Leighton and Carey

[2008] FamCA 868

FAMILY COURT OF AUSTRALIA

LEIGHTON & CAREY [2008] FamCA 868

FAMILY LAW – CHILDREN – 6 year old girl – Allegation of sexual abuse – Counter-allegation of alienation – Heard evidence in relation to sexual abuse – Positive finding of sexual abuse – Matter stood over for parties and ICL to consider consequences

APPLICANT: Mr Leighton

RESPONDENT: Ms Carey

FILE NUMBER: BRC 11394 of 2007

DATE DELIVERED: 16 October 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 16 October 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Shoebridge, Simonidis Shoebridge

THE RESPONDENT: Respondent appears on her own behalf

COUNSEL FOR THE INDEPENDENT CHILDRENS' LAWYER: Mr Cameron

SOLICITOR FOR THE INDEPENDENT CHILDRENS' LAWYER Legal Aid Queensland. Brisbane, Qld

Orders

IT IS ORDERED THAT

1. The matter be adjourned for further hearing to 9.30 am on 12 November 2008 before the Honourable Justice Jordan.

2. The Applicant and the Respondent have leave to appear by telephone-link on 12 November 2008 if desired.

3. Until further order, the Father have such supervised time as may be agreed to between the Father, the Mother and the Independent Children’s Lawyer.

4. The Family Consultant, Mr F, or some other Family Consultant assigned by the Manager, Child Dispute Services, attend upon the child, to properly explain the circumstances she now finds herself in.

IT IS REQUESTED THAT

1. Mr F, Family Consultant, make himself available either personally or by telephone-link at the further hearing of the matter at 9.30 am on 12 November 2008.

IT IS FURTHER ORDERED THAT

1. The Mother, Father and any third parties refrain from discussing the proceedings with the child.

2. Pursuant to Section 65L of the Family Law Act, the compliance of the parents with orders that the child spend time with the father must, as far as practicable, be supervised by a Family Consultant nominated by the Manager, Child Dispute Services, Brisbane Registry, and such supervisor is to provide each of the parents with such assistance as he or she reasonably requests in relation to complying with and carrying out these orders.

3. The Family Consultant furnish to the Court an oral or written report pursuant to the Section 65L order at the further hearing of the matter.

4. Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT  BRISBANE

FILE NUMBER: BRC11394 of 2007

MR LEIGHTON

Applicant

And

MS CAREY

Respondent

REASONS FOR JUDGMENT

ex tempore

1. In this matter, there are competing applications by the parents for orders in relation to the care of their daughter, born in December 2001.  The father seeks orders for shared parenting and equal time.  The mother seeks orders for sole parenting and supervised time only.

2. The parties have each been burdened by unresolved allegations of sexual abuse which have remained outstanding since 2005.  There have been previous proceedings and previous final orders but the issue of the possible sexual abuse of the child has never been the subject of a hearing and determination.  Each of the parties is adamant that they want that question addressed once and for all so that they and their daughter can move forward without the spectre of that issue hanging over their heads.  They each agree that the matter is of fundamental importance and that the outcome of the hearing on that point might largely define the outcome of the substantive proceedings.

3. The parties and the independent children's lawyer have agreed that the issue of the past sexual abuse of the child and the assessment of ongoing risks should be assessed as a discrete and preliminary issue and the evidence and submissions to date have been directed to that matter.

4. Before embarking upon those deliberations, I need to again record what I have previously informed the parties.  The task before the Court is not one the subject of science.  The determination is a most difficult one involving the inherently hazardous task of applying adult interpretations to the words and actions of young children with limited maturity, knowledge and verbal skills.

5. I am acutely aware of the grave consequences for all involved in this matter.  I bear the burden thrust upon me heavily.  I trust the parties respect that I have endeavoured to do my best by them and by their daughter.

6. I appreciate that the consequences of any determinations and orders I make are potentially grave.  On the one hand, the Court may be asked to deny a child a relationship with a parent or deny a parent the opportunity to have a child spend time with him or her.  On the other hand, the Court is required to contemplate the prospect that an order for ongoing relationships may be an order placing a child at risk of abuse of a most serious nature which, itself, would have a far-reaching impact upon the welfare of the child.

