Madden and Smithers

[2008] FamCA 97

FAMILY COURT OF AUSTRALIA

MADDEN & SMITHERS [2008] FamCA 97

FAMILY LAW – CHILDREN – Boys 8 and 6 (4 and 2 at time of incident) – Allegations of sexual abuse by father and partner – Disclosures – Physical evidence – Surrounding circumstances – Findings – Positive finding abuse occurred – Father likely to have been involved

APPLICANT: MR MADDEN

RESPONDENT: MS SMITHERS

FILE NUMBER: BRF 3083 of 2006

DATE DELIVERED: 8 February 2008

PLACE DELIVERED: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 5, 6 & 7 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G Burridge

SOLICITOR FOR THE APPLICANT: Springwood Lawyers

COUNSEL FOR THE RESPONDENT: Mr A George

SOLICITOR FOR THE RESPONDENT: Porter Hulett

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Ms J Hogan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

IT IS ORDERED THAT

1. The matter be adjourned to 9.30 am on Thursday, 14 February 2008 before the Honourable Justice Jordan for further consideration.

IT IS NOTED that publication of this judgment under the pseudonym Madden & Smithers is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3083 of 2006

MR MADDEN

Applicant

And

MS SMITHERS

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. In this matter, the father seeks orders for shared parenting and orders enabling him to spend time with his sons, S, born in June 1999, and J, born in March 2001.  The mother responds by opposing all orders for contact and she seeks sole parental responsibility.  At the core of the mother's case in taking that stand are allegations that the children have been the victims of sexual abuse. 

2. Briefly, the background to the matter includes observing that the parties entered into a relationship in late 1996/early 1997 and finally separated in August of 2001.  It is apparent the relationship was a somewhat volatile one, which included much conflict and some physical confrontation.  S was 2 years old at the date of separation and J but 6 months.  There was no contact between the parties or the father and the children for some months, as a result, it is said by the father, of his lack of knowledge of the children's whereabouts.  In any event, once he located the mother, arrangements were made between the parents and an agreement was reached which enabled the children thereafter to spend regular time with their father, including on alternate weekends.

3. During this period, the father entered into a relationship with Ms A, which relationship prevailed between January of 2001 and March 2006.  Ms A assisted in the care of the boys during the contact visits.  The father and Ms A have one child, M, born on 2 November 2002.

4. The father continued to enjoy contact with his boys until December of 2003, at which time the mother alleged that the boys reported being sexually abused in the father's household.  The matter was immediately reported to the authorities, the boys were medically examined and S was interviewed.  The father and Ms A were also subsequently interviewed.

5. There was subsequently some departmental intervention which, ultimately, resulted in the children being placed in the temporary care of the maternal grandmother for some months.  The mother met the department's requirements and the children were returned to her in February/March of 2004 and they have remained in her full time care since that time.

6. Effectively, the father has not had any contact with the children over four years since these matters first surfaced.

7. The mother has re-partnered, in that she has a relationship with one Mr K.  He stays at her house on a regular basis and they have enjoyed that relationship since November of 2005.  It would appear that the boys get along well with Mr K.  The mother has another young child, C, born in February 2005.  The mother says that C has an ongoing relationship with her biological father.

8. The mother opposes the making of the order sought by the father.  It is her asserted belief that the father participated in acts of gross abuse of her sons, such as to disqualify him as an appropriate person to have any ongoing contact.

9. It has been earlier decided that the Court should firstly hear and determine the discrete issues of sexual abuse, as such determination has the potential to be decisive and, in any event, is likely to have a significant bearing upon the attitude of the parties and the further conduct of the matter.

10. In cases of alleged serious child abuse, the task of the Court is an onerous one.  The Court is called upon to contemplate very grave orders.  On the one hand, the Court may be asked to severely limit or deny a child contact with a parent, or to deny a parent the opportunity to have a child reside with him or her, or to have contact and play any meaningful role in that child's life.   On the other hand, the Court is required to contemplate the prospect that an order for ongoing contact may be an order placing the child at risk of abuse of a most serious nature.

