McCoy v Wessex
[2007] FamCA 489
•29 May 2007
FAMILY COURT OF AUSTRALIA
MCCOY & WESSEX [2007] FamCA 489
FAMILY LAW – CHILDREN - PARENTING - Magellan - Alleged sexual abuse - No finding of unacceptable risk
Family Law Act 1975 (Cth) M v M (1988) 166 CLR 69
B and B (1993) FLC 92-357
Re W (sex abuse: standard of proof) (2004) FLC 93 -192
WK v SR (1997) FLC 92-787
K v B (1994) FLC 92 – 478
W v W (abuse allegations; unacceptable risk) (2005) FLC 93 -235
N and S and the Separate Representative (1996) FLC 92 -665
S v S [1993] NZFLR 657
Napier v Hepburn [2006] FamCA 1316
Potter v Potter [2007] FamCA 350
APPLICANT: Mr McCoy
RESPONDENT: Ms Wessex
INDEPENDENT CHILDREN’S LAWYER:
FILE NUMBER: MLF 2003 of 2006
DATE DELIVERED: 29 May 2007
PLACE DELIVERED: Melbourne
JUDGMENT OF: Brown J
HEARING DATE: 14-15 February and 7-8 May 2007 REPRESENTATION
COUNSEL FOR THE APPLICANT: Ms Melita
SOLICITOR FOR THE APPLICANT: Peter Lynch
COUNSEL FOR THE RESPONDENT: Ms Sevdalis
SOLICITOR FOR THE RESPONDENT: Micah Law Centre
INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Eidelson
INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Pearsons Orders
(1)That all previous orders and injunctions in respect of the child, a son, born in November 2001 be discharged.
(2)That the father and mother have equal shared parental responsibility for the child.
(3)That the child live with the mother.
(4)That each party have responsibility for the child’s day-to-day care, welfare and development when in his or her respective care.
(5)That the father spend time with the child as follows :
(a)from 9.00 am until 1.00 pm on Saturday 2 June 2007;
(b)from 9.00 am until 6.00 pm on :
(i) Saturday 16 June 2007; and
(ii) Saturday 30 June 2007;
(c)from 12.00 noon on Saturday until 6.00 pm Sunday on the weekends commencing on :
(i)Saturday 14 July 2007;
(ii)Saturday 28 July 2007;
(iii)Saturday 11 August 2007;
(d)on each alternate weekend thereafter, until the commencement of the school year in 2009, from 4.00 pm on Friday until 6.00 pm on Sunday, commencing on 24 August 2007;
(e)as from the commencement of the 2009 school year, on each alternate weekend from the conclusion of school on Friday until the commencement of school the following Monday (or, if the following Monday is a public holiday, 9.00 am on Tuesday), recommencing on the second weekend in each school term;
(f)on each alternate Tuesday from 4.00 pm until 7.00 pm, commencing on 26 June 2007;
(g)if Father’s Day falls on a weekend when the child would not otherwise be with the father, the father shall spend time with him on that weekend in lieu of the preceding weekend;
(h)if the child’s birthday falls on a day on which he would not otherwise be with the father, for a period of three hours on the child’s birthday at times to be agreed and, failing agreement,
(i)if a weekday, from 4.00 pm until 7.00 pm; and
(ii)if on a weekend, from 2.00 pm until 5.00 pm;
(i)for one week in each school term holiday in 2008 and thereafter, at times to be agreed and, failing agreement, from 9.00 am on the first Saturday of the holiday until 5.00 pm on the second Saturday of the holiday;
(j)for two weeks during the summer holidays in 2008/2009 and thereafter, at times to be agreed and, failing agreement (and subject to paragraph 7 of these orders):
(i)the first two weeks (commencing at 9.00 am on the first Saturday) in 2009/2010 and each alternate year thereafter; and
(ii)the third and fourth weeks (commencing at 9.00 am on the third Saturday) in 2008/2009 and each alternate year thereafter;
(k)in 2008 and each alternate year thereafter, from 2.00 pm on Christmas Day until 12.00 noon on Boxing Day; and
(l)as otherwise agreed in writing between the parties.
(6)If Mother’s Day falls on a weekend when the child would not otherwise live with the mother, the child shall live with her on that weekend and spend time with the father on the following weekend, in lieu.
(7)In 2009 and each alternate year thereafter, the child shall live with the mother from 2.00 pm on Christmas Day until 12.00 noon on Boxing Day.
(8)That each party be and is restrained, by themselves, their servants and agents:
(a)from denigrating the other, or the spouse/ partner or any family members of the other, to or within the hearing of the child;
(b)from discussing these proceedings and the allegations made herein with the child, or within his hearing;
(c)from applying any physical punishment to the child; and
(d)from taking the child to any psychologist, therapist, counsellor or like professional in relation to the allegations of sexual abuse raised in these proceedings, unless directed by a court or the Department of Human Services.
(9)That the father ensure that when the child is in his care the child be restrained in an appropriate car seat or safety belt when in any private vehicle.
(10)That the father not be affected by alcohol during any period of time with the child, not permit the child to be or remain in the presence of a person affected by alcohol.
(11)That the father be restrained from smoking in the child’s presence:
(a)within any house, flat or other building; and
(b)within any confined space.
(12)That changeovers other than those which occur at the child’s school be at an agreed public location, and failing agreement:
(a)the B Contact Centre or such other contact centre as the parties agree (each party to bear half the cost); and
(b)until a place becomes available at B Contact Centre or other agreed contact centre, and on any occasion when B Contact Centre is unavailable, at a location nominated by the independent children’s lawyer.
(13)That within 14 days hereof the independent children’s lawyer advise the parties in writing of the location at which changeovers are to occur in the event the provisions of paragraph 12(b) apply.
(14)That the parties exchange a communication book at each changeover in which each shall record matters likely to be of importance to the child’s welfare when with the other, and the mother obtain a suitable book and send it with the child on 2 June 2007.
(15)That the wife authorise the principal of each kindergarten or school attended by the child to provide to the father (at his expense, if any):
(a)a photocopy of each kindergarten or school report for the child; and
(b)an order form for each school photo of the child.
(16)That from the time the child commences school, the father be at liberty to visit his school from time to time for events, activities and functions routinely attended by parents PROVIDED THAT the father not attend the child’s school at the commencement or conclusion of a school day unless:
(a) a changeover pursuant to these orders occurs at that time; or
(b)an event, activity or function routinely attended by parents commences or concludes a that time;
(17)That each of the parties keep the other advised of any significant accident or illness suffered by the child whilst in his or her care, and authorise each treating professional to discuss the child’s symptoms, prognosis and treatment with the other parent.
(18)That the independent children’s lawyer be discharged one month from this day or, in the event a notice of appeal is filed, upon determination of such notice of appeal.
(19)That pursuant to s.65L these orders be supervised by a family and child consultant nominated by the Manager of Child Dispute Services, Melbourne, and
(a)if requested by a party, the consultant meet the parties separately; and
(b)if considered appropriate, the consultant may meet with the child;
(c)if requested, the consultant advise the mother of an appropriate agency from which to seek support for the child and herself; and
(d)the supervision be reportable in the event another application is filed and the judicial officer before whom it is listed requests a report.
(20)That all extant applications be otherwise dismissed.
(21)That a copy of the reasons for judgment herein may be made available to;
(a) Dr K;
(b)the Department of Human Services and any person to whom the Department refers the mother or the child;
(c)the principle of any kindergarten or school attended by the child and, in his or her absolute discretion, any teacher, counsellor or like professional working with the child at the kindergarten or school;
(d)any medical practitioner, therapist, counsellor, social worker or like professional working with the child; and
(e)any member of a police force investigating any allegation that the child has been sexually or physically abused.
IT IS DIRECTED
(22)That these proceedings be removed from the List of matters awaiting finalisation.
(23)That pursuant to s. 65DA(2) and s. 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this order.
(24)That all documents produced pursuant to subpoena filed herein be returned forthwith to the party or institution producing same.
IT IS CERTIFIED
(25)That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
FAMILY COURT OF AUSTRALIA AT MELBOURNE FILE NUMBER: MLF 2003 of 2006
Mr McCoy Applicant
And
Ms Wessex Respondent
REASONS FOR JUDGMENT
1.The parties were in a short and turbulent relationship between 1999 and July 2003. Their son was born in November, 2001 and was not yet two at the time of their final separation; while they did not agree on the number or times of earlier separations and reconciliations, they did not live together after July 2003, and spent time apart in 2002 and 2003. The mother has another child, S, born in March, 2006; his father is Mr B, with whom she lives.
2.Earlier proceedings in relation to the child resolved by final orders made in the Federal Magistrates’ Court on 4 April, 2005, which provided for the father to have regular and frequent contact with the child. A little over a year later, on 23 June, 2006, the mother filed an application seeking that those contact orders be discharged and that the child spend no time with his father. The same day she filed a form 4 notice of abuse alleging that the child had made recent disclosures of sexual abuse by the father and his associates. Save in an observation session in October 2006 (with the psychologist preparing the family report) the child has not seen his father since May 2006. The Court is asked to determine what time, if any, the child should spend with his father in the future.
EVIDENCE
3.Findings are made on the balance of probabilities, having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.
4.The mother relied on an affidavit sworn by her on 24 January, 2007 (which annexed an earlier affidavit filed by her on 23 June, 2006), and an affidavit of her mother, the maternal grandmother, sworn 28 July, 2006.
5.The father relied on affidavits sworn by him on 8 September, 2006 and 4 May, 2007.