7. At the same time, I need to stress that it is not the role of trial Judges in the Family Court to hear sexual abuse cases as criminal trials designed to establish the guilt or innocence of the party and it would be entirely inappropriate to proceed on the basis that ongoing contact is the reward for an acquittal and a denial of it the punishment for a conviction.

8. The primary issue for the Court is not whether a parent has sexually abused a child, but whether in all the circumstances of the case orders for an ongoing relationship should be made following a consideration of all the relevant matters set out in the Family Law Act.

9. The Court must determine whether, on the evidence, there is a risk of abuse occurring if the relationship is sustained, and the existence and magnitude of the risk of abuse, as with other risks of harm, is a fundamental matter to be taken into account in deciding those issues.

10. The Court should exercise appropriate caution in deciding whether positive findings should or should not be made.  Positive findings impact heavily upon all family members.  If a trial Judge elects to consider making positive findings on the issue of abuse, it is clear from the law that a Court should not make such a finding unless it can be satisfied according to the civil standard of proof referred to in Briginshaw v Briginshaw (1938) 60 CLR 336, that is, that findings against a person accused of such matters should be made only upon convincing evidence and upon a firm satisfaction.

Background

1. After a short relationship, the parties separated in February of 2002 when the child was just three months old.  The child has traditionally been cared for by her mother and spent time with her father.  The father complains that the mother has sought to limit his time with the child and, whilst one readily understands that the father would like to have had more time with his daughter, it will be necessary to conduct an objective overview of the history to determine whether that complaint is made out as part of the background relevant to a consideration of the competing assertions of the parties.

2. It is common ground that there was a substantial disruption to the relationship between the child and her father in August of 2005, when the mother made a notification to the Department of Child Safety raising concerns of possible abuse.  At that time, the mother notified the father through solicitors of her intention to suspend contact pending further investigations.

3. It is necessary to examine the circumstances surrounding those events.  The father asserts that the notification was part of a course of conduct on the part of the mother designed to inhibit or end his relationship with his daughter.  He contends that he has always had to struggle to secure time with his daughter and that the mother has engaged in a deliberate campaign to deny him and his daughter that opportunity.

4. The father argues that the alleged disclosures by the child are either complete fabrications and/or that any disclosures made by the child have been coached by the mother.  The father maintains that he did not sexually abuse his daughter and that she is not at risk in his home.

5. In order to explore these issues, I need to review a number of aspects of the evidence, including the following:     

   (i)             the inherent probabilities and profile of the parties;

   (ii)            the testimony and presentation of the parties;

   (iii)          the evidence of abuse;

   (iv)the circumstances surrounding the allegations of abuse and an evaluation of the totality of the evidence.

1. Inherent Probabilities and Profiling

1. I commence by observing that the notion that a father has sexually abused his own daughter is an inherently improbable one.  Most fathers are incapable of such behaviour.  It is against our society's norms.  At the same time, it needs to be acknowledged that, regrettably, such abuse does occur.  I accept that within the small population of men capable of engaging in such behaviour, some are more predisposed than others.  Men with certain profiles and backgrounds may be more predisposed.  There has been no such profiling in this matter. 

2. From the father's point of view, I need to record that there is no evidence in relation to his character or personality from which conclusions of such a predisposition could be drawn.  In this context, I should observe that there is nothing to indicate that such profiling was necessary.

3. Equally, I observe that the prospect that a mother would deliberately enlist a young child to falsely accuse her father of sexual abuse is, in my view, an equally improbable one.  Such behaviour would be grossly abusive and harmful and against parenting instincts.  At the same time, I need to acknowledge that such behaviour does regrettably occur from time to time.  Again, some women with troubled presentations or histories might be more predisposed to such abuse, but again there is nothing in the evidence in this case to the effect that the mother falls into that category.

1. Testimony and Presentation of the Parties

1. The father presented as a credible and convincing witness.  He was resolute and entirely untroubled by cross-examination.  There was nothing in the father's account or presentation which would result in adverse inferences being drawn against him.  It is noteworthy that there was a consistency in his various accounts of this matter he gave to the Court and those he gave to the police, the Department and to other experts.

