MERLE & CRUSAN
[2019] FCCA 3755
•19 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MERLE & CRUSAN | [2019] FCCA 3755 |
| Catchwords: FAMILY LAW – Parenting – where there are 2 children of the relationship – whether either parent poses an unacceptable risk of harm to the children – with whom the children should live – what if any time the children should have with the other parent – where there are allegations of drug use and sexual abuse. |
| Legislation: Family Law Act 1975 (Cth), Pt.VII, ss.60CA, 60CC, 69ZN |
| Cases cited: Eaby & Speelman (2015) FLC 93-654 |
| Applicant: | MR MERLE |
| Respondent: | MS CRUSAN |
| File Number: | BRC 2784 of 2018 |
| Judgment of: | Judge Middleton |
| Hearing date: | 9 September 2019 |
| Date of Last Submission: | 9 September 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 19 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kissick |
| Solicitors for the Applicant: | ABF Legal |
| Counsel for the Respondent: | Ms Firth |
| Solicitors for the Respondent: | Emerson Family Law |
ORDERS
That all previous orders be discharged.
That the children live with the mother.
That the children spend time with the father at all times as may be agreed between the parties in writing and failing agreement, in a two week rotation during all Queenslander gazetted school terms as follows;
(a)On an unsupervised basis from after-school Thursday in week 1 to before school Tuesday week 2 and alternating thereafter; and
(b)That whilst the children are spending time with the father the father will do all acts and things necessary to ensure that the children attend upon all extracurricular activities and medical appointments, as scheduled and required.
That the children spend unsupervised time with and communicate with the father for one half of each of the Queensland gazetted school holiday periods, on a week about basis, commencing on the first week in odd-numbered years and the second week in even-numbered years, and that any order regarding time that is inconsistent with this order shall be suspended so as to facilitate time pursuant to this order.
For the purpose of interpreting school holiday orders:
(a)Queensland gazetted school holiday period shall commence at the conclusion of school on the last day of the school term and shall conclude at 9:00am on the first day of the next school holiday term;
(b)pupil free days and week days that fall during the school holidays form part of the school holidays as if they are a school holiday;
(c)changeover shall occur at 9:00am on the commencement of each week of the school holidays;
Special Occasions
The children shall spend unsupervised time with and communicate with the father at all times as agreed between the parties in writing and failing agreement, as follows:
Easter
(a)That, for Easter, the child shall spend time;
(i)On odd-numbered years with the mother from 12:00pm on Good Friday to 12:00pm on Easter Sunday and with the father from 12:00pm on Easter Sunday to 12:00pm on Easter Monday;
(ii)On even-numbered years with the father from 12:00pm on Good Friday to 12:00pm on Easter Sunday and with the mother from 12:00pm on Easter Sunday to 12:00pm on Easter Monday;
(iii)that any provision for time under this order that is inconsistent with this order shall be suspended so as to facilitate time in this order.
Christmas
(b)That, for Christmas, the child shall spend time:
(i)on odd-numbered years with the mother from 12:00pm on 24 December (Christmas Eve) until 12:00pm on 25 December (Christmas Day) and with the father from 12:00pm on 25 December (Christmas Day) until 12:00pm or 26 December (Boxing Day);
(ii)on even-numbered years with the father from 12:00pm on 24 December (Christmas Eve) until 12:00pm on 25 December (Christmas Day) and with the mother from 12:00pm on 25 December (Christmas Day) until 12:00pm on 26 December (Boxing Day);
(iii)that any provision for time under this order that is inconsistent with this order shall be suspended so as to facilitate time in this order.
Father's Day
(c)that the child shall spend time with the father from 9:00am to 5:00pm on Father’s Day and that any provision for time under this order that is inconsistent with this order shall be suspended so as to facilitate time with this order.
Mother's Day
(d)that the children shall spend time with the mother from 9:00am to 5:00pm on Mother's Day and that any provision for time under this order that is inconsistent with this order shall be suspended so as to facilitate time with this order.
Mother's Birthday
(e)That, on the mother's birthday:
(i)If falling on a school day the children shall spend time with the mother from 2:30pm to 6:00pm;
(ii)If falling on a non-school day, the children shall spend time with the mother from 9:00am to 6:00pm,
(iii)that any provision for time under this order that is inconsistent with this order shall be suspended so as to facilitate time with this order.