6.The independent children’s lawyer relied on a Department of Human Services Magellan report dated 30 August, 2006 (prepared by Senior Child Protective Worker Ms V), and a report of a counsellor with the Children’s Protection Society, Ms G, dated 25 January, 2007. The mother tendered a later letter from Ms G, dated 26 March, 2007. No party sought to cross-examine Ms G or Ms V. Also in evidence was a report of Dr K, psychologist, dated 25 October, 2006; Dr K was cross-examined.
7.The mother made very clear her dissatisfaction with Dr K. It was her evidence that the child was scared and confused when with him, and believed Dr K “didn’t care”; she was convinced that Dr K badgered and pressured the child to deny any memory of abuse. Nothing in Dr K’s evidence satisfies me that the child’s presentation was consistent with fear or that he was “petrified”, to use the mother’s word. To the contrary, the child chatted comfortably with Dr K in their first interview and readily spoke about his father being naughty; he was clearly not worried about telling Dr K the reasons for the naughtiness, which were mainly to do with drinking and smoking. When he returned for a second interview, he spoke about the alleged abuse and also about the good times he had with his father, information volunteered by him. I find Dr K to be a witness of expertise and I place weight on what I find to be cogent and insightful evidence.
8.In the course of the trial a family report prepared by Mr A for the Federal Magistrates’ Court proceedings in 2005 was tendered. Mr A was not cross-examined and I do not place weight on his expert opinion then in determining these proceedings. The report’s relevance is twofold. First, it provides the context against which a number of questions were asked and answers given. Second, its recommendations were substantially incorporated into the final orders made by consent on 4 April, 2005 and it provides the background to those orders, and a sense of the then issues, which are relevant to the mother’s submissions relating to lies told by the father in those proceedings, and other evidence.
9.The mother presented as tremulous, sometimes tearful and absolutely focused on her conviction that the child has been sexually abused by the father and by the father’s friend Mr H. Adamant that the child told her the truth, she dismissed anything said by him to other people which was inconsistent with or not corroborative of sexual abuse. She believed that the child had been “petrified” when with Dr K and that Dr K had badgered and pressured him into saying that it was his mother who told him he had been abused and that he had no memory of it.
10.The mother was very clear about her alleged objective; she said that she came to Court “not to vary or alter the orders, but to have the father and Mr H charged with sexual assault”. This was a disingenuous response, as she also made it very clear that she wanted all existing orders for contact to be discharged, and for there to be no contact between the child and his father.
11.This Court has no role to play in the decision about whether a person is charged with a criminal offence; that is a matter for police and the Office of Public Prosecutions. The evidence is that the father initiated contact with police after he learnt that the child had been interviewed and that the police did not seek to interview him.
12.I do not doubt that the mother attempted to answer questions honestly but am satisfied that her recollection of events is filtered through the lens of her conviction of abuse. In his report Dr K noted it was entirely possible the mother genuinely believed the child had been abused. However, in his opinion there were factors in her presentation and her involvement in the new relationship which raised the hypothesis that it is possible she may prefer to have the child’s natural father not involved with him, and was employing the child’s statements (consciously or unconsciously) in a fashion that was designed to exclude the child from spending time with his father.
13.The father’s view is that the mother has maliciously invented the allegations of sexual abuse to frustrate his relationship with his son. Cross-examined about that, Dr K thought the hypothesis unlikely. He said that while it was difficult to say if the mother genuinely believed the child had been abused, she presented as if that were the case and he had no reason to think otherwise; he thought an “unconscious process” was more likely, in which she was receptive to construing things said by the child in a certain way, and believing them, because of her own experiences and views of the father. In his assessment she was very anxious about the time the child spent in his father’s care, and the anxiety had “fuelled her doubts”. I place weight on that evidence and find that analysis to be well-founded.
14.It is clear from her affidavits that the mother sought to rely on aspects of the father’s behaviour prior to final orders being made in April 2005. I note her evidence of the reasons she agreed to those orders but nothing in her evidence satisfies me that she then held any genuine concerns about the potential for those orders (assuming they were complied with) to place the child at risk.
15.By the time the father gave evidence he had not seen the child (save with Dr K) for more than eleven months and was clearly frustrated by that, and by the fact the case had not been able to conclude in February. I am satisfied that before me he was candid about his past use of cannabis and involvement in fights, about excessive drinking in the past, about a burglary in 2003 and about phone calls made to the mother in late 2003. As he conceded, he had not been candid about those matters in the past. In affidavits sworn for the Federal Magistrates’ Court proceedings he had denied ever using cannabis, ever drinking to excess or ever being violent in the past. He also denied the burglary, and pleaded not guilty to those charges. I note that when the father spoke with Dr K in October 2006 he was frank about these allegations.
16.I accept as true the father’s evidence that he has not used cannabis since he was a teenager, that he was involved in fights when he was at high school and for a period immediately after that, and that both he and the mother drank to excess on occasions when they were together. Their relationship commenced when they were about 16 and 17 and existed for some years prior to them living together. Dr K spoke of the sort of behaviour that is common (as opposed to legal, or ideal) in developing adults and this evidence needs to be seen in that light. The question is whether the father’s admitted lack of truthfulness in previously sworn documents should lead (as submitted by counsel for the mother) to a finding that he has lied about sexual abuse of the child and intimidatory and harassing behaviour towards the mother in recent times.
17.While Dr K made clear that he did not endorse the father’s lack of truthfulness, he said he was “jaundiced” about allegations in affidavits. He said people lie because they believe things done by them in the past will be used against them in the present; the lies “reflect what’s at stake”. In his opinion the father was frank with him about these aspects and did not try to paint a picture in which his portrait was rosy and the mother’s was negative. To Dr K there appeared to be some form of balance in his presentation. The father was upfront and he did not have concerns about his general truthfulness; he said he would not draw the conclusion he would be inclined to lie on a regular basis.
18.As Dr K said, at one level no-one can know where the truth lies but it is his role to make predictions based on observations and past behaviour and the father’s lies in the past did not raise significant concerns with him. I share that view. An assessment of his credit (particularly in relation to his denials of abuse and intimidatory behaviour) must be made, and in that process the Court will take into account his prior dishonesty. However, it is not, of itself, determinative of that credit finding.
ORDERS SOUGHT
19.As set out in her original application, the mother sought the discharge of all existing contact orders and that the father spend no time with the child. In the witness box and when pressed, she spoke of the potential for supervised contact, but no details were proffered. In final submissions her counsel addressed the proposals of the independent children’s lawyer and the father, and sought certain modifications to them, but made it clear that her client’s position remained one of no contact whatsoever. She did not seek the discharge of the balance of the parenting orders of April 2005, which include an order that the parties retain parental responsibility for the child’s long term care, welfare and development.
20.The father sought time with the child broadly as set out in his amended response, but adopted the recommendation of Dr K for that to be phased in by some initial day contact only.
21.The independent children’s lawyer supported the immediate resumption of the child’s time with the father by a phased in regime over two months, culminating with the child spending time with his father on each alternate weekend from 4:00 pm. Friday until 6:00 pm. on Sunday and during school holidays and at other special times. Once the child starts school (in 2008) he proposed that the father’s time with the child commence at the conclusion of school on Friday and conclude at the commencement of school the following Monday. It was his submission that the parties should have equal shared parental responsibility, and that both parties should be restrained from denigrating the other, discussing the proceedings with the chidl, applying physical or corporal punishment and from taking the child to a therapist or counsellor in relation to the allegations of sexual abuse.
LEGAL PRINCIPLES
22.The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
23.When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
24.There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
25.If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
26.The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M v M (1988) 166 CLR 69. The High Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) made it clear that the ultimate and paramount issue to be decided in proceedings for what are now called parenting orders is whether the making of the orders sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation of sexual abuse by the parent who seeks time with a child or residence does not alter the paramount and ultimate issue which the court has to determine. The High Court found (at para 77) that although findings on the disputed allegation of sexual abuse will have an important, and sometimes a decisive, impact on the resolution of that issue,
…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318: McKee v McKee (1951) AC 352 at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447 at pp 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a context between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
27.In a joint judgment in B and B (1993) FLC 92-357 the Full Court (Fogarty, Baker and Purvis JJ) discussed the relevant principles having regard to the High Court’s decision in M v M and, at 79,778, said:
The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
28.In Re W (Sex abuse: standard of proof) (2004) FLC 93-192 the Full Court (Kay, Holden and O’Ryan JJ) examined the principles applicable in cases involving difficult questions of sexual abuse where the only witnesses to the alleged abuse are the alleged perpetrator and the alleged victim, noting the particular difficulties where the victim is young and does not give any direct testimony that can be the subject of forensic testing.
29.The Full Court considered the relevance of the decision in WK v SR (1997) FLC 92-787. In that case the trial judge had found that the father had sexually molested both his step-daughter and his own daughter. The Full Court said, at 84,691:
26.However, the evidence of ZH was in fact the core evidence relied upon by his Honour in order to substantiate the allegations of abuse against the father. Given the gravity of the allegations raised by the evidence, and the Court's duty to apply a rigorous civil standard of proof pursuant to the test enunciated by the High Court in Briginshaw (supra) and restated in s 140 of the Evidence Act 1995(Cth), her evidence needed to be very carefully evaluated.
[…]
46.It is clear therefore, that a finding that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw. Section 140 of the Evidence Act 1995 (Cth) has adopted this test as follows:
'140 (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.'
47. In children's matters under Part VII of the Family Law Act, where the issue is a child's contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
48. This is a matter which must be specifically borne in mind by a Court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this Part, the Court's paramount consideration must be the best interests of the child, in accordance with s 65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Furthermore, when deciding what orders are in the best interests of a child, a trial Judge may often be confronted with a multiplicity of issues and facts. In these circumstances, evidence which, for example, is relevant and probative in relation to the question of an unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred.
30.The Full Court found that the trial judge had not paid attention to these views, and that unless the rigorous approach set out in WK v SR is taken, in circumstances where the often inevitable result of a positive finding of abuse is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and the child the “disastrous effects” of a positive finding that is reached in error. The Full Court found that the termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort, noting (at 79,217-8):
The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to remain conscious of this imperfection at all times.
31.The Full Court then referred with approval to the dissenting judgment of Kay J in K v B (1994) FLC 92-478 where his Honour said, at 80, 972:
In cases of alleged sexual abuse, there is a significant risk that the ultimate effect of orders to be made by the court, and of the proper operation of the legal system, will be overlooked in the court’s anxiety to ensure that the risks of sexual interference are minimised. Where the evidence of sexual abuse consists of ambiguous statements of a pre-kindergarten aged child coupled with perceived but possibly otherwise explicable behavioural changes, it is almost impossible for the party denying any impropriety to prove that party’s position.
In an article entitled 'Prediction, Prevention and Clinical Expertise in Child Custody Cases In Which Allegations of Child Sexual Abuse Have Been Made', appearing in Volume XXVI No 2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law), at p 170, it was observed:
'Unfortunately the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draw the clinician — and perhaps even judges and jurors as well,... away from what ought always to be the starting point of her or his evaluation enquiries, which is that the event did not (or very highly probably did not) occur. Because the null hypothesis (and, correlatively the absence of an event) cannot be proved, in their testimonies concerning possibilities of alleged events, clinicians strongly resist exonerating the targets of their evaluation. Because it is always possible that a given individual — even one randomly drawn from the general or a specific population — has sexually molested a child, an inconvertible proof that the individual has not molested a child is impossible.' (emphasis in original)
The article concerns itself with research carried out at the University of Michigan. Case notes concerning the possible sexual abuse of a three year old child were provided to 8 senior clinical psychologists, 23 graduate students undergoing clinical training in psychology and 50 members of staff of child guidance clinics including social workers, clinical psychologists and psychiatrists all specialising in child development in areas of child mental health. They were asked individually and then in groups to evaluate the probabilities that sexual abuse had occurred and then to recommend what if any ongoing child/father contact should take place.
The range of opinion on whether there had been abuse was so wide that the authors concluded as follows:
The most striking feature of these studies’ findings is the extremely large range across experienced and non-experienced clinicians of estimates concerning the likelihood that M was sexually abused by her father. When given all of the relevant facts of the case, child experts and trainees varied greatly in their individual judgment... These findings lend strong support for the view that individual experts can provide courts little if any assurance that they are able to provide even crudely reasonable (i.e. objective) estimates of likelihood that child sexual abuse has occurred or will occur, when they are confronted with the same set of ambiguities faced by the courts in these cases.
32.In Re W(Sex abuse: standard of proof) the Full Court concluded its analysis of the relevant legal principles by remarking, at 79,218:
The lessons to be learned have not changed. The risk that the Court will find heinous behaviour where none has occurred needs be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.
33.With respect to the Full Court, one might as well say that the harm and injustice that flows to a child from an erroneous negative finding is almost too horrible to contemplate, that harm including repeated sexual abuse of the child. Nevertheless, I am bound by the exposition of principle in the judgment.
34.In W v W (abuse allegations; unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) examined principles relevant to child sexual abuse cases with particular emphasis on what is meant by unacceptable risk, the potential cessation of a significant or meaningful parent/child relationship and the appropriateness or otherwise of supervised contact. As a starting point the Full Court referred to the significant detrimental harm to a child who is sexually abused, noting (at 79,906) the discussion by Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 where his Honour said, at 82,709:
The sexual abuse of a young child by a parent or care giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long term, can be devastating.
35.The Full Court also had regard to Fogarty J’s acknowledgement of the potential for false allegations. Referring to Thomas J’s judgment in S v S [1993] NZFLR 657, Fogarty J said (at 82,711):
Courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception or information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.
36.After considering a number of decisions in which the concept of unacceptable risk was considered, the Full Court in W and W (abuse allegations; unacceptable risk) concluded (at 79,910):
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognized the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial judge to assess future risks to a child.
37.The questions posed by Fogarty J are found at 82,714 in N v S and the Separate Representative, as follows:
In asking whether the facts of the case do establish an unacceptable risk a court will often be required to ask such questions as What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time have the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been proved? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
38.In two recent decisions the Full Court has again considered the law relating to findings as to the existence of an unacceptable risk of abuse. In Napier v. Hepburn [2006] FamCA 1316 the Full Court considered a father’s challenge to a decision of the trial judge allowing him only supervised contact to his six year old son. In allowing the appeal the Full Court (Bryant CJ, Kay and Warnick JJ) found that it was impossible to ascertain what it was that led the trial judge to the conclusion that unsupervised contact with the father would expose the child to an unacceptable risk of abuse. The trial judge had found that the father lacked candour in relation to evidence of his sexual practices before and during the parties’ relationship and found that where there was a conflict of evidence between the parties, unless specifically otherwise determined in his reasons, he preferred the evidence of the mother. The Full Court noted (at para.79) that the determination of the question of whether the child may have been abused required some assessment to be made of the father’s credit in relation to his strenuous denials that he had acted inappropriately with the child, and that even a finding that the allegations could not be rejected as groundless ought not lead inevitably to a finding of unacceptable risk.
39.The Full Court cited with approval (at para.56) another passage from the judgment of Fogarty J. in N v. S at 82,713 where his Honour said (emphasis added by the Full Court) :
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
[…]
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
[…]
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that my nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.
40.In Potter v Potter [2007] FamCA 350 the Full Court (Bryant CJ, Coleman and May JJ) referred to the quoted judgment in Napier v. Hepburn, and to a separate judgment by Warnick J. in that case, in which his Honour said, at para.114 :
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child, That goal is to provide a platform, for any future consideration of the family circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or court making decisions for a family) might subsequently explore options for change.
RELEVANT CHRONOLOGY
41.It is clear the parties’ relationship was hostile after separation. The father was charged with burglary and theft in 2003 after breaking into the mother’s mother’s home and stealing a refrigerator and kitchen items stored under the house. He was convicted, after pleading not guilty. The first time he conceded his involvement in that burglary (in these proceedings) was in the affidavit sworn by him on 8 September, 2006.
42.By late 2003 the mother was in a relationship with Mr B.
43.The father’s contact with the child ceased in January 2004 when the mother sought an intervention order as a result of harassing telephone calls from the father and what she saw as intimidation and denigration. The order, which was made on 8 January, 2004, was to last for two years. The child was not named as an aggrieved family member on that order; it prohibited the father from assaulting, harassing, threatening or intimidating the mother, and from approaching, telephoning or contacting her in any way, save (in the usual terms of such orders) in the company of a police officer or pursuant to a court order or direction made under the Family Law Act 1975. At that point contact between the father and the child ceased.
44.On 21 April, 2004 the father filed an application in the Federal Magistrates’ Court in which he sought that the parties share responsibility for the child’s long term care, welfare and development, that the child live with the mother and that he have contact with the child. On 8 June, 2004 interim orders were made, providing for the child to live with the mother and for contact between the father and the child to recommence, after a gap of almost six months. There were to be six weekly periods of contact on a Sunday from 10:00 am. until 5:15 pm. and then contact on each alternate weekend from 1:00 pm. Saturday until 5:15 pm. Sunday. Changeovers were to be at the Children’s Contact Centre in W (conducted by B Contact Centre) and, after a period, at the G Police Station. The orders required the father to ensure that the child was conveyed in an appropriate child seat and he was restrained from consuming or being affected by alcohol during contact periods.
45.The DHS Magellan report records a notification on 26 October, 2004, the notifier alleging that once overnight contact commenced between the child and his father, the child became verbally and physically aggressive to the mother and Mr B. The mother’s oral evidence in respect of this was not consistent with the short summary in the DHS file; her evidence was of concern about bruises on the child which had faded by the time she took him to police and DHS.
46.Pursuant to orders made later in 2004, a family report was ordered and was prepared by Mr A and released on 22 March, 2005. In the introduction to that report Mr A noted that, unfortunately, the program of contact pursuant to the June orders was soon interrupted by a dispute about the safety of a child’s seat that the father had purchased and installed in his car, but contact did resume once that was resolved.
47.It is clear from the parties’ affidavits and Mr A’s report that a number of themes raised in these proceedings were rehearsed in those earlier proceedings. Mr A noted that when he saw her (in March 2005) the mother sought to reduce the contact the father was then having, because of her belief that the father was using the contact opportunity to poison the child’s mind and, indirectly, to cause the child’s then behavioural problems at home and at day-care. For his part the father seemed angry about his lack of contact with the child and about the accusations the mother had made about him, which he denied.
48.On 4 April, 2005 final parenting orders were made, by consent, in the Federal Magistrates’ Court. They provided for the child to live with the mother and for the father to have contact on each Wednesday from 5:00 pm. until 7:00 pm., each alternate weekend, initially from 10:00 am. Saturday until 5:00 pm. Sunday and, from 1 July, 2005, from 6:00 pm. Friday until 6:00 pm. Sunday, and for periods during school holidays and on special days. Changeovers were to take place at B Contact Centre or inside the G Police Station, the father was to ensure that the child was conveyed in an appropriate car seat, the father was to be in substantial attendance and not engaged in employment during contact periods and he was enjoined from being affected by alcohol or permitting the child to be in the presence of any person affected by alcohol. The orders restrained each of the parties from denigrating the other or any member of the other’s household in the presence or hearing of the child. These orders were consistent with Mr A’s recommendations, with the addition of the orders relating to the car seat, alcohol use and substantial attendance, which had been sought by the mother.
