Pearcy and Pearcy
[2016] FCCA 2249
•19 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PEARCY & PEARCY | [2016] FCCA 2249 |
| Catchwords: FAMILY LAW – Parenting – risk – allegations of sexual abuse by father – father nor an unacceptable risk of abuse to children – mother is an unacceptable risk of emotional harm to children. |
| Legislation: Family Law Act1975 |
| Cases cited: M & M (1988) FLC 91-979 |
| Applicant: | MR PEARCY |
| Respondent: | MS PEARCY |
| File Number: | BRC 1670 of 2016 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 12 August 2016 |
| Date of Last Submission: | 12 August 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 19 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms A-M McDiarmid |
| Solicitors for the Applicant: | Springwood Lawyers |
| Counsel for the Respondent: | Mr G Walsh |
| Solicitors for the Respondent: | Carroll Fairon Solicitors |
| Counsel for the Independent Children’s Lawyer: | Ms J McArdle |
| Solicitors for the Independent Children’s Lawyer: | C M Bint Family Lawyers |
ORDERS
That the children X born (omitted) 2008 and Y born (omitted) 2010 (“the children”) live with the father.
That the father have sole parental responsibility for the major long-term parenting issues of the children of the parties, including decisions regarding the children’s:
(a)Education, both current and future
(b)Religious and cultural upbringing; and
(c)Health.
Except in the event of an emergency, the father is to consult the mother about decisions to be made in the exercise of his sole parental responsibility on the following basis:
(a)The father will give the mother in writing details of the decision that needs to be made, what decision he proposes to make and the reasons why he proposes the decision made in a particular way;
(b)The mother will respond to the father, if she wishes to suggest any variation or alternative proposal within seven (7) days of receiving notice;
(c)The father will consider any feedback given by the mother by reference to the best interests of the children;
(d)The father will inform the mother, in writing, within seven (7) days of the decision he has made.
That the children spend time with the mother at all such times as is agreed in writing by the parties and failing agreement as follows:
(a)On one occasion in each fortnight, supervised at a Contact Centre or by private supervisor nominated by the father at such times as can be accommodated by the Contact Centre with the parents to pay equally for the costs of such supervision unless otherwise agreed to by the parties;
(b)That the mother’s time with the children be subject to:
(i)Both parties doing all such acts and things necessary to complete the intake procedures at the Contact Centre within seven (7) days; and
(ii)Comply with all reasonable requests made by centre staff to facilitate such visits.
That the mother be at liberty to send cards, letters and gifts to the children limited to one in each fortnight with the father to ensure that the card letter or gift is delivered and read to the children.
That the father continue to facilitate the children’s attendance upon Child and Youth Mental Health Service and Minds and Hearts as is recommended by such organisations from time to time.
That the mother and father shall do all such things and sign all such documents as might be necessary so as to facilitate each of them and the children consulting with a Clinical Psychologist, approved by the Independent Children’s Lawyer at such times and with such frequency as the specialist might recommend for a process of therapy and in particular to address the following:
(a)To explore issues in a therapeutic context to normalise boundaries within the mother/child relationship;
(b)Parenting supports to strengthen the mother’s emotional availability for the children and additionally to increase her parental empathy;
(c)Support the father to assist to process any residual difficulties regarding acceptance of X's ASD profile and develop a skill set to ensure he is able to normalise X’s experience of the world;
(d)To develop appropriate and supportive responses to address Y’s sexualised behaviours;
(e)To assist in trauma /anxiety and the propensity to self-medicate with alcohol;
(f)To ensure each of them are able to quarantine the children from any adult issues;
(g)To address individual psychiatric and behavioural vulnerabilities;
(h)Support with a specific focus on being both victims of domestic violence and perpetrating domestic violence with the marital relationship;
(i)Protective behaviour education with a specific focus on understanding appropriate sexual development in childhood and an ability to accurately identify problematic behaviours and develop appropriate parental responses to normal range behaviours.
In order to give better effect to the therapy contemplated in the preceding paragraph:
(a)The mother and father shall comply with all reasonable requests as might be made of them by such specialist so as to facilitate the process contemplated in these Orders including, but not limited to:
(i)The father shall pay the costs of consultations with such specialist involving himself alone;
(ii)The mother shall pay the costs of consultations with such specialist involving herself alone;
(iii)The parents shall meet equally the costs of consultations with such specialist involving the children; and
(iv)Accept and act upon all recommendations made by such specialist;
(b)The processes contemplated by this Order shall continue for a period of twelve (12) months unless otherwise directed by the specialist.
That the Independent Children’s Lawyer have leave to release the following documents to the specialist as contemplated in these Orders, Child Youth Mental Health Service and Minds and Hearts:
(a)A copy of the Family Report prepared by Ms N dated 21 July 2016;
(b)A copy of reports prepared by Mr O dated 14 June 2016; and
(c)A copy of Orders made and Reasons for Judgment.
That the parties each be restrained and an injunction issue restraining each of them from consuming alcohol to above .05% BAC at all times that the children are in their care.
That the mother be restrained and an injunction issue restraining the mother from discussing with the children her concerns or any matters relating to the allegations of sexual abuse made against the father.
That the mother be restrained and an injunction issue restraining the mother from taking the children to any medical practitioners, specialists or counsellors without first obtaining the consent of the father in writing.
That unless otherwise ordered herein, the parties communicate in respect of the children through talkingparents.com website and to facilitate that communication each party will forthwith do all such acts and things to enrol with that website.
That each party shall keep the other informed as to a postal address and advise the other of any change to those details within forty-eight (48) hours of any change.
That the father continue to facilitate the children’s attendance upon their General Practitioner and any other specialists or allied health professionals recommended or referred to from time to time, and comply with all recommendations made for the children’s treatment.
That the parties encourage and not undermine the children’s relationship with the other and/or the other’s family members and/or the other’s partner and/or the other’s friends.
That the parties not discuss these proceedings or any issues surrounding the parties dispute in the presence or within the hearing of the children or permit any other person to do so.
