Licha and Wunscher
[2007] FamCA 357
•14 February 2007
FAMILY COURT OF AUSTRALIA
| LICHA & WUNSCHER | [2007] FamCA 357 |
| FAMILY LAW - CHILDREN – Orders made by consent between the parties on the fourth day of the bitterly contested trial involving, inter alia, allegations of sexual abuse - The mother first sought that there be no order for contact and later that the time to be spent between the father and the 7 year old daughter be supervised – That changed in the course of the trial – The father cross applied for residence. |
.
| Family Law Act 1975 (Cth) ss 60B, 60CC Evidence Act 1995 (Cth) s 140 |
L v B (2005) FamCA 242
Minagall v Ayres (1996) SASR 151
Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Louth v Diprose (1992) 175 CLR 621
Jurss v Jurss (1976) FLC 90-041
A v A [2006] FamCA 1056
Johnson v Johnson (2000) 201 CLR 488
M v M (1988) 166 CLR 69
Re W, Sex Abuse: Standard Of Proof (2004) FLC 93‑192
B v B (1993) FLC 92-357
N v S and Separate Representative (1996) FLC 92-655
| APPLICANT: | Mr Licha |
| RESPONDENT: | Ms Wunscher |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Mort |
| FILE NUMBER: | MLF | 6928 | of | 2003 |
| DATE DELIVERED: | 14 February 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Guest J |
| HEARING DATE: | 6, 7, 8, 9, 12 February 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Dellidis |
| SOLICITOR FOR THE APPLICANT: | Pearsons |
| COUNSEL FOR THE RESPONDENT: | Ms Agresta |
| SOLICITOR FOR THE RESPONDENT: | Michael L Maplestone |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Mr Mort |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Septimus Jones & Lee |
ORDERS
That all previous parenting orders be discharged.
That the parties have equal shared parental responsibility for decisions regarding the long term care, welfare and development of the child, a daughter, born in August 1999.
That the child live with the Mother.
That the Father spend time with the child as follows:
(a)On Friday 16 February and Friday 2 March 2007 at G at times to be advised by G;
(b) Thereafter for a period of 6 months as follows:
(i)each alternate Friday from 4pm to 7pm commencing 9 March 2007 with the Father to collect the child from S, T, at the commencement and return the child to the Mother's residence at the conclusion of his time;
(ii)Each alternate Sunday from 10am to 6pm commencing 18 March 2007 for a period of 3 months;
(c)Thereafter for a period of 3 months from 10am on Saturday until 6pm on Sunday each alternate weekend commencing 16 June 2007;
(d)Thereafter from 4pm Friday until 6pm Sunday on each alternate weekend during school terms commencing 14 September 2007;
(e)For one week during each of the three mid year school term holidays commencing in the September 2007 school holidays at times to be agreed and failing agreement:
(i)for the first week during 2007 and each alternate year thereafter; and
(ii)for the second week during 2008 and each alternate year thereafter.
(f)For half of the long school term holidays at times to be agreed and failing agreement:
(i)for the first half of the 2007/2008 long school term holidays and each alternate year thereafter; and
(ii)for the second half of the 2008/2009 long school term holidays and each alternate year thereafter.
(g) On Christmas Day:
(i)from 3pm Christmas Day to 3pm Boxing Day 2007 and each alternate year thereafter; and
(ii)from 3pm Christmas Eve to 3pm Christmas Day 2008 and each alternate year thereafter.
(h) On the child's birthday:
(i)from 3pm to 7pm if the birthday falls on a non school day; and
(ii)from 5pm to 7pm if the birthday falls on a school day.
(i) On the Father's birthday:
(i)from 3pm to 7pm if the birthday falls on a non school day; and
(ii)from 5pm to 7pm if it falls on a school day.
(j) On Father's Day from 10am until 6pm;
(k) At other times as may be agreed between the parties.
The Father's time with the child pursuant to paragraph 4 be suspended:
(a) On Mother's Day from 10am;
(b) On the Mother's birthday:
(i)From 3pm to 7pm if her birthday falls on a non-school day;
(ii)From 5pm to 7pm if her birthday falls on a school day.
(c) On Christmas Day:
(i)From 3pm Christmas Eve to 3pm Christmas Day 2007 and each alternate year thereafter; and
(ii)From 3pm Christmas Day to 3pm Boxing Day 2008 and each alternate year thereafter;
That save where otherwise provided for, changeover for periods of time spent by the Father pursuant to these Orders shall take place at the Father's residence at the commencement of each period and at the Mother's home at the conclusion of each period.
That each of the Mother and Father do all things necessary to cause the child's name to be registered as "[the surnames of both parents]".
That each of the Mother and Father be and are hereby restrained from causing or permitting the child to be referred to, known as or enrolled at school as anything other than [the surnames of both parents].
That the Father be authorised to request from the Principal of any school attended by the child that the school forward to the Father, at his expense, copies of all school notices, newsletters, reports and applications for photographs.
That the Father be permitted to attend school events to which parents are normally invited including but not limited to parent-teacher interviews, concerts, fetes and sports days.
That each party provide the other with no less than 14 days prior written notice and particulars of any change of address and/or telephone number.
That each party notify the other in the event of any serious illness or injury affecting the child whilst she is in their respective care.
That the Father shall ensure the child attends her dance lessons, should such lessons coincide with his time with the child in accordance with these Orders.
That the Father shall purchase an asthma pump for the child to be used as necessary.
That save as provided for in these Orders, the Mother be restrained from subjecting the child to any medical, psychological or other examinations save for an emergency medical examination or treatment (and upon immediate notice to the Father of any such medical attendance).
That the Mother be restrained as follows:
(a)From referring to, discussing, questioning, or commenting to or in the presence or hearing of the child in relation to issues of sexual abuse;
(b)Save for the therapeutic purposes, from knowingly causing permitting or allowing a third party to conduct himself or herself in accordance with subparagraph 16(a) hereof.
That the Mother be restrained from denigrating, insulting or rebuking the Father to the child or in her presence or hearing or from knowingly causing, permitting or allowing another person to do so.
That the Independent Children's Lawyer forthwith arrange for the child to attend upon Dr R or such other professional as may be nominated by the Independent Children's Lawyer for therapeutic and reportable purposes.
That the child's parents shall abide by the directions of Dr R (or his nominee) and fully co-operate with any treatment plan AND FURTHER that the Mother be solely responsible for the payment of any professional fees relating to her and/or the child's attendance(s) save that the Father be responsible for the payment of his attendance(s).
That the Mother forthwith attend upon Mr P for therapeutic and reportable purposes in order to address the Mother's parenting and her allegations of sexual abuse AND FURTHER to attend as directed on a reasonable basis and be responsible for payment of any fees.
That pursuant to paragraphs 19 and 20 Dr R and Mr P be at liberty to liaise with each other and the school counsellor in relation to the child's and the mother's progress and therapeutic counselling.
That the mother be at liberty to continue to utilise counselling services for the child at the child’s school, and such counsellor be at liberty to liaise with Dr R.
That the Independent Children’s Lawyer provide forthwith a copy of these Orders and Ex Tempore Judgment delivered 14 February 2007 and Dr R's report and Ms W’s reports to Mr P.
That the Independent Children’s Lawyer forward to the child's school a true sealed copy of these Orders and the report of Dr R filed in these proceedings as soon as practicable.
That the Independent Children’s Lawyer forward to Dr R a true sealed copy of these Orders, the Ex Tempore Judgment delivered 14 February 2007 as soon as practicable.
That the Independent Children’s Lawyer forward to the Manager of G a true sealed copy of these Orders as soon as practicable.
That the appointment of the Independent Children’s Lawyer expire six months from the date of these Orders.
That all extant applications be dismissed and removed from the list of cases awaiting final hearing.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS CERTIFIED
That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.
IT IS DIRECTED
That the subpoenaed documents be returned to the persons or entities received therefrom.
AND IT IS NOTED THAT:
AThe parties intend for the child to have her first appointment with Dr R at 2 pm or 27 February 2007 and thereafter for the Father to attend on Dr R on 1 March 2007 at 1.30 pm and the Mother on 6 March 2007 at 2 pm.
BMr P is available to attend upon the mother by appointment commencing this week.
CThese Orders have been agreed to by all parties on the basis that it is acknowledged that this Court has made no finding of sexual abuse in relation to the child upon application of the requisite standard of proof AND FURTHER that there is no unacceptable risk to the child in relation to any time spent with the Father.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 6928 of 2003
| Mr Licha |
Applicant
And
| Ms Wunscher |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
These proceedings concern child welfare arrangements for the daughter who was born in August 1999. By her Amended Form 1A Response filed 28 March 2006, the mother sought an order that she have sole responsibility for the child’s long‑term care and day‑to‑day welfare and development, that the child live with her and that the father have no contact with his daughter. Central to the mother's case was her allegation that the father had sexually abused the child.
For his part, the father has at all times vehemently denied that he had done so, and by his Amended Form 1 Application filed 24 May 2006 sought an order (inter alia) that the child live with him and that the mother spend time with her in what I may broadly describe as usual or general orders of the court. Thus the demarcation lines were set. There was quite a litigation pathway travelled by him in coming to that position, for when the proceedings were initially commenced on 9 April 2003 he sought “contact”, as it was then styled.
In her Case Outline Document filed 31 January 2007, the mother maintained her stated position, seeking orders as set out in the Amended Form 1A Response. However, when the proceedings commenced before me on 5 February 2007 Ms Agresta, counsel for the mother, reviewed the mother's position that "in view of the reports" she proposed that the father spend time with the child on a supervised basis "at [G] for a couple of years". Her reference to "the reports" were those of Ms W, the Family Consultant, being five in all, the last one dated 21 March 2006. Given the passage of time, it is hard to accept the change in position of the mother upon that stated basis as being genuine.
