Mackillop & Jell
[2009] FamCA 191
•13 March 2009
FAMILY COURT OF AUSTRALIA
| MACKILLOP & JELL | [2009] FamCA 191 |
| FAMILY LAW – CHILDREN – MAGELLEN – Competing residence application – Magellan matter based on mother’s allegation that father had sexually abused the child – finding of no unacceptable risk – child 6 years old at time of decision and had not seen father for preceding 20 months– finding that mother would not permit child to have a meaningful relationship with the father – finding that mother’s behaviours to or affecting child around her allegation that child had been abused amounted to emotional abuse by mother of the child – residence reversed – child separated from younger sibling – father to have sole parental responsibility with mother to spend regular time with child |
| Family Law Act 1975 (Cth) ss 60B(1)(a)(b), 60B(2), 60B(1), 61(B), 60CC(2)(3))(4)(4A)), 61DA(1)(2)(3)(4)), 61DAC (2)(3)(a)(b), 62(B), 65DA(2), 65DAC(1)(2)(3), 68LA(2)(4)(5), 69ZN, 67ZN, 67ZX(1)(b) |
| McCoy & Wessex [2007] FamCA 489 |
| APPLICANT: | MS MACKILLOP |
| RESPONDENT: | MR JESS |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | DGC | 2934 | of | 2007 |
| DATE DELIVERED: | 13 MARCH 2009 |
| PLACE DELIVERED: | MELBOURNE |
| PLACE HEARD: | MELBOURNE |
| JUDGMENT OF: | BENNETT J |
| HEARING DATE: | 28-29 August; 1-3, 5 and 8-12 September; |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MS A CRANENBURGH |
| SOLICITOR FOR THE APPLICANT: | LEGAL HELP LAWYERS |
| COUNSEL FOR THE RESPONDENT: | MR G JACKSON |
| SOLICITOR FOR THE RESPONDENT: | LAMPE FAMILY LAWYERS |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | MS S DOWLER |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | SEPTIMUS JONES & LEE |
Orders
IT IS ORDERED:
That all previous parenting orders and injunctions herein be discharged save and except for the order that requests that Ms B, family consultant, explain the outcome of these proceedings to the child T born … July 2002, in terms that are likely to be understood by him.
The Father have sole parental responsibility for the child T born … July 2002.
The father provide the mother with not less than 30 days prior notice in writing of any decisions about major long term issues concerning the child.
The child live with the father.
The mother forthwith notify the father of the name and address of the school at which T is enrolled as a student.
The father collect the child from the Child Care Room this day.
The mother spend time with the child:
a.on Saturday 21 March 2009 from 12.00 noon to 5.00 p.m.;
b.from 10.00 a.m. to 5.00 p.m. on Saturday 28 March and Saturday 4 April 2009;
c.from 10.00 a.m. to 6.00 p.m. on Saturday 11 and 18 April 2009;
d.from 25 April 2009 until the commencement of the 2010 school year, during school terms, from 5.00 p.m. on Friday to 4.00 p.m. on Sunday;
e.from the commencement of the 2010 school year, each alternate weekend from 5.00 p.m. on Friday to 5.00 p.m. on Sunday or, if the Monday immediately following the weekend is a non-school day or public holiday, to 3.00 p.m. on Monday. That the alternate weekends recommence on the first weekend of each school term;
f.during school term holidays, from 12 noon on the first Saturday of the school term holiday to 12. noon on the second Sunday of the school term holiday;
g.during the long summer school vacation, for one half thereof on time and dates to be agreed between the parties and, in the absence of agreement, to be:-
A. in 2010 and each alternate year thereafter, from 12 noon on 30 December to 12 noon on 18 January notwithstanding that this period may be more or less than one half of the actual vacation;
B. in 2011 and each alternate year thereafter, from 12 noon on 5 January to 12 noon on 25 January notwithstanding that this period may be more or less than one half of the actual vacation;
e.to celebrate Christmas Day:-
i.From 3.30 pm on 25 December 2009 to 3.30 pm on 26 December 2009 and each alternate year thereafter;
ii.From 3.30 pm on 24 December 2010 to 3.30 pm on 25 December 2010 and each alternate year thereafter;
f.on such of:
i.… July (T’s birthday);
ii… August (O’s birthday);
iii.… September (the mother’s birthday);
when such date falls on a weekend or school holiday period when the child is not otherwise spending time with the mother, from 12.00 noon until 3.30 pm, in Melbourne.
g.if Mother’s Day falls on a weekend when the child is in the care of the father, from 5.00 pm the evening prior until 5.00 pm on Mother’s Day; and
h.as may otherwise be agreed between the parties from time to time.
That changeovers to facilitate time spent pursuant to this Order take place at Southern Cross train station in Spencer Street, Melbourne unless otherwise agreed in writing.
If the mother relocates her residence to Melbourne, the parties have liberty to apply for a variation of the time spent provisions of this Order, such application to be listed before me at first instance.
The mother communicate with the child by telephone:
a. Each Wednesday between 6.30 pm and 7.00 pm;
b. Between 6.30 pm and 7.00 pm :-
i.… July;
ii.… August; and
iii.… September;
should such dates fall on a day when the child is not otherwise spending time with the mother. For the purpose of telephone communication, the father provide the mother with the number of a telephone service and ensure that the child is available to speak to the mother at the appointed times, take all reasonable steps to ensure that the telephone line is kept free and available to take the mother’s call and if the telephone service is a mobile telephone, that the phone is charged and within mobile telephone service range.
When the child is spending time with the mother, the father communicate with the child by telephone:
a. Each Wednesday between 6.30 pm and 7.00 pm;
b.Between 6.30 pm and 7.00 pm on T’s birthday and on the birthdays of the father, and T’s relatives, V, R and C.
For the purpose of telephone communication, the mother provide the father with the number of a telephone service and ensure that the child is available to speak to the father at the appointed times, take all reasonable steps to ensure that the telephone line is kept free and available to take the father’s call and if the telephone service is a mobile telephone, that the phone is charged and within mobile telephone service range.
If Father’s Day falls on a weekend when the child is spending time with the mother, the mother’s time with the child be suspended from 9.00 am on Father’s Day.
The father keep the mother informed of the names, addresses and telephone numbers of any medical, dental or other health professionals attended by the child and is to do all such things and sign all such documents as are required to enable the mother to get information (at her expense) about the child’s welfare needs and any necessary treatment.
The father do all such things and sign all such documents as are necessary to enable the mother to receive school reports, newsletters and school photograph information (at her expense) and to ensure that she is at liberty to attend parent-teacher interviews and all school functions and events to which parents are usually invited.
That the mother and father, their servants and agents be and are hereby restrained from causing, permitting or suffering the child to undergo:
a.tattooing, piercing or otherwise making any such marks or alterations on or to any part of the child’s body or allowing anyone else to do so;
b.baptism in any religion –
without the prior written authority of the other parent.
That the Father immediately seek a referral from a medical practitioner for the child to be assessed by a psychologist or psychiatrist to determine whether the child should attend ongoing therapeutic counselling and in the event it is assessed to be appropriate ensure the child’s attendance upon the psychiatrist/ psychologist as directed by him/her.
That the father provide any psychiatrist/psychologist treating T with a copy of this Order, the reasons for judgment and a copy of the reports of:-
a.Dr K;
b.Dr E;
c.Ms B;
d.Ms F.
The mother be restrained from making appointments for the child and/or from causing permitting or suffering the child to attend upon any allied health professional other than any counsellor appointed for the child in accordance with these Orders or his current treating medical practitioner save and except in the case of medical emergency and then on notice being given to the father as soon as practicable.
Each parent immediately notify the other parent by way of phone call or SMS message in the event that the child suffers any serious injury, illness, accident requiring hospitalisation or medical treatment when the child is in his/her respective care.
That each party keep the other informed of;-
a. his or her residential address; and
b. his or her contact telephone number (s).
That each party be and is hereby restrained by himself, herself, their servants and agents from:
a.denigrating and/or insulting and/or criticising the other or members of the other’s family or friends in the presence and/or hearing of the said child;
b.discussing any allegations made against each party in this proceedings in the presence and/or hearing of the child save for the purpose of and under direction by a therapist, counsellor or medical practitioner.
That the independent children’s lawyer be discharged one month from this day or, in the event a Notice of Appeal is filed, upon determination of the appeal.
That pursuant to section 65L of the Family Law Act 1975, the Manager of Child Dispute Services for the Family Court of Australia at Melbourne, at the request of either party to the proceeding, nominate a family consultant (Ms B if possible) to supervise compliance by the parties with the parenting order made on 13 March 2009 (“the Order”) and to render to either party such assistance as is reasonably requested by him/her in relation to compliance with, and the carrying out of, the Order, such supervisory counselling to be a period of two years and to be reportable. However no report be prepared unless a further application in relation to the children is filed whilst this order remains in force, the court orders that a report be prepared or the family consultant of his / her own volition thinks a report should be prepared and:
a. If requested by a party the Consultant meet the parties separately;
b. If considered appropriate the consultant may meet with the child; and
c.If requested the Consultant advise the party of an appropriate agency from which to seek support for the child and himself/herself; and
d.The supervision be reportable in the event another application is filed and the judicial officer before whom it is listed requests a report.
That any party wanting to make an application for costs do so by application which specifies the amount and nature of the costs, such application to be filed and served by 10 April 2009 and a copy be forwarded to my associate by pre-paid post or electronic means on that day.
I DIRECT my associate to appoint a telephone mention for directions to be given for the filing of written submissions in respect of any application for costs.
That all outstanding Applications are otherwise dismissed.
That the proceedings be removed from the Active Pending Cases List.
That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
IT IS DIRECTED:
That all documents produced pursuant to subpoenae filed herein be returned forthwith to the party producing same.
IT IS CERTIFIED:
That pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel.
IT IS NOTED that publication of this judgment under the pseudonym Mackillop & Jell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGC 2934 OF 2007
| MS MACKILLOP |
Applicant
And
| MR JELL |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
Introduction
These proceedings concern the child T born in July 2002, which parent he will live with, what amount of time he should spend with the other parent and under what conditions. At the core of the competing parenting applications are various allegations made by the mother that the father has sexually abused T. The father denies any sexual impropriety and alleges that the mother has manufactured the allegations because she is unwilling or unable to permit T to have a meaningful relationship with him. The father alleges that the mother’s behaviour, including but not limited to moving to X in regional Victoria and not permitting the father to see T since July 2007, is psychologically and emotionally abusive of the child.
The father’s case[1] is that T’s best interests require that I make orders that T live with the father and, consequently, leave his school, mother and brother in X in regional Victoria and move to live with him in the eastern suburbs of Melbourne. He seeks that he have sole parental responsibility. He seeks that the mother’s time be supervised initially but then be unsupervised and overnight.
[1] The father’s proposal is set out in Exhibit “F8”
The mother’s case[2] is that any time that T spends with the father should be supervised. Supervision should occur either in a contact centre or by persons specified by her and should not start until T has been assessed by a psychologist or psychiatrist ‘who specialised in trauma caused by abuse and coping mechanisms’ as being ready to spend time with the father. If the specialist states that it is not in T’s best interests to spend time with the father, then the mother proposes that T not see the father ‘until such time as [T] is old enough to clearly express a wish to do so after the age of 13 years.’ If I am not satisfied as to unacceptable risk, the mother proposes that for the first two months, T spend supervised time with the father for two hours each fortnight and then there be unsupervised time on a gradual basis so that after five or so months, T can spend each alternate weekend with the father from 11.00 a.m. on Saturday to 4.00 p.m. on Sunday and one half of all school holidays.
[2] The mother’s proposal is set out in Exhibit “M23” being the first pages, paragraphs 1 to 8 inclusive
Pursuant to a request made by O’Dwyer FM on 20 August 2007, Ms Kate Mitchell, solicitor, was appointed as the independent children’s lawyer for T within the meaning of Division 10 of Part VII of the Act. Her role is to form an independent view, based on available evidence, of what is in T’s best interests and then act in these proceedings consistently with those interests.[3] Ms Mitchell is not a legal representative retained by T and she is not bound by any instructions from him[4]. In fact, as I understand the situation, Ms Mitchell has not met T. Given the high degree of T’s exposure to professionals (as will be apparent later in these reasons), this is one of the few cases where it is reasonable that the independent children’s lawyer did not meet the child. The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by T are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for T the trauma associated with proceedings[5] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[6]
[3] s 68LA(2) Family Law Act 1975 (Cth).
[4] s 68LA(4) Family Law Act 1975 (Cth).
[5] s 68LA(5)(d) Family Law Act 1975 (Cth).
[6] s 68LA(5)(e) Family Law Act 1975 (Cth).
The independent children’s lawyer concedes that T’s physical needs are met by the mother on a day to day basis but she supports the father’s case. The independent children’s lawyer contends that the mother’s attitude to T’s relationship with the father and the measures that the mother has taken thus far to remove the father from T’s life, represent enormous deficits in the mother’s capacity to care for T’s emotional and psychological needs. It is submitted on behalf of the independent children’s lawyer that, if T remains in the care of the mother, the court cannot have confidence that T will have any relationship with the father.
I requested that each party provide me with details of what orders they would seek in the event that I decided against them. I did so to enable them to have some input into orders I would make in those circumstances. However, I do not lose sight of their actual positions.
Legal principles in parenting matters
In determining the applications I must regard T’s best interests as the paramount consideration. The aims and object of the legislation are to ‘ensure that the best interests of the children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.’[7]
[7] s 60B(2) Family Law Act 1975 (Cth).
The objects are the core values of the legislation. Sub-section 60B(1)(a) of the Act has particular relevance in these proceedings. It emphasises that the involvement of both parents in the child’s life should be meaningful as to its quality and to the maximum regularity and frequency permitted by the child’s best interests. Sub-section 60B(1)(b) is also of prominent import and, in this case, it requires the assessment of risk to which T will be exposed as a consequence of the alleged behaviour of both parents. That is, the mother alleges that the father has sexually abused T and is likely to do so again whereas the father alleges that the mother would, if she could, sever any psychological relationship between T and the father to an emotionally abusive extent.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).[8]
[8] s 60B(2) Family Law Act 1975 (Cth).
In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration.
Determining the child’s best interests
In determining what is in T’s best interests, I am required to consider two primary considerations and several additional considerations listed in
s 60CC of the Act. The primary considerations are set out in s 60CC(2) and are described as follows:-
(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.
This is a case where both of the primary considerations are relevant. However, the issue of sexual abuse is of overwhelming importance and should be dealt with first. After doing so, I will make an assessment of what benefit there will be for T of having a meaningful relationship with both parents.
Protection from harm – as a primary consideration
S 60CC(2)(b) of the Act recognises the necessity of protecting children from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence.
The term, ‘abuse’ is narrowly defined in s 4 of the Act as ‘an assault, including a sexual assault, of the child’[9] or as the involvement of the child in a sexual activity by a person, where the child is used either directly or indirectly as a sexual object and where there is an unequal balance of power between the child and that person.[10].
[9] s 4(a) Family Law Act 1975 (Cth).
[10] s 4(b) Family Law Act 1975 (Cth).
There are numerous authorities in relation to the principles relevant to the determination of cases involving allegations of sexual abuse of a child. In McCoy & Wessex [2007] FamCA 489, Brown J framed the authorities as follows:-
[26]. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M v M (1988) 166 CLR 69. The High Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) made it clear that the ultimate and paramount issue to be decided in proceedings for what are now called parenting orders is whether the making of the orders sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation of sexual abuse by the parent who seeks time with a child or residence does not alter the paramount and ultimate issue which the court has to determine. The High Court found (at para 77) that although findings on the disputed allegation of sexual abuse will have an important, and sometimes a decisive, impact on the resolution of that issue,
…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318: McKee v McKee (1951) AC 352 at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447 at pp 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a context between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
[27]. In a joint judgment in B and B (1993) FLC 92-357 the Full Court (Fogarty, Baker and Purvis JJ) discussed the relevant principles having regard to the High Court’s decision in M v M and, at 79,778, said:
The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.[28]. In Re W (Sex abuse: standard of proof) (2004) FLC 93-192 the Full Court (Kay, Holden and O’Ryan JJ) examined the principles applicable in cases involving difficult questions of sexual abuse where the only witnesses to the alleged abuse are the alleged perpetrator and the alleged victim, noting the particular difficulties where the victim is young and does not give any direct testimony that can be the subject of forensic testing.
[29]. The Full Court considered the relevance of the decision in WK v SR (1997) FLC 92-787. In that case the trial judge had found that the father had sexually molested both his step-daughter and his own daughter. The Full Court said, at 84,691:
26. However, the evidence of ZH was in fact the core evidence relied upon by his Honour in order to substantiate the allegations of abuse against the father. Given the gravity of the allegations raised by the evidence, and the Court's duty to apply a rigorous civil standard of proof pursuant to the test enunciated by the High Court in Briginshaw (supra) and restated in s 140 of the Evidence Act 1995 (Cth), her evidence needed to be very carefully evaluated.
[…]
46.It is clear therefore, that a finding that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw. Section 140 of the Evidence Act 1995 (Cth) has adopted this test as follows:
'140 (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.'
47. In children's matters under Part VII of the Family Law Act, where the issue is a child's contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
48. This is a matter which must be specifically borne in mind by a Court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this Part, the Court's paramount consideration must be the best interests of the child, in accordance with s 65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Furthermore, when deciding what orders are in the best interests of a child, a trial Judge may often be confronted with a multiplicity of issues and facts. In these circumstances, evidence which, for example, is relevant and probative in relation to the question of an unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred.
[30]. The Full Court found that the trial judge had not paid attention to these views, and that unless the rigorous approach set out in WK v SR is taken, in circumstances where the often inevitable result of a positive finding of abuse is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and the child the “disastrous effects” of a positive finding that is reached in error. The Full Court found that the termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort, noting (at 79,217-8):
The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to remain conscious of this imperfection at all times.
[31]. The Full Court then referred with approval to the dissenting judgment of Kay J in K v B (1994) FLC 92-478 where his Honour said, at 80, 972:
In cases of alleged sexual abuse, there is a significant risk that the ultimate effect of orders to be made by the court, and of the proper operation of the legal system, will be overlooked in the court’s anxiety to ensure that the risks of sexual interference are minimised. Where the evidence of sexual abuse consists of ambiguous statements of a pre-kindergarten aged child coupled with perceived but possibly otherwise explicable behavioural changes, it is almost impossible for the party denying any impropriety to prove that party’s position.
In an article entitled 'Prediction, Prevention and Clinical Expertise in Child Custody Cases In Which Allegations of Child Sexual Abuse Have Been Made', appearing in Volume XXVI No 2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law), at p 170, it was observed:
'Unfortunately the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draw the clinician — and perhaps even judges and jurors as well,... away from what ought always to be the starting point of her or his evaluation enquiries, which is that the event did not (or very highly probably did not) occur. Because the null hypothesis (and, correlatively the absence of an event) cannot be proved, in their testimonies concerning possibilities of alleged events, clinicians strongly resist exonerating the targets of their evaluation. Because it is always possible that a given individual — even one randomly drawn from the general or a specific population — has sexually molested a child, an inconvertible proof that the individual has not molested a child is impossible.' (emphasis in original)
The article concerns itself with research carried out at the University of Michigan. Case notes concerning the possible sexual abuse of a three year old child were provided to 8 senior clinical psychologists, 23 graduate students undergoing clinical training in psychology and 50 members of staff of child guidance clinics including social workers, clinical psychologists and psychiatrists all specialising in child development in areas of child mental health. They were asked individually and then in groups to evaluate the probabilities that sexual abuse had occurred and then to recommend what if any ongoing child/father contact should take place.
The range of opinion on whether there had been abuse was so wide that the authors concluded as follows:
The most striking feature of these studies’ findings is the extremely large range across experienced and non-experienced clinicians of estimates concerning the likelihood that M was sexually abused by her father. When given all of the relevant facts of the case, child experts and trainees varied greatly in their individual judgment... These findings lend strong support for the view that individual experts can provide courts little if any assurance that they are able to provide even crudely reasonable (i.e. objective) estimates of likelihood that child sexual abuse has occurred or will occur, when they are confronted with the same set of ambiguities faced by the courts in these cases.
[32]. In Re W (Sex abuse: standard of proof) the Full Court concluded its analysis of the relevant legal principles by remarking, at 79,218:
The lessons to be learned have not changed. The risk that the Court will find heinous behaviour where none has occurred needs be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.
[33]. With respect to the Full Court, one might as well say that the harm and injustice that flows to a child from an erroneous negative finding is almost too horrible to contemplate, that harm including repeated sexual abuse of the child. Nevertheless, I am bound by the exposition of principle in the judgment.
[34]. In W v W (abuse allegations; unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) examined principles relevant to child sexual abuse cases with particular emphasis on what is meant by unacceptable risk, the potential cessation of a significant or meaningful parent/child relationship and the appropriateness or otherwise of supervised contact. As a starting point the Full Court referred to the significant detrimental harm to a child who is sexually abused, noting (at 79,906) the discussion by Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 where his Honour said, at 82,709:
The sexual abuse of a young child by a parent or care giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long term, can be devastating.
[35]. The Full Court also had regard to Fogarty J’s acknowledgement of the potential for false allegations. Referring to Thomas J’s judgment in S v S [1993] NZFLR 657, Fogarty J said (at 82,711):
Courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception or information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.
[36]. After considering a number of decisions in which the concept of unacceptable risk was considered, the Full Court in W and W (abuse allegations; unacceptable risk) concluded (at 79,910):
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognized the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial judge to assess future risks to a child.
[37]. The questions posed by Fogarty J are found at 82,714 in N v S and the Separate Representative, as follows:
In asking whether the facts of the case do establish an unacceptable risk a court will often be required to ask such questions as What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time have the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been proved? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
[38]. In two recent decisions the Full Court has again considered the law relating to findings as to the existence of an unacceptable risk of abuse. In Napier v. Hepburn [2006] FamCA 1316 the Full Court considered a father’s challenge to a decision of the trial judge allowing him only supervised contact to his six year old son. In allowing the appeal the Full Court (Bryant CJ, Kay and Warnick JJ) found that it was impossible to ascertain what it was that led the trial judge to the conclusion that unsupervised contact with the father would expose the child to an unacceptable risk of abuse. The trial judge had found that the father lacked candour in relation to evidence of his sexual practices before and during the parties’ relationship and found that where there was a conflict of evidence between the parties, unless specifically otherwise determined in his reasons, he preferred the evidence of the mother. The Full Court noted (at para.79) that the determination of the question of whether the child may have been abused required some assessment to be made of the father’s credit in relation to his strenuous denials that he had acted inappropriately with the child, and that even a finding that the allegations could not be rejected as groundless ought not lead inevitably to a finding of unacceptable risk.
[39]. The Full Court cited with approval (at para.56) another passage from the judgment of Fogarty J. in N v. S at 82,713 where his Honour said (emphasis added by the Full Court) :
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
[…]
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
[…]
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.
(Emphasis Added)
[40]. In Potter v Potter [2007] FamCA 350 the Full Court (Bryant CJ, Coleman and May JJ) referred to the quoted judgment in Napier v. Hepburn, and to a separate judgment by Warnick J. in that case, in which his Honour said, at para.114 :
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or court making decisions for a family) might subsequently explore options for change.
With respect, I agree with Brown J’s statement of law. I would add nothing. The principles discussed by Brown J are the principles that I will apply in my determination of this case.
Evidence
At the trial the applicant mother relied upon the following evidence:
·Her affidavit sworn 16 July 2007;
·Her affidavit sworn 30 January 2008;
·Her affidavit sworn 30 July 2008;
·Affidavit of the maternal grandmother sworn/affirmed 20 August 2008;
·Affidavit of Mr S (friend) sworn 19 August 2008. Paragraphs 3,4 and 7 were inadmissible and struck out;
·Affidavit of Ms P (friend) sworn 19 August 2008;
·Affidavit of Ms L (sexual assault counsellor/advocate) sworn 7 August 2008;
·Affidavit of Ms J (domestic violence social worker) sworn/affirmed 13 August 2007;
·Affidavit of Ms I (friend) sworn 21 July 2008;
·Affidavit of the mother’s father sworn 28 October 2008 including DVD recording;
·Affidavit of Mr U (Minister of Religion) sworn 24 October 2008;
·Affidavit of Ms W sworn 19 November 2008;
·Affidavit of Ms CS (friend) sworn 18 November 2008.
·Affidavit of Ms FN (friend) sworn 19 November 2008 of which paragraphs 2 to 9 were struck out because it was in parts irrelevant, opinion evidence and material sought to be filed which was clearly available at the commencement of the hearing. It was material that was not sufficiently probative of any issue in dispute to warrant the mother being cross examined six days after her evidence had been completed.
The mother’s Notice of Child Abuse or Family Violence was filed on 16 July 2007.
The witnesses Mr K, Ms P, Mr U, the maternal grandfather, Ms W and Ms CS were not required for cross examination. Their evidence was not challenged. I accept their evidence insofar as it is relevant and not expressions of opinion which they are not qualified to give. The balance of the mother’s witnesses were required for cross examination.
At the trial the respondent father relied upon the following evidence:
·His affidavit sworn 14 August 2008;
·His affidavit sworn 16 August 2007;
·Affidavit of R (father’s niece) sworn/affirmed 12 August 2008;
·Affidavit of C (father’s sister) sworn/affirmed 11 August 2008;
·Affidavit of the father’s mother and paternal grandmother of T sworn/ affirmed 16 January 2008;
·Affidavit of Mr PM (friend and former tenant) sworn/affirmed 11 August 2008;
·Affidavit of Mr GK (friend) sworn 12 August 2008.
All of the father’s witnesses were required for, and were, cross examined.
The independent children’s lawyer assumed responsibility for arranging the following persons to attend court to give evidence, as witnesses of the court:
·Ms B, family consultant, who prepared the s 62G family report dated 24 June 2008 and an updated report dated 19 November 2008;
·Mr KY, contact centre coordinator, who swore/affirmed an affidavit on 12 August 2008;
·Dr E, psychiatrist, who prepared a report of her assessment of the mother dated 3 October 2008 and a report of her assessment of the father dated 6 October 2008.
The parties agreed that the following documents were admissible as business records or without needing to be proved:
a)Department of Human Services report prepared on 27 November 2007[11];
b)Bundle of copy documents extracted from documents produced from various sources pursuant to subpoenae[12]. This bundle comprised 124 pages which were consecutively numbered[13];
c)Family report of Ms F, psychologist, dated 4 July 2005 and annexed to an affidavit sworn 18 July 2005 and filed in the earlier proceedings in the Federal Magistrates Court of Australia.
[11] Exhibit “C1”.
[12] Exhibit “C2”.
[13]Includes as pages 84 to 124 inclusive a bundle of documents produced by Y (a contact centre) which was Exhibit “ICL13”.
Finally, there were numerous other exhibits.
Comment on the conduct of the trial
This case was heard by me over 20 days between 28 August 2008 and 12 September 2008 and 24 November 2008 and 5 December 2008 (inclusive). It was mentioned again on 5 March 2009. Material which had been sent to the court by counsel for the mother without the prior consent of the other parties was admitted into evidence. All parties confirmed that they did not wish to be heard in relation to material sent to the court, with the consent of all other parties.
The proceedings were instituted on 16 July 2007 and thus were conducted having regard to the amendments to practice and procedure introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amendments”), the provisions of which came into operation on 1 July 2006. As such, I have regard to the stated principles contained in the amendments which include considering the impact of the proceedings on the child, ensuring that the proceedings are conducted in a way which will promote cooperative and child focussed parenting and proceeding without undue delay and with as little formality and legal technicality as possible.[14]
[14] s 69ZN Family Law Act 1975 (Cth).
The proceedings were heard in the judicially managed Magellan list which is dedicated to cases involving allegations of serious physical or sexual abuse of children. There was a high degree of cooperation between counsel in relation to the admission of evidence and order in which witnesses were called. It was an admirable and, in my view, entirely appropriate effort and in the best interests of T.
There were aspects of the manner in which the mother’s case was prepared by her solicitor and presented by counsel which had a significant impact on the length (and breadth) of the trial. The task at hand is too important for me to be distracted by criticisms of professional performance. However, I do record that the mother’s case was presented in an unusually digressive and scattergun manner. It was annoying as well as time wasting. It would have been intolerable were it not for the fact that I think that counsel tried as hard as she could and brought her best efforts to a difficult case. Preparation of affidavit evidence by and on behalf of the mother also left a lot to be desired.
In the circumstances, and largely because I was satisfied that it was in T’s best interests to do so, I was mindful not to place the parties under pressure of time. This matter was originally estimated to take between 5 and 10 days but took much longer. I was not prepared for relevant issues to go unexplored on account of timetabling. Because of the problems with the mother’s representation, it was necessary to take extra time to make sure that I understood the mother’s case and that all of the relevant evidence was before the Court.
To an observer in court I may have appeared as annoyed from time to time, particularly when counsel for the mother was addressing the court or interrupting inappropriately (as she did frequently). However, I was able to separate my annoyance at the manner in which the mother’s case was conducted from my assessment of the mother. I have, since the hearing, had an opportunity to reflect on the evidence and am satisfied that I have not been affected in my assessment of the evidence by the annoyance which I momentarily felt in court. The present case is, in every respect, determined on the evidence and not on the manner in which each parties’ case was conducted.
Credit & impression of witnesses
The mother is 32 years old having been born in country Victoria in September 1976. She is in good physical health. She is the mother of T and of O, who is three and a half years old and the child of her relationship with Mr FS. She is not employed outside the home and currently resides in Office of Housing accommodation in X at an address that she is not prepared to disclose to the father. She abided a direction that she disclose it to the Court.
Since leaving school at about Year 10 level the mother has been dependent upon various government pensions or benefits. The mother has no significant employment history.
In her early teens the mother commenced a relationship and then married when she was about 20 years of age. She and her husband separated some four years later. The mother lived with a girlfriend from church and then “shifted into the attic of [her] bank manager’s house who was also a friend”. Within a year of separating from her husband, the mother left the country and came to live in Melbourne. Where I can I will use the mother’s own words to describe her moves because that is how she gave her evidence and I suspect that if I paraphrase a good deal of the mother’s affect could be lost.
The mother described her move to Melbourne as motivated by “music/orphanages”. She wrote :-
My most passionate dream has always been to help people and make a positive difference in their lives. I have always wanted to care for children in orphanages, and help many other fundraising causes.
Reality has shown me, that to really help people you need money, to make a physical difference in their lives. I was already helping people emotionally, giving my time, support, energy, creativity, and most importantly love. But I wanted to do more. I am a very prolific songwriter, and write songs, poetry, kids books, scripts, for all occasions.
My goal was to have a song produced, books published, and with the money I would make I wanted to open an orphanage and work hands on with the children, and be involved with the hands on work with the other fundraising causes.[15]
[15] Exhibit “ICL4”, page 1.
Once in Melbourne she moved in with Mr SE, whom she described as a former policeman and family friend who ‘was quite financial’. Her notes record that Mr SE:
invited me to stay with him, he had given up the force to achieve a career in acting. Acting was also a strong passion of mine which I wanted to take classes in when I moved to Melbourne, he said that he would take me to his classes with him, look after me, show me around. He lived in a one bedroom unit so I did not have to pay any rent until I started working.
As to her capacity to support herself, she wrote:
I enquired in 3 clothes shops if there was any work going, all 3 said yes, they were drawn to [m]y bubbly personality and offered me a position, I chose one and started immediately. I was only there for one week, and I was offered numerous jobs in other businesses and retail outlets. My boss was fantastic and let me work the hours I wanted to give me the time to try and start my music and acting career.
However, the mother left her job after a week or two and had surgery on her nose. This is the only regular employment which the mother engaged in since arriving in Melbourne in 2001.
Whilst unemployed, the mother continued to live in Mr SE’s house. Her evidence was that Mr SE became obsessed and infatuated with her, asked her to marry him, sexually assaulted her on one occasion and openly resented her bringing male friends, including the singing teacher with whom she was having a relationship, into his house. Mr SE lived in a one bedroom apartment. His bedroom was upstairs. Mr SE was not called to give evidence. The mother’s version is uncontradicted. The mother resided with Mr SE without paying rent. The mother alleged that Mr SE approached her whilst she was asleep and recuperating from nose reconstruction surgery, lay on top of her and moved so as to simulate sexual intercourse. The mother said that Mr SE was remorseful afterwards and that her Christian values led her to forgive him and to continue to reside at his home although she would have preferred to move elsewhere. She wrote:
He said you are a good Christian girl, and Christians have to forgive and forget. He manipulated me with Christian jargon, as he had always did before. I have always been a person, who loves to give, but find it hard to receive. This man would use this against me. Saying [mother’s name] you are a hypocrite you always give to others however you don’t receive, he was saying this because he kept trying to buy me things but I would not accept the gifts. [16]
From the mother’s written account, I infer that Mr SE had given up his bed and bedroom to the mother so she could be close to the bathroom and that he was sleeping downstairs on the couch. The mother remained living at Mr SE’s house.
[16] Exhibit “ICL4” page 2.
The mother said that, independently of the assault, she was uncomfortable around Mr SE who had also tried to kiss her on one occasion. She referred to him as ‘dad’ in the hope that he would recognise the disparity in their ages, that she thought of him as a father figure and how inappropriate it was for him to regard her with romantic or sexual interest. I do not reject the mother’s evidence about Mr SE but I note that, in her recount, she portrays herself as virtuous to a fault and a subject of his obsession.
The mother moved out of Mr SE’s home to house sit for a friend of her cousin. That lasted a few weeks.
In March 2001, the mother answered an advertisement placed by the father for someone to share his rented house in the eastern suburbs. She said that the house did not suit her as it was not large enough for all of her furniture. In fact, she did not have the furniture in her possession but was assuming that she would retrieve it from her stepfather and she wanted an abode that was large enough to accommodate her furniture as well. She and the father kept in contact, went out together and discovered a strong mutual interest in music. They went on to compose and perform together. The mother commenced to sleep overnight at the father’s house, not with the father or involving sex, but as a place to stay.
From June 2001 the mother was a full time resident of the father’s house until she left and went to live in government housing two days before T was born.
A great deal of evidence was adduced about the nature of the relationship between the mother and father prior to T’s birth in July 2002. It is necessary for me to consider this evidence because it is part of the mother’s case that she was a victim of, and reacted in a certain way to, the father’s sexual abuse of her. Moreover, she can recognise similar defensive behaviours and reactions in T as a consequence of the father’s sexual abuse of him.
The mother’s evidence is that ‘[t]he days [she] spent in [the eastern suburbs] at the house of the applicant were the worst days of [her] life.’ The mother’s perspective is described in her affidavit sworn on 30 July 2008 as follows:-
3.The applicant father and I shared a house together for approximately one year. We came to an agreement that I would do household chores instead of paying rent. He persuaded me to do a business course at AMES instead of taking employment. When I could afford to contribute financially, I would. During this time I slept on a couch in the lounge room.
4.I could tell that the applicant father was attracted to me and he would make sexual advances towards me. I told him that I did not find him attractive in any way. He repeatedly told me that I was abnormal and that I had been brainwashed by Christianity. He told me that I could have sex for fun and that it was not just about marriage and procreation. He told me that everyone knew that when a single woman and a single man share a house together it is natural and normal for them to have sex.
5.The applicant father offered to pay for me to have counselling because I didn’t find him attractive and I didn’t want to have sex with him. He told me that every woman he had shared a house with, had had sex with him. The applicant did not like it when I would not let him kiss him or touch me.
6.I explained to him that I was not attracted to people who smoke drugs. I also told him that I was not physically attracted to him. I told him not to take any of this personally, but I think to some degree he did. We worked well together musically and composed some great songs.
7.He would tell me that all a man needs to feel loved and appreciated was sex. He told me that I was ungrateful and extremely naïve if I thought by giving him a hug or kiss on the cheek was enough for him to feel appreciated. He told me that I owed him because he gave me a roof over my head and helped me with my business course and drove me places. He told me that no guy would do all of this for nothing in return and without sex I would be thrown out on the street.
8.He would become quite angry during these conversations and I would be scared and the tension was like walking on egg shells. The applicant father would slam the door and storm out. I would get upset and tell him that I was leaving. He would then apologise for making me cry and tell me that is wasn’t his fault and explained that men get sexually frustrated and have urges that make them act this way.
9.He would ask me to forgive him stating that it was the right Christian thing to do. He gave me his word that this behaviour would not happen again and he would keep his sexual urges under control. He begged me to stay. [The father] is very believable and persuasive in his conduct, and the manner in which he presents his emotions appears genuine. I accepted his apology and forgave him.
10.I do admit that during this time of my life I was extremely naïve. I always believe the best in people and I am far too trusting and forgiving. I was brought up that you help people out of the goodness of your heart and you ask for nothing in return.
11.During the time I stayed in the applicant’s house I was continually looking for alternative accommodation. He asked me to stay but I did not feel comfortable. Soon afterwards he tried to have sex with me again. He reminded me of all that he had done for me and told me that I owed him as I had given him nothing in return. He was angry and I was crying and scared. I wanted to run away, but I couldn’t. This time I didn’t fight him, I just disassociated.
12.That applicant then had sex with me without my consent. It was the most horrific and humiliating experience of my life. The applicant told me that if I ever told anyone, he would deny it and say that it takes two to tango. He told me that no one would believe me. He told me that I was ungrateful and he did this because he loved me and he was helping me to become normal. He told me that he was older and wiser than me and that he had successfully scammed insurance companies and that he knew how the world worked.
The father does not agree with the mother’s version of events save that she made no direct financial contribution to household supplies. His evidence was he and the mother were in a relationship of sorts, including having sexual relations, until late 2004 by which time the father made it very clear to the mother that he would not countenance having another child with her. Whereas the mother says that they had sex on 6 occasions the father says that they had sex more than that. The mother’s evidence is that she “dissociated” during sex with the father and only subsequently became aware of what had transpired by experiencing flashbacks.
It is common ground that the father assisted the mother to retrieve her furniture from her mother (the maternal grandmother) and step father. She also confided in the father that her step father had acted in a sexually inappropriate manner toward her. I am satisfied that, in her oral evidence, the mother minimised the sexual impropriety of her step father.
In March 2002, the father and the mother wrote a long and considered letter to the mother’s mother and her husband admonishing them for their treatment of the mother.[17] I am satisfied that in doing so the father was trying to be supportive of the mother and to empower her. The father rented a truck and arranged for a friend to accompany him to collect the furniture. The collection did not eventuate but the father devoted time, effort and money to the attempt.
[17] Exhibit “ICL11”.
The father’s advocacy on behalf of the mother and his obvious compassion for her position (as is evident in the correspondence) does not sit comfortably with the mother’s portrayal of her relationship with the father.
Notwithstanding that the mother found sex with the father to be horrific, she remained in his house without paying rent. In notes which she provided at the trial, the mother explains her decision to remain living with the father after the first occasion of alleged non-consensual sex. She wrote:-
[The father] was very attracted to me, yet I did not feel the same way. Back then I was extremely nieve (sic), I thought he liked me because we wrote beautiful music together. I realise now that was only a part of it.
[The father] would get sexually frustrated, and make advances towards me. I was not interested in [the father] that way, I was not attracted to him at all. I thought [the father] was a nice guy in helping me to establish my self in Melbourne and towards my dream. And I enjoyed songwriting with him.
[…]
I felt like all my defence mechanisms were down. I kept thinking over and over in my head all the things [the father] was saying. And it was true, Yes [the father] did help me in my business course Yes he did drive me places Yes he did buy me a hair piece and a ticket to the Corrs concert for my birthday Yes he did give me a roof over my head, and I wouldn’t let him kiss me or have sex with me. And I could see how frustrated he was.
I went to leave, not knowing where to go, I felt like I had three choices. Back home, which was out of the question emotionally. Keep sleeping in my car, or on the street, or stay here with [the father]. All I could think about was helping children in orphanages, I felt if I returned home then all this would have been for nothing. Every-thing that I had given up in [the mother’s home town], and all the horrific experiences that have happened to me would have been for nothing.
I said to [the father] that I was leaving, he apologised to me and said he was frustrated. He said that most guys if they were honest would feel the same. He said that I was an attractive single woman, and he was a single male, and that it would be a great opportunity. He said that I was very nieve (sic). After knowing what had happened to me, he said he couldn’t allow me to go back, it would be destructive. He begged me to stay.
Soon afterwards he tried to have sex with me, he said he just needed to get his frustration out. Then he will feel better and wouldn’t be so moody. After thinking about all he said I felt I owed him, so I didn’t fight, I just went into my protection barrier and blanked out into another world. Like I did when I was five years old and started being sexually abused by the elder of our church. It was like I wasn’t even inside my body, which [the father] noticed, I didn’t kiss him, nor touch him I just layed (sic) there like a dead body, whilst he got his frustration out. I just focussed on seeing little innocent children being nurtured and cared for in an orphanage I had created. When [the father] had finished violating me, and I came to, I was upset of course but more so that he had used unprotected sex, and not pulled out. I knew I was pregnant instantly, I remember saying that to [the father]. He said Don’t be ridiculous not one can get pregnant 6 days after a period. And just laughed. I was so upset, I rushed straight to the bathroom to have a bath and I stayed in there for hours I felt so unclean. I was angry at God, because I had prayed so hard for a Christian family to take me in. I had prayed that god would rescue me, so I could help others.[18]
[18] Exhibit “ICL6”.
In oral evidence, the mother adopted the above description as being accurate.
The father’s evidence is that he had thought that, initially, he and the mother would make a good couple and he had aspirations of them being together. He was content for her to move into his house and to share it with him and, later, with him and Mr PM (a co-tenant whose involvement I will discuss later). However, by late 2001, the father wanted the mother to leave. He wrote a letter to the mother which is undated but was likely written in early October 2001.[19] The father’s own words are an accurate indicator of his personality in the witness box so I will set out a large part of the letter. The father acknowledged that the mother appeared ‘guilty, confused and sinful’ about having sex with him and he wrote :-
You are an enigma when it is so obvious that you desire and demonstrate physical contact (not just with me) and seemingly love the attention that this imparts to you. You would have to be extremely naïve to believe that physical demonstrations such as hugs and kisses, do not conjure up other “ideas”, especially in the opposite sex! […]
As friends, and with the confusion and distress you seemingly feel being close to me, we need to remedy the situation as soon as possible. Not only for your sake, but for mine as well…I need to move on as soon as possible and continue my search for what I need in my life. My needs and wants are fairly commonplace and I know they are not unrealistic. I want to love and be loved on many different levels…. I feel no confusion here. I know deep in my heart I will find these things and I know I deserve them. […]
Getting back to our situation…firstly, you know regardless of anything, I’m your friend and I’m not going to stop helping you or loving you. However, we do need to change our living situation as soon as possible. We need to set you up in the back room (not the lounge room please). Sell your car! $$ and find you a place to live. And also, eventually sort out some financials for the household (not urgent!). On a music/business level, we need to finish the recordings and do one or two gigs before the […] showcase at […] (this is very important).
Once again, I want to tell you that I would have loved to have gone to the top of the mountain with you and enjoyed the beautiful views from there.
I’ll try and be as cheerful as I can and continue to make you feel warm, comfortable and welcome.
[19] Exhibit “ICL8”.
Within a matter of days of the father telling the mother that she should find somewhere else to live, the mother told the father that she was pregnant. The mother’s evidence was that she found out that she was pregnant six and a half weeks into her term. The mother has no recollection of the doctor who diagnosed her pregnancy, save that it was a female practitioner whose rooms were somewhere in the eastern suburbs. The mother said that she could not find her way back and has no knowledge how records of the consultation could be obtained.
T was born, full term, in July 2002. Those dates translate to an unusually long gestation if the mother was six and a half weeks pregnant in October 2001 and T was born in July 2002. However, at the trial no party made an issue out of what appears to be a discrepancy in dates.
In the following extract the mother gives evidence about T’s conception, finding out she was pregnant and the father’s manipulation of her:-
MR JACKSON: So the first of the seven [occasions on which the mother and father had sex] is when you fell pregnant?---Yes. I remember that one.
And that would have been around - would it have been around November of 2001? You gave birth, did you not?---Can you please add up the date? I can't even think.
You gave birth in mid-July?---Yes. Can you add it up please because I just - I can't think.
Was it a full term pregnancy?---Yes.
So I put it to you, if you work backwards, it would have been around November of 2001?---Sorry, I can't think to add right now. So if that's what you've added, then I trust your accuracy.
What happened after that incident? What did you do?---When I found out I got pregnant, I took off for a while.
Where did you go?---I may have went to [X].
No. Where did you go?---I can't remember right now.
How long were you away for?---I can't remember what places I went to and what dates.
How long were you away for?---I don't even remember that right now either.
Why did you come back?---Because I was being manipulated.
Did the father know where you were?---I don't remember. I remember that when we had conversations about it and I wanted to go away and I wanted to be somewhere away from him, after I got pregnant.
You went away, didn't you? You went away, didn't you?---But I went somewhere to clear my head.
Did you clear your head?---I didn't know what to do.
HER HONOUR: Where did you go?---I must have went to some friends' house somewhere.
Which friends did you have?---I've got friends in [regional Victoria].
I want you to remember - try to remember as hard as you possibly can where you went when you left [the eastern suburbs] shortly after discovering you were pregnant?---I think I was in [X].
Staying with whom?---Probably [Ms P].
Is there some explanation as to why you wouldn't have remember that?
---Because that part of my time in my life is extremely traumatic and I like to push everything of that out of my head.
I take it, Mr Jackson, you'll go on as to why it was extremely traumatic and how she was being manipulated.
MR JACKSON: You heard her Honour: how were you being manipulated?
---Because [the father] would say that if I moved away - because I was going to go somewhere where I had support - and if I went away he would not see the child and, for me, even though how I got pregnant - why does my son deserve to not be around his dad, and I never wanted anyone to know how I got pregnant. He said if I moved away then he wouldn't drive to see the baby and then if I was to move back to Melbourne I would not be welcome in his house, and he would say things to me like, you know, "Well, if I'm partying out the back who knows who is going to wander into the baby's crib," and he said he would take me to court and make me express milk and I was just scared of leaving the baby in that house after I'd known what had happened to me, too, and I wanted to be there to protect my child.
HER HONOUR: This is when you were less than three months' pregnant? Did he manipulate you after you left?---Because with all of these things, if I was stay away and I didn't come back to his house, then that's what he was going to do, and I believed him.
No, but these are things he said to you before you left, and you left anyway?
---No, when I went, I went to clear my head first because when I found out I was pregnant I just didn't know what to do. I couldn't tell anybody. I am a [Church figure’s] daughter. How do you explain to people that you're pregnant and you're not even married? I couldn't talk to anyone. I didn't want anybody to know how I got pregnant.
I am satisfied that the mother gave the above evidence in a purposefully vague way because she was unable to provide an honest explanation of the circumstances in which T was conceived or in which she decided to remain living with the father. I do not accept that the mother was fearful for the welfare of her child once born in the manner that she claimed. I am satisfied that the mother’s answers were designed to portray herself as an innocent country girl who was the victim of non-consensual sex at the hands of the father (when that was not the case).
The mother’s alleged embarrassment about being an unwed mother does not sit comfortably with how she subsequently ordered her life. There is evidence, which I accept, of her having discussed with a friend of the father, Mr GK, in or around November 2004, whether he would father a child with her as the father had refused to have another child with her. The mother was not embarrassed at that point.
The mother’s alleged embarrassment also does not sit comfortably with her planned pregnancy to her current partner, Mr FS, early in their relationship, which resulted in O’s birth in August 2006. Not only was the mother not married to Mr FS when she became pregnant to him but she has never lived with him. The pregnancy was also against the advice of a witness who the mother describes as a close friend, Ms I. Ms I was cross examined and referred to ‘quite a lengthy discussion’ which she had with the mother about the mother having unprotected sex with Mr FS. [20] She counselled the mother that the consequences of unprotected sex included pregnancy and told the mother ‘that it was very dangerous’ and to wait until she and Mr FS were married or residing in a de facto relationship. Ms I commented that her observation of the mother was that there was ‘no element of planning’ in the mother’s life and that she seemed, at least in 2005, to be ‘just enjoying herself and not thinking’. I am not critical of the mother for having a child without having the base of a settled domestic relationship involving both parents. However, I regard the mother’s behaviour as significant because it does not sit comfortably with the image that she seeks to portray about her pregnancy of T, that is, that she was a Church figure’s daughter, fallen from grace, silenced by shame and embarrassment, praying that ‘a good Christian family will take [her] in’.
[20] Ms I was cross-examined on 11 September 2008.
I do not accept the mother’s evidence that she could not confide her pregnancy to anyone because she was embarrassed about being an unwed expectant mother. The mother’s responses, quite early in the trial, were an attempt by her to avoid answering simple questions. It was a set of sensibilities that, having regard to other evidence (including her own), I am satisfied the mother did not possess. The reference to herself as a ‘Church figure’s daughter’ was an attempt by the mother to cast herself in a virtuous light and to avoid responsibility for her actions and omissions.
A recurrent assertion by the mother was that she ‘disassociated’ when having non-consensual sex with the father. The mother’s evidence in this regard is significant because the mother testified that sexual intercourse with the father was so humiliating and horrible that the only way she could tolerate it was to ‘disassociate’. It is common ground that the mother was sexually abused when she was a child by the deacon or other authority figure in the church attended by her family. The mother gave evidence that she disassociated when she was sexually abused as a young child. As indicated, she also gave evidence that she observed T to disassociate when recalling (or failing to recall) details of his father’s alleged sexual abuse of him. It is not uncommon that a non-expert witness uses a technical term, such as ‘dissociation’, inaccurately or in an inappropriate context. In the present case, I was not concerned about whether the mother used the term appropriately but, rather, what the mother actually meant by the term.
On the second day of the trial, I asked the mother to describe for me what happened when she ‘disassociated’. The questions and her evidence was as follows[21]:-
[21] Transcript from Friday 29 August 2008, page 17, line 30 to page 21, line 15.
MR JACKSON: […]Where did you learn the word "disassociated"?---I learnt that through my counsellor, and he told me - - -
Is that the way you cope with stress, is it? You disassociate - - -?---He told me that - I didn't even know what disassociated meant. Well, I'd never used that term before.
What does it mean?---And he told me that what disassociation means - this is the example that he gave me - to imagine if you're like an animal in the jungle or whatever, and a lion is about it and as a coping mechanism for the animal, so it doesn't feel the pain when it's about to get eaten, it disassociates. So it goes out of its body so that it doesn't feel that pain and that's how I had that explained to me.
So you preferred to disassociate, after each of these conversations, rather than move out - - -
HER HONOUR: Sorry, I'm not satisfied - you have the ability to leave your body?---It's like while there's something that's horrible that happens to you, it's like you're not - how do I explain it? People would say like you go to a happy place, or you go somewhere else. It's like you're not feeling that, if something bad is happening to you. You don't - yes, it's like you're not feeling that. You're not - - -
And you can do that?---Sorry?
And you can do that?---Well, your body - if there's something that - - -
Can you do that - you?---Yes. I have used that when things have happened with me, with [the father]. That is what my body does because it is horrible, it is horrific what this man did to me and how he did.
Right, so can you tell me what actually happens?---After he had said all of the things - - -
No, just tell me what happens when you disassociate?---I just - after I kept saying no, that I didn't want to do that, and then when he started to do that - - -
And disassociate is something you've done a number of times, isn't it?---I've done that with what's happened to me in the house with [the father].
Only then - is that right?---I did that then, and I did that when I was a child.
Okay, so tell me what actually happens?---It's like when somebody is violating you - meaning [the father] - - -
No, I’m not asking you to objectify it. I'm not asking you to describe someone else. I'm asking you to describe what happens to you. I want to know what faculties you're left with when you are disassociated?---It's like you're in another place and because what's happening to you, you don't want that to happen, you don't - it's very hard to explain.
Try doing it by not saying "you" - say "I". Is it your body goes into another place or some other part of your being and, if so, what part?---It's really hard to describe, sorry. I'll just to try and think of how I can explain it. I'm not sure if it's your soul - - -
No, remember, don't use "your" because then you stop thinking about yourself?---Sorry.
Use "I"?---Can I try and use an example that might relate to - - -
I want you to describe something that has happened to you?---All right.
Therefore, I don't know why you would need to analogise or use an example. Can't you just describe it?---No, because it's hard to say.
Well, you've said it a lot. It's a word that figures very significantly in your evidence, so I'd like to know if you know what it means and, if not, what it means to you?---I do, it's just very hard to describe it.
I need to know what it means to you?---To me it's like - the only way I can say it is like I am not there. My body is there but my being is not there. Does that make any sense?
Right, so where is your being?---In a happier place.
And is the happier place always the same place?---Sometimes, I just - I don't know. I don't know how to explain it. It's like you get blank.
How is that happy?---Well, it's not really happy. I'm just explaining that it's like sometimes I would just try and think that it's somewhere else, like as a happy place or sometimes I ‑ ‑ ‑
How many times has this happened like you have some times to - how many times have you got to choose from?---It's like sometimes you come back in. It's like - it's very hard to explain.
Ms [Mackillop], how many times do you think in your life you have disassociated?---Okay. I can remember at least seven with [the father].
Right?---And I remember when I was a little girl doing that.
And on what occasions did you do it when you were a little girl?---I did that when I was being sexually abused by the elder of the church.
That's only three occasions that you can remember, isn't it?---Yes. But I do remember doing that.
A little girl of eight. All right. Now, the seven times that you say that this occurred when you were with the father?---Yes.
Was the happy place a happy place or was the happy place a blank place?---It's like a blank place but sometimes you - if you sort of come to, then you go back to - you either try and get your - it's hard. I don't know how to describe it.
Then I find it unusual that you used the term if you don't know what it means?
---I just don't know how to explain it.
Do you have any recollection of what occurs to you - what is occurring during the time of your disassociation?---Not - only if you come to.
So do you say, "No, I don't have any recollection except if I come to"?---And then when you have flashbacks. Like I could have ‑ ‑ ‑
So when you come to, is this being then - re-entering your body?---Yes.
Okay. Do you actually have a picture of re-entering your body or is it just something that you feel?---Sorry, I'm just trying to go back so I can think. It's like when it's happened and I push it out of my head, it disappears and it goes out.
What are you talking about?---And then I get a flashback ‑ ‑ ‑
What's happening to you or ‑ ‑ ‑?--- - - - and it brings it back.
- - - your being? What are you talking about?---Sorry. I don't know how to describe - this is really hard for me. It's like I could pretend that that just didn't happen. It could happen to me and it's like it's gone out of my head and then later on I could get a flashback or I could smell something or [the father] might go to do that again and it flicks it back into my memory, and then if it's too painful I push it out again.
Well, have you got any sense of the being, which is in a happier or blank place, returning to your body?---Usually when I could come back it hasn't happened. So I could be sitting there like it hasn't happened.
So you wouldn't remember what had happened?---I might remember half an hour later. I might remember an hour later.
So when your body was experiencing these things your being wasn't?---Sort of, but then the effect of it has on your being later because you remember it.
So you remember it subsequently by random thought or association with smell?---Yes, it can be anything.
Would another word for "being" accurately be "consciousness"?---So, what do you mean? You being conscious while ‑ ‑ ‑
No, you've said, "My being isn't there." Well, is your being the equivalent of your consciousness?---Oh, right - could be.
Does your being or consciousness go off and do anything else at the time?---It's hard to remember because I just go blank.
Okay, so no. It's not as if it's occupied. It's either in a happy, like a - I think it's - "happy place, happy like a blank place, just doing nothing"?---Yes.
Do you have a picture in your mind of anything re-entering your body? Does your consciousness or being have a capacity to see your physical body when it's no longer in it?---I don't remember but I do remember sometimes when I've had a flashback, I could be looking at other things in the room.
Okay. Yes, thanks Mr Jackson.
Separating T from the mother and O may be disruptive and sad for T but his move must be viewed in the context of the mother’s actions vis-à-vis the allegations of sexual abuse and moving to regional Victoria and preventing any contact between father and son, as being detrimental to T’s relationship with the father and damaging to T’s welfare in general. Moreover, the mother’s actions have, in my assessment, amounted to emotional abuse of T. It is an environment from which T must be removed. Removing T from the mother’s environment carries with it many positives not otherwise available to him, such as a meaningful relationship with the father and being able to experience the warm and loving environment of the father’s home and family. I am satisfied that the positive consequences of T moving to live with the father outweigh the negative consequences.
I have considered the proposal of the father and the independent children’s lawyer that the mother’s time with T ought to be supervised for at least the next two months. I understand that the purpose of supervision is to ensure T’s emotional and physical safety which includes preventing the mother from exposing T to her harmful and baseless belief that the father has sexually abused him. I accept that it is contrary to T’s best interests for the mother to raise the sexual abuse allegations with him and I will make orders that restrain the mother from speaking to T about the sexual abuse allegations. In terms of supervision, however, Y Centre in Melbourne has already refused to accommodate the family for the purpose of the father spending time with T. I have no evidence that it will accommodate the family so as to enable the mother to spend time with T. I am concerned not to make orders which cannot be implemented in a timely manner and which would result in T not seeing the mother or O at all. It seems to me to be in T’s best interests for me to strike a balance which allows him to spend time with the mother and O, providing that he can establish himself in the father’s household and not be exposed to the mother’s beliefs that the father has sexually abused him. It follows, therefore, that if I limit the time spent initially to allow T to put down roots in the father’s home and the mother does not raise the sexual abuse allegations or engage in other conduct which is delusional or likely to undermine T’s relationship with the father, T’s time with the mother does not need to be supervised.
If the mother persists with exposing T to her belief that the father has abused him, future time between the mother and the child will be in jeopardy. I sincerely hope that the mother can put the allegations behind her or subjugate them to her affections for and desire to spend time with T. If she cannot do so, it is most likely that the father will return the matter to court seeking to discharge the orders entitling the mother to spend any time with T and he may well succeed. In my assessment, the benefits which will accrue to T from an ongoing and meaningful relationship with the mother do not warrant T having to accommodate the mother’s distorted reality or exposure to her belief that the father has sexually abused him.
In all respects, it is important that T establish himself in the father’s household as soon as possible. Optimally, T should spend time with the mother and O each week. I have considered the mother’s proposal that the weekly time extend for a whole weekend but I am satisfied that is too long. The visits for the next month or so should be day time visits only. The purpose of these will be for T to see that his mother and brother are fine. It is also necessary to provide the mother with an opportunity to adjust to the extent of her new role in T’s life and to permit the father to grow (as quickly as possible) into his new role as the primary caregiver.
In the immediate term, I intend that T will leave Court with the father today, which is Friday, and spend the weekend and all of next week in the father’s uninterrupted care. During that time the father will have the opportunity to take T back to his school in X to farewell his friends and teachers. It is important for T to farewell his first school in some formal sense. It is also important that T do so with the father because that may give T a sense of the father’s new role which includes being responsible for his education and school life. In the coming weeks, the father will also have the opportunity to introduce T to his new school. It will be a matter entirely within the discretion of the father as to how frequently T goes to school before the forthcoming holidays but, I hope, that he will heed the advice of the school principal or teacher as to how T can be best orientated.
Practical difficulties and expense associated with contact[135]
[135] s 60CC(3)(e) Family Law Act 1975 (Cth).
I consider the practical difficulty and expense of T spending time with and communicating with the parent with whom he will not be living and whether this will affect his right to maintain personal relations and direct contact with both parents on a regular basis.
I am satisfied that T’s best interests require that he no longer reside primarily with the mother and I will make orders to that effect.
The mother occupies government assisted housing in X in regional Victoria. I heard evidence from a housing officer which leads me to conclude that it will be very difficult, if not impossible, for the mother to obtain equivalent housing in Melbourne in the short term if she can at all. She may have to consider private rental which, the mother gave evidence, she could not afford without getting a job. Accordingly, I assume that each period of time the mother spends with T will involve travel between X and Melbourne at least until the mother can obtain accommodation in Melbourne. If the mother is able to avail herself of a Melbourne base, such as the home of Mr FS’s parents, to spend time with T, that would lessen the travelling for T but still require the mother to travel.
I will make orders which provide that T see the mother for day time period for the next month or so. It seems that these would only be practicable if the mother remains in Melbourne for the day. However, it will be a matter for the mother as to how T’s time with her and O will be most enjoyable for T.
I did not receive evidence of the financial implications to the parents of the change in T’s residence arrangements in relation to government pensions and entitlements. I am satisfied, however, that each will have only a very modest income after payments of their fixed expenses and that the cost of travel will be a notable expense. The mother contemplates the changeovers being effected at Southern Cross Railway station. The father made no submission to the contrary. Train travel is likely to be much more pleasant for T than travelling by car. For a start, the mother will be able to pay much more attention to him than if she were driving. I will adopt the mother’s suggestion.
The distance between X and Melbourne is such that I am confident that T will be able to maintain direct contact with the mother and with O.
Capacity of the parents to meet the children’s needs[136]
[136] s 60CC(3)(f) Family Law Act 1975 (Cth).
In determining what is in the best interests of the children, I need to consider the capacity of the parent or of any other person to provide for the needs of the children, including emotional and intellectual needs.
I am satisfied that both parents have the capacity to provide for T’s physical and material needs.
I am satisfied that the father can provide for T’s emotional and intellectual needs.
I am far from satisfied about the mother’s capacity to provide adequately for T’s emotional needs. The mother’s conduct over the last 18 months has been emotionally abusive of T. For whatever reason, she has blown out of all proportion a remark which T made in the bath on 30 June 2007, uprooted him from his home in Melbourne, stopped all contact and communication with the father and exposed him time and time again to counsellors, police and DHS workers for the purpose of having him make statements in support of her allegations. I am satisfied that she consciously or unconsciously encouraged T to believe that he has been abused by the father (when he has not) and to continue to hold onto that false belief as if, and until, he believes it to be true. This is an enormous deficit in the mother’s parenting capacity and one which requires that T’s residence be changed as soon as possible.
I have not made a finding about the mother’s motivations. That is, whether her disregard of T’s fundamental entitlement to have the father participate in his life has been malicious or part of a delusional or over valued belief on her part. In my assessment of the mother’s parenting capacity, it does not matter why the mother has acted as she has because the mother’s actions impact on T the same way regardless of cause or motivation. The mother has not displayed any insight which is consistent with her considering that she may benefit from psychological or psychiatric intervention so it is irrelevant for me to postulate that her conduct might be modified by treatment in the future.
I find that the mother does not have the capacity to provide for T’s emotional needs to the extent which would be necessary for me to permit T to remain living primarily with the mother. I also have to consider the extent to which the mother has the capacity to act appropriately when she spends time with T. The family consultant’s recommendation at trial was that T’s time with the mother be supervised. Under cross examinations, that was altered to supervised initially and then unsupervised. Finally, Ms B reconsidered the need for supervision at all.
It would be most harmful for the mother to continue to expose T to the consequences of her apparent belief that he has been sexually abused. If she permits or encourages T to believe that he has been sexually abused, the effect on his self esteem, confidence and sense of himself will be jeopardised. If the mother is going to be able to see T regularly and frequently it will only be on the basis that he is unaffected by the previous allegations and the mother does not look to establish any allegations in the future. I do not consider that initial supervision of the mother’s time with T will safeguard T from the emotionally detrimental effects of the mother not keeping in check her beliefs. If the mother cannot contain her beliefs and insulate T from them, then I question the benefit to T of spending time with the mother at all or at least until such time as he is very firmly positioned in the father’s household. T would have to be so sufficiently secure in the father’s household that he would be able to withstand the contradictory and undermining messages and beliefs that his mother could, if worse comes to worse, expose him to.
I will make orders which provide for T to spend time with the mother immediately and on an unsupervised basis. However, if it transpires that the mother cannot contain her beliefs and she exposes T to the adverse effects of her belief that he has been or is being or will be abused by the father, I am confident that the matter should and would return to court for immediate review and consideration of whether T should spend any time with the mother whatsoever.
The mother seeks a non-denigration order. I am satisfied that it is in T’s best interests to make an order generally in those terms, and I will do so.
Finally, the mother seeks an order about medical care for T, which would require both parents to advise the other of names, addresses and telephone numbers of medical, dental or other health professionals attended by T as well as of any medical emergency or serious illness affecting T. I do not consider that it is in T’s best interests for there to be parallel sets of health professionals. The orders I will make provide that T lives predominantly with the father and, as such, it is appropriate that the father manage T’s day to day health needs and requirements. It is also important to limit the opportunities for the mother to involve T in any assessment or counselling process, otherwise than with the father’s consent, which are directed at her beliefs that T has been sexually abused.
The children’s maturity, sex, background and other characteristics[137]
[137] s 60CC(3)(g) Family Law Act 1975 (Cth).
I consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of T and his parents.
My understanding is that both parties accept that T will mix and have the benefit of each parent’s extended family and lifestyle as and when he is in his/her care.
The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents[138]
[138] s 60CC(3)(i) Family Law Act 1975 (Cth).
I must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil his/her responsibilities as a parent. This factor includes the extent to which each parent has taken or failed to take the opportunity to spend time[139] with and communicate with[140] the child and to participate in major long term issues concerning child.[141] It includes the extent to which the parent has fulfilled or failed to fulfil his/her obligations to support the child financially[142] or otherwise maintain the child. It also includes the extent to which each parent has facilitated, failed to facilitate or frustrated the other parent’s participation in the long term welfare,[143] communication with[144] or time spent with the child.[145]
[139] s 60CC(4)(a)(ii) Family Law Act 1975 (Cth).
[140] s 60CC(4)(a)(iii) Family Law Act 1975 (Cth).
[141] s 60CC(4)(a)(i) Family Law Act 1975 (Cth).
[142] s 60CC(4)(c) Family Law Act 1975 (Cth).
[143] s 60CC(4)(b)(i) Family Law Act 1975 (Cth).
[144] s 60CC(4)(b)(ii) Family Law Act 1975 (Cth).
[145] s 60CC(4)(b)(ii) Family Law Act 1975 (Cth).
I am required to have particular regard to events which have happened, and circumstances which have existed, since the parties separated.[146] For reasons which I have already expressed, including in relation to my consideration of section 60CC(3)(c), I am critical of the mother’s behaviour since separation and, in particular, her undermining of the relationship between T and the father and her attempts to frustrate the father’s participation in T’s long term welfare as well as spending time or communicating with T. Even on the 18th day of the trial the mother maintained an objection to the father being told of the name of the school where T is enrolled as a Prep student.
[146] s 60CC(4A) Family Law Act 1975 (Cth).
There was some criticism of the father’s failure to pay adequate or reasonable child support for T. He has paid in accordance with administrative assessments of child support but he conceded that he should have paid more. I conclude that the father allowed his resentment of the mother’s failure to contribute financially to their joint household prior to T’s birth to overshadow his separate and independent responsibility to contribute to T’s support by way of periodic payments which could be used for his day to day welfare. I recognise that the father did purchase items for T, such as nappies, and did purchase a modest car for the mother for her own transport.
Any family violence involving the children or any member of the children’s family and family violence orders[147]
[147] ss 60CC(3)(j) and (k) Family Law Act (Cth).
This is not a relevant consideration.
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[148]
[148] s 60CC(3)(l) Family Law Act (Cth).
Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes.
Ideally courts should make parenting orders that minimise the prospects of future litigation. Litigation is costly in emotional and financial terms and may have the effect of standing in the way of parties parenting children effectively. Parents and children are readily distracted by litigation.
Parents are at liberty to modify court orders by subsequently entering into parenting plans, which have the effect of varying existing orders.
It is preferable that final orders be made in this case.
I am satisfied, however, that this is a case in which an order should be made under section 65L of the Act. The father and independent children’s lawyer seek such an order and the mother does not oppose it. A family consultant will be available for a period of two years to assist the parties by discussion with each or both of them about the implementation of the final orders in these proceedings. The facility will not be activated unless one or other of the parties contacts the Child Dispute Services Section of this Registry of the Court.
The family consultant’s intervention will be reportable (ie. not privileged) but no report will be prepared unless the court orders it be prepared or the family consultant is of the view that a report would assist the parties or the Court.
Which family consultant will take on this role is a matter within the discretion of the Manager of the Section. However, Ms B is not excluded and would bring valuable insights and knowledge to the role. The supervising family consultant can be a valuable resource for the parents. It is my hope that the supervising family consultant would be approached by one or both of the parties prior to either instituting further proceedings for parenting orders, at least for the next two years.
Finally, and apropos of Ms B’s involvement, I will direct that the final orders be explained to T by Ms B immediately. I raised this with the practitioners for the parties on 5 March 2008 and none opposed that course of action.
Any other fact or circumstance the Court thinks relevant[149]
[149] s 60CC(3)(m) Family Law Act (Cth).
I have regard to the objects and principles set out in section 60B.
The mother seeks a mutual restriction on either parent permitting anyone to drink alcohol to excess, use illicit substances or smoke tobacco or any other substance in the presence of T. The father does not oppose that restriction but I do not accept that there is any evidence, which I accept, which indicates that either parent permits such conduct to take place or that T is at risk of such conduct taking place. Specifically I do not accept the mother’s evidence about partying and drug taking and abuse of alcohol at the father’s home or that T’s aunt smokes inside the house or in T’s presence. In the absence of being satisfied that there is a risk, I will not make those injunctions.
Parental responsibility
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[150] In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility.[151] Parental responsibility relates to decision making about ‘major long term issues’, which is defined in section 4 of the Act as follows:-
…… issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
[150] s 61B Family Law Act 1975 (Cth).
[151] s 61DA(1) Family Law Act 1975 (Cth).
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[152] The concept of joint responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[153] and to ‘make a genuine effort to come to a joint decision about that issue’.[154] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared.
[152] s 65DAC(2) Family Law Act 1975 (Cth).
[153] s 65DAC(3)(a) Family Law Act 1975 (Cth).
[154] s 65DAC(3)(b) Family Law Act 1975 (Cth).
The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[155] or abuse of the child or another child who is a member of the parent’s family;[156]
b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[157] or;
c)Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[158]
[155] s 61DA(2)(b) Family Law Act 1975 (Cth).
[156] s 61DA(2)(a) Family Law Act 1975 (Cth).
[157] s 61DA(3) Family Law Act 1975 (Cth).
[158] s 61DA(4) Family Law Act 1975 (Cth).
In this case, I am satisfied that the mother’s conduct has been harmful to T to the point of constituting emotional abuse. Therefore, the presumption of joint parental responsibility is rebutted pursuant to section 61DA(2)(b). By the same token, it would be rebutted in accordance with section 61DA(4) as I am satisfied that it would not be in T’s best interests for the father to have to consult and negotiate with the mother in the sense that shared equal parental responsibility requires. I have seen enough of the parties’ correspondence and messaging to conclude that they cannot communicate effectively. Moreover, to require the father to consult with the mother may paralyse his ability to make and implement necessary decisions in relation to T. That said, the mother seeks a mutual restriction on tattooing or body piercing for T and from permitting T to be baptized without the prior written consent of the other party. The father does not oppose those restrictions. I will make orders to that effect.
The mother also seeks an express authority to T’s school for the dissemination of reports, school information and order forms for school photographs as well as for each parent to notify the other of any medical emergency or serious illness affecting T. The father did not oppose orders in those terms. I am satisfied that it is appropriate to make the orders sought because not only do they regulate the conduct of the parties but they can assist and guide interested third persons such as schools and health professionals to share information about T with both parents.
Consideration of equal time or substantial and significant time with both parents
By virtue of having previously determined that it is not in T’s best interests for the parties to have equal shared parental responsibility, it is not necessary for me to consider whether I should make an order providing for T to spend equal or substantial and significant time with each of the parents. Nonetheless, the mother has suggested that I consider shared care in the event that there is no unacceptable risk and she can relocate to Melbourne. I am satisfied that an order for shared care is not in T’s best interests. The mother’s parenting is flawed particularly with regard to the huge deficits which I have found exist in her capacity to provide for T’s emotional needs. I am satisfied that T’s best interests require that he reside predominantly and securely in the father’s household.
At the moment, the mother lives in regional Victoria and the father lives in Melbourne. Shared care is not feasible given the distance between their respective homes. The practical considerations associated with the mother spending more time with T will obviously change if the mother is able to relocate to Melbourne. However, the other impediments which I perceive exist to the mother spending more than regular weekend and holiday times with T will not change unless the mother is able to set aside her preoccupation with T having been abused by the father.
Conclusion
I am satisfied that the mother is not able to offer T the environment that he needs and deserves, whereas I am satisfied that it is well within the father’s abilities to do so.
I have not taken T from the mother’s care and placed him primarily with the father because the mother preformed poorly as a witness, lied in her case or made allegations that I do not ultimately accept.
The mother has lost residence of T because I am satisfied that she will not permit T to have a meaningful relationship with the father (when it is in T’s best interests to do so), and that since July 2007 she has maintained and invested in allegations against the father of sexual abuse of T with consequences which have been contrary to T’s best interests and constituted emotional abuse of him.
I am satisfied that the parenting orders are consistent with T’s best interests.
Costs
I will provide for any party wishing to make an application for costs, to do so by written submissions.
I certify that the preceding three hundred and eighty three (383) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 13 March 2009
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Appeal
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Costs
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Damages
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Duty of Care
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Injunction
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Judicial Review
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