Father's Birthday
(f)That, on the father's birthday;
(i)If falling on a school day the children shall spend time with the father from 2:30pm to 6:00pm;
(ii)If falling on a non-school day, the children shall spend time with the father from 9:00am to 6:00pm
(iii)that any provision for time under this order that is inconsistent with this order shall be suspended so as to facilitate time with this order.
Children's Birthdays
(g)That, on the children's birthdays;
(i)If falling on a school day, for the parent who does not have care of the child that morning, that parent shall spend time with the child from 2:30pm to 6:00pm and the parent who has care of the child that morning, that parent shall spend time with the child at all other times except for the period from 2:30pm to 6:00pm;
(ii)If falling on a non-school day, the child shall spend time with the father from 9:00am to 12:00pm and with the mother from 12:00pm to 6:00pm;
(iii)that any provision for time under this order that is inconsistent with this order shall be suspended so as to facilitate time in this order.
Telecommunication
That the children shall be permitted to communicate with both parents via telephone and FaceTime at such times as the children reasonably request and the parent with care of the children shall facilitate the telephone call to the other parent;
That a parent may telephone and/or Skype the children every Tuesday and Thursday between 3:30pm and 4:30pm with the parent without the care of the children to facilitate the telephone and/or Skype call to the other parent, with that parent to initiate the telephone/or Skype call and the other parent is to ensure the children are available to take the telephone and/or Skype call and are afforded privacy during the telephone and/or Skype call.
Changeover
That unless otherwise agreed in writing between the parties, all changeovers shall occur at the children’s school situated at Town A State School on school days and at Location B, Location C on non-school days.
Parental Behaviour
That the parents shall:
(a)email the other parent once per week in relation to the children’s past, current and upcoming activities; homework; extra-curricular activities; past, current and upcoming medical issues, appointments and treatments; and disciplinary or behavioural matters;
(b)keep the other parent informed by email at all times of their contact telephone number and current residential address;
(c)keep the other parent informed by email of the names and addresses of any treating medical or other allied health practitioners who treat the children and these Orders shall authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children and both parents are at liberty to attend the children’s specialist medical and allied health appointments;
(d)inform the other parent by telephone as soon as reasonably practicable of any medical conditions, significant health issues or significant illness suffered by the children;
(e)these Orders provide authorisation to allow the provision to either parent of any health, educational or welfare professional or other professional attended by the children of any information affecting the health and welfare of the children; and
(f)that both parents be permitted to liaise directly with the children’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress.
During the times the children are living with either party, that parent shall:
(a)respect the privacy of the other parent and not question the children unduly about the personal life of the other party;
(b)speak of the other party respectfully;
(c)not denigrate or insult the other party or the party’s family in the presence or hearing of the children and use his or her best endeavours to ensure that others do not denigrate or insult the other party or the party’s family in the hearing or presence of the children; and
(d)refrain from involving the children in any parenting disputes or showing them and discussing with them with respect to these proceedings.
That in the event that the children are absent for more than two (2) days of school, the parent with care of the children shall provide to the other parent a medical certificate as soon as reasonably practicable and not less than forty-eight (48) hours from the absent day.
Both parties are at liberty to attend the children’s sporting and extra-curricular activities.
Miscellaneous Orders
That neither party shall consume alcohol in excess of the legal driving limit (being 0.05 BAC) whilst the children are under their care.
That neither party shall be under the influence of any illicit drugs whilst the children are under their care, cause themselves or any other person in their company whilst the children are under their care to be under the influence of any illicit drugs or expose the children to persons under the influence of any illicit drugs or any drug paraphernalia whilst the children are under their care.
That both parents shall be restrained from physically disciplining the children.
That the children are not to be withdrawn or absent from school unless this is mutually agreed in writing between the parents, or is consistent with a medical professional’s formal assessment (i.e. a medical certificate).
That the Mother shall use her best endeavours to encourage her partner, Mr D , to complete the Triple P and Circle of Security programs at the earliest available opportunity.
That the Mother and Mr D shall engage with “Family and Child Connect” (or similar) for in-home parenting support and be liberty to rely upon the Family Report prepared by Ms E (Family Consultant) dated 2 August 2018 to assist with the terms for referral.
The children’s time with their father shall commence upon the father filing and serving an undertaking that he will;
(a)Not shower with the children;
(b)Cause the children to shower with any other adult or child;
(c)Not apply cream to the children’s genitals.