Mr Mort, counsel for the Independent Children's Lawyer at that stage provided, at my request, a preliminary view that, having given the matter the most careful consideration and having read the relevant files of the Department of Human Services, the allegations of sexual abuse could not be made out to the requisite standard of persuasion and nor was there an unacceptable risk of sexual abuse.
In his Case Outline Document, Mr Mort proposed that subject to evidence and any findings in relation to the allegations of sexual abuse, the preliminary view of the Independent Children's Lawyer was that if the mother was able to satisfy the court that she would promote and facilitate the father's time with the child and comply with any future orders of the court, the child should continue to live with her and spend increasing time with the father on an unsupervised basis. This time should be extended gradually to include weekly daytime periods to overnight periods on alternate weekends to commence within approximately three months. Further, that the child spend time with her father for one half of all school holidays, one half of the long summer vacation, and on special occasions such as birthdays, Father's Day and Christmas Day.
However, it was also the preliminary view of the Independent Children's Lawyer that if the mother was not able to satisfy the court that she would promote and facilitate the father's time with the child and comply with the future orders of this court, then the child should live with the father and spend time with the mother. That time should be spent supervised at G, with the mother having liberty to apply in relation to the question of further contact after 12 months. In the alternative, the mother have no time with the child for three months and then time supervised at G for 12 months.
It was further proposed that the child have regular psychotherapy as recommended by Dr R, that the mother have psychiatric treatment as recommended by him and that each parent attend a post‑separation parenting course.
The rationale for this proposal, as expressed by Mr Mort, was that the orders provided an opportunity for the child to have a meaningful relationship with both parents. It was acknowledged that the child was bonded to her mother and had a close relationship with her. Further, that it would be preferable if the child were able to remain with her mother if possible, while maintaining her relationship with the father.
It was submitted that despite the limited time thus far spent with her father, the child had displayed a very positive and healthy interaction with him. Further, that the father had displayed insight and understanding of the responsibilities of parenthood. It was submitted that the child had a loving relationship with her father, an attachment to him and that the father displayed "some capacity to meet" the child's needs. However, as a result of his limited time with her this was to a large extent untested.
The Independent Children's Lawyer argued that the father’s lack of time spent with the child derived directly from the mother's "failure to promote and encourage the child's relationship" with her father, which displayed a lack of insight into the child’s emotional needs and her responsibility for the potential damage to her psychological and emotional functioning. It was put that she appeared to have disregarded her obligations as the child's primary carer.
The Independent Children's Lawyer at that stage submitted that in the event the mother continued to neglect her parental responsibilities to the child and to "foster positively a relationship between the child and the father" there was a real risk that the father's existence would fade in her life to the detriment of her emotional and psychological wellbeing.
It was noted that the child had suffered trauma as a result of the conflict between her parents and that both Dr R and the Family Consultant urged change in her adverse family situation "via resolution or a reduction of this conflict". That of course, was not heeded by the mother.
The Independent Children's Lawyer then noted that an important measure of the mother's insight into the child's needs would be "her attitude" to the father and "her preparedness to overcome past negativities". On reflection, it is plain to me that the preliminary view and rationale showed considerable understanding and insight of the issues before me.
At the very beginning of the trial I addressed all counsel, expressing a preliminary view under the umbrella of Johnson v Johnson (2000) 201 CLR 488, and the matter was stood down for negotiation. At the recommencement of the proceedings in the afternoon of the first day, I was advised that no agreement had been reached and that the matter was proceeding.
At that point, Ms Agresta submitted that the mother had a fresh proposal, which she articulated in the following terms. Ms Agresta submitted that the new proposal was for the child to live with her mother, and that the father have contact for a period of three months on a fortnightly basis during the day for "several hours" with the mother being present.
Ms Agresta explained that the rationale for this proposal was that the child would “feel more secure”, and secondly, because the child was reluctant to attend on contact. Ms Agresta said, when I sought clarification, that the mother continued to have “a fear” that sexual abuse would take place. She submitted the mother's further proposal was that after that period of three months the father have contact with the child during the day for "several hours", with the mother remaining for “half an hour” to settle her and then leave them together. That too would go on for three months.
Thus following a period of six months, it was then proposed that there be a further period of three months, unsupervised during the day, but not overnight and on a fortnightly basis. Following that period, now being towards the end of 2007 (after nine months), there be unsupervised overnight contact on one night per fortnight, and thereafter "eventually" at "some time" for two nights per fortnight. There was no sunset clause to that open-ended and bald time frame.
Ms Agresta said that her instructions were that once the situation was "up and running", the issue of holiday contact be brought in, broadly speaking, for one half of each holiday. Further, that the parties engage in "some social family therapy".
Given the terms of that proposal, there was little difficulty for me to reason why discussions had broken down. It was plainly obvious for there was, without any criticism being directed to Ms Agresta, a sting of naivety and unreasonableness about it which failed to grasp the central thrust that would enable the parties to move forward for the benefit of the child.
This became so much more apparent with each of the parent's evidence before me and in particular the very helpful and illustrative analysis provided by Mr Mort in Exhibit “ICL3”, comparing that proposal with the terms of the interim orders made by Kay J on 23 May 2005. It was plain that the mother was obdurately stubborn to rational logic and resistant to moving forward with the father's time to be spent with the child.
The father commenced to give his evidence on 6 February 2007 and was cross‑examined about his prior criminal history record, together with the fact that he had been given to reactive depression. The impact of such an attack was at first lost upon me, its relevance being asserted as going to credit and the father's ability to otherwise care for the child. I say that because firstly, the fact of his police record and emotional health was known to the mother, and secondly that he actively participated, notwithstanding the allegation and at the request of the mother, some may say to accommodate her work ethic, in the child's daily nurture, the extent to which however was in dispute. It also did not sit at all satisfactorily with the terms of the signed Parenting Agreement entered into between the parties on 14 June 2002 upon the breakdown of their union.
When the matter resumed on 7 February 2007, I further addressed the parties on the positive advantages to be derived from consensual, sensible and dignified resolution. I emphasised the principles and objects mandated in section 60B of the Family Law Act 1975 (as amended) (“the Act”) and the requirement for professional intervention both now and into the reasonably foreseeable future to assist each of the father, the mother and the child. It was again stood down, but negotiations failed and the trial continued.
On the fourth day of the hearing, after the father had given his evidence and the mother had been extensively cross‑examined by Ms Dellidis, the proceedings were stood down yet again for negotiation purposes. On 12 February 2007, following a weekend break, the parties signed Minutes of Consent Orders.
As will become patently obvious through this judgment, for the mother to have proceeded further would have deepened the crisis revealed from her evidence and what I regard as her lack of perspicacity and discernment in failing to recognise all those clear indicators that there had been no sexual abuse as alleged. Independent third party evidence was apparent, yet ignored by her, as she chose to listen only to those that fed her own imprudent and hastily conceived views. It was the giving of her evidence that cast the die.
I have some doubts that this court will be free of this matter in the future, albeit that I hope I am wrong in my forecast. In any event, those professionals engaged to assist the parties and the child, pursuant to the terms of the consent order, may be assisted by what I have to say, which records the evidence to the point of resolution. Further, in the event it did return to court for any reason, the assigned judicial officer would have a comprehensive understanding of the basis of adjustment between the parties and a foundation for any decision‑making in the future.
Background
The father was born in Iraq in July 1954. The mother was born in Australia in March 1961. Accordingly they are 52 and 45 years of age respectively. The parties commenced cohabitation in May 1998 and their daughter was born in August 1999. Following unhappy differences between them, they separated under the one roof in April 2002. In June 2002 the parties entered into an agreement as to parenting and financial issues, and in November 2002 they physically separated from under the one roof. The child continued to live with the mother and spend time with the father by agreement.
The situation did not work out and on 9 April 2003 the father filed a Form 3 Application in the Federal Magistrates Court seeking orders for shared parenting and specific issues. In essence he sought a shared arrangement for the care of the child. The mother filed a Form 3A Response, seeking residence, defined contact and specific issues on 21 May 2003.
On 26 May 2003 consent orders were made in the Federal Magistrates Court of Melbourne, providing for the mother to have residence, that the father have contact each Sunday between 9 am and 5 pm, and each Wednesday between 4 pm and 7 pm. A family report was ordered.
The progress of the parties' litigation avenue commenced on 27 July 2003 with a notification being made to the Department of Human Services by the father concerning the child, alleging exposure to “psychiatric illness and emotional trauma”. On examination, the Department of Human Services closed the file on 4 August 2003, citing insufficient evidence to act. However, on 10 September 2003 the child was interviewed by the Department of Human Services and the Sexual Offences Child Abuse Unit (“SOCAU”), but did not disclose any sexual abuse. They interviewed the father on 24 September 2003.
On 26 September 2003 the mother reported to the Department of Human Services that the child had disclosed that her father had sexually abused her. Contact was unilaterally suspended by the mother. It was on 1 October 2003 that the Department of Human Services confirmed to the father that they were investigating this further allegation and that contact should be suspended in the meantime. The following day, on 2 October 2003, the father filed Contravention Application proceedings for breach of the contact orders that were made on 26 May 2003, alleging 20 contraventions.
Six days later, the Department of Human Services and the SOCAU interviewed the child. Again, no disclosures were made by the child. The child abuse unit determined no further action be taken and on 13 October 2003 a letter was written by the Department of Human Services which confirmed that the investigation was closed.
Orders were made on 11 November 2003 adjourning the Contravention Application of the father to 10 December 2003 by reason of judicial unavailability. However, events worsened, and on 20 November 2003 the father filed a Form 8 Application for “make up” contact, a Recovery Order and a further Contravention Application for breach of the orders that were made on 26 May 2003, this time alleging six contraventions. Accordingly, overall some 26 breaches of the authority of this court were alleged by the father.
