MERRITT & MERRITT
[2018] FamCA 1107
•19 December 2018
FAMILY COURT OF AUSTRALIA
| MERRITT & MERRITT | [2018] FamCA 1107 |
| FAMILY LAW – CHILDREN – With whom a child spends time – Where this is the second parenting trial between these two parents – Where the matter was remitted for a re-trial after a successful appeal – Where the father seeks to recommence spending time with the children and the mother opposes such time based on her belief that the father sexually abused one of their children – Where the children have not spent any time with the father for five years and seem to currently hold a negative opinion of him – Where the Court is not persuaded on the balance of probabilities that the father did sexually abuse one of their children – Where the Court finds that the father does not pose an unacceptable risk of harm to the children - Where the Court finds that even if the child believes she has been abused by the father, there is no unacceptable risk of harm to the children if they spend time with him – Where the Court finds it is more likely that the mother misinterpreted what was initially an innocent statement by the child – Where Court orders the children to spend unsupervised time with the father after a careful and supervised period of reintroduction – Where the parties have agreed that the mother is to have sole parental responsibility for major long term decisions. |
| Evidence Act 1995 (Cth) Evidence Act 1977 (Qld) Family Law Act 1975 (Cth) |
| Baghti & Baghti [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 Fardon v Attorney General (Qld) (2004) 223 CLR 575 Goode & Goode (2006) FLC 93-286 Johnson & Page (2007) FLC 93-344. M & M (1988) 166 CLR 69 N and S and the Separate Representative (1996) FLC 92-655 Re: David (1997) FLC 92-776 SCVG & KLD (2014) FLC 93-582 |
| APPLICANT: | Mr Merritt |
| RESPONDENT: | Ms Merritt |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Boulton |
| FILE NUMBER: | BRC | 7783 | of | 2013 |
| DATE DELIVERED: | 19 December 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 3 - 7 December 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Galloway |
| SOLICITOR FOR THE APPLICANT: | Delaney & Delaney |
| COUNSEL FOR THE RESPONDENT: | Ms Downes |
| SOLICITOR FOR THE RESPONDENT: | Salvos Legal Humanitarian |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Cameron |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Jennifer Boulton Solicitor |
Order
All previous parenting orders be discharged.
The mother, MS MERRITT, shall have sole parental responsibility for all major long term issues (as that term is defined in s 4 of the Family Law Act 1975 (Cth)) for the children, E, born … 2007 and D, born … 2009 (“the children”) save that the mother is restrained and an injunction hereby issues restraining the mother from making any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with the father.
Prior to making a decision about a major long term issue the mother shall inform the father in writing of the decision to be made and invite his input into the decision. The mother shall use her best endeavours to take into account the father’s written views which are to be conveyed to the mother within 14 days of receipt of the mother’s written advice and upon making a decision the mother shall inform the father of her decision and the reasons for it.
The children shall live with the mother.
The father, MR MERRITT, shall spend time with and communicate with the children at all such times as may be agreed between the father and mother and failing agreement at such times and in such circumstances as provided for in this Order.
In order to facilitate the reintroduction of the children to the father, the father shall forthwith retain the professional services of a suitably qualified professional (“the professional”) and unless the father and mother agree otherwise, the professional will be Ms R.
The father and mother shall each be responsible for payment of one half of the fees rendered by the professional.
The children’s relationship with the father shall be re-established by adopting a reintroduction schedule that will take place as follows:
(a) The mother shall deliver the children or cause the children to be delivered to the professional’s nominated address at all such times as the professional requests and, unless invited to remain, the mother shall immediately leave the premises and not return until requested by the professional to collect the children;
(b) The children shall initially meet with the professional to facilitate the professional developing rapport and their feeling comfortable with the professional;
(c) At a time determined by the professional but no later than the fourth session between the professional and the children, the first meeting between the children and the father shall take place in the presence of and be facilitated by the professional;
(d) Following the meeting referred to in the preceding subparagraph, the children shall spend time with the father in the presence of the professional for periods of up to two hours on six occasions occurring either weekly or fortnightly at the discretion of the professional;
(e) On a further six occasions occurring either weekly or fortnightly at the discretion of the professional, the children shall spend time with the father for four hours with changeover occurring in the presence of the professional and at the address nominated by the professional;
(f) On a further six occasions occurring fortnightly the children shall spend time with the father from 9.00am until 4.00pm on a Saturday with changeover occurring in the presence of the professional and at the address nominated by the professional.
The father is authorised to provide to the professional a copy of this Order, the reasons for judgment and the family reports prepared by Mr B.
Upon the conclusion of the reintroduction schedule as set out in paragraph (8) of this Order, the children shall spend time with the father on each alternate weekend from after school Friday until before school Monday during school term.
From and including the Easter school holidays 2020 the children shall spend time with the father in the first half of all school holidays in even numbered years and the second half of all school holidays in odd numbered years.
The father shall be at liberty to attend all of the children’s school and extra-curricular activities including but not limited to: concerts, sporting fixtures, parent/teacher nights and other activities to which parents are usually invited to attend.
After the reintroduction schedule described in paragraph (8) is complete, the children shall spend special occasions with the mother and the father at times as agreed and failing agreement as follows:
(a) If the children are not already with the mother on Mother’s Day, they will spend time with the mother on Mother’s Day between 9.00am and 5.00pm;
(b) If the children are not already with the father on Father’s Day, they will spend time with the father on Father’s Day between 9.00am and 5.00pm;
(c) On their birthdays each year, the children will spend time with the parent that they are not with on those days from 3.30pm to 6.30pm if it is a school day or from 10.00am to 2.00pm if it is not a school day;
(d) From 12.00pm Christmas Eve until 12.00pm Christmas Day with the mother in even numbered years and the father in odd numbered years;
(e) From 12.00pm Christmas Day until 12.00pm Boxing Day with the father in even numbered years and the mother in odd numbered years;
(f) From afterschool on Thursday before Good Friday until 2.00pm Easter Sunday with the mother in even numbered years and the father in odd numbered years; and
(g) From 2.00pm Easter Sunday until 9.00am or before school on Tuesday following Easter Monday with the father in even numbered years and the mother in odd numbered years.
If the parent is not collecting the children from school for changeover:
(a) The father is to deliver the children to the mother’s residence when they are about to commence spending time with the mother but unless invited in writing beforehand the father shall not proceed past the front entrance to the mother’s residence; and
(b) The mother is to deliver the children to the father’s residence when they are about to commence spending time with him but unless invited in writing beforehand the mother shall not proceed past the front entrance to the father’s residence.
The children’s schools are authorised by this Order to provide photographs, school reports and awards for the children to the father at his cost.
The father is authorised by this Order to collect the children from school in accordance with this Order and the children’s schools are authorised by this Order to list the father as a parent with authority to collect the children from school on the children’s school contact details forms.
The father shall be at liberty to contact all medical practitioners treating the children from time to time and this Order authorises the children’s medical practitioners to provide medical information or reports concerning the children to the father at his cost.
In the event of an emergency, the party with whom the children are living or spending time shall immediately contact the other parent.
The mother and father be restrained and an injunction hereby issues restraining each parent from denigrating the other or any member of the other parent’s family or household in the presence or hearing of the children and shall remove the children from the presence of persons who are doing so.
The father shall keep the mother informed at all times of his residential address, mobile telephone number and email address.
The mother shall keep the father informed at all times of her residential address, mobile telephone number and email address.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Merritt & Merritt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 7783 of 2013
| Mr Merritt |
Applicant
And
| Ms Merritt |
Respondent
REASONS FOR JUDGMENT
Mr Merritt and Ms Merritt are the parents of two children, E aged 11 and D aged nine. The mother opposes the children spending any time or communicating with the father because it is her stated belief that he sexually abused D on 7 July 2013. The father denies the allegation. The children have not seen the father since 2013.
This is the second parenting trial between these parents. The first trial concluded in 2016 and judgment was delivered in 2017. The matter was remitted for a re-trial after a successful appeal in 2018 by the father.
issues
The significant issues identified with the assistance of the parties in this case are:
a)Has the father sexually abused his daughter?
b)Is there an unacceptable risk to the children being sexually abused by the father?
c)If D believes she has been sexually abused by the father, is there an unacceptable risk to the children suffering psychological harm if they spend time with the father?
d)Has the mother influenced D, either wittingly or unwittingly, to make statements that have been construed by others as suggesting the father has handled the child in a sexually inappropriate manner?
e)Are the father or his parents likely to inform the children of their views that the allegations made against the father are false and, if so, would that create an unacceptable risk of psychological harm to the children?
f)If there is an unacceptable risk of harm to the children for whatever reason can that risk be ameliorated by supervision of the children’s time with the father?
g)Can the children’s relationship with the father be restored and, if so, can a final parenting order be made?
h)Should the children be treated differently in terms of any order made permitting or not permitting them to spend time with the father?
proposals
The father proposes that his time with the children be recommenced with the assistance of an appropriately qualified expert and progress to alternate weekend time. While conceding that an order for sole parental responsibility should be made in favour of the mother, he nevertheless seeks an order that the mother consult him about any major long term issues.
