LAWRENCE & STOUGHTON

[2017] FamCA 336

FAMILY COURT OF AUSTRALIA

LAWRENCE & STOUGHTON [2017] FamCA 336

FAMILY LAW – CHILDREN – With whom the children should spend time – Where the mother believes the father has sexually assaulted the eldest child and the father refuted the allegations – Where the paternal family does not want a relationship with the eldest child – Where the month prior to final hearing the eldest child requests another interview with JIRT – Where the father files a Notice of Discontinuance withdrawing his Response – Where the father was present in Court but did not participate in the hearing – Decided the father removing himself from proceedings eliminating the possibility of evidence being tested, leads to a conclusion that the child has made allegations, had not withdrawn them and there is no basis for not accepting what the child says – Where the two younger children wish to maintain a relationship with the father and paternal family – Where the mother and Independent Children’s Lawyers produced Minute of Orders narrowing the dispute to whether the father spend 30 minutes or two hours with the children after weekend sport each week – Ordered the youngest two children spend time with the father during weekend sport and for a period of half an hour after conclusion of sport, with that time being extended to two hours by consent – Ordered the time the father spends with the children is supervised by the father’s current partner by arrangement

Family Law Act 1975 (Cth), ss 60CC, 64B

APPLICANT: Ms Lawrence

RESPONDENT: Mr Stoughton

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Newcastle Family Law

FILE NUMBER: (P)NCC 2677 of 2013

DATE DELIVERED: 22 May 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 2 & 3 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Graham

SOLICITOR FOR THE APPLICANT: Schofield Muir Lawyers

THE RESPONDENT: Present in Court, observing only

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Newcastle Family Law

Orders

1. The mother has sole parental responsibility for the children, B (“B”) born … 2001, C (“C”) born … 2003 and D (“D”) born … 2004, (“the children”).

2. The children live with the mother.

3. C and D spend time with the father:

   (a)       In the presence of Ms E:

   (i)At sporting events in which the children participate between April and September on a Saturday or Sunday as nominated by the mother; and

   (ii)At the sports matches in which the mother’s husband Mr Lawrence participates between October and March.

   (b)The spend time with at 3(a)(i) is to be implemented by the mother advising the father’s partner Ms E of such event and delivering the children to the father 45 minutes prior to the event and collecting them 30 minutes after the event or such longer period as is agreed between the mother and Ms E (up to two hours) on any particular occasion.

   (c)The spend time with at 3(a)(ii) is to be implemented by the mother advising the father’s partner Ms E of the event and by the father collecting the children 15 minutes before the event and the father returning them to the mother two hours later.

4. To implement the children’s spend time with the father referred to in Order 3:

   (a)The father shall not collect the children unless he is in the presence of Ms E; and

   (b)The time spent pursuant to Order 3 above shall occur in a public place.

5. Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

6. NOTING that B wished to change her name from B to B F–LAWRENCE, the mother may, without reference to the father, do all acts and execute all documents to apply for the Registrar of Births Deaths and Marriages NSW to amend the registration of the child’s birth to include the new name B F–LAWRENCE.

7. That pursuant to s 62B of the Family Law Act 1975, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

8. That pursuant to s 65DA(2) of the Family Law Act 1975I, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

9. That all outstanding applications are dismissed.

Notations:

(A)It is intended that the mother and Ms E will provide one another with their email address in order to send the sporting draw for C, D and G.

(B)It is also intended that the mother and Ms E will communicate by way of text message 48 hours before the proposed spend time with to confirm arrangements.

(C)The mother shall keep Ms E informed of her contact telephone number or email address.

(D)It is intended that the spend time with pursuant to Order 3(a) will occur each weekend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lawrence & Stoughton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC2667 of 2013

Ms Lawrence

Applicant

And

Mr Stoughton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is an application by Ms Lawrence (“the mother”) for parenting orders in respect of three children, B 15 years, C 13 years and D 12 years.