That day, the Department of Human Services received a further notification. The child was allegedly displaying concerning behaviour at school. However, the Department of Human Services took no further action, given that the child was interviewed twice previously with no disclosures. On 26 November 2003 the Department of Human Services again closed the case.
On 10 December 2003 the mother filed an Amended Form 3A Response, seeking supervised contact, a family report and the appointment of a Child Representative. Consent orders were made in the Federal Magistrates Court on 12 December 2003, although there is some confusion as to whether or not they were made on 10 December 2003. It matters not.
Those orders provided for the father to withdraw his Contravention Applications and that the contact orders of 26 May 2003 be varied so that Wednesday and Friday contact occurred between 2.30 pm and 5.30 pm. Mercifully, a Child Representative was appointed. The matter was then transferred to the Family Court of Australia.
On 19 December 2003, the child disclosed that her father physically abused her. The Department of Human Services directed the mother and father to suspend unsupervised contact pending investigation and on 24 December 2003 the child was interviewed again by SOCAU. She disclosed that her father "touched" her on the "inside of her bottom". At that stage the Department of Human Services assessed there was a “significant risk” to the child. On the same day the mother made a statement to the police and the father was interviewed by them. He denied the allegations.
On 29 December 2003 the Sexual Offences Child Abuse Unit advised the Department of Human Services that the allegations were vague, that the child was unable to be submitted to VATE procedure and that the investigation would not proceed. Later, on 21 January 2004 the Department of Human Services interviewed the child and a disclosure was made. The Department recommended supervised contact and the matter was referred to the E Centre Against Sexual Abuse on 27 January 2004. On 2 February 2004 the mother filed a Form 8 Application seeking a suspension of contact. Thereafter, the matter proceeded down the litigation pathway with various applications, and the father having supervised contact to the child.
Legal Principles
The principles governing a case such as this are set out in the Family Law Amendment (Shared Parental Responsibility) Act 2006. In considering the consent orders, I must regard the best interests of the child as the paramount consideration (s 60CA). In determining what is in her best interests, I am obliged to consider the matters set out in s 60CC(1) which are called the ”primary conditions”. There are “additional conditions” also set out in that section. The two primary conditions are, firstly the benefit to the child of having a meaningful relationship with both her parents, and the second is the need to protect her from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. That bore significance.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and, as a note to s 60CC points out, are consistent with the first two objects of Part 7 of the Family Law Act as stated in s 60B. Accordingly they are matters requiring careful consideration.
The issue of credibility was made very clear at the commencement of the trial. Insofar as the standard of proof concerning the various evidentiary issues for my determination is concerned, I have made it clear that the level of persuasion is the civil standard, that is, the balance of probabilities (s 140(1) of the Evidence Act 1995 (Cth)).
By reason of the manner in which these proceedings were conducted, it is necessary in the course of this judgment to make what may be perceived as some harsh comments, but in doing so I stress very firmly at the outset that these comments are not made or intended to insult, belittle or undermine the confidence of the parties and in particular the mother. On the contrary, it is my hope and expectation that what I have to say in this judgment will be considered carefully, in particular by her, and used positively to benefit the child and for each of the mother and the father to better understand an objective independent consideration of the relevant matters considered necessary to facilitate what is in her best interests.
It is readily apparent from the manner in which the proceedings were conducted that the issue of credibility, as I have already discussed, became a critical one. That was necessarily so, given the issues raised before me from time to time. There was a serious allegation. There was a denial. One is required therefore, in the pursuit of a determination, to test the evidentiary base that each party acted upon.
Accordingly, I will in the course of this judgment make a number of significant and crucial findings concerning my acceptance or otherwise on different and important issues. Given this fact, I wish to emphasise that I have had the advantage of carefully observing the witnesses in the giving of their evidence, which is an important one and of considerable assistance, given that my observations span several days during which many issues were put to each of the contesting parties.
I am not by any measure asserting this is a panacea, for it is patently clear that an assessment of truthfulness or reliability by demeanour can be nothing short of hazardous, if that were the only criteria. But in this case, in addition to my general observation of demeanour in the above circumstances, I also take into account the inherent likelihood or otherwise of evidence given on a particular issue and its consistency overall with other evidence and documents relied upon.
I have made such comments in a number of judgments, including for example L & B [2005] FamCA 242. In that case I referred to the fact that a trial judge is in the privileged position of observing witnesses. This was commented upon in Minagall v Ayres (1996) SASR 151 at 154 per Hogarth J. See also Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 313 per Kirby J, who said:
“By conventional theory the observations made by a trial judge of the appearance and demeanour of a witness giving evidence are not only available to be used in the determination of a dispute but amount to important ingredients of the decision-making process. They normally provide the primary decision-maker a distinct advantage which controls, and even limits, the exercise of the appellate court of its statutory functions in an appeal by way of rehearing…”
As I discussed in L & B (supra), a trial judge in a significant case such as this is charged with the onerous duty of affording weight to a particular fact in issue which will "not often be capable of rationalisation beyond the statement, having heard him, I am not satisfied I should accept what he says". See Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273-4 per Mahoney JA. In that case I find considerable assistance from his Honour's comment that:
“…the weight which a judge gives to a particular fact may be affected by, as it has frequently been put, his experience and, in particular, his experience of the significance of that fact in the order of things.”
I have accordingly been careful in evaluating the relevant evidence, which necessarily brings into account matters such as credibility and the inherent likelihood or otherwise of the evidence given by the principal protagonists. A useful explanation of my task was provided by Dawson, Gaudron and McHugh JJ in Louth v Diprose (1992) 175 CLR 621 at 640.
The Evidence
The Father
I wish to make it clear that I have carefully considered the trial affidavit evidence of the father, together with his oral evidence before me. He was a thoughtful and careful witness, who earnestly responded to all questions put to him. There was no indication of evasiveness or procrastination. No doubt some of the matters put, the overall relevance of which was questionable, led to some discomfort. This was quite understandable in the circumstances.
The words of Demack J in Jurss v Jurss (1976) FLC 90-041 at 75-184 were apparently lost, in what I regard as an unnecessarily protracted and painful cross‑examination of historical content. So too, many of the rather intemperate assertions by the mother in her trial affidavits of the most private intimacies shared in the course of their union.
If I may borrow the wise words of Demack J in repeating for the benefit of the mother that an inquiry such as that before me is a positive one, designed to promote the best interests of the child and not demote the claim of the parent. Doubtless little regard was paid to the principles and objects of the Act when drafting what may be fairly described as an extravagant and unnecessary attack. This is particularly so given that the mother was fully aware of the father's police history and former predilection to gambling.
Overall, there was nothing put in cross‑examination that caused me to doubt the credibility of the father in the proceedings before me, notwithstanding his past record at another time long ago in quite different circumstances. To the contrary, and unlike the mother, he maintained a dignified demeanour at all times and made concessions when it was both proper and appropriate to do so.
When speaking of the mother, the father displayed no antipathy or anger. He addressed questions relating to the several options available for my determination with sensitivity. He did not seek to demote the claim advanced by her. He candidly, for example, proffered the preferred option that the child continue to live with the mother and that he spend time with her, qualified by her genuinely promoting his image as the father of the child, in circumstances where on the evidence it was open to him to validly reiterate the terms of his Amended Form 1 Application. I thought he was fair. I thought he was honest, realistic and, importantly, reliable.
I deal with his evidence. When examined by Ms Dellidis, the father said that since the filing of his trial affidavit on 18 April 2006 he had consulted with a psychologist to assist him in these proceedings. He explained that he had been depressed and that he received considerable professional assistance and encouragement. He said that he had moved his life “forward” and had paid employment with a welfare agency, with whom he earned approximately $900 per fortnight. He received a Centrelink benefit of some $200 a fortnight.
The father explained that he had a companion who had entered into his life. She is the manager at the V store of the welfare agency and they had engaged in a steady relationship since August 2006. She is 45 years of age and lives at B in a unit of her own. She has no children. He said they enjoy a satisfactory and happy relationship.
The cross‑examination by Ms Agresta, and which I accept was upon instructions from the mother, was directed to dampen, perhaps blacken, the standing of the father as a witness in this court. For example, he was reminded that when he first saw Dr K (page 3 of his report) she told him that the father "had been addicted to gambling". However, the father said this had been the situation well before he met the mother. He was then cross‑examined at length upon his criminal record, and in the result Ms Agresta tendered Exhibit “M1”, being his criminal history sheet, the details of which were admitted by him.
Insofar as his gambling and depression were concerned, the father said that he made full disclosure of these matters to the mother when they met. It is a plain observation that the criminal history sheet of the father, particularly for the years in the late 1980s, was appalling and recorded obvious offences of dishonesty. His convictions and sentences are evident, and as one colloquially acknowledges, he “served his time”.
To suggest that this fact and this fact alone should register and impact upon the father's credibility or lack thereof for all time is not a proposition that I accept. Form both his demeanour in the witness box and his evidence I accept that he felt a great sense of contrition for those past events, which he greatly regretted.
Observing him carefully during the course of the cross‑examination on all these issues, it is clear that it was a painful exercise for him, and one which he accepted as part of the litigation pathway. The need to dwell on these aspects however, in the manner undertaken, was something that I doubt very much.
I do not accept that the father failed to make a full disclosure to Dr K of his past, and I am satisfied that he is the ilk of person that would respond earnestly to matters put to him. There was nothing to be gained by nondisclosure, given that the mother was aware of the history.