That each of the parties will take all steps necessary to ensure that the child is not in the presence of persons including themselves:
(a)Engaging in harassing or intimidating conduct towards the other party or members of their family or household; and
(b)Denigrating the other party or members of their family or household to or in the presence of the children.
That each of the parties have liberty to apply upon the completion of counselling as ordered in Order 7 herein and upon production of a report from that specialist confirming the details and effect of such counselling.
That pursuant to s.65L of the Family Law Act 1975, the parties and the children X born (omitted) 2008 and Y born (omitted) 2010 shall attend an appointment with a Family Consultant or such other Family Consultant as nominated by the Senior Family Consultant of the Federal Circuit Court of Australia, Brisbane at a time and date as directed by the Family Consultant at the Family Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane, for the purpose of explaining these Orders to the children.
That the parties shall participate in the appointment only as directed by the Family Consultant.
That the Independent Children’s Lawyer be discharged upon the completion of Order 20 herein and the provision of the documents as requested pursuant to these Orders.
ORDERS UNTIL FURTHER ORDER
That the parties attend a conciliation conference in relation to the matters to which the proceedings relate in the presence of a Registrar of the Family Court and make a bona fide endeavour to reach agreement on relevant matters in issue between them, such conference to be held at 11.00am on 31 October 2016 at the Family Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane.
That the parties pay equally the conciliation conference fee, or seek a waiver of or exemption from such fee, twenty-eight (28) days prior to the conciliation conference, noting that if one party only obtains a waiver or exemption from the fee then the other party will be liable for payment of the full fee.
That both parties produce to the other fourteen (14) days prior to the conciliation conference, documents as prescribed in Annexure A to this order.
That the parties settle an agreed schedule of property (including superannuation), liabilities and financial resources and the values attributed by each party and the Applicant deliver a copy of the schedule to the Registrar conducting the conference not less than 48 hours prior to the conference by faxing a copy to (omitted).
That the matter be adjourned for mention at 9.30am on 30 January 2017 in the Federal Circuit Court of Australia at Brisbane in the event that consent orders are not reached at the conciliation conference.
NOTATION
A.It is requested that Ms N be appointed to conduct Order 20 herein.
B.In the event that the parties forward consent orders to the Court with a letter that sets out the relevant asset pool, s.75(2) factors, contributions and acknowledgement that procedural fairness has been afforded to the Superannuation Trustee (if applicable), the Court will consider vacating the next Court date and making the Orders in chambers.
ANNEXURE A
Documents to be produced:
List of all bank accounts, details of account numbers, passbooks and bank statements for the previous 12 months.
Details of credit union/building society or other like deposit passbooks and statements for the previous 12 months.
Details and records of any investments including stocks and shares.
Income Tax Returns and assessments for the previous 3 financial years.
Social Security pension or payment details.
Details/records of long service leave accrued.
Details/records of overtime worked in the previous 12 months.
Superannuation documentation including a completed “Superannuation: Information Required for Family Law Matters” form or a form which substantially complies with that form.
Valuation of real estate.
Valuation of chattels including car(s).
Records/details of any life assurance or disability insurance.
Details/records of any of the above re children.
School reports.
Medical or psychiatric reports.
Medical certificates.
IT IS NOTED that publication of this judgment under the pseudonym Pearcy & Pearcy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 1670 of 2016
| MR PEARCY |
Applicant
And
| MS PEARCY |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a matter where the parents have asked the Court to decide future parenting arrangements for two young children. X, who was born on (omitted) 2008 and he is presently eight years old. His sister, Y, was born on (omitted) 2010 and she is six years old.
The mother’s proposal
The mother’s proposal was set out in her outline of case. Her proposal was that the children live with her and that she have sole parental responsibility, and if I was to find that there was an unacceptable risk of harm in the father’s care that the children were to have no time with the father. If I was not able to find that then she wished to be at liberty to particularise the orders she sought.
The father’s proposal
The father’s proposal was set out in his outline of case. However, I understood that, ultimately, after the evidence and at the conclusion of the submissions that the Independent Children’s Lawyer and the father basically now seek the same orders.
On Friday, 12 August at the conclusion of the hearing the father made an application that the children move to his care that afternoon. His submission through his counsel was that there was a risk to the children’s life, basically, if they remained in the mother’s care. I am not sure that I would have been able to find that if the matter had been contested. However the mother, to her credit, consented to that order. She consented to it not because of that risk but because of her emotional state at the time, and as I understood her counsel’s submissions, she considered that it was appropriate for the children not to see her in that state.
The Independent Children’s Lawyer’s proposal
The Independent Children’s Lawyer seeks orders that the children live with the father. She seeks the father have sole parental responsibility with consultation with the mother. The consultation requires he father to:
a)Inform the mother of the decision;
b)Offer an opportunity for the mother to make any suggestions;
c)Consider the feedback from the mother and then;
d)Inform the mother of the decision the father ultimately makes.
The Independent Children’s Lawyer also seeks that the children spend once a fortnight with the mother at a supervised contact centre, I note that the father indicated that if that contact centre had any delay in enrolling the parents, he would be prepared to provide for a private supervisor. The mother’s counsel indicated that she would not be able to afford the private supervisor.
The other orders that the Independent Children’s Lawyer sought were orders of a therapeutic nature basically engaging all the parties with a psychologist to explore all of the various issues that have arisen in this case. She also sought an order that there be an opportunity to release various documents to people who were treating the children and the parents.
The draft order provides for a restraint on an injunction restraining the parties from engaging in consuming alcohol above the 0.05 limit at times when the children are in their care. There was an injunction restraining the mother from discussing with the children her concerns or any matters relating to allegations of sexual abuse against the father. There was also a restraint preventing the mother taking the children to any medical practitioners and specialists and counsellors.
I understood that the father was agreeable to having those orders made.