The mother proposes that the children spend no time with the father and have no communication with him.
The independent children’s lawyer (“ICL”) supports the mother’s position save that the father be permitted to send cards and gifts to the children on special occasions.
background
The parents commenced a relationship in 2004 when the father was 24 and the mother 38. They married in 2007 and separated in 2011.
The father has since remarried and has two step-daughters aged 17 and 15. The father commenced a relationship with Ms S (now his wife) in February 2013 but had known her for some months prior to that time. She and her daughters commenced to live with the father in August 2013 when Ms S’s girls were 12 and 10. The girls were interviewed twice by the family report writer, Mr B. The first time in 2014 and recently in November 2018. They describe a very loving and close relationship with the father and made no complaint about him ever behaving inappropriately with them.
The father describes a marriage with the mother where he was intimidated by her such that he felt on “tenterhooks”. He says she often displayed aggression towards him and was often critical of him in front of the children. Unsurprisingly, the mother provides a very different account of their marriage, portraying the father as reckless, negligent and lazy. Historically she was very critical of the father for, as she saw it, abandoning their marriage. The mother nevertheless concedes the father’s love for the children and the “excellent” and “brilliant”[1] relationship he had with the children prior to 7 July 2013.
[1] Both adjectives were used by counsel for the mother during cross-examination of the father.
The father has generally been employed or self-employed in other occupations than his primary profession. He is currently studying for a degree. In 2009 he obtained a Blue Card as a requirement of his employment which involved contact with young children. His Blue Card was suspended as the result of criminal charges laid against him in October 2013.
The mother describes herself as mainly a ‘stay at home mum’ during the marriage until she was effectively forced back to part time work in 2010 because she contends the father could not support the family. She nevertheless says that she has always enjoyed her vocation as a health professional. She continues to work part time. The father pays a modest sum of $191 per month in child support.
In 2011 the father moved out of the family home and shared a house with a male friend. At this time E was three and D was 18 months old. Even though the father was no longer living in the same home as the mother and children he was a frequent visitor. He contends that when he visited he attended to chores around the home and cared for the children. He took the children to swimming lessons and dropped them off to kindergarten and later school. Again the mother has a different version. She contends that the father failed to respect her home, often leaving it in a mess and helping himself to her groceries. She nevertheless concedes that he helped care for the children by bathing them and putting them to bed and looking after them when she was at work.
After separation the mother worked on Mondays and Fridays but the father contends she would not agree to him having regular structured time with the children but rather it had to be on her terms. He describes these terms as leaving him feeling as though he had to beg to see his own children. Some of the conditions the father contends were imposed upon him included:
56. …
a.I was not allowed to pick up the children on the weekend and take them out for the days;
b.During visitations I was not allowed to take them out of the Suburb T district;
c.They were not able to spend time with me at my house if [Ms Merritt] was not at work;
d.When we went to local parks there were certain times that we needed to return by; and
e.[Ms Merritt] refused to let me take [E] with me when I went to the airport to pick up my brother when he came to stay.
Despite these complaints the father contends that he and the mother were able to parent co-operatively at times but the co-operation disintegrated when he pressed for more time with the children. The mother agrees to some degree, at least, that they were able to parent co-operatively on some issues although she remained opposed to the father spending overnight time with the children.
The father contends that from late 2012 to early 2013 the mother refused many of his requests to spend time with the children and started calling him “dangerous”. He cites as examples:
58. …She stated that I was “dangerous” for doing things such as:
a.Not putting the power outlet cover plug back in the outlet after vacuuming; and
b.Pegging up the blind cords one (1) foot out of the children’s reach instead of two (2) feet out of the children’s reach.
The mother agrees that she referred to the father as dangerous and that his practice of leaving rat bait around the house when they lived together (an allegation denied by him) and failing to install a mesh divide in his car to keep the children from his tools (as well as the accusations included above) are some examples of why she considers ‘dangerous’ to be an apt description.
The father also contends that the mother changed the children’s regular arrangements e.g. swimming lessons, without consultation and thus interfered with his ability to involve himself in such activities. The father contends that his attempts to have a routine with the children was met with refusal from the mother. While the father complains of lack of consultation, the mother contends that the father had not minded in the past when she had changed arrangements so she did not feel the need to consult. It seems unfortunate that so many misunderstandings permeated what had been a reasonably co-operative parenting relationship up until the beginning of 2013.
The father commenced to record his conversations with the mother from January 2013 at the suggestion of his then friend, Ms S, now his wife. Ms S was concerned by the mother’s reference to the father being dangerous and thought the father should protect himself against possible allegations. The father contends that he wanted to have a record of himself being reasonable in his negotiations and the mother being unreasonable. His covert recordings certainly capture the mother at her worst and include threats that she will never allow the father to spend time with the children at his home and that she will get a restraining order if the father argues with her. The father of course, is generally on his best behaviour.
7 July 2013 and what happened subsequently was to change the lives of this family, probably forever. It was an evening like many others when the father visited and helped with the children. He bathed them and stayed while they ate dinner and may have stayed to help the mother put them to bed. He took a video recording of a happy and playful D running into his arms with clear joy. Both children spoke to the paternal grandmother on the telephone and all seemed well enough. The mother noticed nothing untoward and D made no complaint or indicated any distress or discomfort.
That changed on 9 July 2013 when the mother contends that D made what the mother says was a disclosure of sexual abuse, indeed she refers to it as a disclosure of rape, by the father.
The father was charged with one count of rape in mid-2013 and in early 2014 was committed to stand trial. A ‘No True Bill’ was entered in mid-2014 i.e. the prosecution was discontinued.
The father has no criminal convictions.
The children have not spent any time with the father alone since 7 July 2013. I interpolate that the father contends that although the mother remained at a park with the children and himself on 12 July 2013, she did not have sight of them at all times. The mother refutes that she lost sight of the children at any time. D has not seen the father at all since about the day the father was charged with criminal offences and bail conditions imposed and E has not seen him at all since about 13 October 2013.
The children are performing well at school and seem settled and happy. They have a close and loving relationship with the mother.
Applicable legal principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper,[2] but such consideration will focus in particular on matters raised as significant issues by the parties and of course the Court.[3]
[2] See Family Law Act 1975 (Cth) s 65D.
[3] See Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637.
The Court is not required to make findings of fact on every factual dispute raised by the parties.[4] The paramount issue for the Court is to determine what is in the best interests of the subject children in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion” on every factual dispute.[5]
[4]Baghti & Baghti [2015] FamCAFC 71.
[5]M & M (1988) 166 CLR 69, 76.
The objects and principles of Part VII of the Act are set out in s 60B(1) and (2) and those sections make it clear that the Court is concerned with children’s rights to be, among other things, cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child etc. (s 60CC).
In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in what is sometimes referred to as the ‘legislative pathway’ I have considered all sections as required when making my determination.[6]
[6]Banks & Banks (2015) FLC 93-637.
The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.”[7]
[7] See ‘Unacceptable risk – A return to basics’ by the Hon. John Fogarty AM quoted with approval in Johnson & Page (2007) FLC 93-344, [68].
Has the father sexually abused his daughter?
Before determining whether this Court can or should make a finding that the father has sexually abused his daughter it is important to reiterate what the High Court said about findings of sexual abuse in M & M:[8]
[8] (1988) 166 CLR 69 at 76 ff; see also Evidence Act1995 (Cth), s 140.
…The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee [1951] A.C. 352, at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447, at pp. 450, 458, 462, 463-464.
Viewed in this setting the resolution of an allegation of sexual abuse against a person is subservient and ancillary to the Court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
…
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.Understandably, much of the trial was taken up with evidence relating to the mother’s allegation that the father sexually abused D on the evening of 7 July 2013. D was not quite four years of age at the time.
The mother submits that a finding of sexual abuse is open on the evidence. The mother stated many times during her evidence that she believes her daughter which I take to mean, she believes that the child was sexually abused by the father. I come to that conclusion because the mother’s focus was very much on the words and actions attributed to the child by the mother and others. Considerable reliance is also placed on the content of the s 93A[9] video recording of the police interview with the child, although remarkably the mother had not seen the video until shortly before the commencement of the hearing before me.
[9]Evidence Act 1977 (Qld).
The ICL did not press for a positive finding of sexual abuse. I have taken that to mean that such a finding should not be made in the circumstances of this case although that submission was not expressly made.
Like all cases involving allegations of sexual abuse it must be acknowledged at the outset that sexual abuse of a child is a heinous crime. The breach of trust between a parent and a child in such circumstances is particularly abhorrent. The fact that a child and a parent seem to have a loving relationship does not necessarily rule out that abuse has occurred. The fact that an allegation is made by a parent in circumstances of conflict does not necessarily mean it should be dismissed. The fact that there is no medical evidence to substantiate the abuse does not necessarily mean it did not occur. Cases involving very young children are even more difficult because invariably adults hear something which they interpret to mean something and then they seek to clarify their interpretation which may or may not represent actual events. The consequences of making the wrong decision are particularly grave i.e. a child could be placed in the hands of a sexual abuser or alternatively a child could grow up wrongly believing a parent whom they loved and trusted has sexually abused them and lose that parent forever.
A child’s right to have a meaningful relationship with each parent is subservient to the need to protect a child from an unacceptable risk of harm.
It is imperative that the evidence said to indicate harm be carefully and thoroughly examined to assess whether a positive finding of abuse can or should be made or, if not, whether there is a risk and, if there is, the magnitude of the risk. It is only if the risk is assessed to be unacceptable, that a child’s right to have a relationship with a parent will be denied.
Background leading up to the allegations
Before turning to consider the evidence relied upon by the mother to support the allegation of sexual abuse it is important, in my view, to consider the context in which the allegations were first made.
By the beginning of 2013 the relationship between the parents had reached a very low point. The father resented the mother’s attempts to place restrictions on his time with the children and the mother felt she needed to protect the children from a father whom she regarded as reckless and negligent. She accused him of being dangerous. The father had also recently commenced a relationship with Ms S who suggested that he record his interactions with the mother.
The covert recordings
The father began recording his interactions with the mother from early 2013. The father exhibits to his affidavit a number of transcripts of the recordings but only some of them were played during the proceedings.
The recordings demonstrate:
a)The high conflict to which the children were exposed during this time;
b)The mother’s utter frustration with the father;
c)The father’s preparedness to engage with the mother in the presence or hearing of the children when she was clearly very angry;
d)The mother’s sense of entitlement regarding the children;
e)Threats by the mother to limit the father’s involvement in the children’s lives;
f)Exaggeration of the father’s behaviour as dangerous e.g. sunburn;
g)The mother’s preparedness to take the father to task for questioning her about something [E] had told him;
h)The mother’s direct involvement of [E] in one of the arguments;
i)The mother’s preparedness to ask leading questions of [E]; and
j)The mother’s dismissal of the reliability of something said by her five year old son (in contrast to her preparedness to believe something said by her three year old daughter).
Although rather lengthy I propose to set out the transcript of those parts played in court and accepted by the mother as recording her and the father and in one conversation involving the children, in particular E.
Recording 11 February 2013 (full transcript of the parts played in court)
M:Remember when I first met you?
F:Hmm (yes)
M:And I said don’t you go and fuck with me, and you have, so now, I’m not normally – well, you’re the only one who I’m like this way towards, by the way, but I told you that I would do whatever I had to do, and I don’t believe what you did on Friday was appropriate and I certainly will do whatever I have to do if this is going to – because - after all these years I still – you said to me “oh yes but you’re not letting me see the kids” well I let you stay here until half past 6 at night, for twelve hours and “oh but you are not letting me see the children”
F:What?
M:Don’t interrupt. I let you finish, did I not?
F:Most of the time. Well, actually, not most of the time.
M:Did I let you finish just before?
F:Ok, yes you did.
M:If you want to argue with me I’ll get a fucking restraining order. Now stay – you just don’t get it. You come in here, I come home, you’re on my fucking internet, you’re powering up your tools. This is my house. This is my – I can’t afford to support you. You come in here “Oh, well I buy bread and milk for the kids” – that’s for the kids. Not you!
F:then [inaudible]
M:I don’t eat it! I don’t drink it!
F:Then I will look after the kids at my place!
M:No you won’t because I will make sure it never happens! Because of how you’ve been. In all the years! Notes everywhere, stuck on the back of doors. I only pulled [E’s] down the other day. You’re dangerous!
F:What?!
M:You don’t get it, you don’t get it!
F:Dangerous?
M:Every time they have been out with you outside they’ve got sunburnt. You don’t even -
F:That is not, that is not true.
M:You have no idea. It is! I have got photos to prove it! Don’t push me! I’ve had it with you! You fucking freeload off me ever since I met you
F:What?
M:I had to ask you to help pay for food before you even moved in with me because when I went shopping you used to put all this shit in my trolley. And you know it is true.
F:That -
M:It is true.
F:- That is not.
End
Recording 29 March 2013 (full transcript of the parts played in court)
M:I’m not asking you to, to do that – it was a hypothetical comment.
F:Well how – well, can I take them – can you bring their bikes out so I can take them down the park please?
M:I don’t know. No, we are going to do an Easter Egg hunt and that’s what is going to happen.
F:That only takes like 15 minutes or something. I want, I want to spend some quality time and I want them to be able to spend that quality time with me -
M:[Inaudible]
F:- without you, without you sort of hovering.
M:Well I will be hovering. Until mediation is done that is exactly what I will be doing!
F:How come when you’re at work me being with the kids is fine then all of a sudden it’s not?
M:I always worried about it. That’s why. Always.
F:Yet it didn’t stop you from going to work.
M:Because of what I’ve learnt to worry about with you. That’s why. Like I keep saying, we keep having the same conversations over and over again. You have made this situation all by yourself. I haven’t helped you be forgetful. I haven’t helped you [pause] do any of the things that have presented themselves as issues. They are purely your own doing. And I can’t change you as a person. I know I shouldn’t have tried, even though I did, but obviously it was the wrong thing to do.
F:Well –
M:I should have known there was no point, it was like flogging a dead horse.
F:Right, well, how long? After rest time until when?
End
Recording 13 April 2013 (full transcript of the parts played in court)
F:Because I asked him – what he – I thought he was at [U’s] place but he wasn’t.
M:He went to vacation care on Tuesday at 8am then I dropped [D] off and then I went to work. I started work at 9 o’clock. Who you gonna believe? A five year old that lives partly in fantasy or an adult?
F:Well I didn’t know vacation day was all day. Until five seconds ago.
M:I told you I was working, I’m not in the habit of lying to you or anyone else no matter what you think I’m not a dishonest person. You start questioning me, then things will get even worse.
F:I didn’t. I didn’t -
M:Please show me the respect of not questing what I’ve told you over something a 5 year old told you. Please. That is a complete injustice. I will not be questioned.
F:- I did not question
M:[inaudible] You did! You said ‘[E] said you stayed home with him, is that right’.
F:That’s what –
M:Why don’t you tell Dad – [E]!
[E]:Yeah?
M:Come here.
[E]:Coming.
M:A child has no concept of what day of the week things happen. Like an adult. Why did you say to Dad I stayed home with you on Tuesday?
[E]:Well, I didn’t – I don’t know.
M:See? Where did you go on Tuesday? Where did Mummy take you?
[D]:I go to kindy on Monday and Tuesdays.
[E]:I –
M:You got dropped off first and what was at the PCYC when we walked in the door?
[E]:TV
M:Baby chickens. Remember?
[E[:Oh yeah.
M:Oh, now it is all coming back, isn’t it?!
[E]:Yes.
M:Please don’t tell fibs. And if you don’t know, if you’re not sure what happened on a particular day, don’t say anything because you get people into trouble and you get people thinking the wrong thing. A child has no recall.
End
Recording 28 June 2013 (full transcript of the parts played in court)
M:Because that is the first step before –
F:Yep
M:- going to court.
F:What did the letter say? ‘Cause I don’t, I don’t know what the letter -
M:Doesn’t matter what the letter says. What matters is that you’ve approached Legal Aid to go to family dispute resolution –
F:Yeah and which is to -
M:- where lawyers are needing to be involved.
F:Do you – and – does it say what I – what the dispute is? Does it, does it state that or is it just -
M:It’s beside the point what it states! The point is that you have taken action through Legal Aid to drag me and the children into this
F:Hold on, no, it’s –
M:If you want a war buddy, you’re going to get it. Ok?! Be warned. There are reasons why we are in this situation that are purely initiated by you and the way you behaved when the children were little. And continue to. Which is my bone to pick.
…
Same recording (28.06.13) but full transcript of a different part played in court
M:You are taking them away from me and to be honest, they don’t want to go.
F:Well what? What? How is what you’re doing not taking them away from me?
M:Because I’m protecting them. From you.
F:Protecting them from me?
M:Yep. You have, like I said, you have no idea. You have no idea. And that’s the worst part!
F:How am I dangerous? How am I a threat to them? Given that I have just come back from an hour ride with them.
M:And you don’t even recognise that they need to be back in time to eat.
F:It’s not even 12 o’clock yet!
M:They go to rest time, they’ve both been very sick, they need to go have a rest at 12 thirty, the same as they have every other day of the year!
F:Well I figured they’re older, they’re not –
M:Yeah, you figured.
F:- they’re not toddlers anymore
M: [D] still sleeps during the day! Ok!
F:There’s –
M:It’s not up to you to make those decisions for them. You don’t know what you’re doing.
F:Well, I disagree.
M:You would.
End
The mother is portrayed in a very poor light in these recordings but it must be remembered that as the father was covertly recording he was more likely to be behaving better than the mother, but like most people who engage in such conduct i.e. covert recording, he has not done himself any great favours either. It was entirely inappropriate to participate in discussions with the mother (when the children were in the house) when he knew or anticipated that the mother would lose her temper. He did not stop even when she had clearly lost control.
Both parents rightfully express regret about involving their children in the conflict.
Despite the arguments, the father continued to attend the mother’s home to see the children and help care for them until 7 July 2013.
7 July 2013
It is common ground that on 7 July 2013:
a)The father was at the mother’s home in the afternoon playing with the children including kicking a ball outside;
b)In the early evening the father bathed the children in the bath in the main bathroom shown in exhibit 4;
c)the mother was in the kitchen cooking dinner;[10]
[10] See exhibit 3 page 156 plan of house and exhibit 4 marked up plan showing position of telephone and bathroom.
d)the mother entered the bathroom at one point and told the father and children to hurry up;
e)the child E left the bathroom first;
f)the paternal grandmother telephoned the home at 5.10pm (local time) and spoke to the mother initially, then E and D;
g)the paternal grandmother’s telephone call ended at 5.51pm (local time);
h)the father stayed at the home while the children ate their dinner;
i)the father took photographs on his telephone of the children eating ice blocks;
j)the father permitted E to take photographs using his phone;
k)the father made a video recording on his phone of D about an hour to an hour and a half after her bath;
l)the video recording shows D jumping up and down in a delighted fashion and then running into the arms of the father (the latter part is not visible but accepted as occurring);
m)D made no complaint to the mother or paternal grandmother about the father or anything that occurred in the bathroom;
n)The father may have helped put the children to bed after dinner and then left.
As the events of 7 July 2013 occurred over five years ago it is to be expected that detailed memories of what happened or did not happen or what was said or not said may have faded and I have taken that into account when assessing and evaluating the evidence.
The mother contends that she made reasonably contemporaneous notes[11] of what was said by D on the evening of 9 July 2013 when it is alleged that D first made a disclosure of sexual abuse. A copy of parts of the journal is in evidence.[12]
[11] On the night of the 9 July 2013 and into the early hours of the 10 July 2013.
[12] See exhibit 6.
The mother’s journal
The journal is a document the mother variously described as a journal or notebook. She said that she wrote in it at various times on or about the dates or years indicated and added to it from time to time. She described it as a means for her to vent i.e. get things off her chest. She denied that she had written those parts of the journal comprising exhibit 6 (the original was not tendered) as a continuous stream of complaint about the father.
It seems unlikely that the mother added particular complaints to the journal over the space of three years because:
a)The first four pages of exhibit 6 comprise complaints about the father numbered 1 to 22;
b)The entries are corralled under a number of headings indicating forethought about inclusion of complaints under the various headings e.g. emotional manipulation, hygiene issues;
c)The entries are listed as relating to 2011 or 2012 or 2013;
d)Next to some entries are additional insertions e.g. + 2013 indicating that a misdemeanour such as permitting the children to be sunburnt occurred in 2011 and 2013;
e)An entry for 2012 refers back to something that occurred when the children were babies.
The part of the journal relating to the sexual abuse allegations appears on the fourth page of exhibit 6 and the entry is numbered 22 in the list of complaints about the father. Entry item 22 (see below) was certainly in existence on 16 November 2013 (although later amended) when the mother provided a second statement to police. After that date one further change was made to it by striking through the numeral 8 and replacing it with the numeral 7. Dr H who saw the mother and D on 17 July 2013 also mentions being shown something the mother had written which may have been the journal entry.
Entry item 22 states (including errors and words crossed out in exhibit 6):
22. Sun
87.7.13 – was 7th on Sunday – addit 21.7.13[D] told me on
Monday9.7 that after bath on Sunday night he touched her and put his finger in her wizza & that he had pinched her wizza while she was getting dressed once before.Washed his hands.
- She said he did it without asking.
- She was able to show me.
- They were in the bathroom for a long time
- She said she dried herself & she had her
Pyjama top on but not her pants on when he
“pinched” her. quote – “I thought it was rude but he thought it was so funny”- “I was very brave so he didn’t hurt me more, that’s why I didn’t cry”
(my emphasis)
The position of the words in bold type appear in the document as if they were an addition to what was already written.
The mother and father both agree that the term used for male ‘private parts’ in the household was ‘willie’ and female ‘private parts’ was ‘wizza’. What is apparent is that there is no distinction, unsurprisingly, between the various parts of the female form that make up the term ‘private parts’ e.g. vulva i.e. the external female genitals and the vagina i.e. the internal canal connecting the uterus and cervix to the outside of the body.
Unfortunately, but perhaps unsurprisingly the mother did not write down the questions she asked the child that elicited the responses attributed to the child on 9 July 2013.
The reference in the journal to the child ‘showing’ the mother is explained in her statement to police provided on 2 August 2013. The relevant paragraph is as follows:
21. I asked [D] to show me what he did, I then stood up, [D] was already standing and she grabbed my crutch (sic) area with her whole hand so like cupping my crutch (sic) area and squeezed really hard, like a man would squeeze a woman.
The last phrase is an odd one but seems to indicate the mother was attributing a sexual connotation to the action demonstrated by the child.
Mother’s telephone discussion with V Group and Department of Child Safety – 11 July 2013
On 11 July 2013 at 9.46am the mother contacted V Group, an organisation she had ascertained from the internet might be able to offer her some advice or assistance. The mother’s conversation with V Group took an hour and seven minutes. V Group referred the mother to the Department of Child Safety and her conversation with Child Safely went for thirty-seven minutes. Throughout these conversations the child, D, was in the home. When it was suggested to the mother that she exposed the child to the conversations about the allegations the mother denied it and said:
She wasn’t anywhere near me. She was in the playroom I believe watching TV and I was in my bedroom, which is the other end of the house, with the door closed.
(my emphasis)
During the conversation with V Group the mother says that she made a few notes in response to questions asked of her by the person with whom she was speaking. The notes which state:
Self-confident, egotistical
Manipulates & twists what I say
appear towards the bottom of the page of her journal where she had written item 22. The mother says that those comments related to her views of the father.
I consider it more likely than not that the child heard at least some parts of the conversation the mother had during these very lengthy conversations. The mother says she was distressed and shocked and looking for answers and I do not accept that she was always particularly careful to shield D from what was occurring.
Mother’s disclosure to the school – 11 July 2013
The first persons to whom the mother made any face to face complaint about what D had said was a teacher at E’s school, Ms W, and the principal, Mr F. While the mother does not recall what she said she accepts that she “must have told her [Ms W] what D had told me.” Ms W says that the mother told her and Mr F that “[D] had said that she was touched”. The child D was present when this was said by the mother.[13]
[13] See Exhibit 8.
This conversation occurred on 11 July 2013 after the mother had spoken to V Group and the Department of Child Safety.
The father was also at the school on 11 July 2013 as a volunteer at tuckshop I believe, and he spoke to the mother and D outside the principal’s office and asked why they were there. The mother did not give an answer but contends that the father asked for a moment alone with D whom the mother says she was holding in her arms. The mother says she declined but the father took D from her arms anyway. The mother says that she felt very intimidated and worried for D at the time and stayed by her side at all times. The father denies that he asked to be alone with D. He denies anything unusual about the encounter. It is likely that D would have been aware of the mother’s tension around the father.
The park visit with the father – 12 July 2013
On 12 July 2013 the father requested the mother by short message service (“SMS”) on his phone to see the children and bring his mother’s birthday presents for E who had turned six. The paternal grandmother lived and still lives in South Australia.
The mother says she was no longer comfortable having the father at her home but she agreed to meet him at the local park so that the children could have a “quick play” with him. She says that she was worried about the repercussions if she refused the father’s request and the visit went for about an hour during which time she says she did not take her eyes off the children. The father denies this and says he and the children wandered off out of the mother’s sight.
The mother agrees that neither child showed any outward sign of distress although the mother interprets D staying with her for a while initially, before joining the father, as a possible sign of distress.
The father took a very short video of the children on that day to send to his parents. The video was played in court and the children appear happy.
The video recording taken by the father on 7 July 2013 and SMS break between 7 July 2013 and 12 July 2013
The mother suggests that the absence of SMS from the father to her between 7 July 2013 and 12 July 2013 should be interpreted as evidence of his guilty conscience.
Exhibit 11 demonstrates an absence of SMS between the parties for five days was not unprecedented.
It was also suggested to the father during cross-examination that his video recording showing a happy D was somehow premediated to ‘cover his tracks’.
Such suggestions certainly demonstrate a preparedness by the mother to infer the worst but as pointed out by counsel for the father the suggestions are illogical in any event i.e. if he were covering his tracks by video recording why would he then change his routine and stop sending the mother SMS.
Mother’s break down in front of her sister – 12 July 2013
Later in the day on 12 July 2013 and after the children had spent time with the father at the park the mother met up with her sister and her four children at a barber shop. The mother describes breaking down in front of her sister and telling her “about [D’s] disclosures”. The mother is unable to say what she told her sister but recalls she was advised by her to take the child to the doctor to make sure she was alright. The mother’s sister described the mother as being “in utter despair”.
The mother told Dr X on 30 January 2014 that she had burst into tears in front of her sister on 12 July 2013 and a discussion ensued about what had occurred with D.