2. The mother's presentation before me was no less credible and convincing.  There was also a fundamental consistency between the information she gave to the Court and that she has been required to provide to a number of agencies on many occasions in the past.  Her presentation and emotional reaction in the face of testing cross-examination and difficult subjects was entirely congruent with the matters under discussion.

1. Evidence of Abuse: Disclosures

1. The primary source of evidence of abuse, in one sense, is the mother.  The mother says that she has observed behaviour and heard statements from the child which had convinced her that abuse had taken place or, at the very least, which observations left her with a grave concern that the father may have been abusing his daughter.

2. She says that her concerns were first aroused when the child was very young and presenting with a reddened vagina.  In this earlier time, she said the child once made an equivocal statement about the father touching her.  The mother says she took the child to a doctor on two occasions to address her concerns but said that the doctor did not draw any conclusions which heightened those concerns.

3. She says that, in 2004 and 2005, the child started to exhibit sexualised behaviour, including rubbing her genitals, inserting a toothbrush into her vagina and rubbing against furniture in ways which she regarded as unusual and of concern.  She said that the behaviour increased during 2005 and that, on occasions, it appeared to be more pronounced after contact with her father.

4. The mother said that, later in 2005, the child commenced a practice of inserting her fingers into her anus or genital area and smelling her fingers.  The mother says that, on 15 July, she discovered the child playing in a toy box.  She said that the child had urinated in the box and was again poking herself around the bottom region and trying to touch her mother.  The mother says she took her daughter to the bathroom and ran a bath and later observed her again playing with her genitals. 

5. When the mother questioned the child, she said, "That is what we do at daddy's.  Sometimes the dogs have licked me there".  She recorded the child saying later, "If you rub it too hard, it can bleed sometimes".  She said that later, the child placed her hand in the front of her vagina and said, "Daddy does that to me, he makes it go in and out".

6. The mother says she questioned the child and the child eventually said she did not want to talk about it any more, and that if she did so she would be sent to Sydney.  The mother records the child later saying, "Daddy put his fingers in and out, sometimes it bleeds down there".

7. The mother said that she became increasingly shocked by what she was hearing and found it difficult to maintain her composure and that, eventually, she ran into the toilet to hide her feelings from her daughter.

8. In terms of her response to the disclosures, the mother said that she was very troubled, confused and anxious about what she had been told by her daughter and about how she should react to it.  She said that she was in turn concerned about the father's reaction if she raised the matter with him.  She said that, in part, she was also in denial because she did not want to believe what she had been told.

9. The mother explains that, as a consequence of that confusion and uncertainty, she sent the child to her next contact visit with her father.  She reported that on the way to that contact, the child said to her, "Daddy only put nappy cream on me".  The mother said she found that statement curious, as the child had not been using nappy cream for some considerable time.

10. The mother also reports that when the child returned from that contact, there was some more rude behaviour and some discussion about play with a young child called Y in the father's household, which was sexualised in nature, and she records that, when questioned about it, the child made two observations in the following terms, "daddy watches", and "daddy does it too".

11. The mother says that she contacted the Department on 29 July by phone and outlined the nature of her concerns and attended at the office on 1 August to provide a statement.  The child was interviewed later on that day.

12. It is common ground that the child did not make any disclosures implicating her father and that, indeed, she largely spoke in positive terms about her time in the father's household when she was interviewed by the police. 

13. The father was interviewed on 13 and 19 August and he did not make any admissions and was firm in his denials.  At the same time, he raised concerns about the mother's false allegations.

14. The matter came before the Court on 23 August 2005, when orders were made for limited supervised contact.  After the hearing, the father assaulted Mr S, who was with the mother for support on that day.  The assault took place at the Family Court in front of the mother, the maternal grandmother and the mother's solicitors.  The father was charged and convicted of that assault.

15. As a consequence of the assault at the Family Court, the nominated supervisor was no longer prepared to supervise the father and the supervised contact order was unable to be implemented until October of 2005.  The father enjoyed supervised contact until consent orders were made in February of 2006, which provided for increasing unsupervised contact culminating in contact on alternate weekends and half the school holidays, a regime which the father has continued to enjoy to this time.

16. The mother’s consent to orders for unsupervised contact at that time in the face of unresolved allegations of sexual abuse attracts understandable criticism in terms of the genuineness of her stated concerns for her daughter’s safety.  In relation to those consent orders, the mother says her concerns about possible sexual abuse had not diminished.  She said, however, that she felt defeated and without support.  She felt limited by the fact that both the police and the Department of Child Safety had investigated the matter and had determined that there was insufficient evidence to take the matter any further.  She said that she had been unable to provide any further evidence.  She said she felt that she was not believed and that, in that environment, she said she was told that, if the Court made adverse findings against her and concluded that she had fabricated the case of sexual abuse, she could lose residence of the child.  She said she was scared by the prospect that the child might be in the fulltime care of her father and that, in all the circumstances, reluctantly agreed to the contact as a better option than seeing the child in the fulltime care of her father.

17. The orders provided for ongoing counselling and the mother arranged to have the child attend the local Services Against Sexual Violence, where she was seen by Ms P up to July of 2006 and by Ms L between July 2006 and February of 2007.

18. It appears from the records that the service was extended to the mother and the child to provide them with support and strategies for dealing with anxiety and the child’s sexualised play.  During her involvement, Ms L became concerned that the child was exhibiting symptoms consistent with sexual abuse and she reported her concerns to the Department of Child Safety in accordance with her obligations to do so.  I will return to the basis upon which Ms L reached her conclusions later.

19. Ms L was requested to provide a report to the Department of Child Safety, which she did in January of 2007.  In that report, Ms L set out her conclusions which included expressing the view that the child had been sexually abused and that the perpetrator of that abuse was the father.  She recommended cessation of contact and ongoing therapy for the chlid and the mother.  I will comment upon that report and the conclusions reached by Ms L later.  Having provided that report, Ms L was required to discontinue her counselling.

20. The mother says that the child has progressively improved since the 2006 orders, in that there has been a substantial reduction to the frequency and extent of sexualised play and masturbation activities, together with a reduction to the level of anxiety about attending for contact.  The mother acknowledges that the child presents as having a close and comfortable relationship with her father.

21. Notwithstanding these positive developments, the mother says she remains very concerned about the child’s safety and wellbeing in the father's household.  She says that she genuinely believes the disclosures made to her by her daughter and is convinced that her sexualised play was a by-product of abuse.  She says she feels she has failed to protect her daughter properly in the past and she now asks the Court to examine all of the evidence and make the findings and orders necessary to protect her daughter.

22. The father continues to reject the allegations against him and accuses the mother of fabricating her concerns.  He, too, seeks closure on this issue and asks the Court to make findings which enable him and his daughter to move forward.

1. Relevant Circumstances Surrounding the Allegations and Evaluation of the Totality of the Evidence

1. In asking the Court to reject the mother's evidence of abuse, the father asks the Court to examine the history and context of the allegations and suggests that, like himself, the Court will conclude the picture painted is one of antipathy, manipulation and retribution.  He says that the mother and maternal grandmother have embarked upon a campaign designed to vilify and marginalise him with a view of diminishing or extinguishing his relationship with his daughter.

2. In particular, he points to the fact that, just two days prior to the alleged disclosure, he had placed the mother on notice of his intention to seek an extension of his time with his daughter through Court processes.  He suggests that this precipitated the mother's notification to the Department in a background of the type of antipathy he has identified in this case. 

3. It is clear that high levels of mistrust and antipathy do exist.  The mutual disdain between the father and the maternal grandmother, in particular, is quite palpable.  On the father's account, the maternal grandmother's hostility towards him was instantaneous, unjustified and all-consuming.  Of course, it is not my task to apportion blame, but suffice it to say that there has been a number of aspects of the history which would be likely to cause legitimate concerns for an involved grandmother.