Background
The parties met in around 1999 and they commenced cohabitation in 2004. They married on (omitted) 2007 and X was born the next year and Y two years later. Both parents have suffered from mental health difficulties during the course of the relationship. The mother reported attempting suicide in 2011 and the father was given a mental health care plan in 2012 relating to stress and anxiety. There have been a number of incidents of domestic violence that I will discuss in more detail later in the judgment. The issue that brought this matter before the Court was the mother alleged that the father had sexually abused the children and, in particular, initially that the father had abused Y.
The first allegation occurred in November of 2015. On 24 November the parties separated. This was the day after the mother alleges that Y made disclosures of sexual abuse to her. The father had not seen the children until last Friday since that day. I note there was a six minute telephone call on Christmas Day where the children spoke to the father. The mother came before me in April 2016 and I made orders on 11 April that the matter come back urgently on 14 April. I then set the matter down for an urgent trial. The reason for that was that the children were spending no time with the father because of the allegations of sexual abuse.
Parenting arrangements
The parenting arrangements during the relationship were what you could describe as traditional. The mother remained at home and cared for the two children and the father worked full time as a (occupation omitted) caring for the children when he was not at work.
The children both have disabilities and these are set out in the mother’s affidavit. In X’s case, he has been diagnosed with Autism Spectrum Disorder and a developmental delay that involves fine motor skill and speech and language and a Sensory Processing Disorder. He was diagnosed at two years old and I accept, as the mother said in her affidavit, that she has given him early intervention therapy every day for the last six years.
Y was diagnosed with Autism Spectrum Disorder in May and June of 2015 by a clinical psychologist, an Autism Diagnostic Observation Schedule test, and a paediatrician. I also note the mother has indicated that Y suffers from obsessive compulsive disorder and anxiety.
The father conceded the mother was primarily responsible for the children while he was at work and that she was the one who basically implemented the programs that the children were required to participate in because of their disabilities. He spoke positively about the mother’s commitment to the children in this respect. It is in this context that I see the incident at school where the mother has basically said:
“What do you have to do to get help? Threaten to get a gun and go and shoot someone.”
I accept that it was the mother, who was very protective of her children, wanting to have their needs met at the school. It was unwise and showed a lack of self-control. However the motive for the outburst could not be criticised.
Post separation parenting arrangements
The post-separation parenting arrangements had the children moving to a refuge on separation in November 2015. In early April 2016 they were moved back into the former matrimonial home when the father consented to sole use and occupation for the mother and the children. Thereafter the father had no time with the children other than a short telephone call on Christmas Day.
Children’s education
The education history of the children is that they attended (omitted) State School prior to separation and then spent some short time at a state school near the refuge which was on the (omitted) Brisbane. The mother and the children were taken to that refuge after separation. The children returned to (omitted) State School in April 2016 when the father vacated the former matrimonial home to enable the mother and the children to return.
Domestic violence
This is a matter where there has been domestic violence committed by each parent against the other during the course of the relationship. X told the family report writer that he just wishes that the parents would stop fighting. X said that he witnessed fighting and arguing between his mother and father which made him feel scared that one of them was going to be hurt. X has told his parents to settle down during the conflict although none of them listened. I note that Y said she does not feel safe with her father because he touched her privates. Y said to the report writer that loud sounds hurt her ears specifically when adults are fighting, and she said when her parents fight Y feels scared.
The first recorded incident of alleged domestic violence in the police records occurred on 2 March 2012. This could be described as the episode in relation to the strangling of the mother. The police were called at 22.20 on 2 March 2012 and attended some 20 minutes later not three hours later as indicated in the mother’s affidavit. The police attended at the address at approximately 22.40 and they located the mother waiting in her car in the driveway. They had a conversation with her and she stated that she got home, there had been an argument and that she had picked up the children to get into the car. She said that while she was putting Y in the car the father approached and pushed her against the car and attempted to strangle her with both of his hands on her throat.
She said that she then got free and immediately called the police. The police examined her neck and throat and observed no signs of redness indicative of being strangled. The police observed that the father was calm, however, he was under the influence of alcohol and he considered that he knew he would not be safe to drive. The police observed that the mother appeared to be argumentative and repeatedly started arguments in the police presence.
The police observed the dwelling to be clean and tidy. They observed the children to be calm, happy, clean and with no apparent signs of having witnessed a violent altercation between the parents. So they record that due to the conflicting versions provided and the lack of any supporting evidence and lack of prior records that they would just make a domestic referral rather than put in place an order.
The second recorded incident was on 26 September 2013. This is an incident where the respondent stated that the aggrieved hit her in the face three times. The respondent was the mother in this incident. The father was the aggrieved. She said that he shoved her against a wall. The police noted that when talking to the aggrieved he said they had had a good morning and then the aggrieved stated that she wanted to get out of the house with the children, get some legal advice about splitting up. The mother then said that then it was that they got very angry and there was a struggle. The report notes the mother struck the father over the head with the household phone and repeatedly struck him in the face with closed fists.
The police officers observed a red mark under the aggrieved’s right eye and a lump on the top of his head. The mother stated that she had also been hit but there were no physical signs that she had been hit by the father, and it was during this occurrence that both children were present and in hearing distance. The police elected on this occasion to make an application for a domestic violence order and they took that out with the father as the aggrieved and the mother as the respondent.
The mother, on separation, obtained a domestic violence order with the father as the respondent from the Caboolture Magistrates Court and in that case the father consented to an order that included a sole use and occupation order that enabled the parents to come to an arrangement where the children and the mother returned to the former matrimonial home.
I am satisfied there has been a long history of fighting as described by the children and there have been incidents of domestic violence that both parents have engaged in. Ms N’s assessments of this at paragraph 113 (page 27) I consider to be relevant. Ms N reported that:
“113. Both parents report the children have observable trauma based behaviours such as, bed wetting, thumb sucking, sleeping difficulties, OCD, anxiety, sexualized behaviours, history of self-harm, threats of suicide, and verbally rejecting their parents. These behaviours can be typical for children who have been exposed to domestic violence or childhood abuse. These poor vulnerable children have been in the middle of their parent’s vitriol for an extended period of time. That the parents have acquiesced to these dysfunctional dynamics for such a lengthy period of time is of great concern. When asked what would they like their parents to stop doing, both children strongly indicated they wished their parents would stop fighting. If these intelligent parents are unable to move forward out of the conflict the outcomes for their children appear bleak.”
I adopt those observations of the report writer and consider that they are relevant in the present case.
The allegations of abuse - Y
The mother’s case is the father has sexually abused Y and the evidence in relation to these allegations is best reviewed in a chronological order. The father’s case is that he denies the abuse occurred and seeks a finding that the father does not present an unacceptable risk of harm to the child by virtue of the sexual abuse of Y.
On 7 June 2010, two days after Y was born, in a document headed “Patient Aid Unit” “(omitted) and Youth Mental Health Service” at paragraph 10 there was a heading “Risk Factors in Visiting”. The note records the mother being very suspicious of people due to a fear of the children being molested. I note the mother’s sad circumstances in her childhood had her being sexually abused as a young girl from the age of 10.
In the evidence that the mother provides in her affidavit she swears that when Y was at kindergarten, which was in around 2013, that she was “obsessed with masturbating”. The mother’s evidence is that the kindergarten would put “Y behind a partition to separate her from the other children at nap time” because of this masturbating. She then says that the kindergarten assured her that this was normal behaviour.
So the mother was concerned about Y’s masturbating as early as 2013. On 24 December 2013 the mother swears that they had been at a theme park at the (omitted) and at the end of the day she took Y into the bathroom and as she was changing her clothes Y pulled her bathers to one side and put her fingers into her vagina. The mother indicated in her evidence that she said, “Y, what are you doing?” and her reply was incoherent. But she then stated:
“212. I went closer to Y and said, “Y, has anyone touched your vagina?” Y replied “Yes, Daddy, Daddy does”.”
With respect to that allegation the mother does not seem to have taken it any further other than to challenge the father with it. The father said that he was disgusted that she would even think of such a thing.
There is a further allegation on 23 November 2015. This is described in the mother’s affidavit where she swears to what occurred that evening. She noted that Y was very tired and she was crying, that she did not want to cuddle, and she observed Y masturbating herself:
“221. … She was fingering her own vagina. I asked her “Why do you have no underpants on?” Y replied “Dad didn’t give them to me”.”
Then she asked if that was the first time that she had not worn her knickers to bed and the child said yes. The mother then went on to say, “Why do you want Dad to put you to bed?” and Y replied, “I can’t tell you. It is a secret”. The mother asked, “What is the secret?” and then Y said, “Daddy will get angry. I cannot tell you because Daddy said you will get angry at me like you get angry at him”.
The mother swears she understood that the next morning the father said to Y, “Remember, don’t tell anyone our secret”. Y later disclosed this to the mother. They were the totality of Y’s disclosures as set out in the mother’s affidavit that was filed on 12 July 2016.
There was a further piece of evidence in the mother’s earlier affidavit filed 14 April 2016 where the mother understood that the child had been sexually abused by the father because Y had said the father had touched her vagina every night.
On 23 November 2015 the mother also took a video of the child which I noted and observed and I was very troubled by. I considered that the child was extremely distressed and did not provide any evidence of any real issues of sexual abuse.
The mother then took the child and reported to Ms J, psychologist the next morning, and Ms J’s notes are instructive, in my view, and I intend to quote the totality of them in relation to the allegation:
“Ms Pearcy reported that she attempted to calm Y by brushing Y’s hair, doing a mindfulness activity (i.e. asking Y to describe what she would feel with each of her senses), and singing. Ms Pearcy stated that she then gave Y a hug. Ms Pearcy reported that after she hug Y, Y rolled over onto her back and began “vigorously” inserting her fingers into her vagina whilst crying and saying that she wanted her Dad to put her to bed. Ms Pearcy stated that she asked “what does Dad do when he puts you to bed?” and then asked “does he tap you on the back, does he scratch your arms, does he touch you somewhere else.” Ms Pearcy alleges Y replied “I can’t tell you it’s a secret,” “it is one of those things, but I am not telling you,” “you never let me have secrets,” “I can’t tell you my secret, Dad will get angry.” Ms Pearcy reported that she also asked Y if her father touched her in her private parts or if he does to her what she was going to her self now. Ms Pearcy reported that Y replied “no” to these questions. Ms Pearcy reported that she further asked Y why she was touching her vagina to which Y allegedly replied “because it is itchy.” Ms Pearcy reported that Y continued to cry and touch her vagina until Ms Pearcy agreed to have Mr Pearcy put Y to bed.”
Ms Pearcy further reported that the next morning:
“This morning Ms Pearcy reported that she asked Y why she was not wearing underwear last night. Ms Pearcy alleged that Y said Mr Pearcy did not lay out underwear on the bed (along with her pyjamas). Ms Pearcy alleged that Y said she asked her father why there was no underwear and he replied there was no underwear in Y’s draw. Ms Pearcy reported that Y’s father said that she went over to her draw and found it contained underwear and asked her father if she could put a pair on and he said “nope”.
Ms Pearcy reported that she had asked Y “can you tell me your secret you have with Dad?” Ms Pearcy alleged that Y said Mr Pearcy reminded her earlier in the morning to keep their secret and not tell Ms Pearcy. Ms Pearcy alleged that Y then said, “you know already.” Ms Pearcy reported that she asked Y “does he do what you were doing last night to get to sleep?” Ms Pearcy reported that Y replied, “yes”.”
It seems that Bravehearts was contacted by the mother on that morning as well and it is not altogether clear whether the child was present or not. There is a note in the department documents that is recorded on 25 November 2015 where:
“Reporter is aware that on 24.11.2015, Ms Pearcy has contacted Bravehearts for support.
Reporter is aware that it has been reported that the previous evening, Ms Pearcy was putting Y to bed who was restless and “ferociously humping” her hand, and sucking on her thumb on the other hand.
Ms Pearcy reported Y was asking for her father (Mr Pearcy) to put her to bed, instead of Ms Pearcy.
It was further reported that Ms Pearcy was asking Y why she wanted her father instead of her, stating she could learn what Mr Pearcy did to put Y to bed.
Y was asked if her father touches her anywhere. Y reportedly replied with “Yes! But stop asking questions because I’m not going to tell you”.
Further, Y had advised Ms Pearcy the previous day that she had a secret with her father, Mr Pearcy, that she was not allowed to tell anyone of.
In addition to the current disclosure, Ms Pearcy reported that on Christmas Eve in 2013, Y was playing with her vagina under her togs while at Wet’n’Wild and when questioned by Ms Pearcy as to why she doing this, Y disclosed that “Daddy touches (her) there”.
Ms Pearcy reported that when she confronted Mr Pearcy about this disclosure, he became abusive and threatening towards Ms Pearcy.”
On 27 November 2015 Y was interviewed by the police in relation to these allegations and made no disclosures of sexual abuse relating to the father. This interview was viewed in the Court during the trial. The child indicated that the father gave her Christmas scratches. These were back scratches that the family all knew about. The mother devised the back scratching to help the children with sensory processing given their disabilities and the need for this particular sort of sensory development. The police did not interview the father and they did not take any further action in relation to the matter.
On 13 January 2016 an organisation called “Walk Tall – Act for Kids” notified the Department of Communities, Child Safety and Disability Services (the Department) in relation to the matter. The note in the Department file records:
“Referral for counselling for the children was received from Women’s Refuge, mother and children currently in refuge. Y and X, mother Ms Pearcy.
Mother reported that Y had disclosed that she had been sexually assaulted by her father on a number of occasions.
Mother reported that X told her that his father had been hitting him quite hard when she was not home.
Service have not commenced counselling with the children due to fact that the child has yet to make a statement to the police. Police have interviewed mother but attempts to interview child were not successful on that occasion. Service will follow up with CPIU to establish whether further interviews will occur so that service is able to respond to children’s need for counselling without contaminating evidence should police intend to investigate further.
Mother reported that Ms M in Brisbane diagnosed the children with autism.
Mother went to (omitted) and mother was told that she needed legal assistance and to see Scope.
The things mother attributed to the children saying did not seem likely in accordance with their age.
What she was saying did not make sense with her behaviour. The information provided is conflicting and mother appeared to be able to produce an emotional response dependent on the audience eg during a phone call with SCOPE etc.”
So there is some concern raised as early as that about the mother’s presentation with respect to the children’s allegations through the Department notes.
On 18 January 2016 a notifier, a health professional, recorded some notes that are set out in the Department’s documents which basically questioned the mother’s motives for involving the services and talking repeatedly of Y’s alleged disclosures. The notifier wondered if the mother had an ulterior motive around the custody of the children or something else.
On 19 January 2016 the Department documents record:
“… Y and X disclosed information to their Minds Alive worker called Mr N. The children advised the following:
When Mr N first met X, X stated ‘you’re here because my dad touched my sisters private parts’. X said that he had never seen his dad touch his sisters private parts.
Later when Mr N first met Y, Y immediately stated ‘I’m the reason you’re here. Dad touched my privates. My vagina’. Y further stated that this occurred in the family home when she was in kindy. Her older brother X was at home when it occurred but he did not witnessed the incident. Y later said it always happened in the family home many times. But then also said it happened once.
Notifier is concerned that these disclosures ‘rolled off the children’s tongues’ quite quickly and to a complete stranger. Y wasn’t anxious when she disclosed and advised Mr N she only has told Mum and himself of the incident/s.”
The police were then again involved in the matter and that assessment occurred on 11 April 2016. It was, I note, the first return date before this Court of the father’s application and the mother had failed to attend. The matter was adjourned and the mother was required to attend personally a few days later.
At around 4.12 pm on 11 April 2011 the mother was interviewed by Senior Constable Mr B and the notebook records:
“The mother now reports that Y masturbates and openly says about the house, “Dad touched my vagina”.
No fresh notifications have been received in relation to the children.
Mother states that she has been withholding the children from the father for about 6 months. Also states that the family law court judge is “pro-man” and wants proof not allegations.
Mother relates that the child’s father is “an extreme DV perpetrator”.
Requested that police start investigating and “bring him in and put pressure on him. Tell him he’ll get less of a sentence if he admits to it.”
The notebook records shortly after that at 4.59 pm on 11 April 2016 there was an interview that the police conducted with Y and it went for about an hour. I viewed that interview in the courtroom. The interview was between Police Officer Mr B (PO1), Police Officer L (PO2) and Y and it stated:
“PO1: Alright Y, tell me what you’ve come here to talk to me about today…
Y: My secret with dad…
PO1: Alright, tell me everything about your secret with dad and start at the beginning
Y: Umm when dad first started the secret, where he touched my vagina it was when I was starting Kindy
PO1: Mhmmm
Y: And dad said he keep it a secret forever
PO1: Yep
Y: When he does it, and he only does it at night in my bed
PO1: Yep
Y: And he licks it and kisses it and… and sniffs it
PO1: Mhmmm
Y: And he softly does that (stokes finger up and down leg) on my vagina near my hole… but he doesn’t pull my knickers down
PO1 Mhmmm
PO1: And what happens then?
Y: And when dad says don’t tell mum, he said mum will get angry…
PO1: Yeah
Y: And when he softly touches it, sometimes he does it a little bit hard
PO1: Mhmmm
Y: And when he does it hard I say stop it dad and then he goes a little bit softer
PO1: Yep
Y: He starts after he does Christmas scratches…
PO1: Mhmmm
Y: And when dad pops me to bed and does that, um touching my vagina, he says don’t tell mum or mum will get very very very angry at you.”
The interview went on for some considerable time and Y was asked:
“PO2: Has mummy spoken to you about why you moved out of home?”
Y: Mmm… she just askes about the secret
PO2: Yeah? What does she ask about?
Y: She asks a lot of stuff
PO2: Yeah? What sort of things does she ask?
Y: Has dad licked you and sniffed you or kissed you… and I said yes
PO2: Mhmmm why did she ask you that?
Y: Cause she wants to know some of the things about my secret?
PO2: Yeah? How did she find out about your secret?
Y: I told her once when we… X and mum were on the bed and when my dad was away
PO2: Yep, what did you tell her?
Y: I told her I have a secret with X and dad and mostly talked about with dad because my secret with X was a little bit of fun and we play the PS4 when mum says no don’t
PO2: So has mum spoken to you about the secret and has she told you what to say to people?”
Y: Yes, she tells me… she tells me and X to tell certain people, not any single person, you have to tell the right people
PO2: Okay, why did she say that?
Y: So other people don’t know… so people don’t know our business
PO2: Okay, so what sort of things did she say to say?
Y: She says… she tells us the only people we are allowed to talk to… she says police, psychologists…
PO2: Mhmmm
Y: Um… my mind hearts people… some more people but I keep forgetting
PO2: Okay, how many times does mum talk to you about the secret?
Y: The only time would be (omitted) and when we’ve been here… I… she keeps begging us… me go to the police so I said, yes to come here today.
PO2: Oh okay and why was she wanting you to come to the police?
Y: To make… to make sure… dad doesn’t go to find us when he’s not telling the truth and not telling the truth
PO2: Oh and what things do you mean about not telling the truth?
Y: She and dad makes a little bit of fights so dad makes little bit of lies and little bit of not lies
PO2: Mhmmm
Y: Cause he’s trying to get us
PO2: Yeah? Cause he’s trying to get you?
Y: Mhmmm that’s what mum keeps begging so we can be safe
PO2: And what do you think about going back to dads?
Y: When we don’t be safe? Umm sometimes X and me think we gotta go separate the children go separate with one of the adults.”
After that interview the child, Y, was examined at the (omitted) Hospital. The hospital performed an anogenital examination and no abnormalities were found.
The investigating officer made some enquiries of a medical nature. He wished to know if a child would routinely masturbate on inserting fingers and other objects into her vagina, that she could lick the juices off her finger. The advice he received was that it was not endocrinologically possible for a child of the age of the victim child to produce her own vaginal lubrication. The child has not reached puberty and does not have the body processes to produce the lubrication described as “juices” by the informant.
The doctor was also asked if a child could orgasm if she masturbated. The advice was it is possible for a child of any age to achieve an orgasm although they may not be cognisant of what they are doing.
The investigating officer records in his notes:
“The informant presented the victim child to the (omitted) Police station counter and stated to the reporting officer the details of the MO. Police conducted a S.93a statement with the victim child who made vague disclosures consistent with the MO, however, she was unable to provide details or to particularise any offences in regards to offence location, date and time and exactly what occurred.
The victim child would repeat the generic term that “dad touch me on the vagina” and it would seem that her behaviour and lack of particularisation is consistent with having been coached by someone, possibly the informant.”
I took this view as well when I looked at that recording of the interview. The child made repetitive statements and did appear to be striving to recall what she had to say and even mentioned that in one part of the interview. This gave me cause for concern and it obviously concerned the police officer investigating the matter. The investigating officer closed the file at that stage, it seems, without any further action. I note that the father refused a record of the interview. The father seeks a finding that he does not present an unacceptable risk of harm to the child, Y.
The High Court in a decision of M and M have indicated what I need to consider in terms of an unacceptable risk and that report is (1988) FLC 91-979 at page 77,018 where the Court says:
“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.”
They then go on to say at the end of that paragraph:
“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.”
The head note accurately sets out the law:
“(a) The ultimate and paramount issue to be decided in custody or access proceedings 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 ultimate and paramount issue which the Court has to determine.
(b) 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 cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.
(c) 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 on the balance of probabilities.
(d) In resolving he 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 assess the magnitude of that risk. The existence and magnitude of the risk of sexual abuse is a fundamental matter to be taken into account in deciding issues of custody and access.
(e) 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. 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.
(f) The trial Judge had concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access.”
I am satisfied that the father does not present an unacceptable risk of harm of sexual abuse of Y for the following reasons:
a)The child made no disclosures of sexual abuse at the November 27 s.93A interview and talked about Christmas scratches as the secret that she had with her father;
b)The mother’s description to Ms J the day after the alleged disclosure in November provided an innocent explanation of why the child was touching her private parts, “because they were itchy” and, also, the child specifically denied the father “touched her in her private parts”; and
c)The mother then proceeded to take the children to a number of counsellors and services and according to the subpoenaed records the notifier’s questioned the mother’s motives for involvement with the services and raised concerns about the mother repeatedly discussing Y’s allegations and disclosures in the presence of the children. There was also a question about whether the mother had an ulterior motive based on the custody of the children.
I am satisfied that Y, in the s.93A tape in April, clearly indicated that the mother begged her to go to the police and she said that the mother had told her that the father touches her privates. Furthermore, the notification came the day of the first return date in this Court. The evidence of the child on the second s.93A interview, in my view, has an element of repetition about it. The investigating officer records the child’s behaviour and lack of particularisation is consistent with having been coached by someone, possibly the informant.
I am not able to make a finding that the mother deliberately coached Y. However her own heightened concern about the risk of sexual abuse because of her own childhood and the fact that she is noted as discussing these matters in front of Y suggests that the mother has influenced Y to make sexual abuse allegations against the father. I note the family report at paragraph 106 (page 25) records:
“106. Children who have experienced sexual abuse can often provide detailed accounts of their experiences in a therapeutic context, over time and as a trusting therapeutic relationship develops. However, children can also be vulnerable to suggestion and manipulation when exposed to repeated leading questions by a parent who has a heightened fear of the possibility of abuse occurring or deliberate acts to coach the child in an effort to fracture the child’s parental bonds. Given Mrs. Pearcy’s own history of childhood sexual abuse it is likely she has a genuine fear of risk of sexual abuse. Under these circumstances it is possible for a young vulnerable child to give false accounts of events that resemble the beliefs of the accusing parent. Y has been exposed to leading questions by Mrs. Pearcy; she was reportedly unable to make subsequent disclosures when interviewed by Police Officers.”
The mother, in my view, has demonstrated no capacity to modify her beliefs about the father having abused sexually the child nor has she modified her behaviour in raising issues in the presence of the children. She has given evidence at the trial that she believed that the father sexually abused Y despite having had access to all of the subpoenaed documents that, in my view, cast real doubt on that issue.
The abuse of X by the father
It is the mother’s case that the father has physically and sexually abused X. X was interviewed by the police on 17 April 2016 and he informed the police that the father had touched his privates, the father did touch Y’s privates, but X did not see it. X indicated that “Dad forced Y to drink her vagina juice”, and he also is recorded as saying, “Mum said that you tell them what dad did and that he made her drink her vagina juice.” He said, “Mum told me in the car and at home.” X then described having a dream where dad touched him, and in particular it is recorded that X stated that his father had forced his sister, as I said, to “drink her vagina juice”.
X stated one night he had a dream about his father touching his penis, stating “Dad wobbled it hardly” which was explained to mean that he was holding it and wobbling it really hard. X then said it never actually happened and it was a dream only, but then said that it probably might have happened. X stated that, “Because dad touched Y’s privates – probably touched mine.” On 15 April 2017, prior to the s.93A statement, the mother told Ms J:
“Ms Pearcy reported that X disclosed to Ms Pearcy (last week) that when he was 3 or 4 years old his father touched his penis until it “became hard.” It was recommended that Ms Pearcy inform the police of this allegation.
Ms Pearcy reported that last week Y became very upset and said “I want to kill myself”. Ms Pearcy reported that she asked Y what her “plan” was to kill herself. Y allegedly stated she would “cut her head off.” Ms Pearcy reported that she was able to calm Y. Ms Pearcy reported that Y did not attempt to hut herself.
And at that stage Ms J notes that she recommended that Ms Pearcy inform the police of the allegation. X has since had some real difficulties with emotional regulation. He has told his teacher that he wanted to kill himself and he was referred to the child and youth mental health counsellor to assist him with these difficulties. The mother also alleges that X was physically abused by his father, by hitting him and making him go upstairs.
X did not disclose this in the s.93A tape. I note in a letter from Mr N that was sent to the mother from Minds Alive that Mr N stated:
“Minds Alive carried out a visit on the 25th of January 2016. In this visit when meeting with X one to one he expressed that he was not anxious about starting his new school, however did express that he missed his father. When querying X what he would like support with, X requested that I “assist his mother to get married, so he could have another dad”.”
In an interview with Ms N and outlined in paragraph 102 (page 20) of her report, Ms N states:
“(a) X has witnessed fighting and arguing between his Mother and Father which makes him feel ‘scared if one of them was going to get hurt’.
(b) X has told his parents to ‘settle down’ during conflict although ‘none of them listened’.
(a) X feels safe with is Mother.
(b) X does not feel safe with his Father. ‘I don’t know why’.
(c) X does not think his Mother wants him to see his Father.
(d) X reports his Father says ‘mean things’ about his Mother like, ‘God I wish mum was dead’. X seels ‘annoyed’ sometimes when he hears this.
(e) X ‘kind of’ wants to see his Father.
(f) X is aware his Mother will feel ‘sad’ if he sees his Father.
(g) X does not like school because he sometimes ‘gets in trouble’.
(h)X has told his Mother, ‘Imagine Dad isn’t alive”, because he wants to give his Mother, ‘a helpful message’ and ‘to make her happy. But it does not work’.
(i) X wishes to tell his Father to ‘Stop it. Stop being rude’. Specifically, to stop using ‘bad words like shit and the ‘f’ word and all kinds of sear words’.
(j) X believes his Father hurts his Mother by ‘making her angry’, ‘by yelling’ and name calling.
(k) X’s worst worry is ‘Seeing Dad’ because ‘how sad it would make Mummy’.
(l) If X saw his Father he would feel, anxious, nervous, sad, and worries because of how his Mother would feel.
(m) X would like his parents to ‘stop fighting’.
(n) If his Mother was happy for him to see his Father X would still feel ‘sad’.
(o) During the family interview X attended a toilet break with his Mother and on return he asked to speak again with the report writer. X stated he remembered wanting to tell the report writer he had a dream that, ‘my Dad touched my private when I was seven (7) and I actually felt it’. X reported that his Mother reminded him ‘I want you to tell Ms N [The report writer] the truth’.”
I did not note anything about the hitting in this particular discussion that X had with Ms N. I note during the family report interview, X attended a toilet break with his mother and, on return, he asked to speak again with the report writer. X stated he remembered wanting to tell the report writer he had a dream that, “my dad touched my private when I was seven and I actually felt it.” X reported that his mother reminded him, “I want you to tell Ms N (the report writer) the truth”.
I am not satisfied that the father represents an unacceptable risk of sexual or physical abuse to X, because the disclosures X made in relation to the sexual abuse to the police were that he dreamt it and, further, I consider that he has been exposed, as has Y, to the same discussions about abuse with or in the presence of the mother that have influenced his young and, in my view, vulnerable mind.
The abuse of the children by the mother
The father’s case is that the children are at risk of emotional harm in the mother’s care. The mother denies this.
I accept that the mother has a steadfast belief that the father has sexually abused the children. I consider that the mother’s behaviour to or in the presence of the children has allowed them to obtain information about allegations of sexual abuse in the case of both of the children, and physical abuse in the case of X. These allegations involve the father as the abuser. The s.93A interviews confirm the mother has urged the children to tell the police about these allegations.
The evidence is that X is suffering from severe emotional difficulties. He has threatened to kill himself since April of this year. He is not sleeping in his own bed. He has been referred to the Child and Youth Mental Health Service for more intensive therapy. His recent school report is poor, according to Dr W, his treating paediatrician.
Y is also suffering from emotional difficulties. She has also threatened to kill herself and is having tantrums and screaming at home. Ms N records in her report at paragraph 123 (page 29):
“123. The parental separation is relatively new, the conflictual issues are unresolved, each parent is highly suspicious and mistrustful of the alternate parent and both parents appear firmly committed to their respective account of events within the parental relationship and risk to the children in the alternate parents care. Mrs. Pearcy does not appear supportive of the children to maintain contact with Mr. Pearcy in the future and has indicated she ‘never wants to see him again’. Mrs. Pearcy is actively working towards separating the children from Mr. Pearcy, she is attempting to gain professional support from the children’s therapist to indicate harmful outcomes should they maintain their parental relationship, and she is likely to protest against any recommendation regarding the children spending future time with Mr. Pearcy.”
And I accept that analysis as an accurate one in relation to the mother. The mother even indicated through her solicitor who wrote to the family report writer, that the children were not to be interviewed for the family report. I am satisfied, because of the findings I have made in relation to the mother’s allegations of sexual and physical abuse of both X and Y, and for the reasons set out above, that the mother is an unacceptable risk of causing emotional harm to X and Y.
The legal principles
The principles that I have to consider and use are set out in the Family Law Act1975 (the Act). In deciding whether to make a particular order, I have to regard the best interests of these two young children as my paramount consideration. I have to look at the primary considerations and some additional considerations in coming to that decision. The primary considerations are the benefit to the children of having a meaningful relationship with both of the children’s parents and the need to protect the children from physical or psychological harm, or being subjected to or exposed to abuse, neglect or family violence. I have to, in applying those considerations set out, give greater weight to considerations in relation to protecting them from the risks of abuse or family violence.
My conclusion as to these primary considerations is that it is important that Y and X have a relationship with both their mother and their father, however there is a need to protect them from being exposed to the risk of family violence, harm and abuse. And my reason for reaching these conclusions are set out in the previous discussion about domestic violence and the risks of sexual and physical abuse and emotional abuse.
I have to look at the additional considerations.
The children’s views
The children have expressed views to Ms N that suggest they are in a state of confusion. This is in the context where they have not seen their father since 23 November 2015 and have only spoken to him on Christmas Day for six minutes. Their views carry little weight because of the findings I have made in relation to sexual and emotional abuse. I am not able to rely on the children’s views in coming to the decision that I have come to.
Relationship with significant persons
I have to look at the relationship with significant persons under the Act. The children have a meaningful relationship, I accept, with both parents. However, I am satisfied that it has been distorted by allegations of abuse in this matter, and I refer to the findings I have made with respect to those.
The parenting and the discharge of parenting responsibilities
I have to look at the extent to which each of the child’s parents have taken or failed to take opportunity to participate in decision making, spending time with the children and communicating with the children. I am satisfied that, while the parents were together, both parents were actively involved with the children and, while the father worked full-time, it seems that he was engaged with the children in the evening. Certainly in the last year, the father cared for the children almost exclusively because the mother determined, and it was perhaps to her credit that she did, that she would remove herself from the father so that there would not be any conflict that the children were exposed to. So he was very actively involved in their night time schedules.
I have to look at the extent to which each of the child’s parents have fulfilled or failed to fulfil their obligations to maintain the children. Both parents, it seems, are in a position where they have been able to maintain the children and would be able to do so in the future. I do not consider that is an issue in this matter.
The capacity of the parents to provide for emotional and intellectual needs
I accept that the father is able to provide for the physical and emotional needs of the children, with the assistance from a psychologist, given the children’s current beliefs that he has sexually abused them and that he has physically abused X. I accept and I am satisfied the mother is not at this stage able to provide for the children’s emotional needs because of her entrenched belief that the father has sexually abused the children in circumstances where I find that he does not present a risk of harm of sexual abuse to the children, or physical abuse to X.
Mr O, a psychologist, has identified that both parents have mental health vulnerabilities, and this is borne out by the history of mental health care both parents have been involved in. I accept that the father has potential issues with alcohol dependence and may need some assistance in respect of that. It would be appropriate to make an order that ensures that he does not have an alcohol level above 0.05 while he is caring for the children.
I accept that the mother has had mental health issues that have, in the past, required her to be treated as an inpatient. The order that the Independent Children’s Lawyer proposes requires that both parents attend a psychologist with the children, and the order lists a number of the issues that need to be explored, and I consider that that order should go some way to resolving the issue in relation to the parents’ capacity to care for the children’s emotional and intellectual needs.
I have to look at the effect of any change in these children’s circumstances. This matter is just so difficult because these children were in what might be described as a warzone of the parents’ issues while they were living together. The children were then placed in the care exclusively of the mother and, in my view, she presented a serious risk of emotional harm because she exposed them to her belief that the father had abused them, in the case of Y sexually and in the case of X sexually and physically.
The children went from no time with the father to being put in his care on 12 August 2016. The care was ordered to be supervised by the paternal grandmother.
It has been very difficult for these children and I have no doubt that the changes in their circumstances have caused real difficulties for them. The changes will no doubt continue to cause difficulties until these issues settle down at some stage in the future, with psychological assistance and counselling.
I would record at this point that it is a credit to the mother that she consented to the arrangement last Friday, not because she believed she was a risk of harm to the children but because her emotional state was such that she did not wish the children to see her in that condition.
Parental responsibility
I have to look at parental responsibility. I am satisfied in this case that there should be an order for sole parental responsibility because the parents are, it seems, totally unable to agree on anything, and it would only potentially create disharmony to do otherwise.
I am also satisfied that the presumption of equal shared parental responsibility is rebutted in the present case because of the admitted domestic violence in the matter.
Conclusion
I am satisfied, having considered the evidence, that the Independent Children’s Lawyer’s proposal is in the children’s best interests for the following reasons:
a)It protects the children from a risk of emotional harm that I find the mother poses if she is to have unsupervised time with the children;
b)It provides both the parents and the children with psychological assistance that they will need to navigate the complex relationships that have developed as a consequence of the parents’ relationship and the allegations of abuse that have arisen in the case; and
c)It also provides the father with sole parental responsibility, which avoids any further opportunities for conflict in the matter.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 30 August 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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