That the matter is adjourned for further mention to 9:30am on 27 April 2020 in the Federal Circuit Court of Australia at Brisbane.
IT IS NOTED that publication of this judgment under the pseudonym Merle & Crusan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 2784 of 2018
| MR MERLE |
Applicant
And
| MS CRUSAN |
Respondent
REASONS FOR JUDGMENT
Background
This is a parenting application involving two children, [X] born … 2012 and [Y] born … 2013.
The mother filed an initiating application on 14 March 2018. In her supporting affidavit filed on 14 March 2018 the mother raises a concern about the children disclosing to her that the father showered with the children and had “dried me down there.”
The matter was reported to Queensland Police Service and the child [X] was interviewed.
Ms E filed a family report in those proceedings on 13 August 2018.
On 17 August 2018 the parties reached an agreement whereby the children lived with the mother then spent substantial and significant time with their father in the following terms;
a)during the school weeks on an unsupervised basis from after-school Thursday in week one to before school Tuesday week two and alternating thereafter; and
b)for half of the Queensland school holiday periods.
On 3 January 2019 the father filed his Initiating Application in circumstances where the mother had terminated the children's time with their father.
The mother filed her response material on the 18 February 2019 and in her affidavit she sets out the reasons why she has ceased the children's time with the father as follows:
a)Mr Merle has rubbed and touched both children's vaginas on every visit with Mr Merle;
b)[X] has disclosed that she would wake up to Mr Merle touching her vagina in bed;
c)the children have been forced to shower naked with Mr Merle together;
d)[X] has been forced to shower naked with Mr Merle and his partner's daughter, [F] who is 12 years old together; and
e)Mr Merle has taken photographs of both children from the neck down wearing bikinis, swimmers and underwear.
The mother contacted both Queensland Police and the Queensland Department of Child Safety, Youth and Women.
The father in his material makes the allegation that the mother is emotionally abusing the children and is coaching the children to make various allegations.
The mother seeks an order that the children's time with the father be supervised at the Suburb G Contact centre and the father seeks an order for the reinstatement of the orders made by consent on 17 August 2018.
Issues
The issues for determination are as follows;
a)whether the father poses an unacceptable risk of harm to the children;
b)whether the mother poses an unacceptable risk of harm to the children;
c)with whom the children should live and what if any time the children should have with the other parent.
Material
The father relied upon the following material;
a)Application in a Case 30 August 2019;
b)affidavit filed 30 August 2019;
c)the letter from the Department of Child Safety, Youth and Women, dated 23 August 2019.
The mother relied upon following material;
a)Response filed 18 February 2019;
b)Notice of Risk filed 18 February 2019;
c)affidavits filed the 18 February 2019 and 6 September 2019.
The Law
As this is a parenting application the provisions of Part VII of the Family Law Act 1975 (Cth) apply. It is the children's best interest that is my paramount concern (section 60CA). In determining what is in the children's best interests, guided by the objects and principles set out in section 60B, I must consider the matters set out in section 60CC(2) and (3).
As this matter concerns allegations of abuse I must have regard to the manner in which proceedings are to be conducted and in doing so section 69ZN(5) provides;
“the third principle is that proceedings are to be conducted in a way that will safeguard; (relevantly) (a) the child concerned from being subjected to, or exposed to abuse neglect or family violence.”
This matter came before me by way of an interim hearing in a duty list. Accordingly I will follow the pathway as set out in Goode & Goode [2006] FamCA 1346.
Agreed Facts
The children are aged seven and six at the time of hearing. They have made comments to teachers, doctors and investigators from the Department of Child Safety, Youth and Women.
The allegations of sexual abuse have been investigated by both the Queensland Police Service and the Department of Child safety, Youth and Women.
The Queensland Police have not proceeded to lay charges against the father in relation to sexual abuse or any other crime relating to these children.
The Department of Child Safety, Youth and Women have investigated the alleged disclosures and assessed that the allegations are unsubstantiated.
The Department of Child Safety, Youth and Women have assessed that there has been significant emotional harm substantiated with the mother being the person responsible for such harm.
Furthermore the Department of Child Safety, Youth and Women have assessed that the children are not in need of protection as they believe that the mother has “not recently been speaking of the sexual abuse allegations in front of the children and psychologist, Ms H advised she has provided education around the importance of Ms Crusan in not raising this with the children and believes Ms Crusan has followed this advice.”
