm to the victim, she did not, when she says she learned of the abuse which had been occurring for so long, inform the police.  

9. It is noteworthy that both the mother and grandmother have retained the step-father’s surname as part of their names. The inference from the grandmother’s evidence is that, after the disclosure and admission, the life of the family continued as before, except that the grandmother thought she was in a position to protect the mother from further abuse by her husband despite the fact that both her husband and daughter continued to live in the same house with her. The Court does not know whether the mother’s current psychiatric condition is related to the grandmother’s parenting of her, but in the absence of evidence that it is not, the Court should contemplate the risks which might be posed to P by being subjected to the grandmother’s parenting of her in the light of the mother’s mental health.

10. There is an overwhelming inference of the possibility that the grandmother acted toward her daughter out of self-interest rather than a wish to meet her daughter’s needs despite the terrible situation. An aspect of the grandmother’s oral evidence was her persistent reference to her husband’s relevant behaviour in a manner which inherently both understated the seriousness of it and disparaged the mother. She referred to the sexual abuse as “fiddling” with the mother. I note that sexual abuse is not nominated as a secondary or colloquial meaning of “fiddle” in the Macquarie Dictionary, but it is a word which was very commonly used in that way 30 or more years ago. Then, as now, it had another secondary meaning; “trifle”. The inference that what had happened to her daughter is relatively trifling in the grandmother’s mind is impossible to avoid, not only because of the use of the word “fiddling”, but because of the grandmother’s demeanour when giving this evidence.

11. This is in dramatic contrast to other oral evidence the grandmother gave. It seemed to demonstrate and express an extremely strong conviction that C has sexually abused P and that the father is knowingly protecting him. With this was a clear indication of her very high level of animosity toward C and the father coupled with great condemnation of the alleged abuse. She did not say C had “fiddled” with P, she vehemently accused him of sexually abusing P and equally vehemently accused the father of attempting to excuse the abuse. No doubt she has a lesser need for C and the father than she had for her husband as well as a lesser need to cover up their alleged abuse than her own involvement in the abuse of her daughter, whatever that may have been.

12. The grandmother seemed very keen to make it appear that she is absolutely convinced that C has sexually abused P and that the husband has not simply failed to believe that but that he is knowingly protecting C and therefore is complicit in the abuse and unwilling to protect P from it. Her case is that she is likely to be correct because she is a woman of the world and an excellent judge of character. If she did not suspect her husband was sexually abusing her daughter over a twelve year period, I could not support that aspect of her case. The only realistic alternative inference is that she did suspect or know what was happening to her daughter. If this is the case, I do not need to state the obvious conclusion.

13. Although I cannot come to any conclusion of fact about the grandmother’s allegations and motivations, I must conclude that, at a final hearing, there is much more than a mere possibility that the grandmother’s stance will not be accepted. For the grandmother to be accepted, on the prima facie evidence before me, it would have to be held that it is pure coincidence that, after being brought up while being subjected to sexual abuse from her step-father which was not prevented by her mother, the mother married into a family where her step-son has sexually abused her daughter and his father, the father’s de facto wife, the step-son’s girlfriend and that girlfriend’s mother are prepared to lie to cover up the abuse and protect the step-son. In addition, as the grandmother has alleged that the father’s de facto wife sexually abused P, whether or not she still alleges it, one would have to accept that, at least, such an occurrence is in the grandmother’s mind an additional coincidence.  One can only speculate on why the grandmother might be so convinced this must be the case. I cannot but mention that the concept which in psychology is called projection is still regarded by those in that profession as a valid one.

14. I have been limited in my appreciation of the allegations which have been made because of the limited affidavits the parties asked me to read. In this instance, it is appropriate to list the affidavit evidence I have read. It is:

    The grandmother          sworn 23.2.2010

    
    

    Mr M     sworn 10.3.2010

    
    

    The father             sworn 23.2.2010

    
    

    The father             sworn 3.3.2010

    
    

    Ms L                 sworn 23.2.2010

    
    

    Miss SG     sworn 25.2.2010

    
    

    Mrs HG            sworn 25.2.2010

    
    