The father said he no longer takes medication for depression. He takes Voltaren (25 milligrams) to relieve pain in the lower back. He denied that he took Effexor when he met the mother. He said that he took Prozac prior to their meeting and that he was taken off that medication some time later. He conceded that he did suffer depression from time to time, which was reactive in symptomotology, explaining that it occurred when "the environment about you becomes bad and you can't handle it". He explained, and which is quite understandable, that when he was released from prison he felt that "no‑one wanted to know" him, that there was no opportunity for work which was magnified in circumstances where he had no family and had suffered a lost relationship.
Ms Agresta cross‑examined the father concerning matters raised by him relating to the mother's parents' reaction to him as a consort for their daughter. It is plain that they disapproved of him. He said responsively, when cross‑examined by Ms Agresta, that the maternal grandmother told him, "I don't like you, because it's in my blood," referring to the fact that he looked like "a negro". Such a statement, if made, was callous, racist, heartless and unpardonable. Albeit that the maternal grandmother did not give evidence, the matter having been adjusted prior to her being called, the manner and circumstance in which the father gave that evidence had the ring of reality about it.
However, I might point out that in the course of an insightful cross‑examination by Mr Mort, it became plain that the father did have a tolerable, indeed at times an amiable relationship with the mother's brother, which could lay the potential foundation for an opportunity to engage his assistance in the early stages of the reintegration of the child into his life. That was one positive aspect of these proceedings.
The father was cross‑examined at length in relation to his deposition that he had been "the primary carer" of the child during the first three years. He said that this was by agreement and during which period he cared appropriately and lovingly for her. I do not propose to scrutinise the lengthy, at some times somewhat turgid review of the living situation of the parties during those years, save to say that I was left with the clear impression that the father was involved in a substantial way in the care of the child. The exigencies of their household were such that there was evident a reverse dichotomy of traditional tasks.
It is plain that the father found it difficult to obtain meaningful employment. The mother was a trained professional. In those circumstances it is clear that she returned rapidly to work and it is doubtless too that her contribution financially to the coffers of the family was a most substantial one. It is also plain to me that during this period there were times during which a third party cared for the child, but that did not detract from what appears to me to have been a material contribution to the general nurture, development and welfare of the child by the father. It is not a black and white situation, but one whereby the piecing together the separate indicia formulates an overall picture of the dimension explained by me.
The lengthy cross‑examination of the father's employment history was, in my view, a needless and inessential exercise, doubtlessly obliged to be put by Ms Agresta upon instruction of her client. I have no reason to doubt the bona fides of the father in asserting his belief that he was "the primary carer", but that is in effect a technical term. His evidence leaves me with no doubt as to his contribution. Perhaps the nadir of the puttage, in terms of assisting me in the ultimate determination of the complex issues with which I am charged, arose from the husband's deposition that he took the child when she was approximately six months old, to a local creche, so that she might spend "some time socialising" with other children. He came under criticism for use of the descriptive term, "socialising".
The father was asked a number of questions concerning the Deed of Agreement made 14 June 2002. He made it clear it was his understanding that both he and the mother agreed they would "share equally" the care of the child. He disputed the puttage that it was not intended he have overnight care of his daughter. There appears to me to be some support for that proposition in that he, by his Form 3 Application filed 9 April 2003, sought a final order that he have the sole responsibility for the care, welfare and development of the child from 9 am on Monday to 5 pm on Wednesday. The father explained that his application was, using his words, in the same terms as the agreement between the parties.
The father accepted, as was put to him by Ms Agresta, that save for approximately two nights when the mother was in hospital, he had not had overnight contact with the child from the date of physical separation, November 2002, to this day. I have no doubt that was not his choice. The circumstances of the whole litigation pathway demonstrates that to be a fact. Indeed his daytime contact with the child on an unsupervised basis ceased in about August or September, of 2003.
The father was cross‑examined about the allegation of sexual abuse. Ms Agresta made it clear that the allegation relied upon by the mother was that set out in her trial affidavit of 4 November 2004, being prior to the proceedings heard before Kay J on 23 May 2005 when interim consent orders were made. It was intended at that time the parties proceed into the future within the terms of those orders, which have, in my view been honoured in the breach by the mother. Ms Agresta made it perfectly clear, with her traditional and professional frankness, that in relation to the allegations set out in paragraph 19, "I can't take it any further than that". That proved to be accurate, as the mother in her evidence endeavoured to erect an edifice of fact upon a foundation of quicksand.
The father said that the child had never used the term "pussy cat" in his presence (a reference to her vagina), and denied that he had ever touched her on the genital area, save that he would “wipe” her upon bathing. He explained that such tasks were never in a sexual way but “as a parent”. He made it clear that he believed the child had been coached to make the disclosure by the mother. Further, he said that he did not believe the child expressed that which she is alleged to have said.
The father was referred to the first report of Ms W of 19 August 2004 (paragraph 47) and asked why he so acted (kissing the mother) and saying that he had "no hard feelings" if he was of the view that the mother had "coached" the child. He made it clear to the court, and with considerable passion I might say, in asserting "she is the mother of my child" which is the situation "for the rest of our natural life" and that what he said that day he "meant from the heart at the time". I suspect that the puttage was predicated on the basis of a too black and white situation, without regard to variable human behaviour. It seems to me the father had retained, certainly to that time, unrequited and unresolved feelings for the mother following the separation.
The father made it clear that he firmly believed the mother had “made up” the allegation. When challenged on this, he referred to his affidavit filed 27 July 2004 (para 11), as formulating the foundation for that belief. That paragraph reads as follows:
“11.[Mr F], the psychologist employed by the mother who previously provided a report that no disclosures were made by the child, provided a further report in January 2004 stating that the child had made disclosures of sexual abuse by me. [Mr F] had been notified by Victoria Police that my daughter may have been coached by the mother in regard to the alleged claims of abuse. The following part of the report of [Mr F]. In his report dated 2nd January 2004, purportedly sent by [Mr F] to the respondent's mother's solicitor Mr Maplestone, he states as follows:
“The members of SOCA unit informed that in their opinion [the child] had been coached in her story, adding that [the child] asked her mother if that was what she was supposed to say. [The wife] was alleged to have stated words like, 'What am I supposed to do to get custody?' The latter is concerning, as it clearly casts doubt over the veracity of what has been stated to date. The context of the above is understood to occur within an acrimonious separation and child access battle.””
That report is one relied upon by the mother and is annexed to the affidavit filed in these proceedings on behalf of Mr F on 12 April 2006.
It was put by Ms Agresta that in the months of September to November 2003 the father continued to have contact with the child. With that he agreed, qualifying it by properly asserting "with several interruptions". So much so is clear, given that he filed a Contravention Application on 2 October 2003, as I said asserting 20 contraventions and again on 20 November 2003 asserting six contraventions. A total of 26 contraventions in all. The father said there was nothing in the behaviour of the child to suggest that she was stressed and positively asserted that the child enjoyed seeing him. That was not challenged in cross‑examination.
The father was also cross‑examined in relation to paragraph 22 of the mother's affidavit filed 4 November 2004. Without going into the lurid details of the assertions made, I need only record that he denied the allegations put and vehemently so. They were not, in the result, seriously pursued by Ms Agresta.
The father was asked a number of questions as to his “primary position”, seeking that the child live with him. He acknowledged that such a move would involve a change in her school friends, her school, her teachers and her general environment. He said, however, he compared the damage that the child would sustain following any change of residence with the damage that "is happening now". He made it clear, which I accept, that he would maintain the relationship between the child and her mother, which has been historically demonstrated to be in sharp contrast to the current situation with the child living with her.
When cross‑examined by Mr Mort, the father maintained his belief that the mother had “made up” the allegation. He pointed out that the last unsupervised contact that occurred between the child and himself was in December 2003. On about 12 December 2003 consent orders were made, as I said, in the Federal Magistrates Court. The orders provided, by consent, a withdrawal by him of his Contravention Applications and that the orders made on 26 May be varied in the way described.
The father gave evidence that in a conversation he had with the mother, she informed him that she had been “hassled” by Centrelink and by what he had said about her. I assume that referred to the father's disclosure on 27 July 2003. The mother further complained that she had considerable legal costs and went on to assert, "You started the war, someone's got to finish it”. She made a remark about sexual abuse. He said that he inquired what she was talking about and that she responded with a wink, saying, "You know what I mean”. The father maintained his belief that the child would be subject to "coaching, intimidation, things like that" by the mother. As matters stood, there was in my view a reasonable basis for making that assertion.
Mr Mort then addressed the husband to his background. He was born in Bagdad, Iraq. His father was Jewish and his parents divorced when he was six years of age. He has no siblings. His mother remarried and he was raised by his grandmother. He has no family in Australia.
The father said that he attends the S Church for mass each Sunday. He pointed out that the child formerly attended with him. For some recreation, he sometimes attended a Bible group and other church activities. He has been associated with the church since 2003. He referred to the fact that he has friends, but that the litigation in which he is involved has, to use my own words, disaffected them. He said that the mother's family provided no support for them upon the birth of the child, and that his relationship with her family had "not been good". That was a masterful understatement.
However, he referred to the fact that the mother's brother commenced to visit them when they lived at their home at W. He did this "only when he received a phone call", from her. As to his relationship with her brother, he said there was no friction but that he felt, and understandably, that the brother would "stick by his sister". He said that her brother had helped him out from time to time with transport. It was his view that except for the paternal grandmother, the brother may be an option to assist in the future. That was encouraging.
The father produced an album of photographs (Exhibit “ICL1”) which on the face of them revealed the child having happy times with him. Some of the photographs related to the period prior to their physical separation in November 2002 and otherwise at G. He described his relationship with the child as “beautiful”, as being a “normal one”, but that she would be apprehensive for some 15 minutes at the commencement of contact and then revert to her “normal self”. He explained that when the mother returned to live at the home of the maternal grandmother in November 2002 their relationship "fell off the tracks".
The father repeated that he took Prozac prior to commencing his relationship with the mother but had not been on medication for depression during the relationship. He maintained that he coped with his depression during the relationship, as he currently is, and has never been hospitalised for that illness.
Mr Mort then addressed the father's attention to the Agreement entered into on 14 September 2002. He explained that it was drawn with the assistance of the Monash University Legal Service and asserted that both he and the mother joined in the Agreement to advance the best interests of the child. He described it as "a map for the future". Reference was made to paragraph (E), being “conditions for the responsibility” of the child and in particular that there was to be no change to her legal name and that neither party was to travel outside Melbourne without the consent of the other. He said that as he understood it, the child was now known as SF and (mother’s surname) and at times S (mother’s surname). Her birth certificate is in the name of “[the father’s surname]”.
The father explained to Mr Mort that the mother travelled to Queensland on about 10 September 2003 without his agreement. Her solicitor, Mr Maplestone, wrote to him on 26 August 2003 and in respect of the proposal for travel the father did not agree, expressing certain concerns about the child (see Annexure 15 to the affidavit of the father filed 2 November 2005). He did not receive any make-up contact, and went on to correctly add, nor "the original contact" as agreed between them.
The father complained that from November 2002 until 9 April 2003, being the date he first filed his Form 3 Application in the Federal Magistrates Court, his contact with the child was both irregular and erratic. He was not permitted to spend time with her during, for example, Christmas 2002, an important time in a young child's life. He complained that the mother did not provide him with any details relating to the child and notwithstanding that the mother was working and he was available to care for her, was never offered the opportunity. Given what I have heard from the mother, I accept that evidence.
In his evidence the father made it clear that he withdrew his Applications for Contravention as he and the mother had reached an agreement concerning his time to be spent with the child. He agreed that was a “positive thing”, and that those orders were to proceed on an unsupervised basis. In my view, upon reflection, this was just a contrived step on the mother's part, her focus or target at that time to obtain some evidence against the father of sexual abuse. That is, as painful as it might be, she was disingenuous when consenting to the orders.
The father was referred to pages 39 to 40 of Exhibit “ICL2”, being a relevant part of the Department of Human Services file. He agreed that it was he that made the notification on 24 July 2003 and that the Department's report on the file of what he said was accurate. The following was noted on the file:
“Caller asked writer to be very gentle with the mother, as caller did not want mother to feel degraded in any way.”
The father explained that at the time he did not understand the role of the Department of Human Services and that he was concerned about the mother. He said that he went to their web site, as he was “searching for help” for the family. He was looking for community support. He agreed that, upon reflection, he strongly regretted calling the Department as he did. He said that he realised this could have made the situation worse in relation to his contact with the child. I accept his evidence on that aspect, and that he genuinely regretted his conduct in making the notification. I take into account that he was searching for help, for the family.
Mr Mort referred the father to page 42 of Exhibit “ICL2”, being a telephone call between the mother and the worker on 31 July 2003. Several parts of that file bear reference, including:
“At the moment the father is having three days' overnight access and is wanting to have 50 per cent ...
…she (the mother) said that she does not want to “bag” the father and that he is reasonably stable at the moment. She stated that he has a lot of good character points as he is a very helpful and compassionate person. She said that she trusts him with the baby but wonders whether he always puts her needs first….”
That position changed as it spiralled downwards with the subsequent passing of time.
The father disagreed that he was having overnight contact at the time, and such is the fact. He acknowledged that he sought, as he had always done, a shared fifty-fifty arrangement for the care of the child. That was reflected in the Agreement between the parties of 14 June 2002 and otherwise reflected in the orders she sought in the Form 3 Application filed 9 April 2003. He asserted that it was “common knowledge” with the mother that he sought equal shared time with the child. He agreed it was a positive aspect that the mother at that time said she trusted him with the child. In my view that was then the reality so far as the mother was concerned but, as I said, from then on she spiralled downwards into plain unreasonableness, obsession and a vitriolic view of the father.
History records the fact that on the following day, 1 August 2003, he was denied contact by the mother, which he took as a "payback" for his notification to the Department of Human Services.
When the matter came on for trial before Kay J on 23 May 2005, following a significant and tragic history, and with the assistance of two reports from Ms W on 19 August 2004 and 21 April 2005, consent orders were made, providing for him to have a graduated regime of contact, increasing over time, beginning on a supervised basis and leading eventually to unsupervised contact. The proceedings were otherwise adjourned to a pre‑trial conference in August 2006, over one year thereafter.
History now records that earlier that year, the father filed an Amended Application seeking residence and/or defined contact orders on 23 February 2005. The mother had countered with an Amended Response seeking residence, orders for supervised contact and a change of name. The response was filed on 4 March 2005.
The consent orders of 23 May 2005 did not work, and on 12 October 2005 the father was obliged to file an application seeking resumption of contact. At that point Mr Mort tendered an aide-memoire analysing the consent orders made before Kay J on 23 May 2005, with a comparative analysis of the mother's current proposal (see Exhibit “ICL3”). It is clear that there was a pattern that the proposal put by the mother through Ms Agresta at the commencement of the proceedings before me, and which I have earlier outlined, is very similar to the agreement that was reached between the parties on 23 May 2005. The father said he consented to the orders because he received an assurance from the mother that she would “stick” to them. This she failed, and demonstrably so, to do.
Mr Mort referred the father to the report of Dr R of 1 November 2006 and in particular to page 23, where he offered the following opinion:
“From a psychological standpoint of what is best for [the child] as an individual child it is my opinion that an arrangement that allows [the child] to have significant and meaningful contact with both parents is optimal. The most obvious arrangement is for [the child] to reside with her mother, while having substantial weekend and holiday contact with her father.
Ideally, such an arrangement should be put in place over a couple of months following gradually increasing (and unsupervised time) with [the father]. Mental health treatment for [the child] and the family should occur in conjunction with this.
If [the child’s] parents could come to accept that such an arrangement is in the best interests of [the child]. I do not think [the child] would have difficulty managing such an arrangement.
It appears that efforts have been made to work towards this sort of arrangement before but it has not been possible, in particular because of [the mother’s inability to accept this is in [the child’s] best interests. This has led to an ongoing state of acrimony. Although I can understand why [the mother] may hold some concerns about possible abuse, I think her position of adamant certainty is difficult to understand and not helpful in the current circumstances. The reasons for her absolute position are unclear. There may be benefit, both for the court and as part of treatment, for [the mother’s] position to be explored further psychologically or psychiatrically.
I expect if such an arrangement was in place, [the father] would be able to work within such an arrangement.”
The father said that if the child lived with the mother, he would agree to substantial weekend and holiday contact. As indicated by Dr R, he was both sensitive and amenable to that professional opinion. He, sensibly in my view, said that contact should take place on one day on each alternate weekend between 10 am and 5 pm, plus a period of time midweek after school. He said that he would travel to L School and return the child to the mother on that occasion. It was his view that such daytime contact should continue for a “couple of months”, and then progress to overnight contact for one overnight period, increasing to two nights on Friday and Sunday. However, ultimately he would seek, after a period of some three months, the opportunity to collect the child from school on Friday and return her to school on the following Monday. There would be no difficulties with his work. He has a driver's licence and can borrow a motor vehicle. I thought the proposals by the father in the circumstances were both fair, insightful and unselfish.
The father was then referred to page 24 of Dr R's report dealing with the second option, namely that the child resides with him. He said that he would expect that when seeing the mother the child would "feel the same way" about him "all over again". In those circumstances he suggested that the mother spend time with the child for a “couple of months” on a supervised basis to assess its progress.
When he was asked to assume no order for contact in favour of the mother, the father immediately reacted by saying that was not feasible and indeed, as I can best recall it, said that he would appeal such an order. He made it clear that the mother's contact with the child was essential.
When asked about the mother's positive characteristics, he explained that there were a lot of “good things” about her and her parenting of the child. He applauded the fact that she worked hard and sent the child to an excellent school. He said that the mother cared for her, that she loved the child and wanted the best for her. He said she was a “good mother”, and on reflection a “good partner”. His lack of anger and/or antipathy to her, despite this appalling and tragic history, was obvious.
The father said that he would be unable to pay fees for the L school, as he could not afford them. However, he had made inquiries in the event that he succeeded in his application and would, if the child were to live with him, arrange for her to attend the T Primary School. He had made inquiries of the school and met with the headmaster. He said that placement was available for the child and that he had obtained information in relation to the school. He said it was a “beautiful school”, like a “family school”, and was very clean, quiet and had supportive staff. He explained further that there was a facility for parents to participate in class with the children, which he would very much enjoy.
Following the cross‑examination of Mr Mort, I asked the father about his feelings for the child. He said that when he saw his daughter he felt “relief”, and that he tried "to force myself not to cry". He went on to explain that he remembered her since she was a baby, and that she is now a young girl. He said that the child "corrects my English" and that she takes pictures of him. It is clear to me from his evidence that she enjoys a happy time when in his company. He, with some passion said, "It makes me forget the whole fortnight before."
The father said to me that he has “faith”, and that it was "a precious gift from God that's given me [the child]". He explained that he has no family, and he has feelings of “pure love” and “pure care” for his daughter. He explained that he wanted to see her grow up as a normal child, adding "with love from both parents". I thought his evidence was entirely genuine, profound and passionate. His love for the child ought be given far more credit by the mother than she has in the past.
The father explained his financial situation to Mr Mort in that he received $900 per fortnight from his employer and $300 per fortnight by way of social security benefits, which differs from what I have earlier said by $100 which accounts for the rent allowance. He pays rent of $975 per calendar month, and after payment of utilities and the like he has little left over. He said that he gambles on an irregular basis. He has no addiction to gambling, explaining that he has "moved past that". He went on to say, "I have hope now, I did not have before", about seeing the child. He explained that he was building his life so that he could spend time with her. He was happy that he had a job, and that he felt wanted, which made him “feel good”. He said, "Life is brighter”.