The mother has obtained a report from Dr I and he is of the view that there was no evidence of psychosis (..C – 3 of the mother's affidavit filed 6 September 2019).
Dr J has provided a medical certificate for both children outlining his clinical opinion that the children should avoid contact where possible with their biological father in all formats, including telephone and video calls as it would be detrimental to the physical and mental health (see annexure ..C-4 of the mother's affidavit filed 6 September 2019).
Submissions on behalf of both Parents
It was submitted on behalf of the father that the police subpoena relating to the report of an alleged sexual abuse on 16 January 2018 revealed that the child wanted to spend more time with both the father and the mother and importantly the child made no disclosures during her 93A interview.
The mother at that time said she believe the father had not committed any offence. It is important to note that the allegation back in January of 2018 related to the father showering with the children and that same allegation is now relied upon by the mother to cause the children's time with their father to be supervised.
It was further submitted that the subpoenaed material demonstrates that the mother was actively acting against the interests of the children by repeatedly discussing sexual abuse in the presence and hearing of the children.
It was noted that the children have increased the allegations, according to the mother, this year despite the father having spent no time with the children since November 2018. Indeed there were six referrals between 16 January 2019 and up until the date of hearing 9 September 2019.
It was submitted that as a result of the mother's behaviour the children have had to withstand further interviews by the Department. It was submitted that the letter from the Department of Child Safety Youth and Women dated 23 August 2019 is inclusive of all interviews.
It is the case that the mother secretly recorded the interviews in her home between herself, both children and officers from the Department of Child Safety, Youth and Women. I provided the mother with a section 128 certificate and she thereafter filed an affidavit annexing a transcript of that recording. There is nothing in the transcript that could persuade me that the Department have misinterpreted information gleaned at the time of their reviews or disregarded information gleaned at the time of their interviews.
It was submitted that the relationship between the children and the father has been deliberately interfered with and as a result the children are suffering emotional harm.
It is the mothers case and indeed her assertion that the children are behaving in a sexualised manner in the playground. It was submitted that the subpoenaed material from 6 August 2019 reveals that the school refutes that the children were behaving sexually in the playground. Those notes furthermore, reveal a pattern of the mother being observed to speak about sexual abuse in front of the children.
It was submitted that the children cannot articulate any sexual abuse by the father when speaking to teachers and the subpoenaed notes revealed that the children are presently showing indicators of emotional harm.
It was submitted that as at 30 July 2019 the allegations of abuse had been fully investigated by the relevant authorities and they had not been referred to prosecutors and it was further noted that some of the allegations relate to the same allegation raised in January 2018. It was submitted that there was no need for any further investigation and if the mother continues to believe that the abuse has occurred there is nothing more that can be done.
It was submitted that the mother's partner contacted the Department of Child Safety, Youth and Women on or about the time the letter dated 23 of August 2019 was provided to the mother, and he advised them that “he got a bad feeling or negative energy about the father.”
It was submitted that the mother appears not to be hearing the children have not reported any sexual abuse and that they are happy to see the father.
It was noted that the mother alleged on 19 July 2019 that both children were incontinent from sexual abuse and it was submitted that the mother is unrelenting in her desire to have an allegation of sexual abuse proved.
It was submitted to alleviate any concerns he mother may have the father will consent to an undertaking not to shower with the children or to apply cream to the child's genitals.
Mother Submissions
It was submitted that the children spent time with their father, in accordance with the orders of August 2018 until November 2018. It was submitted that it was the doctors who first raised the issue about sexual abuse in November 2018 and on 14 November 2018 Dr J refered to the vaginal irritation and discharge.
The mother's counsel took me to Ms H notes, (the child psychologist). In particular I was taken to a diary note of 8 February 2019 where [X] makes certain disclosures as follows:
“Mr Merle touches me on my vagina at night time when I am sleeping (when) every night that I’m there (how do you know if you're sleeping) I notice it (what do you mean) I notice it (do you mean you wake up) yeah (does Mr Merle touch you anywhere else) no (how do you feel) angry (why) because I normally kick and punch him during the night (where do you kick and punch him) I don't know (Does Mr Merle touch anybody else), [Y] (where does he touch [Y]) bottom, that's it, not that front, just bottom (where does Mr Merle do deletions bottom) just scratches and stuff (can you show me) [X] scratched ground back and forth (who else knows) just you and my schoolteacher and mom and Mr D (when did you tell your schoolteacher) last year."
I was also taken to Ms H's diary note of 22 February 2019 where it appears upon my reading of it the mother is reporting information about [X] attempting to kiss another student and also that [X] had told the mother that she liked the tingly feeling in her vagina. It also notes that the matter goes back into court on 25 February.
It was submitted on behalf of the mother that the Department did not interview Ms H or Dr J and that they were simply relying upon the interview of January 2018.
I was taken to page 2 of the transcript of the recording made at the time of interviews wherein at line 20 [X] said she felt unsafe and also taken to page 23 were [Y] said “but no more because sometimes he touch my vagina to put cream on it but he does not try to do that. He does put cream on it because he wants to touch my vagina. So my mum won’t let me go to Mr Merle’s anymore.”
It was submitted on behalf of the mother that these allegations need to be investigated at trial and that I should act cautiously and order supervised time now until such time as a trial can be had.
Submissions in reply were to the extent that the recording is not from the start of the interviews and furthermore that the Department noticed that the children look towards the mother to get permission when speaking with them.
The Evidence
The mother relies upon the report of Dr I to establish that she does not have any mental health issues. The difficulty with Dr I's report is that it is not independent. The mother unilaterally sought a referral from her doctor to Dr I for the purpose of the report.
Dr I's had no information relevant to matters that may have impacted upon his assessment of the mother for example subpoenaed notes from Queensland Police Service, the Department of Child Safety, Youth and Women, Queensland Education and the notes from the child psychologist Ms H.
The material within the subpoenaed bundles would be very relevant to an assessment of the mother’s belief system in my view. In those circumstances I can place very little weight on the report of Dr I.
In a similar vein the medical certificate from Dr J cannot be afforded much weight. The medical certificate sets out an opinion but does not inform me of any foundation for the opinion.
It is clear that the mother attends upon Dr J with the children and it is also clear that the father does not.
Once again I am not aware as to whether Dr J has received any independent information about the allegations that would assist him in assessing whether the children are in need of protection and informing his opinion. Once again I can give very little weight to Dr J's medical certificates.
The mother relies upon the transcript of the interviews between herself and the children to support her assertion that the father poses an unacceptable risk.
The children do talk about inappropriate behaviour during the interview. Their “disclosures” have to be considered in light of the evidence in its entirety. There is ample evidence to suggest that the mother has been discussing sexual abuse in front of the children and that she has been warned against doing so.
It is also clear from the transcript that the mother tells the children certain things about the father for example during this exchange on page 22 of the transcript
[Y]: but he is not a dad. He’s a big bad wolf.
Unidentified male: ok. Where did you learn that? Who told you that?
[Y]: my mom.
In another exchange after [Y] has informed Ms K (the interviewer) that the kind of touch the father gives is bad touch she goes on to say “well he was touching my vagina because he wanted to put cream on it but he actually wasn't. He was a big bad Wolf and wanted to touch my vagina.”
During [X]'s interview she is asked to tell the other interviewer about the things that are rude that her father might do and [X] says “that he wants to take me for a bath and then he wants to wash me.”… “and he goes near my private parts and I'm like no-no but he always does it.”
Perusal of the transcript satisfies me that the children cannot provide any real context to their disclosures or any real detail.
The letter from the Department of Child Safety, Youth and Women of 23 August 2019 sets out the reasons why the Department have substantiated significant emotional harm to the children with the mother being the person responsible as follows:
a)“information gathered from multiple professional sources indicate Ms Crusan tells the children to say things about the father and the children advised this during their interviews.
b)[Y] advised during interviews, Mr Merle does dressing up like a big bad wolf. He is like a dad but he dresses up like that. My mom told me that. He is like a nice dad but really he is a big bad wolf. Sometimes he puts cream on it, my vagina (when it is sore). He touches my vagina, he doesn't really, he’s only putting cream on it but that's what mum said. She won’t let me see Mr Merle anymore;
c)[Y] clearly articulated during interviews that Mr Merle did not touch her vagina. He was just putting cream on but her mother told her he was touching her vagina and was a big bad wolf. Ms Crusan explained that they had been watching Little Red Riding Hood and [Y] may have perceived her dad in this way. This was inconsistent with [Y] saying her mom told her her father is a big bad wolf.
d)[X] became upset during interview saying she misses her dad and she loves Mr Merle and he loves her.
e)Information obtained from education advises Ms Crusan speaks about sexual abuse in front of the children and has to be prompted to send the children to class so they are not overhearing the conversation.
f)The language the children have used to describe the abuse is adult language, such as my daddy touched me inappropriate. When asked what that meant (inappropriate), [X] advised I don't know, that was what mummy said because Mr Merle touched my vagina. I have to talk to a lady because of that.
g)Ms Crusan has made comments to the children in the past that Mr Merle ripped number plates off her car and pushed her. [X] did not witness this, however reports her mother told her this information which indicates inappropriate and damaging conversations have happened with the children.
h)The children appear to have been coached-lead by Ms Crusan during interviews. When child safety staff returned to the home after the children had finished school, Ms Crusan would have had opportunity to speak with the children about the concerns we raised with her earlier in the day. [X] instantly advised “we don't get smacked, we don't get locked in our room (that was all at my dad's, Mr Merle), I feel safe (all of which was earlier discussed with the mother in the same order). She then looked inside to where her mother was standing at the time, as if to check in with her mum.
i)There have been multiple concerns including (mandatory reporters) received in regards to emotional harm to the children with concerns Ms Crusan was continuing to speak in front of and to her children negatively about the father and that this may have been impacting their well-being.”
It should be noted that the mother was interviewed at approximately 1:00pm in the afternoon and that the children were subsequently interviewed at 4:00pm after they had returned from school.
The mother complains that the departmental officers did not interview Ms H however the letter clearly notes that they had spoken to Ms H and indeed that she “has provided education around the importance of Ms Crusan not raising this with the children and believes Ms Crusan has followed this advice.”
It is a recommendation from the Department of Child Safety, Youth and Women that the father have contact reinstated with his children and that in order to protect the children the relationship would need to be repaired due to the emotional harm has occurred to the children during the time as a result of the mothers actions.
Legislative Pathway
Primary Considerations
It is well accepted that children benefit from having a meaningful relationship with both of their parents provided it is safe to do so. Both of these children have informed independent people that they love both of their parents and in relation to the father that they miss him.
Accordingly I am of the view that the children's time with their father should only be supervised if I am satisfied at this interim stage that he poses an unacceptable risk of harm.
I note it is the father's case that by way of final orders he wants the children to live with him so as to protect them from the unacceptable risk the mother poses by causing them significant emotional harm through her actions.
I would only change the residence of these two children if I was satisfied that the mother poses an unacceptable risk of harm. I note at this stage the department are satisfied that she is a parent “willing and able” to provide appropriate care for the children because the evidence they gathered through their investigation satisfied them that the mother is no longer discussing sexual abuse or making derogatory comments about the father in the presence or hearing of the children.
On the evidence that I have before me I am satisfied that these children will benefit from having a meaningful relationship with both of their parents.
Need to Protect
The mother raises very serious allegations about the father. The father raises very serious allegations about the mother.
This is an interim hearing and accordingly none of the evidence has been tested nor have any of the parties been cross examined. The facts in relation to the allegations are in dispute. But as the Full Court in Eaby & Speelman (2015) FLC 93-654 observed at [18];
“That does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.”
Further more in Marvel & Marvel (No.2) [2010] FamCAFC 101 it was held that findings in disputed interim proceedings should be couched with “great circumspection.” That is I should be cautious or wary about making any findings in relation to the allegations raised.
Being cautious or wary is different to the idea that I should not make any findings. Rather I must make findings provided there is sufficient information before me that could lead me to making a finding on balance, notwithstanding the fact that the evidence has not been tested.
At paragraph 100 of the Full Court's decision in SS & AH [2010] FamCAFC 13 their Honour’s said:
“the intuition involved in decision making concerning children is arguably of even greater importance when a Judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial agreed facts, a Judge will sometimes have little alternative but to weigh the probabilities of competing claims and the likely impact on children in the event the controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
The independent evidence that I have before me consists of a letter that sets out the Department of Child Safety, Youth and Women's findings in relation to allegations raised. The letter points out that the assessment conducted by the Department was not to investigate sexual abuse allegations because “this has previously been reported to the department and did not reach the threshold for an investigation due to the allegations being unfounded by the police.”
It is abundantly clear however that the sexual abuse allegations were raised during the interview and information was gathered about them during the investigation such that the allegations require consideration in the current assessment.[1]
[1] See paragraph 2 of the letter dated 23 August 2019
I am satisfied that the Department have carried out a thorough investigation and that they have spoken to relevant third-party individuals in making their assessment. I have already commented on why I cannot place much weight on the evidence provided by the mother that is independent in the sense that it comes from a psychiatrist and a doctor.
I have had the benefit of reading a transcript provided by the mother in relation to the disclosures made by the children during an interview. My assessment of the children's disclosures is that the children have most likely been exposed to conversations regarding sexual abuse. The children cannot provide any context to the allegations nor any great detail. Of course I must take into account the age of the children as well however the fact that the children have told investigators that their mother has told them certain things about the touching casts significant doubt on the disclosures themselves.
I have a concern that the mother has become so concerned about her children being cared for by the father that she has perhaps misinterpreted information provided to her by the children and amplified that information to a risk of sexual abuse.
It is noted that the first suggestion of inappropriate behaviour related to these two very young children showering with their father and nothing more. Furthermore, the child has explained that the father was putting cream on her vagina, but the mother has informed her he was not doing it for the purpose of putting cream on her vagina he was doing it so that he could touch her.
Whilst Dr J talks about irritation and thrush there is no evidence to suggest that the irritation and/or thrush has been caused by any inappropriate touching and indeed the fact that the child has had thrush provides a reason why the father might be putting cream on the child's vagina.
In that light when I assess the probability of the mother's claim, namely that the father is sexually abusing the child, I form the view that it is most improbable based upon the information I have to date.
It is submitted that I should wait until a final hearing so that these allegations can be further investigated. The police have closed their investigation as have the Department of Child Safety, Youth and Women. The only other investigation that can occur at trial is the cross-examination of the relevant witnesses.
Even if I am satisfied that the mother firmly believes that these children have been sexually abused that does not assist me in making a finding that the father has sexually abused the children.
The assessment of the mother's belief is what will be important at the time of trial; that is whether it is a reasonable belief based upon the known independent facts or whether it is not.
The known independent facts at this stage are that the children did not make any disclosure to the police and the disclosures they made to the Department Child Safety, Youth and Women investigating officers were of a nature where there was no context or detail provided.
I am not sure what further investigation the mother is hoping the court can undertake in relation to these allegations. Indeed, it would seem that the mother will never be satisfied of any finding made that is contrary to her belief that the children are at risk of harm. At page 41 of the transcript relied upon by the mother she says “I can't physically bring myself to leaving them. Even if the courts is back to unsupervised visitation, it feels like the wrong-worst thing I can do.”
Dr I in his report provides the following relevant exchange:
“When I enquired as to what she felt would be the best outcome, if it was found that the father had not sexually abused children, “they should still be supervised once a month.” “My girls are five and six.” “I cannot see how it is possible that they can come up with these things on their own.” “Also, the other things – incontinence and sexualised behaviours.” “I cannot foresee the court making those determinations.” “It boggles my mind why the police have not done anything yet.” “They have said it is hard to prove.”
“When I specifically inquired, she did inform me that the children only started seeing a psychologist post the disclosures.” “There was one disclosure previously that the father had showered with the child and touched her vagina.” “The child only disclosed that they had showered with the father and did not disclose anything else.”
Later on the same page the mother is reported to have said “it all started because she was kissing boys at school and was domineering with the boys.”
The subpoenaed notes revealed that the school did not believe that the child was displaying sexualised behaviour. The mother does however.
The mother now suggests that the child is incontinent as a result of sexual abuse. It would appear that the mother is so fixated on the idea that the children have been sexually abused that she cannot receive information through any other prism.
Having regard to all of that information and to the disclosures made during the interview I can place very little weight on the disclosures the children are making. It is quite clear that they have been exposed to the mother’s hypervigilance about this issue.
In all of the circumstances I am not satisfied that the father poses an unacceptable risk to the children as a result of a risk that he may sexually abuse them.
There has been a finding that the mother is the cause of the children suffering significant emotional harm.[2] This finding was made after the Department had interviewed the mother, the children and spoken to the child's counsellor and gathered other relevant information. It is an independent assessment and finding.
[2] Department of Child Safety, Youth and Women letter dated 23 August 2019
It would seem that the children’s psychologist was also concerned about the mother exposing the children to inappropriate conversations regarding sexual abuse and had in fact cautioned her and provided her with education around how she might control her behaviour around the children. In that light I am satisfied that the mother has caused significant emotional harm to the children in the past.
As to whether the mother poses an acceptable risk of harm to the children or not currently and moving forward this is a determination that can only be made after the mother's evidence has been properly assessed and tested at trial.
The information that I have to hand currently satisfies me that the mother as at 23 August 2019 was no longer exposing the children to these inappropriate conversations and themes.
As I am satisfied of that it mitigates against the risk of harm to these children and prevents me from making a finding that the mother poses an unacceptable risk of harm to the children.
Additional Factors
As previously set out the children have both expressed a view that they miss their father and that they love him. Whilst I acknowledge that they have also said that the father is unsafe for the reasons previously outlined I can afford little weight to those comments.
The children are no doubt primarily attached to their mother. They have lived with her all their lives. The children's relationship with their father has been strained for some considerable period of time. The children's time with the father was initially supervised due to the mother's allegation of drug abuse and prior to that the time he spent with the children was infrequent. The mother says it was as a result of the father's inactivity that the children's time with him was infrequent and the father suggests that the mother was the instigator of the difficulty. I cannot determine that issue on an interim basis.
Clearly by the time this matter came before me in September the children had not spent time with their father for approximately 10 months. As a result I made an order on the day of hearing that the children's time with their father should commence on a supervised basis at the Suburb G Supervised Contact centre so as to re-establish a connection with the children.
If I were to make orders consistent with the mother's proposal there would be no change to the children's circumstances and as a result no effect. However the fact that the children are spending supervised time with their father in circumstances where they are told by their mother that he is a big bad wolf may serve to reinforce in the children's minds that the father is a risk to them. Having assessed that the father is not a risk to the children I am concerned that their emotional well-being might be disadvantaged if supervised time were to continue.
If I make orders consistent with the father's proposal the children would see a return to the arrangements that were in place as a result of the parents consent back in August 2018. The children have had the benefit of seeing their father at the contact centre and have had the opportunity to once again develop their own understanding of the type of person the father is.
Having decided that the children would benefit from a meaningful relationship with both parents and that the father does not pose a risk of harm to the children I am satisfied it would be advantageous for the children to spend unsupervised time with their father once again.
There is a serious question mark over the mother's capacity to provide for the needs of the children in particular their emotional needs. I have assessed, as has the Department, that the mother has exposed the children to significant emotional harm as a result of her inability to protect the children from adult themes and discussions pertaining to sexual abuse and the mother's view of the father.
However at the time of this hearing I am also satisfied that the mother has received education and advice about how her actions have harmed the children and that she has taken that advice on board and is no longer exposing the children to this risk of harm.
On the evidence before me I am satisfied that the father has the capacity to meet the needs of the children, both emotionally and intellectually and that the children would benefit from his input in their life.
Both parents have shown a positive attitude to their children and to the responsibilities of parenthood. Both parents have raised concerns in order to protect their children. It is the mother's inability to accept the outcomes of those investigations that is causing or has caused the children harm.
If the mother can come to terms with the knowledge that appropriately qualified people have considered the allegation she has raised and have found that the allegations are unsubstantiated this would go a long way towards allowing her to parent these children in appropriate fashion.
I am satisfied that it is appropriate and in the children's best interests for the children to spend unsupervised time with their father now rather than to wait until a final hearing.
Delays in the Federal Circuit Court are significant and in circumstances where these children have been told that their father poses a risk if they were to remain spending time with him on a supervised basis I am concerned this may serve to reinforce the mother's negative attitude of the father in their own minds. If that were to happen the relationship between the children and their father may not be repaired or repairable by the time a trial occurs.
In circumstances where I am satisfied that it is not probable that these children have been sexually abused by their father then it is appropriate and in their best interests to enjoy the relationship they had with their father once again.
The parents were able to reach an agreement on 17 August 2018 for the children to spend substantial and significant time with both parents. Those orders provide for the children to live with the mother. Those orders also provided that the father was to provide six random consecutive monthly urine tests prior to any unsupervised time occurring.
There was nothing raised in these proceedings about the father's drug use and indeed the children had been spending unsupervised time with the father prior to the mother unilaterally withholding the children and in those circumstances there is no evidence to support an order for the father to engage in any more random drug tests.
I am satisfied that the children should commence spending unsupervised time with their father once again as soon as practical and prior to Christmas.
For these reasons I am satisfied that the orders I have made are the orders that are in the best interests of the children.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Associate:
Date: 19 December 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Remedies
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Standing
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