    Ms T                  sworn 25.2.2010

15. The father and mother commenced their relationship in mid 2001 and separated on 4 March 2008. According to the father, the mother is a drug and alcohol abuser. Even worse, there is clear evidence that she drinks methylated spirits.  While he lived with her after P was born he occasionally needed to call on the maternal grandmother to care for the child because of the mother’s condition and behaviour. Between separation and 9 March 2009 the mother and P lived with the grandmother. P had been in the father’s care from 27 February 2009. The father was apparently then expected by the mother and grandmother to return P to the grandmother’s care. He says he chose not to do so because of the mother’s drunken behaviour. On 9 March a Federal Magistrate ordered the father to return the child to the grandmother’s care by 3pm on 11 March. The mother was ordered to vacate the Y residence before this and was restrained from re-entering it without the grandmother’s consent. She was also restrained from consuming alcohol or illicit drugs if she was to go there. The grandmother was granted residence of the child and the father was granted four hours contact in two lots in all except one week per month. In that week he was able to have six and a half hours contact in two lots. The father had applied to have P live with him.

16. The Orders giving the father contact were apparently complied with until 11 August 2009 when interim consent orders were made in the Family Court of Australia by a Judicial Registrar. Those orders discharged the Federal Magistrate’s orders for contact and gave the father more time with P. She was to stay with him each weekend from 4pm Friday to 5pm Sunday, on one Wednesday each month from 3pm that day to 8am the next and on each other Wednesday for two and a half hours. An order was also made restraining the father from leaving P alone with C. The grandmother was restrained from leaving P with the mother unless the mother was supervised. A similar order was made about a Mr E. I do not know who he is, but it is reasonable to assume he had a relationship with the mother. More properly than had been ordered by the Federal Magistrate, it was not the mother but the grandmother who was made the subject of a restraining order. She was prevented by it from permitting the mother to live in the grandmother’s home or enter it while affected by drugs or alcohol.

17. The contact orders in favour of the father were, it appears, followed until 21 February 2010 when, because of concerns the father claims to have had, he failed to return P to the grandmother after a contact period expired.

18. On 3 March 2010 a Judicial Registrar dismissed the father’s Application in a Case filed on 3 March for interim urgent residency and upheld the consent orders of August 2009. He also refused the father’s consequent stay application. I am reviewing those orders.

19. The father had filed a Notice of Child Abuse on 23 February 2010. In his affidavit filed the same day, which was a Tuesday, the father alleges that on the previous Saturday, 20 February, after he had collected the child from the maternal grandmother on the 19^th, P alleged that the maternal grandmother had sexually assaulted her, had told her to blame C and had failed in her obligation to prevent the mother from staying overnight in the grandmother’s home. He reported P’s alleged initial disclosure to the Department of Community Services (“DoCS”) on 20 February and, after another disclosure was supposedly made that day, to the NSW Police at Y Police Station. A third alleged disclosure on that day was then reported to DoCS.

20. Significantly, on Monday 22 February, the father’s solicitor told the mother’s solicitor and the Independent Children’s Lawyer of the disclosures and that he would not be returning P to the grandmother’s care.

21. The grandmother, too, filed a Notice of Child Abuse on 23 February 2010. There is an inference that this was filed in reaction to being informed of the father’s allegations the day before, but this inference is not as compelling as it might seem at first acquaintance.

22. On 17 February 2010, when the father went to the grandmother’s home to collect the child in accordance with the orders which were then in force, nobody was at home. When he called the grandmother’s mobile telephone, a police woman answered and told him that C was alleged by the grandmother to have sexually assaulted P on the prior weekend whilst the father had been at home hanging out the washing. The weekend referred to was that on 13-14 February.

23. On 17 February the police had obtained a provisional Apprehended Domestic Violence Order (ADVO) designed to protect P from C. It was obtained ex-parte. The grounds for its grant are contained in it. Some of the grounds relied on are of actual relevance to the matter now before me. The specific allegation which was made, because of the circumstances surrounding it, must be limited to the 13-14 February weekend. P, on being returned to the grandmother on the evening of the 14^th, is said by the grandmother to have pointed to her external genitalia and asked for ointment. Yet, when the grandmother asked her to show her were she was sore, she pointed to her anus which was seen to be “red and inflamed”. The grandmother alleges that P then told her “[C] put his finger in there.” Obviously, this refers to her anus being penetrated.