11. I need to make it clear that it is not the role of trial Judges in the Family Court to hear abuse cases as criminal trials designed to establish the guilt or innocence of a party, and it would be entirely inappropriate to proceed on the basis that contact with a child is the reward for an acquittal, or the lack of it is a punishment for a "conviction". 

12. The issue for the Court is not whether a parent has abused the child, but whether, in all the circumstances of the case, orders for contact should be made following a consideration and evaluation of all those matters relevant, as identified in the Family Law Act.

13. As part of that process, the Court must determine whether, on the evidence, there is a risk of abuse occurring if contact is ordered, and its task is to assess the magnitude of that risk.  The existence and magnitude of the risk of abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account. 

14. If a trial Judge elects to proceed to consider making positive findings on the issue of abuse, the Court should not make such findings unless it can be satisfied according to the highest civil standard of proof as prescribed in authorities such as Briginshaw, that is, the findings against the person accused of abuse should be made only on convincing evidence and upon a firm satisfaction.

15. As I have observed, the mother is convinced that each of the boys has been sexually abused by Ms A and by the father and asks this Court to so find, and to thereafter protect her children by prohibiting contact.  The father is equally adamant that he did not abuse the boys, and his case is based upon a conviction that the mother has fabricated the case of abuse against him and his former partner, Ms A.

16. The specific issues to be determined in this case are:

    (1)Were the boys sexually abused on the weekend of the 21st and 23rd November 2003?

    (2)If so, by whom were they abused and in what ways were they abused?

17. The primary sources of evidence against the father come from the mother herself, some statements attributed to the children, and some medical evidence.  Before I examine aspects of that evidence, I need to highlight the allegations raised. 

18. It is the mother's case that up to Friday, 21 November 2003, she had provided the children for contact on alternate weekends and that those arrangements had largely proceeded without incident.  In particular, she would ask the Court to accept that, when she delivered the children to the father on 21 November, there was no apparent indication of any physical injury or emotional disturbance in the presentation of the children.  The mother would say that the father returned the children on 23 November, and remained with her and the boys for some time.  The maternal grandmother and the mother's sister were also in the home at that time.

19. As is set out in paragraphs 43 to 53 of the mother's affidavit filed on 22 December 2006, she says that, shortly after the father left, S approached her and he was crying hysterically.  She said she asked S what was the matter, and that S informed her that “[Ms A] had put knives and forks in his bottom.”

20. She described how she then went to J and, in the company of her sister, asked both boys what had happened, and she said that both boys were crying hysterically.  She said S pulled his pants down and the mother observed that the area around his bottom was red.  The boys apparently repeated to both the mother and the mother’s sister that Ms A had put knives and forks in their bottoms.

21. The mother indicated in that affidavit, and again in her evidence, that she questioned the boys whether the father had been involved, or whether he was there.  She says that, on that occasion and on subsequent occasions over the next day or so, the boys informed their mother that the father was not involved and was not present.

22. The maternal grandmother also examined the boys visually and advised the mother to take the boys straight to hospital. 

23. The mother said that she rang the father and informed him what the boys had told her and requested that she meet him at the hospital.  She then attended with the boys at the Hospital. 

24. The children were examined at the hospital by a Dr B.  The details of the disclosures made by the boys were recorded on the medical notes and the doctor conducted an examination.  Dr B made notes and gave evidence before me.  He said he observed some signs of injury around the anus of each of the boys.  Those observations raised concerns for him in the context of the recorded allegations and he took the view that the matter needed to be referred to the SCAN team for review by a paediatrician. 

25. As a consequence, the mother was referred to another hospital and there a consultant paediatrician, Dr T, examined each of the boys.  There was a similar history recorded and on examination Dr T observed that S had an abrasion described as being "between 7 and 8 o'clock".  It was two to three millimetres in length.  It appeared fresh. Dr T concluded that the injury occurred less than three days prior to the examination.   He examined J and found a similar injury "at 6 o'clock".  It was again two to three millimetres in length, appeared fresh, and appeared to have occurred less than three days prior to the examination. 

26. Dr T advised the parents that the injury was consistent with either the consequence of the children experiencing constipation and passing probably a large and hard stool, or with the insertion or use of some sharp object about the anus.  In that sense, he informed the parties that the injuries were consistent with the stated cause as set out by the children in their disclosures. 