49.Contact continued pursuant to these orders for a little over a year. On a number of occasions the mother sent a note to the father relating to the child’s health and medication and, on occasions, doctors’ certificates were produced to explain a non-attendance. The child commenced kindergarten in February 2006; when the father and his friend Mr H attended, with a camera, there was an altercation and the mother refused to allow them entry. Save for the notes relating to the child’s health, the mother raised no matters of concern with the father and did not consult him about the child’s education or progress at kindergarten.
50.In early June 2006 the father was told that the child would not be available on a contact weekend, as he was ill. He was then served with an application filed by the mother in this Court on 23 June, 2006 in which she sought that the orders providing for him to have contact with the child be discharged. On the same day she filed a form 4 notice of abuse alleging that the child had made recent disclosures of sexual abuse by the father and his associates, and an application for an intervention order at the local Magistrates’ Court. For the first time the father learnt of alleged disclosures of abuse made by the child and of alleged behavioural problems and sexualised conduct over the preceding six months.
51.The DHS Magellan report reveals that about a week prior to the filing of the notice of abuse on 23 June, a notification was made to DHS alleging that the child was being sexually abused by his father.
52.The application for an intervention order alleged that the father had breached the earlier order (which had expired in February 2006) by causing the child to make offensive remarks to the mother regarding her safety, and that since December 2005 he had been indecently assaulting the child and had allowed another male to indecently assault the child. An ex-parte interim order was made that day, naming the mother and the child as the aggrieved family members. When the case returned to Court on 13 October, 2006 (by which time the application filed in this Court had been served on the father and interim orders made) it resolved by the father signing an undertaking that he would not assault, harass, threaten or intimidate the aggrieved family members or approach, telephone or contact them in any way. He agreed not to be within 200 metres of the B Preschool or other premises where family members lived or worked. The undertaking was to last until “subsequent final orders in Family Court proceedings number MLF 2003/2006”.
53.By 13 October, 2006 the mother’s application had been placed in the Magellan list of cases. A report had been received from the Department of Human Services, the father’s contact had been suspended (on 8 September, 2006), a family report ordered for release in December 2006 and a trial in February 2007 was envisaged. In that context one can understand why the parties agreed that the undertaking remain in force until the application for parenting orders was determined.
54.Despite a number of orders requiring him to do so, the father did not file a response to the mother’s application of 23 July, 2006 until 14 February, 2007, which was the first day of the trial. In it he sought that the mother’s application be dismissed and that the orders of 4 April, 2005 “be confirmed”. The matter had to be adjourned on the second day of the trial due to the ill health of the mother. When it resumed on 7 May, 2007 the father was granted leave to file an amended response in which he sought longer periods of time with the child after he commenced school, a number of specific issues orders and make-up contact for time missed since June 2006, being “all of the forthcoming school term holidays”, for the first two weekends out of each three weekends for the next 6 months, and such other makeup contact as the court deemed fit.
55.The mother’s evidence was that from late 2005 the child was reluctant to go on contact visits and was upset after them; he regressed and wet his bed. He repeated insulting, threatening and racist comments, critical of her and Mr B (the comments allegedly made by his father) and other derogatory remarks. She was concerned that the father was drinking when the child was with him (in breach of the orders of May 2005) and even letting the child drink. He then began to display sexualised behaviour towards his mother and his maternal grandmother and state that his father, and his father’s friend Mr H, had behaved in overtly sexual ways towards him, involving touching his penis and bottom, and penetrating his bottom with a finger. Notwithstanding the mother’s alleged concerns, the father continued to see the child until May 2006 and the mother said nothing whatsoever to him about the child’s reluctance or behaviour.
56.The mother alleged that on 1 June 2006 the child stuck his tongue down her throat, told her to touch his penis, said his father and Mr H touched his penis and bum when he wasn’t looking and that he didn’t want to go to daddy’s anymore. From that day she was convinced he had been sexually abused.
57.The child was subsequently interviewed three times by E SOCAU, twice at home and once in the office. At no time did he disclose any abuse. On 18 June, at his home, he said nothing indicative of abuse. Interviewed on 19 June at the police station he said that his dad said naughty things about his mum and put yabbies in the bath. The mother’s evidence was that two days later, on 21 June, the child asked to talk to police again and she arranged for them to come to the house but he mentioned nothing to them of any abuse. Her evidence was that he told her he didn’t want to tell them because “they will call my dad and he’ll get angry”.
58.The mother was then referred to the Sexual Abuse Counselling and Protective Program at the Children’s Protection Society on 22 June. Ms G’s report, dated 25 January, 2007, refers to twelve individual counselling sessions with the child; her letter dated 26 March 2007 notes that he had attended 15 counselling sessions to date. In not one of them did he make any disclosure of any experience which could be said to be sexually abusive. Ms G commenced some psychometric testing. The mother’s results fell into the “caution range” in relation to reliability and the scale recommended seeking additional information about the child’s behaviour from other sources, such as school. Ms G had intended to ask kindergarten staff to complete a ratings scale in relation to the child’s behaviour, but that had not been done when the trial commenced. I do not put weight on the psychometric testing.
59.The trial had to be adjourned as a result of the mother’s ill health. At that time I ordered the mother consult with Ms G as soon as possible and that unless Ms G expressed the opinion that further counselling sessions were essential, the child cease the individual sessions. Those sessions ceased. The child and the mother undertook the five session “one-step removed activities” recommended by Ms G. In her letter of 26 March 2007 Ms G identified the need to address the child’s developmental needs, given his difficulties with language and subsequent effects on behavioural and emotional functioning. The child had then been waiting for a speech therapy appointment (on a referral from his kindergarten teacher) since 2006; that therapy started on 4 May, 2007.
60.Dr K interviewed the child twice, for a total period of about three hours, and observed him for some time over two days. He described the child as an anxious child. His language appeared delayed and he appeared to have a receptive language problem. It was extremely difficult to maintain his attention and he appeared to have an attentional problem, with some behavioural impulsivity. Dr K’s opinion was that the child craves adult attention. He said repetitively that “daddy naughty”; that he was not seeing his father because he was naughty; and that his mother told him not to see his father. During the second interview he reiterated that his mother says his father is naughty and that his father drinks beer and smokes. He spoke of inappropriate touching; he said his mother had told him about it. He also said that it was nice seeing his father, that they watch movies, he cuddles his father, and he gets no smacks from him or his step-father; and that “mum thinks dad’s naughty but I don’t.”
61.When Dr K saw the child with the father, they had not been together since late May 2006. The child approached his father somewhat tentatively at first but then more openly and soon warmed up, becoming quite animated. He sat on his father’s knee and they read a book together and there was nothing inappropriate or concerning about their interaction.
PRIMARY CONSIDERATIONS
62.When determining what is in a child’s best interests 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.
Allegations of sexual abuse
63.The mother’s allegation that the father has sexually abused the child is at the heart of this case. I do not discount her other allegations and will deal with them, but it was her conviction that the child has been sexually abused which prompted her application to discharge all contact orders.
64.The need to protect a child from harm is referred to in the objects and principles of that part of the Family Law Act 1975 which deals with children. It is one of the two primary considerations, and it is inherent in a number of additional considerations, including those relating to family violence, and the attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child’s parents. In this case I find it convenient to consider the evidence relating to the allegations of sexual abuse before moving to the weight to be given to the other primary consideration, and the additional considerations.
65.The allegations could be summarised by saying that the mother alleges explicit sexualised behaviour by the child directed towards her and her mother from December 2005, repeated complaints that his father and Mr H sexually abused him by touching his penis and bum, and an expressed fear of being in his father’s company. The mother also complained of the father smoking and drinking when the child is with him, of allowing the child to drink beer “at least 15 or 20 times” (on the basis the child spoke of drinking “man bubbles”) and letting him watch inappropriate movies.
66.The mother’s evidence is that it was the child’s behaviour on 1 June, 2006 which made her realise he had been sexually abused. Her description is in paragraphs 23 and 24 of the affidavit sworn by her on 23 June, 2006, just over three weeks later, and is as follows :
23That on June 1 20060 [the child] jumped into my bed and tried to stick his tongue down my throat, I yelled instantly and [the child] said “touch my penis”. I told [the child] that was enough and that he had to stop talking like this. [the child] started to cry and replied, they all touch my peni. I asked him who? And he replied when I go to [Mr H’s] they pull my pants down and touch my penis and bum when I’m not looking. [The child] then went on to say that he did not want to go to daddy’s anymore.
24That I say that later that I spoke to my mother about [the child’s] comments and she asked [the child] about the allegation that daddy and [Mr H] were touching him. [The child] replied. I don’t see my face is this way and my bum is the other way.
67.In paragraphs 20 to 22 of that affidavit the mother deposed to earlier behaviour towards her and her mother. She agreed that she discussed none of this behaviour with the father and said nothing about it in any of the letters she wrote to him in the first half of 2006. Her description of those touchings is as follows :
21That in December 2005.January 2006 [the child] put his hand on the outside of my mother’s pants and inserted his fingers. My mother said never touch me there again. On Monday 30 January 2006 [the child] touched my mother on her groin and some time later he touched my mother’s bottom whilst she was bending over.
22Over the last 5 months [the child] has put his finger in my bottom on the outside of my pants and now is even trying to do it to his 2 month old sister whilst I am changing her nappy. Whilst bathing him on several occasions [the child] has asked me to put my finger in his bum, I say stop that, why are you saying that. [The child] replies daddy does go put it in and smell it. Daddy hops in the bath with me.
23On 1 February 2006, after contact changeover [the child] pulled down his pj pants and said “mummy kiss my bum”, I blew a bubble on his cheek joking and [the child] said “no mum kiss my bum hole daddy does”. I told [the child] don’t let anyone ever kiss your bum that’s where you go to the toilet. On 28 March 2006 [the child] said to me “look at my penis and bum, touch them, Mummy lick my bum, kiss my penis”.
