MORCOMBE & PRESTON

FAMILY COURT OF AUSTRALIA

MORCOMBE & PRESTON

[2010] FamCA 165

FAMILY LAW – CHILD ABUSE – where the mother alleges the father has physically and sexually abused the children – where the father denies all allegations of abuse – not established on the balance of probabilities that the children are at risk of physical or sexual abuse in the care of the father – where the evidence suggests the statements made by the children are due to the inappropriate influence of the mother

FAMILY LAW – CHILDREN – with whom a child lives – best interests – where the mother has been the children’s primary caregiver – where the mother opposes the children spending any time with the father – where the mother’s allegations of abuse against the father are not established – where the expert reports raise issues about the risk of the children being neglected and suffering psychological harm in the care of the mother – where there are concerns over the mother’s capacity to care for the children and her mental health – where a warm relationship has been observed between the children, the father and his mother – where the father has the support of his mother – children to live with the father

FAMILY LAW – CHILDREN – parental responsibility – whether the presumption of equal shared parental responsibility in s 61DA rebutted – where there has been a total breakdown in the relationship between the parties – where it is not in the best interests of the children for the parties to have equal shared parental responsibility – presumption rebutted – father to have sole parental responsibility

FAMILY LAW – CHILDREN – with whom a child spends time – time the children are to spend with the mother – where there would be an unacceptable risk to the emotional and psychological welfare of the children if they were to come under the influence of or spend time with the mother at this time – not in the best interests of the children for them to spend time with the mother until satisfied the mother’s attitude and health have improved – no order made for the mother to spend time with the children

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61DA, 65DAA & 69ZT
Evidence Act 1995 (Cth) s 140

In the marriage ofM and M (1988) FLC 91-979
In the marriage of B and B [Suspension of access] (1988) FLC 91-978
Johnson and Page (2007) FLC 93-344
N and S (1996) FLC 92-655

APPLICANT:

Mr Morcombe

RESPONDENT:

Ms Preston

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

FILE NUMBER:

ADC

5110

2007

DATE DELIVERED:

5 March 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

25-27 November 2009; 30 November 2009;
1-4 December 2009 &
21-24 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Horvat

SOLICITOR FOR THE APPLICANT:

Christopher Ganzis & Co

COUNSEL FOR THE RESPONDENT:

Mr Childs

SOLICITOR FOR THE RESPONDENT:

Voumard Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

All previous parenting orders in relation to the children C born … September 1999 and A born on … January 2001 are discharged.
The father do have sole parental responsibility for the children C and A.
The children C and A live with the father.
The children forthwith be delivered to the father from the Family Court of Australia facilities this day.
If the children are not in attendance at the Family Court of Australia this day the mother deliver the children to the father at the Child Care Section on Level 2 of the Family Court of Australia at 3 Angas Street, Adelaide at 2.00 pm the next business day.
Pursuant to section 65L of the Family Law Act 1975 (Cth) a Family Consultant explain the orders to the three children C, A and TE born on … May 1997 and assist in the two children C and A being delivered to the care of the father.
The father forthwith make an appointment with a General Medical Practitioner requesting that the Medical Practitioner prepare a Mental Health Care Plan for each of the children C and A to provide them with a referral to a child psychologist in order that the children may obtain therapy for their psychological and emotional difficulties.
Upon obtaining such a referral the father shall ensure that both children attend all scheduled appointments with the child psychologist.
If such referral does not become available to the father, the father shall take such steps to obtain psychological and therapeutic assistance for the children through CAMHS.
The mother is restrained and an injunction is granted restraining the mother from contacting the children or being in the presence of the children for a period of three months from today SAVE AND EXCEPT that at the discretion of the Family Consultant the mother is at liberty to say farewell to the children in the presence of a Family Consultant at the premises of the Family Court of Australia this day.
The mother is restrained and an injunction is granted restraining the mother from attending at the children’s place of residence, school or sporting or social functions, or have any contact with, or communicate with or spending time with the children SAVE AND EXCEPT as agreed in writing by the father and as recommended by any therapist treating each of the children.
The mother shall forthwith make arrangements for the children’s clothes, toys, books, games, computer equipment and other personal belongings to be delivered by an agent to the home of the father at N such delivery to be within the next seven days.
The father do forthwith inform the mother of:
(a)any medical emergency involving either of the children;
(b)any hospitalisation of either of the children;
(c)the names and contact details of any medical practitioners and health professionals treating either of the children;
(d)the name of the children’s school.
The mother is at liberty to obtain information from the children’s medical practitioners and health professionals regarding the children.
The mother is at liberty to obtain information from the children’s schools (including children’s school reports, newsletters, notifications and school photographs) upon written request by her to the school.
The appointment of the Independent Children’s Lawyer be discharged six months from this day.
The parties and the Independent Children’s Lawyer are permitted to release copies of this judgment to Officers of the South Australian Police Department, Families SA, CAMHS, Child Protection Services, the Education Department, Principal of any school which the children attend, any General Practitioner providing advice or treatment for the father, mother or children and any other medical expert providing advice or treatment for the father, mother or children PROVIDED THAT the recipients of the judgment do not further publish or provide copies of these reasons to any other persons without the written authority of both the father and the mother and the Independent Children’s Lawyer whilst the Independent Children’s Lawyer is appointed.
Remove all matters from the active pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5110 of 2007

MR MORCOMBE

Applicant
And

MS PRESTON

Respondent
REASONS FOR JUDGMENT

Introduction

The proceedings before the Court relate to the children C born in September 1999 (aged 10 years) and A born in January 2001 (aged 9 years). The mother alleges that the father has sexually and physically abused both children. She also alleges he has abused her daughter T. The father denies the allegations.
When the proceedings were transferred to the Family Court of Australia they were placed in the Court’s Magellan List.

Hearing

The matter was first listed before me for the hearing which is described as the first day of the trial on 18 August 2009. No formal evidence was taken by the Court on this occasion. The Court clarified the witnesses who were to be called and the issues with which they would deal.
The conclusion of the trial commenced on 25 November 2009 and continued for 8 days. The trial resumed part-heard on the 21 December 2009 and concluded on 24 December 2009. The conclusion of the trial occupied 12 days.
At trial the applicant father was represented by Ms Horvat of counsel, the respondent mother by Mr Childs of counsel and the Independent Children’s Lawyer by Ms Cocks of counsel.
The father gave evidence and relied upon the evidence of his mother, the paternal grandmother. The mother gave evidence. She relied upon the evidence of her current partner, Mr M. The mother called the psychiatrist Dr B, who had prepared reports concerning her mental health.
The mother made detailed allegations of abuse of the children by the father in her oral evidence that had not appeared in the affidavits of evidence in chief relied upon by the mother. The Court therefore gave permission for the father to be recalled. He gave further evidence and was again cross-examined by counsel for the mother and Independent Children’s Lawyer.
The Independent Children’s Lawyer relied upon the reports of Dr W from the Child Protection Service (“CPS”) who had physically examined the children’s sister, TE and the report from Ms O of the CPS following her assessment conducted in relation to the children C and A. These reports were received in evidence without the necessity to call the authors for cross-examination. Similarly, the Relationships Australia report as to the observations of supervised contact between the children and the father at the Children’s Contact Service was received as evidence without the necessity to call the witness.
The Independent Children’s Lawyer relied upon the oral evidence of Mr AN, who was a teacher at the L Primary School where the children currently attend and who was formerly the Principal of the I Primary School which the children attended briefly before returning to L.
The Court received the report and the evidence of Ms CB, Family Consultant.
During the trial, on the oral application of counsel for the mother, the Court gave permission for the mother to call Ms ER, a friend of the mother. The witness was permitted to give her evidence by video-link from Western Australia.
Following final addresses from counsel, judgment was reserved on 24 December 2009.

Main Issues

The father maintains that the mother has undermined the relationship he had with the children by making false unsubstantiated claims about abuse of the children. He maintains that the mother is delusional and paranoid and as such is an unsuitable carer for the children. He denies any allegations of abuse.
The mother maintains that the children should live with her and should not spend any time with the father. The mother maintains that the children have accurately informed her about serious physical and sexual abuse by the father and his associates during a period from approximately 2004 until 2008. The mother maintains that the father is violent, addicted to drugs, a member of an illegal bikie gang and a police informer. She maintains that the father’s mother is also violent and a liar.
The mother emphasised her role as primary carer for the children and the difficulties they would face if removed from her care.
The mother maintained that the children have always lived in the L area and would not adjust to a move to the metropolitan area of Adelaide.
The father maintained that the children would benefit from the facilities available in Adelaide.