24. The child was taken to hospital but, significantly, made no disclosure. Thus, the only person who is said to have heard any disclosure blaming C for this incident is the maternal grandmother before she was interviewed by JIRT later the same day. The doctor who examined P, Dr F, noticed that she had “some mild” redness circumferentially around her anus. Otherwise, she found nothing exceptional. Dr F received an embellished account from the grandmother compared with that in the grounds for the ADVO. Whereas the grounds purport to repeat P’s words of disclosure to the grandmother and there is no mention of P saying C had hurt her when he penetrated her with his finger, the grandmother told Dr F that P had told her C “put his finger in her bottom and it had hurt.” Dr F found that P’s hymen was normal despite the grandmother’s allegation that C had previously penetrated her genitally.

25. When P was, according to the ADVO grounds which are on P4 of annexure D to the father’s affidavit sworn 23 February 2010, interviewed by JIRT. The result of the interview was virtually preordained by the grandmother or those conducting it. The grounds clearly, albeit probably unwittingly to those who compiled them, disclose this with this statement:

    “S/C disclosed she had come to talk to investigators about somebody touching her and that somebody was her brother, [C].”

26. This, to me, amounts to a clear statement that P had been primed to a degree about what she might say to the extent it suited the motivation of those involved could not be given any weight. It is worth commenting on how a child of P’s age whose mind had not been polluted would respond to being asked about “somebody touching” her.  One would not be surprised she thought she was being asked about an adult patting her on the head. It would be quite surprising if she would, without coaching, realise at age just 4 years what the enquiry really was about.

27. The grounds as they then follow are worthy of reproduction in part. They are:

    She disclosed that the Defendant “put his finger down her bottom and tommy”. She clarified her bottom as the anus which she said is where the poo comes from. She clarified the “tommy” as her vagina which she stated is where the wee wee comes from.

    The s/c disclosed that this had occurred on the lounge at n/f’s home. She said the Defendant had been sitting next to her on the lounge and her father was downstairs hanging washing. The s/c disclosed the Defendant moved over and picked her up, put her on his lap and put his finger in her bottom. (anus).

    The s/c was asked when this had occurred but she was unable to specify. She said it occurred at her daddy’s house, a long time ago, and she thought it happened on a weekend not a weekday. However when explaining the assaults the s/c reported that “[Ms L]” (n/f’s partner [sic] had said, “[C] stop doing that”.

    The s/c also disclosed that her daddy came back up (from hanging the washing) and said, “Its time to go home to your mothers”.

    The s/c had difficulty providing details about the incident and seemed to investigators to be having difficulty in doing so due to both her young age and reluctance. She often changed the topic in an attempt to redivert the conversation. The s/c was asked how she felt about the Defendant and she said she felt sad.

    Investigators have no reason to disbelieve the s/c and have concerns for her sexual safety from the Defendant given her clear disclosure and the medical examination which showed she was suffering a red enflamed anus.

    Following the s/c’s JIRT interview the m/g/m provided investigators with a home video on a USB drive which m/g/m recorded sometime around Christmas. The video depicts the s/c laying across her grandmother’s bed on her stomach. She appears to be masturbating, rubbing her hand and later a toy between her legs as she moves her body up and down. M/g/m asks the s/c who taught her to do that and the s/c replies with a groaning sound before m/g/m asks again and the s/c says “[C] did”.

1. That P’s anus but not her external or vestibular genitalia was red is significant in view of the allegation to JIRT that C also put his finger “down” her “tommy”. “Tommy” refers to her Pudendum Femininum also called “vulva”, correctly also called “external genitalia” and incorrectly called “vagina”; the area from the clitoris and between the labia to the Fourchette including the vaginal vestibule and urethral opening. It is also significant that P said the only incident happened a long time ago yet her anus was red on 14 February and the video of what was said to have occurred around Christmas was not relied on earlier.