I therefore do not accept the mother’s sister evidence that it was just her “maternal instinct” that caused her to suspect the child had been interfered with when the mother broke down on this day. Given the mother’s emotional condition it is more likely than not that there was a discussion about D’s so-called ‘disclosures’ as conceded by the mother.
The mother says the children were not within earshot. The mother’s sister also confidently asserted that the children would not have heard her and the mother’s conversation.
However, the mother’s sister’s description of where the children were i.e. just inside the barber shop sitting on a bench, while she and the mother were just outside the open door “probably within touching distance” of D raises significant doubt in my mind that the children, and in particular, D were unaware of the conversation.
It is more likely than not that the children were aware of the mother’s distressed state and heard at least parts of the discussion.
The mother’s sister did not observe anything in D’s behaviour that day that caused her to be concerned.
In her affidavit and repeated in her oral evidence, the mother’s sister makes a rather extraordinary statement: when D was two years old and being toilet trained she observed her “constantly” holding between her legs. On the basis of that observation and the child preferring to be taken to the toilet by her mother, she suspected at the time that the father may be interfering with the child. She says she discussed her suspicions with the maternal grandmother at the time. The mother makes no mention of this. One would have thought that if the child was “constantly” holding between her legs it would have been something observed by the mother and, being a health professional, that she may have investigated.
Whatever the mother’s sister saw or thought she saw I do not regard it to be of any significance to the later allegations made by the mother although it is consistent with a preparedness by the maternal family to think the worst. This preparedness is further demonstrated in the mother’s sister’s affidavit which shows her antipathy for the father goes back years i.e. well before any allegation that he had sexually abused D. Her affidavit was replete with irrelevant criticisms of him e.g. her first impression of him was that he was a long haired, scruffy man with piercings and a tattoo who took little time or care with his appearance or presentation; he was not the type of man she had imagined for her sister; the father was always happy to partake in whatever food and alcohol was being offered including helping himself to seconds and thirds; he did not show his children genuine affection. The mother’s sister was not going to be the voice of reason or scepticism when told of the mother’s allegations. She was ready to think the absolute worst.
Appointment with Dr H G.P. – 17 July 2013
On 13 July 2013 the mother made an appointment for D to see her local general medical practitioner, Dr H. Despite the mother being a heath professional and being advised by her sister to have the child checked the mother did not have the child seen by a doctor until 17 July 2013. Her explanation that she was only able to obtain an appointment with this particular doctor on 17 July 2013 seems an unconvincing reason to delay if she believed at that time, as she says she did, that her daughter had been digitally raped.
At that appointment the mother showed Dr H what I assume was her journal entry item 22 (set out above). Dr H’s statement to police dated 10 September 2013 says that D, in the care of her mother, presented as a patient at her clinic complaining of a sexual assault by the child’s father while he was bathing her on 8 July 2013. In her statement she refers to her notes of the consultation. Her statement says that she noted that D was in no distress and was cooperative but shy. She says that after hearing the mother’s concerns and obtaining a brief history from the child she contacted Child Safety and was advised that as more than 72 hours had elapsed since the alleged abuse the child should be referred to police. In Dr H’s clinical notes on the mother’s medical file, she records:
On 17/07/2013 presented with concerned (sic) about her daughter aged 3 with a convincing story of attempted digital penetration by the father on 8 July while he was bathing her
Discussed
See child’s file [D Merritt]
Dr H’s notes on the child’s file record:
child brought in by mother [Ms Merritt]
[Ms Merritt] concerned re attempted digital penetration of child by her father while he was bathing the child on July 8 [D] told her mother about it 2 days later
but [Ms Merritt] went to legal aid and didn't get clear advice about what to do
told to keep father way but she is in process of negotiating an access agreement- she is adamant she does not want to him to have any further access - she is even concerned he may snatch the children from school
[Ms Merritt] has a written record of what [D] told her
[Ms Merritt] remembers he spent a long time in bathroom with her after the son left the room
[D] told me that her father pinched her wizza and put his finger in there and it hurt
she had her pyjama top on but no pants
her wizza has stopped hurting now
I did not examine her or pursue the story with the child
mother's written notes indicate that [D] said she did not cry because she wanted to be brave so he would not hurt her more
he laughed but [D] told her mum she thought it rude
no f[req]uency or bleeding or discomfit
mot[her] thought vulva looked a bit red when she checked and there might be some odour
Dr H was not cross-examined in the trial before me but the transcript of her cross-examination during the first trial was tendered by consent. During her evidence she said that the mother saw her on 17 July 2013 because the mother told her that she had been to Legal Aid and had not been given any advice that she thought was useful and did not know what to do because she was really worried. The mother told the doctor that she wanted to bring D to see her although she knew that the doctor did not often see little children but she thought the doctor would take her seriously i.e. the mother.
The doctor recalled seeing the mother on her own without D and was told by the mother that during a conversation with her children about appropriate touching D just said out of the blue – daddy touched me there. The doctor seemed unsure whether she had actually read the mother’s notes but remembered that the mother said she had notes and that the mother actually read from her notes but the doctor said she then told the mother to just tell her the story. She said the mother was distressed at that point although earlier appeared calm. The doctor said the mother pointed out things in her notes and was “rather keen, you know, to show me things.”
Dr H said that she also saw D that day, after she saw the mother. She did not examine the child as she has no expertise in the area of sexual abuse having been involved in perhaps only two cases in her long career involving allegations of sexual abuse. Seeing children was also not a normal part of her practice which focused on women’s health. Dr H also said that the mother had examined the child herself and could see that she was okay two days after the alleged incident.
The mother makes no mention in her evidence in chief of having examined the child herself after 7 July 2013 although during cross-examination she said that on the evening of 8 July 2013 the child complained that her ‘wizza’ was sore and asked for some cream to be applied. The mother said the child’s vulva was a bit red and she applied a barrier cream as she had done on occasion some time before.
It is all the more curious that the mother did not take the child to a doctor on the day of or following when she says the child made a disclosure of sexual abuse but waited until 17 July 2013.
Returning to Dr H’s evidence, she said that the child sat on her mother’s lap and the doctor asked her – “Have you got something to tell me, [E]? (sic) Is there a problem you’ve come about today?” Dr H said the child was a bit coy and her eyes were down a little bit and she thought the mother said something like “It’s okay to tell [Dr H], you know, what – you know, it’s okay.” It seems apparent that the child had been informed about the purpose of the visit to the doctor i.e. to make a ‘disclosure’ implicating the father.
The transcript of the doctor’s evidence then indicates that the doctor referred to her notes and read out that D had told her that her father pinched her ‘wizza’ and he put his fingers in there, and that it hurt. Dr H said she took what was said seriously and had no reason to disbelieve it and felt it had to be acted upon. When asked to clarify whether the child said finger or fingers she was unsure but said if her note said finger it was probably correct.
The doctor concedes that she asked the child a “couple of little questions” to elicit the child’s statement about what she was wearing and that her ‘wizza’ had stopped hurting although the questions are not recorded in her notes. She thinks she would have asked the child “does it still hurt”. She also said she asked about what the child was wearing because the mother had told her that the child did not have any pants on.
When referred to her notes of the child saying the father had pinched her ‘wizza’ and put his finger in there and it hurt, the doctor denied asking any leading questions but said the child initially used the words “pinched my wizza” and that she i.e. the doctor, might have done a little bit of nodding and said “It’s okay. You can, you know, is there anything more to tell me?”.
Dr H was not clear about when she made her notes of the consultations but said she was aware of how important it was to make notes in such circumstances. She thought it inappropriate to take notes during a consultation.
After the mother left, Dr H contacted the J Hospital and called the mother about an hour and a half later to tell her to take the child to the hospital.
S 93A video recorded interview with D – 17 July 2013
On 17 July 2013 D was interviewed by two female police officers in a video recorded interview that commenced at 12.05pm and ended at 12.43pm. D was three years and eleven months old at the time of interview.
Prior to the interview the mother had informed police about the allegations. Among other things it seems the police were told that the incident happened on a Sunday after a bath; that the father had pinched the child’s ‘wizza’; that he had put his finger in the child’s ‘wizza’ when she had no pants on; that she had dried herself and that ‘wizza’ was a term used by the child for her private parts.
The video recording and an agreed transcript are in evidence.[14] The video recording was played in court during the trial and I have carefully reviewed both the recording and the transcript.
[14] Exhibit 2.
The recording commences with the child being informed that the police officers are there to help people who are in trouble. The child initially presents as a little shy but very quickly becomes smiley, giggly and comfortable. She becomes more light hearted and giggly as the interview progresses. On occasion she becomes quiet but not in relation to anything said of significance.
When asked what her last name is the child says it is “Purple fairy [D]”. Most of the time the child’s language is clear but on occasion it is not possible to understand what she says. She is an engaging and cheery child. She answers questions about her family and says her brother is six and later says he is ten and a half. She delights in telling stories about a pussy that vomited on the floor and then ate it and receives an encouraging reaction from the police officer. She also delights in telling stories about doing a wee in the bath and E (or someone) drinking her wee for dinner. She giggles about “bum police”, “bum hole”, “bum bob”, and “poo.” Mr B, the family report writer, reviewed the video recording and expressed some concern about the child being encouraged to say silly things.