27. The parents were each asked about the existence of any signs of constipation over the previous three days and, apparently, each of the parents informed both doctors that neither of the children exhibited any signs of constipation at that time.  In fact, I think at least one of the children passed a normal motion not long before presentation.  The doctors' physical examinations did not indicate any existing constipation difficulties for either of the boys. 

28. The mother has a prior history as a child victim of gross sexual and physical abuse.  The revelation that her children had been sexually abused had such a grossly devastating affect upon her that, to use her own words, she thought she was going mad and she found the whole ordeal quite crippling.  For reasons that it is unnecessary to explore today, the children were placed in the temporary care of their grandmother and remained there until late February/early March. 

29. At the time the boys were returned to the mother, she was living at O which, I gather, is some residential and community help centre which provides counselling and support to families or women in crisis.  In paragraphs 85 to 94 of her affidavit, the mother describes an incident occurring not long after she was reunited with S, when he informed her that:

    "He was ready to talk to me about what had happened".

30. The mother provides the context for that statement which, she said, came out of the blue.  She said that she had previously told the boys that, if ever they wanted to talk to her, she would be ready to listen.  She says that when S said he was ready to talk, she assumed that it was in response to that standing invitation. 

31. She sets out in those paragraphs that, in that discussion, S said to her that:

    "Daddy did do it too".

    She said she asked S to tell her what happened, and she said S told her:

    "We were all laying on the bed on our bellies".

    She said she asked S:

    "Who was laying on the bed?" 

    And she said that S replied:

    "It was Daddy, then me, [J] and [M]".

    She said that S said that:

    "Daddy had some plastic in his bum and that [Ms A] had put knives and forks in our bums."

    She said that S also said that:

    "[M] had little knives and forks in her bum".

    She said that S said that:

    "[J] tried to get up and that [M] had fallen off the bed and that [J] had been smacked a lot of times by [Ms A].” 

    She said that S became upset when telling his mother this account of those events.

32. The mother says that she was shocked and outraged and, I gather, she immediately rang the husband and abused him, and told him that he would never see the children again.

33. The mother says that the boys have repeated allegations directly implicating their father from time to time since then, although she says she endeavours to avoid the topic, as she would prefer the boys to forget about their ordeal and move on.  The boys have allegedly repeated the allegations from time to time to the maternal grandmother, the sister, the mother's current partner and, more recently, Ms L during the course of a family report.  Included in some of the more recent disclosures by the boys is the suggestion that, not only was the father present and engaging in some inappropriate activity himself in front of the children, but that he was also actively involved in the insertion of the knives and forks into the boys’ bottoms. 

34. As I indicated during the course of trial, in terms of the circumstances of that most recent evidence, it does need to be borne in mind the passage of time and the context, and I will return to those matters later.

35. S was interviewed by the police on 24 November, and that interview was recorded and is Exhibit 8 in these proceedings.  The Court has listened to that tape and S’s presentation appears childlike, fairly relaxed, distracted and distractible, and it is to be observed that he makes a number of mutually inconsistent statements.  It is to be observed that, at an early stage of the interview in a non-responsive way, S volunteered to the police officer that Ms A had inserted knives and forks in his bum.  Initially, he informed the police officers that his father was not involved.  He was then asked some mildly probing questions about where, when and what he was wearing and the like, and he said he had shorts on.  And when he was pressed about the viability of being assaulted in the way he said, with shorts on, he was clearly troubled by that prospect.  He subsequently told the police officers that Ms A did not, in fact, insert any knives and forks in his bum and that, in fact, she only smacked him.  This change of story came towards the end of the interview and it is clear that the child was exhibiting an impatience with the process and a keenness to bring it to an end.

36. As is so often the case in matters of this type, determinations are likely to rest, at least to a significant extent, upon the credibility of the person raising the allegations, the subject of the hearing.  Of course, in determining the weight to be placed on the mother's evidence, I have regard to my own observations that it is appropriate to consider the circumstances surrounding those allegations, to look for warning signs, for indicators, in terms of reliability or otherwise.