4. The mutual mistrust between the mother and father is also entirely self‑evident.  The proposition of the father is that, in order to punish the father, the mother and maternal grandmother have fabricated allegations of sexual abuse and enlisted the direct involvement of the child in that exercise and have, in turn, unnecessarily exposed the child to medical examination, investigations and months of therapy. 

5. In the face of that assertion, it is necessary to look at relevant aspects of the history.  Apart from the surrounding disclosures and subject investigations, what does the history demonstrate about the mother and her support or lack of it for the relationship between her daughter and the father?  Does the history indicate that this is a case of parental alienation?

6. The father asserts that he has had to struggle to secure his relationship with his daughter.  I am afraid that an objective view of the evidence does not support that proposition.  The mother says that it was the father who left the home and the child when the child was only months told.  On the evidence, it would appear it was the mother who initially encouraged contact and to facilitate same allowed the father to attend at her home two or three times per week when the child was a baby.

7. It is clear there were issues about the pace at which time between father and the young child might be extended and neither party could be criticised for those types of differences of opinion.

8. I find that, thereafter, however, over a difficult five-year period, the mother has largely complied with Court orders and the obligations to provide contact.  There have been isolated differences, some which resulted in what could be regarded as somewhat hasty contravention applications.  The mother swore in her affidavit that there were only two visits missed prior to 2005 and that they were both for medical reasons.  She says that medical certificates were obtained and provided.  The mother was not challenged on that evidence.  The father's case that the mother had a history of interference and non-compliance was not pressed and, in my view, with good reason.  In the two and a half years since unsupervised contact was reinstated after the allegations of abuse, the mother has ensured that the child has been made available for all of the contact ordered.

9. In terms of the father's assertion of alienation, what is more noteworthy is the fact that the mother is the one who delivers the child to the father and collects her at the end of every contact visit.  Whilst that has, in part, been necessitated by the mother's preference to have a handover at a contact centre, the end result is that it has been the mother who has been required to undertake a round journey of some 400 kilometres every time the father is to see his daughter.  That she has done so solely and endured the physical strain and financial cost of that exercise week after week for two and a half years is not only a testament to her, but is a fact which strikes at the fabric of that aspect of the father's case against her.

10. Further, another striking feature of this aspect of the case is the lack of evidence of coaching.  The child did not make disclosures to police officers and Departmental officers.  To the contrary, she felt free to discuss the father in very positive terms when this campaign of manipulation and alienation was supposedly at its peak.  She did not make any disclosures to Ms P or Ms R in over 12 months of sexual abuse counselling.

11. Even in her own case, the mother does not ascribe to the child a series of never‑ending and escalating tales of abuse.

12. Ms L said that, in her opinion, there was a distinct lack of indications of coaching on the part of the mother or the maternal grandmother.  There was no sign of adult language, no incongruent volunteered statements implicating the father and not once, over that 12-month period, did the child indicate that her mother was telling her to say negative things about the father.  If this was indeed a concerted campaign by two manipulative adult females, it must be observed that they have done a very poor job.

13. Further, in my view, the best evidence on this point is, in fact, the relationship between the father and the child.  It is observed by all concerned to be a positive, comfortable relationship with sound attachments.  Again, if, as the father would contend, the mother and maternal grandmother in tandem have conspired for years to alienate the father and embarked upon a campaign of vilification and undermining of the relationship, there is absolutely no sign of such a campaign in the presentation of the child.  Indeed, the quality of the relationship between the child and the father suggests everything to the contrary.

14. I must not close on this topic without observing upon an aspect of the evidence of the maternal grandmother on this point.  She was directly challenged with the proposition that she had participated in a campaign of manipulation of this child. The strength of the grandmother's denials and the distress and abhorrence exhibited by her at that time was quite a pivotal moment in the trial and represented most compelling testimony indeed.

15. In a similar vein, when the mother was observed in the witness box struggling with her beliefs and concerns, on the one hand, and some of the possible outcomes, on the other, her distress gave an indication that it was real and unrehearsed.  I reject that aspect of the father's case. 

16. I find that the mother and maternal grandmother have not engaged in the grossly abusive behaviour of causing the child to fabricate allegations against her father and that they have not, thereafter, exposed her to months of examination, investigation and therapy without proper cause.  I find that, rightly or wrongly, they each genuinely believe the statements made by the child and believe that she was a victim of abuse in the father's home in the past.  I accept that they genuinely believe that she may be at risk of abuse in the future.

17. I accept that the child made the disclosures which could be indicative of abuse and, further, that the conduct of the two women thereafter was, in all the circumstances, reasonable.  I include in that favourable overview, the mother’s decision to consent to orders for unsupervised contact in 2006.  I do not have any difficulty accepting the proposition that a mother might capitulate, notwithstanding her concerns in the face of the knowledge that the police and the Department had investigated and concluded that there was insufficient evidence.  I accept that she could well have received advice that an adverse finding against her could result in a loss of residence.  I accept that any mother could find herself in a most invidious position and with little room to manoeuvre.  

Secondary Evidence of Abuse

1. Having examined the direct disclosures and the circumstances surrounding them, I then turn to the supplementary evidence.  There is a great body of evidence to the effect that the child has presented with a long history of sexualised behaviour.  The sources include the mother, the maternal grandmother, the child's teacher, Ms W, Ms L and, to a lesser extent, the father and his wife, Mrs Leighton. 

2. The pattern of behaviour which emerges from that evidence is as follows:

   (a)the sexualised behaviour persisted over a number of years and was particularly pronounced between 2004 and 2006 inclusive;

   (b)during those periods, the sexualised behaviour and episodes were frequent and persistent;

   (c)included in such episodes, it was observed that the child would engage in manual stimulation, use of objects such as toothbrushes, rub against furniture or other objects, insert her fingers around her genital region or anus, and smell her fingers and ask others to smell her fingers;

   (d)such behaviour would occur in front of others, including not only family, but also teachers, counsellors and young friends;

   (e)the conduct would be persisted with despite directions to cease;

   (f)the behaviour would often be associated with elevation in emotional reaction, including reactions such as stress or anxiety, and would often be accompanied by signs of anger;

   (g)at other times, when engaged in such behaviour the child would be observed to disassociate and descend into trance-like presentations for extended periods;

   (h)that such behaviour was often noted to be more pronounced during periods shortly before or after contact with the father.

3. Before the Court are two reports which purport to comment upon and provide analysis of the allegations surrounding the child.  I have already made reference to the report of Ms L dated 23 January 2007.  Mr T, psychologist, provides a report dated 4 April 2008, Exhibit 1, which includes some commentary upon aspects of Ms L’s report.

4. It is clear that Ms L was originally retained to provide therapy to the child, in particular. The report which is now before the Court at the very least purports to undertake a forensic exercise.  There is valid criticism of that approach both from Mr T and Mr Shoebridge, who appears for the father.  Mr T highlights the appropriate professional criticism attached to blurring the lines between therapy and forensic exercises.

5. By way of background in terms of dealing with that criticism by Mr T and Mr Shoebridge, it does need to be observed that Ms L no doubt found herself in a difficult situation.  Having concluded that abuse may have occurred, she was then obliged to report such matters to the Department and that, in turn, prompted a request by the Department to provide a report to justify her concerns.

6. The explanation of how the report came about does not, however, invalidate the criticisms about blurring the lines and it is appropriate that I exercise caution when reviewing aspects of Ms L’s report.  At the very least, for those and other reasons, including the predominantly one‑sided nature of the report, I expressly take no account of the direct conclusions reached by Ms L at the end of the report to the extent that they purport to determine that sexual abuse has occurred and that the father was the abuser.

7. In other respects, however, I take the view that I am entitled to have regard to features of Ms L’s evidence where it purports to express opinions about inferences that may be drawn from certain facts.  No-one has challenged Ms L’s qualifications as a psychologist or her experience in relation to matters of sexual abuse.  She makes reference to appropriate research to support some of her conclusions. 

8. Criticisms about Ms L drawing conclusions on one-sided observation are erased if I make findings of fact which are consistent with the information upon which Ms L based her assessments.  I accept the evidence of the mother, the maternal grandmother, the teacher, Ms L and the counsellors at R House about the presentation of the child and the long history of sexualised behaviour. 

