MacAdams & Koster
[2024] FedCFamC2F 1325
•27 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
MacAdams & Koster [2024] FedCFamC2F 1325
File number(s): NCC 768 2023 Judgment of: JUDGE BETTS Date of judgment: 27 September 2024 Catchwords: FAMILY LAW – Parenting – two children, aged 8 and 5 – where there are allegations the father perpetrated sexual abuse upon the children’s step-sibling – where the mother seeks a “no time” order – where the father denies the allegations and seeks supervised time, eventually graduating to unsupervised time – where the Court considers that the father does pose an unacceptable risk of sexual and psychological risk of harm to the children – no time and no communication – best interests of the children. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth), Part VII
Cases cited: Bieganski & Bieganski (1993) 16 Fam LR 353
Briginshaw & Briginshaw (1930) 60 CLR 336
Isles & Nelissen (2022) FLC 94-092
M & M (1988) FLC 91-979
Division: Division 2 Family Law Number of paragraphs: 219 Date of last submission/s: 28 June 2024 Date of hearing: 24, 25, 26, 27 and 28 June 2024 Place: Newcastle Counsel for the Applicant: Mr Bithrey Solicitors for the Applicant: Lucy Urach & Associates Counsel for the Respondent: Ms Hamilton Solicitors for the Respondent: CDG Law Solicitor Advocate for the Independent Children’s Lawyer: Ms O’Rourke Solicitors for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
NCC 768 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MACADAMS
Applicant
AND: MS KOSTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
27 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.All prior parenting orders are discharged.
2.That MS KOSTER (“the Mother”) have sole decision-making for major long-term issues for X born in 2016 and Y born in 2018 (together “the children”).
3.The children live with the Mother.
4.That MR MACADAMS (“the Father”) spend no time and have no communication with the children.
5.The Mother is restrained, and an injunction issues restraining her from:
(a)physically disciplining the children or allowing anybody else to do so;
(b)bringing the children into contact or communicating with the maternal grandfather, Mr B;
(c)whenever any of the children are at home, engaging in sexual acts with other people for the purpose of, or in connection with, content creation for the purposes of her adult website page or for any other webpage featuring material of an adult sexual nature.
6.Each parent is restrained from writing, posting or otherwise publishing or communicating any information on any social media or internet platform in respect of these proceedings, including any allegations made against either parent and any findings of the Court.
7.That pursuant to s11(1)(b) of the Australian Passports Act 2005, the mother is authorised to apply for and retain a passport for the children without the father’s written consent or approval.
8.That pursuant to s65Y of the Family Law Act 1975, the mother is at liberty to travel outside the Commonwealth of Australia with the children whether or not the father has consented to any such travel.
9.The Mother is to provide a copy of these Orders to any school attended by the children and may, at her election, provide a copy of these Reasons and Orders to any mental health professional she has engaged on behalf of the children. IT IS NOTED THAT discussion of the Court’s findings in relation to sexual risks posed by the Father should be discussed with the children in an age-appropriate way and with the benefit of a mental health professional.
10.Within fourteen (14) days, the Independent Children’s Lawyer is to:
(a)meet with the children to explain the orders to them; and
(b)forward a copy of these Reasons and Orders to the Department of Communities & Justice (NSW).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
OVERVIEW
These proceedings concern the future parenting of two (2) siblings:
·X born in 2016 presently aged eight (8); and
·Y born in 2018 presently aged five (5).
X and Y are the children of Ms Koster (“the Mother”) and Mr MacAdams (“the Father”).
The parents and the children once lived as a happy family unit, together with the Mother’s older child C born in 2012. All that changed in early 2020 when C told the Mother that the Father had touched her genital area. Shocked and horrified, the Mother promptly contacted Police. When he got home from work she confronted the Father who vehemently denied any wrongdoing. He moved out that same day; the parents’ relationship was over. The Father has not seen the children since.
Police investigated the allegations, including taking a statement from the Mother and conducting an electronic record of interview with C. The Father voluntarily participated in an electronically recorded interview. The upshot was that the Father was charged with several sexual offences in respect of C. As the matter proceeded through the NSW criminal justice system, the charges were amended, C was further interviewed by Police and ultimately cross‑examined by the Father’s criminal counsel at a pre-recorded hearing in the District Court. In the course of those further interviews and cross-examination, C’s account changed, with retractions and inconsistencies emerging. In early 2022, the day the Father’s criminal trial was to commence, the Director of Public Prosecutions dropped all charges.
On 15 March 2023, the Father commenced these proceedings in an endeavour to restore his relationship with the children. He seeks initially to spend supervised time with them, graduating to unsupervised time during the school week, on alternate weekends and for block holiday periods. He seeks that he and the Mother jointly share parental responsibility. The Father has always contended that he was falsely accused and that he poses no sexual or other risk to the children. He says the Mother does not even genuinely believe the allegations.
The Mother seeks a ‘no time’ order and sole parental responsibility. She contends for a positive finding that the Father sexually abused C, or in the alternative that C’s allegations at least warrant a finding that the Father poses an unacceptable risk of sexual or psychological abuse to the children. If neither of these findings are made, her ‘fallback’ position is that she does genuinely believe that the Father is a sexual abuser such that any order for him to spend time or communicate with the children would so adversely impact her parenting capacity as to outweigh the benefit of any such order.
The Independent Children’s Lawyer (“ICL”) contends that the Father does not pose an unacceptable sexual risk. Accepting however the Mother does genuinely believe the allegations to be true and that an order for time would potentially adversely impact her parenting capacity thereby giving rise to risks to the children, she contends for a “middle ground” position that the Mother have sole parental responsibility and the Father spend limited time with the children only. She submitted that it was a “finely balanced case” in which her proposed order was an attempt to strike the appropriate balance. As will be seen, the Mother does have her own significant parenting vulnerabilities which form part of that ‘balance’.
Ultimately for the Reasons which follow, I have concluded that the Father does pose an unacceptable risk of sexual and psychological harm to the children warranting a ‘no time’ order. The Mother’s ‘fallback’ argument is rendered otiose.
THE HEARING & MATERIAL RELIED UPON
The hearing was conducted over five (5) days in the week of 24 – 28 June 2024.[1] The Father was represented by Mr Bithrey of counsel, the Mother by Ms Hamilton of counsel and the ICL by Ms O’Rourke, experienced solicitor-advocate at Legal Aid NSW.
The Father relied upon: his Case Outline Document filed 21/06/24; his Amended Initiating Application filed 05/06/24; his trial affidavit filed 05/06/24 and the affidavit of the paternal grandmother Ms D filed 05/06/24.[2] As part of his closing address, Mr Bithrey also handed up a document highlighting various inconsistencies in the sexual abuse allegations.[3]
The Mother relied upon: her Case Outline Document filed 21/06/24 (which included her proposed Minute of Order); her trial affidavit filed 13/06/24; and the late affidavit of the maternal grandmother Ms E filed with leave on 24/06/24.[4]
The ICL relied upon her Case Outline Document filed 21/06/24.
Numerous documentary exhibits were tendered. They included the affidavit and annexed Single Expert Report of Consultant Psychologist Mr F dated 11/10/23, various Police records, witness statements and transcripts, child welfare authority records, school records and affidavit annexures.
The evidence was properly tested at the hearing. In arriving at a decision, I have had regard to all of that evidence and to the submissions of the parties.
Before proceeding further, I would make some preliminary observations about each parent as a witness.
The Father was not a particularly sophisticated witness and in some respects his evidence was less than impressive. His trial affidavit said practically nothing about the critical week of separation. In cross-examination he said that he had found it so traumatic that he “pushed the events out of my memory”. He had not looked closely at the Mother’s trial affidavit, only “breezing through” it. He had not read the Family Report. Overall, he seemed to be unable or unwilling to engage with the detail of the allegations against him, and not well-equipped to deal with the inevitable emotional complications of their aftermath, including his proposed re‑introduction into the children’s lives and potential impacts on the sibling relationships.
Having re-partnered in early 2023, the Father concealed that fact when interviewed for the Child Impact Report. He also concealed it from the Single Expert, falsely claiming that he was single. Only in his trial affidavit did the Father belatedly admit to re-partnering; he deposed that he and his new partner had a newborn son; and that they lived together in a unit in Suburb G along with his partner’s seven (7) year old child who has high needs. His affidavit deposed that he had not provided that information earlier because of concerns that the Mother would stalk his partner on social media or otherwise attempt to contact her. As he had chosen not to call her as a witness, there was little known about her although he assured the Court she knew about the litigation and the allegations, believing him to be “100% innocent”.
For her part, the Mother was, with respect, a particularly unsophisticated witness. This reflects her life experience: she suffered depression and anxiety as a child, ultimately leaving school in Year 9 with only basic literacy and numeracy skills.[5] She has not undertaken any further education or vocational training and was only briefly in the paid workforce on a part-time basis. Since falling pregnant at seventeen (17) she has essentially been a full-time Mother. She has never driven independently and has only ever held a Learner’s Permit.
Having seen and heard her give evidence, I agree with Mr F’s assessment that the Mother has an inflexible thinking style.[6] She is a concrete thinker, neither cunning nor Machiavellian. The sexual abuse allegations are not part of some grand malevolent strategy on her part to excise the Father from the children’s lives. To the contrary, she genuinely believes, and remains horrified by, C’s disclosures.
The Mother’s evidence was least impressive when questioned about some of her own shortcomings; she came across as lacking reflective capacity and insight.
In the end, I do not wholly accept, nor wholly reject, the evidence of either parent. The evidence of each of them was reliable in some respects, unreliable in others.
The maternal and paternal grandmothers were each cross-examined but ultimately not much turns on their evidence. I will refer to their evidence as relevant.
In arriving at findings, I have been greatly assisted by the various Police and business records which have been tendered, some of which are contemporaneous or close-to-contemporaneous. It is apparent from these independent records that both parents were unclear, and at times wrong, about the days/dates that certain events occurred in that critical first week of early 2020. For instance, the Mother’s trial affidavit deposed that C made the sexual abuse disclosures to her “on or about” early 2020 but this clearly happened on another day. The Father’s trial affidavit deposed that Police interviewed and then arrested him on that day but this clearly happened on the following day
THE LAW
Parenting proceedings are governed by the recently-amended provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
When making parenting orders, including orders allocating parental responsibility for children, and time and communication that the children are to spend with each parent, the Court must regard the best interests of the children as the paramount consideration: s 60CA of the Act.
In arriving at a “best interests” determination, s 60CC of the Act provides:
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) [not relevant here].
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
Though “safety” is not defined in the Act, it is clearly a term of wide import which encompasses not just physical but also psychological and emotional safety. It certainly includes keeping a child safe from the risk of sexual abuse - being a form of “abuse” as defined in s 4, and a form of “family violence” as defined in s 4AB. Section 68B of the Act empowers the Court to grant injunctions that it considers “appropriate” for the welfare of the children, including for their personal protection.
Prior to the recent amendments to the Act, there was a well-established body of jurisprudence addressing how the Court is to deal with an allegation of sexual abuse against a parent.[7] The effect of the jurisprudence is that, as the Court’s ultimate obligation is to make a parenting order which is in the best interests of the children, an order cannot be made which places a child at an ‘unacceptable risk’ of harm. This involves weighing up the risks to the children against the benefits of making the order, as well as considering any protective measures that could be deployed to ameliorate the risk. Unless and until the Full Court decides otherwise, my view is that this prior jurisprudence remains good law.
A finding of ‘unacceptable risk’ is an evidence-based conclusion about the risk of future harm. It does not require a positive finding of past abuse. Given the serious nature of a sexual abuse allegation, a Court can only make a positive finding if satisfied to the highest civil standard: s 140(2) Evidence Act 1995 (Cth). That section effectively adopts the test propounded in Briginshaw & Briginshaw (1930) 60 CLR 336:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to identified gradations of certainty; and this has led to attempts to define exactly the certainty required by law for various purposes…
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. 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 question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[8]
This case was conducted on the basis that, if the Court finds that the Father poses unacceptable risk of sexual harm, there are no relevant protective measures that can be deployed to permit an ongoing relationship between he and the children. The paternal grandmother is not sufficiently protective as she believes the sexual abuse allegations are confected: see Bieganski & Bieganski (1993) 16 Fam LR 353. For the same reasons the Father’s partner could not supervise. Neither parent, nor the ICL, proposes long-term professional supervision either.
BACKGROUND CHRONOLOGY
Pre-relationship
The Mother was born in 1993, the Father in 1993.
The Mother’s childhood was difficult as the family moved around a lot and she witnessed the maternal grandfather perpetrating family violence against the maternal grandmother. When she was about eight (8) the maternal grandparents separated and, at or about that same time, another child she knew began sexually abusing her and this continued for two (2) years. The Mother kept it a secret, first disclosing it to the maternal grandmother at age sixteen (16). She never sought counselling for it.[9]
As noted in paragraph 18 herein, the Mother left school early, soon falling pregnant with C. The Mother struggled with depression and anxiety and had no independent means of transport. C’s father, Mr H, also perpetrated coercive and controlling family violence against the Mother. Various people expressed concern to the NSW child welfare authorities (“the DCJ”) about the risks to C in their household.[10]
The Father’s parents separated when he was eleven (11) but his childhood was otherwise quite stable. He left school after completing Year 10.
The parents met through Mr H; he and the Father were friends and he had nominated the Father as C’s Godfather.
Relationship
Around early 2015 the parents formed an intimate relationship; the Mother and Mr H separated in acrimonious fashion. C, then aged three (3), stayed with the Mother.
In 2015 Mr H held C over and would not let the Mother see her. Pregnant with X and highly vulnerable, the Mother broke off the parents’ relationship, returning to live with Mr H so she could see C. Mr H was again violent towards her.
In 2015 the Father was involved in a motor vehicle accident. The Father himself suffered serious injuries, and developed PTSD. The parents reconciled shortly after and X was born.
Mr H initially refused to let the Mother see C, and even threatened to beat the Mother if she tried to take C away from him. But he later relented and started allowing the Mother to spend time with C, albeit infrequently.
Around that time, both parents witnessed sexualised behaviours from C, a matter which assumes later relevance. The Mother’s trial affidavit deposes that:
34.In or about late 2016, early 2017 when [Mr MacAdams] and I spent time with [C], [Mr MacAdams] and I noticed that [C] was showing signs of sexualised behaviour and knowing what ‘sex’ was. For instance, over several visits we noticed [C] to be humping things and making noises. During these visits, [C] said words to the effect of “she looks like she’s having sex” when [X] was crawling and rocking backwards and forwards. [C] also said to me words to the effect of “I sleep in the same bed as dad and his girlfriend.”
The Father’s trial affidavit is almost identical:
19.During some of her visits with us we observed [C] was showing signs that she knew what “sex” was. For example, I can recall that when [C] saw [X] rocking backwards and forwards trying to crawl, [C] said to [Ms Koster] and I words to the effect of “[X] is having sex.” Both [Ms Koster] and I were concerned by this. We were both aware that [C] was still sleeping in the same bed as [Mr H] and his new girlfriend while she was living with [Mr H]. I recall [C] saying words to the effect of “I sleep in bed with Daddy and his girlfriend.”
The paternal grandmother was present once when the Mother asked C’s preschool teacher whether she had seen her display sexualised behaviour; she hadn’t.[11] Someone contacted the DCJ about C’s sexualised behaviours.[12]
The parents married in 2017. In the weeks prior, the Mother obtained a Recovery Order for C, who returned to her full-time care.
Thereafter, the parents’ relationship subsisted up until March 2020. Though happy, the parents’ relationship was not without its challenges. The Mother continued to suffer chronic depression and anxiety and was still without a driver’s licence. It was a struggle for her to maintain the home and care for the children and she required significant practical support from both the Father and the paternal grandmother. On occasions the paternal grandmother had genuine concerns about the Mother’s capacity to meet the children’s basic needs – for example properly feeding or clothing them. The paternal grandmother helped toilet train X and sometimes took X for sleepovers.
SEXUAL ABUSE ALLEGATIONS - THE CONTEMPORANEOUS EVIDENCE
Setting the scene
In early 2020 the family were living in their home at J Street, Suburb K, having moved there some three (3) months earlier. A floor plan of the home was tendered as exhibit 19 and a copy of it is reproduced below.
[Image removed in accordance with Part XIVB of the Family Law Act 1975 (Cth)]
The parents (and baby Y) slept in one bedroom. C slept in the adjoining bedroom, always with her night light on and her door open. X’s bedroom was the adjoining bedroom.
The Mother has drawn on the floor plan - in the shape of an “r” - the approximate location of the lounge, sometimes called “the 2-seater couch” or just “the couch”. She has also drawn an “X” which shows approximately where she was standing when she observed the Father and C on the lounge on the Monday night. I will return to this later.
C was attending school; X was attending preschool; Y was still breastfeeding. The Mother was their stay-at-home parent. The Father was working full-time as a tradesperson, Monday to Friday. Tuesday was his course day. His alarm was set for 5am each morning. His morning routine was as follows:[13]
·he awoke at 5am and would lay in bed for a while, cuddling the Mother and Y. Sometimes X stayed in bed, but if she got up and went into the parents’ bedroom, the Father would cuddle her as well;
·the Father would get up, go to the toilet, brush his teeth, dress, pack his lunch, and leave for work by 6am;
·before leaving he would check on C, and X if she had not already come into his bedroom. C always stayed in bed. When both girls were still in bed, he would sometimes kiss them on the cheek, and sometimes he would just stand at their bedroom doors, say “goodbye” and walk away.
In the afternoons, the Father usually finished work between 3.30pm and 4.00pm, arriving home somewhere between 4.30pm and 5.00pm. The family would watch TV together, eat dinner and then C and X would shower, get dressed for bed and brush their teeth. C went to bed in pyjamas or sometimes just underwear. The parents tried to get the girls into bed by around 7pm each night, although it didn’t always work and sometimes C or X would be getting up and helping themselves to a drink later in the evening. The Father’s bedtime was usually around 9.30pm or 10pm. The Father wore underpants to bed.[14]
It was Wednesday that C made the disclosure to the Mother and the Police became involved. The most logical way to piece the events of that week together is to start with the contemporaneous words and actions of the relevant parties. Necessary context here is that C sometimes referred to her vagina by a nickname in the evidence.
Mother’s version of events
According to the Mother’s Police Statement:[15]
7.A short time after 4.30am on Tuesday, I woke to [Mr MacAdams]’s alarm going off and was just laying in bed with my eyes shut trying to go back to bed. I opened my eyes up at some time and saw that [Mr MacAdams] was not in our bedroom and our bedroom door was open and I could see [C]’s bedroom door was open and a small part of the open cupboard which [C]’s clothes are in. I could see that [C]’s night light was on and it looked like she was moving because I could see big black shadows moving across the door and open cupboard. It was as if someone was moving in her bedroom or she was moving in front of the night light. I thought at the time it was [C] moving while she was sleeping. I heard her make a grunt noise. Again I thought it was [C] moving around, getting comfortable. Then I stretched my arms up and made a grunting noise to get comfortable. A few minutes later I saw [Mr MacAdams] sticking his head out from [C]’s room looking into our room and towards me, his head wasn’t fully out just peaking out as if he was seeing if I was awake. Like a sneaky look. Then he quickly walked out as if to get away from something quickly. I thought immediately, “Why run out of there?” I saw he was wearing shorts and no t-shirt when he left [C]’s room quickly. I could hear [Mr MacAdams] in the kitchen getting ready and packing his esky in the kitchen. I heard his esky open and him grabbing his energy drinks from the fridge. I heard the cupboard in the kitchen opening and closing. Then I heard the esky close and he left out the front door. I heard the car start and [Mr MacAdams] had gone to work. [Mr MacAdams] normally leaves for work around 6:00am or 6:30am.
8.I went back to sleep but not for long because my alarm went off at 7:00am. I got up and walked to [C]’s room to wake her for school. I shook her a little bit with my hand and woke her up. I told [C] to get up and get ready for school. [C] said to me, “I don’t want to go today. Can I stay home”. I said, “Go back to sleep then”. I then went back to my bed and fell asleep.
9.Then we woke up sometime in the morning after 7:00am and had breakfast and were just at home. Through the day it was playing on my mind as to why [Mr MacAdams] would be sneaking out of [C]’s bedroom. I had a sick feeling that his touched her, there’s no other reason why he would sneak out. The rest of the day was normal. [X]’s grandmother had come to take [X] to pre-school and [C] and [Y] stayed home. [Mr MacAdams] got home at about 4:00pm and I acted like everything was normal. When I went to bed I made sure I was going to wake up with [Mr MacAdams] in the morning.
10.At 4:30am on Wednesday, when [Mr MacAdams]’s alarm went off I also got up and was walking around and talking to [Mr MacAdams]. I was acting normal but was awake to make sure he didn’t go back into [C]’s room.
11.On Wednesday a bit after 12:00pm, [Mr MacAdams] was still at work and [C] and I were in the lounge room watching TV and I just looked at [C] and said “[C] you know you can talk to me about anything, you won’t be in trouble and I won’t be angry”. [C] said, “Yeah I know.” I asked these questions but I’m not sure of what order I asked them; “Why was daddy laying with you?”, “Has anyone touched your [vagina]?” [C] laughed, I don’t think she realised what was happening when he was doing stuff to her. So she laughed and said, “No.” I said “It’s ok you can tell me if anyone has touched your [vagina].” She laughed again and said, “Well, no I can’t tell you.” I said, “Yes you can, you can tell me its ok”. [C] said, “Daddy said not to tell you.” [C] said, “OK, don’t tell Daddy I told you. Promise not to tell Daddy I told you.” I said, “I promise.” [C] said, “Daddy said do you want to feel a funny feeling?” She said “Yes. Then he started rubbing my [vagina]” and then she did an action with her pointy finger and middle finger and moved it in a left and right motion.
12.I was in shock and felt so sick like I was going to spew. I was shaking like crazy and trying not to cry in front of [C]. I then thought I needed to get this recorded so he couldn’t deny it. I used my mobile and pressed record on audio record and said something like. “What did you just say”, she was like, “I told you”, I think I said it again, “Tell me what you said”. I asked her more questions to try and get her to repeat what she just told me. [C] ended up saying repeating about [Mr MacAdams] asking if she wanted to feel a funny feeling. The recording went for about a minute sixteen seconds. I gave this recording to [police].
The Mother’s audio recording of C was tendered as an exhibit.[16] The sound quality is poor and there is a lot of background noise. The decision to record it was clearly made ‘on-the-spot’ in response to what C had earlier disclosed. The Mother comes across as quite forceful; C as somewhat reluctant and non-plussed.
Mother: “No, No, so what happened?”
[C]: “I told you”
Mother: “No but, shh shoosh. What happened?”
[C]:“About what?”
Mother: “What you just said”
[C]:“He was showing me a funny feeling”
Mother: “So what? How?”
[C]: “Just rubbing”
Mother: “He came in your room and said what?”
[C]: “Do you want me to show you a funny feeling?”
Mother: “Mmmm”
[C]: “And I said yeah”
Mother: “Is that all?”
[C]: “Yeah”
Mother: “Ok”
The Mother’s Police statement continues:
13.Immediately after the recording I called the Police on triple zero and told them what happened. I then went into my bedroom to where she was and I said something like, “You’re not lying about what you said?” [C] said, “No.” I said, “How many times did it happen? [C] said, “Like five.” Then I didn’t want to ask anymore. I didn’t want to make her upset.
14.About 2:00pm or 2:30pm, [Mr MacAdams] got home and I didn’t want to have any conversations with him at first. I told him that I wanted to call my dad and if he could take [Y] out of the bedroom. He took [Y] and I called the Police on triple zero and told them [Mr MacAdams] was home. I asked them what I should do and they said to just keep my kids and I safe. I then went out to the lounge room and tried to play it call. [Mr MacAdams] asked what my Dad was doing and I told him that Dad was trying to come down for a visit.
15.Somehow [Mr MacAdams] and I ended up in our bedroom and I just said, “Is there anything you want to tell me?” He said, “I don’t know what you’re talking about.” I said, “I think you should leave.” He said, “Why?” I said something like, “[C] just told me that you rubbed her [vagina]” He said, “No why would she say that?” I said, “I don’t know you tell me.” We weren’t shouting just talking, I said, “Police are coming.” He said, “Why, you are going to ruin my life, those allegations could ruin some one’s life.” I said, “You ruined her life.” I was walking away because at this time I saw the Police car pull up. I grabbed all three kids and sat out the front of the house and spoke to Police. They talked to me quickly about what happened…
The attending Police were two Senior Constables. Asked by one what had happened, the Mother’s version was to this effect:
“I noticed [Mr MacAdams] coming out of [C]’s room the other morning, about 5am. I thought it was strange. So I was having a conversation with her today and she told me he asked if she wanted to feel something funny and touched her “[vagina]” which is what she calls her vagina.”
How the Father reacted
When the Police entered the house, they found the Father holding a large kitchen knife to his stomach. He was distraught, saying things like “This is bullshit, this ruins people’s lives. All I’ve done is help them out of a shit situation. What is everyone going to think if this gets out?” Police negotiated with him for a few minutes before, crying, he dropped the knife. Police called an Ambulance; at one stage the Father became angry and resistant, punching a hole in the wall. He was taken to Hospital where Police served him with a provisional Apprehended Violence Order (“AVO”) protecting the Mother and children. Following a psychiatric examination, he was released into the care of the paternal grandmother the following day.
C’s version of events
As she was only eight (8) years old, C was interviewed by Police electronically. A Detective conducted the interview; another Police officer was also present. Asked what day it was, C incorrectly said it was Tuesday. Asked her birthday, she said 2020 (being her most recent birthday) although she quickly corrected that to 2012.
C was asked to explain the difference between the truth and a lie. She said that the truth was “something that actually happened” whereas a lie was when “you say something wrong about it, that’s not the actual truth”. Asked to identify “private parts”, C nominated places on the body that you hide with clothing and knickers. Asked the names of those private parts, she responded “vagina, butt crack and penis”. She used child-like terms to describe the Father’s fingers – referring to his index finger as his “first finger” and to his middle finger as his “rude finger”.
Relevantly the interview contains the following questions and answers. Typographical errors have been left unchanged:
Q27 Yep. What’s been happening that you would like to talk to me about?
AWell, the police, my mummy called the police, it was because of what daddy did and um, I don’t know. I didn’t want her to called the police.
Q28 Yeah.
A And I’m scared what will happen to my dad.
Q29 Yeah.
AI want him to stay with us like, and um, I don’t know why mummy called the police.
Q30 Yeah.
A I think she did it because the thing that he did was just wrong.
Q31 Ah hmm.
A No one’s ever done it to me before. It’s not a good thing.
Q32 OK.
AOh, I felt a bit scared and started to cry a bit. ‘Cause I thought it was about what I did and that I did something wrong.
Q33 Mmm.
A But I didn’t, it was because of my dad done something wrong.
Q34 Yeah.
AAnd I don’t know why mum called the police and police, like my private. But and they’ve been married for two years.
…
… So why would she ever like why? And that’s all I really want to talk about.
The detective directs C to what the Father is alleged to have done.
Q47 Do you want to talk to me about what daddy did that was wrong?
A Yes.
Q48 Yep. Could you tell me whereabouts it happened?
A In my room.
Q49 In your room.
A And in the lounge room.
After confirming that she is referring to the parents’ home, C initially says that the thing had happened to her five (5) times.
Q60Five times. And all those five times did something, did something different happen all of those times or was it the same thing all of those times?
A It was the same.
1st incident that was disclosed - on the couch
Asked about the “very first time” it happened, C said that it was earlier in the year at around 9:30pm. C said that she and the Father were on the couch in the lounge room and everyone else was asleep. She was not sure if the TV was on but said that the Father was “all quiet”. The interview continued:
Q107Yep. And why was it wrong though? What was wrong about that? Why was it wrong?
A Touching other people’s privates.
Q108 So touching other people’s privates?
A Yep.
Q113 And was, did he touch somebody’s private part did he?
A Yes, mine.
Q114 You just told me about a few private parts. So what private part did he touch?
A On me?
Q115 Yeah.
A My butt crack and vagina.
Q116 And how did he touch them? What, what did he do?
A With his finger.
Q117Yeah. And tell me how he touched your butt crack with his finger? What did he do?
AAnd like … licked his finger first and then like he rubbed around it and stuck it up.
Q118 Yeah, where did he stick his finger?
A Um ---
Q119 What did he do to your bum crack?
A…and he, oh, he got, he got his rude finger and he um, like licked it and then started to rub all around it and…
Q120 On your butt crack?
A (NO AUDIBLE REPLY)
Q121Yeah. So he got his rude finger and licked it and what, what did he do with it again?
A Rubbed, really fast.
Q122 OK. Rubbed your butt crack really fastly?
A Yep
Q123 Yep. And what else did he do with his fingers with your butt crack?
A Oh, that was it.
Q124 OK. And did he do anything else to your butt crack that night?
A (NO AUDIBLE REPLY)
Q125 No. OK. And then you said that he also touched your vagina?
A Yeah
Q126 Yeah. How did he do that?
A The same thing.
Q127 Yeah, so tell me what he did.
ALike, like he licked this first, this finger and he started to rub it and then he started to do it like very fast.
Q128 Ah hmm.
A And um, then he rubbed it around in circles.
Q129 Rubbed it in circles?
A (NO AUDIBLE REPLY)
Q130 So he licked the first finger?
A Ah hmm.
Q131 And he was rubbing it?
A (NO AUDIBLE REPLY)
Q132 And then rubbing it really fast?
A Yep.
Q133 In circles?
A Yep.
Q134 And then what else was he doing?
AOh, he, he was …. like, yeah, and use the rude finger and started to do the same thing.
Q135 Ah hmm. And what do you mean by his rude finger?
AHe licked it and then rubbed it around circles really fast and in straight lines and then zig zaggy.
Q136 Yeah. And did he do anything else?
A No.
Q137And then you said that he was rubbing his, used his finger to rub around your butt crack and to stick it up your butt crack.
A Yep.
Q138 Did you, what were you wearing on that time? Can you remember?
A …. my dress and my knickers.
Q139 Yep.
A ….
Q140So you were dressed in your dress and your knickers. And what was dad wearing? Can you remember?
A Yeah, he was just wearing his undies.
Q141 Ah hmm. And anything else?
A No.
Q142No. So how was he, how did his finger touch your butt crack and vagina if you had your […] knickers on?
A He was like, he pulled them down all the way to my feet.
Q143 OK.
A And then did it.
Q144 So he pulled your, pulled your undies down?
A (NO AUDIBLE REPLY)
Q145Yep. And was anybody saying anything when that happened? Was dad saying anything or did you say anything?
A He said not to tell anyone and, oh, and to be quiet and never tell mum.
Q146 Yep.
A--- because, or [X] because she might be a bit jealous and he doesn’t want [X] to have it.
Q147OK. He said that they might be a bit jealous and he doesn’t want [X] to have it.
A (NO AUDIBLE REPLY)
Q148 Yeah. And did he say anything else?
AUm, he also said um, “If you tell anyone we won’t ever do it again”. He said ….
Q149 Yeah. And did he say anything else?
A No.
Q150 And what did you say? Did you say anything?
A No.
Q151No. So when he was rubbing around and stuck his finger up your butt crack what did you feel? So there’s lots of different types of feelings, so you can have like feelings where you’re happy and sad and cranky and angry and then you can have feelings that, and are hard or soft or that sort of thing. So what sort of things did you feel?
A Oh, I felt a bit of tingle and it felt a bit weird.
Q152 Yep.
A Um, I felt scared ---
Q153 Yep.
A --- and very conscious
Q154 Yep. And why did you feel scared?
A Because I’ve never done it before and it just felt really grouse.
…
Q156And what about, so you said that he licked his finger and was rubbing really fast in circles around your vagina?
A Yeah.
Q157 And was he doing anything else with his fingers on your vagina?
A No.
Q158 No. And what were you feeling when this was happening?
A I felt scared---
Q159 Yeah.
A ---and then very weirded out---
…
Q162 …And how did that stop the first time?
AWell, he was saying, “Well, we need to go to bed now but I want to stay with you” and then I basically said we have to go OK…and then I went to bed and then, then it happened the next night.
2nd incident that was disclosed – in C’s bedroom
C said that the second incident occurred on her bed at around 7:30pm. She had eaten dinner, showered and:
AGot dressed and then he went to, got into bed and went to sleep. But then he came in and to come do the same thing as the last time.
…
A…And he was telling me that…and rubbed it around with his first finger, he licked it first.
Q165 Yep.
A And I thought that he was, that it was fun but it wasn’t.
… And I was very frightened.
…
Q178You were on your bed. And what happened, how did, how did dad start rubbing your vagina again that time, what did he do?
AWell, he pulled down my knickers because I was just, because I’ll just wear knickers that night.
Q179 Just knickers that night?
A …I’ll um, he pulled the covers over me…I was asleep.
Q180 Yep.
A And then he started doing…
Q181 So where was dad when this was happening, where was he?
…
A On my bed.
Q184On your bed too. And what were you doing on your bed, like were you laying on your bed or sitting on your bed or something…
A I was laying on my bed.
Q185 Yep. And how was your body laying on your bed?
A I was laying like one, like, like I…sideways and I was like this.
…
Q189 So what was dad, where was he on your bed, what was he doing?
AUm, he was laying on this side close to me. He started to pull down my knickers and he’s just, and did all the thing.
…
Q192And then what did he, and then you said did all those things again. So what did he do that time on that night?
AUm, he like, oh, it get his rude finger this time and licked it and started rubbing my vagina, all along the private bit.
Q193 Yep.
A--- where the teeth goes up. I was really scared. I didn’t know what was touching me and I started to scream and woke everyone up. And then he closed the door, he said, “Shhh”.
Q194 Ah hmm.
A Yep, and woke mummy up, she went to go to the toilet.
…
Q198 And you said the private part where the teeth goes up?
A…. or the …. all the way up the spikey bit where you touch it and it hurts your finger.
Q199 On your vagina?
AYeah, the bit that makes when you wee it like splatters, that bit. You put the teeth together and it goes psssh.
Q200 And he was touching that bit?
A It hurt.
Q201 Hurt that time, did it?
A Yep.
Q202 And you said that you started to scream?
A Yes.
Q203 Yep. And what happened when you started to scream?
ALike everyone woke up and they went, “What was that?” And then they like need to go to the toilet, mum went first, mum went to the bathroom and [X] went, “I need to go the toilet”, and she took her nappy off and went to the toilet. And then everyone went back to sleep and dad start to do it all again.
Q204 Oh, ok.
A …
Q205 So you screamed?
A (NO AUDIBLE REPLY)
Q206 And woke everybody up?
A Yep.
Q207 And dad walked to the door and said, “Shhh”?
A (NO AUDIBLE REPLY)
Q208 And then mum got up and went to the toilet?
A Yeah
Q209 And then [X] woke up and went to the toilet?
A Yep
Q210And where was dad then? So he went to the toilet um, to the door and said, “Shhh”, and then where did he go?
A And then he went back and went to go under my bed to hide.
…He, he went, laid on the floor and then he rolled under my bed. Everyone’s and then gone back to sleep. He got back up again, he, he started to sing me a song, his favourite ones.
Q214 Yep. What did he sing?
ALike, “[…]” and …. he sang quite a few songs that I can’t remember all of the ones that he sang.
Q215 Yeah. And what happened after that?
AThen he stopped, then he stopped doing it and walked out of my room and then go to bed, and that’s where the story ends.
C clarified that, while singing to her, the Father was laying on the floor on some cushions from the couch.
When the detective attempted to explore the other three (3) alleged occasions of abuse, C changed her evidence about the number of times it had happened:
Q230 And then you told me that there was five times that it’s happened …
A I think it was either two times or five, I don’t know, I can’t remember.
Q231 That’s ok. So when was, tell me about another time that it happened then?
AWell, it didn’t actually happen any more times because daddy was scared and I was scared that something did … end, then he never, ever, ever, ever did it.
Q232 Ok. So he just did it two times.
A Two times.
Q233 Ok. So one time in the lounge room, that was the first time?
A (NO AUDIBLE REPLY)
Q234 And one time in your bedroom?
A That was the second time.
Q235 Ok. And was there any other times where dad has done something like that?
A Um, three nights before.
3rd incident that was disclosed – in C’s bedroom
Q236 Yep. Tell me about that one?
AOh, the same thing happened because he still got all of his fingers, licked them, stated [started] to rub my but [butt] that time, and he started to tickle on my bum like this.
Q237 Yeah.
AAnd it felt weird. And I said, “Can we stop now? Can you go in your room?” And he’s, and then he goes, and he said “OK OK.” And then we didn’t do it again.
Q238 Ok.
A And that’s actually, that was where the story ends.
…
Q242 And was that daytime or night-time or when did this one happen?
A This time it was night-time again.
Q243Yep. And you were in bed. And what happened, how did dad come in and do that?
A And he snuck, snuck from his bedroom.
Q244 Ah hmmm. And how do you know that that’s happened?
A Because I saw him.
… I saw, like tip toed and he went, “Shhh”.
…
Q248 And where did he sneak from his room to?
A Yep. Well, he started from his room and he went into my room.
Q249 Yep.
A Went through the door ---
Q250 Yep.
A --- he shut the door and then did all the things that I already told you.
Q251 So he shut the door this time?
A Yes.
Q252 Is that the first time that he shut the door?
A Um, no.
Q253 No. When else was it shut?
A Oh, the second time when he did it.
…
Q257 And then where did dad go? What was he doing? Where was he---
Q258 ---when he came into your room?
A He went behind the door.
Q259 Mmmm.
AAnd then he licked all his fingers and rubbing them and sing some more songs “[…]” and then he’s …. and he, oh …. to get, to go back in his room and then went to the toilet and …. that’s all that would happen.
Q260 And what did you have on that night, what were you wearing on that night?
A I was wearing my dress and pants and some knickers.
…
Q262 What dress were you wearing?
A My […] one.
Q263 OK. And you said that he licked his fingers?
A Yep.
Q264 And was rubbing them. Where was he rubbing them this time?
A Um, the butt crack.
Q265On the butt crack. And how was he rubbing them on your butt crack this time…
A Circles and zig zags and straight lines.
Q266 Circles, zig zags and straight lines.
A Now I don’t want to talk anymore.
Q267 OK. Can I just ask a few more questions about that last time?
A Yeah.
Q268 And then you said that he was tickling your bum?
A Yeah.
Q269 Why was he doing that?
A He got his fingers were dry and then rubbing it like that on my butt cheeks.
…
Q277 So how was dad touching your butt crack with your pants and knickers on?
A Well, he pulled them down all the way…
… All the way to my feet.
Q279 Yep. And then how did it stop that time?
AI said, “Dad, I don’t want to do it anymore can you go back to where you were and I can go back to sleep.”
Q280 Ah hmm.
A And he went “Fine” and he went.
Q281 Yep. And what about another time that it happened?
AWell, there wasn’t any other time and…he…get to go in his room because he didn’t want to do it anymore.
Q282 OK
ABecause he might get in trouble. Like, and now he’s already in trouble because I told my mum, and he told me not to but I had to because then my mum will get angry at me and I’ll be grounded.
… ---for a whole week.
Q284 So you told mum?
A Yep.
… I told her this yesterday.
…
Q288 And have you told anyone else?
A No.
…
Disclosures about the Father’s penis
C having earlier identified the “penis” as a private part, the detective asked C about the Father’s penis:
Q291 Anything happened with the private part of the penis?
AHe told me to touch his but I didn’t really want to but I had to … and that’s when I didn’t want him to ever touch me again. Ever.
…
Q293 So he asked you to, to touch it?
A And play with it.
Q294Ok. And when we say “it” what do you mean, like what did he ask you to touch and play with?
A His penis.
Q295 Yep. And when did that happen?
A That was the first night, the second night and the third.
Q296 Oh, so all three times?
A (NO AUDIBLE REPLY)
Q297 Ok. So the first time was in the lounge room?
A Yes.
Q298 So tell me how did he ask you to touch it, what did he say?
A He said, “Do you want to play with my doodle?” I said um, “Not really.”
Q299 Yep.
A And then, “What do you mean?”
Q300 And then what happened after that?
AAnd then, and then he said, “What do you mean?” He got it out a tiny bit and told me to play with it and then so I did.
Q301 You did?
A Yeah.
… And then um, um, I wanted to stop and said, “Can we stop now?”
Q303 Yep. So what do you mean played with it. What, what did you do …..
A Oh, so he told me to grab it ---
… ---and just run it up and down like that.
Q307 And what did you grab it with?
A My hand.
Q308 So that was the first time in the lounge room?
A Yeah
Q309 Yep. OK. And when else did you, did you ever do that any other time?
ANo, I can’t remember…’cause it was a little bit along time ago…and I forget dad says I’m a goldfish.
Q310You’re not a goldfish, you’ve remembered heaps of things, you’ve done really well today. So what about in your bedroom, did that ever happen, did dad ever ask you to do that when you were in your bedroom?
A No.
Q311 No. He never asked you to do that?
A No.
Q312 No. And has dad ever asked you to do anything else?
A No.
Q313 Yep. Have you done anything else?
A No.
Q314 Or has dad touched you anywhere else that’s private?
A No.
Q315 No. And have you touched dad anywhere else ---
A No.
Q316 --- on his privates?
A No. Can we stop recording now please?
Q317We’re almost done. I’ve just got to ask you a few more questions and then we’ll be all finished. Is that O.K.?
A Yeah. I do need to go to the toilet.
The detective soon winds up the interview, recapping what C had said about the three incidents.
What the Father told Police
At 6.16pm, the Father voluntarily participated in an electronic record of interview with the detectives. The interview was lengthy, ending at 8.12pm, and the Father consistently denied any wrongdoing throughout.
At the outset, the detective asked the Father whether there was anything he wanted to tell them about things happening at home between he and C:
AWell, nothin’. She’s always been my daughter, I’ve always protected her, I’ve always wanted to frickin’ go to her real dad’s house, and frickin’ pull him out, and belt him. ’Cause I find out that he’s frickin’ abused his mum, and all that, [Ms Koster].
Q118 Mmm.
A This sort of shit, I’d never do, I love kids. I…way.
Q119 OK. So …
A Since, since we got her back from him she’s all known about this shit.
Q120 What was that, sorry?
ASince, like, since we had her back, like, since she’s been there, she’s known all about sex and all this sort of crap that she shouldn’t fuckin’ know.
Q121 What are you talking about?
A Well, she knows every, all about sex.
Q122 [C], are you talking about?
AYes. When she, we finally rescued her from him he used to friggin’ they shared the same bed and he used to have girlfriends, and all that, stay in the same bed, and fuckin’ do shit around her, and all that.
The detective later returns to the topic:
Q217[Mr MacAdams], you said that she spoke about sex stuff or she knew about sex stuff you were saying.
A Yes.
Q218 What did he tell you?
AShe hasn’t told me anything, she’s told [Ms Koster] everything. Apparently she was demonstrating sex acts in the bath when they were all, all three of them were in the bath at our old…it yeah, our old house.
The detective continues:
Q219 And [Ms Koster] told you that, did she?
A Yes.
…
Q221 What was happening?
AShe was bouncing up and down in the bath and when [Ms Koster] asked, what she’s doing, she said she’s pretending that she’s on top of a guy. She was so young, like, frickin’ 3.
…
Q226Uh-huh. So you’ve said, she said that she was pretending to be on top of a guy. Were they her words, were they?
A Yes. That’s what [Ms Koster] told me.
… And when I found out I wanted to drive straight to her dad’s house.
Q228Yeah. And what else has happened then, what other sexual behaviour has she been displaying?
AWell, I don’t think, pay much attention to it, but [Ms Koster] frickin’ does and, ’cause I’m always at work.
…
Q231 …What else has [Ms Koster] told you then?
AThat she’s walked past and seen her, um, she’ll, like, roll over quickly and, by memory, I think she was saying she caught her on top of a doll, or something, or---
…
Q234 Well, tell me what she told you.
AThat’s what she told me, that she, a doll, or a teddy bear, or something, and I don’t want to hear that shit.
Q235What, what do you mean, caught her on top of a doll or a teddy bear, what, what, what does that mean?
AWell, exactly what that means, that she was, she thought that she was displaying sex acts to this fuckin’ bear, or doll, or whatever it was.
The Father goes on to clarify that the bath incident occurred in their old house when X was about a year old, ie. around 2017. He says that the ‘teddy bear’ incident occurred at their current house. The questioning continues:
Q244Yep. And what other times has [Ms Koster] told you that [C]’s been displaying some sexual behaviour?
AShe doesn’t really told me much because of the fact she knows I can’t handle it.
Q245 OK. So it’s just been two times that she’s spoken to you about that?
A I’m sure there’s other times, but I’m just trying to get it fuckin’ out of my head.
…’Cause that sort of shit makes me want to go do stuff to fuckin’ people that do that.
The Father confirmed that C referred to her vagina by a nickname and had referred to her backside as her “bum hole”, “butt” or “butt crack”.
The Father was asked about C referring to the penis:
Q497 What word would, would [C] use to talk about or describe the penis?
AUm, well, the only time I’ve heard her talk about it is when we’re changing [Y]. And she’ll be like, Oh, look at the doodle.
… And that’s, that’s all we’ve ever really called it, is doodle.
Q499 Yeah. So that would be the word that [C] would use.
A Yes.
Q500Yeah. And what about you when you’re talking about the penis. What word would you use?
AI don’t really talk about it, but if I was, or if I say, Don’t, don’t look at [Y]’s doodle ---
… --- that’s usually I, what I say….
Q503 Why would you say, Don’t look at [Y]’s doodle?
AOh, ’cause usually when I’m changing him and she’s around, I always catch her looking at his doodle.
Q504 Yeah. How old’s [Y]?
A 1.
Q505 [C] is 8.
A 8, yes.
Q506 Do you think it’s strange that she looks at his doodle?
AYeah. Just the fact that, like, what she’s, where she came from, from the old house.
Q507 What do you mean?
ALike, I know, I knew that, well, what [Ms Koster]’s told me, she’s sexually aware and all that of things. And all that. And, but didn’t really, I don’t know. Most of the time, I was kind of worried for the other kids. Just the fact of what [C] knew and all of that.
Q508 Just, sorry, say that again.
AI said, I was always worried of the other kids and I always told [C] not to do stuff around them and that, all that. So, and usually if, um, they go quiet. I always say, What are youse doing? I know youse have started playing, but I don’t know, I’ve, I just, ‘cause of what [C] was like previously, how she was and where she came from, I was kind of fearful for the innocence of the other girl, like [X] and [Y].
Q509So you weren’t happy with her looking at your 1 year old, her 1 year old brother’s penis when he’s getting his nappies changed.
A No. Or my daughter’s [vagina] when we’re doing the nappy.
…
Q514What do you mean that you’ve told her not to do stuff around them and all that?
A Well, when [Ms Koster] told me about, like, things she’s done and that---
… Like, that [C]’s done. Like, [Ms Koster]’s caught her doing all that.
Q516So we’re back to talk about those two incidents, the bouncing in the bath and being on top of the teddy.
A Yeah
… And I always told her, I don’t want to, like, that shit around [X] or [Y].
…
Q522 What did you tell her not to do?
A Um, anything naughty. Like, naughty stuff.
Q523 That’s a very broad comment to say to an 8 year old. Don’t do naughty stuff.
A She’s very wise for an 8 year old.
Q524 So she knew what naughty stuff meant, did she?
A Yes.
Q525 And what does naughty stuff mean?
ALike, naughty stuff. Sexual acts and all that. That’s just what [Ms Koster]’s talked to her about and all that.
Q526 You just said that you---
A Yeah. I, when I talk to her---
… ---or if, when [Ms Koster] tells me, like, told me that stuff---
…or if she tells me that she’s worried that they’re doing stuff, I’ll talk to [C] and say I hope you’re not being naughty and that.
Q529And by you saying her, I hope you’re not being naughty, she knows that you’re referring to, you don’t want her to be doing sexual acts. Is that what you’re saying?
A I’m pretty sure.
Q530But you don’t actually say that, so how was she supposed to know what, naughty, means?
AI don’t know. That’s just what [Ms Koster]’s, [Ms Koster]’s talked to her about, this sort of stuff. I try and stay away from this sort of crap, ’cause it just makes me too angry.
AYeah. That’s, that’s all I say to her is, Don’t do anything naughty. Like, don’t be naughty. And that means pretty much everything. Like, and she knows what it means, like, don’t hurt [X], or, um, anything like that. But I assume that she meant that other stuff as well.
Q532 How do you think an 8 year old---
A Oh, ’cause I told you she’s very aware, she’s very observant.
…She knows pretty much that stuff. She learned it all from her frigging father while being his care.
Q534 You said she’s very wise for an 8 year old. How wise would you say she is?
A Oh, she’s very smart.
Q535 Yeah. So how, if you were to put an age on it, how old, she’s actually 8, but ---
A Yeah.
Q536 --- you’re saying she’s much more wise.
AOh, well, she acts like she’s 16. She’s got an attitude of a 17 year old. And yeah, her smartness, oh, say 10, 13. Like, she’s very advanced in, like, talking and knowing stuff, and all that.
Q537So by, the Detective here spoke to you about these, you’re talking about sexual acts. You said it two times, bouncing in the bath, and she was laying on top of either a teddy bear or a doll. And now, and that [Ms Koster]’s the one that told you all of this.
A Yes.
Q538 So you didn’t see any of that happen?
A No.
…
Q542 ---I’m talking about when you talk to her, you tell her---
A Yeah.
Q543 ---to stop doing naughty stuff.
A Yeah.
Q544And then you said, meaning sexual acts. How would an 8 year old girl, even if she was 16 or 17 years attitude wiser, whatever you want to call it, how is she gunna know that you’re referring to her, A, jumping up and down in the bath, and say she’s on top of a guy, or B, laying on top of a doll or a teddy bear?
… How would she know what you’re talking about?
A ’Cause she’s very smart.
Challenged about C understanding what the Father meant by “naughty”, particularly given he said he had not himself witnessed her sexualised behaviours, the Father became frustrated, telling them that the Mother was:
A ---the one that’s frigging witnessed it and talked to her about it as well.
Father’s version of Monday night
The Father admitted going into C’s bedroom:
AI laid on the floor ’cause she wanted me to come and lay with her, and sing her to sleep, so I laid on the floor and I was singin’ her songs. And we were, laughing and jokin’ around, and all that, with songs, and all that.
Q261 When was that?
AUm, I’m not sure, I can’t remember. I think it was, I think I was very depressed ’cause we were out the back and we were talkin’ about, I was showin’ her the stars, and the Southern Cross, and lettin’ her known that there was a [special] star. A star named after my mate that passed away […]. And then she went into [Ms Koster] and asked [Ms Koster] if he’s got a star because he passed away.
…
A--- night time. I used to sing [C] to sleep. And [Ms Koster] was awake laughin’ at me singin’ ---
Q265 Ok.
A --- with me.
Q266 So where were you laying?
A I was laying on the floor near the cupboard.
Q267 Just on the floor, or ---
A Yeah.
Q268 --- with something, or ---
A No, I was just laying on the floor.
Q269 And that was at night time?
A Yes.
Q270 Yeah. What time of night was that?
A It was just, like, 9.00 or somethin’
Q271 Yeah. And what songs were you singing?
A[…].
Q272 Yep.
A And […] and all that.
Q273 Yep. Is that something that you regularly do or is that just a one-off thing?
AEvery now and again I’ll do that, but usually I’ll sing from the bedroom or [Ms Koster] sings.
Q274 Yep. And what night do you think that this was, that this happened?
A I think it was on Monday, Monday night.
Q275 This week.
AYes, I think so. ’Cause my mate, um, had a tow truck come and get his other car, and I think I was cleanin’ up, and [C] was out the back helpin’ me. Then we went inside and that’s when she was talkin’ to [Ms Koster]. And then, yeah, and then she’s wanted me to go and sing to her, and I laid on the floor and sang to her, and then I went to bed. And then cuddled my beautiful son and my beautiful wife.
Q276Ok. So that happens occasionally, does it, that you go into [C]’s room, and that you lay on the floor, and that you sing songs to her, does it?
A That was the first time that I did it at that house.
Q277 First time.
A Yes.
The Father said X was asleep; that the Mother was awake with Y and on her phone; and that the Mother would have heard both C ask him to come to her room, and him singing to her.[17]
The Father denied ever laying down on C’s bed in the new house. He admitted laying down with C now and again when they lived in the old home, but in an entirely benign way. He admitted tickling her back on the couch on occasions when watching TV, but never in a sexual way and not during the last week.
Father’s version of Tuesday morning
Police asked the Father about his morning routine. In the course of those questions the Father positively denied entering C’s room on the Monday, Tuesday or Wednesday morning of that week.[18] Police homed in on the Tuesday:
Q401 So what time do you get up on a Tuesday morning then?
AWell, my alarm does go off at 5.00 but…most of the time, I usually just lay through it and it’s around 6.00, 6.00, 6.30 when I get up.
Q402 Yep. And what’s your routine then---
Q403---on a Tuesday when you g, so your, your alarm still goes off at 5.00, but you lay in bed for an hour, hour and a half, get up at 6.30. And what happens when you get up on a Tuesday then?
AWell my, my alarm goes off at 5.30, but I stay in bed and cuddle [Ms Koster] and [Y] usually till 6.00, 6.30. Then I get up and, and I know this week, I close all the doors to go get stuff out of the laundry, and that. And not to wake ’em up, and all that, and then, but usually I just, I have my clothes there.
Q404 Mmm. And then what time are you leaving on a Tuesday.
A Well, usually 7.00 is when I leave.
The Father admitted to partially shutting the bedroom doors that particular morning.
A…And yes I, when I did wake up, I did shut all their doors because I didn’t want to wake them up when I was getting ready for work.
… And I was in the laundry getting’ me clothes out.
Q320 So you shut their doors at some stage, did you?
A Yes.
…Yeah, I, ’cause I, every time I wake up I happen to, manage to wake someone up. So I shut all the doors tryin’ to let them sleep. ‘Case I know that when I go to the laundry, we’ve got the slidin’ door that is loud and then the dryer door.
Q322Is that something that happens all the time that has happened to be one day this week?
A No, it’s just one day this week ‘cause I had clothes in the dryer.
Q323 Yeah. Do you remember what day that was this week?
A Oh, I’m pretty sure it was, what was it, I think it was Tuesday.
Q324 Tuesday morning.
AEither Tuesday or Wednesday. I don’t know, it’s just too much for me to handle.
Q325Uh-huh. So on Tuesday morning when you got up for work you went and closed [C]’s, and [X]’s, bedroom door, did you?
A And [Ms Koster]’s.
Q326 And [Ms Koster]’s as well. Did you go into [C]’s or [X]’s room---
A No.
Q327 ---before you closed those doors?
ANo, I just shut the doors as I walked past and then walked out into the lounge room.
Q353Ok. So can you tell me why you needed to shut the girls doors if you were going to dry your pants that were already dry, that were sitting in the dryer?
A’cause when you go to the laundry where it’s in the di, oh, right next to the dining room.
Q354 Yeah.
A It’s a roller door, like a slidin’ door.
Q355 Yeah.
AAnd it’s pretty loud when you open it and then opening and closing the dryer it’s loud as well. You’ve kind of got to slam it to shut it.
Q356 Or you didn’t have to shut it at all.
A I don’t like leavin’ things open.
Q357 Ok.
Q358 So you didn’t actually use the dryer ----
A No.
…
Q367And has there been any other times where you have closed the bedroom doors to go into the laundry and get clothes out of the dryer?
ANo, because the first couple of times I didn’t really think, and I just did it, and then last time, I think it was Tuesday morning, I didn’t want to wake anyone.
…
Q372 OK. But you’ve been in the house for, what, [several] months now?
A Yes.
Q373And that was the first time that you’ve ever, after using the dryer on numerous occasions during the week, it’s the first time that you’ve closed the bedroom doors is, am I right in that?
A Yes.
The Police asked the Father if the Mother was awake and what happened next:
ATuesday morning, um, she, I think she was awake, like, half awake and I rolled over and cuddled her.
…
Q414 Did she go back to sleep after that?
A I think so.
…
AI pretty much got out, and shut the doors, and went to the laundry. I did hear someone actually get up, but I just thought it was [X] who might have gone to the toilet.
…
Q421And all the bedrooms are, are quite close where the laundry, and bathroom, and everything is.
A Yes.
Q422So you said that, all you did was walk into the laundry, grabbed your clothes out and then walked back out---
A No, I don’t---
Q423 ---taking a total of what, 30 seconds, or something.
A I got dressed and I put my pants on in there.
… And me shirt.
…When, when I walked out and sat in the lounge room for a bit. And then, what else did I do…I got a couple of [drinks] out of the fridge, and then, yeah, it was pretty much time to leave.
Q426 So when did you hear this noise of a door close?
A I think I’d just walked into the laundry.
Q427 Did you check it out, what the noise was?
A No, ’cause I just assumed it was someone going to the toilet.
Q428 So would you not hear a door close twice.
A What like a bedroom door and toilet.
Q429 But you said the doors were closed.
AYeah. But I didn’t fully close them. I just closed them to the point where they were just touching the d, like, the frame. They weren’t fully closed.
…
Q436What would be the purpose of shutting the door to the door frame and not actually shutting the door properly if you wanted to keep the sound---
A ’Cause.
Q437 Out?
A---I didn’t want to wake ’em up, ’cause they do make a noise when they shut, like, when you fully shut ’em and they, it…like, oh, it makes that, oh, I don’t know that fuckin’ door shutting noise.
The Father confirmed that he was wearing his black briefs when he got up that morning.
Father’s version of Wednesday morning
The Father agreed that the Mother had gotten up and followed him to the kitchen, staying with him until he left for work. He “couldn’t work out why”.
Father asked about possible motive to make a false allegation?
Given an opportunity to put forward a motive for a false allegation, the Father said that the Mother had perhaps orchestrated everything in order to end the relationship. He told Police that the Mother had been “cold” towards him for a long time. He also said that the Mother could have just left him if she wanted to, rather than putting him “through this shit”. She also said she was “a very convincing role model to [C] and [C]’s just a puppet.”
Contemporaneous physical examination of C
The Mother took C to L Hospital in early 2020 for a medical examination; no injuries or abnormalities were found. The DCJ later conducted a safety assessment and ‘substantiated’ the sexual harm to C due to her having made “a clear and detailed disclosure” to Police.[19] The Mother told them that a bruise had been found above C’s vagina but there is no evidence that this is true.[20]
CHILDREN’S EARLY POST-ALLEGATION LIVES
The children immediately lost their day-to-day relationships with the Father. The Mother was bereft of his significant practical support around the home. Things were awkward between the Mother and the paternal grandmother whose practical support also quickly dwindled away.
The Mother was struggling to cope. She would ‘zone out’ by playing videogames. Her GP increased her anti-depressant dosage. (She remains on that higher dose to this day.) The Mother reached out to the maternal grandmother for help, but she could not assist at that stage. She suggested the Mother call the maternal grandfather, who promptly moved down from City M to live with the Mother and the children. He brought his own problems. A somewhat intimidating character with a past history of perpetrating family violence and easily angered by the behaviour of the children, he began often yelling at them and at times meting out excessive physical discipline – particularly to C.
In early 2020, the Father’s sister made a complaint to the DCJ about the Mother being neglectful of the children. This was screened out for inadequate evidence.[21]
Around mid-2021, the Mother’s sister Ms N moved into the home; she became a source of practical support for the Mother and the children.
SEXUAL ABUSE ALLEGATIONS: C’S SECOND POLICE INTERVIEW
In mid-2021, C watched her original record of interview of early 2020 in the company of her aunt Ms N. The detective re-interviewed C the next day.[22]
As before, the detective confirmed that C understood the difference between the truth and a lie, emphasising that it was very important that they only talk about truthful things.
The threat that C would be ‘grounded’
C wanted to correct what she had said in the first interview about the threat of being ‘grounded’ for a week. To recap, the questions and answers had been as follows:
Q281 Yep. And what about another time that it happened?
AWell, there wasn’t any other time and…he…get to go in his room because he didn’t want to do it anymore.
Q282 OK
ABecause he might get in trouble. Like, and now he’s already in trouble because I told my mum, and he told me not to but I had to because then my mum will get angry at me and I’ll be grounded.
… ---for a whole week.
Q284 So you told mum?
A Yep.
… I told her this yesterday.
The detective’s questioning went as follows:
Q42OK. So you told me that you had to tell Mum what [Mr MacAdams] did because if you didn’t, you’d be grounded for a whole week.
A That’s not right.
Q43 That’s not right.
AI had to tell Mum what [Mr MacAdams] did because it would keep me safe, and he would keep doing it over to other children.
Q44 OK
A So I had to tell Mum so she can call the police.
Q45 OK.
A And she said for me to tell her everything.
Q46 OK.
A That I can tell her everything.
Q47OK. OK. So what, when you told me that you had to tell Mum because you’d be grounded for a whole week, that’s not right?
A That’s not right.
Q48I just thought that when I was eight ’cause I didn’t remember why, what I told her. Now I remember.
Q49 OK. So when you told me that, why did you tell me that?
AI have no idea. Um, I might have said a few last week, we could get the thing over and done with, or it’s just that I didn’t remember what happened.
Q50OK. So just in relation to that part, though, when you told me that you’d be grounded for a whole week if you didn’t tell Mum, why did you tell me that if it’s not right?
A I have no idea.
Q51 OK. So what actually happened? Why did you tell Mum?
AUh, ’cause I didn’t want [Mr MacAdams] to do it to other people. I didn’t want him to do it to [X]. Uh, and Mummy just said for me to, to let her know everything.
With respect to the detective, I consider that this line of questioning mischaracterised what C had said. The detective assumed that in the first interview C was saying that the Mother was threatening to ground her. Looked at in context, C was saying something quite different - that the Father had threatened C that the Mother would ground her if she told the Mother what the Father had done – but that C had decided to tell the Mother anyway.
The Father’s penis
In her original record of interview C initially said that the Father had asked her to rub his penis on all three (3) occasions, but when asked about it later she said it only occurred once in the lounge room. The detective returned to that subject:
Q53And I asked you, did Dad ever ask you to do that when you were in another bedroom?
…
A Yes.
Q55 What, what do you mean, Yes?
A He did ask me to do it in another room.
…
Q58So tell me when he asked you to do it in another room. When did that happen and where did that happen?
A That happened in my room la, in, at night-time.
Q59Yeah. So can you tell me everything about that time that happened, about, um, [Mr MacAdams] did and said that time. So it was night-time?
A Mmm.
Q60 Yep. And what happened that time?
A I don’t want to talk.
…
Q62 Why don’t you want to talk about that one?
A Don’t like it, makes me upset.
…
Q66 OK. And how many times did he ask you to do that in your bedroom?
A Once.
… It was also in the lounge room too.
Q68 Yeah, but we already spoke about that time, didn’t we?
A Yep.
Q69Yeah. And you told me all about that time, so we don’t need to talk about that again, yeah? But we didn’t talk about the time that happened in the bedroom yet.
A Yes, we did.
Q70 When he asked you to do it in the bedroom?
A Did I not say that? I thought I did.
Q71No, we didn’t talk about that one. Where you said, um, because when I asked you time last time, Ever happened in any other room, you told me, No.
ADidn’t I said, Yes, in my bedroom, the exactly same thing happened on the couch?
Q72 Oh, no.
A Didn’t I say that?
Q73 No.
ABut I watched the video. And when you asked me, Did it happen in an, any, in your bedroom, and I said, Yes.
Q74 Mmm.
AAnd, and he, you said, What happened, and I said, The same thing that happened.
Q75OK. So can you tell me what happened that time in the bedroom when [Mr MacAdams] asked you to, to grab it? What happened on that time?
A Mmm.
Q76 Pardon?
A The same thing that happened on the couch.
Q77 OK.
A Exactly the same.
…[Mr MacAdams] was in the lounge room, and I think he came in and started doing the thing to me. And then Mummy came out to have a drink.
…Like, fill her bottle up with some water. He hid behind the door. And then he went on the floor and rolled under the bed and hit his head on the bit of my bed. And, and Mum was like, What was that. And, and then I was like, Shush.
C goes on to talk about the other occupants of the home being asleep; the Mother getting up for a drink; the Father hiding behind C’s bedroom door and then rolling under her bed. The detective then redirects C to the specific allegation about the Father asking her to touch his penis in the bedroom:
Q90Yep, OK. And when we spoke up at [Town O], I asked you, Had had he ever asked you to do that in your bedroom, and you told me, No.
A I don’t know why I said no, but yes, he did.
Q91 Ok. So, so he did ask you to do it?
A Yeah.
Q92 OK. And what, where did he ask you to do that?
A In my bedroom on my bed.
Q93OK. So I just want you to tell me about when he asked you to do that, so not all the other things, ’cause we’ve already talked about all of the other things. I just want you to tell me about the time in your bedroom where he asked you to grab it and rub it. So tell me all about just that one little bit.
AI don’t think I really remember ’cause I did fall asleep when he went on my bed.
Q94 OK.
A Uh, I did feel something funny.
Q95 Mmm.
AYou know where. And then I think, I think, not I know, he told me to grab it and rub it up and, like, he’s full grabbed my hand and told me to rub, and, and forced me to rub it up and down while I was sleeping.
Q96 Mmm.
A If that’s what he did. I’m not sure. I was asleep.
Q97 How do you know, then, if you were asleep, that that’s what happened?
A’Cause I felt things. I feel very well and I hear very well when I’m asleep. So if Mum says my name, I’m like, I’m up. Um, I’m really easy wake up. And when he told, got me to do it, I woke up and that’s when he stopped and he went back to go---
Q98 We just need to talk about that little bit.
…
A Well, when he forced my hand to rub his thing, that was when I was awake.
Q100 Uh-huh.
A So I know that bit happened.
… Like, I kept falling asleep and then waking back up.
… So I knew some bits happened, some bits didn’t.
… And that’s pretty much it in my room.
Q104 OK. So he forced your hand to rub it?
A Uh-huh.
Q105 Yep. So what do you mean, Rub it? What, what did he force you to rub?
A His thing.
…
Q109 …So you said that he grabbed your hand and forced you to rub it up and down?
A Uh-huh.
Q110 Yep. How did he do that, how did he grab your hand and force you to do that?
AI don’t know. He just grabbed my hand and opened my fingers and then put it on.
…He closed my fingers and then he held my hand and then he rubbed it up and down to move my hand, and when he let go, he thought I’ll keep doing it, but I stopped ’cause I, ’cause I fell asleep, and I woke back up. And he done it again, then I fell asleep.
… ’Cause it was really late and it was really tired.
… It was when Mum goes to sleep, which is 1 o’clock in the morning.
Q114OK. OK. So I’m just not sure what he forced you to rub and what, and what his thing is that you were, that he was forcing you to touch and rub.
A Private.
… Yes but I don’t want to talk about it. It’s really upsetting.
… You wee out of it.
…
Q161You told me that he got his penis out and asked you if you wanted to play with it.
A He didn’t ask me, he forced me.
… If you ask me how he forced me---
… it’s the same reason in my bed.
Q164 What do you mean? How did he force---
A He grabbed my hand, opened it, and, and then just put it on and, thing.
Q165 OK. So when he forced you, he grabbed your hand and made you do it?
A Yeah.
Q166 OK. Did you think something if he, if you didn’t do it?
A Yeah.
Q167 Yeah. What did you think would happen?
AHe would slap me really hard and ground me for a week. I didn’t mean to say that Mum would ground me for a week. I went, I meant for, um, [Mr MacAdams], to say [Mr MacAdams].
Q168 Why did you think that he would slap you really hard?
A Because I don’t know.
…He just wanted to do it so I think he wanted me to do it, so I was like, I don’t want to get smacked if I don’t listen.
… So I just done it, ’cause he smacks if we don’t listen.
1st incident disclosed - on the couch
I will consider (ii), (iii) & (iv) first.
Coaching?
The only logical reason for the Mother to deliberately coach the child would be to end the parents’ relationship.
The Mother had no apparent motive to do so; the parents’ relationship was solid and their family unit relatively happy and functional.[47] There had been no talk of separation and the Father agreed in cross-examination that, but for the allegations, the parents’ relationship would likely have continued. The Mother had the same view.[48]
Mr Bithrey pointed to the Mother having a history of sudden changes in relationship status[49] including with her own family-of-origin. Did the Mother, for instance, simply want to go back to Mr H?
Post-separation the Mother did re-integrate Mr H into C’s life and the Mother even admitted to sleeping with him on one (1) occasion. But they are not in an intimate relationship. Under cross-examination by Ms T, C said that the Mother and Mr H still loved each other but that they do not live together and that the Mother did not want a boyfriend.[50] Moreover, the Mother had previously, in an uncomplicated way, left the Father to go back to Mr H when she was pregnant with X. Had she wanted to end the relationship, she could have done so again. There was absolutely no need to take the extreme and malevolent course of confecting sexual abuse allegations.
On a related point, Mr Bithrey contended that the Mother did not really believe the allegations. He tendered a copy of the Mother’s adult website page on which it is stated in all capitals: “[…]”.[51] It is plainly sexual; the suggestion from Mr Bithrey is that if the Mother genuinely believed the sexual abuse allegations against the Father she would not have posted such a caption as it would have been too repugnant. Respectfully, this analysis is too simplistic. The Mother was selling a sexual fantasy to generate income, no more and no less. It is beside the point that many others in her position would have found it repugnant. The same is also true of her posting a graphic video of herself and the Father having sex in which their genitals, though not their faces, are apparently clearly displayed.
The Mother genuinely believes that the Father sexually abused C. She pursued the allegations vigorously through the lawful channels; and when the charges were dropped she resorted to self-help[52] and vigilante-type behaviours.[53] She maintained the allegations throughout these proceedings and in her oral evidence at trial. When the initial Police interview with C was played in Court she was visibly distressed at the point when the child was telling Police about the Father licking his finger and touching her private parts.
The more challenging question is whether the Mother unintentionally prompted C to make a false/unreliable disclosure, ie. she unintentionally ‘coached’ her.
Mr F said that child’s disclosures need to be looked at in their full context. The tone and body language of the questioner are relevant; a forceful tone can for instance impact the reliability of any subsequent disclosure. Mr F said that children can be suggestible: if asked about a topic, especially in a forceful way or if asked more than once, a child may see the question as relating to a real event even if it doesn’t. Take for example a fictitious car accident. Asked what colour one of the cars was, an adult may respond with “I don’t know” whereas a child might volunteer a colour simply because they were asked to. A child may move from fact to fiction without being concerned about inconsistencies in their version which thereby arise. I accept Mr F’s observations about these matters.
The Mother in this case was herself a victim of childhood sexual abuse and thus more likely to ‘react’ to such disclosures. By the time C made the disclosure to her, the Mother had been ruminating about the possibility of sexual abuse for more than a day. C’s disclosures were then made after the Mother asked her leading questions about her “[vagina]” being touched.
But even so, none of this can explain the “granular” level of detail that C then went into when she spoke to Police the next day. I do not consider that the Mother had the motive, the opportunity and much less the capacity to inculcate such a level of detail into C’s mind between the disclosure and the Police interview of early 2020. Frankly the Mother was emotionally overwhelmed; her life had fallen apart in an afternoon. She was not herself even privy to the bulk of the detail that C went on to tell Police.
(iii) & (iv) - Earlier sexual abuse or experience / sensory-type behaviours?
Based on the parents’ descriptions of C’s sexualised behaviours when she came to them from Mr H’s house, Mr F thought it “overwhelmingly likely” that C had been exposed to adult sexual activity as a young child. I agree.
Mr F considered that at age eight (8) the child would likely still remember such early sensory experiences. However he said that, once those behaviours stopped, C was unlikely to have spontaneously re-started them again. This is because society discourages such behaviour in children, who soon find other things to do.
In my view, the only reliable evidence that C was ‘self-pleasuring’ or perhaps ‘mimicking’ sexual acts was back in 2016 / 2017 which both parents observed. I emphasise both because the Father falsely suggested to Police that only the Mother had witnessed such behaviours. He was at pains to emphasise C’s sexualised behaviour, giving substantial details while at the same time disavowing any direct observations of it himself, professing disgust about such behaviours and suggesting that the Mother knew it was a topic he “couldn’t handle.” The Father was being disingenuous about these matters.
These parents were in fact worried about C’s sexualised behaviours in 2016/2017 and, inferentially, discouraged them. To the extent that the Father suggested that such behaviours were recent, his evidence to Police is vague, unconvincing and, on balance, incriminating. The most recent ‘teddy bear’ event, if true, was not mentioned in his trial affidavit nor put to the Mother in the witness box.
Ms T specifically cross-examined C about sexual experiences at Mr H’s home:
QSo I’m talking about before all this happened, so before you lived with [Mr MacAdams] and your mum at---
A Okay, I lived with my dad before all this happened.
Q When you were living with your dad, did your dad have girlfriends?
A Yeah, he had [Ms R].
QWhen you would go and stay with your dad, did you sometimes see your dad and [Ms R] doing rude things together, like private things together?
A No.
Q Never saw that?
A No.
Q When you stayed at your dad’s, did you have your own room there?
AYes, I did, ’cause we were living in [Town O] in my old house. My dad only got [Ms R] when Mum went to go live with [Mr MacAdams], so-yeah.
I accept that C was being truthful – the point being that if she had endured such experiences back then, she was no longer conscious of them.
But even if C was remembering ‘old’ feelings or sensations when she spoke to Police, she managed to weave them in so that they correlated very well with the precise acts of sexual touching by the Father that she says she experienced. The suggestion that C was remembering ‘old’ feelings simply does not stand up to scrutiny.
Nor does the Father’s suggestion to Police that, when it came to sexual knowledge, C had the mindset or attitude of a sixteen (16) or seventeen (17) year old. On no reasonable view was this statement accurate. At best it was gross exaggeration and disingenuous; at worst it was a positive attempt to impute detailed sexual knowledge to C to exculpate him or to otherwise aid his defence. On the one hand he labelled her as “wise” for her age, on the other calling her a “puppet” of the Mother.
A positive finding of sexual abuse?
The only remaining scenario is that the Father sexually abused C.
Mr Bithrey concluded that specific findings are needed as to the facts; a generic finding that ‘sexual abuse’ occurred is a conclusion, not a fact. I respectfully agree, although the nature of the genital, anal and penile touching alleged by C all comfortably fall within the umbrella of ‘sexual abuse’.
A positive finding of that the Father sexually touched or abused C requires proof to the highest civil standard. The lesser finding that the Father poses unacceptable risk of sexual harm to the children, while also serious, does not require and is not amenable to such proof given that it is directed to future events.
I have already referred to the Mother’s leading questions of C, to the graphic disclosures made by the child and to the Mother’s belief in their truth. I have referred to the concerns I have about the veracity of what the Father told the Police. I have observed that neither parent is an entirely reliable historian and that the Father has positively tried to push the events out of his mind. C is also not an entirely reliable historian. She did not for instance tell the Mother about the sexual abuse “each morning” after it happened; she did not have a diagnosis of ADD. She admits to telling “lies” as to various peripheral details although her understanding of a “lie” may not be the same as an adult’s. That is, she may conflate a “lie” with a mere mistake as to the facts.
Ultimately, weighing all of the evidence I am satisfied that the Father did sexually abuse C. That the Father sexually abused C is much more likely than any of the other competing hypotheses.
In particular, I am satisfied that the Father removed C’s underwear on the couch and proceeded to touch her vaginal and anal regions with his fingers as C describes in her first interview, as well as getting her to touch his penis. In all likelihood this occurred late on the Monday night which the child incorrectly nominated as “earlier”. But the exact date it occurred does not matter. If it did not happen on that exact date, it must have happened in the weeks prior. I am also satisfied that he told C to keep what he had done a secret; the exact expression he used does not matter.
I cannot accept that the Mother heard the Father’s underpants ‘snap shut’ on the couch on the Monday night however. I struggle to believe that she would have forgotten that detail when Police spoke to her. She has incorrectly reconstructed in her own mind what she thinks she heard.
There is a real likelihood that late on the Monday night, and/or early on the Tuesday morning when the Father got up for work, that the Father again touched C’s vaginal and anal regions with his fingers when she was laying in bed, and that he got her to touch his penis. But I do not make a positive finding about sexual touching as the child seems to have been asleep or half-asleep during this interaction; it may explain why she says she screamed out and woke everyone up when she did not and why she gives the implausible account that the Mother brought her a drink yet did not notice the Father hiding in her room. Nor, inferentially, did the Mother notice his absence when she went back to her own bed. The two (2) bedroom events described by C in fact seem to overlap and may be conflated given her state of sleepiness.[54] To a sleepy child, Tuesday morning when the Father got up in the dark may have felt like night-time.
I reject the Father’s evidence to Police that he did not enter C’s bedroom on the Tuesday morning. I accept the Mother’s evidence as to her observations of the Father. The Father conceded to Police that the Mother would have been able to see C’s door from their bed; they had deliberately positioned their bed so that she couldn’t “sneak out” of her room.[55] It is common ground that C always went to bed with her night-light on, consistent with the Mother’s evidence about seeing ‘shadows’ in C’s room that morning. In summary, the Father was behaving in a way that aroused the Mother’s suspicion while falsely denying to Police that he had been in C’s room.
The Mother’s observation on the Tuesday in turn explains why on the Wednesday morning the Mother took the unusual step of getting up in the morning when the Father did.
In some ways early 2020 was unusual:
·the Father let C stay up with him on the couch and watch TV late on a week night (the Monday);
·Monday night was also the first time in the new house that he laid on C’s bedroom floor to sing to her to sleep;
·Tuesday was the first morning he decided to partially shut the bedroom doors.
Added into that ‘mix’ is the Mother’s allegation that on the Sunday night – for the first time - the Father had sexually touched her while she was asleep. Her account in that respect is a detailed one which I accept occurred. It is certainly possible that the Father – though he denied the event – did it as some form of “joke” given his reaction after the Mother caught him. This was an act of family violence but did not end the parents’ relationship and, looked at on its own, it would not give rise to a finding of unacceptable sexual risk to the children.
In making these findings, I acknowledge that the Father does not carry any onus to ‘prove his innocence’. This is not a criminal court; it is a civil court whose ultimate obligation is to arrive at a ‘best interests’ order which necessarily requires that children not be placed at unacceptable risks of harm, be they sexual or otherwise. In considering sexual risks, I have done the best I can on the evidence and my findings represent those matters about which I am comfortably persuaded.
The positive finding necessarily results in the further finding that the Father poses an unacceptable risk of sexual harm to the children. But a finding of unacceptable risk would be plainly open and appropriate even in the absence of a positive finding.
In so finding, I have taken into account the ICL’s submission that there were “significant inconsistencies going to the heart of the disclosures” such as:
(a)whether or not the child screamed in the bedroom. This ignores the child’s state of sleepiness;
(b)The detective bringing up “penis” in the first interview, rather than C doing so. This is untrue as C did mention the “penis” as a private part early on.
Q114 You just told me about a few private parts. So what private parts did he touch?
A On me?
Q115 Yeah.
A My butt crack and vagina.
(emphasis added).
The detective and C then went on to discuss the touching of C’s private parts. She does not have a penis; in returning to that topic, all that the detective was doing was simply rounding off the subject of private parts being touched. Respectfully, it would have been remiss of the detective not to return to that topic.
(c)C arguably changing the detail of whether the Father penetrated her anus on the couch as distinct from putting his finger in and around her “butt crack” and anus. But the essence of the child’s allegation was unchanged;
(d)C’s statement in mid-2021 that she may have told some “lies” to bring the interview to an end. This is lacking context. She did say things that were untrue: for instance that she had told the Mother about the abuse each morning after it happened; or that the Father smacked them if they didn’t listen. But C was also a child; she found the process confronting and wanted it to end; some things appear to have been lost in communication (such as the ‘grounding’ threat); and by the end of the first interview she was wanting to go to the toilet.
I reject the ICL’s contention that most of C’s allegations were “retracted” or had become “incredulous”.
The ICL criticises the Mother’s “forceful tone” when recording C’s disclosures. The ICL legitimately criticises the Mother as a witness, but with respect she fails to consider the Father’s credibility and the overall weight of the evidence, particularly C’s “granular” disclosures and Mr F’s evidence about how unusual they were for a child that age.
I have taken into account Mr Bithrey’s submissions, including the schedule that he provided as to inconsistencies in the abuse evidence.
Mr Bithrey contended that it was improbable that the Father would transform from being a loving husband to going on a “libidinous rampage” out of the blue. His case theory is that the allegations only arose because of a sequence of unfortunate events. The Mother – a victim of unresolved trauma and a rigid thinker – saw the Father close C’s bedroom door on the Tuesday morning. This was entirely ‘routine’ on his part so as to keep quiet, but the Mother was ‘triggered’ by it and in turn jumped to conclusions of sexual abuse which C was then pressured by her to admit to. Following C’s disclosure, the Mother then doggedly pursued the matter with Police. Essentially ‘things got away from her’ and the Mother – who does not believe the allegations - found herself ‘painted into a corner’.
I reject the above narrative. I do however accept Mr Bithrey’s submission that there is no evidence of physical trauma to C and that there are inconsistencies in the evidence of abuse. I also accept that he legitimately criticised the Mother’s credit in relation to various matters, such as the text to the paternal grandmother and the fake Facebook account.
Ms Hamilton submitted that the Father’s decision to grab the knife could be seen as consciousness of guilt. Given my findings, this seems more likely than not.
BEST INTERESTS FINDINGS & CONCLUSION
I return now to the ‘best interests’ considerations in s 60CC.
Given the way the case was conducted and the Court’s findings about sexual abuse and risk, a ‘no time’ order for the Father is appropriate and in the children’s best interests. Though the children may benefit from having some time and communication with the paternal grandmother, she is not a party and has not sought any orders. Any time or communication she has with the children should be left to the Mother’s discretion. It is common ground that the paternal grandmother has recently been volunteering at “the canteen” at the children’s school; she took that step without consulting either parent beforehand. There is no reason at law to stop such interactions continuing; no such order is sought and the interactions consist of little more than smiling at the children. To the extent that she expresses concerns about the children’s presentation on occasions, this is another layer of ‘visibility’ for them.
Though there are safety issues in the Mother’s household, it was always common ground that the children would remain living with her. She has significant parenting vulnerabilities. She takes anti-depressant medication and other prescribed medication to help her sleep. In late 2023 her GP put her onto a Mental Health Care Plan.[56] She also takes a prescribed anti‑depressant.
The Mother has completed a Positive Parenting Program.[57] The children’s circumstances have also improved somewhat. The maternal grandfather has been ‘replaced’ by the maternal grandmother, who regularly assists with the children’s transport. The Mother is also working towards obtaining her own open licence.
The maternal grandmother’s use of prescribed substances is a concern. I accept her evidence that it ‘helps her get going’ and sometimes gives her psycho-active effects, particularly if she hasn’t taken it in a while. Mr F said that individual response to prescribed substances was highly variable but that, in general, a person taking this substance was likely to be “significantly cognitively impaired.” That said, the maternal grandmother appears to be highly functional and actively participating in the children’s lives. She has been a positive influence on both children,[58] encouraging them to lead a more active lifestyle.[59] The children are more visible in the community than previously; they have the usual interactions and at times rivalries.[60]
The Mother has been actively following up medical advice about X’s ongoing incontinence issues and about X having a possible auto-immune disorder. X has been referred to the Paediatric specialist department at a hospital. Thus far, tests have showed no abnormality.[61]
X is in Year 2 at S School. In late 2023 and early 2024 she got into trouble at school for stealing on a number of occasions, including stealing food from other students.[62] But according to her most recent school report, a sound student with good manners.[63] Y is in Kindergarten where he is progressing educationally and socially.[64] His speech is also improving.[65] As at May 2024, X and Y each had three (3) unjustified early departures from school – all on the same dates. Overall, their 2024 school attendance was a significant improvement on past years.[66]
The Orders I propose to make will address the risks in the Mother’s household as best they can be. They will include, for example, an injunction preventing them from coming into contact with the maternal grandfather which – to be fair to her – the Mother belatedly consented to. The children will not be at unacceptable risk in the Mother’s household.
The children’s views have no bearing on the outcome given their ages and my findings.
The Orders I propose to make take into consideration the children’s developmental, psychological and emotional needs as well as the Mother’s capacity to meet them. The children do not identify as Aboriginal or Torres Strait Islanders. To the extent that the Mother ticked the “Aboriginal” box in X’s school enrolment forms I accept her evidence that this was a mistake on her part; C identifies as Aboriginal through Mr H. The Mother did not however notice the mistake for a long time which reflects that she was struggling to appropriately parent the child.
CONCLUSION & ORDERS
For these Reasons, I propose to make Orders which are relatively brief and self-explanatory. I do not see it as being in the best interests of the children to require the Mother to notify the Father about school and medical matters for the children; what purpose would it serve? I am not making a non-denigration injunction as, in due course, the children will need to be informed about the Court’s findings and what the Father did. And how does the Court stop C talking to the children about these sensitive matters down the track? Such discussions would almost inevitably constitute denigration. They are all matters that require sensitive handling, and preferably professional assistance, but ultimately who is going to enforce such an order and why should the Court make an order that cannot realistically be enforced?
The order relating to the DCJ is for child protection monitoring purposes and, to avoid doubt, is directed at both parents’ households.
I certify that the preceding two hundred and nineteen (219) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 27 September 2024
[1] There is also a matrimonial property dispute yet to be determined. This is anticipated to take half a day. See the recent orders of 19/07/24.
[2] He also read his Financial Statement of 05/06/24
[3] I incorporated this into the Father’s Case Outline Document
[4] She also read her Financial Statement of 13/06/24
[5] According to her own self-report to her GP: see Mother’s mental health plan which is exhibit 40
[6] See paragraphs 149 & 151 of the Family Report (exhibit 1)
[7] See M & M (1988) FLC 91-979; Isles & Nelissen (2022) FLC 94-092 and the cases therein cited.
[8] Per Dixon J (as his Honour then was) at pp. 361-362
[9] See exhibit 1, paragraph 51
[10] Exhibit 11
[11] Affidavit of the paternal grandmother, paragraphs 10 & 11
[12] Exhibit 11. Between 2012 and 2017 there were a total of seven (7) complaints to DCJ about C’s care.
[13] Exhibit 2
[14] Ibid.
[15] Exhibit 14
[16] The USB stick and transcript are collectively marked as exhibit 13
[17] Ibid., pages 32 – 33
[18] Exhibit 2, Questions & Answers #253 – 259 (page 29)
[19] Exhibit 43
[20] Exhibit 28
[21] Exhibit 10
[22] Exhibit 26
[23] Exhibit 1, paragraph 143
[24] Exhibit 7
[25] Exhibit 5, page 31
[26] Exhibit 5, page 66, lines 5 - 9
[27] She had raised the possibility with DCJ caseworkers in early 2020 [Exhibit 1, paragraph 82] and, a month after the above cross-examination, she nominated C as having “ADHD” in her school enrolment form [Exhibit 1, paragraphs 73-74]
[28] Exhibit 17
[29] Ibid.
[30] Maternal grandmother’s affidavit, paragraph 31
[31] Exhibit 18
[32] Exhibit 29
[33] Exhibit 22
[34] Exhibit 38
[35] Exhibit 15
[36] Exhibit 12
[37] The latter is specifically extracted from Exhibit 9, paragraph 13. See also paragraphs 11 & 12. The Mother’s trial affidavit deposes that on one (1) occasion she told X that they couldn’t see the Father because he had hurt C (paragraph 81)
[38] Exhibit 9, paragraph 34
[39] Ibid., paragraphs 23 & 26
[40] Exhibit 37
[41] Exhibit 8
[42] Exhibit 1, paragraph 75
[43] Ibid., paragraph 80
[44] Ibid., paragraph 78
[45] Ibid., paragraph 91
[46] Ibid., paragraphs 115 - 117
[47] In his Police interview the Father spoke positively about the parents’ relationship. In the parents’ 22/06/23 interviews for the Child Impact Report, both parents described their relationship as perfect: Exhibit 9, paragraph 6. In the witness box the Father agreed that it was accurate to describe the Mother as having been his “best friend”.
[48] In early 2020 the Mother told a DCJ caseworker that the parents had a good relationship and that the assault on C had come as such a shock because the Father had always been a supportive caring husband and father to that point [Exhibit 11, Page 49]
[49] See paragraph 149 of the Family Report (exhibit 1)
[50] Exhibit 5, page 65
[51] Exhibit 27
[52] Texting the paternal grandmother in February 2022; removing X from school a few months later
[53] The fake social media account opened up in the Father’s name
[54] In her initial Police interview, she initially said it had happened once on the lounge and once in her bedroom; the second bedroom disclosure came later on.
[55] Exhibit 2, Questions & Answers #180 & #181 (page 20)
[56] See exhibits 40 & 41
[57] Exhibit 36
[58] Mother’s trial affidavit, paragraph 110(l)
[59] Maternal grandmother’s affidavit, paragraphs 36 - 38
[60] Ibid., paragraphs 42 - 52
[61] Exhibit 24
[62] Exhibit 23
[63] Exhibit 32
[64] Exhibit 33
[65] Exhibit 42
[66] Exhibit 31
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