68.The maternal grandmother deposed to the conversation on 1 June, 2006 in paragraph 3 of her affidavit sworn on 28 July, 2006, almost two months after the events. She said she heard the child speaking with his mother (this in relation to the conversation to which the mother deposed in paragraph 23 of her own affidavit) although the mother says nothing of her mother’s presence, the events allegedly took place in the mother’s bed, and her evidence was of speaking to her mother later about the child’s comments. It was the evidence of both that the maternal grandmother asked the child about the allegations later that day; the grandmother said she “questioned” him, asking him what he did when they touched him and why he didn’t tell them not to touch him.
69.The grandmother also deposed (in paragraph 3(kk) ) that the child put his hand in “my bum in top of my pants” on 9 December, 2005; presumably this is the incident referred to in paragraph 20 of the mother’s affidavit when she said the child put his hand “on the outside of my mother’s pants and inserted his fingers”. According to the grandmother, she asked the child that day how Mr H did it and “[The child] put his hand a special way and showed me (thumb bent down and fingers facing forward)”. She deposed to the child, when cuddling her, putting his hand in between her legs and touching her groin on 30 January, 2006, putting his hand “in his mum’s bum” when she was bending over picking up washing on 27 March, 2006, and saying “kiss my bum” and talking about his big penis when she was helping the mother with the new baby in April 2006.
70.The mother’s explanation for not doing anything about the child’s remarks until the conversation on 1 June, 2006 was that that was the first time he attributed responsibility for the behaviour to someone. However, that is not consistent with the evidence. Her mother’s evidence was that on 9 December, 2005 she had a conversation with him in which he not only told her that Mr H put his hand in his bum but demonstrated how he did it, and the grandmother told her daughter this. The mother’s own evidence was that on 1 February, 2006, the child told her to “kiss my bum hole, daddy does”.
71.Other allegations of the mother are set out in paragraphs 15 to 37 of the affidavit she filed on 23 June, 2006, and paragraph 19 of the affidavit filed on 24 January, 2007. Matters raised in other paragraphs are also referrable to these concerns. Amongst the additional evidence on which she relies is the following :
· The child parroting racist comments made by his father on his return from seeing his father;
· the father drinking and allowing the child to drink alcohol;
· The child repeating derogatory remarks and threats made by the father to her;
· The child becoming upset after contact periods and his behaviour regressing, including bed wetting;
· The chjild putting his fingers on the mother’s bottom “on the outside of my pants” and trying to do it to Baby S, who was then about two months;
· The child asking her to put her fingers in his bum, saying “daddy does it, put it in and smell it”;
· The child pulling down his pants and saying “mummy kiss my bum” and “kiss my bum while daddy does”;
· The child telling her mother and her sister, after contact stopped, that he had been touched by his father.
72.It is clear from the evidence that the first time the child touched both his grandmother and mother in ways they felt to be sexual, they were stern with him, and chastised him. It was in those circumstances that he attributed the behaviour to, variously, his father and Mr H.
73.Dr K’s evidence is that it is not uncommon in children in the three to four year age range, particularly where there is some lack of limits in the family and at periods of stress in separated families, to act out sexually to some degree. Further, it is not unusual for children in such situations, when confronted by family members, to explain their actions by attributing the behaviour to being involved with someone else or being shown such behaviour by someone else, commonly a family member. In his opinion it is “entirely possible” that the child’s behaviour can be interpreted in this fashion.
74.Cross-examined, Dr K readily conceded that it is not unusual for children to make disclosures over a period of time and for first disclosures to be tentative. If the abuse were not traumatic to the child, an abused child may be comfortable and affectionate with an abusive adult, and interaction between the child and alleged abuser is not the only factor to take into account when assessing either the existence of abuse, or the existence and degree of risk.
75.Dr K’s evidence was completely at odds with the mother’s belief (it had to be a belief, as she was not present to observe) that the child was petrified when with him and was badgered and pressured into saying that she had touched his penis and bum, and that she had told him that his father had abused him. Dr K’s evidence, which I accept, was that with him the child was not fearful. Importantly, he was not fearful when introduced to the father; he was somewhat tentative, and took a little time to warm up, which was entirely normal given that he had not seen him for some months. Dr K tested the child’s comfort level by leaving the room on several occasions, it being his evidence that a child who is genuinely anxious will respond in some way, either by behaviour or, for example, by following him from the room. Nothing of that sort occurred. It was also his evidence that although children can be comfortable and affectionate with abusive parents, the more severe and longstanding the abuse, the more clearly it will weigh in children’s experience; if there has been significant abuse it will not be balanced out by the good times but will be apparent in their responses and behaviour.
76.The abuse alleged by the mother is definitely significant. It involves penetration, gross touching and (I assume this is to be inferred from her evidence of the child’s comments about eating her groin) fellatio or some form of oral stimulation. It involves two people and, on one account, a third, being the man named Mr S who, at other times according to the mother, the child said was a good man and did not touch him. It allegedly took place over a period of at least six months and was sufficiently distressing that the child did not want to go on contact during that period and has been terrified at the prospect of going since. It is highly improbable that the child would have interacted with his father the way he did if he had experienced this kind of abuse.
77.When first interviewed by Mr K on 3 October 2006 the child stated immediately that his father was naughty because he “smokes . . . jumps in the lake . . . drinks beer alcohol”. He was quite insistent about not seeing his father, speaking repetitively about “daddy naughty” and not seeing him because he was naughty. He said R (his paternal grandfather) smoked and was naughty, that his mother told him not to see his father and, again and again, that “daddy naughty”. He said nothing about any form of sexual touching or abuse. Seen with his father (who he hadn’t seen since June) the child was initially tentative and somewhat reticent but soon warmed up and became quite animated. He comfortably sat on his father’s knee and read a book; there was nothing inappropriate or concerning in their behaviour. While the child had been insistent in saying he didn’t want to see his father, Dr K was not convinced that was how he felt; his affect was not consistent with any level of fear. This was borne out by their subsequent interaction.
78.Only when interviewed a second time, about a fortnight later, did the child say anything about the alleged abuse. The child spoke of the father and Mr H putting fingers in his bum, when they had clothes and underpants on, but had no personal recollection of it. He said “mum told me it happened . . . I don’t remember . . .mum told me . . . he’s naughty because he touched my bum”; on at least five occasions in that interview, he said that his mother had told him it happened. He also said that his mum touched his penis and bum; her explanation was that he got nervous, confused and upset with Mr K.
79.In Dr K’s opinion the child understood the meaning of “remember”, in both the short and long term, and there are no problems with the child’s memory or comprehension. In the course of two interviews the child clearly indicated that he did not recall being touched sexually by his father or anyone else, but had been told that this occurred.
80.Dr K was challenged about his evidence of the child’s understanding of “remembering” and the weight that could be placed on his repeated assertions that his mother had told him that abuse happened. Dr K’s response was clear and insightful and I accept his evidence in this and all other areas.
81.In summary, the child indicated clearly over a period of two interviews that he did not recall actually being touched sexually by his father or by anyone else, but that he had been told this had occurred. Despite his receptive language difficulties there are no problems with his memory or his comprehension of the notion of remembering things. Dr. K’s evidence was that the child’s affect was fine and there were no non-verbal signs to raise concerns about his veracity. He was not easily led and there was no sense that he was saying what he thought Dr K would want to hear.
82.In Dr K’s opinion it is unlikely the child does remember the abuse but is saying he does not. It is very unlikely he was abused and does not remember, as incidents of the sort alleged should have been remembered by a child of his age and stage. It is most likely that he has been provided with the information. The child indicated to Dr K that his mother told him not to see his father. Whether she did that expressly or not, I have no doubt that is the child’s view. On her own evidence she has discussed the alleged abuse with him. She also said she had told the child he was not to see his father for “a while”.
83.The mother would have the Court find that the child is terrified of seeing his father and that for some time prior to contact ceasing, he was reluctant to go. I do not accept her evidence of reluctance at changeovers. It may be that the child has been running away or hiding when his father is spoken of in her home but there could be a number of reasons for that. I have far more confidence in placing weight on Dr K’s observation of his interaction with the father and of his lack of any personal memory of abuse. Considering all the evidence I do not place weight on the child’s insistence to Dr K that he did not want to see his father or that his expressed view of his father’s “naughtiness” reflects his own experience.
84.Cross-examined about some of the details of the child’s accounts of abuse, the father’s evidence was that Mr H’s house has no stairs and that his friend Mr S lives not on a farm, but in K. He has taken the child yabbying in a lake near his home but has never put a yabby into the child’s bath; the lake is not safe for swimming as it contains blue/green algae. I accept that evidence.
85.The father strenuously denied any improper conduct by him or Mr H. He believes that the mother is determined to frustrate his relationship with their son and has invented allegations and coached the child to parrot these complaints. He noted that the family report prepared for the proceedings which culminated with the 2005 orders referred to the child’s then behavioural problems and that it was Mr A’s opinion that these behavioural problems when with his mother (which she attributed to the father) were probably the result of the child having insufficient contact with his father, giving rise to fretting and confusion in the child. I do not place weight on that as evidence of an expert’s opinion, but it is relevant to the father’s state of mind, and the reasonableness of it. When the Federal Magistrates’ Court proceedings concluded, and orders were made broadly in accordance with Mr A’s recommendations, the father was obviously aware that the mother alleged that the child’s then behavioural disturbances were attributable to his contact with the child, and that an expert witness had concluded otherwise. In those circumstances it is understandable that he is both sceptical and indignant that in these proceedings she persists in her view that responsibility for every difficulty experienced by the child lies with his father.