9. Ms L was of the firm opinion that the ingredients of sexualised behaviour described by me in sub-paras (a) to (h) above were outside the norm of common, innocent sexual exploration of a young child.  She said that the fact that the child's sexualisation was associated with elevated emotions such as anxiety and anger, the fact that she persisted with such conduct in public and despite directions to desist, the fact that such excessive sexualised behaviour extended over such a long period and the fact that it was on occasion accompanied by statements exhibiting knowledge of matters sexual well beyond the child’s years and experience, and that at other times the child was seen to be fixated and dissociated, were all factors inconsistent with innocent, pleasurable discovery and, in her opinion, indicated that the extensive sexualisation of this child was as a consequence of the child being exposed to abusive sexual touching. 

10. Ms L said that a child of this child’s age would be simply unable to learn and invent the various significant emotional reactions which accompanied her aberrant behaviour.

11. I also take more cautious account of the results of Ms L’s psychometric testing which Ms L said also pointed to sexual abuse.  I note the reservation argued by Mr Shoebridge, but I have concluded again that the mother and maternal grandmother have provided Ms L with reliable information upon which to base those assessments and conclusions.

12. I also need to take account of the fact that the child has continued to see her father on an unsupervised basis for two and a half years and that the child's sexualised presentation during that period has diminished significantly and that there have been no further disclosures made during that period.  Those matters are of course relevant in themselves.  Clearly, they may tend to indicate that abuse has not occurred during that period, which fact may, in turn, support the notion that abuse may not have occurred at all.

13. At the same time, I need to observe that Ms L said that two other interpretations are open: one is that abuse did occur in the past but has not occurred in the last two and a half years, or alternatively that the child is now internalising her feelings surrounding abuse which may continue to be occurring.

14. I prefer the view that, at the very least, if abuse has occurred, it has not continued to occur over the last two and a half years.  In my view, that determination is more consistent with the child’s more positive presentation and reduced sexualisation over that period.

15. As part of these deliberations, it is appropriate that I should also record that I reject any notion that the limited sexualised play with the younger child Y in the father's household described in the material would explain the child’s significantly disturbed behaviour for such an extended period as assessed by Ms L.

16. Taking account of all of the evidence, I have formed a firm conviction that the child’s statement and presentation in 2004 and 2006 was that of a child who had experienced sexual abuse.

17. It then remains incumbent upon me to consider if I am able to determine the identity of any perpetrator or perpetrators of such abuse and, in particular, whether the father should be found to be a person engaged in such behaviour.

18. During the key periods of 2004 to 2006, the only constants in the chlid’s life were her mother, the maternal grandmother and the father.  It would appear on the evidence that she had very limited exposure to other potential perpetrators of abuse.  There is absolutely no evidence whatsoever to implicate either the mother or the maternal grandmother in such behaviour.  It follows that the father was the only other adult who is likely to have had the opportunity to engage in such behaviour.

19. I accept the mother's evidence that the child made a number of disclosures which directly identified the father as the perpetrator.  I note that there is further evidence wherein the child made a statement and drew some pictures which indicated she may have been exposed to knowledge of the father's appendage, which I need to acknowledge at the same time is capable of both innocent and sinister explanations.

20. Throughout months of counselling for sexual abuse, the child has not expressly or impliedly implicated any other person.

21. I also accept the mother's testimony and that of others that, at various times over the period under review, the child presented as being anxious about the prospect of having contact with her father and being unsettled before and after contact.

22. Having concluded to a firm degree that the child has been sexually abused and having taken account of all of the direct and indirect evidence on the subject, there is, on the evidence, no other explanation available other than that offered by the child herself, that is, that her father touched her inappropriately in some ways during periods that she was at his home in and around 2004 and 2005.

23. As unpleasant as the task is, I have concluded in this matter that I should find to the required higher standard that, in the past, the father has exposed his daughter to inappropriate sexual touching and behaviour which has been responsible for the child's observed disturbed and unsettled presentation, as I have set out in this judgment.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: