MACIK & JANSON

[2020] FamCA 743

FAMILY COURT OF AUSTRALIA

MACIK & JANSON [2020] FamCA 743

FAMILY LAW – CHILDREN – Interim parenting – Where proceedings relate to the care of the parties’ son and the mother’s daughter from a previous relationship – Where mother alleges daughter made various disclosures of being sexually abused by father – Where mother seeks orders that the children live with her and spend no time with the father on the basis that the father may sexually abuse one or both of the children  – Where father denies allegations of sexual abuse made against him and contends he does not pose an unacceptable risk of harm to the children on any basis – Where father ultimately sought supervised time with both children – Where Joint Child Protection Response Program (“JCPRP”) investigated allegations of sexual abuse – Where there are inconsistencies observed in the disclosures said to have been made by daughter – Where allegations of sexual abuse against father not substantiated by JCPRP – Where in the circumstances it is unlikely that a court will find that father poses an unacceptable risk of harm to the children on the basis of sexual abuse – Where there is a real risk that relationship between the father and children will be placed in jeopardy if orders are made as sought by mother – Where there is a benefit to both children maintaining a relationship with the father but father’s proposal does not properly consider the necessary therapeutic support or supervision for children’s time with him to commence – Where, in light of practical difficulties and the current status of each child’s relationship with the father, it is appropriate to make orders largely in the terms sought by the ICL that the son spend limited supervised time with the father.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT: Ms Macik

RESPONDENT: Mr Janson

INDEPENDENT CHILDREN’S LAWYER: Phillip A Wilkins & Associates

FILE NUMBER: PAC 930 of 2020

DATE DELIVERED: 7 September 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 21 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Wesley Community Legal Service

COUNSEL FOR THE RESPONDENT: Mr Hodgson

SOLICITOR FOR THE RESPONDENT: Cameron Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Phillip A Wilkins & Associates

Orders

Pending further order

1. The mother has sole parental responsibility for the child X born … 2013.

2. X and Y born … 2019 are to live with the mother.

3. Y is to spend time with the father for at least three hours per fortnight at  times and on days as suitable to a private supervision service to be engaged by the parties for the purposes of supervision of Y’s time with the father, which is to commence on the first available date offered by the service.

4. For the purposes of Order (3) the father’s time shall be supervised by a service as agreed between the parties, and if no agreement can be reached between them, as nominated by the Independent Children’s Lawyer.

5. The parties are to do all acts and things required of them as soon as practicable to engage the supervision service, and all such fees and costs associated with using this service are to be paid by the father.

6. Order (1)(c) of orders dated 30 April 2020 restraining the father from attending or being within 50 metres of any address at which the children are residing, is discharged.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 930 of 2020

Ms Macik

Applicant

And

Mr Janson

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties (“the mother” and “the father”) are in dispute as to the future parenting arrangements for their only child, a son aged one, and the mother’s child, a girl now aged seven (“the daughter”), following the breakdown of their relationship in September 2019.  The son and daughter and collectively referred to as “the children”.

2. It is the mother’s proposal that orders be made to confirm the current interim parenting arrangements in which the children live with her and spend no time with the father. It is her contention that the father poses an unacceptable risk of harm to the children arising from his alleged sexual abuse of the daughter.

3. The father had sought interim orders that he spend gradually increasing time with both children on alternate weekends, and that he communicate with them on a regular basis. At the interim hearing he changed his position. Although on the first day of the interim hearing the father did not press his application that the daughter spend time with him, when the interim hearing resumed a couple of months later, he also sought an order for some limited supervised time with this child. It is his case that the children are at risk of losing their relationship with him if orders are made as sought by the mother.

4. The ICL, while recognising the potential harms found in each parent’s household, is of the view at this interim stage that the need to protect the daughter’s potential exposure to emotional and psychological harm in the father’s care outweighs the benefit she may receive from maintaining a relationship with him. The ICL does not support an order that the daughter spend time with the father but recognises that there is some benefit to the parties’ son having a relationship with his father and proposes that the son spend limited supervised time with him.

5. The question for me to resolve is which of the competing proposals is proper pending final hearing having regard to the best interests of the children being the paramount consideration.

Background

1. The parties commenced their relationship in February 2016, began to live together the following month and married in another state in November of the same year.

2. When the parties’ relationship began the mother’s daughter from another relationship was aged three. Neither the mother or the daughter have had any relationship with that child’s biological father since her birth. The father has been for all intents and purposes the child’s father.

3. In June 2017 the parties and maternal grandmother moved from interstate to Sydney.

4. In mid 2019 the parties’ son (“the son”) was born.

5. The mother alleges that the following month there was an incident in which the father was violent towards the maternal grandmother. Although the father denies that he engaged in this behaviour, there is no dispute that by the end of the September 2019 the parties’ marriage was over. The father moved out of the home and the children continued living with the mother and maternal grandmother.

6. It appears that the father spent some time with both of the children as agreed between the parties up until the end of January 2020.

7. It is the mother’s case that on 9 February 2020 the daughter reported something to her that the mother understood to be an allegation of sexual abuse perpetrated by the father. In the following days the mother reported the child’s disclosure to the family doctor, the Department of Communities and Justice (“the Department”), and police.

8. When seen by the family doctor a few days after the disclosure the mother claims that the result of a urine sample collected from the daughter indicated that this child had a urinary infection (“UTI”).

9. When first interviewed by police on 11 February 2020, the daughter made no disclosure of sexual abuse. As will be expanded upon later in these Reasons the daughter did subsequently make complaints of sexual abuse to police and according to the mother, repeated and developed her complaints about the father’s conduct to the mother over time.

10. Further reports were received by the Department relating to sexual abuse of the daughter and the Joint Child Protection Response Program (“JCPRP”)[1] commenced an investigation into the various allegations made against the father.

    [1] The Joint Child Protection Response Program is an agency made up of officers from Community Services, New South Wales Police and New South Wales Health that investigates complaints of sexual abuse, serious physical abuse, and extreme neglect of children.

11. On 13 February 2020 the mother informed the father that as the daughter is not his child he will never see her again. She has also denied the father contact with the son since this time.

12. On 20 February 2020 the mother deposes that the child again disclosed to her further instances of sexual abuse she experienced at the hands of the father.

13. On 25 February 2020 the mother commenced proceedings in the Federal Circuit Court seeking orders that she hold sole parental responsibility for the children and that they live with her and spend no time with the father pending the JCPRP investigation. In her Notice of Risk filed at the time, the mother claims that the children are at risk in the father’s care on the basis of sexual abuse allegedly perpetrated by him, as well as concerns that he was in the past a heavy drug user.

14. On 19 March 2020 the mother informed police that the daughter disclosed information about being sexual harmed by the father to her school counsellor.

15. An email was sent from police to the child’s school the next day and in response the school counsellor clarified what the child had told her during their meeting,  advising police of her impression that “it wasn’t really a disclosure”.

16. On 24 March 2020 the father filed a Response to the mother’s Initiating Application seeking orders that the parties share parental responsibility for the son but that the mother hold sole parental responsibility for the daughter. He also sought orders that both children spend gradually increasing time with him, commencing with the son spending time with him on each Sunday and the daughter each alternate Sunday for six hours, and that they have regular electronic communication with him.

17. Although the father made no complaints about the mother in his Notice of Risk, the general tenor of his affidavit evidence is that the mother engaged in conduct to alienate him from the children, including by maintaining a series of spurious allegations of sexual abuse against him that to him were “incomprehensible”. In fear that the mother would relocate interstate with the children and restrict his access to them further, the father also sought an order restraining the mother from moving to live outside the Sydney Metropolitan area.

18. On 24 April 2020 orders were made with the consent of the parties restraining the mother from changing the children’s residential address to any place outside the Greater Sydney Metropolitan area, ensuring that the father is at all times advised of the children’s residential address and restraining him from attending or being within 50 metres of that address at any time. It was also ordered by consent that the proceedings be transferred to this Court.

19. On 30 April 2020 the father proposed through an email sent to the mother from his solicitors an interim arrangement that he spend time with the son each Sunday for six hours commencing the following weekend. It was noted in that email that the father was prepared (without making any admissions as to his conduct) to have a member of his family supervise this time to “alleviate any concerns [the mother] may have”. The mother through her solicitors refused to agree to any contact between the father and the children pending further order of the Court.

20. On 1 May 2020 the matter was allocated into the Magellan Program[2] and an Independent Children’s Lawyer (“ICL”) was appointed. The interim hearing was listed for 29 May 2020 and a Magellan Report was requested from the Department.

    [2] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of The Department with the family.

21. The Department received a further notification on 5 May 2020 containing the same information as had been previously reported about the father’s alleged sexual abuse of the daughter and risks said to be posed by him for this reason to both of the children.

22. On 28 May Departmental officers and police met with the mother who informed them that the daughter was suffering from emotional distress and frequently experienced nightmares.

The hearing

1. The interim hearing commenced on 29 May 2020 but could not be completed as there were a number of outstanding matters such as inspection of documents produced on subpoena and as the Magellan Report had not been produced. The JCPRP were also still investigating the notifications and were yet to interview the daughter. At that stage, it was the father’s proposal that orders be made only in relation to his time with the son and he was not pressing orders with respect to the daughter. Further, although the father himself and the ICL both raised the possibility of a regime of supervised time with the father enquiries for appropriate supervision had not been sufficiently canvassed. In these circumstances, the interim hearing was adjourned part-heard to late July 2020.

2. On 5 June 2020 Departmental officers raised concerns with their casework specialist about the possibility of the mother influencing the investigation and the risk of causing further trauma to the daughter if she were to be re-interviewed.

3. The father met with Departmental officers on 16 June 2020 and in his interview he provided alternate accounts in relation to the incidents said to relate to allegations of sexual abuse of the daughter, maintaining that he did not sexually harm her in any way. 

4. On 24 June 2020 JCPRP completed their investigation and concluded that the allegations of sexual abuse by the father were not substantiated.

5. On 29 June 2020 the child was interviewed again by police attached to a different agency specialising in child abuse investigations but no further action was taken by police.

6. By 10 July 2020 the Magellan Report had been received and was released to the parties.

7. At the resumption of the interim hearing on 21 July 2020, the parties including the ICL provided the Court with further written submissions in which they each pressed their respective interim applications.

8. The mother continued to seek orders that the children live with her and spend no time with the father, while the father changed his proposal again and sought time with both children. His proposal was that the daughter’s time, and if deemed necessary time with the son also, would be supervised. This proposal was made not on the basis that the father accepted he posed any risk to the children or either of them, but to provide some comfort and assurance to the mother. Although the father contemplated supervision by family members, he adduced no evidence in relation to them, their relationship with the children or their suitability as supervisors.

9. It is the ICL’s proposal that the son spend supervised time with the father at a contact centre (or if he can afford it, under private supervision) and that the daughter spend no time with the father.

10. After submissions were heard from each party and judgment reserved, an order was made for the preparation of a Magellan Family Report.

Allegations of Risk

1. It became clear in the course of the interim hearing that the significant matter in dispute is whether the father poses an unacceptable risk of harm to the children on the basis of sexual abuse alleged by the mother. Although the father did not seek at the interim hearing orders that would see the children or either of them live with him, he contends that the mother poses a risk of emotional and psychological harm to the children given the serious allegations she maintains against him which he says are without foundation.

2. Although when considering interim orders, the Court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts the Court may and in some circumstances must have some regard to the matters in dispute.  In SS & AH[3], their Honours said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [3] [2010] FamCAFC 13

3. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[4], a decision of the Full Court citing Deiter & Deiter[5]).

   [4] [2013] FamCAFC 182

   [5] [2011] FamCAFC 82

4. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court

5. Since the commencement of proceedings, it had been the mother’s case that the children are at an unacceptable risk of harm in the care of the father on two bases.

6. First, the mother contends that the daughter has been sexually abused by the father on a number of occasions based on various disclosures said to have been made by this child. The mother argues that for this reason there is an unacceptable risk of harm posed by the father to the children if orders were made that he spend time with them on the basis that he may sexually abuse one or both of them.

7. Second, the mother has raised concerns about the father’s substance abuse and mental health difficulties that she claims impair the father’s capacity and give rise to a risk that he may act aggressively and cause her to fear for the family’s safety as has occurred in the past.

8. At the interim hearing the mother did not press any contentions in relation to the father’s alleged aggressive behaviour, mental health difficulties or drug or alcohol use. Her main contention was that the father posed a risk of sexual harm to the children that she submits cannot be mitigated in any way including through supervision of their time with him.

9. The father has at all times strenuously denied that he engaged in any improper or sexually abusive conduct towards the daughter or that he poses any risk to the children on this or any other basis.

10. In written submissions, it was submitted on the father’s behalf that the mother has attempted to influence the daughter in making false allegations of inappropriate sexual conduct. On this basis, he raises concerns about the risk of emotional and psychological harm posed by the mother to the daughter. In particular, it is his case that the mother fails to appreciate the detrimental impact of seeking to destroy his relationship with this child by causing the child to be frightened of him, and of having the child interviewed on numerous occasions and being effectively forced to make untrue allegations against him. He does not however seek to change the children’s living arrangements at this interim stage.

1. Although the father contends that supervision of the children’s time with him is not warranted given he does not pose any unacceptable risk of harm to the them on any basis, his counsel indicated that he was prepared to agree to an order for supervised time with the children on an interim basis. Given the son’s young age, the father considered that it may be in that child’s best interests for time to be supervised by members of the paternal family (who provided the relevant undertakings). He also considers that it may be appropriate if other adults are present when the daughter spends time with him, to ensure she feels “secure” and “comfortable” given that she may feel unsettled, if not fearful, in his presence.

Harm arising from sexual abuse

1. It is the mother’s case that the father sexually abused the daughter between 2015 and 2019 and poses an unacceptable risk of harm to both children on the basis that he may sexually abuse them in the future.

2. According to the mother’s affidavit on 9 February 2020 the child reported to her, apparently spontaneously, that she “does not feel comfortable around daddy”. The mother deposes that when she asked the daughter why she felt this way, the following conversation took place:  

   [The daughter]:  Well, when you went to work, daddy would keep me in your bedroom with him all day, he wouldn’t even let [the maternal grandmother] in and that made me feel sad and worried. 

   [The mother]:      What do you mean daddy kept you in the room all day, what would you guys do?

   [The daughter]:   Well, we would be laying in the bed and daddy would put the blankets on us. He would leave the room to bring me food though.

   [The mother]:      What else did you do other than eat food in bed…?

   [The daughter]:    Daddy would start tickling me, and I didn’t really like it.  Daddy also would touch and play with my bottom in a way I know was wrong, and he would kiss me on the mouth at the same time which was yucky.

   [The mother]:     Oh baby girl, did you ever tell daddy NO?

   [The daughter]:    I didn’t…because I didn’t want to make him angry or hurt his feelings

   [The mother]:     I am so sorry baby girl, I am so so sorry.

   [The daughter]:    It happened lots mumma.

3. The mother says she did not continue the conversation with the daughter as the daughter had become “very emotional”. It was the mother’s understanding that the child was reporting incidents that had occurred many years previously.

4. The mother deposes that the following day she attended upon the family doctor without the daughter for advice. In the course of her appointment the mother says the Department was contacted and she made her first report to them regarding the daughter’s disclosure.

5. According to police records produced on subpoena (Exh 2), police received a report from a caller who informed them that the daughter appeared to have been inappropriately touched by the father. When questioned further, the caller told police that “[redacted name] thinks it happened so I’m just making the call, I’ll call [redacted name] and get her to call you”.

6. Police soon received a call from the mother and both she and the daughter attended the police station that same afternoon. According to police records, in the course of an “informal chat” “no disclosure was made at any stage by the child”.

7. After the interview, and in the absence of the daughter, police spoke with the mother who recounted the daughter’s disclosures. Although it is recorded that the mother said the daughter reported the father taking her to bed and tickling her, the record of the mother’s version of the conversation differs considerably from her affidavit version. There is no record that the mother referred to the daughter reporting that the father “would keep me in your bedroom with him all day” “would touch and play with my bottom” or “would kiss me on the mouth at the same time which was yucky”. It is also recorded that the mother told police that she did not want her ex-husband to have access to either child and that she asked how to stop him from seeing the children. At the conclusion of further discussions with the mother, police told her that “a clear concise disclosure was needed about a criminal offence before police could do anything”. They also told her that the daughter had made no report to them other than “dad tickled me”.

8. The mother does not set out in her affidavit the circumstances of her visit to the police station with the daughter or the daughter’s interview. She merely deposes that she made a report to police at the time.

9. In a police statement made by the mother on 28 May 2020 which she relied upon at the interim hearing (Exh 3), the mother describes a conversation she had with the daughter after briefly leaving the police station on 11 February 2020. The mother deposes that she sat with the child to ensure she was feeling okay and then words to the following effect were exchanged:

   [The daughter]: I feel angry with myself because I didn’t say anything to them.

   [The mother]:     It’s ok [the child’s name], I know it seems scary, you don’t have to say anything today.  

   [The daughter]:  Does that mean I will see them again?

   [The mother]:     You might see them, or it might be someone else, I am not sure, but everything will be ok.

   [The daughter]:  I will go back in now and try to talk again.

10. According to police records, “no more than two minutes” after leaving the police station the mother returned with the daughter for a further conversation with police. It is recorded that:

    At this time with no prompting or questions the child kept looking at the mother and the ground and mumbled dad touches my bum and kisses me on the lips and I don’t like it. Police asked when did this happen last. The child again looked at mum and said all the time (sic)

11. According to the Magellan Report a further more detailed report of the daughter’s disclosure was received by the Department on 12 February 2020. On this occasion it was reported that the daughter had complained that the father “would start by tickling me and then he would be touching my bottom in a way I knew was wrong and kissing me on the mouth”. This complaint was allocated to the JCPRP for investigation.

12. There is no dispute between the parties that the mother sent the father a message on around 13 February stating that the daughter is not his child and that he will never see her again. It is also agreed that around this time the mother told the father that he is not to be alone with their son until that child is two years old. The father deposes that soon after these messages were sent the mother sent a further message to him in which she warns “if you come to the home it will be trespassing, and you will be arrested. I will not allow my child to be fearful of you turning up when you are not permitted to. There will be huge consequences if you do…”

13. On 20 February the mother deposes that when she collected the daughter from school, this child again disclosed sexually abusive conduct perpetrated by the father towards her. In that conversation the daughter is said to have told the mother that she was feeling “a bit worried”. When asked to explain why, the mother deposes that the daughter replied “you know when daddy and me used to go for swims in our pool…daddy would put his hands in my bathers and I didn’t like it”. It appears this was later reported to the Department in early March and became part of the JCPRP’s then ongoing investigation.

14. It is the mother’s case that from around the time the daughter is said to have made her initial disclosures this child suffered significantly with her mental health. Under a heading in her affidavit titled ‘[The child]’s mental health’, the mother enumerates a plethora of concerns she has about the daughter’s behaviour, which it appears she considers indicative of the child’s mental health difficulties.

15. On 5 March 2020 the mother attended a police station requesting that the officers in charge of the investigation contact her. It is recorded in police records that later that day when the relevant officer contacted the mother, the mother queried how long it might take for the daughter to be interviewed as the child is “going downhill mentally”. 

16. A Departmental officer and JCPRP police interviewed the daughter on 10 March 2020 and during the interview this child relayed accounts of the father inappropriately touching her in a sexual manner as alleged by the mother. It appears the interview took place at the child’s school in the absence of the mother. When describing the incident in which the father is alleged to have touched her “bum” whilst kissing her lips, the daughter stated that this occurred when she was three years old and that she “hardly remembers it”. When asked again about this incident, the child replied “I think we were lying on the couch. I kept talking about it with mum and I remember it”. The daughter further recounted the father touching her on her genitals but said “I don’t remember where or when but I remember it happened…I told you everything I remember”. When questioned about her initial interview with police in early February, the daughter stated “mum said I had to tell them something or they can’t help”.

17. According to the mother’s police statement, when she collected the daughter from school on 10 March 2020 the daughter informed her that she had met with JCPRP police and a Department officer that day and “told them how [the father] would touch my vagina inside my bathers when were in the pool together”. Later that day when police contacted the mother regarding the daughter’s interview, the mother relayed that the child told her that the father would “play inside her underwear” and kiss her. Police noted that the daughter had not made these disclosures during the interview.

18. The mother sent JCPRP police an email dated 19 March 2020 in which she advised them that the daughter attended upon her school counsellor and disclosed that the father “used to stick his fingers inside her vagina”. The mother also expressed concern that the situation was not being taken seriously (by police).

19. JCPRP officers made contact with the daughter’s school in relation to these complaints said to have been made to the school counsellor. By reply email the school counsellor advised that “it wasn’t really a disclosure” and clarified that the child told her that the mother had asked her exactly what she had told police during the interview. The child also said she could not remember telling JCPRP that the father touched her vagina but later said she was sure she did.

20. In her statement to police the mother describes the daughter becoming increasingly distressed and fearful of the father. The mother told police that in late March 2020 the child approached her about attending upon their family doctor. Although not contained in her affidavit, the mother deposes in her police statement that “on and off for the last 12 months” the daughter had complained of vaginal soreness for which she has been treated by the family doctor in the past.

21. At the interim hearing the mother tendered an email sent from the family doctor to investigating police (Exh 3) which appears to attach an excerpt of the doctor’s clinical notes. These clinical notes record that on 9 April 2020 the daughter reported feeling “scared of [the father]” and “scared of [the father] coming to the house…don’t want him to hurt me [and] do any bad things to me”. The daughter also told the doctor that the father “was kissing me on the lips” and reported that she “[does not] want him to touch me on the bottom or vagina with his hands”.

22. It is apparent from the email and notes that the doctor arranged a urinary screen for sexually transmitted infections (“STI”s). According to the results of this screen (also included in the email), no evidence of STI was recovered but “mixed growth of bowel and/or perineal flora” was indicated. It was noted that while a predominant pathogen has not been identified, urinary tract infection (“UTI”) has not been excluded and a repeat collection of the daughter’s urine was recommended.

23. No other clinical notes of subsequent consultations with the family doctor are found in the email, or adduced in evidence, other than a further occasion in late May 2020 when the family doctor noted that the daughter reported amongst other things feeling “sad and angry”, and on which occasion the mother told the doctor that the daughter “wanted to cut her vagina”.

24. In addition to the disclosures the mother alleges the daughter has made to her, she also deposes that the father has displayed suspicious behaviours, including sexualised behaviours, towards the daughter since the child was young.

25. Under a heading titled “[The father]’s behaviours around [the daughter]”, the mother recounts in her affidavit various instances of the father’s alleged untoward behaviour, including that he:

    ·    always found ways to spend extra time with the child outside of normal activities;

    ·    described his time with the daughter as “daddy daughter dates” and on occasions the mother was not invited to these events;

    ·    took the daughter to the games room or her bedroom and closed the door while doing activities;  

    ·    treated the daughter more like a friend than a daughter;

    ·    walked around the house without underwear and caused the daughter, mother and maternal grandmother to feel uncomfortable when his genitals were exposed underneath his clothes;

    ·    gave money or gifts “outside of normal”, as well as flowers to the daughter;

    ·    remained around the children when attending a child’s birthday party, or if the daughter had her own birthday party; and

    ·    sat on the couch with the daughter covering the child and his hands with a blanket.

26. According to the mother’s affidavit she raised her concerns about the father closing the door when spending time with the daughter in the games room or her bedroom, and covering his hands with a blanket when on the couch with the daughter, but he dismissed and laughed at these concerns.

27. The father denies that he has behaved in an inappropriate manner on any occasion as alleged, and deposes that he only first became aware of the sexual abuse allegations when he received the mother’s affidavit of 25 February 2020.

28. The father specifically denies ever sexually assaulting the daughter and describes the allegation as “incomprehensible” and completely untrue. He also denies “keeping” the daughter in the bedroom or touching the child in any inappropriate manner. He denies kissing the child on the mouth or ever placing his hand in the child’s “bathers”.

29. According to the father’s affidavit the language used by the daughter when describing the father’s behaviour is not consistent with the child’s language. In particular, he claims he has never heard the child refer to her swimming costume as “bathers” and has always referred to it as her “cossie”.

30. The father deposes to considering the daughter to be his (biological) daughter and says that after the son was born he did on occasions take the daughter to activities which he occasionally described as “daddy-daughter dates” as a “fun expression”. He deposes that when playing with the daughter a door may have been “partially closed” on occasions shortly after the son was born as he was concerned about the mother and the son being able to rest and not being woken. He deposes that the daughter primarily slept with the maternal grandmother in her bedroom which he was not permitted to enter.

31. The father deposes that he did wear tracksuit pants after a shower without any underwear but did wear underwear as soon as the mother “told” him to. He denies that his genitals were ever visible.

32. The father also relies upon a witness statement provided by one of the mother’s friends to police apparently for the purposes of a potential criminal prosecution against the father in relation to the allegations of sexual abuse of the daughter. This statement is in an appropriate form for that purpose and includes a jurat. In that statement the witness, a friend of the parties, deposes to a telephone conversation and text message interchange between herself and the mother in February 2020 in which the mother told the witness that the father had touched [the daughter] on her private areas, that the child acquired an STD and UTI but HIV had been ruled out, and that the mother believed “[the results] means it wasn’t just hands that touched her”.

33. In the detailed Magellan Report provided by the Department, it is outlined that the Department received seven risk of harm reports in relation to the children between February and May 2020.

34. On 25 May 2020 at a meeting between officers of the Department, police and Health, which make up JCPRP, the Department made a decision that the allegations of sexual harm by the father were not substantiated and that a Departmental officer and police would speak with the mother about the outcome of the investigation.

35. When these officers met with the mother a few days later, the mother advised that the daughter cries, has nightmares, is anxious and says she wants to “cut her vagina off”. The mother also advised officers that the daughter had made an allegation that another child had put her fingers inside the daughter’s vagina three to four times.

36. In June 2020 the father was interviewed by officers from the Department for the first time about the reported allegations and denied any wrongdoing, consistent with his affidavit.

37. On 29 June 2020 the mother took the daughter to police for the purpose of a further interview. On this occasion the child was interviewed by a different detective at a separate unit within the police known as the Child Abuse Unit, specifically for the purposes of having a different interview approach and style taken by a different experienced investigator. In the course of that interview the daughter made various disclosures including the following:

    He [the father’s first name] touched my bum in a way that wasn’t right. That was in bed.

    He [the father’s first name] touched me inside my vagina in the pool.

    He let me watch a show mum didn’t want me to watch.

    He gave me a lot of junk food.

38. When questioned in relation to the two allegations of sexual abuse, the daughter was unable to provide any detail or context. In relation to the incident said to have occurred in the swimming pool, the child said that this had occurred the previous year in 2019 and stated at one stage that she was wearing a bikini and on another occasion recalled she was wearing a one piece swimming costume. The daughter was unable to provide any other details other than that she had been touched underneath her “bathers” on the inside “in my vagina” and that this lasted for about 30 seconds.

39. It is recorded in police records that towards the end of the interview the daughter stated “he touched me on the bum a lot of times” but then admitted to having told a lie and clarifying that the father only touched her once on the vagina and once on the bum. It was also considered by the police as noteworthy to record:

    Of interest were comments made by [the daughter] “I just hope he goes to gaol” and “my mum asked me if he put anything in my vagina and…I can’t remember”.

40. A few days later the Department determined that the daughter was “safe” in the mother’s care and that there was a “low level of future risk” for various reasons, including, curiously, that there was then no contact with the father. It was, however, reiterated that sexual abuse by the father had been assessed and not substantiated.

Discussion and assessment of risk of harm

1. As discussed earlier, in accordance with the authorities risk assessment comprises two elements, being a prediction of the likelihood of the occurrence of harmful events and a consideration of the severity of the impact caused by those events.

2. So far as the second of these elements is concerned, it is beyond dispute that childhood sexual abuse has an impact of the highest order upon a victim.

3. However, although it is neither permissible nor possible to make findings about the alleged events at an interim hearing, in “weigh[ing] the probabilities” or “predict[ing] the likelihood of the occurrence of harmful events” I assess the likelihood of sexual abuse occurring as extremely low for the following reasons.

1. First, the case rests entirely on complaints allegedly made to the mother and then later to police by the daughter aged seven. Although the solicitor for the mother sought to rely upon concerns that the child may have experienced an UTI at around the same time as she allegedly made the first complaint of improper touching by the father, as evidence supporting the likelihood of sexual abuse having occurred, there is no evidence to suggest that the presence of an UTI is probative of this matter.

2. Although it would appear from the email provided by the child’s general practitioner to the police that the daughter’s disclosures caused him to order a urine screen, his concern appears to relate more to the possible presence of an STI in the context of the child’s complaints. There is no evidence to suggest that the presence of a UTI is consistent with sexual abuse, nor is there any positive evidence that the child suffered from a UTI. In any event, the tenor of the daughter’s alleged disclosures on 9 February 2020, relate to events that are said to have occurred some time previously so the relevance of a UTI is difficult to understand.

3. So far as the daughter’s disclosures to her mother and subsequently to police are concerned, I attach weight to the following matters in assessing it as unlikely that a court will ultimately find that the father sexually abused the daughter on any occasion:

   ·    Significant inconsistencies between the mother’s affidavit and police records of the mother’s first account of the details of the daughter’s first disclosure. The police record of the mother’s first account of the daughter’s complaints is that the father took the child to bed and tickled her and there is no reference to a complaint of untoward touching. According to the mother’s affidavit the day before she first spoke to police the child’s disclosure that grounded the first police involvement was that the father touched and played with her bottom “in a way I knew was wrong” while kissing her on the mouth

   ·    The circumstances in which the first alleged disclosure by the daughter was made, including in particular the parent’s recent separation (for reasons unrelated to child sexual abuse) and the child’s seemingly spontaneous disclosure of events that made her feel uncomfortable at the age of three, approximately four years previously

   ·    The language used by the daughter at the time (which according to the father was inconsistent with her vocabulary and pattern of language at the time)

   ·    The daughter’s failure to make any disclosure about abusive or improper conduct by the father when first spoken to by police

   ·    The context in which the daughter first made the disclosures of sexually inappropriate conduct by the father to police. In particular this disclosure occurred within minutes of the police providing advice to the mother about the child’s lack of complaint, the mother’s version of the child’s complaint (which was consistent with her affidavit evidence) and police advice as to the strength of a disclosure required to prevent contact between the child and the father

   ·    The observations about the daughter’s demeanour when she made the first disclosure to police

   ·    The absence of any context provided by the child in relation to the allegations on each occasion she has been interviewed

   ·    The embellishment over time of the details of each event

   ·    Inconsistencies in the child’s reports of the events between the police interviews and the alleged disclosures to the mother such as the father putting his hands “in my bathers” and the subsequent complaint of touching “inside my vagina”

   ·     The daughter’s admission to police of having told a lie when she said the father “touched me on the bum a lot of times” which was subsequently retracted  

   ·    The statements by the daughter during her interview by JCPRP on 10 March 2020 that “I hardly remember it” followed by “I keep talking about it with mum and I remember it”

   ·    The daughter’s statement when interviewed in March 2020 about her initial discussion with police followed by a further interview a few minutes later at the police station that “mum said I had to tell them something or they can’t help”

   ·    The inconsistency between the child’s conversation with the school counsellor and the mother’s advice to JCPRP that the daughter disclosed to the school counsellor that the father “used to stick his fingers inside her vagina”  

   ·    The number of occasions on which the mother contacted police or the Department including after it had been assessed that the complaints were not substantiated and the impression gained by police that the mother was pressing the allegations for purposes connected with the proceedings

   ·    The fact that the JCPRP, made of officers with expertise in the forensic interviewing of children, did not substantiate the allegations

   ·    The mother’s false complaints to her friend about the child having contracted an STI from the father in the context of the police investigation

   ·    The fact that police arranged for an alternate experienced officer within the child abuse squad to interview the child again but the complaints remained unsubstantiated

   ·    The father’s denial of any untoward conduct

4. In circumstances where the only basis upon which it is contended that the father poses an unacceptable risk of harm arising from potential sexual abuse is that he has engaged in such conduct towards the daughter in the past, I consider it also highly unlikely that a court will find that he poses such a risk.

5. Although in her affidavit the mother also appears to contend that the father’s parenting capacity is seriously impaired or he poses an unacceptable risk of harm on the basis of misuse of alcohol and illicit substances, the hearing was conducted on the mother’s behalf only on the basis that the father poses an unacceptable risk of harm to the children arising from sexual abuse which cannot be mitigated.

The law & discussion

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[6].

   [6] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. Goode sets out a framework for the conduct of interim proceedings which involves identifying competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts. As discussed previously an assessment of the risks raised by the parties must also be made.

3. In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.

4. In Deiter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration. Although these proceedings were instituted many months ago very little progress was made prior to transfer to this court. A Family Report has recently been ordered though given the level of resources available it is not likely to be completed for many months. It is likely therefore that the interim parenting arrangement under consideration will be in place for a lengthy period of time before a final hearing can take place.

5. Pursuant to s65D(1), subject to certain sections which are not relevant here a court may make such parenting order as it thinks proper.

6. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

7. The Court must make such orders as are in the best interests of the child as a result of consideration of the matters set out in s 60CC.

The primary considerations: s 60CC(2)

1. The primary considerations, which are contained in s 60CC(2), are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.

3. Although the meaning of “meaningful relationship” is also not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[7] 

   [7] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].

4. It is not contended on behalf of the mother that the son will not benefit from having a meaningful relationship with the father, though I understand that this may be her case in relation to the daughter as she appears to attach weight to the fact that the father is not the daughter’s biological parent. I understand the mother contends that the need to protect both children from harm from being subjected to sexual abuse outweighs any benefit to the children of having a meaningful relationship with the father.

5. Although the need to protect children from harm of the type envisaged in this consideration is ordinarily a particularly weighty matter, for reasons given earlier I do not consider that it is likely that a court will find at final hearing that the father poses any unacceptable risk of harm to the children in this regard.

6. Both the father and the ICL consider that it is likely a court will find that at least the son will receive a benefit from having a meaningful relationship with both of his parents and for this reason promote orders that foster this child’s relationship with the father pending final hearing.

7. I am of the view that there is no reason to consider that the son will not receive a benefit from having a meaningful relationship with both parents. I am also of the view that if I were to make orders for the son to spend no time with the father and such an arrangement continues for the lengthy period of time that is likely to elapse prior to final hearing, it may be extremely difficult for that relationship to be rekindled.

8. It is not clear at this stage whether the father will be considered to be the daughter’s parent for the purposes of this consideration.

The additional considerations

1. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant.

Views expressed by the children and any factors relevant to weight to be given to those views

The nature of the relationship of the children with each of the child’s parents, and other persons

1. The views of the children have not yet been expressed in a manner to which the Court could attach weight such as in an assessment by a family consultant.

2. It can be assumed given the pattern of care of each child before and after separation that each has a close attachment relationship with the mother.

3. It would appear even on the mother’s evidence that the father was closely involved in caring for the daughter when the marriage was intact and, in my view, it is likely that they shared a close relationship. The current state of that relationship has not been assessed though it appears likely to be strained given the period of time in which the daughter has not seen the father and the nature of her ongoing complaints about his conduct, even if those complaints are found to have no foundation.

4. The father proposes an order that he and the daughter participate in family therapy and I accept the position of the ICL that some therapeutic support for that relationship is essential prior to that child recommencing time with the father. Despite having proposed such an order in very general terms this matter had not been well-explored by the father and there was no clear proposal for that therapy under consideration.

5. When the father last spent time with the son that child was only a few months old. In these circumstances it could not be assumed that any relationship between the two currently exists. For this reason, the ICL proposes and the father ultimately appears to have accepted that it would be appropriate for the relationship between the father and son to be rekindled in a supportive environment such as one in which that time is supervised.

Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, spend time with or communicate with the child

Extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the child

1. It would appear that when the relationship was intact both parents were involved in decision-making with respect to both children and that the father fulfilled his obligations to maintain both children and continued to fulfil these obligations following separation.

2. The father has also been diligent in seeking to spend time with and communicate with the children following separation.

Likely effect of any change in the child’s circumstances

Practical difficulty and expense of a child spending time with and communicating with a parent

1. As indicated earlier in these Reasons, the father’s position in relation to spending time with the daughter changed in the course of the interim hearing. Although he had originally proposed orders that would see both children spend time with him pending final hearing, on the first day fixed for the interim parenting application the father’s counsel indicated that the father only pressed for orders in relation to the son.

2. Upon resumption of the interim hearing the father proposed orders that would see him spend time with both children, albeit under different regimes. Each proposal would involve a significant change in each child’s circumstances as neither child has spent significant time with the father for about 12 months, and any time with him for around nine months.

3. Further, even if there is no basis for the daughter to hold a belief about the father’s past abuse of her, it must be considered that she may believe that the father has harmed her, or as discussed, it is likely that her relationship with him is significantly strained. In my view, in these circumstances the daughter may experience significant difficulties in immediately commencing to spend a block period of six hours with the father each alternate Saturday, even if that time is supervised especially if that time is to commence in the absence of any therapeutic support. 

4. As previously discussed, although the father also proposes an order that the parties and the daughter engage in family therapy and the ICL expressed the view that any time between the daughter and the father should not be considered without prior therapy, there is no concrete proposal in relation to that therapy.

5. Although the father proposes that various members of his family be appointed as supervisors of the daughter’s time with him it was ultimately conceded in an interchange with his counsel that there was no evidence relating to the suitability of the nominated people as supervisors and no evidence of the daughter’s familiarity with these proposed supervisors.

6. In all of the foregoing circumstances, I consider that the daughter may have great difficulty in adjusting to spending time with the father as he proposes.

7. In the course of the interim hearing, matters relating to the practical difficulty and expense of both children, or at least the son, spending time with the father arose.

8. Although the ICL proposes an order that the daughter spend no time with the father, the ICL’s proposal with respect to the son is that the parties do all acts and things to contact a nominated contact service for the purpose of intake and suitability so that supervised time occur between the son and the father at that service, which is proposed to occur for not less than two hours per fortnight.

9. As an alternative the ICL proposes that if the father were able to fund a private supervision service that he spend not less than three hours per fortnight with the son supervised by that service.

10. It became apparent in the course of the hearing that there is currently a waiting list of six to nine months at the proposed contact service, but that a suitable private supervision agency could facilitate the contact immediately, and the father indicated that he was prepared to fund such an agency.

Any other matter the Court thinks relevant

1. In considering the competing proposals for time with the father, regard must also be had to the mother’s apparent attitude towards facilitating the children’s relationship with the father and their time with him.

2. The father deposes that prior to the commencement of proceedings, he made various attempts to spend time with both children to no avail. The mother has denied the father access to the children since January 2020 and it is common ground between the parties that around the time the mother alleges the daughter made her initial disclosure of sexual abuse she sent the father messages in which she strongly communicated that he was “never seeing the daughter again since she is not his child” and that he is not permitted to be alone with the son “until [the son] is two years old”.    

3. The mother’s unwillingness to support the children’s relationship with the father is also apparent in her brief meeting with police on 11 February 2020. According to police records, in the course of the brief meeting between police, the mother and the daughter, the mother told police that she “did not want her ex-husband to have access to either child” and asked “how to stop him from seeing the children”.

4. It has been the father’s case up until the interim hearing that the mother has engaged in conduct to “alienate” him from the daughter and prevent him from having a relationship with the son “at all”. Since commencing proceedings the mother has sought orders that the father spend no time with the children.

5. By way of written submissions, the ICL noted that in circumstances where the mother does not support the children having a relationship with the father and the mother’s attitude towards the father is “poor”, any order providing that the daughter spend time with the father must consider the effect this may have on the daughter’s relationship with the mother and on the mother’s capacity to meet that child’s needs.

6. Given the daughter shares a close attachment relationship with the mother who has been the children’s primary caregiver at least since January 2020, and as the mother expresses extreme reluctance towards supporting this child’s relationship with the father, it is critical that orders contemplating that the daughter spend time with the father be supported by orders providing appropriate therapeutic support for this child and/or family therapy for each parent.

7. As discussed earlier, although the father proposes an order that the daughter and the parties engage in therapy he does not provide a clear proposal for such therapy to occur. In the absence of proper consideration of therapeutic services to be implemented for the daughter, orders cannot be made that she spend time with the father pending final hearing which in my view would otherwise be in her best interests.

8. So far as the son is concerned, the ICL is of the view that despite the mother’s unwillingness to support the son’s relationship with the father, much less his time with him, there is no benefit to completely excising the father’s time with this child. On this basis the ICL submitted that supervision by a professional organisation would be appropriate and “less likely to lead to further conflict” between the parents. While the ICL also raised concerns about the potential “negative effect” time between the father and the son may have on the daughter, the ICL was firm in her view that there is a benefit to the son having a meaningful relationship with his father.

1. Other than in relation to the concerns arising from the mother’s negative attitude towards the father spending time with the children, I am not in a position to meaningfully consider any of the matters each of the parents raise relating to the other parent’s capacity to provide for both children’s needs, and matters relating to the attitude to the children and responsibilities of parenthood demonstrated by the other parent. Such matters are the subject of considerable dispute which is unable to be resolved at this interim stage.

Conclusion

1. Section 61DA provides that when making a parenting order in relation to a child the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child in the family or family violence. Further, when making interim orders the presumption applies unless the court considers that it would not be appropriate.

2. The father does not propose any interim orders with respect to parental responsibility and the mother seeks to have sole parental responsibility of both children.

3. As I do not propose making any interim orders for the daughter to spend time with the father, I do not consider it appropriate for the presumption to apply with respect to that child. The father also proposes on a final basis that the mother have sole parental responsibility for the daughter.

4. Although I do not consider there are reasonable grounds to believe that the father has engaged in abuse of either child or family violence, I do not consider it appropriate at this stage to apply the presumption with respect to the son given that the parents currently have no capacity to equally exercise parental responsibility for this child. I also do not consider it to be in the son’s best interests for the mother to have sole parental responsibility given the risks alleged and having regard to the relevant best interest considerations as discussed.

5. In reaching a decision about the orders that are proper and in the children’s best interests, I balance the various matters to which I have referred.  For the reasons given I do not consider it likely that a court will find that the father poses an unacceptable risk of harm to the children on the basis that he may sexually abuse them or either one of them, and in my view there is a real risk that the relationship between the father and the children will be placed in jeopardy if orders are made as sought by the mother.

6. I also do not regard the father’s proposal as in the children’s best interests. Little is known about the current state of the relationship between the father and each of the children, and given the son’s age and limited experience of the father and the likely strained nature of the relationship between the father and daughter, each of the children will require some support in developing and/or restoring those relationships. As the father’s proposal in relation to therapy for the daughter and appropriate supervision for both children has not been properly put before the court and those proposals are either vague or not supported by any relevant evidence, I do not consider his proposal as being in the children’s best interests.

7. For this reason, I make orders largely consistent with the proposal of the ICL which I consider to be the minimum amount of time to foster the son’s relationship with the father. I do not propose making the order sought by the ICL that the daughter spend no time with the father as I do not consider such an order to be in that child’s best interests. I am of the view that it would be proper and in the daughter’s best interests for her to spend some time with the father but no proposal for this to occur, which also provides some support, was under consideration at the interim hearing.

8. Accordingly, the orders that I make are set out at the forefront of these Reasons.

I certify that the preceding one hundred and forty six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 7 September 2020.

Associate: 

Date:  7 September 2020