2. There is reason for real concern, in view of the revelation about filming contained in the last paragraph of the grounds which I have extracted, that the grandmother had been searching for “proof” of sexual abuse. When she gave oral evidence she said she had filmed P and had not immediately intervened to end P’s behaviour in a non-alarming or confronting way at the appropriate time because she wanted proof that C had been sexually abusing P. I wonder how, when reaching for her camera, she was able to divine that P would answer blaming C when she was asked the question which assumed somebody had taught her to masturbate. P’s response to the first question which presumed someone had taught her to masturbate is of a kind which is common among children who are irritated by being asked the same question more than once in an attempt to teach them the answer. I regard this incident as very disturbing behaviour by the grandmother; behaviour which leaves me feeling that to leave P in her care involves some risk to the child’s emotional welfare; risk at a level which is unacceptable, particularly in view of the established history of the mother’s sexual abuse at the hands of the grandmother’s husband over a twelve year period.

3. On 27 January 2010 the DoCS file (Exhibit C) records that the caseworker had advised the grandmother not to question P about sexual abuse and not to “trick [her] into things”, presumably to say things which meet the grandmother’s needs and wishes. This is before all alleged disclosures other than that contained in the video. Was it only coincidence and/or the grandmother’s sixth sense which was involved in the involvement of DoCS in relation to sexual penetration before any disclosure about it was made? I find that the Court is unlikely to find this to be the case on final hearing in view of the inference that DoCS believed the grandmother was coaching P.

4. The father, Ms L (paragraph 10), Miss SG, C’s Girlfriend (paragraphs 1 and 2) and Mrs HG, Miss SG’s mother (paragraph 1 and 2) all swore in their affidavits that C did not have contact with P because he did not visit his father or his father’s house on the weekend of 13-14 February. One must ask what the prospect is that all these adults would do this to protect C if he had had contact with P. The prospect is very remote. Sexual penetration would not be likely to cause redness on 14 February if it occurred on the last occurrence that C is said by the father to have seen P, on 22 January 2010. In any event, the father says he has not, since orders were made in August 2009, permitted C to be alone with P or to sleep overnight in the father’s home when P is present. C usually lives with his mother. He stayed at his girlfriend’s mother’s home on the weekend of 13-14 February according to these witnesses. One would have to accept the father’s complicity in sexual assault by C to accept the grandmother’s claims.

5. The allegations by the grandmother were not her first. The orders of 11 August 2009 were made in response to the grandmothers’ allegations which originally were that the father’s de facto wife, Ms L, had hurt P’s vulval area. P is said, in a report by Ms S, a JIRT officer, dated 23 February 2010, to have changed her story to shift the blame to C and expand her description of the type of abuse to rubbing “her vagina” and hurting her. When JIRT interviewed P in August 2009 she made no disclosures, so it must have been to the maternal grandmother that she is claimed to have changed her story. The police took no action on these alleged disclosures.

6. Ms S’s report of 23 February raises questions about the grandmother’s reliability. What Ms S appears to have been told by the grandmother about the August 2009 incident is quite inconsistent with the grandmother’s affidavit detailing it. In paragraph 6 of the grandmother’s affidavit of 23 February 2010 she reproduces the part of her 6 August 2009 affidavit which states the basis for blaming C for sexually abusing P. The grandmother does not mention any incident in August 2009 but, instead, claims that in December 2008, when P was returned from the father’s care, she had “an inflamed and red vagina”. On seeing this, she asked the obvious but suggestive question “Did anyone touch you down there?” the answer she claimed to have received is “yes”, but the perpetrator was not named. Maybe this is the incident for which Ms L was blamed, but I cannot say it is. No other incident is referred to by the grandmother until “Easter” which must refer to April 2009.

7. On Good Friday, 10 April 2009, P stayed at the father’s home. When she came home to the grandmother the next day she allegedly told the grandmother “[C] was rubbing me down here [so] that it really hurt me Nanny and I cried”. While saying this, P pointed to her external genitalia. Thus, on the version in the grandmother’s affidavit, there were two incidents five months apart in which no one was blamed in one and C was blamed in the other. It could not be said that P has simply changed her version of one incident. The inference from this evidence is that the grandmother did not, despite what she says are clear indications of sexual abuse; take any steps earlier through the Court or through administrative agencies to protect P until August 2009. When she did, she failed to provide consistent accounts to DoCS, to JIRT and the Court. There is nothing in the grandmother’s affidavit to suggest that before C was blamed either she or P had blamed Ms L.