37. In this case, amongst other things, I need to consider whether the mother is to be believed, or if there is some other explanation which would enable the Court to conclude either that the mother has deliberately falsified these allegations, as claimed by the father, or alternatively that each of the parties and their children have become the victims of some terrible, wrongful conclusions based on some mistaken interpretations or beliefs.

38. Whilst there can be little doubt that the mother has become quite malicious in her attitude towards the father since the allegations, there is absolutely no evidence capable of supporting a conclusion, or even a concern, that there were signs that the mother held any pre-existing malice, such as would be likely to result in her suddenly choosing to fabricate a story against the father and his partner, so as to have the father excluded from his sons' lives.  Indeed, all the evidence is to the contrary. 

39. I am satisfied that the mother actively pursued contact between the boys and their father, sometimes at a good deal of inconvenience, and sometimes in the face of some inconsistency in that regard from the father.  She had been providing alternate weekend contact for a number of years.  She appeared to enjoy civil to cordial relations with the father; they were able to spend time together and communicate about their children.  And, notwithstanding that there were obviously the usual sorts of strains from time to time, the parties managed to deal with them and the informal arrangements entered into between them prevailed.

40. It appears that the mother developed at least a workable relationship with Ms A.  It is important to observe that this is not a case where the arrival of a new partner precipitated a change of attitude.  Indeed, the mother had continued to provide contact in the two-and-a-half years prior to the incident when Ms A was in the father's house and had become a significant part of her children's lives.

41. There is another layer which is even more remarkable in terms of considering whether the mother was motivated by malice and looking for excuses to alienate the father.  During this period, the mother provided contact to the father and to Ms A, notwithstanding that she had heard information to the effect that Ms A had been convicted of some indecent dealing offence.  You might think that a woman borne of malice would jump at the opportunity such information would provide.  But what did this mother do?  She sought the father's assurance that the children were safe.  And, notwithstanding that she was left with some reservation, she continued to provide contact.  She said that she believed the relationship between the father and the boys was important for the boys, and her behaviour was entirely consistent with that stated belief.

42. If there can be more telling evidence on this point of malice or hidden agendas, it, in fact, emerges on the night of the disclosures.  In the face of shocking allegations which were particularly troubling to a person with the mother's background, who did she turn to, who did she trust?  It was, in fact, the children's father.  She did not jump to conclusions.  She wisely asked the boys if the father was involved.  She believed their assurances.  As I recall, there is nothing in the evidence to indicate that, when the father did appear at the hospital, she even questioned him about his possible involvement.  In any event, the mother enlisted the father’s help and support.  She warned him about the dangers Ms A presented to his daughter.  She did not make any allegations against the father until months later, and only after S implicated his father. 

43. These are not the actions of a malicious woman adopting an opportunistic approach to an incident to deny the father contact.

44. On the prospect of outright fabrication, it would be peculiar indeed for a person who went to the trouble of fabricating allegations, enlisting the services of hospitals, doctors, departmental officers and police, not to use it against the person she was intending to harm.  She could have simply added the father to the initial fabricated allegation.  She did not.  I rule out the malicious.

1. In the broader sense, I believe the mother as a witness of truth.  She was entirely convincing before me.  Her accounts have remained fundamentally consistent in the many retellings over the last four-and-a-half years.  Her presentation before me was compelling.  She was firm in her conviction.  She was able to make admissions against interest.  There was a lack of sophistication and affect.  She displayed occasional anger, hurt, frustration and distress, which were both apposite to the topic under discussion and proportionate.  Her behaviour before and after the November incident has, in my view, strongly supported her bona fides.  She now has an absolute conviction that her children were abused and that the father was involved in that abuse. 

2. I share the mother's absolute conviction that her sons have been abused.

3. In most cases before this Court, it has no more than the word of a mother and the equivocal statements of young children.  Rarely is there corroborative physical evidence.  I suspect that cases where there is physical evidence are rarely before the Family Court, because such issues would appropriately be determined in our criminal Courts. 

4. In this case, I have the benefit of compelling medical evidence.  As a starting point, we have two young boys telling their mother that some adult inserted foreign objects into their bottoms.  Both boys were examined on the night of the disclosure, which was a night proximate to the alleged abuse.  Each of the boys was found to have tears to their anuses.  I have described earlier the starkly similar nature of the injuries, their location, and their age.  In each case, the tears were fresh and less than three days old.  The doctors were each to conclude that the injuries were consistent with the assertions made by these young boys.  The medical evidence is to the effect that the injuries can only be caused in one of two ways:  either by the boys passing a hard stool too large for the opening in their anus, thus causing a tear, or alternatively as a consequence of a sharp object or a large object being inserted into the anus. 

5. In this case, constipation can be ruled out.  The medical examination failed to disclose any indication of constipation at that time.  Each of the parties was expressly questioned about this and they were each able to assure the medical practitioners that neither of the boys had presented with constipation over the three day period. 

6. Dr T was to inform the Court that the level of constipation necessary to cause a tear to the anus would be significant and painful, and likely to cause a child to exhibit pain and distress.  Two young boys suffering such severe constipation over a period of three days would simply not go unnoticed by two parents over that period.

7. In the same way, the Court can rule out some of the other accidental possibilities quietly floated by the counsel for the father.  The chances that two young boys would leave their mother on 21 November without apparent injury, and then, at apparently about the same time, suffer unusual and largely identical injuries to a part of their bodies not normally prone to childhood accidents, and that each would choose not to report that injury or any associated pain to either of the adults caring for them for that entire weekend, is beyond comprehension.  These boys were not accidentally injured.  These boys were injured by the insertion of a sharp and/or large foreign object into their anus over the period of that weekend.

8. The mother did not do it.  There is no evidence that she has.  That proposition was not put to her.  And, in any event, I expressly find that she did not.  I have ruled out the prospect of each or either of the boys causing these injuries by accident.  There are only two people left:  they are Ms A and/or the father.

9. The boys make a complaint to their mother.  They are distressed and they exhibit pain.  One's first reaction to the details of the complaint is that they are bizarre.  However, what we now have in this case is that, as it were, lo and behold, the boys each suffer bizarre injuries which are entirely consistent with their bizarre stories. 

10. Of course, to determine that Ms A was responsible for these injuries requires a finding that Ms A, herself, was engaged in bizarre, deviate behaviour with young, male children.  The natural reluctance that one would have to conclude that an adult would be capable of such behaviour is diminished in this case by the evidence that Ms A has, in fact, previous criminal convictions for that type of behaviour.  Not long before she met the father, she was convicted of indecently dealing with a 10 year old boy, and whilst she was quite reticent to provide the Court with much of the detail, sufficient emerged to understand that she invited a 10 year old child into her room at night, that she was naked at the time, and that she caused this child to touch her on the breasts and genital region.  It is not known what else occurred, but it is clear that Ms A thereby exhibited the capacity to breach boundaries in a most fundamental way.  She said she subsequently sought psychiatric treatment, but the outcome of that treatment is not known to the Court.

11. I make a positive finding of abuse against Ms A.  Fundamentally, I accept what the boys said and reported to their mother, whether or not one takes the specifics of the "knife" and "fork" literally.  In any event, I am satisfied that the boys experienced the injuries as a result of Ms A inserting large or sharp objects into the anus of each of the boys.  I find that she did so over the weekend of the 21st and 23rd November.

12. The more relevant question, the more pertinent question, and perhaps the more difficult question, is:  to what extent was the father involved in this abuse?  The evidence against the father includes the statement of S to his mother in February/March of 2004, which indicated that the father was present and that, at the same time, he was engaging in some inappropriate sexual activity in front of the children.  I accept the mother's evidence that the boys have thereafter repeated statements to that effect in discussion with their mother. 

13. I have also referred to the later statements of each of the boys to their mother and other people, directly implicating their father as participating in the insertion of objects.

14. For the purposes of these deliberations, I also accept the mother's evidence that, during the relationship, the father engaged in sexual activities which did include the insertion of foreign objects into his anus.  I take some little account of her instinctive reaction to the information provided by S in February/March, based on her experience during the parties’ relationship.

15. The evidence against a finding against the father includes the persistent denial of each of the boys on the night of the disclosure and the denials in the days immediately after that initial disclosure.  I take account of the father's conduct on 23 and 24 November in attending at the hospital, co-operating with the police, and leaving Ms A to deal with the police on her own.  I accept that those actions are more consistent with the behaviour of an innocent mind.

16. On the other hand, I am a little troubled by the fact that the father did very little over the following three years to press the issue, or to have any contact with the children.  Of further significance is the fact that he only commenced to make some concerted effort after Ms A, the woman I find to have abused the children, left the household.  In terms of the father's position, one would expect that a man wrongly accused of gross sexual abuse of his own children, and wrongly deprived of a relationship with those boys, would be angry, outraged and would be pursuing every avenue to clear his name and to have his relationship with his children restored.  In this case, instead of rage there is largely inactivity, and, I find, a level of inactivity not consistent with one's usual expectations.

17. There are two aspects to the boys' assertions against their father:  one, that he was present, failed to protect them, and engaged in some inappropriate acts himself;  the second and later allegation, that he actively inserted objects. 

18. I take the view that the boys' later statements need to be viewed with a great deal of caution.  These statements are made many years after the event.  The children were, in fact, very young at the time of the event and their cognitive skills would have been limited.  The passage of time would be likely to significantly blur their thinking.  Those statements are inconsistent with their earlier denials on behalf of their father.  Even the disclosures made by S in February and March need to be carefully considered.  As to the later statements, it is, in my view, inevitable that the children's thinking has been contaminated by the mother's own anxiety about these matters.  In my view, it would be unsafe and inappropriate to make any positive finding that the father actively participated by inserting objects on the strength of that recent evidence, after having particular regard to the earlier inconsistent evidence.

19. As to the evidence relating to the father's presence and failure to protect and indirect participation, I take the view that S’s February/March statements do not suffer from many of those problems.  The disclosures were made but three months after the event and warrant some weight.  At the same time, I do take account of the fact that there had been a passage of some time and, as I say, these statements were inconsistent with the previous denials.  It is clear that the boys had experienced some questioning in the days after the event, which may have had the effect in S’s mind of implicating his father.

20. On the other hand, those statements were still reasonably proximate to the event and not rendered inherently unreliable merely by the passage of time.  I note that S provided his mother with a quite detailed description of the events which, essentially, remain consistent with the more limited, earlier complaint he made to his mother about Ms A’s involvement.  I accept the mother's account that S’s disclosure at that time was indeed largely spontaneous.  I accept that it was prompted only by past assurances that she would listen to him if ever he wanted to talk.  Now, in those circumstances, spontaneity adds to the weight I place upon that evidence.  Further, I accept and note that S exhibited appropriate levels of significant stress at the time he was implicating his father.

21. Further, given the father's propensity for the very type of behaviour described by S to the mother, in my view, it would be a somewhat remarkable coincidence that a 4 year old child, with limited intelligence and limited knowledge appropriate to that of a 4 year old child without sexual experience or knowledge, would, in implicating his father, stumble across the very bizarre behaviour that his father had, in fact, engaged in privately on previous occasions.  It is difficult to imagine the basis upon which a child would be capable of understanding and inventing such behaviour.

22. However, because of the reservations I have expressed in relation to some of the more recent evidence against the father, I am not prepared to make a positive finding to the required standard that he was actively involved in the acts of penetration.  However, on all of the evidence, I am satisfied that it was at least possible, and more likely than not, that the father was present during the incident when Ms A inserted objects, as described earlier, and further that it is likely that he participated indirectly by engaging in activity resulting in the use of some foreign objects upon himself. 

23. Needless to say, with those findings, I conclude that the father has engaged in abusive conduct; he failed to protect his children and failed to set appropriate boundaries.

24. As I indicated at the outset, the findings I make in relation to these issues are very important fundamental findings.  Each of the parties needs to be given the opportunity to reflect upon those findings and to consider their respective positions and determine in what ways the case might conclude or proceed.  I intend to give the parties a week to consider their positions, at which time I will mention the matter at 9.30 next Thursday to hear submissions about the further conduct of the case.  I excuse the parties from attendance.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan.

Associate: 

Date: