Madden and Callanan
[2016] FCCA 59
•22 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MADDEN & CALLANAN | [2016] FCCA 59 |
| Catchwords: FAMILY LAW – Interim parenting – where children manifesting serious sexualised behaviours – where disclosures made – whether unacceptable risk of harm or abuse in spending time with the father – transfer to Family Court of Australia at Sydney. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60D, 61DA, 64(1), 65DAA,69ZT(3), 69ZV, 100A |
| A v A (1976) VR 298 B & B (1986) FLC 91-758 B & B: Family Law Reform Act 1995(1997) FLC 92-755 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown and Pedersen (1992) FLC 92-271 Goode & Goode (2006) FLC 93-286 Leveque v Leveque (1983) 54 BCLR 164 M & M (1988) 166 CLR 69 M & M (1987) FLC 91-830 McKee v McKee (1951) AC 352 MRR v GR [2010] HCA 4 N & S & the Separate Representative(1996) FLC 92-655 re G. (a minor) (1987) 1 WLR 1461 Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768 Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318 S v S [1993] NZFLR 657 TF and JF and Children’s Representative [2005] FamCA 394 V & V[2004] FamCA 1081 Vasser & Taylor-Black [2007] FamCA 547 W and W (abuse allegations: unacceptable risk) [2005] FamCA 892 WK v SR (1997) FLC 92-787 |
| Applicant: | MS MADDEN |
| Respondent: | MR CALLANAN |
| File Number: | WOC 1081 of 2015 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 8 December 2015 |
| Date of Last Submission: | 8 December 2015 |
| Delivered at: | Wollongong |
| Delivered on: | 22 January 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Doosey |
| Solicitors for the Applicant: | Rossi Simicic Lawyers |
| Counsel for the Respondent: | Ms Gillies |
| Solicitors for the Respondent: | T H Walker Solicitors |
| Solicitors for the Independent Children's Lawyer: | DGB Lawyers |
ORDERS
The parents shall have equal shared parental responsibility for the children X, born (omitted) 2008 and Y, born (omitted) 2010 (hereafter referred to as "the children").
The children shall live with the mother.
The children shall spend the following time with the father:
(a)From 8.00 am each Monday until the commencement of school on Wednesday or 9.00 am for Y or until 9.00 am on any day when the child X is not required to attend school;
(b)On the children's birthdays, as agreed between the parents, but failing agreement between the parents as follows:
(i)From the conclusion of school until 5.30 pm on 13 July 2016; and
(ii)From 10.00 am until 2.00 pm on 28 August 2016.
(c)From 2.00 pm on 25 December until 10.00 am on 26 December 2015.
(d)Such additional time as may be agreed between the parents from time to time.
Unless otherwise agreed between the parents changeover of the children for the purposes of Order 3 is to occur with the father collecting the children from the mother's residence at the commencement of the father's time with the children and with the mother collecting the children from the father's residence at the conclusion of the father's time with the children.
The children shall communicate with the father by Skype or telephone between 4.30pm and 5.00pm on each Thursday and Saturday with the father to initiate the communication and the mother to ensure that the children are available to communicate with the father.
Each parent shall assist the children to have telephone or other communication with the other parent at any time the children request to communicate with the other parent.
Each parent shall be restrained from making arrangements for the children to attend upon any health professional or therapist, including but not limited to, any general practitioner, counsellor, psychologist or psychiatrist, without the written consent of the other parent unless:
(a)the attendance is in accordance with a direction or recommendation made by Family and Community Services or NSW Police;
(b)the attendance is in accordance with the direction of recommendation made by Family and Community Services or NSW Police.
Each parent shall be restrained from recording any conversations with the children which relate to matters raised as issues in these Court proceedings.
Each party shall be restrained from discussing any matters relating to these Court proceedings with the children and from showing the children any documents relating to these Court proceedings.
The Independent Children's Lawyer shall be hereby authorised to make enquiries with Family and Community Services and NSW Police for the purpose of obtaining information concerning any reports, notifications, and/or investigations involving the children.
The Independent Children's Lawyer shall be hereby authorised to make enquiries with X’s school and Y's school for the purpose of obtaining information concerning the children.
The mother shall not relocate the children to live more than twenty (20) kilometres away from the mother's current residence in (omitted) unless agreed to between the parents in writing.
Each parent shall forthwith enrol in and complete a parenting after separation program coordinated by Relationships Australia or such other parenting after separation program as may be agreed upon by the parents and the Independent Children's Lawyer.
That the parties be restrained from bringing the children into contact with the paternal grandfather namely Mr G and the paternal uncle namely Mr D.
The proceedings are transferred to the Family Court of Australia at Sydney to be listed for directions before a Registrar on 24 March 2016 at 9:30am, with a recommendation that the matter go into the (omitted) Program list.
IT IS NOTED that publication of this judgment under the pseudonym Madden & Callanan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 1081 of 2015
| MS MADDEN |
Applicant
And
| MR CALLANAN |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children X, born (omitted) 2008, 7 years old and her brother Y, born (omitted) 2010, 5 years old. These reasons for judgment explain the interim Orders that the Court has made in relation to them. The Applicant is the children’s mother. She is 41 years old. The Respondent is their father. He is 44 years old. It is common ground that both children have displayed very worrying sexualised behaviours. The issue that the Court has to decide is whether the children should spend time and communicate with their father, and if so, on what basis.
Background
The parents started living together in 2001 and married in 2004. They separated in 2013. It is common ground that the parents were able to parent cooperatively until early 2015. It was not uncommon, for example, for the children to spend time with their father for a minimum of two days and two nights each week, as well as additional time in the school holidays. The Father is a (occupation omitted), but even with his difficult working hours the parents still managed to implement a quite workable parenting arrangement. The Mother describes herself as a (occupation omitted), but is currently unemployed.
The only significant Orders in place are Consent Orders entered into on 10 November 2015, that provide for the children to live with their mother, and communicate with their father by Skype. The children were ordered to recommence school, following a period when the Mother had taken them out of school. The parents agreed that the children would not be permitted to come into contact with the paternal grandfather, or paternal uncle. A number of other restrictions were agreed to.
The matter came before the Court as an interim application on 8 December 2015. The issues raised were complex. Judgment was reserved.
The Mother’s proposal as at the interim hearing was that the children live with her and have no time or communication with their father. As an alternative, the Mother proposed that the children spend supervised time with their father at Catholic Care Children's Contact Service (omitted), or through a supervised private contact service. She also sought an order for sole parental responsibility to make arrangements for counselling or therapy in relation to the children. The precise Orders sought by the Mother at the interim hearing are reproduced in the first schedule to these reasons.
The Father’s proposal was set out in the interim Orders sought in his Response filed 3 December 2015. In effect, he proposed that whilst the children continued to live with the Mother, they nonetheless spend time with him from 9:00am on Sunday morning until 9:00am on Thursday morning each week, together with special days. The Orders sought by him are also reproduced in the first schedule to these reasons.
The children were represented by Ms Longbottom, the Independent Children’s Lawyer. Her proposal was that whilst the children continue to live with the Mother, that they spend time with the father from 8:00am each Monday until the commencement of school on Wednesday, together with special days. She also proposed a number of other specific Orders. The precise Orders sought are reproduced in the first schedule to these reasons.
At the interim hearing, Ms Doosey of Counsel appeared for the Mother, Ms Gilles of Counsel for the Father, and Ms Longbottom appeared as Independent Children’s Lawyer. It was common ground that the issue for the Court was whether there was an unacceptable risk of abuse if the children were to spend time with their father. If not, the issue became which order for them to spend time and communicate with their father, would be in their best interests.
The evidence
The evidence led in the Mother’s case included:
·Initiating Application, filed 2 November 2015;
·Notice of Risk filed 2 November 2015;
·Affidavit of Ms Madden, affirmed 30 October 2015;
·Affidavit of Ms Madden, affirmed 2 December 2015;
·Affidavit of Ms K, affirmed 5 November 2015; and
·Affidavit of Ms A, affirmed 6 November 2015.
The evidence led in the Father’s case included:
·Response, filed 3 December 2015;
·Affidavit of Mr Callanan, sworn 3 December 2015;
·Affidavit of Mr D, sworn 9 November 2015;
·Affidavit of Mr G, sworn 9 November 2015; and
·Affidavit of Ms S, sworn 9 November 2015.
In the Independent Children’s Lawyers case, the evidence consisted of documents produced by the Department of Family and Community Services, Dr C, and Ms C, clinical psychologist.
During the interim hearing, the Court actually heard the recording that is referred to in the Mother’s Affidavit of 2 December 2015, a transcript of which purports to be set out in the said Affidavit.
The applicable law
The relevant legislation in parenting proceedings is the Family Law Act 1975 (hereafter referred to as ‘the Act’).
A comprehensive statement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] FamCA 892, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what is the relevant law:
92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
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.”
95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“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 of 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.”
96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But 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 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 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 C.L.R. 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 contest 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.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, 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. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours 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.’ (at page 77,081)
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.
...
It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”
99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the 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 are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future 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.”
106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“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.”
107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:
“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
111. 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 recognised 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.
(b) The contact issue
112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.
In WK v SR (1997) FLC 92-787, the Full Court emphasised the standard of proof that applies in these cases at para.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 s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, in referring to WK v SR the Full Court observed at paras.18-19:
18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in
WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. 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 be remain conscious of this imperfection at all times.
In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at paras.38-39:
38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."
39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.
Another important statement from this Full Court decision is found in paragraph 45. It is important because it is in the interests of the administration of justice, and more importantly in the interests of the children involved in these cases, that sensible concessions be made so that both interim and final hearings can focus on real issues.
45. The concession by counsel in final address that the evidence would properly lead the trial Judge to conclude the much lower barrier of "unacceptable risk" had been reached could not be seen as some sort of admission of guilt by the husband and those appearing for him. It was no more than an acceptance of the forensic reality. The child had made damning disclosures. The father had denied them. All the Court needed to be satisfied of was whether an order for contact "would expose the child to an unacceptable risk of sexual abuse". An acceptance of the husband's unshaken denials would leave the child's disclosures unexplained. An acceptance of the disclosures as proof that the father behaved with gross impropriety towards G would mean a total rejection of the denials. In our view an acceptance by counsel that the likely outcome lay somewhere in between was not surprising nor could it be seen as an admission of guilt.
It is frequently the case that allegations of sexual abuse are raised in interim proceedings. Wherever possible it is important for the evidence of the protagonists, usually but not always parents, to be tested by cross-examination in some limited fashion. This enables the Court to form an impression, albeit only an impression, about the veracity of the claims made and of the character of the parents. Notwithstanding this, a Court should be wary about making findings of credit after only an abbreviated hearing.
Often it will not be possible to test the evidence in interim proceedings. The Full Court decision in Goode & Goode (2006) FLC 93-286 continues to apply in these cases. The Full Court in Vasser & Taylor-Black [2007] FamCA 547 made these comments, at paragraph 52 of its judgment, about allegations of abuse in interim proceedings:
At paragraph 5 of her written submissions counsel for the independent children’s lawyer, having earlier referred to the test set out in M and M (supra) namely, “the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse”, submitted:
When allegations of abuse arise in interim proceedings, the court must weigh the competing risks of abuse, including the risk of interrupting or severing a relationship between a child and a parent. In order to weigh the competing risks, the court should analyse what the risk is. To simply state that there is a risk of psychological abuse is not providing an analysis of the risk to the child, nor does it assist in determining what, if any, safeguards could be put in place to ameliorate the risk. (paragraph 5).
It should also be remembered that Division 12A of Part VII of the Act applies as much to proceedings involving these serious allegations as it does to other child-related proceedings. In each case, consideration needs to be given as to whether s.69ZT(3) should be invoked, thus reinstating the application of certain provisions of the Evidence Act 1995, in whole or in part, as regards an issue in the proceedings. The Court needs to give consideration to this, whether or not it is raised by the parties, but the Court also needs to have regard to the need to protect the child from harm, as well as protect the rights of those against whom serious allegations are directed. The Court must also not lose sight of the fact that even though s.100A of the Act has been repealed thus potentially excluding evidence of disclosures made by children if s.69ZT(3) is invoked, s.69ZV seems to be intended to, in effect, reinstate s.100A.
In addition to the above considerations regarding risk of harm, the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of 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.
(2) The principles underlying these objects are that (except when it is or would be contrary to a 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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court 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.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Chronology of relevant facts and assertions
The utility of a detailed chronology in cases involving allegations of unacceptable risk of abuse has been demonstrated time and time again. In this matter both the Independent Children’s Lawyer and Counsel for the father provided the Court with very useful and comprehensive chronology. The two versions of the chronology are not quite identical. The chronology that is set out below was that prepared by the Independent Children’s Lawyer. The Court is satisfied that it is a faithful and accurate attempt to summarise assertions made in the affidavits chronologically.
The added benefit of the Independent Children’s Lawyer’s chronology is that it also attempts that exercise in relation to relevant documents that have been produced on subpoena, and which have become exhibits before the Court. The chronology is lengthy, but critically important to the decision that the Court has made in this case. The Court wishes to emphasise that it has independently reviewed the evidence filed by both parents and the documents produced on subpoena, and is satisfied that the chronology more than adequately summarises the evidence:
| Date | Event | Source |
| (omitted) 1971 | Mr Callanan is born, (occupation omitted), 44 years of age. | |
| (omitted) 1974 | Ms Madden is born, (occupation omitted) presently unemployed, 41 years of age. | |
| (omitted) 2001 | Parties commence living together. | Initiating Application |
| 2002 | Father says that the mother attends upon a psychiatrist at (omitted). Father says that the mother is diagnosed with depression and put on antidepressants. Father says that the mother stops taking the prescribed medication after a few weeks because she did not like the idea of being on the medication. Father also says that the mother did not return to the psychiatrist. | F1, paras 20-21 |
| Late 2002 | Father says that the mother discloses to him that she was sexually abused as a child. | F1, para 17 |
| (omitted) 2004 | Parties marry. | |
| 2007 or 2008 | The mother commences a (omitted) course and (omitted) course. | F1, para 30 |
| (omitted) 2008 | X is born, 7 years of age. | |
| 2010 | X commences attending at (omitted) Playgroup in (omitted). | F1, para 61 |
| (omitted) 2010 | Y is born, 5 years of age. | |
| 2013 | X is five and the father says that the mother approaches him with the proposal that X attend at the (omitted) School in (omitted). | F1, para 62 |
| March 2013 | Parties separate. | Initiating Application |
| April 2013 (date of separation) - end of March 2015 | Father says that the children spend time with him on Monday and Tuesday nights. | F1, para 97 |
| July 2013-February/March 2015 | Informal arrangement is in place whereby the children spend time with the father on days that he is not working, Mondays and Tuesdays, and are in the mother's care for the rest of the time. | M1, para 12 |
| September 2013 | Father says that the mother says to him, "Mum is sending money to (country omitted) to the priest in order to pray that I die." | |
| 1 April 2014 | Date parties separated according to the father. Father says that the mother continues to live in the former matrimonial home and the father moves into his parents' house a few streets away from the matrimonial home. | F1, para 13 F1, para 65 |
| May 2014 | Mother moves out of the former matrimonial home. | F1, para 67 |
| November 2014 | Father says that he discusses the parenting arrangements with the mother and proposes that he spends an additional night with the children so that he spends time with the children three nights per week. Father says that the mother indicated that she was agreeable to the proposal. | F1, para 72 |
| 11 November 2014 | Mother files Application for Divorce which states at item 29, "Increase stay with father to three days three nights in the future." | F1, para 73, Annexure A |
| January 2015 | Father says that the mother is involved in a car accident. Father says that he agreed to take the children for as long as the mother wanted so that she had time to recover but that the mother wanted him to return the children to her after a few days. | F1, para 76 |
| February 2015 | Mother starts to observe sexualised behaviours in the children. | M1, para 15 |
| February/March 2015 | Mother says that the children start to express significantly greater signs of moodiness, anger, irritability, crying, clinginess, body aches, stomach aches, defiant, non-cooperative and aggressive behaviours from this time. Mother says that the child Y is bed wetting and X has said that she wets her pants. | M1, para 19 |
| 20 February 2015 | Date of Divorce Order. | |
| 1 March 2015 | Father says that the mother e-mails him on or about 1 March 2015 wishing to plan parenting for the 2015 Easter school holidays. | F1, para 79 |
| 20 March 2015 | An incident occurs at (omitted) School involving X. The mother says that the full details of the incident are not properly disclosed. As a result the parents decide to withdraw X from the school. | M1, paras 27-30 |
| 20 March 2015 | Incident at (omitted) School involving X. | F1, paras 81-87 |
| 25 March 2015 | Mother withdraws X from the (omitted) School. | F1, para 89 |
| 30/31 March 2015 | Father says that the mother requests that X sleep at her home instead of at his house due to the incident at the (omitted) School. | F1, para 97 |
| April 2015 (??) | Mother attends at (omitted) Police Station to ask for support regarding the situation. | M1, para 53 |
| 3 April 2015 | Father and his mother collect the children and they travel to Melbourne. The children stay with the father until 9 April 2015. | F1, para 100 |
| 15 April 2015 | Mother deposes to a conversation with the father at paragraphs 33 of her Affidavit. Father denies that any discussions took place on 15 April 2015. | F1, para 109 |
| 18 April 2015 | Father has a conversation with the mother by telephone. Father says that the mother says, "I have an issue with dropping the children off to your dad until you finish work." Father says, "What's the issue?" Mother says, "You know what the issue. I've always had this issue...I had to leave because of your dad because he's a pervert." Father says, "What are you talking about? What happened? Did something happen?" Father says the only incident the mother could point to was her complaint that the father's father was invading her privacy when he mowed the lawns and gardened at the family home. | F1, para 113 |
| 21 April 2015 | X commences attending at (omitted) School. | F1, para 121 |
| 21 April 2015 | Father collects X from school and the children spend overnight time with the father at the father's parents' place. Father says the mother raises no issue with this. | F1, para 122 |
| 21 April 2015 | X starts term 2 at (omitted) School. | |
| 21 April 2015 | Mother has a meeting with her supervisor, Ms P, to discuss the behaviour of the children. | M1, para 41 |
| 21 April 2015 | Mother makes contact with her general practitioner, Dr C, to discuss her concerns about the children. | M1, para 42 |
| Late April 2015 | Mother contacts the father to arrange a meeting to talk about X’s behaviour. | M1, para 43 |
| 25 April 2015 | Mother alleges an incident where X becomes extremely upset and angry after being told that she is not able to spend time with her father. | M1, para 44 |
| 25 April 2015 | Father says that he attends the ANZAC Day ceremony with the mother and after the ceremony the parents and the children spend time at a local coffee shop together. | F1, para 125 |
| 25 April 2015 | Father says that X wants to spend time with him and becomes upset when this cannot occur. | F1, paras 126-127 |
| 25 April 2015 | Father takes the children out for dinner. | F1, paras 127-129 |
| 27 April 2015 | Mother says that she requests a meeting with the father. | M1, para 49 |
| 27 April 2015 | Father collects the children to spend time with them as he normally does. | F1, para 132 |
| 27 April 2015 or 28 April 2015 | Father says that he hears from the mother wanting to meet with him on Wednesday morning, 29 April 2015. | F1, para 133 |
| 29 April 2015 | The parents meet to discuss X’s behaviour in a coffee shop in (omitted). Mother says that the father abandons the meeting. | M1, paras 51 & 52 |
| 29 April 2015 | Father requests to collect X from school. Mother initially says yes but then says no because believes it is important for X to maintain her normal school routine. Father persists with his request. | M1, paras 54-57 |
| 29 April 2015 | Father meets mother at the park. Father says that the mother says to him words to the effect, "I don't think it's you, but your dad is a sexual predator and a pervert." Father says that he asked the mother about the "worrying signs" she has observed and the mother refers to the tantrum on ANZAC Day and the incident at school with X weeing in the bottle. Father says that the mother also refers to X kissing her and X sitting on Y. | F1, paras 134-144 |
| 29 April 2015 | Father says that after his meeting with the mother he telephones the mother and asks her to explain the "signs" to him again. | F1, paras 147-148 |
| 29 April 2015 | Father says that he contact a child psychologist in (omitted) to obtain advice in relation to the mother's concerns. | F1, para 149 |
| 29 April 2015 | Father says that he receives the following text message from the mother at 2.21 pm: "I am picking X up. I'm organising professional care from here on. She is in my care while this matter is investigated." | F1, para 151 |
| 29 April 2015 | Mother collects X from school at 2.00 pm. | F1, para 152 |
| 30 April 2015 | Mother takes X to (omitted) Medical Practice to attend upon Dr C. Dr C takes a report and refers X to a child psychologist. | M1, para 62 |
| 30 April 2015 | Parents make arrangements to have a meeting with Mr A in (omitted). Mr A is a massage and reiki therapist. | M1, para 63 |
| 30 April 2015 | Parties participate in an informal mediation. During this meeting the father says that the mother says to him words to the effect, "Mr Callanan, I'm not going to tell you where they are. The children are with me and they are safe." Father says that the mother also says to him words to the effect, "I've already been to the doctor and I've got a referral to a child psychologist. I've already booked someone in tomorrow." Father also says that he says to the mother, "I just want to make it clear for the record that you don't think it's me." The mother replies, "I knew immediately that it wasn't you." | F1, para 164 F1, para 164 F1, para 167 |
| 1 May 2015 | Father contacts Ms V, a private accredited family law mediator and schedule a mediation for Monday 4 May 2015. | F1, para 171 |
| 1 May 2015 | Father attends (omitted) School to have a discussion with X’s former teachers. | F1, paras 173-174 |
| 2 May 2015 | Father says that he sends the mother a number of text messages and there in an agreement that they meet with the children in the park. | F1, para 175 |
| May 2015-June 2015 | Further appointments with Ms C as follows: § 5 May 2015 § 14 May 2015 § 20 May 2015 § 24 June 2015 | |
| 2 May 2015 | Father spends time with the children at the local park. The mother is present. | M1, para 73 |
| 2 May 2015 | Father discloses the mother's allegations to his brother. | F1, para 176 |
| 3 May 2015 | Father discloses the mother's allegations to his parents. | F1, para 177 |
| 3 May 2015 | Report is made to FACS by staff member at the (omitted) School in regards to possible sexual assault of X. The report includes details of X urinating in water bottle at school, and mother withdrawing X from the school. Reporter states that they have spoken to X’s classroom teacher and they did not have any concerns about her behaviour or notice any changes in her behaviour. The report appears to have arisen after the father attended at the school on 1 May 2015. The father was wanting to know where the children were and reported to the school that the mother had said she had seen signs that X has been sexually abused and believes the perpetrator is the paternal grandfather. DFACS screens out the report after consideration is given to sexual abuse. DFACS states, “Although this behaviour is inappropriate it does not indicate that X has been sexually abused”, also “X;s mother reports that she will be taking her to see professions about this. If there are disclosures they will likely be reported”. | FACS ICL 6 and ICL 7. |
| 4 May 2015 | Parties attend mediation with Ms V, a private mediator. Parties agree for X to attend upon Ms C a child psychologist at Bright Beginnings (omitted). An appointment is made for 5 May 2015. | M1, paras 74-75, 77 |
| 4 May 2015 | There is an incident at the mother's home with the father present. | M1, paras 80-81 |
| 4 May 2015 | Parties participate in mediation. Parents agree for X to see a child psychologist at Bright Beginnings, (omitted) and make an appointment for X to attend on 5 May 2015. | F1, para 179 F1, para 180 |
| 5 May 2015 | The parties and the children attend first appointment with Ms C. | M1, para 82 |
| 5 May 2015 | X attends upon Bright Beginnings, (omitted). Parents are in attendance. | F1, para 180 |
| 5 May 2015 | After attending upon the child psychologist, Ms C, the father goes to the mother's home for dinner with the mother and children. Father says that the mother allows him to bath the children and did not enter the bathroom. Cf - see entry under 14 May for appointment with CD. | F1, paras 185-187 |
| 6 May 2015 | Parties attend a further mediation with Ms V. | M1, para 89 |
| 6 May 2015 | Parties attend second mediation session. Father says that the parties reach agreement about who the children can spend time with until the counselling process is complete. Father says that his brother was not mentioned in this discussion. Father also says that there was agreement that the children spend time with him on Mondays and Tuesdays from 8.40 am until after dinner until the counselling process was completed. | F1, para 189 |
| 14 May 2015 | X’s second appointment with Ms C. | |
| File notes states that Father initially came into appointment by himself to discuss an incident during the week while at the Mothers. Father stated that Y said while in bathroom that he wanted to lick his penis, and then asked X if she wanted to lick his penis. X states that she will lick his penis if he licks her vagina. File notes state that mother was in the bathroom at the time and that father motioned to her to get her to intervene. Mother states that she has concerns that father is downplaying the significance of this incident. | CD ICL 1 | |
| 16 May 2015 | There was an incident involving Y while Y is being cared for by the mother's friend Ms A. | M1, para 95 |
| 18 May 2015 | Mother schedules an appointment with Ms C on her own. | M1, para 93 |
| 18 May 2015 | Father says that the mother makes a private appointment with Ms C. | F1, para 195 |
| 20 May 2015 | X’s third appointment with the psychologist. Father says that the mother and father had a discussion with Ms C at the conclusion of X’s private appointment. Father says that Ms C says to the mother and father words to the effect, "...In my opinion there is no evidence of sexual interference. I do have concerns about the children's behaviours, but this is more likely to be about the parent failing to put appropriate boundaries and controls in place surrounding the behaviour of the kids." Father says that the mother appeared happy with Ms C's conclusions and that Ms C said to the mother, "I understand this is not what you want to hear, but I have simply not seen any signs of abuse." | F1, paras 196-198 |
| File notes from session state the Ms C told the parents that X had not made any disclosures to her about abuse, and there had not been any behaviour in session suggesting this. | CD ICL 2 | |
| 24 May 2015 | Parties sign document entitled "Interim Parenting Plan and Living Arrangements". The interim parenting living arrangements were for the father to spend time with the children from 8.45 am Monday 25 May 2015 until Wednesday 27 May 2015. The children to stay overnight with the father at the grandparents' home for Monday and Tuesday night and not to be left with anyone else during the time. The father says that he will be with the children 100% of the time. | F1, para 200, Annexure B |
| 25 May 2015 | Father says that the mother says to him words to the effect, "I'm fine with the kids being with you at your parents. I trust you and trust that you will be with the kids and look after them." | F1, para 201 |
| 26/27 May 2015 | Father says he had difficulties when taking X to school. X is not wanting to leave him. | F1, paras 203-205 |
| 25-27 May 2015 | Children spend time with the father. | M1, paras 99-101 |
| 27 May 2015 | Father delivers X to school. X is very upset and refuses to exit the car. Mother attends at the school. | M1, paras 101-105 |
| 29 May 2015 | Father moves out of his parents' home and commences living in a new residence at (omitted). | F1, para 209 |
| 17 June 2015 | Mother sends father e-mail replying to his interim parenting proposal. When reading the e-mail the father says that he first becomes aware of the mother scheduling further appointments with X to attend upon Ms C. | F1, para 210, Annexure C F1, para 211 |
| 22 June 2015 | X behaves in a distressed fashion and refuses to go to school. The father ends up delivering X to school. | M1, para 106 |
| 24 June 2015 | Y attends a Healthy Kids Check appointment with Dr T at (omitted) Medical Centre. | M1, para 110 |
| 24 June 2015 | Mother receives a telephone call from Dr T as arranged. Dr T expresses concern about the situation and informs mother that he will be making a notification to FACS. | M1, para 111 |
| 24 June 2015 | Mother attends upon Dr C's medical practice and Y sees Dr T. | F1, para 217 |
| 25 June 2015 | Report made to FACS. By Dr who completed medical check on Y on 24 June 2015. Report screened in for other non-accidental injury and suspicious indicators of sexualised behaviours. Re the injury there is reported to be a large scar on Y’s arm consistent with hot water burn. Mother claims it is sunburn. Caller looked through X’s file and saw that there were concerns about sexualised behaviours, such as X pulling at Y’s penis and that he had an erection, and X saying that he should put his penis on her vagina. Caller states the mother suspects sexual abuse, but doesn’t know who the perpetrator is, but doesn’t believe father would be capable, so suspects grandfather, but no basis for this. States that behaviour occurred in the last four months. Report states that “a separate report has been forwarded to JRU for the significant scar on Y’s arm which the mother claims is sunburn”. Caller reports that the mother has stated that she doesn’t want the information discussed with FACS because she wants her children to ‘move on’. Caller explained to the mother that she is unable to keep the children safe if she doesn’t know who the alleged perpetrator might be. "Mother stated that the only men the children have unsupervised contact with is the father and the paternal grandfather. Mother doesn’t believe that the father would be capable of this and so she suspects the paternal grandfather. There is no basis for her allegation. The children have not disclosed anything.” Mother has stated that the behaviours started in the last six months. | FACS ICL 8, 9, 10 |
| 26 June 2015 | Mother sends an e-mail to Ms C. | M1, Annexure A, para 113 |
| 26 June 2015 | Ms C sends an e-mail to the mother. | M1, Annexure B, para 114 |
| 26 June 2015 | Mother sends Ms C an e-mail. | F1, para 220 |
| 26 June 2015 | Ms C responds to the mother by e-mail. | F1, para 222, M1, Annexure A |
| 27 June 2015 | Report to FACS by Dr C. Report states that mother came into surgery two months ago concerned about sexualised behaviour of children. States that the mother suspects the paternal grandfather, as the father had said he had seen pornography when he was a child and the grandfather had been overtly sexual towards her (meaning the mother). Mother worried that because psychologists are saying X is not at risk, the father will allow access to paternal grandfather. States that mother is open to FACS involvement, and that no report previously made by her because the mother was acting protectively and removed all contact between X and the grandfather. The mother even stopped contact between X and two other males. The mother also reported that X’s sexualised behaviour ceased after her contact with the grandfather ceased. | FACS ICL 11, 12. |
| 29 June 2015 | Father says that he had a conversation with the mother at her home but the mother does not disclose any report to FACS being made by Dr T. | F1, paras 224-225 |
| July 2015 | Father moves into his new residence in (omitted). | M1, para 119 |
| 6 July 2015 | Father says that the mother telephones him and tells him that they need to go down to the medical practice because they wanted to see the parents. | F1, para 226 |
| 8 July 2015 | Parents attend with Dr C at the (omitted) Clinic. | M1, para 116 |
| 8 July 2015 | Father attends at the medical centre and is informed by Dr C that the other doctor who had assessed Y, Dr T, had reported X to Family & Community Services. | F1, para 227 |
| 23 July 2015 | FACS notified Dr C that the case was not going to be investigated. Dr C refers the mother to Dr W, a child paediatrician. | M1, para 121 |
| 23 July 2015 | Father says that Family & Community Services notify Dr C that the case was not going to be investigated. Father says that neither the mother nor Dr C informed him of this outcome. | F1, para 232 |
| 31 July 2015 | Mother attends upon Dr W, paediatrician. Dr W concludes, "There has been no child sexual interference, that there is no other psychotherapy that needs to be investigated and the parents are competent and are keeping the children safe." This is in Dr W's report dated 12 August 2015. | F1, para 233 M1, Annexure C |
| Beginning August 2015 | Mother says that the children's behaviours become more and more frequent, occurring several times each day after a brief period when the behaviours reduced from around May 2015 until late July 2015. | M1, paras 21, 22 |
| 12 August 2015 | Correspondence from Dr W, consultant paediatrician, to Dr C at (omitted) Medical Practice. | M1, Annexure C, para 123 |
| 12 August 2015 | Father contacts Dr C. Father says that Dr C says to him, "Oh, didn't Ms Madden tell you, the case was closed by FACS three weeks ago. She was supposed to tell you." | F1, para 237 |
| 13 August 2015-19 August 2015 | Father says that the parenting arrangements return back to what they were prior to the allegations first being raised in relation to the children. Father says that the children do not exhibit the behaviours Ms Madden was referring to. | F1, para 241 |
| 19 August 2015 | Father says that he receives an SMS from the mother stating that he will not be required to collect the children that morning. Father says that he contacts the school and the school tells him that the mother has sent them an e-mail saying that she is taking the children away for a week. | F1, para 242 |
| 18 September 2015 | Incident involving the children whilst the mother is out with friends having dinner. | M1, paras 128-129 |
| 26 September 2015 | Children make disclosures to the mother. | M1, paras 136-140 |
| October 2015 | Mother stops all contact between the children and the father. | M1, para 13 |
| October 2015 | Children display increasingly sexualised behaviours. The conversations with the children are also alarming. | M1, paras 142-148, 151-152 |
| 2 October 2015 | Mother alleges incident where X touches Y’s private parts. | M1, para 141 |
| 2 October 2015 | Y talks to the mother about being tickled on his private parts by the paternal grandfather. | M1, para 142 |
| 14 October 2015 | Mother has a conversation with Y about what he did with his father the previous day. Child discloses that he spent the day with his paternal grandfather. | M1, para 152 |
| 18 October 2015 | Mother speaks to Dr C, GP, over the phone in the evening about concerns about children’s sexualised behaviour. Mother says that Y has name paternal grandfather and paternal uncle as ‘tickling’ his private parts, and that the grandfather walks around naked. Mother states that overt sexual behaviour has become some frequent that she no longer takes children out in public. Mother states that she has phone recordings of when the children have said things that are inappropriate or concerning. Mother states she is staying in (omitted) with her family, and has informed police of this. | CM ICL 3 |
| 19 October 2015 | Father says that he receives a telephone call from Dr C in the afternoon informing him that she has made a report to Family & Community Services. | F1, para 250 |
| 19 October 2015 | Mother stops taking the children to school. | |
| 19 October 2015 | Mr D, paternal uncle, is listed as a suspect for sexual assault-indecent assault. | NSW Police ICL 4 |
| 19 October 2015 | Mr G, paternal grandfather, is listed as a suspect for sexual assault-indecent assault. | NSW Police ICL 5 |
| 19 October 2015 | Report made to FACS. Y has disclosed that the paternal grandfather and Uncle Z have touched him on his private parts, and has asked if it is ok to put a carrot or sharp knife into someone’s bum. Report of increased sexualised behaviour including Y and X touching each other’s private parts, and Y asking other children to lick his penis. States children are in care of mother and has refused access to children to father. Report also states that the mother believes the father may be living with his parents, despite not telling this to mother, and that the children have become more emotional lately, and are more distressed before going to their father’s or grandparents. States that X said that Daddy told her it was a secret if someone touches her private parts, and that she keeps it a secret if someone touches her private parts. Report states, “the mother has been recording her conversations with the children for the past 3 weeks because the children’s comments and behaviour were getting to a point where it was getting out of control….. mother has now moved in with the maternal grandmother in (omitted) and she has told the father she has taken the children away for a while and will not be allowing him access”. | FACS ICL 13; 14; 15 |
| FACS report states that X said to her mother that the story (omitted) reminded her of her grandfather, who always walks around naked. Note, Mother’s affidavit attributes this statement to Y. | FACS ICL 16; M1, para 154. | |
| 22 October 2015 | Father's solicitor receives correspondence from the mother's solicitor. | F1, para 256 M1, Annexure D |
| 30 October 2015 | Father 's solicitor asserts the mother's Application and supporting documents. | F1, para 260 |
| 2 November 2015 | Report on FACS. Screen is as ROSH though sexual abuse: suspicious inidcators consistent with sexual abuse. This is based on mother’s reports. | ICL 11a. |
| 2 November 2015 | Mother files Application in the Federal Circuit Court in Wollongong. The Applicant seeks parenting and financial Orders. | |
| 2 November 2015 | Court makes Orders in chambers. The Orders made are for the appointment of an Independent Children's Lawyer. | |
| 9 November 2015 | Triage report by FACS acknowledging information received by CS concerning Y on 27 June 2015. This appears to concern report of the injury to Y’s arm. | |
| 9 November 2015 | Triage report by FACS acknowledging information received by CS concerning Y and X on 25 and 26 June 2015. | |
| 9 November 2015 | The paternal grandfather, Mr G, swears an Affidavit. Affidavit is filed 3 December 2015. | |
| 9 November 2015 | Father's brother, Mr D, swears an Affidavit. Affidavit is filed 3 December 2015. | |
| 9 November 2015 | Father's paternal niece (to his brother) swears an Affidavit. Affidavit is filed 3 December 2015. | |
| 10 November 2015 | Mother's Application is first listed before the Federal Circuit Court in Wollongong. | |
| 11 November 2015 | X returns to school. | M2, para 4 |
| 12 November 2015 | Y returns to preschool (attends Tuesday, Thursday and Friday). | M2, para 4 |
| 13 November 2015 | Y is interviewed by JIRT. | |
| 13 November 2015 | Mother says that the child Y is interviewed by Mr T (Senior Constable Detective) and a children's welfare officer (Ms M). Mother says that they tell her that they will be confirming the arrangements for an interview with X and that she did not hear further from them. | M2, para 5 |
| 13 November 2015 | Mother says that she is told by Mr T that Y disclosed information to the degree that warrants an interview with the paternal grandfather by the Senior Constable. Mother also says that at the time of swearing her second Affidavit no interview has been scheduled. Mother says that her debrief with the officer and welfare worker were shortened due to having to return to (omitted) to collect X from school. The mother says that Mr T tells her that she was surprised that the children have not been offered counselling and said to her, "With the support of counselling Y would disclose more than he did today, as we only scratched the surface. Counselling should be organised immediately." | M2, para 7 |
| 18 November 2015 | Mother's solicitor sends correspondence to the father's solicitor concerning alternative supervisors for the children when the mother is not available to care for the children. | F1, para 263 |
| 23 November 2015 | Mother records the children. The mother says that Y makes significant disclosures. | M2, para 17 |
| 23 November 2015 | Mother says that she contacts Mr T at JIRT concerning the disclosures that evening. | M2, para 16 |
| 30 November 2015 | Father's solicitor is able to speak to a representative of JIRT. | F1, paras 268-269 |
| 2 December 2015 | Mother swears a second Affidavit for the proceedings. ("M2") The father is filed 3 December 2015. | |
| 3 December 2015 | Father swears Affidavit. The Affidavit is filed 3 December 2015. ("F1") | |
| 3 December 2015 | Father files Response. |
The submissions made
Counsel for the Mother submitted that neither the sexualised behaviours exhibited by the children, nor the disclosures made by them are in dispute. The real issue is what the Court is to make of the behaviour and the disclosure. That is indisputably correct.
Counsel for the Father submitted that on any objective interpretation of the recording made by the Mother, played in Court, and reproduced in her Affidavit of 2 December 2015, it was open on the Court to form the impression that the Mother has led the children into the conversation not just on this occasion, but on previous occasions. Counsel for the Father admitted that this was a bold submission to make.
The Independent Children’s Lawyer submitted that the recording was of concern, not just because of its content, but because of the manner in which the Mother led it, and in the overall circumstances of the case, the forensic weight that might otherwise be attached to the children’s disclosure is minimised.
The difficulty with the Mother’s submission is that it assumes the explanation for both the behaviour and the disclosure is attributable to something that the Father has done or said, when there is no evidence to support this. Indeed, a close examination of the chronology shows that the Mother was initially convinced that it was the paternal grandfather, then her concerns extended to the paternal uncle, and then finally her concerns focused on the Father. The more objective evidence, particularly that of Ms C, suggested quite to the contrary.
The Mother’s case is by no means enhanced by attacking the Father’s hypothesis as to why the children might be saying the things they have and demonstrating the behaviours they have. The Father’s explanation is that, adopting Ms C’s hypothesis, that the children’s behaviour can be explained by lack of boundaries and discipline. The submission misses the point, however. At an interim hearing, the Court is never going to determine why the behaviours and disclosures are what they are.
There is an obvious cloud of uncertainty over the Mother’s concerns that somehow the Father is the one against whom the children need to be protected. That is neither the view of Ms C, the Department of Family and Community Services, nor the police. It is not a view that the Mother has held consistently, as is reflected in the chronology. If it were the Mother’s view, historically, she has acted inconsistently with it and facilitated the Father’s time notwithstanding the disclosures and behaviour.
The Father’s submission focused on a close examination of the evidence and, unsurprisingly, relied on the chronology. The focus was on what the Mother says she knew, at relevant times, and then what she did, or more particularly failed to do. Counsel for the Father submitted that on an objective appraisal of the evidence, the Mother’s concerns are not proportionate to her firm belief that something has happened attributable to the Father, irrespective of the objective facts.
Thus, for example, when the Mother did not like Ms C’s advice, she stopped seeing her. When the Mother did not like the way in which X’s school dealt with X’s disturbing behaviours there, she took the children out of school. Once the Mother could not obtain satisfactory disclosures from X, she moved onto Y. The tape recording of the conversation in the motor vehicle was an example of her manipulation of the evidence.
Quite apart from casting doubt on the Mother’s evidence, the Father submitted that if there was any unacceptable risk of abuse in this case, it was the risk of psychological harm of the Mother’s mismanagement of the children’s disclosures and behaviour. It was submitted that the mother had clearly distorted the evidence about what JIRT had reported after the children’s interviews. The Father’s concern was about the Mother’s seemingly heightening desperation to prove something and attribute it to the Father, in circumstances where objectively the risk of harm could not be sheeted home to him.
The effect of the Independent Children’s Lawyer’s submissions was that when the evidence was carefully reviewed, an analysis of the ss.60CC(2) and 60CC(2A) considerations favoured the making of Orders that restored the children’s meaningful relationship with their father, as there was no unacceptable risk of harm to them whilst in his case. The Independent Children’s Lawyer emphasised that there were no significant issues in the parenting of these children, until comparatively recently.
The Department of Family and Community Services had considered the reports made to it by various sources and, in effect, screened the matter out. JIRT had become involved, but after investigation, took the matter no further. Ms C clearly warned the parents against trying to look for evidence for or against abuse, but to focus on dealing with the behaviours. The Independent Children’s Lawyer was concerned about the potential harm to the children and being subjected to repeated recorded interviews by the Mother. Ultimately, the Independent Children’s Lawyer submitted that, whilst the children should continue to live with their mother, they should immediately resume spending time with their father.
Discussion
It is not the Court’s task at an interim hearing to establish whether the disclosures and sexualised behaviours actually indicate that the children have been abused, and if so, by named persons. Neither is it the Court’s task to examine why the children might be behaving in this fashion, and making these disclosures, even if they have not been abused in any way. That could not possibly be achieved without expert evidence, let alone within the parameters of an interim hearing.
Whether the unacceptable risk test continues to apply in circumstances where risk issues are clearly covered by ss.60CC(2) and 60CC(2A) is not a matter for this Court to determine. For present purposes, this Court considers its task to be to determine whether, on the evidence before it, there is a need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. Specifically, in the context of this case, the question is whether the children need to be protected from the risk of this harm emanating from their father. The evidence does not establish that risk. Moreover, it certainly does not establish that the risk is an unacceptable one, whilst noting that the legislation does not use that terminology. Nonetheless, it is a very useful concept.
These children unquestionably had a meaningful relationship with their father until his time and communication with them was restricted. One must be concerned as to whether that relationship could continue to be meaningful on the Orders proposed by the Mother. It might be possible, but would such change be necessary, given the drastic reconfiguration it would bring about in the children’s lives, so far as their father is concerned? On the evidence, the Court does not believe that the children’s relationship with their father does need to be so drastically reconfigured as the Mother proposes, and indeed the Court would have serious concern about the impact on the children of such a significant change.
The inconsistency between the Mother’s stated concerns and action, the shifting focus of her concerns, and her escalating behaviours are all matters for concern. She might well subjectively believe that the children’s disclosures and behaviours are attributable to something that the Father, or perhaps even members of his family have done. On the evidence before the Court, however, there is no objective basis for this.
There are a number of alternative hypotheses that have already been presented to the Mother, indeed both parents. Ms C raised the possibility that the children’s behaviours and disclosures are attributable to inadequate, inappropriate boundaries. Dr T has raised the possibility that the children have been exposed to pornography. Ms C has suggested to the Mother that there might be alternative ways of interpreting behaviour that the Mother has observed, e.g. that what the Mother perceives as X dissociating, is perhaps a tantrum.
One possibility is, of course, that the children have been interfered with, or abused in some way. Of all the possible hypotheses, however, that is the one that the Mother has chosen, whilst completely excluding any other possibility. If the Mother has reality tested in her own mind any of the children’s disclosures, it is not apparent in her evidence. Thus, on 14 October 2015, when the Mother asserts that the child Y stood on her bed, pulled his pants down, had an erection and said “this is what nonno does with his pants, they disappear,” rather than at least considering the inherent unlikelihood of an occurrence of that description, her own evidence at paragraph 151 of her Affidavit of 30 October 2015 suggests she assumed the correctness of the account, and asked a question designed to elicit more information. The Mother deposed to the fact that “Y laughed…” This moment of levity does not, in the Mother’s mind, seem to raise any question about the reliability of his account, or again, detract from the potential inherent unlikelihood of that which Y was describing.
There are other disturbing aspects of this evidence that again raise the question about whether the Mother has considered the alternative hypothesis. She clearly has not. But part of this Court’s task is to consider the seriousness of the allegations made, the inherent unlikelihood of an occurrence of a given description, the gravity of the consequences flowing from a particular finding, and the necessity that its conclusions, even on an interim level, not to be produced by inexact proofs, indefinite testimony, or indirect inferences.
There is no risk of harm to these children if they were to resume time with their father. The Independent Children’s Lawyer’s proposal seems to be the one that most clearly reflects the arrangement that existed between the Father and the children before these unfortunate events occurred. That is the Court’s preference, as opposed to the Father’s proposal seeking more time.
The other Orders proposed by the Independent Children’s Lawyer appear entirely appropriate in this case. The Mother has previously agreed not to relocate the children more than 20 kilometres away from their current residence in (omitted).
The Father has previously agreed not to permit the children to come into contact with the paternal grandfather or paternal uncle. The Father clearly prefers that this restriction be removed. The Mother clearly wants it maintained. The Independent Children’s Lawyer is silent about this issue. It is important to recognise that both the paternal grandfather and paternal uncle have made very firm denials in their evidence.
The Court will make an order that the Father is not to allow the children to be left unsupervised with both the paternal grandfather and paternal uncle, but this should not be interpreted as any suggestion by this Court that they have acted improperly in any way. The purpose of the restriction is merely to provide reassurance to the Mother, who has demonstrated herself to be clearly a very anxious mother who perhaps struggles to protect the children from her own concerns about these issues.
The immediate short term priority in this case is to obtain an appropriate expert’s report that will assist in understanding why the children have been behaving as they have, why the disclosures have been made, and whether there is in fact a basis to be concerned about unacceptable risk of abuse if the children are cared for by a particular person.
There are property proceedings on foot.
The case is clearly a complex one. It is certainly a matter that is eligible for transfer to the Family Court of Australia in Sydney. There are extensive delays in the Wollongong Registry of the Court, and there is the prospect that this matter could not be contained to five days anyway. An order will be made transferring this matter to the Family Court of Australia in Sydney with consideration to be given as to whether it should be included in the (omitted) Program.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 22 January 2016
Schedule One
Applicant Mother’s proposed Minute of Order
That pending further Order, the children namely X born (omitted) 2008 and Y born (omitted) 2010 ("the children") live with the mother.
That pending further Order, the children spend no time and have no communication with the Father.
That Orders 2 and 5 of Interim Consent Orders dated 10 November 2015 be discharged.
That the parties be restrained from bringing the children into contact with the paternal grandfather namely Mr G and the paternal uncle namely Mr D.
That pending further Order, the Father is restrained from:
a.spending any time with the children; and
b.approaching, communicating or contacting by any means, including through any third person, any of the Children and the Mother; and
c.being within 200 metres of any place of education or residence of any of the Children and contacting by any means, including through any third person, any place of education or residence of any of the Children and the Mother; and
d.removing or attempting to remove any of the Children from his or her place of education (including school and/or preschool) or residence; and
e.harassing, molesting, stalking, threatening to cause bodily harm to any of the Children and the Mother or any person in whose care any of the Children may be.
Respondent Father’s proposed Minute of Order
- That the existing consent orders made by the Court on 10 November 2015 be discharged.
- That pending further order, that the children namely X born (omitted) 2008 and Y born (omitted) 2010 live with the mother and spend time with the father as agreed, and failing agreement as follows:
- From 9am on Sunday morning to 9am on Thursday morning each week with the father to pick the children up from the mother’s residence on the Sunday morning and drop X to school and Y to either the Applicant mother’s residence or school as applicable on the Wednesday morning.
- From 9am on 21 December 2015 to 9am on 20 January 2015, with the father’s time to be suspended as follows:
i.from 9am on 26 December 2015 to 9am on (omitted) 2015 which is the Applicant Mother’s birthday’
ii.from 9am on 7 January 2016 until 9am on 11 January 2016 so that the children can spend time with the Applicant Mother of the (religion omitted) Christmas period.
- That the mother shall make the children available to communicate with the father by Skype or telephone between 4:30pm and 5:00pm each Thursday and Saturday, with the father to initiate the communication and the mother to ensure that the children are available.
- That each parent is to keep the other parent informed at all times of where the children are living when they are in the parent’s care.
- That each party is restrained from making arrangements for the children to attend upon any health professional or therapist including but not limited to any general practitioner, counsellor, psychologist or psychiatrist without the written consent of the other party unless:
- The attendance is in accordance with a direction or recommendation made by Family and Community Service or NSW Police and both parents have been so informed;
- The attendance is upon a general practitioner for the treatment of common childhood illness or ailments.
- That each party is restrained from discussing any matters relating to these Court proceedings with the children and from showing the children any documents relating to these proceedings.
- That the Independent Children’s Lawyer is hereby authorised to make enquiries with Family and Community Services and NSW Police for the purpose of obtaining information concerning any report, notifications, and/or investigations involving the children.
- That the mother shall not relocate the children more than 20 kilometres away from the mother’s current residence in (omitted) unless agreed between the parties in writing.
Independent Children’s Lawyer’s proposed Minute of Order
The parents shall have equal shared parental responsibility for the children X, born (omitted) 2008 and Y, born (omitted) 2010 (hereafter referred to as "the children").
The children shall live with the mother.
The children shall spend the following time with the father:
a.From 8.00 am each Monday until the commencement of school on Wednesday or 9.00 am for Y or until 9.00 am on any day when the child X is not required to attend school;
b.On the children's birthdays, as agreed between the parents, but failing agreement between the parents as follows:
i.From the conclusion of school until 5.30 pm on 13 July 2016; and
ii.From 10.00 am until 2.00 pm on 28 August 2016.
iii.From 2.00 pm on 25 December until 10.00 am on 26 December 2015.
iv.Such additional time as may be agreed between the parents from time to time.
Unless otherwise agreed between the parents changeover of the children for the purposes of Order 3 is to occur with the father collecting the children from the mother's residence at the commencement of the father's time with the children and with the mother collecting the children from the father's residence at the conclusion of the father's time with the children.
The children shall communicate with the father by Skype or telephone between 4.30pm and 5.00pm on each Thursday and Saturday with the father to initiate the communication and the mother to ensure that the children are available to communicate with the father.
Each parent shall assist the children to have telephone or other communication with the other parent at any time the children request to communicate with the other parent.
Each parent shall be restrained from making arrangements for the children to attend upon any health professional or therapist, including but not limited to, any general practitioner, counsellor, psychologist or psychiatrist, without the written consent of the other parent unless:
a.the attendance is in accordance with a direction or recommendation made by Family and Community Services or NSW Police;
b.the attendance is in accordance with the direction of recommendation made by Family and Community Services or NSW Police.
c.Each parent shall be restrained from recording any conversations with the children which relate to matters raised as issues in these Court proceedings.
Each party shall be restrained from discussing any matters relating to these Court proceedings with the children and from showing the children any documents relating to these Court proceedings.
The Independent Children's Lawyer shall be hereby authorised to make enquiries with Family and Community Services and NSW Police for the purpose of obtaining information concerning any reports, notifications, and/or investigations involving the children.
10.The Independent Children's Lawyer shall be hereby authorised to make enquiries with X’s school and Y's school for the purpose of obtaining information concerning the children.
11.The mother shall not relocate the children to live more than twenty (20) kilometres away from the mother's current residence in (omitted) unless agreed to between the parents in writing.
12.Each parent shall forthwith enrol in and complete a parenting after separation program coordinated by Relationships Australia or such other parenting after separation program as may be agreed upon by the parents and the Independent Children's Lawyer.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction
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Jurisdiction
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Procedural Fairness
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Remedies
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