8. There is a record, Exhibit ‘H’, from JIRT and made on 24 August 2009, which is quite inconsistent with the Grandmother’s affidavit evidence. It refers to the grandmother’s telephone call to it, probably on August 7, 2009, a day after she swore her affidavit on 6 August and a day after she was probably advised to contact DoCS. This resulted in a child welfare caseworker visiting the grandmother on 7 August 2009. She told him P had said: “Nanny Nanny, I’m really sore down there” while pointing to her genital area. The grandmother said she looked and noticed it was “sore and red around the vaginal area”. The description in the report probably referred to P’s vulva. The grandmother claimed she asked P what had made her sore and P had replied: “sshhh, I’m not allowed to tell, Daddy told me not to tell anyone”, but later alleged it was Ms L. The grandmother also claimed that during her visit on 31 March 2009 P had said to her: “Nanny, this is what [Ms L] does” then had put her finger into her vestibule and had added: “not Daddy, just [Ms L]”. “[Ms L]” is the father’s partner. The grandmother also reported that on 11 April 2009, after P had returned from contact with her father, she had said: “Nanny, [C] rubbed me so hard it hurt” and pointed to her genitalia.

9. It is very strange that the grandmother’s first report to anyone other than her solicitor about P being sexually abused was made the day after she signed her 6 August affidavit for the purpose of supporting her case against the father in the parenting dispute. The report was about four incidents, one in December 2008 when the grandmother learnt that P had been “touched” but apparently did not ask who did it, one on 31 March 2009 when Ms L is alleged to have been the perpetrator, one on the 10 or 11 April 2009 when C is alleged to have “rubbed” P sexually and one at an unspecified time before 7 August 2009 when Ms L is alleged to have penetrated P. Thus, there are two alleged sexual predators and one confirmed sexual predator in P’s family, according to the grandmother. Yet, despite what could only be expected to have made her hypervigilant to protect P from danger, the twelve year history of her daughter’s sexual abuse by her husband which she claims to have been ignorant of during its continuation, she probably only complained of the alleged disclosures made by P for tactical purposes to her solicitor 8 months after the first disclosure. It is unlikely that the judge who hears the matter to finality will regard the grandmother’s evidence as reliable.

10. The grandmother claims to have kept a diary from Monday 18 January 2010 to 14 February 2010. In it are detailed disclosures P is claimed to have made against C on 18, 21, 25, 27 and 31 January and 3 and 14 February. It is quite bizarre that, nowhere else in the material from JIRT is there any mention of the nature of the allegations in this diary, especially the entry for 14 February which is not only more detailed than any other description of the incident in which C is said to have sexually abused her but also claims to describe what the grandmother saw when she examined P; something which seems to have escaped the attention of Dr F who examined her within about 6 hours of the grandmother’s examination. The diary states “[P] was inflamed vagina and anus” [sic]. Dr F noted “mild” redness around her anus but found her genitalia to be normal. The diary entries in general are highly likely to be ultimately found to be a testament to the grandmother’s attempts to undermine P’s relationship with the father.                 

11. By what could be a remarkable coincidence or could be the result of fabrication or coaching, P is said to have made disclosures to the father, Ms L and Ms L’s mother which may indicate she has been sexually abused by the grandmother. The alleged disclosure certainly suggests that the grandmother has attempted to coach her to make false allegations against C. It may be found to be fabricated in part and partially true.

12. According to Ms L, on Sunday 14 February Ms L took P to visit her mother. While there this conversation is claimed to have taken place:

    [P]: “Nanny blows on my tommy”.

    Ms [L]: “She blows on your tummy does she?”.

    [P]: “No, tommy”.

    Ms [L]: “How often does that happen?”.

    [P]: “All the time [Ms L]”.

    Ms L was already familiar with P’s use of “tommy” to refer to her external genitalia. No affidavit from Ms L’s mother has been relied on. At a final hearing, Jones v Dunkel (1959)101CLR.298 would apply.

13. Later that day, on the return home, Ms L asked P to tell her father what P had told her at Ms L’s mother’s house. P turned to the father and said “Nanny blows on my tommy”. He too knew what P meant by “tommy”.  The father and Ms L, if Ms L is to be believed, expressed concern to one another about the disclosure but did nothing. That this was their reaction may not be completely without justification because what they had been told was non-specific and may have been a description of innocent fun. The father has not mentioned this incident in his affidavit. This may be because at the time, it made little impression on him. This is inconsistent with Ms L’s account of the concern that both expressed. The father must have known that the mother had been sexually abused for twelve years while in the grandmother’s care. Surely he had contemplated the unlikelihood of the grandmother’s claimed ignorance of the abuse for such a long time although it is probable that, from the age of 3 years, she is likely to have believed that what was happening to her was normal and, therefore, something she could talk freely about. Surely the inference from this about the grandmother would have alarmed him sufficiently to act on this disclosure if it had occurred.

14. The father did act, but after he claims P made much the same type of disclosure again on the 20 February. He says that in the morning of the 20^th he noticed P in the bedroom. She appeared to be upset. When he asked her what was wrong she said: “Nanny makes me sleep in her bed and Mummy sleeps in my bed and I sleep in Nanny’s bed. She makes me sleep there all the time and my night light has gone out of my room”. P then said that the grandmother had taken her night light and started crying and counting, saying: “Nanny blows on my tommy all the time”. After the father attempted to reassure P the conversation is alleged to have continued:

    [P]: “Nanny and Mummy are liars”.  

    Father: “Why would you think that?”

    [P]: “Because they don’t tell the truth Daddy, Nanny tells me to say things.

    Father: “What has Nanny asked you to say?”

    [P]: “She told me to sshhhhh (placing her index finger vertically over her lip) and to say things about [C]”.

    Ms L says she was present during this conversation. Her version is not identical but differs only to the extent that one might expect from two people using their independent recollections to repeat it.

15. There is a remarkable similarity between the allegation in which P is alleged to have said she had been told to keep quiet and one made by the grandmother. The father immediately contacted DoCS and reported what he says P had said. Once he had done this he told P that if anyone touches her “tommy” she should tell them to desist, whereupon she is claimed to have said: “I tell Nanny to stop”. He claims he then asked her whether the grandmother put cream on her genitalia and P replied: “yes”. When asked why the grandmother does this, it is alleged her reply was: “Because it gets sore after Nanny plays with it”. Although there are no real inconsistencies in the father’s story and that of Ms L, they involve unlikely coincidences in that P is said to have used a similar expression when blaming the grandmother as the grandmother said P had used when blaming Ms L and in the timing of her first disclosure to the father.

16. From about 24 February, JIRT no longer felt that the father’s care presented a danger to P. Its officers had become convinced that the grandmother could not be relied on to tell the truth about the disclosures she had been attributing to the child. My own assessment is not influenced by the decisions of others who have had to assess whether there was any threat to P’s welfare and, if there was, where it came from.

17. In these proceedings the allegations serve to emphasise that the Court’s paramount duty is to advance or conserve P’s best interests. Because of the nature of the allegations, her best interests will only be so protected if she is shielded from real risk of sexual assault and from unacceptable risk that she will be psychologically harmed by being subjected to behaviour which will tend to make her believe that she has been sexually abused if she has not been abused, especially if the false allegations are against a family member who has not abused her. In interim proceedings, because instances of disputed fact cannot be determined, it is more difficult than usual to decide whether an alleged and disputed but unproven risk is at a level which is acceptable or unacceptable.

18. Here, in determining where the risks lie there is an obvious undisputed fact. It is clear there has been no allegation of sexual abuse made against the father. The only serious allegation made against him is that he is protecting C, and possibly Ms L, and has not protected P against C and Ms :.  I am able to, and do find that there is no risk to P of sexual abuse by him.

19. The facts nevertheless are such that there is the possibility that the father and Ms L might try to coach or otherwise influence P to believe and allege that the grandmother has sexually abused her and or has made up stories to indicate she has been sexually abused by Ms L and or C when she has not been so abused, or he might not protect P against C and or Ms L.

20. There is a bizarre coincidence involved in the claims against both Ms L and C or in the apparent transfer of blame from Ms L to C and the inconsistencies in the grandmother’s claims. There was an acknowledged sexual assault on the other side of P’s family. I am of the opinion that when the proceedings are finally determined it is highly unlikely that Ms L will be held to be sexually deviant or of any physical risk to P. I conclude that, although there is a slight risk that P could be sexually abused by Ms L, it is so minimal that it is an acceptable risk to take. The prospect of C being found to have abused P is higher but not very high. I, nevertheless, conclude that at this stage in the proceedings, when the facts in dispute cannot be fully considered, the risk of him abusing P will be an unacceptable level if he is allowed to be alone with her. It will be at an acceptable level if there is another adult present when C comes in contact with P. To avoid unacceptable risk, he should not be permitted to live under the same roof as P. As he lives with his mother, the latter limitation should not create a problem for the father and his family, including C. As I am quite confident that no adult who might be present in the father’s home is likely to permit C to sexually assault P, the mere presence of an adult, even Ms L, when C and P are at the father’s home will be suffice to protect P from any risk that C might otherwise pose to her.

21. I am of the view that P will be at risk to an unacceptable degree if she remains in the maternal grandmother’s care. I am very concerned about the high level of risk involved, despite not being able to determine disputed facts. I do not regard it as likely, but it is more than a remote possibility, that the grandmother will ultimately be found on more intense scrutiny of her actions to have sexually abused P. The incident when she filmed P could well result in a finding that there is unacceptable risk of abuse. If it is found that P was coached by the grandmother to make the disclosure she is filmed making while masturbating, it would not be a big step to find that the grandmother taught or encouraged her to masturbate. There is a very high prospect of her being found to be emotionally abusive to P by making false allegations of sexual abuse disclosures and/or coaching P to make such allegations and improperly undermining P’s relationships with her father and other members of the father’s family. The risk she poses to P by being the principal carer or even of having unsupervised contact with the child is so high that to take it at this stage would be quite unacceptable. I bear in mind that she has made many somewhat inconstant allegations of disclosure by P over a significant period and, if P has not been abused by C or Ms L, she must have been instrumental in the child’s disclosures to investigators that they, or at least C, abused her. P is therefore at great risk of believing this if it is not true.

22. In contrast, if the father and Ms L have falsely alleged disclosures, these allegations have been fewer and reactive. There is nothing to lead the Court to fear that P has been coached by her father or Ms L to say or believe that the grandmother is an abuser despite the possibility that she is. The risk to P of being emotionally abused by the father and or Ms L is much less than the risk of abuse by the grandmother. There have been only two alleged disclosures to the father and these are claimed to have been made within a short time of one another.

23. The evidence is that the mother cannot care for P. The father claims and, from the manner by which she conducted her case, the grandmother accepts that the mother should not be allowed to have unsupervised contact with P. P has mostly lived with the grandmother in recent years. The risk of continuing this regime is great. She cannot live with her mother. This leaves only the father as a relatively safe principal carer. Despite the risk that he will poison her against the grandmother, he is still the safest choice to be P’s principal carer.

24. Safety is not the only consideration in determining P’s living arrangements, pending final orders. The Court, in coming to a decision on what parenting arrangement should be made for P, must comply with the Family Law Act which requires it to consider the objectives of the Act and the principles underlying these in the course of undertaking the paramount consideration; the child’s best interests. The Act requires specialised factors to be applied in determining what these are.

1. The Act has four objectives, three of which can be relevant to P. One of the relevant objectives is that of attempting to ensure both parents are meaningfully involved in her life so far as such involvement is consistent with her best interests. At present, involvement of the mother in P’s life is not in her best interests and is practically impossible. The mother is such an entrenched alcoholic that she drinks methylated spirits regularly. An order in favour of the grandmother would tend to exclude the father from a meaningful relationship with P because of the prospect that the grandmother will try to turn P against him.

2. “Parent” is not relevantly defined in the Act. There is a limited inferential definition from s60HA which provides that, for the purposes of the Act, a child can be the child of a person and that person’s de facto partner. There is nothing in the Act to indicate that “parent”, where it appears in the Act, is expanded to a person in loco parentis such as the grandmother has been. The cases on the meaning of “parent” for the purpose of child support legislation are to much the same effect and the legislation itself is much the same in this respect. Thus, I find that it is not an object pursuant to s60B(1) of the Family Law Act to ensure that children have a good relationship with their grandparents. However, among the principles on which the Act is based is that the child should be cared for by both parents and to spend time them and other people of significance to them such as grandparents (s60B(2)(b)) .

3. Nevertheless, in the situation here, any adverse influences by the grandmother against the father would undermine the meaningfulness of the relationship between P and her father. The object of achieving proper parenting does promote the concept of the advantage to a child of having a relationship with its parents. In s64B(2) the persons who may obtain a parenting order specifically include a grandparent. While “parent” is probably restricted to a natural or step-parent, “parenting” can be undertaken by others, including a grandparent.

4. Of the other relevant objects of the Act, one is self-evident and critical to these proceedings. It requires the Court to make orders to protect children from physical and psychological harm from abuse and family violence. “Abuse”, here, does not extend beyond physical abuse, so does not extend to any adverse influence a person might have on a child’s psychological health. This does not mean that psychological abuse is of lesser importance. It is critical to a child’s best interests that it not be subjected to this type of abuse. In my opinion, it is much more common and can be equally as harmful as physical abuse. The Act is deficient in limiting “abuse” to physical abuse.

5. s60CC of the Act requires two primary considerations to be undertaken in deciding what is in a child’s best interests. One is the benefit to the child of having a meaningful relationship with both parents. I have already referred to the implications of my findings in this consideration. The other primary consideration is the need to protect the child in accordance with the object of protection already referred to. Here this is critical. The unfortunate situation that P is in provides little choice in the quest to provide the best protection. In this instance, until final parenting orders are made, the need for protection overwhelms all other considerations which are statutorily required or otherwise. That it is one of only two primary considerations simply emphasises its importance in providing for P’s welfare.

6. The Act requires, by s60CC(3), additional considerations to be weighed in deciding what orders are in P’s best interests. These must be canvassed even though I am of the view that P’s safety requires her to live with the father. I shall address these in the order in which they appear in the Act.

7. s60CC(3)(a): P is too young to be able to be effectively interviewed and express her view or complaints. That is why JIRT ultimately did not regard C as the sexual abuser despite her nomination of him.

8. s60CC(3)(b): P seems to be a normal child who has an excellent relationship with her father and grandmother. It is noteworthy that the grandmother was not successful in raising her daughter, as can be seen from the mother’s alcoholism, methylated spirit drinking and self-destructiveness.

9. s60CC(3)(c): The grandmother seems unwilling to advance P’s relationship with her father. The diary entries make this likely to be an inevitable finding of the ultimate trial judge. The father’s attitude to the grandmother is likely to be found to be reactive to the grandmother’s attitude to him. One does not know what the mother’s attitude is, but one can say she is not a sufficiently capable parent because of her inability to refrain from self-destructive behaviour; behaviour which, irrespective of its cause, involves insufficient impediment from  P’s need to be given proper care.

10. s60CC(3)(d): The only really significant likely effect of changing any living arrangement for P will be an increase in her safety and promotion of her emotional wellbeing.

11. s60CC(3)(e) :It is not safe for the mother to spend unsupervised time with P. In my view, it is also not safe for the grandmother to be with her unsupervised. At best, there is an unacceptable risk that she will falsely claim P has made further disclosures of sexual abuse by the father’s family or even the father. The practical difficulties of making acceptable arrangements for her supervision are obvious. I have provided for the Court to make Orders after the parties know of the supervision requirement by Orders 3, 4 and 5 of the Orders made on 17 March 2010.

12. s60CC(3)(f): I have already mentioned the mother’s capacity to provide for P’s needs and the deficit in the capacities of the grandmother and father. There is nothing to lead the Court to be concerned that in other ways the father lacks sufficient capacity to have the principal role in her care pending final orders.

13. s60CC(3)(g): The considerations required here have already been discussed to the degree and in the respects necessary for proper consideration.

14. s60CC(3)(h): This consideration does not seem to be relevant here.

15. s60CC(3)(i), (j) and (k): These considerations have already been adequately discussed. No final family violence order has been made.

16. s60CC(3)(l): As these are interim proceedings, this consideration would seem to be an inconsequential one. Nevertheless, I have endeavoured to make orders and state my reasons for them in a manner which will best avoid further litigation over P between the parties.

17. s60CC(3)(l): I have already mentioned all matters which, on the evidence before me, could be relevant and might make a difference to potential orders.

18. Overall, I have formed, for the above reasons, the strong conviction that the orders which should be made are those which were made on 7 March 2010.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate:     

Date:              27 April 2010