2. The children were born to a relationship between the mother and Mr Stoughton (“the father”).

3. The parties met in their teens.

4. The first child was conceived when the mother was 16 and the father 18.

5. The parties began living together in 2002 when B was a young infant.

6. The two younger children were born in 2003 and 2004.

7. In 2007 the parties married.

8. Fifteen months later the relationship between the parties broke down and the marriage ended.

9. After separation in September 2008 the father, at the request of the mother, moved out of the home and the children aged almost seven, five and three, continued to live in the home with the mother. They spent time with the father at weekends and for short visits, one child at a time, during holiday periods.

10. Six years later in late 2015, the oldest child B told police that the father had sexually assaulted her in that post-separation period 2008-2009.

11. In the year following separation both parties formed new relationships:  The mother with Mr H to whom she has a child J aged seven; the father with Ms I. There were no children of that relationship. Both of these relationships came to an end after about three or four years.

12. In the same interview in 2015 when B spoke to police she told them at this time too, post-separation of her father from Ms I, the father had sexually assaulted her.

13. Again in synchrony the parties each began new relationships.

14. The mother met Mr Lawrence, her now husband, in December 2012 and began living with him 12 months later.

15. In 2013 the father met his current partner Ms E and began living with her in the second half of that year.

16. In January 2014 the parties were divorced.

17. In October 2015 B began living with her father. Weeks later in November 2015 B, then having just turned 14, apparently told the school counsellor, who she was seeing for another reason, that her father had sexually assaulted her at particular times in the past.

18. The school notified authorities and on 3 November 2015 the Joint Investigation Response Team (“JIRT”) interviewed B. She made statements alleging abuse by her father when she was in Year 2 (2009) and in Year 5 (2012). B was placed back in the care of her mother and counselling was arranged for her at the K Sexual Assault Service.

19. On the afternoon of the day of B’s interview the father was interviewed and denied wrong doing.

20. I will turn to the nature of the father’s denial later in these reasons.

21. On 17 December 2015 a final Apprehended Domestic Violence Order (“ADVO”) was made for the protection of B from the father. The period was for two years. The father consented to the order without admissions.

Litigation Begins

1. In March 2016 the mother filed an application in the Federal Circuit Court proposing that she have sole parental responsibility for the children, that they live with her and spend no time with the father. Her Notice of Risk annexed the ADVO including the particulars which gave rise to it.

2. In April 2106 the father filed a Response proposing equal shared parental responsibility, residence of the children with the mother and time with the younger children with him.

3. On 27 April 2016 the matter was transferred by the Federal Circuit Court to this Court. The matter was considered for inclusion into the Magellan Protocol but that step was not taken.

4. There was by then, no current police investigation and no pending charges against the father and an AVDO was in place. B had apparently expressed a wish not to give evidence against her father in Court.

5. In July 2016 the parties attended on a Family Consultant for a Child and Parents Issues Assessment (“CAPIA”).

6. At that time the Family Consultant noted[1] that in her view the current situation was placing a great deal of stress on the adults and children involved in the matter. The Family Consultant also identified concerns she had regarding the father’s psychological wellbeing and the impact it was having on his level of functioning at the time of observation. She attributed this impact on the following:

   That JIRT had ceased to actively investigate the sexual abuse allegations on the basis that the immediate risk to the children had been addressed by implementing the AVDO and the matter was in the Court.

   [1] Child and Parents Issues Assessment dated 19/07/2016, pars 60-62

7. However, family members were struggling to understand what had happened:

   If the allegations aren’t true, then a great injustice has been done to [Mr Stoughton] who has effectively lost his relationships with his three eldest children. However if the allegations are substantiated and the Court finds that [Mr Stoughton] does pose a risk of harm to his children, then consideration will need to be given as to how best to manage that risk. All three children are currently mourning the loss of their relationship with the father and his family and they are expressing a wish to have this matter resolved.

   A difficult situation which has remained unchanged.