Relevant background and chronology

The mother was born in 1968 and is now aged 41. The father was born in 1969 and is now aged 40.
Some time ago the mother commenced a relationship with Mr LE. She had four children by Mr LE; KE who was born in July 1987 and is now aged 22, JE who was born in March 1990 and is now aged 19, DE who was born in October 1993 and is now aged 16 and TE who was born in May 1997 and is now aged 12.
The mother separated from Mr LE in 1997.
The parties to these proceedings commenced cohabitation in around November 1998 and were married in September 2000.
When the family spent time with the father’s father in 1999, KE told her mother and the father that the paternal grandfather had sexually assaulted her. The mother and father challenged the paternal grandfather. They immediately left taking the children with them. The father and family have had no contact with the paternal grandfather since that time. The paternal grandfather was subsequently convicted of sexual assault upon another child (not in this family). The mother said in evidence that KE was now “laying charges” against the paternal grandfather.
For some period of time all of the mother’s children continued to reside with her and the father in these proceedings. KE and JE now live independently in the metropolitan region of Adelaide.
DE and TE have continued to reside with the mother.
The children the subject of these proceedings are C who was born in September 1999 (now aged 10) and A who was born in January 2001 (now aged 9). C has been diagnosed with an intellectual disability. He was awaiting assessment in relation to possible autism. He requires special assistance at school.
The mother was born in L and has lived in L or the area around L most of her life. The mother has from time to time worked at hotels. The father has in the past worked as a labourer. The father was diagnosed with depression in August 2000. The father returned to work in approximately 2002 and was retrenched in 2003. He has recently undertaken a course in Transport and Logistics.
The mother admits taking an overdose of Valium in about March 2004. The father took her to hospital for emergency treatment.
The mother asserts that the parties separated in October 2006. However, the father says that up until January 2007 they spent the majority of time together and therefore did not separate until that time.
Since January 2007 the father has been residing with his sister and brother-in-law and their children in N in the metropolitan area of Adelaide.
The mother has continued to live in either L or I in regional South Australia. The mother says that she has “re-partnered” and her current partner is Mr M. They have known each other for many years. The mother says that they commenced a relationship in about 2006. The mother and Mr M do not currently live together full-time. Their evidence was that they spend approximately two to three nights a week sleeping together at the mother’s home.
There was some confusion as to the actual date of events and the date that matters may have been reported to the police or the welfare department.
The mother says that in about 2004 she began to “strongly suspect” that the father was sexually abusing the children and drugging them.
The events of the weekend in May 2004 when the children, DE, TE, C and A appeared to the wife to be drugged and when the mother said that she observed the father in bed with C and A were significant allegations.
On this weekend, friends of the father and mother, Mr H and Ms WS had been invited to stay at their home. KE and JE were not present, but the other children were. The mother said that she was concerned about the children. Initially, she suspected that Mr H was “interfering with the kids”. Subsequently, the mother has come to believe that the father, Mr H and Ms WS sexually interfered with the children on that weekend.
Notifications of abuse were made to the CPS in May 2004. The police interviewed TE.
The mother says that in about 2005 A said she had a “sore fanny”. When asked why, A was reported to have told her mother “Daddy bangs it”. (Mother’s affidavit filed in the Federal Magistrates Court and now Annexure “A” to her affidavit filed on 17 December 2008).
Some time in late 2004 or 2005 (probably in July 2005) the father’s mother, the paternal grandmother, was visiting the parties. An argument occurred. The mother alleges that she was seriously assaulted by both the father and the paternal grandmother. The evidence of the mother differs greatly from that of the father and his mother about this incident.
The mother further alleges that in about March 2006 her daughter TE made allegations that “daddy weed on the little ones (referring to my youngest two children [C] and [A])”. (Mother’s affidavit filed in Federal Magistrates Court and now Annexure “A” to her affidavit filed on 17 December 2008).
The mother alleges that she contacted Families SA and explained her concerns about the children being sexually abused by the father. Paragraph 47 of Annexure “A” to her affidavit filed on 17 December 2008 provides:
“I was unable to leave straight away and the said officers then assisted me in finding alternative accommodation. I was put a [sic] priority list for emergency house with Housing Trust”
The mother says that she left the home on 13 October 2006 taking up other accommodation. The father says that although the mother moved out in October 2006, they maintained a relationship. The mother admitted in oral evidence that the father visited her from time to time between October 2006 and January 2007 and stayed overnight. The circumstances in which this occurred are in dispute.
The father says that the parties did not separate until January 2007, when the father moved to Adelaide.
In late February or early March 2007 the mother took the children JE, DE, TE, C and A to N where she and the children stayed with the father at his accommodation in his sister’s home for at least the weekend. There is dispute about the length of this visit; the mother saying that it was for the weekend only; the father saying it was for approximately a week.
In April 2007 the mother attended the L Police Station with a note written by the child TE concerning alleged sexual abuse by the father.
Statements were made by TE, A and C to various people during the first half of 2007.
TE underwent a forensic medical examination at the CPS in July 2007. TE referred to “being sexually assaulted in 2003”. The CPS report of the forensic medical examination by Dr W is dated 3 January 2008 and was received by the Court by consent without the necessity of the author being called.
The forensic medical opinion was that there was no evidence of healed genital injury as a result of the alleged sexual assault several years ago. In reference to the pseudoephedrine which had been found in the urine toxicology report, Dr W stated, “pseudoephedrine can be a contaminate in amphetamines or found in common cold medication”. She recommended that concerns about TE’s vision should be verified with the school and TE should be taken to see her local doctor and an optometrist. Testing for lactose intolerance was also recommended as was a referral to CAMHS for follow-up of her therapeutic requirements.
In May, June, July and September 2007 interviews were carried out by the CPS. The report of Ms O, the Senior Clinical Psychologist of the CPS, dated 8 January 2008 dealing with allegations concerning abuse of C and A, was also received by the Court by consent without the necessity to call the author for cross-examination.
That report refers to the 12 child protection notifications made since 2004. The notifications do not identify the authors of each notification.
The CPS interviews included forensic interviews with A and C.
On 16 and 17 September 2007 the mother was in hospital in Adelaide having treatment on her hand. The mother alleges that the children were at the time in the care of their elder sibling DE who was then aged 13 (14 in October 2007).
The mother asserts that on her return from hospital the next day the children told her that the father had been to the house that weekend with his friend V, that the father had taken A out of the bath and that the father and his friend V had taken the children TE and A to V’s shed. The mother alleges that the children TE and A told her that A was assaulted. TE reported to the mother that she had seen the father licking A’s fanny and that she heard A scream. A had reported that “Daddy was sticking a stick up her fanny” (Mother’s affidavit sworn on 25 September 2007 paragraphs 62 to 67 inclusive)

As a result of the fresh allegations on the 27 September 2007 A attended a second forensic interview at CPS.
On 27 September 2007 the mother commenced proceedings by filing an application in the Federal Magistrates Court seeking orders that DE, TE, C and A live with her.
On 28 September 2007 the father was charged with indecent assault and unlawful sexual intercourse in relation to the three children, TE, A and C. He was granted bail with conditions that he not have any contact with the mother or the children.
In October 2007 interim orders were made by consent that during the period of the adjournment the children live with the mother. Without any admission for the necessity for the same the father consented to injunctions restraining him from having contact with the children or the mother. The children’s names were placed on the Airport Watch List and an Independent Children’s Lawyer was appointed.
In November 2007 Federal Magistrate Mead continued these orders.
The CPS report of Dr W (paediatrician) and the CPS report of Ms O (psychologist) were completed in January 2008.
On 29 January 2008 the father did not attend the hearing before the Federal Magistrate. He had not filed answering documents. Orders were made by the Federal Magistrate providing for the children to live with the mother, restraining the father from having contact with the children or the mother and placing the children’s names on the Airport Watch List. The appointment of the Independent Children’s Lawyer was discharged. Those proceedings were concluded.
On 2 March 2008 the mother and her partner, Mr M, left the children TE, C and A in the care of their older brother and went to Adelaide to sell Mr M’s caravan.
On that afternoon, A was caught shoplifting in the local Woolworths at L. When the mother returned that evening certain allegations were made by A to the mother. Later that evening and the next day further allegations were made by the children to the mother. The allegations included that the father and “other men on bikes” had attended at a local park and taken the children TE, C and A to various locations in the L area. The mother alleges that the children were exposed to horrors such as C watching a boy have his penis cut off and seeing dead babies. The allegations made by the children to the mother were serious and extreme.
Much later, in early April 2008, the mother reported these allegations by the children to the police.
On 28 September 2008 the Director of Public Prosecutions (“DPP”) withdrew the criminal charges against the father.
The current proceedings were commenced by the father in October 2008 when he sought orders that the children C and A spend time with him and have telephone communication with him.
In November 2008 Federal Magistrate Mead made an order for the appointment of an Independent Children’s Lawyer and transferred the matter to the Family Court Magellan List.
On 17 December 2008 Registrar Thomas made the usual orders requesting a Families SA report and a CPS report.
The Families SA letter of 16 January 2009 received by the Court said that Families SA declined to intervene in the proceedings.
On 28 January 2009 his Honour Justice Burr made the following orders:
“1.Further consideration of the proceedings be adjourned to 10.30 am on Monday 20 April 2009 before the Honourable Justice Burr.
2.The parties do all such things, execute all such documents, pay all such fees and attend all such interviews as are necessary to enroll in and take advantage of the services offered by either the Salisbury, Campbelltown and Hindmarsh Children’s Contact Services (“CCS”) or whichever one of them may be in a position to first offer their services to the parties.
3.At the earliest opportunity the father do enroll in, attend and complete a parenting course nominated by the Independent Children’s Lawyer.
4.At the earliest opportunity the mother do undertake a psychiatric assessment and do file and serve a copy of a report prepared by her psychiatrist as to the findings, observations, diagnosis, prognosis and any other general recommendations and advice of the psychiatrist.
5.Pursuant to Section 62G(2) of the Family Law Act 1975 as amended a family consultant provide to the Court a report on such matters as are relevant to these proceedings in respect of the care, welfare and development of the children [C] (“[C]”) born […] September 1999 and [A] (“[A]”) born […] January 2001 SAVE AND EXCEPT that:-
(a) the early stages of the assessment be confined to interviews with the parties and if necessary with the said children;
(b) any observed interaction between the father and the said children not take place until there have been at least three [3] supervised periods of time at the CCS or three [3] attempts at periods of supervised time at the CCS
and that such report be released to the parties and the Independent Children’s Lawyer on or before 4.00 pm on Thursday 16 April 2009.
6.Paragraph 2 of the Orders made by Federal Magistrate Mead on 29 January 2008 be varied to permit the father to spend supervised time with the said children at the CCS (in accordance with paragraph 2 of these Orders) and to engage in the Family Assessment (pursuant to paragraph 5 of these Orders).
7.Leave is granted to the parties and the Independent Children’s Lawyer to inspect and copy the documents pursuant to subpoenae issued in these proceedings, subject to any privilege claimed.
8.The time for compliance with the subpoena directed to the South Australian Police be extended to on or before 4.00 pm on Wednesday 11 February 2009.”
In late March 2009, the Family Consultant carried out interviews with the parties and the children (including DE and TE). She also carried out observations of the children with the father and the paternal grandmother, and with the children and their mother. Her report is dated 7 April 2009.
The father spent time with the children in the presence of the Family Consultant on 27 March 2009. This was the first time he had seen the children for approximately two years.
Further orders were made by Justice Burr on 20 April 2009 as follows:
“1.Further consideration of the proceedings be adjourned to 10.30 am on Tuesday 7 July 2009 before the Honourable Justice Burr.
2.The mother forthwith make all necessary arrangements to undertake a psychiatric assessment with a psychiatrist approved by the Independent Children’s Lawyer and that within that process, the psychiatrist do consider the contents of the Family Report dated 8 April 2009, with such psychiatric report to be filed and served by no later than 4.00 pm on Friday 26 June 2009.
3.A copy of the Family Report dated 8 April 2009 be released by the Independent Children’s Lawyer to the psychiatrist undertaking the mother’s psychiatric assessment.
4.With the assistance of the Independent Children’s Lawyer the parties do forthwith ensure the enrolment in and attendance of the said children at CAMHS for therapeutic counselling.
5.The father do complete the Fatherhood Support Programme in which he is enrolled to commence on […] May 2009 and do file and serve an affidavit annexing the Certificate of Completion of that course on or before the adjourned date for hearing.
6.Paragraph 2 of the Orders made by Federal Magistrate Mead on 29 January 2008 be varied to permit the father to spend supervised time with the said children at the CCS (in accordance with paragraph 7 of these Orders) and to engage in any further family assessment.
AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT, THAT:-
7.The father spend time with the children [C] (“[C]”) born […] September 1999 and [A] (“[A]”) born […] January 2001 at the premises of and under the supervision at all times of the […] Children’s Contact Service (“CCS”) on such dates and at such times as the CCS can offer but for no less than two [2] hours each alternate weekend.
8.The paternal grandmother, who has indicated her willingness and availability to act as a supervisor of the father’s time with the said children, do file and serve within twenty-one [21] days of the date hereof an affidavit detailing her understanding of the role she has been asked to undertake and indicating that she has read and understood the Legal Services Commission pamphlet on the role and responsibilities of supervisors of children’s time with parents.
9.Within twenty-one [21] days of the date hereof the paternal grandmother do contact and make arrangements to meet with the Independent Children’s Lawyer to enable the Independent Children’s Lawyer to assess the suitability of the paternal grandmother to act as a supervisor and to enable the Independent Children’s Lawyer to be in a position to advise the Court on the adjourned date of the paternal grandmother’s suitability or otherwise.
10.The mother be restrained and an injunction is hereby granted restraining the mother from removing the said children from the [I] Primary School without further leave of the Court, but with liberty to the mother to apply urgently in the event that safety and security reasons would prompt the mother and the said children needing to move residence with the mother to file and serve an Application in a Case and supporting Affidavit.”
The mother filed reports from the psychiatrist Dr B dated 20 May 2009, 9 June 2009 and 20 October 2009.
In late June 2009 the mother sought a discharge of the orders which prevented her from changing the children’s school.
On 7 July 2009 Justice Burr made the following orders:
“UPON NOTING:-
(a)that neither of the parties nor the Independent Children’s Lawyer is in a position to advise the Court whether or not the anticipated assessment by the Department of Education and Children’s Services (“DECS”) has been concluded;
(b)the evaluation and recommendations contained in the Family Report dated 7 April 2009 which indicated the importance of the children remaining at the [I] Primary School until the DECS assessment had been completed;
(c)the support of the Independent Children’s Lawyer to the immediate commencement of time to be spent by the father with the children under the supervision of the paternal grandmother;
(d)the Court’s view that an independent overview of the relationship between the father and the children and the paternal grandmother during supervised periods of time would be of assistance and therefore some times at the […] Children’s Contact Service (“CCS”) should be included;
(e)the evaluation and recommendations contained in the Family Report dated 7 April 2009 generally, but specifically as to the observed good relationship between the children and both of the father and the paternal grandmother, despite the lengthy periods of time between when the children last saw the father and the paternal grandmother and the date of observed interaction on 27 March 2009;
IT IS ORDERED THAT:-
1.Further consideration of the mother’s Application in a Case filed on 30 June 2009 for an order enabling her to change the children’s school from the [I] Primary School and any matters generally impacting upon the welfare of the children be adjourned to 2.15 pm on Thursday 23 July 2009 before the Honourable Justice Strickland (Reserve Magellan Judge) (allowing 1 hour).
2.The proceedings be otherwise listed for a 1^st Day Less Adversarial trial at 10.00 am on Tuesday 18 August 2009 before the Honourable Justice Dawe.
3.A Trial Notice Hearing be conducted by the Magellan Registrar immediately following this hearing before the Honourable Justice Burr.
AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT TO 23 JULY 2009, THAT:-
4.The mother be restrained and an injunction is hereby granted restraining her from removing the children [C] (“[C]”) born […] September 1999 and [A] (“[A]”) born […] January 2001 from the [I] Primary School.
AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT TO THE 1^ST DAY LESS ADVERSARIAL TRIAL, THAT:-
5.The father spend time with the children [C] and [A] as follows:-
(a) from 12 noon until 4.00 pm on Saturday 11 July 2009;
(b) from 11.00 am until 4.00 pm on Saturday 25 July 2009;
(c) from 10.00 am until 4.00 pm on Saturday 8 August 2009;
(d) from 2.15 pm until 4.15 pm on Sunday 16 August 2009 and each alternate Sunday thereafter at the premises of and under the supervision of the […] CCS;
(e) from 10.00 am until 4.00 pm on Saturday 22 August 2009 and each alternate Saturday thereafter
UPON THE FOLLOWING CONDITIONS:-
(f) that all times spent by the children with the father away from the […] CCS (pursuant to paragraphs 5(a), 5(b), 5(c) and 5(e) hereof) be supervised at all times by the paternal grandmother Mrs [Morcombe];
(g) the paternal grandmother do immediately telephone the mother in the event that in her view the father behaves inappropriately towards the said children, either physically or verbally, or for any other reason she deems it necessary to terminate the father’s time with the said children in order to preserve their safety and wellbeing UPON NOTING that the mother’s telephone number to be contacted on such occasion(s) is […] or […] and that the paternal grandmother’s mobile telephone number to be contacted in the event that the mother needs to do so is […].
(h) that all handovers not conducted at the […] CCS do occur outside the [L] Police Station;
(i) the paternal grandmother do accompany the father on all occasions of handover;
to the intent that every minute of the father’s time spent with the said children is supervised either by the […] CCS or the paternal grandmother.
6.The mother do ensure the said children continue with their counselling at Child and Adolescent Mental Health Services at [L].
7.The parties and the paternal grandmother be restrained and an injunction is hereby granted restraining each of them from:-
(a) discussing any aspect of these proceedings or any issues in dispute between the parties and the paternal grandmother with the children, in the presence of the children or within the hearing of the children and from permitting any other person to do so;
(b) denigrating or abusing the other party or the paternal grandmother to the children, in the presence of the children or within the hearing of the children and from permitting any other person to do so.”
The father spent time with the children in the company of his mother, as supervisor, on 11 July 2009. They collected the children at the L Police Station, enjoying time with them for five hours from 11.00 am that day.
On 23 July 2009, Justice Strickland made the following orders:
“UPON NOTING
1.That the Independent Children’s Lawyer will use his best efforts to ensure DECS undertake an immediate assessment of the children at the [L] Primary School.
2.That this order is not by consent of the father or the Independent Children’s Lawyer but is not opposed.
IT IS ORDERED
1.That paragraph 10 of the orders of this Honourable Court made on 20 April 2009 be hereby discharged and the mother is at liberty to relocate to [L] and to enrol the children in [L] Primary School.
2.That subject to paragraph 1 hereof the mother is restrained from further relocating or re-enrolling the children in any other school without an order of this Honourable Court or the written consent of the father and the Independent Children’s Lawyer.
3.That the Application in a Case filed by the mother on 30 June 2009 be dismissed and removed from the active pending cases list.”
On 29 July 2009 the father amended his application to seek orders that the children A and C live with him and spend supervised time with the mother.
On the second period of contact, the father and paternal grandmother collected the children. During this period A said she was scared. She was crying. The paternal grandmother telephoned the mother and made arrangements with the mother’s partner, Mr M, to return A and C early.
On the third occasion on 8 August 2009, A did not want to attend, but C did spend time with the father and the paternal grandmother.
On the fourth period on 15 August 2009 both children attended to spend time with the father and paternal grandmother. They went fishing. The children returned after six hours with the father and paternal grandmother.
The first day of the Less Adversarial Trial process took place on 18 August 2009. The father continued to seek the orders in his amended application.
On 18 August 2009 I also received the Case Outline prepared on behalf of the mother. (This became Exhibit 10). The mother’s Case Outline proposed that the children live with her and that the father spend time with the children initially at the Children’s Contact Service under specific conditions. The proposed order also provided for the children to spend time with the father from 21 November 2009 to 24 July 2010, each third weekend from 10.00 am Saturday until 3.00 pm Sunday and for four days in the mid-term school holidays on condition that the time spent was supervised by the paternal grandmother and other specific conditions.
This draft order proposed by the mother continued to provide that, on and from 15 August 2010, the children were to spend time with the father each alternate weekend from 7.00 pm Friday until 3.00 pm Sunday (or 3.00 pm Monday if a Public Holiday) and for one half of mid-term school holidays, with specific Christmas and Easter times and at other times as agreed. Such time was not required to be supervised. (See Exhibit 10).
On 18 August 2009 an order was made by consent that until 25 November 2009 the orders of 7 July 2009 continue.
The father and paternal grandmother were scheduled to spend time with the children at L on 22 August 2009, however, the children were not at the handover point and no contact took place on that occasion.
The next period was due to take place on 5 September 2009. The children were present at the handover with the mother and her partner. The children appeared unwilling to spend time with the father. No contact took place.
On 19 September 2009 the father, his mother, the mother and her partner and the children were present at the police station in L. A police officer was also present. After discussion between the adults and the police officer, C asked to go on contact “for a little while”. He spent time with the father and paternal grandmother on that occasion. A did not spend time with the father on this occasion.
On 3 October 2009 it appeared that the mother’s partner, Mr M, was video-taping the handover. A said she did not want to go. The mother said that C was sick. Contact did not take place.
On 17 October 2009 the children’s sibling DE (at that time aged 16) was present filming the attempted handover. The DVD became Exhibit 2.
There were also six periods of supervised contact between C and A and their father at the Relationships Australia Children’s Contact Service which were scheduled for 6, 13, and 27 September 2009; 11 and 25 October 2009 and 8 November 2009.
The children spent time with the father (as indicated in the report of the observations of supervised contact) on 6 September 2009, 13 September 2009 and 27 September 2009, although on these occasions the children, A and C, brought the sessions to an end or appeared reluctant to spend time with the father and made comments to the workers about the father.
On 11 October 2009 they arrived late. The children told the supervisor that they did not want to see their Nana because “she is mean and she hit their mother and she had a cut on her eye”. (Page 8 of the Relationships Australia Report). The supervised time was attempted but did not proceed well.
On 25 October 2009 the father and mother were present. The children, C and A, were in the same room with the father, paternal grandmother and supervisor but the session did not last long. The children brought the visit to an end.

On 8 November 2009, both children said that they did not want to see the father. The supervised session did not take place.
When the matter came on for conclusion of trial in November 2009 the mother did not propose that the children spend any time with the father.
The trial commenced on 25 November 2009.

The Law

Part VII of the Family Law Act 1975 (Cth) relates to proceedings concerning children. The part commences at section 60A and concludes at section 70Q. However there are 235 sections many of which have a large number of sub-sections.
For the purposes of this matter the most significant sections are set out below.
Section 60B
(1)The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:
(a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)    children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)     parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)    parents should agree about the future parenting of their children.
Section 60CA states:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration
Section 60CC states:
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)     the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:     Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a)     any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)    the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)     the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)    the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)     the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)     the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)     the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)    if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Section 60CG states:
Court to consider risk of family violence
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Section 61DA states:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Section 65DAA states:
Equal time
(1)If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)    if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)If:
(a)    a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)    if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)    the time the child spends with the parent includes both:
(i)    days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)    the time the child spends with the parent allows the parent to be involved in:
(i)    the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)    the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a)    how far apart the parents live from each other; and
(b)    the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)    the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)    the impact that an arrangement of that kind would have on the child; and
(e)    such other matters as the court considers relevant.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)    the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)    the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents (paragraph 60CC(3)(i)).
Note 2:Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
The Family Court of Australia is a superior federal court. Normally, in a superior federal court the provisions of the Evidence Act 1995 (Cth) apply to civil proceedings:
Evidence Act 1995 – Sect 140
Civil proceedings; standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)          the nature of the cause of action or defence; and
(b)         the nature of the subject-matter of the proceeding; and
(c)          the gravity of the matters alleged.
However the Court is bound by the particular provisions of the Family Law Act 1975 (Cth) in Division 12A Subdivision D headed “Matters relating to evidence”. Section 69ZT provides:
Rules of evidence not to apply unless court decides
(1)These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:
(a)    Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;
Note:Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b)    Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c)    Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3)Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a)    the court is satisfied that the circumstances are exceptional; and
(b)    the court has taken into account (in addition to any other matters the court thinks relevant):
(i)     the importance of the evidence in the proceedings; and
(ii)    the nature of the subject matter of the proceedings; and
(iii)   the probative value of the evidence; and
(iv)   the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4)If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5)Subsection (1) does not revive the operation of:
(a)    a rule of common law; or
(b)    a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.”
The High Court of Australia considered the role of the Court in cases where sexual abuse is alleged in the decisions of In the marriage ofM and M (1988) FLC 91-979 and In the marriage of B and B [Suspension of access] (1988) FLC 91-978.
The Full Court of the Family Court of Australia considered these matters in some detail in the matter of Johnson and Page (2007) FLC 93-344. Under the heading “Relevant legal principles” the Full Court sets out the authorities commencing at paragraph 62. In paragraph 66 the Full Court quoted at length from his Honour Justice Fogarty’s decision in N and S (1996) FLC 92-655 and gave emphasis to the following passage quoted from S and S [1994] NZFLR 26:
“ there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture …”
and Fogarty J’s comment:
“Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.”

Significant portions of evidence
(a)Child Protection Service Reports

The reports from the CPS (being the Forensic Medical report dated 3 January 2008 in relation to TE and the CPS Forensic Psycho-Social Assessment Report in relation to A and C dated 8 January 2008 (concerning interviews conducted in May, July and September 2007) were before the Court by consent without the necessity for the authors to be called to be cross-examined. The Forensic Psycho-Social Assessment report took into account numerous documents including Families SA intake forms (four from 2004, two from 2005, two from 2006, four from 2007) a Guidance Psychologist report concerning C dated 1 December 2006 and interviews of adults and children.
The Court also received the report dated 16 January 2009 from Families SA prepared by the local District Centre concerning A and C signed by social worker Mr VN and supervisor Mr ME.
The Forensic Medical report concerning TE was completed after TE was referred to the CPS by the local Families SA and the Criminal Investigation Branch on 22 June 2007 “[a]fter she provided a police statement that she was sexually abused by her mother’s defacto and a male friend of his when she was approximately 5 years old” (second paragraph of the report of 3 January 2008). (TE was born in May 1997 so was 10 in 2007 and five in 2002/2003).
The report contained a summary of the interview that took place with TE before the medical examination. When asked what she understood was the reason for the medical examination TE said it was about “when I got sexually assaulted in 2003” (page 2 of the report of 1 August 2007).
The report sets out in some detail the statements made by TE at the time of the medical examination.
The medical examination report states “examination of her external genitalia, hymen and anus was normal”. The forensic medical opinion concludes that TE had “[n]o evidence of healed genital injury as a result of the alleged sexual assault several years ago.”
The report then expresses concern about TE’s complaints of poor vision in her eye and a bloated stomach which “seem unchanged from that contained in the intake dated 18 May 2004”. “It is of concern that if the symptoms have been so persistent that no medical review or eyesight testing has occurred in the last three years”. The report continues:
“[TE] was clear that the events she recalled happened in 2003 although the intake would suggest that the incident associated with drugging occurred in 2004. It is possible that given her age she has become confused about the dates.
The urine toxicology which found a positive result for pseudoephedrine was received at Forensic Science on 28/05/04. It is not stated whether the urine was collected on this date or previously and therefore how long after the alleged incident on 18/05/04. As stated pseudoephedrine can be a contaminant in amphetamines or found in common cold medications. When combined with antihistamines it may have a sedative effect. Pseudoephedrine in overdose may cause urinary retention which may account for the repeated abdominal bloating. However this would be a self-limiting event. Pseudoephedrine in overdose may also cause visual disturbance but this would be bilateral and would not cause long term visual loss.
RECOMMENDATIONS
Concerns about her vision should be verified with the school and then [TE] should be referred to see her local doctor and an Optometrist. Testing for lactose intolerance could also be arranged by her local doctors in [L]. [TE] should be referred to CAMHS for follow up of her therapeutic requirements.” (Emphasis added)

The report concluded here and was signed by the Consultant Paediatrician.
In the mother’s evidence in relation to TE’s lactose intolerance and poor eyesight the following took place:
“In relation to the children, do you have any concerns currently about [TE’s] health?---Only really, like, her asthma, which has been pretty good, really. It only flares up if she has a cold, like, they have like from swimming.
Does she have any allergies or problems with what she eats?---I have wondered if she is lactose intolerant. That’s probably and if she has bad bowels, that’s about the extent of it. My whole family have got the worst bowels in history. My sister, at the age of 22, had twisted bowels.
Have you told other people that she is lactose intolerant?---I may have, at times, because - - -
Why have you done that?---Because she was as a baby. She was lactose intolerant as a baby, and then I then she seemed to handle food, like, normal food, fine, but now she’s old enough she'll say, like, eggs if she eats eggs she likes them but she can’t eat them. Certain types of bread, like, if I make homemade bread it seems to agree with her better than bought bread, which’d be, like, glucose lactose. But I know I’ve never taken her to the right dietary person to actually, you know, see if that would be the case, because it would have to be a whole new diet, I think.
Well, why haven’t you taken her to have her assessed for lactose intolerance?---Because it’s only really been probably the last couple of years that she really has said things about, you know, like the bread and eggs and that.
Well, in the last couple of years, why haven’t you done something about a concern you’ve expressed to other people, that she may be lactose intolerant?---Moneys always an issue, especially coming down to town, definitely. A big issue actually. I live from one week to the next and I’m struggling to get here now.
In relation to [TE’s] eyesight, do you have any has [TE] expressed concerns about not being able to read or see appropriately?---She did a while back, in one of her eyes, and I took her to an optometrist in [L].
Has that been followed up? Does she have reading glasses?---No. He said that what he seen, she’s got a minor glitch in one eye, he said, but he doesn't think it’s bad enough to have glasses. He actually thought she could see quite good.
What has [TE] told you recently about how she can see?---All she does say, and I told him this, that when she looks at like the blue screen on a TV, it hurts her eyes badly. Any blues. It’s blue, mainly blues, that sort of colour, it’ll hurt her eyes badly and I did tell him that, because that bit bothered me, because she always says it, and he didn’t seem to, I don’t know, I don’t know much about optometry but you know, I did sort of try and get that across to him that that is one of the things that she quite often complains about.
Well, in the CPS report, I understood they were concerned about I can’t find the reference. I'll have a look at it perhaps overnight, and in relation to [C], does he presently have any health issues?---Not really. Only like occasionally he’ll get bronchitis. That’s about it. And he’s probably - - -
You gave evidence previously that he’s on the autism waiting list?---Yeah.
Where is he currently on that waiting list? When did you last inquire?---A long time ago when I rang up to speak to them about behaviours with autistic children, how they are and there was a letter sent out about, I don’t know if it was 15 around the same time, but it was about autism spectrum disorder. But I can tell you that when I did speak to her at length, the list is a long, long list. Two years, but it’s been longer, I’m sure of it, and it’s cost money to do it, which I’m aware of, and I did speak to her in regards to why is it so long and I don’t know if it’s an issue of funding or what it is, but it’s a long wait.
I’ve now found the Child Protection Services report of 3 January 2008, nearly two years ago. It concluded by saying [TE], concerns about her vision should be verified with the school and then [TE] should be referred to see her local doctor and an optometrist. You’re saying that you have done that since 2008?---Yeah, yeah. I took her to the [L] optometrist. That’s apparently what the name is. He’d have it on record, I can get it, I hope, and yeah, he said that there is a minor whatever it is in the eye, because she had claimed that they had put a stick in her eye. That’s what I was worried, and her eye never went back to the same her pupil never went back to the same size as the other one for quite a long time, a very, very long time, so, but he said her eye she has got a tiny bit of I don’t know the words that he used but he said that he was pretty sure that she would be all right without glasses. But the blue bit is the bit that concerns me.
The what is bit?---When she looks at blue, like on a TV or a screen, it she says it kills her eyes.
So when did you last take [TE] to see an optometrist?---When I took her in to see if her eyes were all right.
Yes. When was that?---Probably it’s unclear, about it would be within the last two years.” (Emphasis added).
After the first forensic interview with A was concluded a second forensic interview was arranged. Prior to that second interview new allegations of sexual abuse perpetrated by the father against A were raised which related to the alleged abduction of the children in September 2007.
The Forensic Psycho-Social Assessment Report concerning A and C is dated 8 January 2008. The mother was interviewed. There was a preliminary session and then a forensic interview with both A and C, a second interview with the mother and a second forensic interview with A. The report sets out in some significant detail the background information occupying some seven pages.
The report includes a summary of the feedback session between the observing police officer, the clinician and the mother after each of the forensic interviews with the children.
Under the heading “Summary and Conclusions” the report summarises the notifications and interviews. The section which commences on page 20 of the report is headed “Information pertaining to [A]” and contains the following information:
“Information pertaining to [A]
In relation to other child protection notifications concerning [A], in February 2005 [A] reportedly said “my fanny hurts…daddy did it” and she was observed to rub herself up and down [the father’s] body. She also reportedly confirmed that [the father] had touched her “Minnie” when asked by her mother in July 2005.
Prior to [A’s] first forensic interview, [the mother] provided the clinician with a copy of a newspaper article that reported the guilty plea of Mr [Morcombe Snr] (who [the mother] indicated was [the father’s] father) of sexual intercourse, gross indecency and the production of child pornography. Three days after the newspaper article was printed, on […].4.07, [the mother] informed the clinician that she had encouraged [TE] and [A] to record their abusive experiences involving [the father]. [The mother] provided the clinician with a copy of the document that [A] and [TE] prepared and another document the girls reportedly wrote on the 22.4.07. The documents referred to various sexual acts alleging that [the father] engaged in anal and vaginal penetration using a syringe, his penis and fingers. The documents concluded with the following comments:
‘We are tough soldiers. We can get through this…We are brave children and mum says she loves us very much for telling her what happen…PUT HIM IN GAIL [sic] PLEASE…I never knew what sex was but now I do”.
During her first forensic interview, [A] recalled two occasions her father had “touched my fanny”. During the first occasion, [A] stated that her father had touched her “on my clothes” outside her house in [R] in her mother’s presence with a “sharp knife”. During the second occasion, [A] said that her father had touched her “fanny…on my clothes” inside a train station in the presence of her siblings. However, during her second forensic interview, [A] did not refer to these two incidents but spontaneously stated that her father had “stick the stick up my rude part [in] [R]…it was hurting…[it felt] Yuk…[occurred a] long time ago…last year” and with the clinician’s inadvertent prompting, [A] acknowledged that the incident had occurred whilst she was in the bath at her home in [R]. Later during the second forensic interview, [A] denied that any other such incidents had occurred but she later read from a document that she had reportedly wrote independently the morning of the second forensic interview which referred to other sexual abuse incidents involving her father. It should be noted that prior to her second forensic interview, [the mother] informed the clinician that she had told [A], “you have to tell them everything you know…[its] crucial you say it…this might stop daddy doing it again…[otherwise] daddy will keep coming back”.
Following [A’s] first forensic interview and [C’s] forensic interview, a further notification (dated 17.9.07) referred to a recent incident of sexual abuse perpetrated by [the father] against [A]. Reportedly, [the father] took [A] and [T] from the family home for a drive in [R] (the girls’ older siblings were reportedly caring for them at the time) and [TE] reportedly informed her mother that [the father] had performed cunnilingus on [A] on this occasion. However, during the second forensic interview, [A] provided inconsistent information concerning her recent contact with [the father] in the family home. She denied that [TE] had any contact with [the father] at the time and denied that she or [TE] had left the family home with [the father] and his friend in his friend’s ute. She also denied that she had received any other touches such as rubs, licks or kicks when asked.
With regard to physical abuse allegations, during the first interview, [A] recalled that her mother had smacked her on her arm, [A] also stated that her brother, [DE], smacked her on her “rude part…more than once” but when asked to demonstrate where he smacked her on a doll, [A] smacked the doll’s hand. During the second forensic interview, [A] stated that her mother’s new partner, [Mr M], had smacked her “more than once”. She stated that her mother was unaware of such incidents and believed that should her mother became aware, she would say this it was “OK” for [Mr M] to smack her.
In relation to sexual abuse concerns regarding her siblings, during the first interview, [A] denied that she had observed her father sexually abuse her siblings and she denied that she, [TE] or [KE’s] “rude parts” had ever been “sore” or that they had “hurt”. However, during the second interview, [A] again initially denied that her siblings had been sexually abused by her father but later recalled that [TE] had discussed her ([TE’s]) abusive experiences involving [the father] with [A].
Possible explanations for [A’s] disclosures of genital touching by her father could include that she was describing actual events that she had witnesses and/or experienced, or that she was influenced directly or inadvertently to provide the information. On the basis of information obtained during the assessment, the clinician was unable to conclude the likelihood that [A] had experienced genital touching by her father and this is based on the following:
·[A] failed to provide consistent information between and even within the two forensic interviews. For example, during the first interview, [A] stated that [the father] had touched her genital region on two occasions, but she did not refer to these two incidents during the second interview, rather, she recalled an occasion that her father had “stick the stick up my rude part”. It was also noted that during the second interview, [A] read from a document she reportedly wrote the morning of the second interview that [the father] had stuck a stick, his hand, fingers, foot and shoe “up my bum”. However, later during the interview, after stating that [TE] had told her that [the father] had “sticked his fingers up [TE’s] bum and he um pinched [TE] on the chin”, [A] denied that [the father] had placed his fingers up her ([A’s]) bottom.
·The quality of [A’s] disclosures generally lacked contextual detail and may have been considered somewhat implausible. Whilst it was acknowledged that some of [A’s] descriptions of emotional expressions appeared consistent with the incidents she described, she was unable to recall what [the father] touched her genital area with whilst her siblings were present with her at a train station. She also recalled that her siblings were outside, engaging in activities such as “looking at the kangaroos”, when [the father] touched her genital area in [the mother’s] presence with a “knife” (of which she did not provide further detail). Furthermore, during all reported incidents of sexual touching, [A] denied that any dialogue had occurred.
·[A’s] disclosures were not generally consistent with the limited information provided in the child protection notifications or to information [the mother] provided upon interview. For example, [A] denied that she had received any rubs or licks to her genital region or that she had travelled in [V’s] ute with [the father] as suggested by [the mother] upon interview or as indicated in the most recent intake. Furthermore, unlike the child protection notifications, [A] provided information concerning the location in which the alleged incidents took place.
·[A’s] initial and subsequent disclosures may have been the result of inadvertent suggestive questioning by her mother and sister, [TE]. For example, during the first forensic interview, [A] recalled that she was receiving a “surprise” later that day for “telling all about what my daddy did to me”, which she indicated her mother had instructed her to discuss with the clinician. Similarly, prior to the second interview, [the mother] informed the clinician that she had told [A], ‘You have to tell them everything you know…[its] crucial you say it…this might stop daddy doing it again…[otherwise] daddy will keep coming back’. It should also be noted that [A] did not disclose that her father had put a “stick up” her bottom during the first interview but she did during the second interview, after [TE] had been interviewed by the Police. Given that [A], and that consistencies between [TE’s] Police statement and [A’s] second forensic interview were noted, the clinician is unable to rule out the possibility that [A’s] subsequent disclosures were perhaps related to being part of, or being exposed to, conversations about [TE’s] alleged experiences.
Possible explanations for [A’s] failure to provide a fuller account of her experiences could include the following:
·The alleged abuse did not occur and the original notification to Families SA was inaccurate.
·Although [A] presented as a child with reasonable language comprehension and expression, she had difficulty responding to questions about the timing of events, which is an ability that does not fully mature until children are about seven years of age. For example, [A] stated that she had had her puppy for 7 days when in fact she had had the puppy a few months. Similarly, during the first forensic interview, [A] stated that the second occasion her father had “touched my fanny” had occurred “a little time ago…after Christmas…last year”. Therefore, [A’s] developmental level may have precluded her from proving more detailed information about the timing of the alleged incidents.
·[A] may have difficulty differentiating between a number of possible incidents of sexual touching perpetrated by her father.
·[A] was unwilling to further discuss his [sic] experience/s again having already been questioned by her mother and the Police.
·The delay between when Families SA and SAPOL were first notified of such allegations and the CPS interview may have allowed [A’s] memory of possible abusive experiences to fade.
·Given that the clinician inadvertently prompted [A] about details concerning the incident in the bath at her home in [R], the clinician is unable to rule out the possibility that [A] was suggestible to questioning.
·The alleged abuse occurred but [A] was dissuaded from full disclosure through direct or inadvertent influence from an adult or other person.
·The alleged abuse occurred but [A] was reluctant or fearful to provide details of her experiences during the interview or that [A] did not feel sufficiently comfortable with the clinician to divulge certain information, such as that which she could perceive as embarrassing or distressing.
·[A] was fatigued by the duration of the forensic interviews. She was questioned at length by the clinician and eventually made it clear that she did not want to be questioned further. It is possible therefore, that some detail regarding [A’s] experiences were withheld because she wanted to leave the interview, or that some information varied because she was tired and hence lost concentration.
Information pertaining to [C]
With regard to child protection concerns regarding [C], in May 2004, it was notified that [C’s] anus “looks like it was torn”, the shaft of his penis was considered “thicker than normal” and [C] reportedly stated that a person named [WS] had “ate his willy” and made a noise “like a fish”. In February 2005, [TE] reported that a person named [WS] put a syringe in [C’s] bottom and that his penis was stiff for the remainder of the day and [C] reported that a “Dr [J] comes into his room at night and plays with his willy”. In August 2006, however, [TE] stated to Families SA workers that [DE] and [the mother] had reportedly told her that [the father] put a syringe up [C’s] bottom. According to the August 2006 notification, [C] reportedly told an informant that his “butt hurt from his dad’s dick” and he had informed Families SA that [the father] put a “stick” in his bottom. [C] also stated that [the father] smacked his bottom and told him to take his pants off and bend over when [the mother] was at work. In February 2007, [the mother] had [C] medically examined following her belief that he had been drugged whilst he was not in her care but no concerns were raised by the assessing doctor.
[C] was interviewed by the CPS due to his developmental delays. During the preliminary and forensic interviews, [C] frequently asked the time during the preliminary and forensic interviews and asked to see his mother. During the forensic interview, [C] indicated that his mother had told him that he was attending the CPS because “daddy been rude to me”. [C] later recalled “daddy [Morcombe] hurt this part” and pointed to his genital region which he identified as a “pecker”. After identifying the genital region on an unclothed male as a “willy”, [C] later recalled that [the father] had “hurt me…once[in] [R]”. (It may be noted that when the clinician accidentally referred to [the father] hurting [C’s] “bum”, [C] corrected the clinician and stated that [the father] had hurt his “willy”). However, later during the interview, [C] provided inconsistent information regarding where the incident occurred and who was present at the time. For example, he stated that the incident occurred at his house in [R] but also indicated, on a number of occasions, that an incident also occurred at the “pub”. [C] reported inconsistent information regarding who was present at the time of the incident and stated on numerous occasions that his mother was and was not present.
In relation to physical abuse allegations, during the preliminary interview, [C] spontaneously stated and demonstrated that his mother’s new partner “[Mr M]…belts me” on his bottom. During the forensic interview, [C] reported that [Mr M] had belted him with a “brown” strap “once” and while he recalled that he had an angry face, he was unable to recall [Mr M’s] emotional expression at the time. [C] initially indicated that “the cops” had observed such incidents but later indicated that his mother, poppa and mother’s friend, [SH], had observed such behaviour. [C] said that his mother subsequently told [Mr M], “Don’t [punch [C]] or I’ll punch you in the guts”. [C] also stated that his brother, [JE], had locked him in his room.
When asked if he had observed [the father] engage in any “rude” behaviours with someone else, [C] said, “[Y]”. [C] requested a toilet break immediately afterwards and denied that [the father] had engaged in other rude behaviours with other people upon his return from the toilet break. The interview was terminated after [C] became upset and distressed when the clinician asked [C] to further describe “how” [the father] was rude to him.
Possible explanations for [C’s] disclosures of genital touching by his father could include that he was describing actual events that he had witnessed and/or experienced, or that he was influenced directly or inadvertently to provide the information. On the basis of information obtained during the assessment, the clinician was unable to conclude the likelihood that [C] had experienced genital touching by his father and this is based on the following:
·Throughout his interview, [C] provided inconsistent information regarding where the incident occurred and who was present at the time.
·Whilst [C] recalled that he and his father had an “angry” face when the incident occurred, and he recalled that his father was unclothed, [C] did not provide any further contextual details.
·[C’s] disclosures were not consistent with information provided in the child protection notifications or with information [the mother] provided upon interview.
·[C] initial and subsequent disclosures may have been the result of inadvertent suggestive questioning. For example, [C] indicated that his mother had told him that he was attending the CPS because “daddy been rude to me”. Furthermore, [C] spontaneously stated, “Yeah, and we want [the father] to go to gaol…cause him being rude…[because he had been] Touching little girls and touching little boys”, which, when asked how he knew of such incidents, [C] replied, “I don’t know”. [C] added that his “grandma” was currently imprisoned because she had “touched a girl”.
Possible explanations for [C’s] failure to provide a fuller account of his experiences could include the following:
·The alleged abuse did not occur and the original notification to Families SA was inaccurate.
·As indicated during the preliminary interview and according to past professional reports, [C’s] identified language and level of intellect functioning may have precluded him from recalling possible abusive experiences.
·[C] may have had difficulty differentiating between a number of possible incidents of sexual touching perpetrated by his father and this may be reflected in his inconsistent responses regarding the location of the incident/s.
·The alleged abuse occurred but [C] was dissuaded from full disclosure through direct or inadvertent influence from an adult or other person. For example, during the reported incident, [C] recalled that “[Mr Morcombe] [his father] said, [C] don’t tell anyone or I’ll kick you outside”.
·[C] was unwilling to further discuss his experience/s again having already been questioned by informants and Families SA staff.
·The alleged abuse occurred but [C] was reluctant or fearful to provide details of his experiences during the interview or that [C] did not feel sufficiently comfortable with the clinician to divulge certain information, such as that which he could perceive as embarrassing or distressing.
·[C] was fatigued by the duration of the forensic interviews. He was questioned at length by the clinician and eventually made it clear that he did not want to be questioned further. It is possible therefore, that some detail regarding [C’s] experiences were withheld because he wanted to leave the interview, or that some information varied because he was tired and hence lost concentration.
·The delay between when Families SA and SAPOL were first notified of such allegations and the CPS interview may have allowed [C’s] memory of possible abusive experiences to fade.
Information pertaining to [the mother]
Numerous concerns regarding [the mother’s] parenting ability were raised during the current assessment. Child protection notification indicated that [the mother] suffered from chronic fatigue, numerous mental health diagnoses, including Schizophrenia and Bipolar disorder, and also referred to her drug use in 2005 and 2007. Historical concerns regarding appropriate supervision of her children, her ability to attend to their hygiene and clothing needs and her ability to present [C] to his medical appointments were indicated. [The mother’s] ability to provide her children with a safe and secure environment is questioned given her inability to protect the children from her previous ongoing domestically violent relationship with [the father]. It is also concerning that [A] had reportedly told her that her “fanny hurts…daddy did it” as early as February 2005 and she believed that [the father] had drugged the children according to a notification (dated 26.7.05). It is also noteworthy that [the mother] had discouraged [C] from discussing his home life at school according to a notification received in June 2006, that she continued to reside with [the father] despite informing Families SA that her children were fearful of him in June 2006 (and this was supported by the children’s accounts) and that in August 2006, [the mother] had reportedly refused to engage with professional services because of her fear that child protection notifications would be raised.
During the CPS assessment, [the mother] generally provided information that was consistent to some of the child protection notifications raised but that again raised concerns regarding her ability to protect her children. It was noted that a notification in February 2007 referred to [KE] reportedly videotaping [TE] performing “sexual acts”, however, during the CPS assessment, [the mother] informed the clinician that [A] was reportedly filmed alongside [TE] but that [KE] was not responsible for the filming. It may be noted that [the mother] did not have the video in her possession at the time of the assessment despite indicating that she had previously observed the video. [The mother] also believed that she was filmed unknowingly whilst [the father] was making child pornography. It is also concerning that [the mother] recalled that [the father] had inappropriately touched [KE] when she ([the mother]) was pregnant with [C] but that she did not seek assistance for [KE] and allowed [the father] to return to the family home the following day. Similar concerns were noted when [the mother] recalled observing [the father] masturbating in a bed with [A] and [C] approximately two years ago but upon reflection she believe that he was having sex with the children as they were moving in a “sideways fashion”. Finally, it is particularly concerning that [the mother] said that when the children were naughty, she threatened that she would make them live with [the father] which she stated “petrified them”.
Recent concerns regarding [the mother’s] ability to attend to her children’s needs were raised during [A], [C] and [TE’s] assessments at the CPS. During her medical appointment, [TE] indicated that despite experiencing difficulties with her vision for a significant period, she had not attended an eye examination, although it was noted that [the mother] had purchased her magnifying glasses from an inexpensive shop. Similarly, her mother had not purchased [TE] lactose free food for her dietary needs because of the cost associated. In addition, despite being informed that [P Organisation] would be unable to assist her younger children with a forensic context, [the mother] presented her children to [P Organisation].”
(Emphasis added)

The mother’s evidence about the events of the weekend in which Mr H and Ms WS were invited to stay at the mother and father’s home and its effect on the children are supported to a certain extent by the results of the drug testing results disclosing the presence of pseudoephedrine and amphetamines. However the samples were taken by the mother and the source of the drugs remains unknown.
The mother relies upon information given to her by the children, in particular, TE, C and A and her observations of the state of the children on that weekend which she said indicated that they had been drugged.
The evidence also indicates that initially the mother believed that the children had been abused by Mr H and Ms WS. She left A and C in the care of the father that weekend when she took the older children, DE and TE, to the neighbours. Subsequently, the allegations have focussed upon the father being one of the abusers of the children on this weekend.
The mother’s evidence also related to her own observation of inappropriate behaviour by the father on this weekend when she returned to the home and found the father in bed with A and C (who in May 2004 were aged, C, 4½ and A, 3). The mother confirmed that on this occasion she accused the father of masturbating whilst the children were in bed with him, but she actually believed that he was sexually interfering with A on that occasion.
Notwithstanding the mother’s evidence that she believed the father implicated in horrific physical and sexual abuse of the children on this weekend, the mother remained at the home with the father and all of the children until at least towards the end of 2006.
Her inability to provide an adequate explanation for this behaviour calls into question the evidence that she gives about whether she was convinced by any statements the children made, whether the children made those statements without being encouraged or led and the mother’s own belief in the children’s allegations.
The same can be said for the mother’s subsequent evidence that when the children were in the home of the mother and father they were drugged on at least twenty occasions.
The mother said that she observed the father inappropriately touching A’s vaginal area in 2006, but did not say anything to the father or A, nor did she report it immediately.
Notwithstanding her concerns about the children being drugged and sexually abused, the mother took no specific action about these allegations for a long time.
Whilst the mother maintained her belief that the father was a member of the S Motorcycle Gang and a police informer, her cross-examination in relation to the document, being the alco test receipt, indicated the mother was either being irrational or not giving honest evidence. Notwithstanding that she maintained that shortly after the affidavit was filed she realised that the document did not prove the father was a police informer, she continued to give this information to the psychiatrist, Dr B. She was also very reluctant to accept any criticism when confronted with a comparison between the part of the document which was provided as an annexure to her affidavit and the full document which she later produced (clearly showing it was an alco test).
The mother insisted that the father was a member of the S Motorcycle Gang based primarily upon what she says she observed and what she says the father told her. The father denied that he was a member of the “gang”. There is insufficient evidence before the Court to make a finding that the father is a member of the S Motorcycle Gang.
The mother’s affidavits do not refer to many allegations which she made in her oral evidence. The Court accepts that the mother may have considered that some matters were before the Court because they were in CPS reports. However, several of the omissions were significant.
The mother implied in her evidence the reason she did not separate from the father and take the children away was a difficulty obtaining other housing. She did admit however, that after the separation which she says took place in October 2006, the father visited her and the children at her home and spent time with the children. She agreed that on occasions he stayed overnight. Her evidence implied that she did not want him to stay overnight and did not want him to visit, but that she could not stop him.
The mother admitted that in early 2007, at a time the children had commenced school, possibly February or March 2007, she took the children to stay with the father at his premises at his sister’s home in N.
The mother’s explanation for taking the children to visit the father was unsatisfactory.
A’s first forensic interview with the Child Protection Services took place on 29 May 2007. At the conclusion of that session the mother participated in a feedback session when she was told that A had made only vague disclosures which lacked detail and that it was insufficient to warrant further police action. The mother was not pleased with this result. She spoke of taking further action. (See CPS report of 8 January 2008).
The mother’s evidence was that a short time later (in September 2007) whilst she was in hospital in Adelaide having treatment for a broken hand, the children had been left in the care of their older sibling. They had allegedly reported to her that the father had taken A and TE away from the family home and sexually abused A.
The father denied going to the home on any occasion and removing any of the children. He denied being in L except for one occasion when he briefly attended Court and did not have any contact with the children.
A’s second forensic interview following the notification to the Department about the allegations provided:
“Inconsistent information concerning her recent contact with [the father] in the family home. She denied that [TE] had any contact with [the father] at the time and denied that she or [TE] had left the family home with [the father] and his friend in his friend’s Ute. She also denied that she had received any other touches such as rubs, licks or kicks when asked.” (Page 21 of the CPS report of 8 January 2008).
The affidavits of the mother and her evidence in chief do not refer to the allegations the children made about their alleged kidnapping in early March 2008 when the children reported being taken to various locations in and around the L area where they were abused. This is the occasion when C was alleged to have watched “a boy having his penis cut off”. The other children saw a woman who had a “baby cut out of her tummy” and “dead babies in boxes”. The mother did not provide in her affidavit information indicating that this was reported to the mother in early March 2008 after A had been caught shoplifting at the local Woolworths. The mother did not report these allegations to the police until early April 2008.
The mother did not provide in her evidence-in-chief, by way of affidavit or oral evidence, information about DE having been “stabbed” in 2008, but hiding it from his mother because she said he “was very scared”. This was only disclosed during cross-examination.
When cross-examined about the alleged horrific observations of the children when they were allegedly kidnapped in March 2008, the mother also disclosed for the first time that C had told her that it was “cock head” who cut a child’s “willy” off and that C was then referring to his father as the person who had cut the child’s penis off.
The mother was asked whether she had told the police that she had been told by one of the children that their father had cut off a child’s penis, she replied:
“HER HONOUR: When you went to the police on 9 April 2008, did you tell them that you were told by one of the children that their father had cut off a child’s penis?---I’m unsure. I told them that the children had told me that bikers had come into to town. That they had been taken to locations where there was allegations of yes, babies being cut out of mother’s tummies. Was that to me, it was like, My God, what do you tell them and what don’t you tell them, because it’s a pretty - - -
You didn’t that that allegation by one of the children you believed that allegation that I think it was [C] – [C] had seen his father cut off another child’s penis?---Mm.
You believed [C] when he told you that?---Yes, but it didn’t mean the police were going to believe him.
But you did you tell the police is what I’m asking?---No, I didn’t. I don’t think I did, no.
Why not?---Because I was scared for starters, and this was just another even that I couldn’t back up with any proof at all actually no proof, only the names that they’ve given me which I - - -
But [C] had told you this?---Yes. He did.” [Emphasis added]
The mother was unable to accept that the stories told to her by the children about this occasion could have been an attempt by the children to distract the mother and divert her from A’s shoplifting.
The mother showed very little insight into the inconsistencies in her evidence or the incredible nature of the allegations. The mother continued to assert that she believed the children’s allegations.
The cross-examination of the mother indicated that there was a strong likelihood that the method which the mother used to obtain the information from the children created a strong possibility that the children were telling the mother what the mother wanted to hear.
The mother admitted to giving her children positive affirmation and affection when they made their disclosures to her.
The mother’s insistence that the children would not be able to draw “knives, guns or be aware of home detention equipment” was called into question when she agreed that the children spent time with other children at school and socially and watched TV programmes.
The notes made by the children and their drawings provided as exhibits to the Court may indicate that the children are able to draw these objects, but do not necessarily indicate that the children have not been inappropriately influenced to provide the drawings and make the statements they have made.
When the father was recalled to give his evidence he again convincingly and specifically denied the allegations made by the mother. He was not significantly shaken in any cross-examination.
Dr B’s evidence confirmed that the mother may well be suffering from a delusional disorder. His evidence suggests that if the Court does not find that there is substance to the allegations that the children have been sexually abused by the father, then the mother may well be suffering from a mental health condition. His evidence suggested that if the mother’s behaviour had an impact on her day to day living arrangements and care of the children, then such condition could be diagnosed as a psychiatric delusional disorder.
The Court accepts the submission of counsel for the Independent Children’s Lawyer that the mother’s belief in the alleged events has impinged upon her capacity to lead a normal life and as such affect her capacity to provide appropriate care for the children.
The mother’s unwavering belief in the alleged kidnapping of the children in March 2008 gives considerable weight to the diagnosis that the mother is suffering from a delusional disorder which reduces her capacity to be emotionally available for the children and aware of the children’s needs.
The evidence of the school teacher and former Principal, Mr AN, raised concerns about the social behaviour of TE and A. The teacher’s evidence of course does not allow the Court to draw any conclusions as to the cause of this behaviour. The teacher’s evidence confirmed the evidence that C has an intellectual disability. He was not aware that C was on a waiting list for assessment in relation to Autism.
Ms CB’s report and evidence raise serious concerns about the mother’s capacity to provide care for the children. Concerns were raised in relation to TE’s eyes, and her lactose intolerance. The mother’s evidence was that the Optometrist said TE did not need glasses. This is contradicted by TE’s comments to Ms CB and others.
The observed interaction between the children, TE, A and C and the father was referred to as a “warm loving relationship”. Ms CB did not observe any hesitation, but rather observed the children greeting the father warmly.
The Family Consultant was cross-examined in detail about the observations but was not challenged.
The Family Consultant, in particular, was positive in her response to the father’s attendance at the Parenting Course and ongoing consultations with Mr DN.
The observations of the father and the children took place when the mother was apparently not aware in advance that it was going to occur. This is in contrast to the children’s behaviour subsequently when they and the mother were aware that the father was to spend time with them, either in the company of their paternal grandmother or at the Children’s Contact Service.
During cross-examination the Family Consultant indicated that she was aware of the possible difficulties that might arise when separating the children from the primary care of their mother and the separation from their siblings, TE and DE in particular.
The Court must give significant weight to the considered evidence of the expert Family Consultant.
The CPS reports were before the Court without challenge. Significantly, the conclusions were that the children were inconsistent and at times lacked contextual detail when making allegations which could be considered at times to be implausible. The reports discuss various explanations.
Having heard the evidence of the parties, and in particular assessing the inconsistencies and implausibility of the mother’s evidence, it appears more likely that the children’s disclosures were as a result of suggestive questioning by their mother and encouragement by the mother to make the disclosures. It is possible the children have been influenced by the mother’s irrational, delusional belief. It is also significant that the children may have been encouraged to make such allegations because they had been rewarded in the past when making these allegations.
The allegations made in March 2008 (about being kidnapped and seeing horrific abuse) may have been made in order to divert attention from A’s shoplifting.
I accept that the children are aware of the mother’s allegations that they have been sexually abused by the father.
At the trial the mother was determined to prevent them spending time with the father.
The mother’s failure to bring some of the allegations to the attention of the authorities for a considerable time also calls into question the allegations or her ability to react appropriately to protect the children if she believed them to be true.
The mother’s failure to obtain any medical attention for the children from time to time is also of concern. She alleges that DE was stabbed. She alleges that C had his feet cut. She also alleges that the children have had objects stuck into their eyes, anus and genital areas. There is no medical evidence presented which would confirm any such physical attacks upon the children.
Carefully assessing the evidence before the Court it has not been established, on the balance of probabilities, that the children would be at risk of any physical or sexual assault in the care of the father. The allegations by the mother that the children had been sexually abused by the father have not been established.
To the contrary the evidence before the Court suggests that the children have made statements to the mother and other persons due to the inappropriate influence of the mother.
The children have reacted positively and affectionately to the father at times. In particular, they have been observed to have an affectionate warm reaction to him in the presence of the Family Consultant in March 2009. I also accept the evidence of the father and his mother about the enjoyable times C and A initially experienced when spending supervised time with him.
The children have subsequently made statements to, and in the presence of, the father and paternal grandmother and others which suggest that they believe that they have been hurt by the father or that the paternal grandmother has hurt the mother. The evidence about this is inconsistent. It is possible that the children may now behave in this way and say these things because they know that their mother expects them to do so.
The Court prefers the evidence of the father, his mother Mrs Morcombe and the evidence of the Family Consultant where it conflicts with the allegations or evidence of the mother.
I accept the evidence of the Family Consultant that it is more beneficial for the children to be placed in the care of the father, than remain in the care of the mother.

Application of the provisions of the Family Law Act

The Court is required to apply the provisions of the Act. In particular section 60B emphasises the object is to ensure “that children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children”.
Subject to the children’s best interests the objects emphasise the children having a right to know and be cared for by both their parents and having contact with both their parents and other significant people. It is also suggested that parents share their duties and responsibilities and agree about future parenting.
Section 60CA makes it quite clear the best interests of the children are the paramount consideration. The Court is required to consider those matters set out in section 60CC.
In this matter the primary considerations are significant. The Court needs to consider the benefit to the children of having a meaningful relationship with both the mother and the father, if possible, and at the same time consider the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The allegations that the children have been sexually and physically abused by the father are not established.
I find that the children are not at risk of physical or psychological harm or being subjected to abuse, neglect or family violence in the care of the father, particularly with the assistance of his mother.
I accept the evidence of the Family Consultant which was supported to a considerable extent by the evidence of the psychiatrist, Dr B, that the mother’s delusions, and her insistence to the children that they have been sexually abused by the father, puts the children at risk.
The CPS reports and the Family Consultant’s report raise serious issues about the risk of the children being neglected to the extent of suffering psychological harm in the care of the mother.

Additional considerations

(a)Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.

The children have recently expressed views to the supervisors of contact at the Children’s Contact Centre which indicate that they did not want to spend time with the father, even under supervision. These views would therefore suggest that the children did not want to live with the father. However, the views expressed by the children need to be seen in the context of the strong opposition by the mother to the father spending time with the children and the belief that she promotes that they have been sexually and physically abused by the father.

(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);

The mother has been the primary caregiver for the children for a considerable period of time. The father has had only limited time with the children since early 2007. This is a significant factor which needs to be carefully considered.

The Family Consultant observed a warm relationship between the children and the father and paternal grandmother.
The children A and C have spent their lives in the company of their siblings, in particular DE and TE. These sibling relationships need to be given considerable weight. The children have recently formed a close relationship with the mother’s current partner, Mr M. Although he does not sleep at the same premises every night, it appears that he has spent a considerable time each week, if not each day or evening, with the children and may have established a significant relationship with them.

(c)The willingness and ability of each of the child’s parents to facilitate and encourage, a close and continuing relationship between the child and the other parent;

The mother maintained her belief that the children had been sexually and physically abused by the father. Therefore she does not encourage an ongoing relationship between the children and the father. When presented with factors which could encourage her to reconsider her belief, the mother rejected these and maintained her belief that the father had sexually abused the children. When the mother was presented with the proposed orders she put before the Court in August 2009, the mother suggested to the Court that she had been forced to do so because she was aware of “parental alienation syndrome” and did not want to risk the Court drawing a negative conclusion about her role if she did not offer the father contact with the children.
The mother maintained a strong opposition to the children having any relationship with the father or his mother.
The father originally proposed that the mother have time with the children supervised by her father. In final submissions the father proposed that the mother’s time be dependent upon recommendations made by the children’s therapist.
I assess the father as having a willingness and ability to facilitate the relationship between the children and the mother provided that he is assured that the children’s relationship with him will not be significantly put at risk and that the children’s emotional and mental health will not be put at risk.

(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

The evidence before the Court and in particular from the Family Consultant, indicates that the children may find it difficult to adapt to changes in their circumstances and particularly their separation from the mother and their siblings, DE and TE.
Any move from the L area (in which they have lived most of their lives) to the metropolitan area of Adelaide will also be a significant change. Mr M’s evidence was that he was proposing to move with the mother and the children to Adelaide in any event. This may therefore be a change for the children whether they are in the care of the father or mother.
Although these changes will be changes which will require the children to adapt to new social activities, new school and new friends, the Court does not necessarily conclude that this change will be a detrimental one, particularly bearing in mind that the evidence suggests that C is likely to receive more assistance for his intellectual disability in the metropolitan area of Adelaide than has been available to him in the past.

{e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

The father proposes living in or around the suburb of N in the metropolitan area of Adelaide. The mother currently lives in L in regional South Australia. Her partner, Mr M, indicated that he was proposing to move with the mother and her children to Adelaide in the near future. There is a practical difficulty and some expense involved for the children to spend time with the other parent if the mother continues to reside in L and the father continues to reside in Adelaide. There would be less practical difficulty and expense if the children were to spend time with the other parent and they were both living in the metropolitan area of Adelaide.
Whilst this difficulty and expense is a matter which is to be taken into account it is not one that is significant bearing in mind the other difficulties in this matter and arrangements which could be made for the parties to travel the necessary distance to collect and return the children.

(f) the capacity of:

(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
to provide for the needs of the child, including emotional and intellectual needs;

This is a significant matter. I accept the evidence of the Family Consultant, Ms CB. I also take into account the concerns in the CPS-Families SA reports concerning the mother’s capacity. The evidence indicates the mother is likely to be suffering from mental health difficulties, including a delusional disorder which affects her capacity to provide for the day to day needs of the children. The evidence indicates that in the past the mother has not promptly attended to the health needs of the children. The mother has failed to follow-up the proposed assessment of C in relation to Autism and TE’s possible lactose intolerance.
The Family Consultant’s report and oral evidence (which the Court accepts) is supported by other evidence given in this matter which indicates that the children had emotional needs which were being neglected in the care of the mother.
The father has recently attended a parenting course. Although the father has not had an opportunity recently to provide full time care for the children, it was assessed that he has the capacity to do so, particularly bearing in mind that he proposes to live with his mother, who will provide assistance for him (on a practical day to day level and emotional support).
The paternal grandmother has a good relationship with the children and a capacity to provide for their needs, including their emotional and intellectual needs. She has indicated her willingness to reside with the father and assist him in his care of the children.
The Court has taken into account the recent attitude displayed by the children resisting any time with the father or the paternal grandmother. This behaviour needs to be seen in the context of the mother’s strong negative attitude towards the father and his mother.

(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

C has intellectual disabilities. Although, an assessment has been carried out the evidence before the Court does not clarify whether he is Autistic or has some other form of intellectual disability.
A has exhibited inappropriate behaviour towards other children and adult males. Both children would benefit from further expert professional involvement. This expert assistance which would benefit A and C is generally more available in the metropolitan area of Adelaide than in the L district.
The father indicated a willingness to participate in and make arrangements for appropriate care and treatment for the children.

(h) If the child is an Aboriginal child or a Torres Strait Islander child;

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and
(ii)the likely impact that any proposed parenting order under this Part will have on that right;

The mother gave evidence that she understood the father to have Aboriginal heritage. The father was not directly questioned about any Aboriginal cultural heritage.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

The father has pursued his interest in the children by bringing proceedings shortly after the criminal proceedings were withdrawn. He has had little opportunity in the last three years to demonstrate his attitude to the responsibilities of parenthood other than proceeding in Court and attending on occasions of supervised time with the children. Originally his application was that he spend time with the children, however having received the evidence before the Court and heard the experts’ evidence he appropriately sought orders that the children live with him and that he have sole parental responsibility.
The mother gave inconsistent evidence about her attitude to her responsibilities of parenthood. She was unable to adequately explain the delay in reporting what she alleged were occasions of serious abuse of the children. She was not able to adequately explain the time that she continued to live with the father and the children after she alleges she considered him to have sexually abused and drugged the children. She was unable to adequately explain why she took the children to visit the father in February/March 2007 at his home in N. Her explanation for proposing that the father eventually have unsupervised contact with the children when she put her proposals to the Court in August 2009 varied between suggesting that she was trying to avoid any claim that she was guilty of parental alienation and that she gave into pressure from her lawyers.

(j) Any family violence involving the child or a member of the child’s family;

The Court prefers the evidence of the father and the paternal grandmother about the argument which occurred in late 2004/early 2005. The Court has not accepted the truth of the mother’s allegations that she was physically assaulted by both the father and his mother on that occasion.
The mother and Mr M gave evidence that there had been one occasion of violence in which the mother’s current partner, Mr M, had been drunk and hit the mother. They separated for a short time thereafter.
The Court does not accept the truth of the allegations made by the mother repeating allegations made by the children that the father had assaulted them.
The CPS report (accepted without the need to call the author) sets out allegations by the children that the mother and Mr M have on occasions disciplined them by using physical force.

(k)Any family violence order that applies to the child or a member of the child’s family; if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;

The Court notes that at one stage the father was on strict bail conditions preventing him having any contact with the mother or the children. Otherwise, the orders of the Family Court and initially the Federal Magistrates Court have been taken into account in the circumstances in which they were made.

(l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

In this case the children A and C are likely to benefit from the removal of stress on their parents as a result of these ongoing proceedings. The Court will attempt to make specific final orders which would reduce the need for further litigation and at the same time promote the children’s future welfare and best interests.

(m) Any other fact or circumstance that the court thinks is relevant.

The specific needs of the children and the proposed future arrangements for the children have been considered under previous criteria.
The matters considered in section 60CC (4) and (4A) have already been taken into account in relation to the specific criteria in subsection (3).
Section 61DA requires the Court to apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child or family violence. For the reasons already given the Court does not have reasonable grounds to believe that the father has abused the child or another child, nor that he has engaged in family violence.
The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child (section 61DA(4)).
In this case the evidence indicates that the parents of the children have no prospect of communicating in a sensible fashion concerning any needs of the children, including their long term needs. The total breakdown in the relationship between the mother and the father clearly presents the Court with more than sufficient evidence that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
It is not therefore necessary for the Court to specifically consider the provisions of section 65DAA however, it is appropriate to consider in any event whether the children should spend substantial and significant time with both parents.
Currently the mother’s promotion of the allegations that the children have been sexually and physically abused by the father and her opposition to any role played by the paternal grandmother, establishes that the mother’s psychological and emotional influence upon the children would be negative if she were to spend time with the children. The Court is satisfied that the possibility of the mother suffering from a delusional disorder and her strong negative attitude towards the father, her promotion in the children of a belief that they have been sexually and physically abused by the father and that she has been physically abused by the paternal grandmother, strongly support the conclusion that there would be an unacceptable risk to the emotional and psychological welfare of the children if they were to come under her influence or be in her company at their current vulnerable stage of development and ages.
The submissions made by the Independent Children’s Lawyer’s counsel are substantially in accordance with the Court’s findings and determination of the children’s best interest.
Considering all of the necessary factors and weighing carefully the evidence which the Court has before it, the children’s best interest would be promoted by orders which provide for them to live with the father who should have sole parental responsibility for them.
It is also appropriate for the Court to order the father to obtain professional therapy for the children. It was suggested that CAMHS have facilities available but such facilities were not necessarily available as quickly as may be warranted in this case. It is recommended that the father obtain a Mental Health Care Plan from a General Practitioner which would refer the children to a specialist child psychologist for six or twelve sessions of therapy.
It is in the best interests of the children that the father be ordered to make these arrangements as soon as possible.
The evidence of Ms CB also recommended that the mother not spend time with the children during the period that they would be settling in to the new arrangements in the care of the father and the paternal grandmother. She recommends the resumption of the mother spending time with the children depend upon the therapist’s recommendations.
The father’s counsel submitted that the father was not opposed to the mother spending time with the children in the future, but not for a period of approximately three months whilst the children were having therapeutic counselling. He proposed that the mother thereafter have contact with the children at the Salisbury Children’s Contact Centre for two hours with the mother’s current partner Mr M and the other children DE, TE, KE and JE being at liberty to attend visits after the mother’s fourth visit.
The father will need all the assistance available to him from his mother and any government services, particularly in the early periods when the children may appear to be resistant to his role as their father and the loss of their immediate contact time with their mother.
The Court encourages Families SA, CAMHS and other government agencies and private professionals to provide the father with all available assistance as quickly as possible.
The role of the Independent Children’s Lawyer and experienced counsel may be of ongoing assistance to the children. It is therefore proposed to allow the Independent Children’s Lawyer to continue to act for the children for a period of six months from the delivery of the judgment and to discharge the appointment thereafter.
The Court proposes to permit the parties and the Independent Children’s Lawyer to release copies of this judgment to officers of the South Australian Police Department, Families SA, CAMHS, Child Protection Services, the Education Department, Principal of any school which the children attend, any General Practitioner providing advice or treatment for the father, mother or children and any other medical expert providing advice or treatment for the father, mother or children provided that the recipients of the judgment do not further publish or provide copies of these reasons to any other persons without the written authority of both the father, the mother and the Independent Children’s Lawyer (while the appointment continues).
It is not in the children’s interests for the mother to spend time with the children until such time as the father can be satisfied that the mother’s attitude and health has improved to the extent that there is no significant risk to the children’s emotional and psychological health and that they will be returned to his care. Evidence of the mother’s successful attendance at therapy and the necessary significant change in attitude would be required before it would be appropriate for the Court to consider any further application by the mother. The children’s progress at therapy would also need to be considered.

Conclusions

The children’s best interests require them to live with their father who should have sole parental responsibility.
Bearing in mind the difficulties the Court faces in relation to any possible change in attitude by the mother and her ability in the future to protect the children psychologically and emotionally, the Court finds that it is in the best interests of the children that there be no specific order for the mother to have contact with the children. If the mother improves and is able to provide appropriate emotional and psychological care for the children the father is not prevented from making arrangements directly with the mother for the children to spend time (supervised if deemed necessary) with the children.

I certify that the preceding five hundred and sixty (560) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate:
Date:5 March 2010

[2010] FamCA 165

5 March 2010

Key Legal Topics

Areas of Law

Family Law

Evidence

Statutory Interpretation

Legal Concepts

Injunction