Throughout the interview she holds a rather large doll and plays with it from time to time. On a number of occasions she pulls up the underpants on the doll into what would be the doll’s bottom crack, commonly referred to as a ‘wedgie’. She looks for a reaction. She also demonstrates on the doll when asked to by the police officer what the father did to her.
The child voluntarily mentions the father on a number of occasions during the interview and appears happy when talking about him and the mother playing with E on a trampoline. She says the father is twenty-two (he was in fact thirty-two at the time). She smiles when describing the father. She says he has curly hair and is taller than “every person girl” and “can touch the roof.” When asked if she has sleep overs at the father’s place she shakes her head and looks a bit sad. She then embarks on another story about vomit. She says when the father comes over to her place he “just makes a some mess”. She is asked what she does when the father comes over and she responds:
She thought, she thought she could tell the police
The child smiles when she says this.
Several times the child says she last saw the father on Saturday but seems a little unsure. I note that the interview occurred ten days after 7 July 2013 and that she had seen the father at the school on 11 July 2013 and at the park on 12 July 2013. The child says the father “doesn’t work properly, he just plays all day with us”. The police officer then states positively that the father came over on Sunday and the child nods her head. At this point the child pushes the doll’s bottom and laughs. Sunday is repeated many times by the police officer.
The child says several times that she had a shower when the father came over and adds that when they do not go to kindergarten and school they have a bath. When asked whether she had a shower or bath on the Sunday she says she forgot and makes a nonsensical response “chops”. When pressed by the police officer about whether she had a bath or a shower she says a shower and then refers to the father wiping their bottom when “we do a poo”. Having been repeatedly told by the child that she had a shower the police officer states:
Oh okay, so were you in the bath (and the child nods her head) you were in the bath, …
The child says that she dries herself and then there is this exchange:
Police officer: You can do that yourself? (child nods)
Child: And only mum can dry my whizzer and my bum
When asked whether on the Sunday she dried herself the child responds:
Yes and I had half
When asked to explain what she meant the child responds:
I had half, shirts, my jumper my other shirt and the other shirt
When asked what then happened the child says she cannot remember. She was asked if she put her pyjama bottoms on and she answers in the affirmative. She is then asked if she likes spending time with the father and she nods and says “yeah”. The child appears happy and has a small smile on her face.
The interview continues for some time until the other police officer intervenes and asks why she went to the doctor that day. The child said that she was playing dot to dot on the mother’s phone. She was asked if she was sick and she says she was not sick. She was asked what was wrong and again the child responds that she was playing dot to dot. A third question about the doctor is then asked and the following exchange occurs:
Police officer: So what did you have to go to the doctor for?
Child: Cause he pinched my whizzer (child smiles)
Police officer: Who pinched your whizzer?
Child: Dad
Police Officer: Daddy pinched your whizzer?
Child: His a naughty Dad, Mum thought he was going to jail
Police Officer: Is that right
Child: But he didn’t
Police Officer: So can you tell me about, what did Daddy do when he pinched your whizzer?
Child: He poked his finger in the hole where my wee comes out (there is a fleeting movement of the child’s hand that might be indicating between her legs but it is difficult to be sure)
Police Officer: When, do you know when this happened?
Child: A long time ago, on Sunday
The child then engages in a story about weeing in the bath and there is lots of laughter and reaction from the police officer. The transcript states the child says “And [E], and he swallowed the wee” but having listened to the recording many times it is not clear to me that she says “E” but she might have.
The father says that on the evening in question D did say she did a wee in the bath and there was much laughter and silliness as E pretended to suck wee from a toy duck that had been in the bath.
The child engages in much silliness and laughter telling the police officer that “he drinked it for dinner”. Again she brings up the pussy swallowing her own vomit story. The police officer then brings the child’s attention back to the allegations:
Police Officer: Is that right, when, when Daddy pinched your whizzer
Child: And she keeps on following us
Police Officer: Is that right
Child: And she does wees [unintelligible] in the garden and not farts
Police Officer: Really, so, I want to talk to about when Daddy pinched your whizzer, so what’s your whizzer? (child indicates between her legs) What do you do with your whizzer?
Child: Wee
The child again engages in chatter about ‘bums and poos and bum hole.’ She is laughing and says E calls it “bum bob”.
Up to this point there is no mention by the child of the father hurting her but this exchange then follows:
Police Officer: When Daddy pinched your whizzer, did it hurt?
Child: Yeah
Police Officer: It did
Child: And I didn’t cry
Police Officer: Why didn’t you cry?
Child: Cause I was so brave
Police Officer: You were very brave, and did Daddy say anything to you when he pinched your whizzer?
Child: He just, said, (the child puts her finger to her lips and indicates ssshhh) and he didn’t let me, and he keeped on hurting into me and didn’t let me tell mum
Police Officer: He didn’t, why, why didn’t he, so
Child: Well his funny hair
Police Officer: So let’s pretend [your doll] is you, right, can you show on [your doll] what Daddy did to you when he pinched your whizzer (child pushes four fingers that are spread apart in between [your doll’s] legs)
Child: Mm
Police Officer: So he put his finger in the hole, that’s what you said before
When asked to pretend that she was the doll and demonstrate what the father did the child appeared enthusiastic and smiles and looks towards the police officer when she does so. The demonstration made by the child was certainly not one finger. The police officer nevertheless commits the child to one finger and it being the index finger but the child then says other fingers as well.
The police officer again states that the father put his finger in but then the police officer demonstrates an action similar to (but not the same) as that done by the child using several fingers spread apart and asks the child if that is what the father did. The child responds:
He pressed it
The child performs another demonstration using both hands, one between the doll’s legs and one on the doll’s stomach and she pushes both hands towards each other and then looks up at the police officer.
The police officer then asks this three year old child if she actually felt the father put his finger in the hole and the child nods her head and says “yeah”.
The child is then asked what she said to the father and the child says “Don’t please do that”. The child smiles and reaches for another doll (a teddy bear) and squeezes its fluffy tail and says “bum, bum bum”. The child is asked how many times he did it and she says “[E’s] age”. The police officer then says “six times”. The child giggles. The police officer repeats the “six times” and asks what the father did and the child says “He waved my bum in his face”.
Shortly after this the child says she is going to her mother now. She is not permitted to leave. The questioning continues and when asked what she told the mother in the morning the child says:
And she, and she, and she think Daddy could go to the bum police (child giggles)
The questions continue and the child again says she wants to go to her mother. The child is not permitted to leave for another six minutes.
There are many problems with the interview which cause me to conclude that it is a most unreliable source of evidence from which to draw any inferences of sexual abuse. I come to this conclusion for many reasons including:
a)The child is very young and many things she said were just wrong. For example:
i)when asked when she last saw the father prior to Wednesday 17 July (the day of the interview) she said Saturday. It is common ground that the child had last seen the father at the park on Friday 12 July 2013;
ii)she said her brother was six (correct) but then ten and a half;
iii)she said her father was twenty-two when he was thirty-two;
iv)she said her father was so tall he could touch the roof.
b)She was very open to suggestion. For example:
i)Despite repeatedly saying she last saw the father on a Saturday she agreed that it was a Sunday when that was repeated by the police officer (in fact it was Friday 12 July 2013);
ii)Despite repeatedly saying she had a shower she agreed that she had a bath when that was repeated by the police officer;
iii)Despite demonstrating with several fingers that the father pressed between her legs she agreed that it was a finger, her pointer finger.
c)The child was asked numerous leading questions. For example:
i)When daddy pinched your whizzer, did it hurt?
ii)Did daddy say anything to you when he pinched your whizzer?
iii)Did you actually feel him put his fingers in the hole?
d)The child was repeatedly encouraged to say silly things by the reactions of the police officer and her comments about the father pinching her ‘whizzer’ or putting a finger in her ‘whizzer’ may have fallen into that category;
e)The child clearly had a fascination for ‘bums, poos and wees’ and the reactions she obtained from the police officers;
f)The police officers had a ‘brief’ i.e. the version alleged by the mother and they demonstrated a determination to get the ‘right’ answers. Police Officer L admitted as much during her cross-examination at the first trial when she said:
… And the story didn’t seem schooled because if you read the 93A, we’ve gone around – we’ve started talking and then she still wouldn’t give me answers. So we’ve had to go a different way to try and get – get the information.
g)There were numerous reinforcing statements and questions. For example:
i)So on the Sunday when daddy was there;
ii)On the Sunday when daddy gave you the bath;
iii)When daddy pinched your whizzer.
h)Some features of the interview (although not on their own conclusive) support a finding that the child has not been sexually abused by the father including:
i)The child is happy to talk about the father and says that she likes to spend time with him;
ii)The child has clearly been exposed to conversation about the allegations because she refers to the mother thinking the father was going to go to gaol (the mother admits that she had a conversation with the maternal grandmother on the way to the police station when gaol was mentioned. I do not accept the mother’s evidence that no mention was made of the reason the father might go to gaol);
iii)The child’s demeanour is cheery and playful throughout;
iv)The demonstration she gives of the father pressing his fingers between her legs could be consistent with the father drying her.
Mr B, the family report writer, had concerns about the s 93A interview which I discuss further below.
Medical examination of D – 17 July 2013
After the police interview D was taken by the mother to the J Hospital where she was examined by a specialist paediatrician, Dr Y. Prior to the examination Dr Y was informed by police that the child had disclosed that the father was giving her a bath and he had “put his finger in the hole the wee comes out” and that the father put his finger in her about six times and that the incident was alleged to have occurred on 7 July 2013.
Dr Y provided a statement to police on 11 September 2013. In her statement she says among other things:
6. [Ms Merritt] [the mother] reported that when [D] told her about the alleged incident, she had said that her “whizzer” (genital region) hurt at the time. [Ms Merritt] also reported that [D] then stated her father had pinched her whizzer once before and it had hurt, but that she also thought that it was funny.
7. [Ms Merritt] stated that she was concerned that [D’s] genitals “looked red” at the time of her report, and this has also been noted on previous occasions.
…
10. The allegations were not discussed with [D] and she made no direct verbal reports.
…
12. The genitals were examined with a colposcope (a light source with magnifying capabilities) in the supine frog-leg position. [D] was prepubertal. Genital exam revealed normal crescentic hymen, with no visible injury. There were no injuries visible on examination of her anus.
…
16. The ano-genital examination was normal with no evidence of acute injury (such as bleeding), healed injury (such as hymenal transection) or vaginal discharge.
17. The hymen is a very sensitive tissue in pre-pubertal girls. Direct contact with it, such as with a finger, is likely to be painful even without causing significant trauma to it (such as a hymenal transection). However, this type of significant injury would usually be accompanied by some bleeding. After significant trauma, the genital region can heal fully within a week and often without scarring.
18. As this examination occurred ten days after the alleged assault, it is very likely that even if there had been any acute injury to the hymen, it would have had time to heal.
19. Therefore, the normal ano-genital exam findings can neither confirm nor refute the allegations of digital-vaginal penetration occurring on 7th July 2013.
The utility of the identification and assessment of an ‘unacceptable risk’ was confirmed by the High Court in Fardon v Attorney General (Qld)[18] where the then Chief Justice said:
It was argued that the test, posed by s 13(2) …[of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)] of “an unacceptable risk that the prisoner will commit a serious sexual offence” is devoid of practical content. On the contrary, the standard of ‘unacceptable risk’ was referred to by this court in M & M in the context of the magnitude of a risk that will justify a court in denying a parent access to a child. The Court warned against “striving for a greater degree of definition than the subject is capable of yielding”. The phrase is used in the Bail Act 1980 (Qld), which provides that courts may deny bail where there is an unacceptable risk that an offender will fail to appear (s 16). It is not devoid of content, and its use does not warrant a conclusion that the decision-making process is a meaningless charade.
(citations omitted)
[18] (2004) 223 CLR 575, [22].
In considering the assessment of the magnitude of the risk Fogarty J observed in N and S and the Separate Representative:[19]
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 a particular case fall, and to explain adequately their findings in this regard.
[19] (1996) FLC 92-655, 713-714.
The allegations of sexual abuse are made by the mother although based on what the child has said. It is the mother and others who have interpreted what the child’s words and actions mean. Given that the father was charged with rape and the child has made statements to the mother and others that might indicate sexual abuse I have considered the evidence from the perspective of assessing risk.
The evidence relating to the allegations is adequately set out above and I do not propose to repeat it.
In assessing the magnitude of the risk of sexual abuse the findings already made above are relevant although for a different ultimate purpose and I do not propose to repeat them.
The findings that I consider to be particularly significant to my conclusion that there is no unacceptable risk of the children being sexually abused by the father if they were to spend unsupervised time with him are:
a)The only spontaneous thing said by the child was “Daddy did” when told that no one was to touch or look at her private parts other than the mother or a doctor in the mother’s presence;
b)The mother’s negative views of the father created a climate that was ripe for her to misinterpret statements made by D;
c)The unreliability of the evidence as to what D has said, relying as it does on leading questions (and I do not accept the mother’s evidence that she did not ask leading questions);
a)The father had an excellent relationship with the children up to the 7 July 2013;
b)The father had occasion to touch the children’s private parts for entirely appropriate reasons e.g. assisting with toileting/drying after a bath or shower/applying topical cream;
c)The father has no criminal history;
d)There is no evidence the father has ever before or since been accused of sexually abusing a child despite his step-daughters living with him since 2013;
e)His step-daughters speak of him in loving terms and have twice been interviewed by Mr B, the family report writer;
f)D was exposed to the conflict between her parents as was E and was therefore aware of the mother’s antipathy towards the father;
g)The mother’s negative views of the father were shared by her mother and sister;
h)The children’s statements of the father have become more negative despite not having seen him for a very long time;
i)There are explanations other than sexual abuse to account for the child saying her ‘wizza’ appearing red according to Dr Y;
j)There are explanations other than sexual abuse to account for D experiencing nightmares e.g. being exposed to the mother’s anxiety about the children being stolen; feeling abandoned by the father; hearing conversations about being abused by the father;
k)Mr B’s assessment of the father as low risk.
If D believes she has been sexually abused by the father, is there an unacceptable risk to the children suffering psychological harm if they spend time with the father?
It is of course difficult to determine whether D believes that she was sexually abused by the father. She was a very young child when the alleged abuse occurred and in that time she has been exposed to significant negativity about the father and received counselling on the premise that she is a victim. Her counsellor, Ms O, is a person who appears to have limited if any expertise as noted above.
The family report writer, Mr B, considered the child’s beliefs when he met with her in 2014 and recently in November 2018. The relevant parts of his reports are as follows:
Family report: 12 October 2014
12.14 She said that she never sees her Dad "'Cos he's bad ... he's really really bad".
12.15 When asked if she could say more about her father being bad, she said, "'Cos he actually hurt me".
…
14.12 From [D's] comments at the 93a interview, and from her comments at the Family Report interviews, it is evident that she has developed a belief that her father is "bad". Her comments within the 93a interview suggest that she was told that her father could/should/might go to jail (my words). She believes that her father touched her inappropriately.
…
14.34 Given [D's] beliefs about her father, that is, that he is a "very very bad man", any re-introduction of [D] to her father should be preceded by counselling. That counselling would necessarily involve a challenge to her current belief system. That is, she would need to be convinced that her father is safe to be around, even in a supervised setting, and she would need to have some faith that he is not a "very very bad man". Again, this is something that would need to occur through a therapeutic counselling process.
Family report: 26 November 2018
8.6[D] was asked to talk about what she knew about her father. She responded by saying that "he was inappropriate". When asked whether she knew what he did that was inappropriate, she responded, "yeah" but said that it was when she was only three or four.
8.7On enquiry, she said that it was hard to talk about. When asked specifically what she remembered, she said, "he sort of was a bit rude sometimes". When asked whether she remembered anything else, she responded, "no".
8.8 On enquiry as to what happened after that, she said that she thought that her dad started arguing with her mum. When asked her feelings about it, she said that she doesn't really feel sad, "because he was doing things wrong".
…
8.11 …As to whether she had any bad memories of her father, she said, "yeah when he was inappropriate", but she said that she had no memory of it. She could not recall what her father did for work.
8.12 When asked specifically if it would be okay to meet him, she responded, "probably not. .. cause he's done the wrong thing and you don't really just forgive someone".
…
8.30 [D] was reminded that she had said that her father had been inappropriate and was again asked if she remembered what he had done. She said quite clearly that she could not remember. When asked specifically if she could not remember or she just simply did not want to talk about it, and when told that it would be okay if she did not want to talk about it, she again said quite definitively that she could not remember and that she was too young.
…
10.7 The Court might be concerned as to the beliefs that [D] now holds about her father. It will be noted from the previous Family Report that she held an extremely negative view of her father, regarding him as a very bad man. Over time, [D's] beliefs about her father appear to have been condensed to the notion that she does not see him because he was inappropriate in his behaviour. Attempts at interview to determine whether she had specific memories of the allegations that she raised previously did not reveal any concrete memories. [D] was interviewed twice. The writer considered it important to see her on a second occasion to see if her anxieties had been raised by the first interview. They did not appear to have been. While [D] expressed that it would probably not be a good idea to meet her father, "cause he's done the wrong thing and you don't really forgive someone", she quantified her uncertainty around the issue as being "a little bit". Her further comments suggested that she was not particularly worried by discussing the possibility. The writer concluded that if the Court were to determine that [D] should be reintroduced to her father, any initial anxiety that she might experience in having to do so would be unlikely to be debilitating. Expert counselling would probably assist her to cope with a reintroduction.
E has not been told about the sexual abuse allegations according to the mother but he nevertheless seems to only hold negative views of the father. I find that the children have continued to be exposed to the mother’s negative views of the father which have been to some extent reinforced by the process of counselling.
I have come to the conclusion that even if D believes she has been abused by the father I do not consider that there is an unacceptable risk of harm to D or E if they spend time with him. Many of the reasons already discussed are relevant to the conclusion I have reached on this issue including that the children previously had a good relationship with the father. Many years have passed since then of course but I accept Mr B’s opinion that any initial anxiety can be managed with assistance from an appropriately qualified therapist.
Has the mother influenced D, either wittingly or unwittingly, to make statements that have been construed by others as suggesting the father has handled the child in a sexually inappropriate manner?
It is not necessary to find that the mother intentionally influenced D to make the statements she has or to find that the mother was motivated by malice. While it is possible, I find that it more likely that the mother misinterpreted what was initially an innocent statement by D i.e. “Daddy did” in the context of the mother’s statement to the children that no one other than she was to look at or touch their private parts even a doctor unless she is present.
I find it more likely than not that the mother asked leading questions which elicited the responses set out in her material. I do not accept her denials to the contrary. The child was clearly open to suggestion as evidenced by the s 93A interview.
The child was exposed to her mother’s distress and conversations with the mother’s sister, maternal grandmother and more probably than not at least part of the conversations with Dr H, V Group and Department of Child Safety. The child then underwent counselling on the premise that she was a victim of sexual abuse.
Are the father or his parents likely to inform the children that the allegations made against the father are false and, if so, would that create an unacceptable risk of psychological harm to the children?
While it is understandable for the father and his parents to, as they see it ‘set the record straight’, I accept the father’s evidence that he has moved on from what was a more strident attitude at the time of the first trial. I accept his evidence that he is now focused on renewing his relationship with the children.
While the paternal grandmother’s letters to the mother and attempts to see her grandchildren were ill advised I find that she too accepts that involving the children in the conflict by discussing the allegations or making negative comments about the mother may well ruin the opportunity of them being reunited with the children.
I understand the paternal grandmother’s attempts to see E at school and at his school camp but her actions demonstrated poor judgment in seeking to involve the school. No doubt her desperation to see her grandchild interfered with her ability to consider the consequences of her actions. Likewise it was unwise to turn up unannounced at the mother’s home. That said, the mother’s response to run to the door and shut it in the paternal grandmother’s face was extreme and in my view unwarranted. All the more so when the children were present.
Overall the paternal family have been restrained in the past five years with a few exceptions. I am confident that they and the father realise the importance of drawing a line under the past five years so that the children can have a relationship with both parents and extended families. That will not be possible if they harbour ill will towards the mother. The children deserve and indeed have a right to have a meaningful relationship with both parents and their ability to do that will be placed in jeopardy if they are exposed to conflict.
If there is an unacceptable risk of harm to the children for whatever reason can that risk can be ameliorated by supervision of the children’s time with the father?
I have found that there is no unacceptable risk for the children if they were to spend unsupervised time with the father.
If I am wrong in my determination that the father does not pose an unacceptable risk of harm I do not consider that supervised time would ameliorate the risk in circumstances where it has now been five years since the children spent time with him and I would not see any point in recommencing a relationship with the children in such circumstances.
Can the children’s relationship with the father be restored and, if so, can a final parenting order be made?
The mother and the ICL submit that as it is not possible to predict how the children will react to spending time with the father and that I should make an interim order only and have the children reassessed by Mr B and a further family report prepared. That would necessarily involve further proceedings, unless the parties were able to reach agreement and that seems unlikely.
Mr B opined:
10.19 … With respect to the progression of a parenting structure, following an appropriate period of supervised time, it would likely be of benefit to prepare an addendum report following consultations with supervisors and counsellors to form a view about parenting arrangements thereafter. It may also be necessary to reinterview the children before any further recommendations can be made in that regard.
This opinion was expressed in the context of the father’s then proposal for a rather rapid move to a week about arrangement after an initial reintroduction. Sensibly, by the end of the trial the father’s position had dramatically changed in that he now seeks an order to spend alternate weekend time with the children after a period of reintroduction and supervised time with a therapist. There was some suggestion by the parties that the decision about progression of time could be left up to the therapist. That is not an option as it impermissibly abdicates the court’s responsibility to make a decision to another person.[20]
[20]Re David (1997) FLC 92-776, 576.
Parenting decisions necessarily involve the court “assess[ing] and evaluat[ing] the likelihood or possibility of events or occurrences”[21] and the proposed therapist, Ms R, is a person with considerable experience in difficult parenting matters and was endorsed by Mr B as an appropriate professional to undertake the task of reestablishing the children’s relationship with the father if I assessed there to be no unacceptable risk of harm to the children.
[21]M & M (1988) 166 CLR 69, 77.
I have given very careful consideration to the fact that it has been five years since the children spent any time with the father and that it seems they currently have a negative opinion him. It will take time for a therapist to prepare the children and assist them to view the father as a person with whom they should have a relationship.
The children are doing well at school and they have a close and loving relationship with the mother and no doubt her family. The reintroduction of the father into the children’s lives will no doubt be stressful for them and no one can be sure of the outcome. However, they have a right to have a relationship with the father with whom they once had a wonderful relationship and the benefits which follow from having two loving parents in their lives has to be balanced against any detriment such as stress or anxiety that may accompany the father coming back into their lives.
E is eleven and will be starting high school next year. It is inconceivable that he would not have some unresolved issues about why his father suddenly disappeared from his life. He has not been told of the allegations of sexual abuse but he has been exposed to the mother’s views that the father is bad. I consider it more likely than not that he will become inquisitive about his father sooner rather than later. In this day and age of social media it is entirely predictable that he will seek out his father at some point and in my view his reintroduction to the father should occur in a structured and therapeutic environment.
D is nine and I cannot of course be certain what she believes about her father. She told Mr B recently that the father had been inappropriate with her in a rude way when she was three or four but denied that she had any specific memory. In Mr B’s opinion, which I accept, “any initial anxiety that she might experience in having to do so [be reintroduced to the father] would be unlikely to be debilitating” and “expert counselling would probably assist her to cope with a reintroduction.”
On balance I consider the children’s best interests are served by having a meaningful relationship with the father but it is likely to take time, not only for the children but also for the mother to absorb my findings. The mother would be well advised to seek professional assistance to enhance the prospects of her being able to successfully facilitate the order I propose to make. That is why the order I propose to make will move things along gradually. My intention is to make an order that has best chance of working in the long term. In those circumstances I do not consider it necessary to make an interim order.
Should the children be treated differently in terms of any order made permitting or not permitting them to spend time with the father?
The children have a close relationship and given their ages I can see no benefit for the children being treated differently whether or not there were an unacceptable risk of harm to them.
other matters
The parents have agreed that the mother is to have sole parental responsibility for major long term decisions and in the event of an impasse I consider that to be an appropriate order. The mother will nevertheless be required to inform the father of any proposed decision and take his views into account before making a decision. I have placed one restriction upon the mother, namely, she will be restrained from changing the children’s living arrangements if that would make the children spending time with the father significantly more difficult.
While the father sought an order permitting each party to take the children overseas, the mother opposed such an order. In the absence of any evidence about the issue I have declined to so order.
The mother opposed changeover occurring at the parent’s residences but I am not persuaded that there will be a need for changeovers to occur at a contact centre in the future. Such an arrangement may be inconvenient for the children and more likely to perpetuate a belief that there is some reason to be fearful of the father. Most of the changeovers will occur at school so any potential for the children to be exposed to conflict will be minimal and I propose to include a restriction on each parent’s ability to enter the actual residence of that other parent.
conclusion
It is a tragedy for the children that they have been deprived of their relationship with the father for such a long time but it is the nature of these types of allegations that everyone involved wishes to be cautious because the consequences for getting it wrong are so dire. Sometimes it is not until all of the evidence can be thoroughly considered, tested and evaluated that the allegations can be understood in context.
Having undertaken that task I have come to the conclusion that the father does not pose an unacceptable risk of harm to the children and that the children should spend time with him after a careful and supervised period of reintroduction.
The child, D, made an innocent comment in response to a repeated statement by the mother than no one other than she can touch or look at the children’s private parts. The mother’s antipathy towards the father created the circumstance where she was prepared to think the worst. The mother’s questioning of the child and exposure of the child to her conclusions about sexual abuse resulted in the child making the comments heard by others that were suggestive of some inappropriate touching.
It is not necessary for me to find, and I do not, that this was a deliberate act on the part of the mother.
Despite the dreadful dispute in which these parties have been embroiled for many years, I trust that they will each accept my findings after having reflected upon my careful consideration and evaluation of the evidence. These children have an opportunity for a normal life surrounded by two loving parents and extended families. It is up to the parents to make sure that the order I propose to make works for their children.
I certify that the preceding two-hundred and twenty-five (225) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 19 December 2018.
Associate:
Date: 19 December 2018
Key Legal Topics
Areas of Law
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Civil Procedure
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Negligence & Tort
Legal Concepts
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Appeal
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Causation
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Damages
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Duty of Care
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Negligence
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Reliance
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