8. The mother believes that the father has sexually abused B and the father refutes the allegations. The paternal grandparents expressed the view to the Family Consultant and later repeated it that they believed that the allegations had been maliciously manufactured by B. This caused a breakdown in the previously good relationship between the mother and the paternal grandparents and other family members.

9. Just as much as her two younger sisters B expressed herself strongly as missing her father and her extended paternal family she was especially sad that she was not seeing L, the child who was then less than 12 months old, born to the relationship between her father and Ms E.

10. At that time B was hopeful “through a message for the Judge”[2]that she would be able to resume spending time with the father, perhaps on a couple of occasions per month before “things go back to normal.”

    [2] Child and Parents Issues Assessment dated 19/07/2016, par 47

11. Since then nothing has gone back to normal for B.

12. In July 2016 in the CAPIA interviews B told the Family Consultant that her father was not doing anything to her at the time of the disclosures [November 2015] however she wanted him to take responsibility for what he had already done to her so that they could move on. She said that she now knew that what had happened to her [when she was younger] was wrong.

13. Following the release of the CAPIA orders were made by consent which changed the arrangements for the younger children. The orders provided for C and D to spend time with their father in the presence of his partner for two periods of two hours and thereafter on each alternate Saturday from 10.00 am to 4.00 pm. Orders were also made for a referral to clinical psychologists for the younger children who were provided with a copy of both the Court orders and the CAPIA memorandum.

14. In October 2016 B was able to spend a short period of time with her baby sister L, the first she had seen her for almost a year.

15. The parties were directed to attend the Family Consultant again for the preparation of a Family Report. The issues were unchanged although attitudes had apparently hardened. The issues identified by the Family Consultant[3] were as follows:

    1.There was still a possibility that criminal charges might be brought against the father.

    2.The exposure of the younger children to strongly negative views of the extended paternal family about B could prove to be traumatic to the girls “particularly if they were to be subjected to competing loyalty demands or found themselves immersed in the conflict.”

    [3] Family Report dated 28/10/ 2016, pars 26-30

16. The Family Consultant recommended an ongoing restriction in regards to discussing any aspect of the matter with the children or in their presence, particularly as the paternal family believed as a group that the allegations by B were unfounded and that the father did not pose a risk of harm to the children.

17. The recommendation made that that issue needed to be fully explored during cross-examination was unable to be acted upon. The Family Consultant noted “The unquestioning support offered to the father by his parents and siblings together with their belief that [B] has deliberately manufactured the allegations and should be punished and excluded from their family is of utmost concern to the Family Consultant”.

18. That situation continued unabated by the time of final hearing.

19. The view of the Family Consultant was that there was nothing in the subpoenaed material or in information obtained during her interviews to indicate that B had manufactured allegations. Having listened to and watched the interviews between B and JIRT and the father and JIRT, I concur with that conclusion.

20. The Family Consultant also noted B had not retracted the allegations despite experiencing quite negative outcomes as a result of making them. I take this to be a reference to B’s rejection by the extended paternal family.

21. The mother was in the most difficult situation reporting that the younger girls were enjoying spending time with their father and did not want to stop spending time with him. She herself continued to worry about potential harm and experienced high levels of stress and anxiety on each occasion when they spent time with him.

22. Further, B who had been doing quite well and was fairly settled up until the two younger girls resumed spending time with the father, had begun to report difficulties with her peers at school and had started “cutting herself again.’  In the mother’s view B was taking out her anger and confusion at everyone in the family including targeting C and D when they came back from spending time with the paternal family.

23. The mother appropriately arranged for B to speak with the Independent Children’s Lawyer as well as organising extra sessions with B’s sexual assault counsellor so that after a while things had begun to settle down.

24. By this time, in October 2016 B was asking to change her surname from Stoughton to F-Lawrence. Apparently this is a hyphenated recognition of the mother’s maiden name and her current married surname.

25. The mother was expressing a high degree of concern about whether to continue current arrangements for the younger girls or not, whilst recognising that imposing conditions on them as they became older and more independent would be more difficult.

26. The paternal family maintained their position. The paternal grandmother as spokeswomen for the family in the interviews for the Family Report was clear to say that she only wanted to spend time with the two younger girls and would have “a massive problem taking [B] at this stage.”  Further, that the male members of the paternal family would not be prepared to have B in the same house as them being fearful of further allegations.

27. The Family Consultant challenged the paternal grandmother by asking her to consider what the implications might be for B if she was telling the truth and was not being believed by people who were important to her.[4]  The paternal grandmother is reported as having been “quite dismissive of this and appeared to hold an unshakeable or firmly entrenched belief that [B] has manufactured the allegations.”

    [4] Family Report dated 28/10/2016, par 63

28. The recommendations from the Family Report were as follows:

    1.That the children live with the mother and that she have sole parental responsibility.

    2.That if the sexual abuse allegations made by B were found to be unfounded then the father’s proposal for time should be implemented.

    3.If the Court was unable to establish that B had manufactured the allegations then a cautious approach would be warranted. The Family Consultant stated her position that if there was a significant risk that Mr Stoughton had sexually abused his daughter B he automatically poses an unacceptable risk of harm to all children.

    4.If Mr Stoughton poses an unacceptable risk of harm to the children then the Court is required to consider orders that would manage the risk now and into the future.

    5.It would appear that the arrangement that will best protect all three subject children from future harm would be for them to spend no further time with the father.

    6.The Family Consultant supported B’s proposal to change her surname.

29. On 6 December 2016 dates for hearing were set down and trial directions made.

30. On 8 March 2017, two months before the hearing, the solicitors who had to that date represented the father, filed a Notice of Ceasing to Act.

31. The mother and her husband filed affidavits in accordance with directions.

32. On 7 April 2017 the mother gave evidence that B asked to speak to the detective from the JIRT team. The mother made contact and made the first available appointment after the detective returned from leave.

33. On 20 April 2017 a further interview was conducted between B and police. There is no evidence before me, nor need there have been, about the contents of that interview.

34. On 28 April 2017 the father filed a Notice of Discontinuance withdrawing the Response which had been in place since April 2016.

35. The matter was relisted urgently on 2 May 2017. On that date the father indicated that he was not participating but had arranged to get advice from a duty solicitor. He asked whether he could be present for the hearing and his entitlement to do so was confirmed.

36. On 3 May 2017 the hearing commenced. The father, his partner and the father’s parents all sat in the back of the Court room throughout the hearing over the following two days.

37. Accordingly, the matter proceeded on the application of the mother, undefended by the father. The most significant consequence was that there was no opportunity for the father to be cross-examined about his response to B’s allegations or the content of his police interview on 3 November 2015. A further consequence was that the Court was unable to assess the current views and attitudes of the paternal family.

Evidence

1. The trial proceeded on the basis of the following document:

   The mother

   (a)Initiating Application filed 3/03/2016;

   (b)Notice of Risk filed 3/03/2016 (annexing an Affidavit of 3/03/2016);

   (c)Affidavit of the mother filed 29/03/2017;

   (d)Affidavit of the mother’s husband filed 29/03/2017;

   Reports

   (e)Family Report dated 28/10/2016;

   (f)Children and Parents Issue Assessment dated 19/07/2016.

1. The mother was called, gave some evidence in chief and was cross-examined by the advocate for the Independent Children’s Lawyer (“ICL”), likewise her husband.

2. The Family Consultant was called and cross-examined on behalf of the mother and by the Independent Children’s Lawyer.

3. Ultimately, the position of the Applicant mother and the ICL was similar but not exactly the same. The position of the ICL at the commencement of the hearing was that the two younger children spend time with their father each alternate Sunday for up to six hours in the presence of his partner, with changeovers at a particular family restaurant.

4. By the conclusion of the proceedings, the mother and the ICL had produced Minutes of Order.[5]  The common position was that the younger children should have the benefit of their father attending their own sporting events and should spend time with the father before and after those events [and other sporting events] before and afterwards. The only difference between them ultimately was that the mother proposed that they spend another 30 minutes after the event and the ICL proposed a further two hours.

   [5] Exhibit 6 (Applicant mother) and Exhibit 7 (ICL)

5. The father would have agreed to the original position of the ICL although it probably fell far short of the time he would like to spend however that much was indicated at the commencement of the hearing. He also accepted that any orders to be made were contingent on his partner being willing to be present throughout. I had the benefit of hearing from Ms E from the bar table that she was willing to take on that role and I am satisfied that she understood both the commitment in time and the obligation to give priority to the children over her partner’s interests.

Oral Evidence

The Mother

1. The mother is 33, her household consists of herself, her husband Mr Lawrence aged 38, the three subject children aged 15, 14 and 12, J the seven year old son from her relationship with Mr H and M, the three year child born of the mother’s current marriage to Mr Lawrence. Mr Lawrence has two daughters, each one from a prior relationship, N aged 17 who sees her father by agreement about once a month, and O aged 10 who has not seen her father for more than nine months due to a dispute between Mr Lawrence and that child’s mother.

2. The mother gave evidence in chief about B’s further engagement with the police. Sadly she also gave evidence that B had been self-harming in the previous four weeks cutting herself on her thigh and that she had been returned to counselling. On 18 April 2017 B had taken an overdose of prescription medication and has now been engaged with the Child and Adolescent Mental Health Service (“CAMHS”) and taken off her medication as a result of the overdose, with further review pending.

3. The mother gave her evidence in a straight forward manner. She was asked about her relationship with Mr H, the father of her seven year old son. She conceded that Mr H was on the Sex Offenders Register. She had formed a relationship with him; had been advised by a relative he may be an offender; the mother challenged him and he had then revealed a past history of imprisonment for molesting younger nieces and nephew as a 17 year old. The mother called the relationship off. She discovered that she was pregnant to Mr H and thereafter allowed him to be a member of the household until separation about three years later.

4. The mother has allowed time for the child (J) with his father in circumstances where a person in whom the mother has confidence is present in the household when those visits take place.

5. The evidence of the mother was that she never left the three subject children alone with Mr H. She said this, “I didn’t believe he would assault them, but it was always in my mind as a possibility”.

6. The mother was then taken to the fact that the father’s partner in these proceedings is likewise supervising time with the two younger children and their father at present.

7. The mother readily conceded that she had no reason to doubt the vigilance of Ms E, indeed, the evidence supports a very impressive co-operative relationship between the two women.

8. Likewise the mother freely conceded that the younger children miss their father and especially expressed a desire for him to attend their sports events, C playing soccer and D netball at least through the winter months. The mother was clear to say that she agreed the father should be present to watch the girls sport.

9. The mother and Ms E have been managing the sporting fixtures, taking into account B also playing soccer with the father not to come into contact with her pursuant to an AVO and it is to the credit of both of them, that that has been arranged.

10. I conclude that the mother believes that B has been molested by her father, fears for the safety of the two younger children and has struggled with how to balance the wishes of the younger children against the need to keep them safe.

11. I do not consider that the mother has behaved punitively towards the father, quite the reverse. The fact that the two younger girls are so positive about the father and the extended family is compelling evidence that the mother has done nothing to undermine those relationships and of the fact that she has protected them from the details of the allegations of their older sister.

12. I accept the submission by counsel for the mother that in circumstances where she is the one carrying full responsibility for the care of the children the orders made should be consistent with what she can manage. Had it been the case that the mother had urged the Court to cease all contact between the younger children and the father, that is the course that is likely to have been taken.

13. I am satisfied that the mother is doing her best to protect the relationships of the three siblings and to protect the relationship between the two younger girls and their father and his family. Given the attitude of the paternal family it is certainly a difficult task for the mother to undertake.

The mother’s husband – Mr Lawrence

1. Mr Lawrence presented as a straight forward and respectful witness. He had expressed the view in his affidavit that he believed that the family situation would be easier when the confidentiality surrounding the proceedings was reduced.

2. Since that affidavit was sworn B has made a further statement to police and it is likely that restrictions will continue on what can be discussed in the household if it is the case that charges against the father are contemplated.

3. I conclude that Mr Lawrence is a source of unwavering support to the mother and whatever decisions she makes in relation to the three subject children.

The Family Consultant

1. The Family Consultant expressed with great clarity the balance of risks for the younger children. When she was given the information that B had made a further statement she said this, “[B’s] escalating distress and wanting to take legal action will have a huge impact on family dynamics. The girls might be tipped either way in their loyalties”.

2. The younger girls have continued to be warmly regarded by the paternal family and each of them strongly wishes to maintain contact with their father and all family members. Their preference would be to be spending weekend and holiday time in the old way.

3. The Family Consultant noted that whilst their safety would be most effectively ensured by discharging any order for time between the girls and their father, the risk of such a course was that at 14 and 12 and in the years to come, they would likely reach out to the father and his family. Even so, I accept the analysis of the Family Consultant. The two younger girls know that “something bad, something sexual” has happened between B and their father. For good reason the details have been withheld from them and I accept what the Family Consultant said about the adverse impact on them at this age of knowing any more detail.

4. One of the difficulties is that the paternal family has taken a position that B is the problem, that she has manufactured untruthful stories about the father and that the paternal family wants “nothing to do with her.”  In those circumstances the girls will be exposed to harshly critical views of their older sister. There is risk to them in exposure to those views but there is risk to them being kept away from their father, to at least some extent, they share in the extended family’s sympathy for his position.

5. The Family Consultant was strongly in favour of limited time with the younger children not to be left alone with the father but in a natural setting. The benefit she saw was that periods of time would happen often, although less than they wanted, and that the nature of the orders might communicate to them that there was more to their sister’s situation and her exclusion from the paternal family than they presently understood.

6. In circumstances where the mother herself has come to that view, I accept that the balance of risk falls in favour of such a regime of time for the younger girls.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between children and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Parental Responsibility

1. The mother has applied for sole parental responsibility and it is unopposed and supported by the ICL. Likewise, that the three children live with their mother.

2. The issue between the ICL and the mother is the period of time after a sporting event for the children with their father. The mother proposes 30 minutes, the ICL proposes two hours. The time is every weekend, either on a Saturday or Sunday. In those circumstances it appears to be unrealistic to expect that a period from 45 minutes before a sporting event until two hours after the conclusion of a sporting event on one day of every weekend is likely to be a good outcome for the children at their present ages, more suitable for D than C, increasingly unsuitable for both of them in circumstances where time will not develop into extended unsupervised time.

3. The value of the time is so that they can regularly see their father and enjoy the knowledge that he is watching them, playing the sports they enjoy. There will be the added benefit of seeing the father’s partner whom all the girls are very fond of and their young child L and Ms E’s older son G, now 11.

4. No doubt the members of the paternal family will also come along to sporting events on most occasions.

5. The most appropriate course is to make the order sought by the mother with the addition of these words:

   Time to be spent is to be implemented by the mother advising the father’s partner [Ms E] of such event and delivering the children to the father 45 minutes prior to the event and collecting them 30 minutes after the event or such longer period as is agreed between the mother and [Ms E] (up to two hours) on any particular occasion.

Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

C

1. C will be 14 in two months time. C presented to the Family Consultant as being without worries or problems in her mother’s household, with school going well for her.

2. C also has fun when she sees the paternal family. She said she understood that it made B sad to think about how she was missing out and that she tried not to think about it in front of B.

3. The extent of C’s innocence about B’s complaint about the father is contained in the following statement:[6]

   [C] said that she would be very unhappy if she were to stop spending time with her father. She said that she knows that he did something wrong to [B], however she just wants things to ‘get back to normal again’. She said that she has never felt uncomfortable around her father and does not believe he would ever do anything to harm her.

   [6] Family Report dated 28/10/2016, par 70

4. C’s strongly expressed view was that she wanted to spend more time with her father and his family and felt that the current arrangements did not really allow for enough time with them. The current arrangement being six hours on one day of each alternate weekend. However she went on to say that she would comply with any arrangements that her parents agreed on or any conditions the Court might impose. She is looking forward to being able to make her own decisions once she is old enough to have a say.

D

1. Likewise, D said she enjoyed seeing her father and his family and that she had missed them. This must be a reference to the period between November 2015 and August 2016 when the children did not see their father at all.

2. D too stated that she knew it was hard for B when she and C went to visit the paternal family and B stayed behind. She was aware that B missed her baby sister L.

3. D expressed the view, not only that she would like more time with her father but that she would like to have him come and watch her play sport. She wanted weekend time with him, including overnight time. She too said she understands that her father did something wrong to B and that is why B does not see him anymore. She said she felt sad about that but did not think her father would ever do anything to harm her in any way.

4. As for her sister C, D said she has no worries or problems in her mother’s household and gets along well with all the other members of the family.

B

1. The views of B are markedly different. She has had no contact or communication with her father since the disclosing interview. When she did spend time with L the child did not recognise her. B has suffered many losses as a result of her disclosures about her father.

2. In October 2016 when she spoke to the Family Consultant, B had become angry with her father and his parents; angry about the way they had “rejected her for telling the truth about what happened.”[7]  She strongly expressed her view that it was very unfair that she was being blamed for something that had happened to her as a child and that she had been working with her sexual assault counsellor to understand everything that has happened.

   [7] Family Report dated 28/10/2016, par 80

3. It was particularly painful for her when her younger sisters began seeing their father again and came home, telling her [B] how much fun they had been having with their father and grandparents.

4. B had started cutting herself again at that time. She has been helped to develop some strategies to avoid self-harming around her feelings on this topic.

5. B also expressed worries about the safety of her sisters including the baby sister L, “[B] has said that she is specifically concerned that if something does happen to any of them, they will feel afraid to speak out given that nobody in ‘his family’ believed her.”  This statement by B in my view is a reflection of how far B has come in understanding what happened to her and what the potential risk is to her sisters.

6. On the home front, B reported herself as getting along much better with her mother and step-father, feeling a lot closer to them. She was also enjoying her new school, had made friends and had a part-time job and was enjoying having received her first pay.

7. She strongly expressed the view that one thing that would help her was to change her surname and that she had chosen ‘F-Lawrence’ as her new surname, linking her mother’s family and her step-father’s family. She no longer wants to identify as a Stoughton.

8. The Family Consultant noted that this strong wish of B’s to create a new identity is not uncommon in adolescents who have experienced sexual abuse from a family member and could be viewed as developmentally appropriate in regard to her recovery and identity formation.

9. The mother will have sole parental responsibility for the children and can assist and authorise such a change if she wishes to do so.

10. Provision will be made in the orders accordingly for certainty.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. Having viewed the audio visual tape of the interview with B, two days after her 14^th birthday, I conclude that she appeared to be recalling her lived experience, she did not appear to be repeating rehearsed statements, nor to be under pressure to get a particular story on the record.

2. B presented as sad, nervous and embarrassed. She was clear to say that certain events [forced fellatio on her father] had occurred. She was also clear to reject allegations put to her on a leading basis as “Someone told us that this happened [anal sex].”

3. B appeared to understand truth and lies.

4. I was left with the impression that she did not reveal all that was in her mind about historical events involving herself and her father.

5. B spoke with feeling about her love for her father and how happy she had been to live in his household in the weeks prior to her JIRT interview. It is apparent that in her innocence B believed that she would tidy up the past, that her father would acknowledge events and that they would move on happily together into the future.

6. If it is the case that the father used B for his own sexual gratification by forcing her to perform fellatio on him, that criminal conduct is of course a betrayal of his duty as a parent. Further, by denying all wrongdoing to police and family, the father would be aggravating that betrayal by exposing B to the criticism and rejection of her paternal grandparents and depriving her of a relationship with her step-mother Ms E, her baby sister L and Ms E’s son G.

7. If it is the case that the father did not sexually abuse B then something has motivated B to make untruthful statements to the school counsellor and to school friends about alleged misconduct by her father, and to repeat those allegations to police in a formal interview.

8. There is nothing in the evidence to indicate what could have given rise to such conduct. Indeed the evidence of the father in his interview with police was that none of the children had been happy living with their mother by 2015; that he and his partner had decided to keep B with them at her request; that she had been open and happier in his company.

9. The father was asked specifically had anything inappropriate happened with B. He said, “Nothing that he could recall”. He was asked whether anything sexual had happened between himself and B to which he answered, “Nothing that I’ve done or recall at all”. He was asked whether he had forced B to perform sexual acts and he answered, “I wouldn’t force anything on anyone”.

1. As directed questioning went on the father acknowledged as probably mistaken that his earlier statements to the police that he had been depressed after separation from the mother and again after his separation from the next relationship with Ms I but had hid that from the children. When confronted with B’s statements that she knew the father was depressed, “I didn’t hide it too well then.”

2. The father was asked whether he needed comforting, “I don’t remember any of that.”  I do not consider that that response was consistent with outright denial.

   Q.You made her suck your penis.

   A.Nah. Wouldn’t have done anything like that.

   The police officer then said,

   Q.       Wouldn’t or didn’t?

   A.Didn’t.

   Again the initial response was not an outright denial.

3. The father, when given the opportunity to talk about the child’s allegations said he did not understand why B had made them, “No idea.”  He then made the statement,

   It’s not right to do it, any kind of sexual act to a child.

   Q.       Why would [B] say that?

   A.       No idea. No idea.

4. The proposition was put to the father that B had told him to stop what he was doing [acts of a sexual nature] at the Suburb P house. Unfortunately the father’s response distracted from this point and was not taken up again by the interviewer.[8] 

   [8] Exhibit 4, at 58 minutes and 10 seconds

5. The father’s response to whether or not he had asked the child for comfort or attention was “I never seek any attention from her…, never cried on her shoulder… never seek anything from her. I can’t see how a child can help depression at all. I know I should have talked to somebody….

6. The father was asked this question[9],

   Q.Has there ever been a time or an incident when accidentally she has come near your penis?

   [Pause of about 20 seconds]

   A.I can’t say yes, but there might have been a time there when it might have happened ....that’s happened … I can’t remember.

   [9] Exhibit 4, at  1hour 1min and 56 secs

7. The father was specifically asked why he thought B would say these things if they were not true. His answer was, “I can’t explain why. For attention. [Q] had quite a bit of attention. I can’t explain it”.

8. The reference to Q is to a relative of Ms E who had been molested by her mother’s new boyfriend with Ms E stepping in to assist the child and having her removed from the family.

9. The father was asked whether the child had made sexual references. He referred to the fact that the child had done so and described amongst other incidences, this one: “[G] had a hotdog in his lips and she [B] broke out laughing. I asked her why, she said ‘It looked like he was sucking a penis’”.

10. The father’s  response to her words was, “We told her he [G] shouldn’t know those things”

11. It was only a question by the interviewing police officer that raised the topic with the father of why B had known those things:

    Q.How do you think she knows about it?

    A.No idea.

12. It is a strange situation like that that there was no immediate response to the child by the father as to where her knowledge about “sucking a penis” had come from.

13. On balance, I conclude that the father did not make unreserved denials of misconduct in his interview. That is not to say that the Court is in a position to make a finding. It is not. However the fact that the father had removed himself from the hearing, eliminating the possibility of the evidence being tested in that regard, leads to a conclusion that the child has made the allegations, has not withdrawn them and there is no basis for not accepting what she says.

Conclusion

1. Orders are made in accordance with earlier analysis.[10]

   [10] Paragraph 96

I certify that the preceding one hundred and thirty six (136) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 22 May 2017.

Associate: 

Date:  19 May 2017