The father was an impressive witness.
The Mother
In reviewing the evidence to the time of adjustment, I have regard to the trial affidavits of the mother filed 4 November 2006 and 12 April 2006 together with her oral evidence before me. The advantage I had as the trial Judge was of inestimable advantage observing her demeanour both in the body of the court and in the witness box, including the tone of her voice in responding to the direct and well researched questions put by Ms Dellidis. With her failure to listen carefully and then respond to the questions, the mother was given to over-talking, evasiveness and a persistent inability to focus on the issues put to her. She would seek to argue her case, at times in a carping and disputatious manner, wrangling with Ms Dellidis, leading to imbroglio.
On a number of occasions I was obliged to censure the mother, but in the result at times to no avail, as she stubbornly sought to emphasise (a verb which I carefully use) her own point. She was at times rather disrespectful and would mutter commentary to herself which was quite audible to me. She was directorial and, frankly, exhausting. All of this went far and beyond courtroom nervousness and feelings of unfamiliarity, but demonstrative of a general overbearing and mulish personality.
When I add together these observations with her then intractable view that the father had sexually abused his daughter when aged about four years, it is little wonder to me that she is in reality a parent who could not individually promote the value and worth of the father to her daughter. She is a strong-willed individual who doubtless had impressed upon the child her entrenched position, and in my view, would be unbridled in that presentation.
There was much about her evidence which buttressed my assessment that she was unreliable, particularly in situations where valid issues were inconsistent with her own view. It seems to me that she was quite open in saying that which best suited her situation, indeed her cause, irregardless of whether it was accurate or not. She moulded evidence to best suit her case. Overall I feel a marked reluctance to accept her evidence on central issues unless corroborated by independent third party witnesses or documents.
The cross‑examination by Ms Dellidis was complex in that it traversed many different factual episodes generated through documents, reports and affidavits before me, and it will serve no good purpose to record this in detail. I was left with the clear impression that her evidence on central issues failed to withstand the test of scrutiny.
The progress of cross‑examination in the second day was, without putting too fine a gloss on it, quite dramatic, in that the further the evidence proceeded, the clearer became my view that the issue of sexual abuse was not made out, nor there being an unacceptable risk to the child of abuse. The mother's evidence at times was most concerning, as it became plain that she had embarked upon a course, then unshakeable in her belief, that the father had sexually abused his daughter. The evidence revealed that between late August 2003 and December 2003 she was unforgiving and utterly resolute in the pursuit of her mission.
It was after the luncheon break that the proceedings were stood down again to discuss resolution, and Minutes of Consent Orders were provided to me on 12 February 2007. In order to fully understand the events leading up to the resolution, I propose to survey the cross‑examination of the mother by Ms Dellidis. Should the matter ever return to court for whatever reason, my successor in title would thus have a detailed analysis of the evidence and better able to understand the adjustment.
After some preamble, Ms Dellidis referred the mother's attention to the fact that she spoke to a worker from the Department of Human Services on 31 January 2003 (Exhibit “ICL2” at page 42). The mother said that she was "extraordinarily surprised" at the call from the Department of Human Services and that she did her best to explain her side of the story. She acknowledged that she told the worker she “trusted” the father with the child. However, on 1 August 2003, shortly after the interview with the worker from the Department, the mother refused to make the child available for contact. The reason for that is pitifully obvious. She acknowledged that she issued an Intervention Order Summons, which appears to have been filed on 15 August 2003 and came on for hearing on 22 August 2003.
She was referred to Annexure “EL3” to the father's affidavit filed 18 April 2006, conceding that during the course of her evidence under oath before that tribunal she made allegations that she was the recipient of harassing and disruptive telephone calls. She conceded that she admitted the frequency “was not great”, and significantly in my view admitted that she made a further allegation under oath that she suspected the father had molested the child. On 24 August 2003 the mother refused to make the child available for contact purposes (see the father's Contravention Application filed 2 October 2003).
On 26 August 2003 her solicitor, Mr Maplestone, wrote to the father, advising that the mother proposed to travel to Queensland. The mother agreed that the contents put forward in that letter were upon her instructions. See Exhibit “F1”. The father refused permission which was, given the circumstances then prevailing, not an unreasonable position to take. The mother conceded that on 3 and 5 September 2003 the father had contact with the child, but that contact did not take place on 7 and 10 September 2003. It was on 3 September 2003 that the first alleged disclosure was made by the child. It appears that the disclosure was made in the morning and that the father, notwithstanding, had contact in the afternoon. That in my view was an important fact to be taken into account when considering this alleged disclosure.
Ms Dellidis directed the mother's attention to Exhibit “ICL2” (page 7 of the Department of Human Services' files), recording that on 10 September 2003 notification was received by them in relation to concerns that the child "was being sexually abused" by her father. It is there stated that concerns were raised that the child disclosed to her mother that "daddy had touched her somewhere" and "he has done it twice", stating that it was on her "pussy cat". Thus it was that the mother took one week in order to make the notification to the Department of Human Services and then travelled to Queensland on a holiday. That too is an important factor for consideration.
The mother's evidence at first was to suggest that the disclosure did not occur in the morning, but after cross‑examination, was demonstrated to be in error and accepted that it did allegedly take place at that time as the father collected the child from child care on the Wednesday.
The mother was then referred to Exhibit “ICL2” (at page 35) dealing with the General Case Note dated 22 September 2003, timed at 6 pm. The mother said she gave an account to the Department of Human Services of what the child had told her, and her concerns about the father and parenting risks. The mother acknowledged there was no disclosure made by the child on 22 September 2003, rationalising this on the basis that the child "had no idea what they were asking her" at the interview. She explained that the child did not understand "what they were on about" as she was too young. The mother was already exhibiting an attitude of non‑acceptance of independent investigation, relying upon her own fixated ideation.
The mother was referred to the fact that the child made disclosures about “Uncle [D]”, (page 36 Exhibit “ICL2”) and explained that she did "not feel it was necessary to investigate that". When asked why, she said that she observed interaction between them which was of a playful nature. That too was a significant indicator of her uni-directional belief as to responsibility on the part of the father. I was somewhat concerned by that allegation and her resultant attitude. There was otherwise evidence that the father had an interaction with his daughter of a “playful” nature.
In relation to her time in Queensland, the mother acknowledged that she did not tell the father that she had spoken to the Department. She acknowledged that she sent a postcard (Annexure “EL2” to the affidavit of father filed 2 October 2003) with no intimation of her course of action. When asked why, the mother said, "Of course not" explaining that, "Why would I notify the father before any investigation began?" and also asserted, "Wouldn't that be warning him?". She claimed that, so far as she was concerned, the father was under scrutiny and if he was warned of what she had done that the father would "commence preparations against that". I found that to be significant as to attitude, as I did the terms of the postcard which was as follows:
“Dear [husband],
We are having a fabulous time! [The child] is loving the beach and climate very much not at all humid this time of the year. We went to the beach and then to Seaworld on a cloud day she loved the dolphin show! Sea lion show and SOS 4D interactive. We ate also delicious seafood dinners and those nights. See you soon. Lots of Love.
[Mother] and [child].”
[The card is accompanied with six crosses and six capital zeros, indicating kisses and hugs.]
In relation to the meeting with the Department on 22 September 2003 and the fact that the child had made no disclosures, the mother said that she did not feel relieved that the child made no disclosures and that her emotions were, "Let's see what happens from here”. Her desire to unearth evidence, regardless of independent investigation, was dominant.
On 23 September 2003 the father sent an email to the mother at 4.45 pm, in which he said:
“I've not seen my daughter for a long time and I've not been able to reach you on either of your phones - home or mobile. I am going to proceed with Recovery Order, that means the Federal Police will bring [the child] from anywhere.”
The mother acknowledged that on the following day she responded with an email asserting, “We have just returned. We went to a conference in Brisbane. I will contact you on Friday re discuss access arrangements”. The plain fact of the matter is that they had returned five days earlier and the mother had seen the Department of Human Services on 22 September 2003. In my view her response was plainly misleading, but consistent with what I regard as a disingenuous attitude.
The mother was then referred to Exhibit “ICL2” (page 17) and the entry:
“On 26 September 2003, mother, […] stated that [the child] disclosed to her whilst having a bath. [The mother] stated that [the child] did not want to be picked up from day care by her dad […]. When [the mother] asked why, [the child] allegedly stated, ‘Because he puts his finger somewhere’. [The mother] stated that she asked, where and allegedly [the child] pointed to her bottom.”
In her evidence the mother said that she did not advise the Department that the child had made a disclosure whilst having a bath, nor that she did not want to be picked up from day care. She said that the child told her that her father put his fingers in her bottom, and that she pointed to the "separation of her bottom". She conceded that no contact took place on both 24 and 26 September 2003, acknowledging there had been no contact that time for a couple of weeks.
Ms Dellidis then referred the mother to paragraph 19 of her affidavit filed 4 November 2004 and her deposition that, "When we returned, the applicant was due to have [the child] on 24 September 2003, although he did not contact me”. It was put to the mother that her oath was a false one, given that the father had sent an email on 24 September 2003. At that point of time the mother, I observed, erupted into a somewhat angry disposition, asserting in relation to the father's reference to a Recovery Order, "What sort of nonsense is that?" It appeared to me that the mother's attitude to an individual's right to due process of the law in the pursuit of legal rights was risible. When I sought clarification and asked what she meant by her comment, she said that, he should have “acted rationally'” and “called me”. She asserted that the father's attitude to the situation, namely his reference to a Recovery Order, “was a little bit unrealistic”. This was typical of her evidence, where she sought to justify her own actions at inappropriate times, made assertions that best suited her course and at times, when I reflect upon the whole of her evidence, made things up as she went along.
The mother agreed that she made a complaint to the police that the father should be charged. That too is significant, albeit that it comes as no surprise. She agreed that when making a complaint there was a requirement to be accurate. At that point, in seeking clarification from her, I asked that if I found sexual abuse had not occurred, what would be her reaction to that. She said, "As I cannot prove it happened, you could not definitely prove it had not”. The mother went on to say that she “carried no doubts” that she believed that what the child had said was correct. She said that the child suffered anxiety that was directly related to sexual abuse, and claimed that “her traumatic behaviour” was part of that, emphasising, "and nothing else".
Ms Dellidis directed the mother's attention to her police statement made 24 December 2003, following the alleged disclosure made by the child that month and about which I will have more to say later in this judgment. The mother emphasised that following that disclosure, "I all the more believed what I suspected was true”.
Dealing with the mother's concession that any statement made to the police must necessarily be accurate, she was referred to her own statement of 24 December 2003 which was made at 5.54 pm, in which, acknowledging the statement was “true and correct and made in the belief that a person making a false statement was liable to penalties of perjury”, she said that on 26 September 2003 she picked the child up from her father's house in E.
It was put to her that no contact took place that day. With this she ultimately agreed. When asked why she had made a serious assertion in a circumstance that was plainly wrong, she retorted, "The government departments don't record things accurately”. There seemed to me to be a common theme emerging from her evidence in relation to recorded events in the Department of Human Services files that any record of what she had said and with which she disagreed for the purposes of the hearing before me, she forcefully disputed. For example, in relation to that mistake, which I regard as quite a serious matter, she said it was "only arbitrarily wrong".
The mother agreed that as a result of her complaint on 26 September 2003 the child was interviewed at the Police Station by the Department of Human Services and SOCAU on 8 October 2003. It was accepted that there was also an interview of the child by them on 22 September 2003 at the mother’s home. Further, on 24 December 2003, the child was again interviewed by SOCAU at the O police station.
Dr R recorded details of the assessment interviews carried out with the child on two occasions, and with the parties. He found that there were no overt signs or evidence suggestive of psychiatric or psychological disturbance on the part of the father, who showed a capacity to empathise and understand the position of his daughter.
He reported that the mother made it clear to him that the child should not have contact with her father alone as he was "a danger" to the child. The mother maintained that any decision on the issue should be made to "protect" the child from her father and that any solution, in her view, required limiting contact or ceasing it all together. He reported that she maintained a position “erected on certainty” that the father had sexually abused his daughter.
Dr R also made thoughtful and supportive commentary upon the reports of Ms W, which sat seamlessly with his own. He observed that the child’s comment about possible child abuse to Ms W appeared limited in the level of description and lack of congruence (which I assume to mean compatibility) with the child’s emotional response. He commented upon Ms W's report that the mother openly stated she would not comply with court orders that obliged her to allow unsupervised contact. It was evident to Dr R that Ms W became increasingly of the opinion that the mother's intransigence to the possibility of unsupervised contact presented "a major obstacle" to an appropriate parenting regime.
Dr R also noted the report of Ms E, being 29 supervised contact visits, and he said:
“The reports describe consistent positive and enjoyable interaction between [the child] and her father during the contact visits. Much enjoyable playful behaviour and interaction was described, nurturing interaction following [the child] suffering a minor injury on a swing in which [the father] was able to sooth and settle [the child].”
Dr R addressed his conclusions and recommendations in a very thorough manner. In summary he said "[The child] used powerful mechanics of avoidance" to manage her "high levels of anxiety" which suggested she used fantasy extensively to escape her anxiety. This was necessary for her to function.
He was of the opinion that the child showed a "high level of compliance and psychological accommodation" to her family's situation by "disconnecting or denying" her feelings, which would be detrimental to her long term psychological development. At the same time, he said the child exhibited considerable “positive capabilities and psychological resources” for a six‑year‑old girl. Her verbal communication was good. She is intelligent and showed good symbolic functioning.
Dr R said that the pattern of behavioural and psychological disturbance described by the mother was of a high level of symptoms in the child in the days following contact with her father. This pattern of symptoms could, he said, be understood as "attachment-related behaviours", and was an understandable psychological and attachment response in young children.
Dr R was of the view that the child was clearly very aware of the parental conflict and clearly “feared losing” her mother if she was to live with her father. Significantly, on the issue of sexual abuse he had this to say (page 20):
“[The child’s] discussion of alleged sexual abuse by [the father] on this assessment is limited in its extent, often without congruent emotion, and has the quality of an often repeated verbal statement the origins of which are no longer available to [the child]. [The child] introduces many of her statements about abuse as being her mother's concerns. My view is that [the child’s] statements do not provide strong or good evidence of past sexual abuse by [the father].”
In summary, Dr R reported that the father indicated "good and positive interactions". The relationship appeared "secure and meaningful". He said that the child showed a capacity to be "emotionally open and interact freely" with her father, and that reunions and separations from him were managed well.
He emphasised the mother's position that she believed the father sexually abused the child and would do so again, given the opportunity. The strength of her conviction he said was "powerful and unwavering". It was his opinion that while it may be understandable that the mother had some ongoing concerns about the possibility of sexual abuse, her adamant view of certainty and essentially uncompromising stance was much harder to understand. To him it raised the possibility of “underlying psychological disturbance or psychiatric disorder on the part of the mother”.
In relation to the child’s psychiatric state, Dr R was of the opinion that her level of anxiety and distress was beyond her capacity to manage. She was “unable to cope” with the level of adversity in her family situation. He said there were signs of early distortion of psychological and personality functioning, excessive use of denial and avoidance towards her emotions and internal psychological world.
Dr R was of the view that the child “overused fantasy to escape or avoid distress”, which would have longer-term detrimental consequences on her psychological and personality organisation. It was his opinion that, psychiatrically, the child could be diagnosed as suffering “an anxiety disorder” as a reaction to her family situation, rather than an intrinsic disorder. He was of the opinion that the child’s anxiety was “consequent to parental conflict”, which was current and ongoing. He said that his assessment “did not point to past childhood sexual abuse or a problematic relationship with the father” as the cause of the child’s symptoms and disturbance.
Dr R was of the opinion that the absence of positive psychological signs of sexual abuse on assessment, and the observed and well documented good relationship between the father and the child, made the possibility of "past childhood sexual abuse far less likely". He did not think the issue of potential sexual abuse by the father should be a "major factor in determining the outcome of a regime for residency and contact", but rather that a psychological shift was especially required with the mother.
Dr R then recorded his opinion about Family Court orders and intervention, which I have earlier incorporated into this judgment. As he considered such an arrangement may not be possible, he set out the two possible courses of action. One was that the child remains residing with the mother and either had no contact or minimal supervised contact with the father. The second option was to have the child reside with her father.
It was his opinion that psychotherapeutic treatment was likely to be helpful for the child in her current situation and would provide considerable support and a psychological space "to reflect on her experience of family" with a professional outside her conflicted family.
Conclusion
I have taken the opportunity in this judgment to record the evidence of the principal protagonists and that of the experts. Too many times have the parties gathered at the portals of the court, agreed upon orders to be made by consent which have, in the result, been honoured in the breach. The parties entered into an agreement on 14 June 2002. It failed. They agreed upon orders made in the Federal Magistrates Court on 26 May 2003. They, too, failed.
The father filed two Contravention Applications on 16 February 2003 and 20 November 2003, alleging overall 26 breaches of the court orders by the mother. Acting upon representations made by her and upon which he acted, in my view with consummate good faith, he withdrew them. Consent orders were then made on 12 December 2003. They failed. The proceedings were transferred to the Family Court of Australia, from the Federal Magistrates Court, and again consent orders were made on 23 May 2005. They failed.
In the meantime, the mother had entertained summonses for an Intervention Order in what I regard as dubious circumstances, and could perhaps be more harshly described as an abuse of process. Prior to the consent orders of 23 May 2005 the parties had the advantage of two insightful and clear reports by Ms W. The mother failed to heed what the Family Consultant, an expert witness, had to say. She chose to regard her as biased.
Epicentral to this profoundly tragic history centred around the child was the mother's unwavering pursuit of her obsessional belief that the father had sexually abused his daughter. She failed to heed reason or commonsense, but fed, I suspect upon those malleable and ductile views of persons sympathetic to her ear. I have no doubt that her own mother, the maternal grandmother, was such a voice of unreasonableness. Her other instrument appears to have been Mr F, albeit that I did not have the opportunity to hear from him. I make that observation upon what the mother had to say and his five reports, all undertaken without the benefit of having heard from the father.
Mr F referred to the "unquestioned" and "good intentions" of the mother, and in one report provided a dissertation on the United Nations Convention on the Rights of the Child. The circumstances of the late night telephone call and alleged disclosure, I use that noun in parenthesis, by the child to Mr F, as described by the mother and referred to in the report, I regard as highly questionable. There was never a proper and professional independent inquiry made by him of that event. His commentary upon the circumstances of the disclosure made by the child to the police on 24 December 2003 is helpfully obvious, but naive.
Throughout the latter part of 2005 and through 2006 the father, exercising considerable personal discipline and emotional strength, saw the child on a supervised basis under high scrutiny. The reports of Ms E are clear and unchallenged by the mother, save to observe qualifications expressed by her to suit her then intractable view. There followed three further reports by Ms W which were, it is plain to me, fundamentally ignored by the mother and challenged under the rubrical heading of “bias”.
So too the report of Dr R dated 1 November 2006, the terms of which were swept aside by the mother as she prepared to challenge the father's application to see his daughter. I have little doubt at all that the mother's blinkered pursuit to satisfy her fixated preoccupation that the father had sexually abused the child left the child vulnerable to awareness of this fact. I do not accept that the mother shielded the child from her consuming passion.
An example of this may be seen from the fact that she even brought the child into the arena of litigation, an event I well remember. It was described in the transcript of 8 December 2006, and which I record as follows:
HIS HONOUR: Who are these people? Is that the child in question? She brings the child to court.
MR MAPLESTONE: You’ll have to wait outside just for a moment.
HIS HONOUR: Why is the child in court?
MR MAPLESTONE: The child’s not allowed in court.
HIS HONOUR: Madam, please, Why is the child in court ?
[THE MOTHER]: Because my mother wasn’t feeling well when I arrived home from work and I had no-one else to take her.
HIS HONOUR: I’m not asking you. I’m addressing your counsel. Madam, would you leave the court with the child.
[THE MOTHER]: It was an emergency situation, your Honour.
HIS HONOUR: I would have thought there would be other ways to handle the emergencies.
[THE MOTHER]: Things happen, emergencies happen.
HIS HONOUR: Please leave the court.
MR MAPLESTONE: You saw my body movement.
HIS HONOUR: It should be recorded in the transcript that on leaving the court, the mother slammed the door to the extent that the eastern wall shuddered.
MR MAPLESTONE: Your Honour, I’m sure that you understand that I’m as embarrassed as---
HIS HONOUR: Mr Maplestone, I know you far too well.
MR MAPLESTONE: Thank you, your Honour.
HIS HONOUR: Of course you’re not – it’s nowhere near within your doing, and it’s just as much an embarrassment to you as it is to everybody else in this court.
I do not accept the mother's explanation. That act was, in my view, utterly unnecessary and doubtlessly painful for the child. It demonstrated a heightened lack of insight on her part, let alone a breach of parental responsibility.
With that said, the competing applications came before me with the mother plainly asserting that the father have no contact with his daughter. That is, put simply, he was not to even be in her presence. The objects and principles of the Family Law Act set out in s 60B of the Act were consigned as meaningless.
I have earlier described the progress of the mother’s variations by way of settlement proposals, which ultimately on day 4 changed, and consent orders signed by her on day 5, accompanied by a notation concerning the issue of sexual abuse. The litigation pathway that commenced in about mid-2003 has nearly, four years later, hopefully come to an end. Only the future will reveal whether or not the mother can understand that her intractable views on this principal issue were erected merely upon thistledown pillars of hope.
A strong preliminary view of the Independent Children's Lawyer was provided by Mr Mort upon the commencement of the trial, a view which sat satisfactorily on the known evidence to be relied upon, including the affidavits of the parties. The presage of that view unfolded with clarity and with the progress of the evidence, so that it became painfully obvious that the mother's approach to the father's application was without foundation.
I am satisfied to the requisite standard of persuasion that the issue of sexual abuse, even at the stage that the proceedings were resolved, was not made out, nor is there an unacceptable risk to the welfare of the child maintaining her contact with her father. I need go no further than the review of the evidence I have recorded in this judgment. I have no doubt that, for whatever reason the mother wrongly bound herself on this issue, she failed to properly, independently and logically rationalise the whole of the evidence and in so doing maintained a blinkered myopic view to reality. Her pursuit of this issue should now end, the orders to be made, obeyed, and that she faithfully endorse the father to his daughter in positive persuasive and genuine terms.
As I said in L & B [2005] FamCA 242:
“413.There is an obligation on the part of each parent to foster the image of an absent parent. That within itself requires discipline, together with an ability to sublimate one's own feelings of pain, hurt or anger, to benefit the best interests of their child. I am not looking to the actions of the perfect parent in the utopian world, but of one who recognises the importance of such qualities and strives to achieve that desired end.
414.That may mean for example an aggrieved parent seeking greater understanding by recourse to professional assistance. To wallow in the mire of disillusionment, anger and bitterness can only, certainly by example alone, influence the child in a variety of negative ways against the absent parent. The effect is dramatically compounded by the spoken word of negativity, passive alienation and subversive manipulation.”
For the benefit of the parties I propose to explain the legal basis that guides the court in cases such as this, dealing with the issue of alleged sexual abuse. I had occasion recently, in A & A [2006] FamCA 1056, to undertake this exercise, and I draw from that judgment the following analysis. Cases involving allegations of sexual abuse were considered authoritatively by the High Court of Australia in M v M (1988) 166 CLR 69. There Mason CJ and Brennan, Dawson, Toohey and Gaudron JJ made it clear that:
“The fact that the proceedings involve an allegation that the child has been sexually abused by a parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's finding on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue later. Viewed in this setting, the resolution of the allegation of sexual abuse against a parent is subservient, and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.”
Their Honours then went on to consider the approach that a trial judge should take when reviewing such an allegation and said:
“In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless a court is so satisfied, according to the civil standard of proof with regard to the fact as mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. There Dixon J said, "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the questions whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, reasonable satisfaction should not be produced should not be produced by inexact proofs, indefinite testimony or indirect references."
Accordingly, a finding at trial that abuse has occurred can only be reached by application of the onus of proof set out in Briginshaw's case. That test has been codified in s 140 of the Evidence Act 1995 (Cth).
In Re W, Sex Abuse: Standard Of Proof (2004) FLC 93‑192, the Full Court had this to say
“47.In children's matter under Part VII of the Family Law Act where the issue is a child's contact or residence with a significant person in his or her life, the grave consequences of finding of sexual abuse cannot be overstated. Accordingly, before trial judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw, and section 140 of the Evidence Act 1994 (Commonwealth). Inexact proofs, indefinite testimony or indirect inferences are sufficient to ground a finding of abuse.
48.This is a matter which must be specifically borne in mind by a court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this part, the court's paramount consideration must be the best interests of the child in accordance with section 65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Further more when deciding what orders are in the best interests of the child, a trial judge may often be confronted with the multiplicity of issues and facts. In these circumstances, evidence which for example is relevant and probative in relation to the question of an unacceptable risk of abuse occurring may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred.”
In M v M (supra), their Honours having observed that such an allegation is often easy to make but difficult to refute, went on to say that there would be a number of cases where it is not possible to make a positive finding that sexual abuse had actually taken place. Notwithstanding this, however, it is clear from the above passages that by no means ends the judicial assessment of the issue. Their Honours continued:
“In resolving the wider issue, the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access is granted, and assessing the magnitude of that risk. The existence of the magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.”
The court went on to examine efforts to define with greater precision the "magnitude of the risk" which would justify a finding denying a parent residence or contact to a child. Their Honours concluded that the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to “an unacceptable risk” of sexual abuse.
In B v B (1993) FLC 92-357 the Full Court of the Family Court referred to this test and went on to say:
“The unacceptable risk test is therefore the standard use by the Family Court to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. In other words, where the court makes a finding of unacceptable risk, it is a finding that the risk of harm to the child in having access with a parent outweighs the possible benefits to them from that access.”
The difficulties associated with determining an unacceptable risk were considered, for example by the Full Court in N v S and Separate Representative (1996) FLC 92-655. In the course of his dissenting judgment, Fogarty J analysed the meaning and application of the term "unacceptable risk". His Honour also considered a number of cases in which efforts have been made to define the term with greater precision and concluded that:
“There is a limit beyond which it can be of no use to endeavour to devise a precise expression to encapsulate a judgment which will ultimately depend on a great many factors. However, what can be asserted with confidence is that the welfare of the child requires that the term be carefully construed.”
Later at page 82-714 Fogarty J set out a number of appropriate questions, but not suggestive as an exhaustive catalogue, for consideration as follows
“In asking whether the facts of the case do establish an unacceptable risk, the court will often be required to ask such questions as what is the nature of the offence alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future affects of the child?”
The catalogue of questions posed by Fogarty J, are most helpful and it takes little effort to mould the evidence detailed before me and otherwise relied upon by the parties to arrive at the clear answer that was strongly urged upon me by the Independent Children's Lawyer at the commencement of the trial. It concerns me that the mother, with all the information she had at her disposal, proceeded as she did. She was mistress of her own fate.
However, it may well be that with her having heard the evidence of the father under oath, given her evidence in court and tested by Ms Dellidis and having had the benefit of professional independent advice from Ms Agresta and her experienced solicitor Mr Maplestone, that she now realises and genuinely accepts the findings I have made. In making those findings I am of course fortified by her agreed notation to the orders.
There are some further matters I propose to add. By reason of the Family Law Amendment (Shared Parental Responsibility) Act 2006, this court has moved forward to recognise the value children gain by maximising the time they spend with each of their parents. What remains common ground, however, is that the principles underlying the objects of Part 7 of the Act remain the same.
What the mother now recognises by the terms of these orders is that the child has a right to know and be cared for by both herself and the father, a right to spend time on a regular basis with both of them, and that each of the mother and father share duties and responsibilities concerning her care, welfare and development. Their duty towards the child is a joint one.
Now that the proceedings have adjusted, it is important the mother moves forward without rancour or ill feeling towards the father. It is essential she recognises, in an unfeigned way the goodwill and trust reposed in her by this resolution, and consign the past to where it belongs. The future is the direction now to be travelled for the benefit of the child under the guidance of both of her parents.
In my view the father has been very patient indeed and has never wavered in his journey to ensure that the child has the benefit of two parents, despite the serious allegations made against him. I am sure that, notwithstanding, he bears no ill will against the mother, in circumstances whereby it would not have been an unnatural expectation on his part. With both parents sharing in the child’s life, she has a ready opportunity to be happy and become a productive member of the community.
I certify that the preceding two hundred and ninety one (291) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.
Associate:
Date: 26 April 2007.
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as LICHA & WUNSCHER
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