86.Save to Dr K, the child has only ever said anything which could be construed as indicative of sexual abuse to his mother and his maternal grandmother. In three interviews with police from the SOCA unit and 15 sessions with a counsellor with the CPS, he said not one thing referrable to abuse. Two of the SOCAU interviews were in the home and one was in the office. There is no evidence the child has said anything which raised concern at kindergarten, either in daily attendances or in the course of the assessment conducted in or about September 2006 which gave rise to a lengthy report (the relevant part of which is annexed to the mother’s affidavit). The letters and medical certificates tendered by the mother demonstrate that the child was seen by medical practitioners on numerous occasions in the first half of 2006, being the period in which the mother alleges he was consistently abused. There is no evidence of the child saying or doing anything when with a doctor which raised concerns.
87.To police in an interview on 19 June, 2006 the child said that his father said naughty things about his mother and put yabbies in the bath. Ms G, the CPS counsellor, reported that he made no disclosures of sexually abusive experiences during his fifteen counselling sessions; she did say that the child had been observed to have significant difficulty attending to conversations or activities in which she has mentioned his father, and had difficulty engaging in structured activities pertaining to the exploration of his feelings and experiences. When one reads the kindergarten assessment, the behaviour described by Ms G is entirely consistent with the general difficulties the child has displayed at kindergarten.
88.In her report Ms G also reported on the child’s behavioural presentation as reported by his mother. She said it may be indicative of a child who is experiencing sexual abuse; young children who find it difficult to talk about their fears or worries often show signs in their behaviour that they are having difficulty. She said it is also possible that his behavioural presentation reflects his awareness of the conflict between his natural parents and the nature of the Family Court proceedings, children’s behaviour having the tendency to reflect the stresses and anxieties of adults around them. It was her recommendation that the individual counselling cease, as it may be counter-productive, and it did cease after orders were made in February 2007.
89.There is no doubt the child is aware of the parental conflict. When the father was questioned about the child’s behaviour at changeovers he agreed that the child was quiet, adding, with some insight, that “he knows there’s trouble between me and her”. I accept his evidence that once they walk out the door, the child is happy, playful and talkative. Dr K’s evidence was that the child is very aware of the conflict between his parents and of his mother’s views of the father. He appeared less aware of his father’s views of the mother. It is of note that when he told Dr K that “daddy naughty”, he did not say anything suggestive of his father saying bad things about his mother, but referred to things like drinking, smoking, touchings and the yabby in the bath. Although the mother said “I have never denigrated the father, ever”, she also said that she had told the child that his father is naughty, and that what he has done is bad, and that it (presumably a reference to the alleged abuse, the child’s and her alleged unhappiness and, possibly, the Court proceedings) is his father’s fault.
90.Dr K’s evidence was that the child was “normally mature”. He made it clear he meant that in the broad sense and that the child was progressing normally in significant ways. In his report he noted that the child appeared anxious, his language was delayed and he appeared to have a receptive language problem. In general, it was extremely difficult to maintain his attention; overall, Dr K believed that he had an attentional problem, with some behavioural impulsivity. Dr K noted that he appeared to push the limits with his mother, but tended to do less so with him. Dr K’s observations and opinions are consistent with the detailed report which is annexure D to the mother’s affidavit sworn 24 January, 2007.
91.That report identified development needs and outcomes for the child. I summarise it in detail as it is a report of objective outsiders relied on by the mother. Under the heading “Receptive or expressive language” it was noted that the child was then on a waiting list for a speech assessment. He had difficulty remaining on topic and managing social conversations with his peers. He lost focus due to distractability, displayed an urgency to speak even when requested to stop, had difficulty listening and attending to the speaker and following instructions, and difficulty understanding conversations, in learning and remembering concepts. Due to his distractability he missed out on instructions and information, which impacted on his potential and his participation in learning.
92.The cognitive assessment noted his difficulty in remaining focused, difficulties in planning, organising and sustaining appropriate play independent of adult and/or peer support, and difficulties with visual and auditory memory. He had trouble sustaining self-control of his actions regardless of prior knowledge of rules and expectations, and his distraction at group times resulted in limited participation, inappropriate touching, fidgeting and moving around.
93.Assessed emotionally, the report noted that the child often displayed impulsive behaviour and did not consider consequences. He displayed inappropriate behaviour during group time, physically touching his peers in order to establish attention and, on other occasions, to provoke a response. He had difficulty sustaining appropriate play and resorted to silly play, which often became physical. He had trouble making independent choices and would follow inappropriate play of others, rather than make a choice to move away. He displayed low confidence. During transition times he had difficulty remaining focused and became excited and that behaviour led to physical grabbing, hugging, etc.
94.The social assessment noted the child’s difficulties with joining others, inappropriate excitement and touching, and reversion to silly behaviour. He had difficulty establishing friendships due to inadequate social strategies, including limited verbal strategies and understanding of consequences.
95.In terms of physical aspects the report noted that the child required more time to establish appropriate fine motor skills, including cutting and drawing and writing. He had difficulty maintaining self control in outdoor play, used equipment or other children to stop his own movement, and was inclined to rush and initiate excited play.
96.The behavioural difficulties referred to in that report have been evident for some years, and many were raised in the earlier proceedings. Dr K noted the mother’s difficulty in setting limits when he assessed the appropriateness of her parental behaviour and guidance of the child’s behaviour, and her own accounts of conversations and observations of her son corroborate the assessment in the kindergarten report. She is adamant that every one of the child’s difficulties is attributable to the father, initially through his denigration and intimidation of her and, subsequently, the sexual abuse of the child.
97.Dr K’s evidence is that language and attentional difficulties are often precursors or corroborates of behavioural problems.
98.In final submissions counsel for the mother conceded that the evidence was insufficient to allow the court to make a positive finding that the father had abused the child. It was her submission that the evidence did establish that there was an unacceptable risk and for that reason there be either no contact at all between the father and the child or professionally supervised contact only.
99.It is important to enunciate what the alleged risk is. At this time I consider whether the evidence establishes an unacceptable risk that the child would be sexually abused were he to spend unsupervised time with his father, and with his father’s associates.
100.As found earlier, the child has made disclosures of inappropriate sexual touching to no-one other than his mother and maternal grandmother. He has said nothing to specialist police or in 15 sessions with a specialist CPS counsellor. His complaints have been repetitive but provide little detail. His interaction with his father, after a lengthy period in which he did not see him, was not consistent with that which one would have expected had he been as significantly abused, and at such length, as the mother believes. His affect when describing his father as naughty and when saying he did not want to see him was not consistent with his words. The expert assessment conducted in August 2006 noted, in several places, the child’s tendency for inappropriate physical touching and silly physical play, designed either to get attention or provoke a response. The hypothesis explored by Dr K (that, chastised, he – as many children of his age do – blamed the behaviour on his father and Mr H) is explicable and more probable than any hypothesis advanced consistent with abuse.
101.Weighing carefully the father’s admissions of prior lies on oath, and his evidence before me, together with Dr K’s opinion, I am satisfied weight should be given to the father’s strenuous denials of inappropriate sexual touching. I find those denials more probable than not. I have taken into account the failure to call Mr H. The independent children’s lawyer made no submissions in respect of that failure; it was addressed briefly by counsel for the mother. It would have been preferable for Mr H to be called. Having regard to the nature of the allegations, and the inconsistencies in the child’s story (including inaccuracies in his description of houses and locations), the father may not have seen it as necessary or appropriate to embroil his friend in the proceedings. I can not say if that is the reason he was not called. I do not draw the inference that if he had been called his evidence would not have assisted the father’s case.
102.I am not satisfied that the child has been sexually abused by his father or Mr H or that there is an unacceptable risk that the child would be abused in his father’s care.
Verbal abuse and intimidation
103.The mother alleged that the father has emotionally and psychologically abused the child and her, and sought to damage her relationship with the child, by referring to her and her fiancé in a verbally abusive way in the child’s presence and actively encourage him to verbally abuse them. To her, the child’s aggressive and difficult behaviour towards her on his return has been deliberately incited by the father. She and her mother gave evidence of numerous statements made by the child which they attributed to the father.
104.The DHS report makes it clear that the Department’s involvement in October 2004 arose when it was alleged that since overnight access had commenced, the child was returning saying verbally abusive things to the mother and her partner, and demonstrating aggressive behaviours. The report notes that staff at B Contact Centre (who were supervising changeovers) did not have any concerns and that the family day care carer had noticed a deterioration in the child’s behaviour since overnight access commenced. Both B Contact Centre and DHS raised these issues with the father, who denied the allegations and gave a verbal undertaking that he would not speak negatively about the mother or Mr B in the presence of the child.
105.The DHS report notes that the Department formed the view that the father probably had made comments in the past but also believed that some of the child’s behaviour was connected to general confusion at the access changes, and the new arrangements. Reading the mother’s affidavits, it is clear that she alleges that the pattern of behaviour which was present in October 2004 has persisted, and continues to contribute responsibility for it to the father. Her evidence was that she has had problems with the child’s behaviour since “he started to talk”. He started to talk when he was two; he turned two in November 2003, which was at the height of the tension between the parties. He did not see his father between January and June 2004.
106.According to the mother and her mother, the child uses offensive and insulting language about them, makes statements which deride Mr B’s Muslin faith and says that his father is going to kill Mr B or that he wants the child to bash his mother. The child also referred to his father drinking beer (or what he referred to as man bubbles) and to the father and his father fighting.
107.In this area there is a vast gulf between the parties’ evidence. The mother and her mother are adamant these things have been said by the child and are convinced that the father is using the child to mount an intimidatory and derogatory campaign, for malicious ends. The father adamantly denies ever speaking badly of the mother to the child, and can offer no explanation for the child’s statements, assuming they have been made.
108.The remarks attributed to the child are often very graphic but are also very repetitive. Most of the statements to which the mother refers in her two affidavits were allegedly made prior to the final orders being made by consent in the Federal Magistrates’ Court on 4 April, 2005.
109.In paragraph 17(b) of her affidavit sworn 24 January, 2007 the mother listed a number of statements made by the child from the time the father found she was pregnant through to about May 2006. She alleged the child called her a slut, said “daddy wanted him to bash her up”, referred to “alien Muslim baby” and asserted his father was going to come and kill Mr B. She deposed that on 5 January, 2007 the child said “I hate daddy he wants to throw [Mr B] off the cliff, I love [Mr B]”; at that time the child had not seen his father since May 2006, save for the family report.
110.With Dr K the child said nothing which could be said to be referrable to these remarks. On his statements, he believed his father was naughty because of the touching, about which he had been told, and because he smoked, drank, jumped in the lake, watched scary monster movies and put a real yabby in the bath.
111.Given his preparedness to talk about his father’s drinking and smoking, both of which he knew were “naughty”, and about monster movies and yabbies in the bath, one would expect the child to have said something to Dr K attributable to his father’s view of his mother, or of Mr B, or of things his father told him to do to his mother or Mr B. Nothing the child said fits those categories.
112.Balancing all the evidence I do not find it more probable than not that the father has programmed or coached the child to repeat insulting, threatening and intimidatory remarks to his mother or members of her household. The subject matter of the remarks is reasonably limited; it may be that the child knows he will be guaranteed a certain response if he says certain things, but that is speculation. Nor am I satisfied there is an unacceptable risk that the child will be exposed to such threatening or denigrating remarks in the future.
113.I place weight on the first of the primary considerations and have no hesitation in finding that a meaningful relationship with the father would be of benefit to the child, provided it does not expose him to unacceptable risk and is otherwise in his best interests.
ADDITIONAL CONSIDERATIONS
(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;
114.The child is now five and a half. According to his mother, within a few months of him starting four year old kindergarten in 2006, staff at the kindergarten spoke with her about the potential need for him to repeat that year. An assessment was prepared in September, 2006 with the aim of enabling the child to repeat the year.
115.I have earlier made findings about the weight that should be placed on the child’s assertion of inappropriate touching and statements about not wanting to see his father.
(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);
116.The child has a close relationship with his mother, with whom he has lived all his life. I am satisfied he also has warm and appropriate relationships with his maternal grandmother, his step-father and his little sister, S. Mr B was not called but I accept the mother’s evidence of his relationship with the child. Dr K’s observation of the father with the child satisfies me that their relationship, too, is affectionate and appropriate. It was Dr K’s evidence that there was not much difference in the child’s interaction with both of this parents.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
(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;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
It is convenient to deal here with these s.60CC(3) factors relating to parental capacity and attitude. I will also consider the matters contained in s.60CC(4) and (4A) of the Act, which are as follows :
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) 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; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
117.From the father’s perspective, the mother has been intent on denying him a close relationship with the child. Her responses need to be seen in context.
118.It is clear the parties’ relationship was turbulent. The father’s evidence was of “getting together again” three times after their initial separation, which was probably in late 2001 or early 2002. He gave that evidence in the context of questions about repeated telephone calls to her in late 2003 which, he ultimately conceded, were seen as harassment by her, she by then having formed a new relationship. His evidence of a number of reconciliations is consistent with the mother’s own evidence in the affidavit sworn on 23 June, 2006, she referring in paragraph 3 of it to several brief reconciliations in 2002 and 2003. It is probable that the period after their last separation was stressful for both, and the father’s constant phone calls and then burglary can only have exacerbated the mother’s concerns.
119.Ms G reported that the mother told her that she ceased contact after the father threatened that he could take the child interstate as she had no court orders, and that she then instigated Family Court proceedings. In the witness box she conceded that it was not her who filed the first application, that being done by the father who saw no option but to come to Court in April 2004 in order to see his son. Although the Federal Magistrates’ Court proceedings eventually settled, it is clear from Mr A’s report that many allegations were made in them and that at the time he saw the family, the mother was trying to reduce the father’s interim contact.
120.Once the mother became convinced that the child had been abused it was reasonable for her to take steps to protect the child. She was given advice by the Department of Human Services (according to the DHS report, it was to consult E SOCAU and to seek legal advice about future access) and she and the child were referred to A Centre for counselling. I accept that she saw no option but to act protectively and to do that she sought the suspension of contact; from the father’s perspective, this was simply another attempt to frustrate his relationship with the child.
121.The orders made in the Federal Magistrates’ Court provided for the mother and father each to retain responsibility for the child’s long term care, welfare and development. The application the mother filed in this Court sought only the discharge of contact orders; even if granted, the existing order for the retention by both of parental responsibly would stand. I cannot say how she saw that operating if there were no contact whatsoever between the child and him, or how he could have a meaningful input into decisions about, for example, the child’s health, education or religious upbringing. In final submissions the independent children’s lawyer proposed an order for equal shared parental responsibility and the amended response filed by the father was silent on the point.
122.Those 2005 orders were made prior to the legislative amendments which introduced the presumption of equal shared parental responsibility now contained in s. 61DA of the Act. The court must consider whether the presumption applies.
123.It is clear that after the 2005 orders were made there was little or no communication between the parents about long term issues such as The child’s education and religion. There is no evidence the mother consulted the father about enrolling him in kindergarten, and she unilaterally barred him and Mr H from attending the child’s first day there. Prior to the April 2005 orders the mother arranged for the child to be circumcised, without any reference whatsoever to the father; she said The child was two, he said he was three. Concerns about this were ventilated in the Federal Magistrates’ Court proceedings. In the course of those proceedings the father said that while he had nothing against Islam, he did not want his son to be brought up as a Muslim. The mother submitted that this demonstrated bigotry on the father’s part and her counsel made a remarkable submission, in which she asserted that the father could not have had any legitimate objection to the circumcision, as it is spoken of in the Bible as a Christian practice.
124.I do not accept the submission that the father’s remarks demonstrate bigotry. Many parents would say that while they have nothing against a particular spiritual belief which they do not share (be it Christian, Jewish, Buddhist, Hindu, Islamic or otherwise) they do not want their children brought up in that faith.
125.I will consider the application of the presumption after considering all the primary and additional considerations. At this point I say only that there has been little real communication about long term issues since separation and the mother appears to have operated on the assumption that decisions about the child’s life were hers to make as she saw fit. That is no doubt a consequence of the long-standing hostility between the parties and, also, of the intervention order and subsequent undertaking. The independent children’s lawyer proposed the use of a communication book, a proposal I accept to be sensible in these circumstances.
126.I am satisfied the father has the capacity to provide for the child’s needs when he is with him.
(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;
127.The mother’s evidence was that the child’s behaviour has improved this year. She said he has calmed down at home, goes to sleep within half an hour (rather than three hours) of being put to bed, does not run around the house asking whether his father is coming, has wet the bed only once in the past two months, and is more relaxed and focused at kindergarten. She agreed this was partly due to “settling in” because he was a year older, but said it was also a consequence of him not seeing his father. There was no independent evidence of the child’s presentation in 2007. It is clear from the detailed assessment prepared to support the application for a second year of 4 year old kindergarten that the experts hoped that would assist with a range of perceived difficulties, and it is possible that is a factor in his current presentation and why he is “more relaxed and focussed” at kindergarten.
128.Dr K was not asked about the correlation between the child’s behaviour and him seeing, or not seeing, his father. Having regard to the warmth of the interaction between the father and the child when they were together with Dr K in October 2006, it is probable that the child would enjoy time with his father. Even the mother conceded that the child misses and loves his father but she believed he was also scared that the touching would happen again, and he did not know what to do.
129.Dr K thought that the child would settle into renewed contact. He agreed it might be useful for him to have access to a professional person to whom he could talk about any concerns, but was adamant that person should not be from any service focused on sexual abuse. Whether or not the child settled into a new regime of time with his father would certainly be affected by his mother’s response to orders for that to occur.
130.The mother was clear; in her view, she would not cope with the child seeing his father in any sort of unsupervised environment. Her mother expressed the same view of her daughter’s incapacity to accommodate any orders which allowed the child to spend time with his father, save in a strictly supervised environment.
131.Dr K was cross-examined about his opinion of the mother’s capacity to cope were contact ordered. It was put to him that as the mother was adamant that the child had been abused by the father and Mr H, she would not be able to make the adjustments necessary. While acknowledging she may be genuine in those views, Dr K’s opinion was that, over time, she should be able to cope with the father spending time with the child. He said it would be worthwhile for her to speak with a professional, as it is very difficult for a parent in her position not to believe that a child is in danger. Nevertheless, taking both the child’s concerns and the mother’s committed views into account, he recommended frequent and regular unsupervised contact. I place weight on his opinion.
132.It is difficult to assess a parent’s assertion that he or she will be unable to cope, in the absence of any evidence from, for example, a treating professional. The parent making the assertion is open to the accusation that is it self-serving; his or her case is unlikely to be seen as assisted by evidence to the contrary. I accept the mother believes she will not be able to cope and, indeed, that she should not be asked to cope; her conviction of abuse would allow no other response. However, she is an able and committed mother, and while she may experience stress and even distress, I find it more probable than not that she would be able to accommodate orders for the father to spend time with the child.
(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;
133.Were orders to be made for the child to spend time with his father the practical difficulties would substantially relate to the level of co-operation in his primary home. The parties have been able to make arrangements for reasonably neutral changeovers in the past, and the maternal grandmother should be commended for the role she has played in that.
(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;
134.That mother alleges that the father is racist, has said that he does not want the child being brought up as a Muslim and that the child has repeated denigratory comments about the Islamic faith. She complained that he has returned from time with his father saying he can eat bacon and referring to her as a Muslim alien. Her evidence was that she is in the process of converting to the Islamic faith.
135.As the father noted, there is something paradoxical in this evidence given that his friend, Mr H, who the mother alleges was involved in sexual abuse, is an Iranian and a Muslim. The mother questioned Mr H’s devotion, referring to him drinking alcohol. The test of a party’s personal spiritual conviction is not whether he or she conforms with every tenet; faith is more subjective than that.
136.The father candidly agreed he did not much like Mr B, which is not an uncommon view for a former partner to have about a current partner. I do not find the submission of the father’s racism to be founded.
137.A child’s cultural or religious upbringing, or spiritual education, are matters for both parents; this is made clear in the definition of “major long-term issues” in s. 4 of the Act. If they cannot agree on it, they will need to attempt to resolve differences through mediation (for example, through a Family Relationship Centre) or, as a last resort, through a court. It is not for the mother to decide, alone. She was silent as to her intentions for the child in these respects. Her unilateral decision to have him circumcised may be referable to a decision he should be brought up in the Islamic faith but in the absence of any cross-examination on that issue I make no finding about that. Nor can I say how far she has travelled along the path to conversion to Islam. That is a matter for her alone but the child’s religious upbringing is not.
(h)any family violence involving the child or a member of the child’s family
138.The mother obtained an intervention order in January 2004, to last for two years. This followed the father’s burglary and his subsequently admitted harassing phone calls. The mother applied for another intervention order in July 2006. Those proceedings resolved by the father giving the undertaking on 13 October, 2006 to which I have referred. He will be released from that undertaking when these proceedings conclude, as (for that purpose) they will by the final orders.
139.The father described the 2004 intervention order as “the best thing that ever happened to me”. From that admission, counsel for the mother sought to mount an argument that the father needs external constraints in order to contain himself and without them, will revert to aggressive and abusive behaviour. I do not find the submission well-founded.
140.It is clear from the father’s own evidence that in late 2003 he was both angry and grieving about the mother entering a new relationship. He behaved badly and the consequences continue to impact on the mother’s view of him. However, once the intervention order was made, his behaviour changed. The phone calls stopped. He has not seen the mother or been to her home or work. She believes (as she made clear in her 2006 application for another intervention order) that he breached the 2004 order by subterfuge, maintaining harassment of her through the child. I cannot find that to be more probable than not. His behaviour did not change in the period between January and June 2006 when no intervention order was in place; he did not start to telephone or visit or loiter near her home or workplace.
(i)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;
The child has been embroiled in legal proceedings since April 2004, when he was not yet three. He has been interviewed for two family reports in addition to the many interviews he has had with police and other workers as a result of the allegations of abuse. He is a child with behavioural and developmental difficulties and it is vital to his welfare that he be protected from future proceedings, as far as is practicable.
(j)any other fact or circumstances that the court thinks is relevant;
142.It is important that the Court considers the objects and principles set out in s.60B.
143.The first object is to ensure children have the benefit of both parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests. That must be balanced with the second object, which is to ensure their protection from physical or psychological harm. The third and fourth objects relate to ensuring children receive adequate parenting and that parents fulfil their duties and responsibilities to their children.
144.The principles (which include the right of children to know and be cared for by both their parents and their right to spend time and communicate, on a regular basis, with both their parents and others of significance to them) are subject always to a child’s best interests.
CONCLUSION
145.As noted earlier, the mother did not seek to discharge the existing order pursuant to which the parents retain parental responsibility. If either the sexual abuse or the wilful, deliberate and long standing verbal intimidation had been found to have occurred, one can not think of a clearer case in which the presumption of equal shared parental responsibility would be displaced. I can not say how the mother envisaged the parties exercising their joint parental responsibility in the future were there to be no contact whatsoever between the child and his father.
146.I am satisfied the presumption applies and that it is not rebutted as being contrary to the child’s best interests. His best interests will be fostered by his father playing that significant role in his life.
147.The presumption applying, and being satisfied that it has not been rebutted, the court must consider whether the child should spend equal time with both parents. That is neither his application nor Dr K’s recommendation, and I am confident it would not be in the child’s best interests at this time, having regard to the parties’ respective positions, the child’s primary attachment to his mother, the mother’s conviction of abuse and the need to ensure the child’s security and stability.
148.Having made that finding the court must consider whether the child should spend substantial and significant periods with his father, which are defined to include periods which are not only at weekends and during school holidays.
149.Dr K’s specific recommendation was that the child primarily reside with his mother and spend time with his father on a fortnightly basis, for example, from 4.00 pm Friday until 7.00 pm Sunday. He also recommended one mid-week visit each week for several hours and gave as an example, each Tuesday between 4.00 and 7.30 pm. He recommended that the child spend time with both parents on special days such as birthdays and have a few longer periods of time with his father across the year, giving as an example, three periods of one week, and approximately two weeks in the Christmas break. He concluded the recommendations by suggesting that if there were further difficulties or uncertainties regarding the arrangements, a review should be undertaken in six months, something not easy to do in the context of the litigation.
150.The periods of time proposed by the independent children’s lawyer would be phased in over a period and would culminate with the child spending time with his father on each alternate weekend from 4.00 pm Friday until 6.00 pm Sunday, to be extended to commence at the conclusion of the school day on Friday and conclude at the commencement of the school day the following Monday. In addition, he proposes time on each Tuesday from 4.30 pm until 7.30 pm, on special days and for the longer periods as recommended by Dr K.
151.While making it clear that her client’s position remained that there should no contact whatsoever, counsel for the mother submitted that if there were orders for unsupervised contact, it should not extend until Monday morning once the child was at school, there should be no mid-week contact and there should be a requirement that the father be in substantial attendance during all periods of contact and not engaged in paid work.
152.In the earlier proceedings the mother sought a condition that the father be in substantial attendance and not in paid work and such an order was made, by consent. She based the need for these prescriptions on statements allegedly made by the child to her. I accept as true the father’s vehement denial that he has ever taken the child onto a work site, or allowed him to play on construction machinery. I am not satisfied the evidence supports the need for any such injunctions.
153.I have found that the child is not at risk with the father and that their relationship is appropriate and sound. I am satisfied that the father has the capacity to attend to his needs and to be a responsible parent. In these circumstances it is not for one parent to attempt to constrain the behaviour of the other in that way.
154.I propose to order that the child spend time with the father broadly as proposed by the independent children’s lawyer, although it will be phased in more gradually.
155.Contact extended until Monday morning would mean that the parties did not have to be present at a changeover (as they would on a Sunday afternoon) but there have not been significant problems at changeover. Given the child’s developmental needs and vulnerabilities, I am satisfied his best interests are more likely to be met by postponing that extension of time until he has been at school for a year. That should allow him to settle in to school in 2008, and allow the mother to be confident about his state when he starts each school week, as in those weekends he is with his father he will return to her on Sunday evening. As from 2009, the father will have the opportunity to return the child to school on Monday morning, giving the father a chance to play some part in his school life. I add that I accept the father’s evidence that his job gives the flexibility to allow him to comply with the orders proposed.
156.In relation to time with the father mid-week, I propose to order that this occur each alternate week, rather than each week and start a few weeks after the child starts to spend time with his father. That will enable the child to maintain a frequent and regular connection with his father, but it also respects the difficulties I am satisfied the mother will have in adjusting to these orders. That may take a little time.
157.I am satisfied there should be an injunction which restrains either parent or anyone acting on their instructions to take the child to a therapist or counsellor in relation to the allegations of sexual abuse. I place weight on Dr K’s evidence that it is important that the mother’s allegations not be reified. For obvious reasons that order will provide an exception for court or DHS ordered attendances. Other orders will enjoin the parties from denigrating the other, or the spouse/partner or family members of the other, in the presence or hearing of the child, from discussing these proceedings in his presence or hearing, and from applying any form of physical punishment. The injunctions relating to alcohol use and inappropriate car restraints will remain.
158.The mother expressed concern that the father smokes in the child’s presence. The child is asthmatic and I need no expert evidence to find that cigarette smoke is detrimental to an asthmatic child. Counsel for the father put that the father does not smoke inside. In those circumstances, I am satisfied an injunction restraining him from smoking in the child’s presence when inside or within a confined space will be in the child’s best interests and cannot prejudice the father.
159.Orders will provide for the use of a communication book which should be passed between the parties at changeovers. Changeovers should take place at an agreed public location and, failing agreement, at the B Contact Centre or such other centre as the parties agree, or, until a place becomes available at a changeover service, at a location to be nominated by the independent children’s lawyer.
160.I am satisfied the child’s best interests will be fostered by orders allowing the father to receive information about the child’s kindergarten and, in due course, schooling, and to attend school functions routinely attended by parents.
161.I have considered whether there should be orders for make-up time, whether as sought by the father or otherwise. In my judgment, this would not be appropriate. These are not contravention proceedings in which a sanction may be applied. The focus must remain firmly on the child’s best interests and I am not satisfied that it would be in his best interest to spend any additional (let alone significant additional) periods away from his mother as he settles into the new regime.
162.I do not find it appropriate to make specific orders requiring the mother and the child to access some form of professional assistance if necessary to accommodate these orders. I will make an order for supervision for a period of twelve months and by that means provide the option for an appropriate referral.
I certify that the preceding 162 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown
Associate:
Date: 29 May 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MCCOY & WESSEX
Key Legal Topics
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Family Law
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Evidence
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