LETT & LETT
[2014] FamCA 529
•17 July 2014
FAMILY COURT OF AUSTRALIA
| LETT & LETT | [2014] FamCA 529 |
| FAMILY LAW – CHILDREN – With Whom a Child Lives – Best Interests of the Child – Where competing proposals by parties – Whether father poses an unacceptable risk of sexual harm to the children – Where children have made disclosures of sexual abuse – Where a risk of harm was substantiated by DOCS – Where court assessed the level of risk – Where court not persuaded on the balance of probabilities that the father has sexually abused the children but that the probability of such is substantial – Where the court found the father presents as an unacceptable risk of sexual abuse to the children – Where the mother coaching the children is a legitimate live issue – Where court not persuaded on the balance of probabilities that the mother coached the children – Where mother has been the children’s primary carer – Where court found it in the best interests of the children for them to remain living with the mother. FAMILY LAW – CHILDREN – With Whom a Child Spends Time – Where mother proposed the father should spend no time or telephone contact with the children on the basis that he presents as an unacceptable risk of sexual harm to the children – Where court found the father to present as an unacceptable risk of sexual abuse – Where contact supervision not available to the father at the time of trial – Where continuing disclosures made by the children were linked to when time spent was being supervised by father’s family members – Where father had spent no time since May 2012 with the children – Where the father had had no telephone contact since May 2013 with the children – Where the court assessed the nature of the father’s relationship with the children is at best distant and at worst non-existent – Where court satisfied it is in the best interests of the children to spend no time with the father and have no telephone contact with him. FAMILY LAW – CHILDREN – Presumption of Equal Shared Parental Responsibility – Where presumption rebutted – Where reasonable grounds to believe that a parent of the children has engaged in abuse of the children – Where father found to be an unacceptable risk of sexual abuse to the child – Where court determined parental responsibility to rest with the resident parent. FAMILY LAW – CHILDREN – Practice and Procedure – Where standard of care in civil litigation is proof on the balance of probabilities – Where appropriate consideration of the gravity of the matter is required in determining whether or not the court is satisfied of its existence on the balance of probabilities – Where court noted requirement to give real and substantial consideration to the facts of the case. FAMILY LAW – INJUNCTION – Personal Protection – Where mother and the ICL sought orders restraining the father – Where no history of relevant behaviour or threat – Where court not satisfied there was a sufficient factual basis for making orders restraining the father under s68B and s114. Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA, 65DAC, 140 Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 Harridge & Harridge [2010] FamCA 445 |
| APPLICANT: | Ms Lett |
| RESPONDENT: | Mr Lett | ||||
| FILE NUMBER: | CSC | 289 | of | 2010 | |
| DATE DELIVERED: | 17 July 2014 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 21, 22, 23, 28, 29 and 31 May 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Jacobs |
| SOLICITORS FOR THE APPLICANT: | Lehmann Featherstone Lawyers |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Ms Wilson |
Orders
All previous parenting orders be discharged.
The mother is to have sole parental responsibility for the children C born … 2004 and B born … 2006 (“the children”).
The children shall live with the mother.
The parents shall communicate by email and/or mail and each parent shall keep the other advised of a current email address and mailing address and advise of any change to same within 48 hours.
The mother shall advise the father of any significant health issues concerning either child from time to time.
The mother shall forward to the father a copy of each child’s school report at the end of each semester.
The father shall be and is hereby restrained from spending any time with the children and from having any communication with the children other than as provided for in Order 8 hereof.
The father is permitted to send gifts and letters to the children via a postal address provided to the father by the mother on each of the children’s birthdays and at Christmas time.
The Independent Children's Lawyer is forthwith discharged, with the thanks of the Court, upon the later of the expiration of the appeal period in respect of these Orders, or the determination of any appeal.
Otherwise all extant Applications be dismissed and the matter be removed from the list of active pending cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lett & Lett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC289 of 2010
| Ms Lett |
Applicant
And
| Mr Lett |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This judgment arises from the trial of competing proposals for parenting orders in relation to the parties’ two children, C (born in 2004, and presently 10 years of age) and B (born in 2006 and presently 8 years of age).
When the trial commenced before me, it had been anticipated that it would proceed by way of undefended hearing. That was because, firstly, on 21 January 2013, the father had told the Family Report writer, Ms E, in the course of his interview with her, that he only intended to seek telephone contact with the children, and no in-person time, and secondly, on 17 May 2013, in a telephone conversation with the Independent Children's Lawyer, the father had said he did not intend to even appear at the trial. However he did in fact appear before me on 21 May 2013, and identified that the orders he was seeking were that the parties have equal shared parental responsibility for the children, and that they live with the mother but spend time with him each week from after school on Friday until 7:00pm on Sunday. He further was seeking that the children spend time with him on special occasions, and for one half of all school holidays.
That remained the father’s articulated position until day three of the trial, when he identified that the orders that he was ultimately going to seek were that there be shared parental responsibility, but that the children live with him and spend supervised weekend and holiday time with the mother.
The orders sought by the mother were, in substance, that the children live with her and spend no time with the father, nor have any telephone communication with him. The mother’s position was supported by the Independent Children's Lawyer.
THE ISSUES
In the trial before me, the issues had largely resolved to firstly, whether the father presented an unacceptable risk of harm to one or both of the children, and secondly, if he did, whether he should have no time or communication whatsoever with either of them. The third issue only arose in the event that the father was not found to be an unacceptable risk of harm to one or both of the children, and that is that in that event, what was the appropriate regime of orders for the parenting of these children and particularly, whether the mother presented a risk of emotional harm to the children by coaching them to make false allegations that the father had sexually abused B. On that scenario, there were a number of subsidiary issues, including the mother’s capacity to provide adequate care to the children.
BACKGROUND FACTS
The father
The father was born in 1976 and is presently 37 years of age. He had a relatively unremarkable early childhood, although he was struck by a car when riding his bike at about aged 8. However when he was nine years of age he was sexually abused by an older cousin, but immediately told his parents, and the family then left the city they were living in and moved to Town A. The father received counselling in that town to help him deal with the sexual abuse. The perpetrator was ultimately dealt with in the Courts.
At the age of 18 the father moved to Town P, and thereafter had a number of relationships, although not involving cohabitation. He later moved to Town D and conducted his own business there. It was there that in 2003 when he was 26 years of age that he met the mother.
The mother
The mother was born in 1983 and is presently 31 years of age. She grew up in the Town P area. Her childhood was marked by physical violence and abuse from her own father. Her uncontradicted evidence was that abuse “deeply affected” her.[1] She left home at the age of 16 but had no serious relationships until she met the father when she was about 20.
[1]Mother’s affidavit filed 16 July 2010 para 15.
The relationship
Initially the parties were not living in the same town: the father was living in Town D, and the mother was living in Town P. They would travel up or down to see each other, and spend time with each other. The father identified that after the funeral of his sister in August 2003 their relationship became more serious and he moved from Town D to live in Town P. Not long thereafter, they discovered that the mother was pregnant with their first child, C. He was born in 2004 and the parties married in May 2005. The relationship appeared to be going well until the time of the birth of the second child, B in 2006, after which it began to encounter difficulty.
Before and during the relationship, the father was a regular, and perhaps heavy, user of cannabis. The mother identified that as being a significant contributor to the breakdown of their relationship. Certainly the immediate precipitator of their separation on 28 July 2009 appears to have been when the mother found marijuana in the father’s possession, became angry and required him to leave the home. The father acknowledged that indeed the mother did find marijuana in his possession, but he said that it was not his, and he only had been given it to pass on to someone else.
Post-separation
Immediately after separation the father had the children staying with him every weekend. He was then working for a government agency. He asserted that at that time the mother was abusing alcohol.
Ultimately the parties came to a fresh arrangement which saw the children spending two nights per week with the father in one week, and three nights per week in the next.
The mother gave evidence that in August 2009 she accessed what had been previously the parties’ computer. She has told several people that when she turned the computer on, she found child pornography on it. Her version of events of what she says she saw has not been consistently reported. The earliest contemporaneous record of it appears in the Department of Communities (Child Safety, Youth and Families) (“DOCS”) notes for 30 September 2009, apparently of a conversation between the mother and a DOCS worker. In that[2] she is recorded as having said “mother ended relationship with father over pornography involving “sixteens”. Mother took porn to police however the computer came back clean.”
[2]At p36 of 109 in the affidavit of Ms F filed 31 August 2012.
A different version of events is contained in the mother’s affidavit filed 19 May 2010. At para 45-6 she said as follows:
45. On the 3rd August 2009, after the father had vacated the family home, I was having computer troubles. As I am not competent in operating such devices extensively, I phoned a friend for advice assuming that it may have something to do with virus software. Whilst acting upon the advice given to me, I came across several titles in the internet history list that represented very disturbing child pornography. One of the titles was “Father fucks four year old while…” The rest of the title was not visible. I saw that a large percentage of the history contained titles of this nature.
46. In a moment ruled by fear and panic I deleted the list and turned off the computer, too afraid to use it again…
Later in that affidavit she deposed that she thereafter took the computer to the Town P Child Protection and Investigation Unit, however the detectives found no trace of such material. The affidavit continued:
Confused, I stressed to the detective that I knew what I saw and how I felt. The detective then explained to me that there are certain “programs” available that (once installed on computers) prevent their software from detecting the illegal material it is designed to detect. I informed the detective that a window called “the shredder” had appeared on the monitor. It initiated a scan, and included in it were the same titles I had seen in the history list…
It will be appreciated that the DOCS records on the one hand, and the mother’s affidavit version on the other hand, do not sit comfortably together. Moreover, it will be appreciated that the mother now asserts that the relationship terminated because of marijuana use by the father, not anything to do with pornography. Further, there is apparently in fact no record of the mother ever producing the computer to police.[3]
[3]See affidavit of Ms F filed 31 August 2012 p42.
On 20 September 2009 the first notification was made to DOCS about the children. It appears to have been made by the mother. In addition to the above recited material, the DOCS records note “Concerns that the children sleep in the bed with the father…” No action was taken by DOCS.
On 8 November 2009 a further notification was made to DOCS, including that “father allegedly sexually abused [B] and is sharing a bed with her.”[4] The mother was plainly not the notifier because the notification commences “mother advises notifier that on 8 November 2009…” There is no other mention in the evidence of any disclosure or other basis upon which a notification of the father sexually abusing B could then have been made. It was not explored in the course of the trial before me. No action was taken by DOCS.
[4]Ms F affidavit filed 31 August 2012 p37.
Next on 19 November 2009 a further notification was made to DOCS. Relevantly the affidavit of Ms F summarises that as “mother advised the notifier in an email that she witnessed [C] pull [B] on top of him and stated “I’m going to have sex with you” and then pushed [B] back and forth. [B] laughed and ran off to play.” Again DOCS took no action.
In January 2010 the mother and at least one of the children appear to have started consulting Ms G, a social worker employed at a social work practice known as “H Practice”. Amongst Ms G’s qualifications are “post-graduate certificates in Expressive Therapies and Sand Play and Symbol Work.” C was referred due to concerns about his violent behaviour. B was referred following a verbal disclosure with sexual content. Precisely when that referral was made is unclear, but it seems likely that B’s first session was on 1 April 2010.
On 17 March 2010 (a day immediately after B had spent time with the father pursuant to the parties’ arrangements), she complained to her mother that she had an itchy vagina. The mother took B to see her doctor, who diagnosed thrush, but it is said that he did not undertake a physical examination of the vaginal area.
Next, on 26 March 2010, C was overheard by a teacher having conversations of a sexual nature with his peers and stating that he had had sex.[5]
[5]Mother’s affidavit filed 12 May 2010 para 39.
Then on 27 March 2010, B made what on the evidence is the first disclosure of sexual assault upon her by the father. I will discuss the content of that disclosure in greater detail in due course. That led to the mother notifying DOCS and the first s 93A interviews of the children were then undertaken in April.
On 28 March 2010 the mother raised B’s allegations with the father. He denied that he had sexually assaulted her, but did say that on one occasion early one morning B had jumped on him in bed for a cuddle when he still had what was described in evidence as a “morning glory” which poked B in the leg. I will discuss that, and some potentially critical evidence of the paternal grandmother in that regard, later.
As a result of B’s disclosure, the mother suspended the time that the father would otherwise have been spending with the children.
Thereafter B continued to make various disclosures which I will detail in due course. However importantly, on 17 May 2010, C is first alleged to have disclosed not that he had personally been the subject of any sexual abuse by the father, but that he had witnessed the father sexually abusing B. That led to a further notification to DOCS, and further s 93A interviews and counselling for the children.
On 19 May 2010 the mother commenced these proceedings in the Federal Magistrates Court. They were first mentioned before Federal Magistrate Willis on 2 June 2010. The parties thereafter investigated the prospect of formal supervised contact of the father’s time with the children.
The mother changed address in May 2010 to a unit in I Street, Suburb J. Sometime thereafter, on an occasion when the mother was outside of her unit, B came running up to her and told her that a man had exposed himself to her. The mother tried to confront the man, seemingly unsuccessfully.[6]
[6]See mother’s police statement dated 27 January 2001 para 6.
On 29 September 2010 orders were made by Willis FM transferring the matter to the Family Court, together with consent orders that the father spend 4 hours with the children at the K Contact Centre on Saturday or Sunday. On the way home from Court, the mother met for the first time Mr A, whose sister Ms A lived in the same block of units as the mother. She thereafter became friendly with him, and their children shared “play dates.” She also got to know a Mr M, who was one of Mr A’s friends. Her friendship with Mr A progressed to the point where on occasion he would sleep over at her place, or she would sleep at his, both sharing a bed, albeit according to the mother, remaining fully clothed and engaging in no intimacy. Naturally one would have to view such an assertion with some caution. Further, I am mindful that in the father’s affidavit filed 12 April 2011 at para 26, he said that in mid-January 2011, C had told him that he and B stayed at Mr A’s house most nights, and that “he often saw Mummy and [Mr A] “wrestling.””
Ms A was then having difficulties with a former relationship partner. It seems as though he had retained, or somehow come into possession of, some compromising photographs of her. He was harassing her by reference to those.
In early 2011 the mother, Ms A, Mr A and Mr M were socialising together. In the course of the evening, the mother agreed to drive Mr A and Mr M to Suburb N. I infer that the mother was aware that the intended destination was the home of Ms A’s former partner. The mother recalls a conversation in the car in which Mr A said to Mr M “[Mr M] it can’t get out of hand. I don’t want to do anything. I want to get the phone. You take care of it. You can do anything you want. I’ll just tape him. Can you handle that?”[7]
[7]Exhibit F2 para 68.
The mother was aware that Mr A and Mr M were taking tape with them as part of whatever their endeavour was intended to be.
The mother remained in the car whilst Mr A and Mr M went off. When they returned, both were very emotional and animated. It transpired that they had killed Ms A’s ex-partner. Precisely how he died is unclear, but it was obviously violently. The mother was subsequently interviewed by police. She appears to have fully co-operated. Both Mr A and Mr M were charged in relation to the death. The mother was not charged.
A week later the father met Mr A at a friend’s home. In the course of the ensuing conversation, the father says[8] that Mr A said to him words to the effect “[The mother] had made it quite clear to me that she wants me to bash you. I am not going to because I have decided to give you the benefit of the doubt.” He then went on to say “[The mother] has now got herself into something bigger than she can handle and she is not gonna bring you any more grief.”
[8]Para 141 of his affidavit filed 9 August 2012.
Further orders were made by Watts J on 22 March 2011 permitting C to spend alternate Saturday time with the father supervised by the paternal aunt, but that otherwise the Contact Centre supervision would continue.
Then on 17 May 2011, orders were made by consent by Benjamin J that the father spend time with the children each Saturday for six weeks, such time to be supervised by the paternal aunt, then progressing to overnight time with C (but remaining day time only for B). On 26 September 2011, Benjamin J made further consent orders which ultimately permitted the children to spend, from 14 October, overnight time with the father on weekends supervised by either the paternal aunt or paternal grandmother.
On 21 October 2011 B made further disclosures to her then psychologist, Ms O. I will discuss those in detail in due course. On 15 February 2012 C made disclosures to Ms O as well. Again I will discuss them in detail later.
On 21 May 2012 orders were made with a view to the trial of this matter being heard in September of that year. Two days later, B made further disclosures to a counsellor at the Sexual Assault Service. On 6 June, a further disclosure was made by B to the same counsellor which, on its face, was an allegation that the father had sexually assaulted her during the evening of 3 August 2012. In fact, as it transpired, in light of that disclosure and what followed, 3 August 2012 was the last occasion that the children have spent time with the father. On 15 August 2012 the father agreed to the suspension of physical contact with the children, and on 21 August orders to that effect were made by consent.
On 3 September 2012 orders were made permitting telephone communication between the father and the children.
On 5 September 2012 DOCS advised the parties that they had concluded their then investigations and that they had substantiated sexual abuse of the children by the father. By then the children had been involved in no less than 12 s 93A interviews.
Towards the end of 2012 the father and his parents became concerned that they were the target of some sort of threatening behaviour, associated with the mother and involving Mr A. They gave evidence of an attempt by persons to enter their home, which attempt was frustrated by dogs being in the yard, and less clear evidence of a threatening note being placed on their car, and a stained t-shirt being placed inside one of their cars.
On 21 January 2013, the final interviews for an updated Family Report were conducted. In respect of the interview with the father, Ms E noted that he “presents angry, frustrated and defeated. He feels victimised by an unfair court system which he feels has let him down.”
Later she continued “Denying all the allegations, he says he is now without funds or emotional resources and because of this, he cannot continue to fight for the children. He is planning to leave Town P and to try and start again. He said he is being forced out by the mother.”
Around this time the father seemed to form the view that he was being pursued by drug dealers. His unlikely evidence was that this had been suggested to him by his then counsellor. In any event, his anxiety increased to the point where on 25 January 2013 he made contact with Queensland Police. He described himself as “freaking out”. Precisely what had caused this spike in his anxiety was unclear, but there is perhaps the prospect that a second threatening note had been received by him (although this is quite unclear). In any event, his presentation to the police was so pronounced that they took him to Town P Hospital where he was attended to by a psychiatrist. He was in hospital for about 5 hours. He believes that the police took him there because he was behaving “like I had a breakdown”
In 2013 Mr A and Mr M pleaded guilty in relation to the death and were imprisoned in consequence.
RELEVANT LEGAL PRINCIPLES
The statutory regime
A convenient starting point is section 61DA of the Family Law Act, which by sub-section (1), provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to section 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context is convenient to also advert to section 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.
The standard of satisfaction required
Section 140 provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Plainly, sexual assault of a child is a grave criminal offence. However conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent, is not, of itself and without more, necessarily criminal. Nonetheless an allegation of that kind is potentially a grave one, although whether it is so or not will depend upon the facts of individual cases. It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s 140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities. In my view, the allegation made by the father that the mother presents a risk of emotional harm to the children is of some gravity.
Further, the consequences attaching to a finding of the kind sought by the father could potentially be grave. As is demonstrated by this case itself, based upon such a fact being established, a father could seek to use it to found an argument that the mother’s time with the child should either be supervised for some period of time, or even permanently. Whilst on one view such a consequence may not be as grave as the consequences that flow from the proof of criminal sexual abuse, it is nonetheless clear that the consequence of a finding that the mother presents as an unacceptable risk could be significant and have a grave aspect to it.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[9]
[9] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having recited the above passage, proceeded to adopt the following list of inquiries in relation to risk assessment:[10]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[10] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
DOES THE SECTION 61DA (1) PRESUMPTIION APPLY, OR IS IT REBUTTED?
Plainly on the facts of this case, there are reasonable grounds to believe that a parent of the child has engaged in abuse of the children. Whilst I will shortly consider that material in greater detail, it is plain that the s 61DA presumption does not apply.
CONSIDERATION OF S60CC FACTORS.
S 60CC(1)(a): The benefit to the child of having a meaningful relationship with both of the child's parents
Whilst there are criticisms that can be made of both the father and the mother, pertaining to drug abuse and capacity to parent responsibly respectively, there does not seem to be any real question, in the event that it is determined that neither party presents as an unacceptable risk of harm to the children, that the children would not benefit from having a meaningful relationship with both of their parents.
On the mother’s side, she has been the primary carer of both children for most, if not all, of their lives, and both children clearly have a strong attachment with her.
On the other hand, in the past both children had enjoyed spending time with their father. Further, in the period when he was not spending time with his father after the abuse allegations were first made, C began to act out particularly badly, which behaviour improved after he commenced spending time with his father again. In February 2011, a psychiatrist, Dr Q, was of the view that the father had “a fair amount to offer both his children” and said it was important to re-establish their relationship.
However as the parties correctly identified, the question of risk impacts substantially upon whether the benefit of the meaningful relationship can in fact be enjoyed.
S 60CC(1)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Overview
This was the central battleground of the case before me. The mother asserts that the father presents as an unacceptable risk of sexual harm to B if she is in his unsupervised care. She particularly points to:
·the large number of disclosures made by both B and C over a long period of time;
·the relative specificity of the allegations, including some contextual material;
·the fact that the allegations appear (at least from B’s perspective) to be based upon a personal physical experience;
·that C’s disclosures are particularly significant because he deeply loves his father, and were made at an age when he must have appreciated the likely consequences of making them;
·that the father’s explanations for the disclosures have been inconsistent, to the point where he has even blamed C as likely being the perpetrator; and finally
·DOCS has, on the same material as is before me, determined that the allegations of sexual abuse are substantiated as against the father.
On the other hand, the father denies any misconduct, but rather says that it is likely that the mother (or maternal grandmother) have in some way coached the children to make the allegations. He further points to the fact that:
·the mother had shown the children one or more Bravehearts video/s some months prior the disclosures first being made;
·that B was perhaps sexually molested by a cousin when the parties were cohabiting;
·that the children might have witnessed the mother having sexual relations either with a girlfriend or a male partner; and
·that the children have now become so enmeshed in the investigation of their allegations, that the discussion of sexual matters has become common place for them, and to that extent, their disclosures should be discounted.
He therefore says that I should not be persuaded that he presents as an unacceptable risk of sexual abuse.
Is the father an unacceptable risk?
The children’s disclosures
The first disclosure is not of abuse of B by the father, but rather by the mother. It is said it was first made on 6 March 2012, when B told the father that her mother touches her on the vagina and also licks her there. The father dismissed it as ridiculous, and did not believe B. He was also conscious that the mother had, apparently after separation, commenced an intimate involvement with another woman, which perhaps B may have witnessed.
At the trial, no one pressed any suggestion that the mother had in fact sexually abused B.
The next disclosure was by C on 26 March 2010, when he was overheard by a teacher speaking with his peers saying that he had had sex. The DOCS notification records that the actual language was “and then we had sex and fucked on my wee wee.” The mother spoke with C about it and he revealed that it had to do with a dream in which his uncle’s girlfriend had sucked on his penis. On 14 April 2010 C was interviewed by DOCS officers and made no disclosures of sexual harm. This matter did not assume any prominence in the trial.
The next disclosure was by B on 27 March 2010. At para 40 of her affidavit of 19 May 2010 the mother said as follows:
On the 27th March 2010, after having her evening shower [B] disclosed to both her mother and her great grandmother that her father had hurt her with his penis. [B] complained that “Daddy picks her up for cuddles when they are in bed, he gets his “peni” out and makes her sit on him and he says ooooh sexy, and it scares me.
Apparently B struggles with the pronunciations of some letters and “peni” is the word B says for the word “penis’.
A slightly different, but materially indistinguishable, account of the disclosure is given by the maternal great grandmother at paras 6 to 9 of her affidavit filed 10 August 2012.
The mother notified DOCS. In consequence of the notification, on 28 March the first s 93A interview of B was conducted. According to the Queensland Police records,[11] during the course of the interview B said “Daddy put his penie in me. Daddy said oooh sexy. That scared me. I ran and told nanny. I cleaned Daddy’s peni when penie was all dirty. I put soap on it and cleaned it.”
[11]Mother’s Tender Documents p 1.
I will discuss the father’s concession that he has showered with both children later in these reasons.
On 30 March 2010 a medical examination of B was carried out by a doctor. The result of that was normal.
In consequence of the disclosures made by B, it appears as though she commenced to attend upon Ms G, the social worker at H Practice. At para 24 of Ms G’s affidavit filed 19 May 2010 she said as follows:
On commencement [B] made a disclosure to me and told me that she had “a dream” where “Daddy kisses me – he put his peni out.” I asked where she was and [B] indicated she was sitting on her Dad’s lap. I asked [B] what happens. She stated “he put his peni here” and pointed to her private parts (vagina area). [B] then informed me she needed to go to the bathroom which she did …
Consequent upon this, Ms G made a notification to DOCS.
On 28 March 2010 C stayed with his maternal uncle. That uncle’s girlfriend rang the mother to advise her that she had found C with his penis out and pants down, lying on a bed with her daughter S. Apparently C had stated to S that he wanted to “do sex” with her and proceeded to demonstrate to her what that was.
On 14 April a further round of s 93A interviews were conducted with both C and B. In B’s interview, it is recorded that at one stage there was an unprompted disclosure in the following terms, “Daddy put his peni in my girl.” However no elaboration of what either “peni” or “girl” meant could be obtained by investigators.
In the course of the DOCS investigation, the father and mother were also both interviewed. I will deal with the father’s explanations later in this judgment. However for present purposes, it is suffice to say that the investigation at that time concluded with an unsubstantiated outcome.
The next relevant event is on 17 May 2010, when C and B were playing together with some party balloons. The mother said that at about 7:15pm that evening, she walked out of the bathroom to find C holding a balloon to his groin, and bouncing it up and down on his penis. He was moaning and B was watching him. The mother indicated to C that that was not appropriate and that he should stop. The mother then said that B said “that’s right [C] that’s what Daddy did to my gyno with his peni.” The mother said “its OK [B] you don’t need to tell [C].” However C then said “Mum, I already know that any way.” The mother asked C what he meant and he said “when Daddy was drying B after her shower he was going like that and his penis was going into her gyno.” At this point C was said by the mother to have been making “push up” movements. B then said “and Daddy was saying sexy”. When asked whether he had actually seen that, or if he had just heard it from B, the mother said that C said “I did see it mum and it was a yucky feeling, am I in trouble now.”
That led to a further notification to DOCS.
Next, on 26 May 2010 during the course of the children speaking with their father on the telephone, the mother gave evidence that C said to the father “I can’t believe you did something private!” to which B contributed “yea to me”. C then said “Mummy said that [B] told her you did a private thing to her.” A little while later B took the phone from C and said to the father “you did a private thing to me, you put your peni in me.” She then stood up and began shaking her finger yelling “yes you did, you put your peni in my gyno and I didn’t like it and told you and I don’t want you to do that again.” In the course of ensuing conversation, the mother says that C said to her “he did, he put his doodle in her gyna, I saw it Mum.” The mother’s evidence of this event was supported by a friend, Ms T, who was present in the home at the time.
This appears to have led to a further notification to DOCS. The notified concern was “emotional abuse by mother.” No investigation ensued.
Next on 28 May 2010, the mother’s evidence was that in the course of preparing the children to go out for dinner at her parents’ place, B began to cry, saying “I don’t want to go to Daddy’s, he put his penis in my gyno, it went right through and it really hurt me so I don’t ever want to go to Daddy’s again.” The mother then says that she told B that she would not make her go there, to which C contributed “but Daddy didn’t do that to me, only B, so can I still go there?” The mother said to C that she could not take him there right now, to which C responded “it’s because I told you what happened isn’t Mum, if I can’t go to ever see Daddy again because I told you what happened to [B] then I was joking.”
Then on 1 September 2010, there was a report to DOCS that C was displaying sexualised behaviour, regularly touching other students at school on the scrotum and bottom. It was observed that he touched his groin a lot. When (presumably a teacher) asked him who taught him that, C stated that his cousin did private things to B, like sex with pants on, and that this happens when they are playing. Later C (perhaps to the mother) stated that the cousin in question was V (then nine years old) and that he sexes B. This occurs when they are fully clothed.
On 11 November 2010 there was a further notification to DOCS, to the effect that at school, after having witnessed two children kiss, C told his teacher “that they were having sex” and that he knows what sex is “because he has seen it in movies and his father has sex with [B].”
On 15 March 2011 B was observed simulating oral sex on a chair at day care.
Next on 16 March 2011, B observed C’s martial arts class being taught about protective behaviours, and particularly that children should not keep secrets. According to DOCS records, later that evening B is said to have disclosed to the mother that the father “licked my vagina and bum.” A slightly different version appears in the mother’s affidavit of 13 April 2011 where at paras 27 to 29, when dealing with this episode, she said that B said to her “remember, Daddy put his peni here” (pointing to the outside of her vagina). “He took his jocks off and put his peni here, like he was having sex with me. Daddy licked my gyno and my bum too you know. Yea Mummy he did it I’m not lying. I can’t keep secrets hey Mum, that’s what [the teacher] said. I’ll tell the girls at the Contact Centre to look after me and I’ll tell Daddy NOT to do that naughty things to me ever again.”
Disclosures seem to have then ceased for some time, but recommenced on 21 October 2011, when B resumed counselling. In response to an inquiry from her counsellor, Ms O, as to whether she knew why she was attending counselling, she said “yes because my Dad put his penis in my gyna, he was sexing me. But he doesn’t do that any more.” She identified that she was four years old when that had happened.
In her next session with Ms O, B disclosed that her father thinks that she was sexy and says “oh baby you look sexy” but she does not like it. She further said that despite asking him to stop it, he doesn’t. She also disclosed that she has bad dreams, including zombies licking her on her privates.
A further disclosure by B was made to her counsellor on 9 November 2011, that her father “put his penis in her gyna”. There was also further reference to the zombie dreams. Further, she said “but Daddy doesn’t do that anymore. [C] and me have our own room, but he still says sexy to me and I don’t like it.”
Next in a counselling session on 30 November 2011, when discussing a doll family, B said “they are talking about sexing, Daddy sexes the girl.” Upon further inquiry, she said “like Daddy did to me and sticky stuff comes out.” Further inquiry made B look “disgusted” and she said “its gross and sticky and white and it comes out of his belly button.” Ms O emphasised the look of “disgust” in her oral evidence before me. She said it suggested a physical experience rather than something which B had simply overheard. B then said that she “got a towel and cleaned him all up.” In the course of that session, Ms O recorded in her session notes that B was rubbing her vagina very often, and grinding against furniture and the mother’s hip. It was further noted that B had an excessive preoccupation with sex and talked about it more than any other child. This disclosure appears to have led to further notification to DOCS on 13 December 2011.
By early 2012, C had commenced to also see Ms O as counsellor. Her evidence was that initially she was engaged in attempting to control his anger and behavioural issues. However on 15 February 2012 he made a disclosure. In her letter of 5 March 2012 to the Independent Children's Lawyer, Ms O reported as follows:
[C] was brought in to see me by [the mother] who had been contacted by the school. [C’s] teacher reported that he was being disruptive and disobedient in class and aggressive in the playground.
[C] appeared anxious as he entered my room. I asked him if he was upset. He began to talk about some fighting in the playground and then asked if I knew why he had come to see me. He said he was there to tell me what he saw, that he didn’t like to talk about it because he was afraid that his Dad would get into trouble.
He said “I knew he wasn’t really drying her, because she was lying on the bed with the towel over her head. I went in to to ask what to wear and that’s when I saw him and her…it starts with s ends in x and has an e in the middle.”
[C] explained that he had walked in on his father rubbing his pubic area on [B’s] pubic area. He said that at first he didn’t know what the word for it was but that when he found out he told [B]. That’s when [B] decided to tell their mother.
[C] talked about how scared he is for his father. He said that until now he has not told anyone about what he saw and he never will because he doesn’t want his Dad to get into trouble.
In discussing this disclosure, Ms E placed particular significance upon the fact that the mother was not present during the course of it being made. She accepted that if a parent had been present during the disclosure, it would weaken the force which it otherwise has.
On 10 February 2012, B began counselling with the Sexual Assault Service, seeing a Ms U. It appears as though part of Ms U’s background briefing was obtained from the mother. Particularly the mother told her that she had overheard a conversation between the children in the back of her car in which C said that he had seen what the father had done to B. He is then said to have said “I got out of the shower and went into the bathroom and saw what Daddy did to you. I got out of the shower and went into the bedroom and saw Daddy leaning over [B], also naked and lying on the edge of the bed with her legs over the edge of the bed with a towel over her head.”
On 23 May 2012, the mother’s evidence[12]is that she was called into the Sexual Assault therapy room and was advised by Ms U that B wanted her to tell the mother some things that had made B uncomfortable. The mother says that she was told that B had described spending time with the father by herself, under the stars. The mother then said that Ms U said she was unable to provide her with any details “due to the privacy restrictions.” There was then a further notification to DOCS arising out of this, where it is recorded “[B] spoke about the stars and stated that she watches the stars with father under a blanket.” B is recorded as having stated that she likes how the stars sparkle but doesn’t like it when Dad is sexing. She tells Dad to stop it. When asked what it was like, B stated “red light” and “I asked him to stop.” The notification then continues that B said “pop has a big doodle, I’ve seen it.” She then drew a doodle and said that the father’s was bigger. She said that she had seen them in a room in the past when she was little.
[12]Affidavit 10 August 2012 para 12.
On 2 August 2012 the Child Protection Investigation Unit and DOCS agreed to conduct a joint investigation in relation to the matter.
Then on 4 August 2012 B made further disclosures whilst she was sitting on the mother’s lap at her great grandmother’s house.[13] The mother said that in that conversation, B said that while she was lying in bed with her father he touched her “ba-gyno twice”. B then repeated the same sentence to the maternal great grandmother. Upon inquiry, as to when this had occurred, B said that “it wasn’t this time, but it happened during the visit that [C] went on [Mr X’s] four-wheeler for the first time.” Questioning of C elicited that the first time he had ridden on the four-wheeler was on the weekend of 28/29 July 2012.
[13]This is contained in the mother’s affidavit filed 10 August 2012 para 15.
Later when the children were sitting at the table eating ice cream, the mother said that B told her that the father had put his hand inside her knickers and rubbed his fingers just on the inside of her “ba-gyno”. She said that he took his hand out, licked his fingers, put his hand back inside her knickers and started to do it again. B said that she tried to fight him, to push his hand away, but he was too strong. She said that she was scared and that he hurt her. B said that C was watching TV while this happened, and there was no mention made of where the supervising paternal grandmother was.
When driving home with the children that night, the mother said that C told her that his father had talked with him on the weekend, and that he was supposed to keep a secret from her. C said that his father had told him that the things that B says he did to her were all just dreams.
The mother then made a further notification to DOCS. This led to, amongst other things, a Colposcopy examination of B, which examination proved normal.
Next on 8 August 2012 in the course of speaking with his counsellor, Ms O, C showed her “his feelings journal”. The second entry was about C having witnessed the sexual abuse of his sister. He told her that the image still enters his thoughts. Particularly, he could recall the father going into B in the night when it is dark and she cries. When asked how he knew that, C said words to the effect “I see him go to her bed but I don’t see what happens … afterwards [B] cries.”
This disclosure then led to a further notification to DOCS.
On 14 August 2012 a DOCS officer (Ms F) and a CPIU officer undertook yet another s 93A interview of B. The DOCS records state that in the course of that interview, B stated that “one day she went to [the father] and he sexed her, and she was very scared.” She specifically described being sexed as the father putting his penis (apparently she used the word doodle) in her vagina (apparently she used the word ba-gyno) and going up and down and then stopping and being very still for a while. Significantly B stated that being sexed “felt like a sword going into her and that it hurt.” She said that this incident occurred a long time ago, but was unable to provide any specific time other than that at the time she was going to W Day Care, and thought that she was three or four year old. She said that C was sleeping at the time. She further said that after the incident, the father put his clothes back on and put hers back on. Specifically B said that she was wearing a nightie and that the father took this off her. She described the father as wearing cowboy boxers and a cowboy shirt which he took off before he jumped on her.
Later in the interview B said that the father took her clothes off, then he pulled his pants down, flicked his shirt off and jumped on her, and was sliding his body up and down on her body. She specifically identified that the parts of his body touching hers were the father’s penis, (albeit she used the word doodle) belly and legs. She said that the father’s doodle was “down here” and touched her vagina. She said that when the father’s penis was near her vagina, it was lying on it and the penis was going straight into her. She said that she knew the father’s penis was in her because she could feel it in her.
She went on in that interview to say that the father suddenly stopped, and he waited for a while and then put her pyjamas back on “because she heard [the paternal grandmother] coming.” B was asked what the father was doing when he was waiting. She said that he was looking at the door, and went on to say that she thought he was seeing if the paternal grandmother was looking in the door, as he could hear “her foot prints”. She said that the father dressed them both, and then the paternal grandmother walked in the door. She related a conversation which ensued between the paternal grandmother and the father in which the father was asked “did you sex her or not” to which the father said no, but B said that he was lying so he did not get into trouble. She said that the paternal grandmother said “I don’t believe you” and walked out the door and went to read a magazine.
Later in the interview B disclosed that the father had inserted his forefinger and middle finger jointly into her vagina, removed them to put his fingers in his mouth, then put them back into her vagina, and took them out again and wiped them on his shirt. She said that she had not told anyone about this.
Also in that interview, B disclosed that at times she sleeps in the father’s bed, and that when she is at the father’s place, they lie in the front yard on a blanket together watching the stars, while her grandparents are inside watching television.
At the conclusion of this interview the relevant police officer and Ms F had a discussion in which they agreed that they did not believe, based upon what they had seen and heard, that B had been coached, but because of B’s highly distracted state throughout the interview, there was some prospect that a jury would give the father the benefit of the doubt.
The next day there was a s 93A interview conducted with C. In the course of that he said to the officers “my Dad sexually abused my sister, that’s what I think my sister told you.” He went on to say that when B was two years of age and he was four, he walked into the father’s bedroom to ask him about the shorts he was going to wear, and observed the father leaning over B, who was face up on the bed with no clothes on. He stated that the father was wearing grey underwear and was on top of B “sexing” her. He went on to explain that by “sexing” he was intending to mean that the father was putting his private parts on B’s private parts, and pushing up and down. He demonstrated the actions to the officers by placing a matchbox car on top of another and sliding and banging them together.
He further said that B had said to him (ie C) that on Saturday two weekends ago, the father had come into her room in the middle of the night and said “[B] wake up” and then started “doing it”.
Later in the interview he said that the occasion when he walked in and saw the father on top of B was when the mother and father were still living together.
Considerably further into the interview, C said that when he and B are at the father’s residence, B often comes and sleeps in his bed so that she doesn’t feel worried because the father can’t get her there and she is safe. Nonetheless C said that he is worried that the father may come into the bedroom and sex B.
In her affidavit filed 31 August 2012, Ms F discussed C’s presentation in the interview, and particularly his desire to control the structure of it. She concluded that that was consistent with either someone having told him what he needed to discuss with the officers, or alternatively, that C had been now interviewed so many times that he was overly familiar with interview processes, and wanted to maintain control. That said, she concluded “[C] appeared genuine in his statements to officers and answered spontaneously and in free narrative. Officers did not hold concerns that [C] had been coached regarding the disclosures he made.”
On 5 September 2012 the DOCS investigation concluded, with the outcome specifically recorded as “Substantiated emotional harm caused by sexual abuse with the person responsible for the harm being [the father].”
No criminal proceedings have ever been brought in relation to the children’s disclosures.
The father’s explanations
The father’s explanations of the children’s disclosures have changed over time, although he has always denied that he has ever been the perpetrator of any sexual abuse upon them.
His first explanation was given to the mother on 28 March 2010, and related to an occasion when he alleged that B had come into his bedroom early one morning when he had a “morning glory” which inadvertently touched her leg.
Relevant to this was some confusing evidence given by the paternal grandmother on 29 May 2013. During the course of her cross-examination by counsel for the Independent Children's Lawyer, she was asked what her knowledge was about the allegations that had been made against the father. Initially her answers were consistent with her understanding of the allegations, as distinct from her own experience. However she was then asked “now, you were present on that day?” To which she said “yes”. She was then asked “and you heard the child say?” To which she answered “I just heard the child say to Daddy, “oh Daddy, your peni touched me,” and that was the end of it. She walked out of the room.” A few lines later, she denied that she was present, and specifically recounted again that B just said “oh Daddy, your peni touched my leg.” A little later she specifically identified “I wasn’t there. I was actually in the kitchen and I just heard what she said.” She then went on to say that at the time the father was in bed and he had a sheet over him, and she thought that he always wore boxer shorts to bed.
However later when being cross-examined by counsel for the mother, she denied that she had heard B say something like “oh daddy your peni touched me or touched my leg” and said that she was confused about the earlier questions being asked of her, which she thought to have only related to her knowledge of the allegations, rather than her personal recollection of what she had heard. She specifically denied that she had in fact heard B say something.
I regret to say but I have no faith whatsoever in the truthfulness of the paternal grandmother’s purported recollection. I think that it is a telling illustration of her partiality – perhaps perfectly understandable – in favour of her son. My distinct impression was that in answering the Independent Children's Lawyer’s counsel’s questions as she did, she perceived that there was benefit in being able to specify an occasion of accidental touching by B of the father’s penis, and purporting to recall B’s conversation. However when it was later suggested that she could have, had she come forward, scotched the whole matter at a very early stage, she appeared anxious to revisit that evidence and recant from it.
A slightly different version of the “morning glory” explanation was given by the father to one of the detectives who on an occasion sought to interview him. At para 48 of his affidavit filed 28 June 2010 the father said as follows:
When I was speaking to Detective [L] I offered a possible explanation for [B’s] allegation again me. Just after separation, [B], [C] and I shared a king size bed at my parents residence. Often when the children wake up in the morning they jump around on me and we have a bit of a cuddle before getting out of bed. I often wake up in the morning with an erect penis, as most men do. I do remember times when [B] may have jumped on me when I have just woken up and may have become aware of my erect penis. However, my genitals would always be covered by a sheet and my shorts. I always sleep wearing underpants and shorts when the children are staying with me.
It will be appreciated that this is also a somewhat different version to what was being proffered by the paternal grandmother, and indeed, to that proffered by the father in his conversations with the mother on 28 March. Particularly there is no mention of a conversation between the father and B, and no mention of B being aware of the father’s erect penis. This particular explanation is just conjecture.
I am not persuaded that in fact there was an occasion of the kind identified by the father when B innocently touched his erect penis with her leg.
The next explanation offered by the father was on 31 March 2010, and was made by him in the course of the initial DOCS investigation. In the DOCS records it is noted that, although the father declined to take part in a formal interview, he “states that the child was probably coached by the [maternal] grandmother.”
There are some legitimate concerns associated with the maternal grandmother. Firstly, she herself was sexually abused as a young child. In saying that, of course I do not mean that as some criticism of her, but it could legitimately lead to a concern that such a person would be more likely anxious and vigilant in relation to the prospect of child sexual abuse.[14] Secondly, she was, around the time of the disclosures, in receipt of counselling to help her deal with that abuse, and therefore obviously was still processing it.[15] Further, in July 2008 the maternal grandmother had instigated the children having access to, and watching, two “protective behaviour” DVDs published by an organisation known as Bravehearts. Whilst there is on its face, nothing warranting criticism about children being so taught, it does reinforce that the maternal grandmother did perhaps have a heightened level of personal sensitivity surrounding sexual abuse issues at the time.
[14]Dr Q explained the process involved at paras 114-117 of his report in relation to the father dated 27 January 2011.
[15]Mother’s affidavit of 13 April 2011 para 58.
However even taking that material at its highest, it falls very far short of being able to persuade me, on the balance of probabilities, that the maternal grandmother has coached the children. There is simply no material from which I could be so persuaded to the relevant standard.
The next proffering of explanations by the father occurred in the course of an interview with the DOCS officers, on 15 April 2010. There he suggested, seemingly by way of partial excuse, that “about a month and a half ago [he] found [B] with his mobile phone which had a pornographic clip on it but [B] was in the recent calls list, there was no evidence that [B] had viewed the pornographic clip. The father has since deleted the clip.”
Even on the father’s own evidence, there is no reason to think that B accessed any clip. However on other occasions, the father has been at pains to say that he has never downloaded pornography, save for one occasion during the relationship when he and the mother jointly viewed some images out of curiosity.[16] I should also note that on 15 April 2012 the DOCS records state that during their officers’ discussion with the father he recalled “a time when he downloaded a program and saw a title named “15 year old child raped” which he says he showed to the mother and deleted. Therefore precisely how a pornographic clip then came to be on the father’s phone is something of a mystery, assuming that it ever was there. In any event, even taking this matter at its highest, it does not provide any rational basis for thinking that this is how the disclosures of B’s alleged abuse came to be generated.
[16]Father’s affidavit filed 9 August 2012 para 69.
Also on 15 April the father suggested that the mother had “coaxed” the children into alleging sexual abuse. He later made coaching accusations on 2 September 2010, and 15 August 2012. This was his major theme at trial.
There is some material from which that could be inferred. The first is that, prior to the first disclosure being made, the mother had been seeking professional assistance for her anxiety.[17] Inevitably anxiety can affect the way in which a person responds to stressors, and the way in which they interpret events around them. Further, the mother has from the outset, seemingly without much, if any questioning, accepted that what the children were disclosing to her, were actual events. Moreover, she has not focused upon innocent explanations which have been proffered by the children from time to time, for instance B’s first disclosure to her therapist that her recollection was of a dream. All of that is consistent with the poor functioning of a person then suffering anxiety.
[17]See Independent Children's Lawyer’s Exhibit Bundle document 11.
Further, there is some direct evidence of coaching. Firstly, even on the mother’s account of C’s telephone conversations with his father on 26 May 2010, C said to his father “Mummy said that [B] told her that you did a private thing to her.” At face value, that is suggestive of some type of coaching. Further, as late as 19 Sept 2011, in the course of preparing an updated Family Report, Ms E noted that upon meeting B and her mother in the playroom, B came towards her and said loudly without any prompting “Daddy used to put his penis in my gyney, but he doesn’t do that anymore” at the same time as clutching herself between her legs.
At para 6 of her subsequent report dated 23 September 2011 Ms E continued:
As she did this, I also noticed she also looked towards her mother smiling, as if expecting some kind of response, possibly approval. However, her mother immediately became concerned and held up her hand discouraging her. I then notice [B] ceased her commentary and associated display…
Later at para 18 Ms E returned to this theme, noting that “without positive reinforcement from her mother, it was observed the child ceased her behaviour and did not make any further comments to the report writer.”
In her oral evidence before me, she agreed that at the time she though that it was likely the mother was coaching B. Her evidence was that the mother was “cuing” B, and that she could silence her with a look, or generate a comment with a look. That said, she said that with the benefit of hindsight, she now thinks that perhaps the mother may in fact have then been unduly anxious because of the aftermath of the crime committed by Mr A and Mr M.
There are also the events that ensued when, pursuant to the orders of Benjamin J made 26 September 2011, the children re-commenced spending unsupervised time with the father on 14 October. As is plain from a consideration of the chronology recited earlier in these reasons, by that time there had been no disclosures made by B, or indeed C, for many months. Nonetheless, on 21 October 2011 B was taken to Ms O for no apparent reason that the evidence enables me to discern, and commenced her session by announcing that she knew why she was attending was because her father had put his penis in her vagina “but he doesn’t do that any more”. On one view, that might suggest that the mother had been then recently coaching B; however it is also consistent with the mother’s anxiety having resurfaced, and her wanting to give B an opportunity to disclose any events that had occurred during her first unsupervised time with the father. The difficulty with that scenario is that is not what the mother said in evidence, although in fairness, she was not pressed in relation to this chronological curiosity by either the counsel for the Independent Children's Lawyer or the father.
Ms O was cross-examined by the father about whether there was room for belief that the mother was seeking to alienate the children from the father. She denied that parental alienation syndrome would cause the behaviours which she observed. Particularly she said that the children have not stated that their views are of somebody else, and her impression was that they were simply relating their own experiences.
Although the mother denies coaching, there are real doubts as to her credibility. In her initial Family Reports, Ms E was very sceptical as to the mother’s credibility, and formed the view that she was not being completely frank with her. The high watermark of this must be the mother’s claimed complete ignorance of having, in any way, shape or form, knowingly assisted Mr A and Mr M to commit the killing of which they were later convicted. She would have it that she was an unwitting and naïve driver of the pair, which on its face, is a little difficult to accept given the conversation she heard on the way, and her knowledge that they were taking tape with them. Moreover, in the past she has attempted to down play her association with Mr A, about which I am troubled.
Moreover, I accept that, on occasions in the past, relevant investigative agencies have seriously entertained the prospect that the children have been coached by the mother. Particularly on occasion, the officers were concerned that the children either did not demonstrate appropriate affect when making disclosures, or that the disclosures had a rehearsed aspect to them.
However even taking all of these matters at their highest, they fall a long way short of persuading me, on the balance of probabilities, that the mother has coached the children to make these disclosures. Particularly I am mindful that some of the disclosures have a ring of personal experience to them: for instance B describing what sounds like ejaculate near the father’s navel, and her description of her experience of the father’s penis inside her as being “like a sword”. Critically, there is also C’s tortured revelation that he felt worried about disclosing that he knew the father was going into B’s room, and could hear her crying. As Ms E pointed out in her Family Report, he must have been aware that making that disclosure was likely to get the father into serious trouble, and to make the disclosure that he did with that knowledge must have been very difficult for him.
Ms O gave oral evidence before me. It will be remembered that she was the person to whom C made the disclosure on 15 February 2012. Firstly, it is apposite to note that there is no dispute that the reason why C attended upon her on that occasion was because of a severe behavioural disturbance at school. Secondly in her evidence she gave detail as to C’s display of emotion during the course of making the disclosure. She described that when he disclosed he was fearful. She said he demonstrated that fear by his voice and by looking down into his lap. She described her impression that he was genuine when he said that the matter still entered his thoughts, because he said “I still see it”. She agreed that plainly his experience of it was unwelcome. I accept her evidence in this regard.
I am not persuaded, on the balance of probabilities, that the children have been coached by the mother into making the disclosures which they have.
The next explanation offered by the father for the disclosures was made on 28 June 2010 by reference to Ms G’s note that B’s first disclosure to her involved her describing the incident as “a dream”. There can be no doubt that that is indeed what B said to Ms G on that occasion. Further, there was some specificity to what she said, namely that the dream was when her father kissed her and “put his peni out.” Later when she said “he put his peni here” she motioned to her vagina area.
The difficulty with this theory is two-fold. The first is that thereafter B’s disclosures do not continue to be of a dream. Rather they are highly specific, and more, buttressed by firstly, the level of detail that progressively emerges, and secondly, the confirmatory disclosures of C. Further, thereafter dreams do reoccur as part of the disclosure narrative, but in the context of zombies attacking B in her dreams. Therefore there seems to be a clear distinction being drawn, in her later disclosures, between what she understands to have been a dream on the one hand, and what she understands to have been a fact on the other.
That said, there is some room for concluding that the dream explanation is worthy of consideration.
The next explanation proffered by the father was on 2 September 2010, in the course of the interviews being conducted for the Family Report. In his interview, the father said to Ms E that the mother’s network of friends, including her brothers, are unsavoury people. The conviction of Mr A and Mr M tends to underscore that, but it is quite a step to go from the mother mixing with unsavoury people, to presumably them having been the perpetrators of abuse upon the children. The highest that the evidence gets is that possibly, on some occasions, the mother left the children in the care of some of her friends, perhaps even overnight. The unstated inference that the father seemed to be inviting was that there was therefore an opportunity for them to be interfered with. However there is no evidence of any such thing occurring. Moreover, the children appear to be quite articulate in relation to sexual matters. One would expect, given the extensive interviewing and counselling which they have had or been involved with, if there had been some third party other than the father who had abused them, it would by now have emerged.
The father did descend to some specificity in the Family Report interviews, and particularly identified that the maternal uncle Mr Y had been on the receiving end of complaints from “another little girl about him behaving inappropriately with her some years previously” but other than this passing reference, there is no basis to think that the maternal uncle in fact posed any particular threat to the children.
Curiously, the next explanation offered by the father appears to be one made with the benefit of legal advice. In his affidavit filed 9 August 2012 (and at a time when he was legally represented) at para 47 he said “I can only conclude that a third party has sexually abused [B] at some time in the past. It has been suggested that [C] may have been present when this has occurred.”
There is some curiosity associated with this passage, because later, when he was confronted with it by police officers in the course of their investigations, he appeared to disagree with it, or at least was unaware that that is what his affidavit had said. It must be conceded that there is a live possibility that the affidavit was drawn for him, and not sufficiently critically reviewed by him prior to swearing it. Certainly the father did not seem to adhere to any belief that B had definitely been abused in the course of the trial before me.
In para 50 of his 9 August 2012 affidavit, the father did descend to some specificity in identifying that it could be the mother’s step-nephew V who had sexually abused C and B. Indeed V was specifically identified by C as having potentially sexually abused B in a cupboard when the parties were living together. The difficulty with this theory is that B has never identified V as a perpetrator, and has only ever identified the father as the perpetrator. Moreover, whilst it is quite possible that V did sexually abuse her, the level of specificity contained in B’s disclosures are not consistent with sexual abuse in a cupboard.
I am not persuaded, on the balance of probabilities, that B has been sexually abused by a third party.
The final explanation offered by the father, which appeared to still be live at trial, was made on 21 January 2013 in the course of the final Family Report interview. There he expressed to Ms E his idea that C might in fact be molesting B. During the course of eliciting evidence from his mother in the trial, the father had her identify, perhaps in support of this theory, that in fact the only person in their home who has cowboy boxers is C, and the father does not possess any.
It has to be conceded that C has over the years since separation, demonstrated concerning and disruptive behaviours, including, on occasion, highly sexualised behaviours. He also appears to have a good vocabulary of sexual terms, albeit that his knowledge of sexual activity appears quite limited: for instance, he described “sexing” as involving people with their clothes on.
There is some direct evidence relevant to this consideration. The first is that on 19 November 2009, C was indeed observed simulating sex with B, and specifically identified that was what he was doing. The second is the conceded later attempt of C of simulating some sexual activity with his cousin S. Additionally, it was not in dispute that on numerous occasions the children have slept together in the same bed. This occurred both at the father’s house, and at the mother’s house when she was sharing a bed with Mr A. Finally, there was B’s disclosure to Ms O on 30 November 2011[18] in the context of her playing with a doll family, as follows:
Now they have finished eating they go to bed. Mum and Dad have sex. They take their clothes off. Mum is on Daddy and goes like this [humping] and makes noise “grunts.” Then… when everyone is a sleep, the brother and sister have sex.
[B] sits on her foot and grinds her pelvis.
[Ms O]: Why do the brother and sister do that?
[B]: Cause, that’s what they do. They love each other and like sexing. Its fun.
[18]Mother’s Tender Documents p14.
However the difficulty with this theory is that firstly, neither child has ever disclosed that they have engaged in sexual activity together, and secondly, even if they had, it is difficult to see how that could have generated the content of the disclosures which the children have made to third parties from time to time.
Whilst it cannot be entirely discounted, I am not persuaded that the prospect of C having been the perpetrator of sexual abuse upon B is substantial.
There are two additional matters that I should refer to in the context of discussing other explanations for why the children have made the disclosures that they have. The first is that on occasion the father has conceded that he showered with the children. Specifically the DOCS records of the father’s interview with officers on 15 April 2012 note that the father told investigators:
The father informed CSOs that an incident occurred about two and a half to three months ago (around Christmas time) when he was showering the children (father was in the shower also) and [B] grabbed father’s penis. Father told [B] that this was not appropriate and went on to reiterate private parts and no one being allowed to touch them. Father showers with the children as he was having problems with [C] coming to his care with a sore bum because he doesn’t wipe properly and then doesn’t wash properly either.[19]
[19]Mother’s Tender Documents p3.
Both the father’s and paternal grandmother’s evidence was that after the sexual abuse allegations surfaced, a different regime was initiated whereby the father showered the children with his mother’s assistance. They were not challenged in relation to that. However the significance of the father’s evidence is that it might provide an innocent genesis of some parts of B’s disclosure on 28 March 2010, for instance, her reference to “cleaning” her father’s penis.
The second is that it appears as though C has witnessed his maternal uncle having sex. It may also be that he has observed this happening on more than one occasion. However there is no suggestion that B has so witnessed sexual intercourse taking place, whether involving her uncle or otherwise.
Whilst I have referred to these two additional facts, no party actively advanced them as likely explanations for the disclosures of sexual abuse, and I concur. Of themselves, they are unlikely to produce the highly specific disclosures which have been made concerning the father.
Did the father sexually abuse B?
Both the counsel for the Independent Children's Lawyer and the mother asked me to make a positive finding that the father had sexually abused B. In support of that argument, they pointed out that Ms E, a social worker, was positively satisfied for the first time in her twenty years of practice of actual sexual abuse by a parent of a child. Moreover, they point to Ms F’s opinion to like effect, which founded the DOCS outcome of substantiated sexual abuse of B by the father.
However I am not satisfied to the requisite standard that the father has abused B. Particularly:
·I am troubled by the early allegation of child abuse by the father notified to DOCS on 8 November 2009, long before any disclosure was made by B;
·I am troubled by the variance in the mother’s evidence in relation to the father’s alleged access to pornography on the family computer;
·I am troubled that the children were shown the Bravehearts videos, and had undertaken counselling, prior to any disclosures being made;
·The children have been interviewed many times, and hence have to a large extent, probably become de-sensitised to the matters the subject of the disclosures. Even as early as in her first Family Report of 28 September 2010, Ms E was concerned about the frequency with which the children had then been examined. She warned that such “systems abuse” “de-sensitises the children to the process” and they become “schooled” about what to expect, thus weakening the validity of their responses;
·I cannot wholly discount the possibility that the mother and/or maternal grandmother have had some hand in coaching the disclosures. Particularly I am quite troubled that after many months of no disclosures, and the very week after resuming unsupervised time with the father on 21 October, B made a disclosure to Ms O in circumstances where she commenced by identifying her purpose of attendance was because of historical events;
·I am to an extent troubled that the first disclosure by B to her counsellor specifically referred to a dream;
·I cannot wholly discount the possibility that one of the factors at play here may be some sexual activity between B and C, particularly given her disclosure to Ms O of 30 November 2011;
·I acknowledge that much of the evidence of the children’s disclosures before me is firsthand or secondhand hearsay;
·I am mindful that the father has not had an opportunity to directly challenge the veracity of their disclosures with the children, or to explore with them the alternative explanations which the evidence generates;
·The DOCS records note that “father was genuinely upset, shocked and cried during his interview “on 15 April 2010.”
What risk does the father pose?
Plainly, based upon the long history of disclosures by both B and C, it has to be conceded that the father poses a risk of sexual harm to the children. The question for my consideration is whether that risk is an unacceptable one.
There are factors of concern in relation to the father. The first is his history of heavy drug use. He admitted to, in the past, always having been a regular use of marijuana. Somewhat alarmingly, in 2009 he reported to ATODS at Town P that he was smoking “50+ cones a day for the last 15 years, unable to stop”,[20] although before me in evidence he sought to distance himself from that on the basis that he was then only exaggerating his use to obtain assistance. I accept that cannabis use of 50+ cones per day would be extraordinarily high; nonetheless he plainly has been a heavy and protracted user of cannabis.
[20]Mother’s Tendered Documents p2.
The father tried to persuade me that he had stopped using cannabis in 2012. The highest that the evidence really went was his assertion to that effect, and his mother’s support of that proposition on the basis that she could no longer smell it coming from his bedroom. Perhaps his ceasing use of marijuana – if indeed he has – is associated with an equally concerning matter, and that is that he appears to have a long history of opioid use, particularly OxyContin. Concerns appear to have been raised when he sought to obtain two prescriptions for OxyContin from two different doctors within a short period of time, that he was abusing it. In evidence he appeared to accept that he had become addicted.
There is also the father’s apparent anxiety, which was suggested by counsel to perhaps go as high as paranoia. A difficulty with this is that the psychiatric assessment of the father undertaken by Dr Q in 2011 did not identify any such underlying psychiatric or psychological issue. That said however, the father’s anxiety attack which led to him being taken by police to the Town P Hospital is plainly worrying. Moreover, he appeared to have significant memory problems in the course of giving evidence before me. For instance he could only remember having been interviewed by Ms E on two occasions, when in fact he had spoken to her four times. Likewise his poor recollection of his attendance upon his own counsellor was troubling. Equally concerning was his belief that it was the counsellor who was suggested that he was being pursued by drug dealers, rather than himself. That caused me to think that there may be some difficulties with the father in his perception of reality.
Turning to assessing the risk itself, firstly I identify that in the event there were to be sexual abuse of B in the future, it is likely to have marked and probably permanent psychological impact upon her. No one suggested otherwise.
Secondly, in the event that she was so abused, I assess the likelihood of such an adverse outcome as high. Again, in fairness no one suggested otherwise.
The only way in which the risk could be sensibly managed would be by having strict supervision of the father. However difficulties present themselves in that context. Firstly, Contact Centre supervision of the father was not available at the time of trial, and secondly, the supervision by his mother and sister was associated with continuing disclosure events, arguably linked to occasions when they were supposed to be supervising the father. That would tend to suggest that supervision by family members is potentially flawed. Further, the evidence was that the father’s parents were intending to become “grey nomads” and travel around Australia in their caravan.[21] In any event, the paternal grandmother appeared to have a completely closed mind to any possibility that her son had ever sexually abused the children, or at least B. She dismissed it out of hand, and in a sense, justified that dismissal by what she said was her own moral code of complete revulsion to child sex abuse. There is plainly some force in the criticism that was made of her supervision, in that, having as its foundation a positive belief that the father presented no risk, it was unlikely to be vigilant.
[21]Father’s affidavit filed 9 August 2012 para 128.
Central to my thinking in relation to gauging the risk which the father poses is my assessment of the degree of probability that he in fact abused the children. I have already determined that I am not satisfied on the balance of probabilities that the father did in fact abuse them, however I certainly assess the probability as real and substantial. Particularly I rely upon the following in so concluding:
·The specificity which has, on occasions, attended B’s disclosures;
·That both children have demonstrated sexualised behaviours;
·The recounting by B of her personal, physical response to the alleged abuse, particularly her reference to the feeling of the father’s penis inside her, and him moving within her, but then stopping, which would be consistent with ejaculation;
·B’s disclosure of what appears to be consistent with ejaculate being emitted from the father’s navel, which might be a childlike interpretation of witnessing the aftermath of ejaculation;
·C’s disclosures, not of sexual abuse being perpetrated upon him, but of him being aware of the father visiting the bedroom of B during the evening and her crying thereafter;
·The fact that in making disclosures as he did, C identified that he was aware that the potential consequence of doing so would be to get the father into trouble, and risk substantially interrupting his otherwise enjoyable relationship with his father;
·Both Ms E and Ms F are highly experienced professionals, and both formed the view that the father in fact sexually abused B.
I acknowledge that there are countervailing considerations. Particularly, I am mindful that coaching is a legitimate, live issue in this case, and there are some troubling aspects of the chronology preceding the first disclosure by B.
I also acknowledge the sensible – indeed perhaps wise – evidence of Dr Q contained in his affidavit filed 3 March 2011, where at para 117 of his report he said:
Of course once the issue [of alleged sexual abuse] has been raised and there has been action taken as a result of it, then the belief that sexual abuse is occurring becomes clearly defined and the system reacts as though it is factual. Then the child will be taken to a therapist which in my view often simply stamps in and reinforces the conceptualisation that this child has been sexually abused.
I am conscious that a finding that a parent presents an unacceptable risk of sexual harm to their own child is a very grave one. The community would identify such a finding as damming and largely indelible, which if known, would likely lead to ostracism, or at best marginalisation in the community.
Also as Dr Q pointed out, the risk of overreacting to claims of sexual abuse is that a potentially very useful and productive parent may be cut out from having any contact with the child, to the child’s great disadvantage. However he also noted the converse concern, namely that if a child who has been sexually abused is sent back to the environment where was so abused, then they are likely to be further abused.
Notwithstanding the grave nature of the finding and the consequences of doing so, I am nonetheless satisfied to the requisite standard that the father is an unacceptable risk of sexual harm to B. I so conclude principally because of the substantial likelihood of abuse having occurred, and because of the fact that the disclosures are consistent repeated behaviour, and because the impact of childhood sexual abuse is potentially so severe and long lasting.
No party asserted that the father posed as an unacceptable risk of sexual harm to C. The harm which the father was said to represent to C was an emotional one, arising from his attempts in the past to undermine C’s beliefs that the father had abused B, both during face-to-face contact, and during telephone conversations.
In her letter to the mother’s solicitors dated 27 February 2013,[22] Ms O, who it will be remembered was B’s therapist, reported as follows:
I have been working with the [Lett] children for 12 months. I writing to confirm that recently [C] has spoken to me about how much he used to worry when he had to speak to his father. He has stated that over the last few weeks he has refused to take his father’s calls and that this has helped him to worry less.
I believe that both children have been traumatised and feel that forcing them to continue having contact with their father is detrimental to their mental health.
[22]Exhibit M2.
I accept that evidence. I will consider the consequences of it in due course when discussing what orders should prevail in relation to the children spending time, or communicating, with the father.
S 60CC(3)(a): 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
In the early stages of the parties’ separation, both children appeared desirous of spending time with their father, albeit that perhaps C has always been the more enthusiastic to do so. During the first period of suspension of the children spending time with the father, C’s behaviour markedly deteriorated, and he expressed a strong wish to resume spending time with his father, as to a lesser extent did B. Those wishes were strongly endorsed by Ms E in her Family Report of 11 May 2011, where she recommended the immediate recommencement of the children spending time with the father. Dr Q was then of a like view as well.
In more recent times however, when the children have only been able to telephone the father, B has expressed a strong wish not to do so, or to see him, and C’s desire to speak with his father on the telephone has progressively diminished, ceasing in about March 2013. He does not appear to have thereafter expressed any desire to spend time with the father, albeit I accept that it is probably the consequence of him not having spent any time with the father for in excess of two years. There is also the evidence of Ms O discussed above.
C is of an age where his wishes should be given some weight. B is not of an age when I would give her wishes much weight in ordinary circumstances, but here the context of there being a substantial likelihood that that father sexually abused her, her wishes should be given some weight.
S 60CC(3)(b): The nature of the relationship of the child with:
each of the child's parents; and
other persons (including any grandparent or other relative of the child)
The mother has always been the primary carer for both children. She plainly has a good relationship with them. Although in her first Family Report Ms E was quite critical of the mother’s capacity to parent, that seems to have somewhat abated.
The children have not spent time with the father since August 2012. Inevitably that has impacted upon their relationship with him. Their telephone communication with him has been, in the case of B, never good, and in the case of both children, now ceased for in excess of a year.
I assess the nature of the current relationship between the children and the father is at best, distant, and at worst, non-existent.
Also relevant under this consideration are the children’s relationships with the paternal grandparents. It appears as though the children also stopped spending time with them in 2012. Prior to then it appears to have been a relationship which had some mixed reports. Whilst I have considerable sympathy for the paternal grandparents, nonetheless realistically it has to be accepted that the relationship between them and the children is now a distant one.
S 60CC(3)(c): The extent to which each of the child's parents has taken, or failed to take, the opportunity:
to participate in making decisions about major long-term issues in relation to the child; and
to spend time with the child; and
to communicate with the child
Plainly the mother has been the principal parent in the children’s lives for some years now. She has been almost exclusively responsible for their education, health and day to day needs. That said, the father has been keen to spend time with the children and communicate with them whenever possible. No real criticism could be levelled at him in relation to those aspects of this criterion.
S 60CC(3)(ca): The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
Post-separation, it does not appear as though the father has been paying child support, although this is not a matter that was the subject of much, if any, evidence or submissions.
S 60CC(3)(d): The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
I have already observed that the children have had no time with the father since August 2012, and telephone communication has now ceased for in excess of 12 months. Therefore the effect of the continuation of that situation will not change anything: the effect of that change has already been visited upon the children.
On the other hand, the change in the children’s circumstances which the father proposes would see both children’s lives virtually turned upside down. They would live only with the father, spending relatively meagre supervised time their mother. Whilst the timing when the father announced those proposed orders meant that Ms E was unable to comment upon the likely effect of such a regime on the children, I have little doubt that it would be profound. Even if that is not correct, at the very least, it would be expected that in the short to medium term, the effect of doing so would be dislocating and disruptive for both the children.
S 60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
This does not appear to be engaged in this case.
S 60CC(3)(f): The capacity of:
each of the child's parents; and
any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Although in some of the early Family Reports Ms E was critical of, or at least ambivalent about, the mother’s capacity to care for the children, by the time of her most recent report of 7 February 2013 she was at least of the view that the mother was then behaving protectively.
The capacity of the father on his own to provide for the children’s needs is largely untested. Rather it appears as though he has been living with his parents, and to the extent that in the past he has needed to physically provide sustenance for the children, that has been his mother’s responsibility.
The issue of sexual abuse necessarily raises questions of great import in relation to the father’s capacity to provide for emotional and intellectual needs of the children.
S 60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
This is not engaged in this case.
S 60CC(3)(h): If the child is an Aboriginal child or a Torres Strait Islander child:
the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
the likely impact any proposed parenting order under this Part will have on that right
This is not engaged in this case.
S 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
As I have previously indicated, in the past the mother appears to have been legitimately subject to some considerable criticism in relation to her parenting capacity. Particularly she seems to have been engaged in what could fairly be described as a party lifestyle with dubious acquaintances. It appears as though, in that period she occasionally left the children in the care of third parties, but in fairness to her, after the experience of being – perhaps unwittingly – implicated in a serious crime, it appears as though she reassessed her priorities in life.
Those concerns were still held to a degree by Ms E when she gave her oral evidence before me, however she expressed some hope that the mother would be able to maintain a peaceful environment for the children.
Somewhat curiously, some support for the mother’s parenting capacity can be obtained from the father himself. On 15 April 2012 in his interview with DOCS officers, the father is said to have stated that the mother is “doing a good job.”
I do not wish to suggest the mother as some glowing example of parenthood, however the reality is she appears, in the circumstances of this case, to be a good enough parent.
The father appears to have demonstrated a reasonable attitude to the responsibilities of parenthood in relation to C, but the issue of abuse of B must necessarily cast considerable doubt upon his attitude to both children.
S 60CC(3)(j) Any family violence involving the child or a member of the child’s family
This is not a factor which loomed large in this case, although there are allegations of substantial violence made by the mother against the father, and allegations of controlling and aggressive behaviours alleged by the father against the mother. However this is not a case which stands to be determined on the basis of domestic violence.
S 60CC(3)(k): 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, taking into account the following:
the nature of the order;
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
any findings made by the court in, or in proceedings for, the order;
any other relevant matter
A Family Violence Order has applied in the past, but there is no inference which I draw from it relevant to these proceedings.
S 60CC(3)(l) Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I take this consideration into account, and accept that it would clearly be desirable to put this litigation to an end once and for all.
S 60CC(3)(m) Any other fact or circumstance that the Court thinks relevant
I cannot identify any other fact or circumstance relevant in these proceedings.
PARENTAL RESPONSIBILITY
I have already observed that the presumption in s 61DA does not apply. The question then becomes purely one of whether it is in the children’s best interests that there be equal shared parental responsibility vested in both parents, or that the mother have sole parental responsibility.
In my view this matter must be determined by the residence arrangements which I order. There is no purpose, in the event that the mother succeeds in persuading me that the children should have no contact with the father and live with her, for the father to nonetheless have equal shared responsibility. Likewise if the father succeeds on his case.
WITH WHOM SHOULD THE CHILDREN LIVE?
Given that the father had never previously argued that the children should live with him, but had always previously maintained until the third day of trial that the children should remain living with the mother, it is difficult to take his proposal as being a seriously considered one. Moreover, his evidence in cross-examination by the counsel for the Independent Children's Lawyer was disturbing. In that evidence he identified that he wanted the living arrangements to change immediately, but had no idea how that would be achieved. His home did not have sufficient bedrooms for them, he had no idea as to how a transition of the children into his care would take place, he had no idea how he would prepare the children to undertake that transition, and could not identify who might be able to assist him to so prepare them. Because he has now wholly lost confidence in professional counsellors, he accepted that that resource would not be used by him.
Moreover he appeared to have a wholly false impression as to the likely impact upon the children of that arrangement. His evidence was that he believed that they would be “happy and overjoyed” with that result. That suggestion showed a remarkable lack of insight into the profound issues which a change in residence and primary carer would inevitably generate in these children.
In any event, this issue is largely foreclosed by the conclusion which I have made that the father presents as an unacceptable risk sexual harm to B. Whilst I do not make such a finding in relation to C, no party suggested that the children should be split.
I am satisfied that the children’s best interests mandate that they should remain living with their mother.
WHAT TIME SHOULD THE CHILDREN SPEND WITH THE FATHER?
The mother contended that the children should spend absolutely no time with the father, under any circumstances, until at least they turn 18. The father had initially urged upon me that the children should spend alternate weekends and half of school holidays with him, and that there be some orders in relation to special days such a Christmas, birthdays, mother’s day, father’s day and the like; of course during the course of the trial, he changed tack, and sought to have orders that the children live with him. Further, although during the course of his evidence he accepted that if I found that if B had been sexually abused by him, then he should spend no time with the children, as has been seen, that is not the conclusion which I have reached. The conclusion which I have reached is rather that he reflects an unacceptable risk of harm to B.
The mother’s, and the Independent Children's Lawyer’s, arguments as to why the father should not spend any time with the children, differed depending upon which child’s interests were under consideration. As to B, their arguments were in substance:
·The father either should be found to have sexually abused her, or be found to present an unacceptable risk of sexual abuse to her;
·In those circumstances, her protection from risk must be the dominant consideration;
·Institutional supervision was not available;
·Family supervision in the past had not sufficiently ameliorated the risks and would be no better in the future;
·In any event B has expressed marked disinclination to spend any time with her father, and had not done so now for some two years. Her psychologist, Ms O, expressly said B should spend no time with the father;
·There is no discernable advantage to B of her re-establishing a relationship with the father, particularly given the risk of abuse which he poses. Ms E specifically said that continued exposure to the father “would be traumatic and contra-indicated.”[23]
[23]Family Report 7 February 2013 para 38
In relation to C, their arguments were somewhat different, namely:
·The father has in the past, in both face-to-face and telephone communication with both children, sought to dissuade them from persisting with their disclosures, or at least modify the content of them;
·The father has even gone so far as to suggest that C is the potential perpetrator;
·There is a reasonable prospect that the father would continue to act as he previously has in that regard ie; try to modify the children’s disclosures, and/or blame C as being the perpetrator;
·There is a risk that if C spends time with his father, but B does not, she may view that as a form of punishment of her for making disclosures;
·In any event, there is a risk that there would be jealousy between the two children, if one were to be spending time, including holiday time, with the father;
·C has not seen his father now for in excess of two years and has not spoken to him on the phone for over a year;
·Whilst in the past there may have been some discernable benefit to C having a relationship with his father, given the allegations of abuse, the benefits of that relationship have now reduced and perhaps ceased;
·C’s own therapist recommends that there be no contact between C and the father, to the point where she says any contact with him would be detrimental to his mental health;
·C appears now to have settled down and to be, within reasonable bounds, behaving himself and progressing at school,[24] so that to potentially imperil that by re-establishing some form of relationship with the father carries with it a real risk, which is not outweighed by the potential benefits of re-establishing the relationship. Ms E specifically identified the risk to C as being one of identity disturbance and low self-esteem.
[24]Family Report 7 February 2013 para 31.
I accept those arguments. They tell strongly in favour of the orders sought by the mother. I am satisfied that it is in both of the children’s best interests that they spend no time with their father. There will therefore be an order to that effect.
COMMUNICATION
I have already referred to Ms O’s recommendation that the children have no contact with the father. In her oral evidence she said that on the last occasion that she had spoken to C about speaking with the father, he told her he was feeling much better for having no phone contact. I accept her evidence. In any event the benefits to the children of maintaining telephone communication with their father are dubious. At their highest, it might be that they maintain some level of conversational capacity with a person who they identify as being their father. However I note that telephone communication alone has in fact been unable to be maintained in the absence of face-to-face time, which is probably only to be expected. C ultimately simply refused to speak with his father. Plainly, the level of engagement which the father could bring to bear on the telephone without anything else to otherwise maintain the relationship, would in any event be difficult.
Further, there is the difficulty that the father has in the past used the telephone calls to challenge the children’s disclosures, and to seek to influence them in what they say to others. This inevitably generates a level of tension not only between the father and the children, but also the father and mother. The mother says that in those circumstances, it would be incumbent upon her to supervise any telephone time which she is simply not prepared to do. She wants to get on with her life. Further she can identify no other person that could supervise that telephone time either, although that said, I suspect she has not tried very hard to find such a person.
However the point that is made by Ms E really is that the children now have a level of adjustment which is acceptable, and they need an opportunity to heal in a peaceful and non-hostile environment. I accept that evidence. Although it may appear – and be – draconian, the reality is that there is no commensurate benefit to the children that I can identify, which justifies the ongoing dislocation of their lives by now re-introducing, and attempting to maintain, telephone communication with the father.
RESTRAINTS
The mother and the Independent Children's Lawyer both sought orders restraining the father from entering or remaining on any premises which the mother or children live or reside, or any place where the mother works, or the children’s schools, or the home of the maternal grandparents.
I am not persuaded that this is a case where such orders are necessary. There is no history of such behaviour or threat. In the event that such does loom large, then either that would be a sufficient change of circumstance to justify seeking such orders, or alternatively, would be amenable to order under the State domestic violence legislation.
CONCLUSION
For these reasons there will be Orders substantially in the terms as proposed by the Independent Children's Lawyer.
I certify that the preceding two hundred and twenty (220) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 17 July 2014.
Associate:
Date: 17 July 2014
Key Legal Topics
Areas of Law
-
Family Law
-
Evidence
Legal Concepts
-
Abuse of Process
-
Appeal
-
Jurisdiction
-
Natural Justice
-
Procedural Fairness
0
3
0