Paul and Shaw
[2017] FCCA 600
•11 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PAUL & SHAW | [2017] FCCA 600 |
| Catchwords: FAMILY LAW – Parenting – where serious allegations of sexual and other abuse made against mother by her eldest son – whether there is a risk of harm to the youngest son – where the Court is concerned about the risk of psychological harm to the child – no contact with mother – transfer to Family Court of Australia. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZT, 69ZV |
| Cases cited: Goode & Goode (2006) FLC 93-286 MRR v GR [2010] HCA 4 Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768 |
| Applicant: | MS PAUL |
| Respondent: | MR SHAW |
| File Number: | WOC 1103 of 2016 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 1 February 2017 |
| Date of Last Submission: | 1 February 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 11 April 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Carter Ferguson Solicitors |
| Counsel for the Respondent: | Mr Knox |
| Solicitors for the Respondent: | Rita Thakur & Associates |
| Solicitors for the Independent Children’s Lawyer: | Maguire & McInerney Lawyers |
ORDERS
Pending further order, the child namely X, born (omitted) 2008, live with the Respondent Father and the father shall be responsible for his day to day care, welfare and development.
Pending further order, the Respondent Father have sole parental responsibility for the long-term care, welfare and development of the child X, born (omitted) 2008.
Pending further order, the Respondent Father have sole parental responsibility for the day to day and long-term care, welfare and development of the child, A born (omitted) 1999.
Pending further order, there be no contact or communication between the Mother and the children.
The proceedings are transferred to the Family Court of Australia at Sydney to be listed for directions before a Registrar on a date and time to be fixed.
THE COURT NOTES THAT:
A. The Court recommends that this matter be included in the Magellan program.
IT IS NOTED that publication of this judgment under the pseudonym Paul & Shaw is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 1103 of 2016
| MS PAUL |
Applicant
And
| MR SHAW |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children, X, born (omitted) 2008, who is now nearly 9, and his older brother A, born (omitted) 1999, who is 17 years old.
The matters raised in this case are extremely complex. There are related pending criminal proceedings that arise from the facts in dispute between the parents.
Both children present, from the material before the Court, as being vulnerable, even the older child. There are concerns apparent to the Court about the manner in which all of the adults in this case, including the paternal grandparents, have responded to the factual issues before the Court.
The Court is asked to make interim Orders only at this stage. Of its own motion, however, the Court will transfer this matter to the Family Court of Australia at Sydney for possible inclusion in the Magellan program, given the serious allegations that are made about sexual abuse of both boys, allegedly by their mother.
There is no point waiting for the outcome of the criminal proceedings against the Mother. Indeed, it would be naïve to think that the resolution of those proceedings, one way or another, would necessarily simplify the outcome in these proceedings.
Background
Both parents are 47 years old. The Mother was born in (country omitted) and A is her oldest child, but from another relationship. Whilst the Father in this case is not A’s biological father, all the material before the Court creates the strong impression that he has been his psychological father.
The parents met in (country omitted) in 2006, and the Mother and A moved to Australia the next year when the parents married. In 2008, X was born.
The parents separated in May 2016. During the course of their relationship, the Father, who is the (occupation omitted) of a (employment omitted) appears to have spent quite extensive time away from home in the course of his professional duties. The impression created from the material before the Court is that both children were, in his absence, raised by their mother and the paternal grandparents, but especially the paternal grandmother. The Father was, no doubt, involved in parenting when he was at home.
On separation, the Mother initially moved into a neighbouring property in which the Father apparently had an interest. She has subsequently moved to another local suburb.
On 31 July 2016, a provisional Apprehended Domestic Violence Order was made for the protection of both children from their mother. On 10 August 2016, this became an interim order. On 23 August 2016, the Mother was charged with six offences:
(1)aggravated indecent assault;
(2)indecent assault, person under 16 years of age;
(3)aggravated indecent assault;
(4)indecent assault, person under 16 years of age;
(5)assault occasioning actual bodily harm; and
(6)common assault.
The charges relate to allegations pertaining to the oldest child, A. The criminal proceedings in the Local Court are ongoing.
The Mother commenced the present proceedings on 28 October 2016. The Father filed his Response on 8 December 2016. On 13 December 2016, an Independent Children’s Lawyer was appointed. Also on 13 December 2016, the Court ordered that each parent must complete the intake for supervised contact at CatholicCare (omitted), and also that both parents were restrained from discussing the proceedings with, or in the presence of the children, or allowing any other person to do so. A Watch List order was made preventing the children from being removed from Australia.
The Mother has not spent any time with the children since 23 July 2016.
It must be apparent from this brief chronology that certain significant events took place in the lead up to the separation and thereafter. In short, on 23 August 2016, the Mother was charged with six serious offences involving allegations of assault and aggravated indecent assault on her son, A. The matter is yet to be heard in the Local Court.
The allegations about the Mother’s behaviour towards her son are very serious indeed. A made the disclosure in July 2016. Indeed, the disclosure by A was made to his GP, Dr G, whose records noted disclosure by A of physical/verbal/sexual abuse “for both himself and X by their mother and her acquaintances”.
As if the disclosures made by A were not serious enough, his reference to X unsurprisingly raised serious concerns on the Father’s part and no doubt led to him reinterpreting past events involving X and his mother from a different, and more sinister, perspective.
The Mother denies any impropriety whatsoever.
All of the criminal charges against her relate to A and not X. There was a JIRT investigation involving X and he not only made no disclosures but denied that anyone, including his mother, had touched him in an inappropriate manner.
Competing Proposals
The Orders sought in the Mother’s Application filed 28 October 2016, after she had been charged, proposed that X live with her and spend time with the Father, and that A spend time with her in accordance with his wishes. When the matter came before the Court for interim hearing on 1 February 2016 that continued to be her main proposal. In the alternative, however, she proposed that pending the outcome of the criminal proceedings, X would spend time with her supervised by SuCo or a similar service, for four hours per week at the Father’s expense, pending the availability of a place in a supervised contact centre.
The Court records its surprise that the Mother’s main proposal would continue to be that X lives with her, given the very serious allegations that she faces and the evidence that A himself gives. At the very least, it suggests a lack of insight on her part. For the Court to accept her primary proposal it would have to dismiss out of hand the allegations made against her and ignore the fact that the police persist with the criminal prosecution. The Court suspects that Ms Harpley, who strongly represented the Mother, probably realised the formidable obstacle standing in the way of the Court to granting the Mother’s primary application. With great respect to the Mother, the only realistic proposal on her part that is before the Court is that she might have supervised time with her son, pending the outcome of the criminal proceedings against her.
The Father’s Response was filed 8 December 2016. His proposal then, and at the interim hearing, was that the Mother should have no contact with X whatsoever. Mr Knox SC appeared on his behalf, and his submissions as to why even supervised contact would not be in the best interests of X will be discussed below.
Ms Pearson was appointed as Independent Children’s Lawyer for both X and A. She proposed that X spend supervised time with the Mother for two hours each alternate weekend at CatholicCare (omitted). The reasons for her advocacy in support of this outcome are set out below.
There seems no issue that both boys would continue to live with their father, and that A would not spend time or communicate with his mother other than as he initiates. The Court gives no serious consideration to the Mother’s proposal that X live with her, at least during the period that she faces these criminal charges. The real issue for the Court is to determine whether it is in X’s best interest to have supervised time with his mother, or no time at all.
The exercise that the Court must undertake is, in effect, a risk assessment and management exercise, in the context of making Orders that are in the best interests of X. From a legal perspective, in all probability, it matters not whether the exercise is described in terms of assessing whether there is an unacceptable risk of abuse to X, or considering risk of harm considerations under s.60CC of the Family Law Act 1975 (‘the Act’).
The Evidence
The Applicant relied upon the following material:
a)Initiating Application, filed 28 October 2016;
b)Notice of Risk, filed 28 October 2016;
c)Affidavit of the Mother, affirmed 26 October 2016 and filed 28 October 2016; and
d)Orders of 13 December 2016.
The Respondent relied upon the following material:
a)Response to Initiating Application, filed 8 December 2016;
b)Notice of Risk, filed 8 December 2016;
c)Affidavit of Mr Shaw, sworn and filed 8 December 2016;
d)Affidavit of Ms H, sworn and filed 8 December 2016;
e)Affidavit of Mr Shaw, sworn 29 November 2016 and filed 8 December 2016; and
f)Interim Apprehended Violence Order dated 14 December 2016 filed 22 December 2016.
The following material was tendered at the time of the interim hearing:
·Further documents produced under subpoena to NSW Police – Police prosecution file
·Documents produced under subpoena to (omitted) Local Health District
·Documents produced under subpoena to Family and Community Services
·Documents produced under subpoena to NSW Police
·Documents produced under subpoena to Dr P
·Documents produced under subpoena to The (omitted) School
·Documents produced under subpoena to Mr G
·Documents produced under subpoena to Dr K
·Documents produced under subpoena to (omitted) Surgery
The Independent Children’s Lawyer, Ms Pearson, prepared a useful chronology which is reproduced in the first schedule to these Reasons for Judgment. The chronology is drawn from the evidence of both parents, as well as the subpoenaed documents.
The Applicable Law
In determining parenting matters under Part VII of the Act, the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring 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 to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly 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; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(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.
(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.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
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.
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.
(3) 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.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
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).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(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 extent to which each of the child's parents 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;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(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) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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.
In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed “Equal time” and provides:
"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." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(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."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n 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".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
A comprehensive statement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] FamCA 892, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what is the relevant law:
92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
...
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 His Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:
“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
‘that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ (at page 77,081)
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
...
It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”
99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr F, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”
107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:
“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
(b) The contact issue
112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.
In WK v SR (1997) FLC 92-787, the Full Court emphasised the standard of proof that applies in these cases at para.47:
In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, in referring to WK v SR the Full Court observed at paras.18-19:
18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in
WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at paras.38-39:
38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."
39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.
Another important statement from this Full Court decision is found in paragraph 45. It is important because it is in the interests of the administration of justice, and more importantly in the interests of the children involved in these cases, that sensible concessions be made so that both interim and final hearings can focus on real issues.
45. The concession by counsel in final address that the evidence would properly lead the trial Judge to conclude the much lower barrier of "unacceptable risk" had been reached could not be seen as some sort of admission of guilt by the husband and those appearing for him. It was no more than an acceptance of the forensic reality. The child had made damning disclosures. The father had denied them. All the Court needed to be satisfied of was whether an order for contact "would expose the child to an unacceptable risk of sexual abuse". An acceptance of the husband's unshaken denials would leave the child's disclosures unexplained. An acceptance of the disclosures as proof that the father behaved with gross impropriety towards G would mean a total rejection of the denials. In our view an acceptance by counsel that the likely outcome lay somewhere in between was not surprising nor could it be seen as an admission of guilt.
It is frequently the case that allegations of sexual abuse are raised in interim proceedings. Wherever possible it is important for the evidence of the protagonists, usually but not always parents, to be tested by cross-examination in some limited fashion. This enables the Court to form an impression, albeit only an impression, about the veracity of the claims made and of the character of the parents. Notwithstanding this, a Court should be wary about making findings of credit after only an abbreviated hearing.
Often it will not be possible to test the evidence in interim proceedings. The Full Court decision in Goode & Goode (2006) FLC 93-286 continues to apply in these cases. The Full Court in Vasser & Taylor-Black [2007] FamCA 547 made these comments, at paragraph 52 of its judgment, about allegations of abuse in interim proceedings:
At paragraph 5 of her written submissions counsel for the independent children’s lawyer, having earlier referred to the test set out in M and M (supra) namely, “the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse”, submitted:
When allegations of abuse arise in interim proceedings, the court must weigh the competing risks of abuse, including the risk of interrupting or severing a relationship between a child and a parent. In order to weigh the competing risks, the court should analyse what the risk is. To simply state that there is a risk of psychological abuse is not providing an analysis of the risk to the child, nor does it assist in determining what, if any, safeguards could be put in place to ameliorate the risk. (paragraph 5).
The Court has a discretionary power to transfer proceedings to the Family Court of Australia pursuant to s.39 of the Federal Circuit Court Act 1999. In addition to this, there exists a protocol between the two Courts which outlines the criteria for transfer:
Protocol for the division of work between the Family Court of Australia and the Federal Circuit Court
The Chief Justice and the Chief Judge have published this Protocol for the guidance of the legal profession and litigants, so as to enable matters to be directed properly to the court appropriate to hear them. The Protocol may on occasions give way to the imperatives of where a case can best be heard and is not intended to constrain the discretion of a judicial officer having regard to the applicable legislation and the facts and circumstances of the case before him or her.
If any one of the following criteria applies, then the application for final orders ordinarily should be filed and/or heard in the Family Court of Australia (‘FCoA’), if judicial resources permit, otherwise the matter should be filed and/or heard in the Federal Circuit Court (‘FCC’).
1. International child abduction.
2. International relocation[.]
3. Disputes as to whether a case should be heard in Australia.
4. Special medical procedures (of the type such as gender reassignment and sterilisation).
5. Contravention and related applications in parenting cases relating to orders which have been made in FCoA proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.
6. Serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court.
7. Complex questions of jurisdiction or law.
8. If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.
Note: The FCoA has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.
Transfers
1. Either Court on its own motion or on application of a party can transfer a matter to the other Court.
2. There is no right of appeal from a decision as to transfer.
According to this protocol, the matter certainly meets the criteria for transfer.
The Disclosures Made by A
The New South Wales Police Force brief of evidence in the criminal charges against the Mother was in evidence. Perhaps the most useful document, at least for the time being, is the statement that was made by A to the police. Indeed, there are two statements, dated 2 August 2016 and 8 November 2016. The focus of the present overview of this evidence is not so much on the risk to A, but whether, and if so to what extent, A’s evidence gives rise to concerns about X’s welfare should he spend time with his mother, even in a supervised context.
In general terms, A describes a relationship with his mother that could be called abusive should his evidence be accepted. He describes both physical and verbal abuse and denigration since he was a child. The physical and/or sexual abuse consisted of his mother pinching his penis, scrotum and (what he calls) bum. This would occur when his mother was showering him, a practice that continued until he was 12 or 13.
At paragraph 19 of his statement of 2 August 2016, A states:
Mum would wash my hair first and the soap would be in my eyes. I would have my eyes closed to avoid getting the soap in my eyes. Mum would wash my body and pinch me on the penis, scrotum and bum each time I showered, every night. No one else would be in the bathroom. Mum told everyone else in the house that it was a custom thing in (country omitted) to shower/bath your child. The pinching would leave a red sting mark on my body on the areas she pinched.
He then describes physical assaults in the context of a corporal punishment, which included hitting with her hand and a plastic clothes hanger.
A then refers to similar behaviour directed to X from when he was about two years old. Indeed, at paragraph 30 of his statement he says that as they got older the physical abuse became worse for both of them.
At paragraph 34, he states as follows:
34. I remember my mum inside the bathroom one time when X was in the shower. I remember her taking photos on her iPhone 5. My brother was naked in the shower. The photos were on her phone and I told her to give me phone as I was going to take it to my grandparents. I had an argument with her saying, “It’s a criminal offence. It’s child pornography.” She said, “It’s perfectly fine. Everyone do it.”
A then describes events that took place when he was in year 8 at (omitted) High School, and X had just started at (omitted) Primary School. He described the Mother collecting them from school and taking them to a (nationality omitted) restaurant in (omitted). His statement refers to the workers in the restaurant, both male and female, touching him around his penis, scrotum and bum and anus. This would happen in the Mother’s presence. A states that he observed the restaurant workers with their hands down the front of X’s pants.
At paragraph 47 of the statement, A says:
The other male chef – I can’t remember him much, he only works there on the weekends. I know he is a homosexual, I saw his partner when my mum took him to his house. My mum told me that they were getting married. He was the one – to my little brother to come and sit on his lap. He would tell me to come sit beside him. He would grope my brother’s testicles while he was sitting on his lap. He would grope me on my bum and anus while I was sitting next to him. He put his hand down the back of my pants while I was sitting on the chair. The chair had a backrest with a gap at the back. He did this to me every time I was there when he was working. He touched me this way about 40 times. The touching would happen for about five to seven minutes each time.
In the statement, A asserts that his mother was there when all of this was happening. He states that he was too afraid to tell his father.
Statements are given by other witnesses in the case. For example, Ms H, the paternal grandmother, provided a statement on 15 August 2016. Without going into detail, it is broadly corroborative of A’s statement. In particular, paragraph 7 of her statement says:
7. Ms Paul took nude photos of X in the bathroom. He told me about this, he said, “Mum’s taking nude photographs of me in the bathroom and I don’t like it.” I went into the bathroom and said to Ms Paul, “Are you taking nude photographs of X? Show me.” She showed me her phone and I saw the photos. They were nude photographs of X in the bathroom. Some were half shot and some were full-length, some were side-on. I said, “What the bloody hell do you think you are doing? Delete them, delete them now. You cannot take nude photographs of children. Delete them now. Why do you want to have photographs of him nude for?” Ms Paul didn’t respond. I watched while she deleted them. I had another conversation with her about customs and the law and that it was illegal.
It is not clear whether this incident is the same incident that A refers to at paragraph 34 of his statement. If it is, there are inconsistencies in this evidence but not as to the substantive issue of the Mother allegedly taking photographs of X whilst he was naked in the shower.
The Mother’s ERISP transcript was also in evidence. She denies that she assaulted either boy and denies the verbal abuse alleged. She accepted that she showered A, but insisted that it ceased when he was about 9. She denied pinching him on the penis, scrotum and bum, but accepted that she was soaping him up and washing him.
At page 11 of the transcript, the Mother was questioned about the photos of X naked in the shower. She explained it as follows. She said that X had asked her to take a picture to send to the Father:
So when has a shower or something – he likes dancing. And he says, “Mum, would you take my photo and send it to dad?” So it’s to do with my relationship with my husband and my son. When my son does something interesting, I took a little video of him to send to his father.
She agreed, however, that when the family found out about the naked photos, she was asked to delete them and she did so immediately.
The Father, Mr Shaw, also provides a statement, dated 15 August 2015. He corroborates the other statements about taking photos of X naked, but suggested that the Mother’s explanation had something to do with (nationality omitted) culture.
At paragraphs 41 and 42 of his statement, he says:
41. When X was 5 years old, I was in the lounge room when my Mother and X came in, and he said, “Tell mum to stop trying to pull my penis off.” After that, I spoke to my Mother and I confronted Ms Paul in the music room.
42. I said to Ms Paul, “What’s going on with you trying to pull X’s penis off?” She said, “It’s no big deal”, and just smiled. She also said, “It’s a cultural thing, it’s how I wake up the boys.” I explained the Australian laws around sexual touching. I wanted to call the police straight away, but my mother said, “Son, he’s still not a citizen”, and that we would have issues proving it in court.” I explained to Ms Paul that I would report her straight away. I explained about – that if X told anyone at school, that the children would be taken away from her.
It should be noted that whilst the statements are the clearest and most succinct evidence before the Court about the allegations in question, the allegations are corroborated elsewhere in the documents produced on subpoena. For present purposes, it is not necessary to traverse those materials.
It is important to record that it is not the task of this Court to determine whether the Mother is guilty of the charges laid against her, pursuant to the criminal standard of proof. The standard of proof is much lower in family law proceedings, though, arguably, the Briginshaw standard applies.
Again, the Court must remind itself that it must decide, on an interim basis, whether X should be spending supervised time with his mother, or no time at all.
It would seem that the evidence, at its highest, insofar as it relates to X suggests, at the very least, inappropriate behaviour on her part, whether that be pinching, or taking photos of X in the nude in the shower, for whatever reason. What is the risk to X, therefore, of having supervised time with his mother?
The Father’s Submissions
To the extent that it was argued that the material before the Court established a certain tendency on the Mother’s part, the Court does not accept this submission. Even if it were established that the Mother has behaved in a certain fashion to her son A, it does not necessarily follow that she would behave in the same fashion with her son X. In any event, supervised contact would adequately protect against any such tendency on her part.
The Father’s submissions acknowledge that the child X has not made any direct disclosure of sexual abuse, indeed any abuse. The submission is nonetheless made, however, that: “There is considerable evidence available to support a very strong likelihood that he has been a victim of sexual abuse and maternal neglect.”
The Court does not accept this submission. The totality of the evidence insofar as abuse of X is concerned is, like so many similar cases, of an ambiguous nature. The submission overreaches. A’s allegations that his mother was abusing X are neither stronger, nor weaker, than his own allegations about his mother’s abuse. The allegations must still be considered, but in the broader context of all of the other material before the Court, and the statutory mandate to consider other factors.
On behalf of the Father it was submitted that X and his brother A have a strong relationship. There is sufficient material before the Court for it to accept this as a broad proposition. The submission then continues, however, by asking the Court to consider the impact on the sibling relationship if X commences spending any time with his mother, even supervised time. There is substance in this submission. It is inevitable that X is aware, in general terms, of the difficulties that exist in this family. He has been interviewed by JIRT. He probably has some knowledge about the criminal proceedings. It is more likely than not that the source of his knowledge is his brother. It is possible that both boys would suffer an element of emotional confusion, if X is spending time with his mother – even in a supervised contact centre – whilst his mother is being prosecuted for alleged abuse of his brother. The Court asks itself: is the benefit to X of time with his mother greater than the risk of this emotional turmoil?
The submission is reinforced by pointing towards the evidence suggesting that A suffers Post Traumatic Stress Disorder, albeit not necessary related to the allegations of abuse. Moreover, the submission points out that clearly A has a negative relationship with his mother. The Court accepts that the evidence is consistent with both propositions. Accordingly, the Court cannot ignore the impact on A of his brother spending time with his mother.
Indeed, the Father’s submissions suggest that if, and when, X’s time with his mother resumes, there would have to be some consideration of this being supported by therapy, not just for X, but perhaps A as well.
Thus, the risk of harm is primarily framed as being an emotional risk of harm, which is not abated by the contact being supervised.
The submissions are compelling. One can only imagine the emotional turmoil that both boys would find themselves in if, for example, X on the one hand was spending supervised time with his mother and, on the other hand, A was giving evidence against his mother in criminal proceedings, and probably being cross-examined by her Counsel. The circumstances in which even supervised time could be introduced are perplexing and probably warrants the earliest intervention by an appropriate forensic expert.
The Mother’s Submissions
On behalf of the Mother the submissions was made that she was the primary carer of both X and A. Moreover, the Father, who was a mariner, was often away for months at a time. The Mother acknowledges that the paternal grandparents, who live next door to the parents, were involved in the care of the children as well. The submission was made, therefore, that the loss of a primary attachment figure would be psychologically harmful to X. This is probably correct. There is no question that X would benefit from having a meaningful relationship with his mother, but in the present case it is risk considerations that are foremost.
In relation to risk, the Mother emphasised her denials, that none of the criminal charges related to X, and that the six criminal charges involving A included indecent assault charges but not sexual assault charges. The Court is not quite sure how the latter distinction is meant to reassure it. The Mother further submitted that there was material before the Court which would create an impression of the toxic relationship that existed between the Mother, and the Father and his family. Thus, inferentially, the allegations needed to be understood in that context. In addition, she submitted that she had been the victim of verbal violence, bullying, intimidation and racism during the relationship, and that this also provides context to the allegations.
With respect to the Mother, none of her submissions really assist the Court in the present context. Splitting hairs about criminal charges does not detract from the very serious allegations that A has made. The potential risk to X is not necessarily minimised by the Mother’s denials, especially when there is evidence suggesting that she did act inappropriately by taking photos of X naked in the shower. Even if there were a toxic environment in the household, the fact is that the main allegations of concern are not made by the Father, or his family, but by her oldest son. There was no adequate response to the assertion of psychological risk of harm to X of having any supervised time with his mother.
The concerns that the Mother raised in her submissions about the Father’s parenting capacity, and his inadequate response to the unfolding drama involving A’s allegations, as well as the role that the paternal grandmother plays in the lives of both children, are all important matters to consider at a later date, but did not inform the Court’s decision.
The Independent Children’s Lawyer’s Submissions
Ms Pearson, on behalf of the children, acknowledged the need for the Court to proceed with caution. Nonetheless, she submitted there was urgency in re-establishing time between X and his mother. Her concern was that further delay may cause X to believe that the alleged abuse did, in fact, occur thus to the detriment of his relationship with his mother. This would be a tragic outcome, she submitted, in a case where the material before the Court does suggest that X enjoyed a good relationship with his mother. She submitted that adequate protection could be achieved by a contact at a supervised contact centre.
The Independent Children’s Lawyer echoed the Mother’s solicitor’s submissions about potential concerns about the Father’s parenting capacity, his extended absences due to his work, his response to the allegations, and the role of the paternal grandmother. Indeed, she submitted that it would not be entirely clear to the Court who, precisely, currently cares for the boys.
The Independent Children’s Lawyer strongly advocated for supervised time.
Discussion
Earlier in these reasons, the nature of the Court’s undertaking was foreshadowed. This is a risk assessment and management exercise. Because the information is not complete, and is untested, any order will of necessity be of short duration. For example, it is possible that the risks need to be re-assessed once the criminal proceedings against the Mother are completed (but that is not necessarily the case because of different standards of proof).
Supervision renders highly unlikely the risk of physical risk of harm to X. The focus then turns to the risk of psychological harm, particularly in the circumstances submitted on behalf of the Father, with the risk accentuated during the course of the criminal proceedings. The psychological impact on X of spending even supervised time with his mother in the circumstances of this case is a risk the nature and extent of which is very difficult to measure in terms of its consequences, though the Court believes that there is at least the moderate risk of there being some emotional reaction, being confusion or indeed something else, in the circumstances of this case. Whilst the risk cannot be quantified in terms of its consequences, the Court asks itself: why take the risk at all, in the absence of appropriate expert evidence, if the risk is assessed to be greater than the adverse consequences of no contact at all with the Mother?
The Court recognises that there would be an obvious benefit to X spending some time with his mother and, indeed, that it is impossible to have a meaningful relationship with someone you do not see at all. But if the Mother’s evidence is correct, and she was the primary carer for X, and they are therefore strongly bonded in terms of their relationship, the Court must consider the possibility, indeed perhaps the likelihood, that the relationship will sustain a further absence, at least pending the outcome of the criminal proceedings, and even then, the receipt of appropriate expert evidence. The Mother’s solicitor in submissions mentioned the risk of alienation, and the Court cannot discount this for now.
This is a complex matter with many considerations that conflict with each other. The evidence is untested, but the allegations are very serious. On balance, however, the Court believes that it should proceed conservatively. If the Court attempts to put itself into X’s shoes, it would be very confusing to say the least to spend time with your Mother, but then to go home to your brother who alleges that the Mother has done abusive and inappropriate acts. The Court does not know how X will reconcile the emotional dilemma that is inevitably created in these circumstances. The Court is not prepared to take the risk, for the time being, of any form of emotional and psychological risk that he might suffer in the circumstances.
The least risk to X is for there to be no contact at all with his mother, pending the outcome of the criminal proceedings, and pending the receipt of expert evidence to assist the Court, and the family in how to deal with the present dilemma.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 11 April 2017
Schedule 1
Chronology Prepared by the Independent Children’s Lawyer
| DATE | EVENT | SOURCE |
| (omitted) 1969 | Father born. | F Aff 8/12/2016 Para 2 |
| (omitted) 1969 | Mother born in (country omitted). | M Aff 26/10/2016 Para 2 |
| (omitted) 1999 | Mother’s son A born. | M Aff 26/10/2016 Para 6 |
| 2006 | Parties meet in (country omitted). | M Aff 26/10/2016 Para 9 |
| (omitted) 2007 | Mother and her son A move to Australia. | F Aff 8/12/2016 Para 9 |
| (omitted) 2007 | Parties marry in (omitted). | M Aff 26/10/2016 Para 9 |
| (omitted) 2008 | X born (child of the relationship). | M Aff 26/10/2016 para 6 |
| 2010 | The child X hospitalised for three (3) days after the parents noticed he had blood in his nappy. | F Aff 8/12/2016 Para 26 |
| 2012 | The father alleges that a (nationality omitted) man that he recognised from (omitted) in (omitted) ran past the father and grabbed X by the arm and ran with him. The father alleges he chased them and eventually caught him. The man then relinquished X and left. The Father did not take any further action. | F Aff 8/12/2016 Para 37 |
| 2013 | The father alleges that the child X said to the paternal grandmother words to the effect 'Mum is trying to pull my penis off. Can you tell her to stop. I don’t like it.' The father told the mother that she was not to sleep in the same bed as X anymore. As far as ICL is aware the Father did not report this to Police at the time of the alleged incident. The father also alleges that when it came time to shower, he heard X say to the mother words to the effect 'I don’t want you to shower me' and saw that X locked the bathroom door when he was showering or whenever he was changing. | F Aff 8/12/2016 Para 27 |
| 2001- Feb 2016 | Father employed as a (occupation omitted) with (employer omitted) in Western Australia, Darwin and (omitted). | F Aff 8/12/2016 Para 12 |
| January 2016 | Father alleges that he witnessed Mother and X lying in bed together. He alleges that X was on top of the mother with a blanket on top of him. The mother was not covered by the blanket. The Father alleges he saw the mother masturbating with the fingers of her right hand going inside her vagina. As far as the ICL is aware this incident was not reported to Police at time of incident. | F Aff 8/12/2016 Para 32 |
| 29 January 2016 | FACS reports note that allegation made that “Mum wakes him (X) by fiddling with his penis”. Report was screen out due to insufficient information and lack of specific detail. For example where it was under or on top of the clothes, time of when it happened, how the mother fiddled with X’ penis | FACS Subpoena Pkt 2 pg 89 |
| 17 April 2016 | Father obtained work as a (occupation omitted) working with (omitted) in (country omitted). | F Aff 8/12/2016 Para 13 |
| 2 May 2016 | Parties separate. | M Aff 26/10/2016 Para 9 |
| 13 May 2016 | Medical records identify child A experiencing “blackout” for a period of 6 months. Child disclosed that he was removed by teacher as he was “talking about suicidal ideation during “blackout” episode”. | Dr P Subpoena, Pkt s3 |
| 17 April 2016 to 24 July 2016 | Father working in (country omitted). | F Aff 8/12/2016 Para 13 |
| 4 July 2016 | Mother leaves property at (omitted) and moves into neighbouring property at (omitted) owned by the father and his Uncle, Mr Shaw. | M Aff 26/10/2016 Para 13 |
| 24 July 2016 to 19 September 2016 | Father remained home from work for approximately six (6) weeks. | F Aff 8/12/2016 Para 13 |
| 27 July 2016 | Father alleges that the child A discloses to GP Dr G about sexual abuse perpetrated upon him by the mother. The subpoena material produced by (omitted) Surgery includes contact record with Dr G where it is reported that: 'Disclosure made by X' 16 year old brother A – reports physical/verbal/sexual abuse for both himself and X by their mother and hr acquaintances. Currently in care of grandmother and father. A states that sexual abuse happens when taken to (omitted) restaurant and father/grandmother have witnessed physical and verbal abuse at home. X had developed a 'nervous' cough, now settled. Seeing Quirky Kids. Mother has moved next door. Incident 3 weeks ago- X asked for a knife whilst waiting for a bus so he could 'hit himself in the head', 'struggling' as per family- hypervigilant, not sleeping well. Plan to report to FACS tomorrow' | F Aff 8/12/2016 Para 16 Subpoena Packet 9- (omitted) Surgery |
| 28 July 2016 | Dr G notes call to Child Protection helpline – report made no. (omitted). | Subpoena Packet (omitted) Surgery |
| 30 July 2016 | JIRT Report notes “On 30/7/2016, father Mr Shaw has bought X into the Emergency Department of (omitted) Hospital this afternoon after being advised to by his local GP. BLANK stated that the father was concerned about sexual abuse of X by his mother”. | FACS Subpoena Pkt 2 pg 91 |
| 31 July 2016 | Provisional Apprehended Domestic Violence order made for the protection of the children from the mother. | F Aff 8/12/2016 Para 41 |
| 1 August 2016 | FACS notes state “BLANK reported he recently returned home from work from BLANK. The father reports that upon his arrival, he found that both boys were highly stressed and agitated. BLANK reports that he took both boys up to Sydney and stayed at a hotel where BLANK disclosed that his mother molested him. BLANK said that he BLANK would pinch him between the penis and testicles and dig her fingers in until it causes him pain. A also disclosed that the mother would take him to the local (omitted) restaurant and would give BLANK to the owners and they would molest him while the mother watches”. Father appears to report that child A was “initially hesitate to disclose as he thought that he would be “thrown out with his mother”, however told the doctor yesterday”. FACS note “The mother and Mr Shaw have separated with the mother moving out of the family home in and moving to the house next door. BLANK was fearful that being (nationality omitted) born he would be sent back to (country omitted) with his mother. He is now living with his paternal grandmother and feels safe to disclose the abuse”. | FACS Subpoena Pkt 2 pg 75 FACS Subpoena Pkt 2 pg 74 FACS Subpoena Pkt 2 pg 74 |
| 1 August 2016 | Interview between JIRT and child X “X said “to talk to you about my mum Ms Paul when I was little she got a coat hanger and hit me with it, she is mean and makes me cry, she yells at me”. X denied that anyone including his mother had touched him in the genital area or on his bottom when questioned. Father was advised that there was insufficient evidence to charge the Mother as no abuse disclosure made by X. | FACS Subpoena Pkt 2 pg 57 FACS Subpoena Pkt 2 pg 48 |
| 1 August 2016 | Email from Paternal Grandmother to school stating “JIRT phoned early this morning and asked us to bring both X and A into their (omitted) Office. X couldn’t recall very much except that his mother hit him with a coat hanger in the bathroom and he was scared. The Hero of the day was his brother A. He had witnessed X being molested and had a four hour interview with them whereby they took his statement.” | (omitted) Subpoena, PKt 4 |
| 10 August 2016 | Interim ADVO made for the protection of the subject children from the Mother. | M Aff 26/10/2016 Para 38 – F Aff 8/12/2016 Para 42 |
| 12 August 2016 | JIRT Report identifies the following: Father alleged Mother was “drugging” the child X as he would sleep all the time. (omitted) Ms L mentioned to Mr Shaw it is a very serious accusation and did he think there was any association between staying up all night playing video games and being tired as opposed to his mother drugging him”. It was noted that upon greeting the JIRT office the Paternal Grandmother Ms H stated X “doesn’t go to sleep and he is up all night playing (omitted) and he finds it hard to get out of bed”. The Father advised JIRT that the child X had several meltdowns and was emotional since the JIRT interviewed. The Father could not answer when questioned about what strategies he is using to sooth X and deal with his meltdowns. JIRT Report identified that the Father reported that while he is away working “his mother Ms H is caring for X and A. Mr Shaw informed me he does not live in the home that his children live in; he lives next door to them.” Mr Shaw said his mother Ms H cares for them however at time he assists the boys with nightly routines”. | FACS Subpoena Pkt 2 pg 91-86 |
| 23 August 2016 | Mother charged with the following 6 offences: 1. Aggravated indecent assault; 2. Indecent assault person under 16 years of age; 3. Aggravated indecent assault; 4. Indecent assault person under 16 years of age; 5. Assault occasioning actual bodily harm; and 6. Common assault. Matter is yet to be heard in the Local Court. | F Aff 8/12/2016 Para 19 and M Aff 26/10/2016 Para 41 (Annexure D) |
| 23 September 2016 | Contact Record in FACS subpoena material states: "Reporter stated that for the last 4 years the p/grandmother and father have not allowed….alone with X. Report said that …is concerned for the physical and emotional wellbeing of …as the p/grandmother and father watch X when he showers even through X has said that he does not like this. ….if the father is not home the p/grandmother will enter the bathroom with X, lock the door and will be present whilst X is naked and showering." | FACS – Subpoena Packet S2 |
| 19 September 2016 to 15 November 2016 | Father working in (country omitted). Paternal grandparents have been the primary carer's for the children whilst the father was working overseas. | F Aff 8/12/2016 Para 13 and 43 |
| End of 2016 | Father resigns from position in (country omitted) and looking for work locally. | F Aff 8/12/2016 Para 14 |
| 13 December 2016 | Orders made for the appointment of an Independent Children’s Lawyer. | Orders 13 December 2016 |
| 14 December 2016 | Interim Apprehended Domestic Violence Order made by the Police protecting the children from the mother. | Document to be filed pursuant to Rule 24.01(1)(h) of the Family Law Rules filed 22 December 2016. |
| 1 February 2017 | Interim Hearing at WFCC. | |
| 8 February 2017 | Hearing at Wollongong Local Court for the ADVO. | Document to be filed pursuant to Rule 24.01(1)(h) of the Family Law Rules filed 22 December 2016. |
Key Legal Topics
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Family Law
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Jurisdiction
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