Peddar and Vina (No. 2)

[2008] FamCA 893

FAMILY COURT OF AUSTRALIA

PEDDAR & VINA (NO. 2) [2008] FamCA 893

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Facilitating rights of access of requesting parent in Sweden to children in Australia pursuant to reg 24 of the Family Law (Child Abduction Convention) Regulations 1986 – application by father to discharge previous order in light of new evidence - relevant principles

Family Law Act 1975 (Cth) s 60CA

State Central Authority & Peddar [2008] FamCA 519

APPLICANT: Mr Peddar

RESPONDENT: Ms Vina

FILE NUMBER: MLC 8853 of 2007

DATE DELIVERED: 9 September 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms A. Carter

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr A. Skerlj

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Donald S Lampe

Orders

1. That as conditions precedent to the time which the mother is entitled to spend with the children F born … April 1997 and E born … April 1999, pursuant to paragraph 4 of the Order made on 30 June 2008, the mother her servants and or agents be and are hereby restrained from causing permitting or suffering the:-

   (i)making of any reports or notifications to the police, any child protection agency or any child welfare agency or like authority or body, whether in Australia or Sweden or elsewhere, in relation to allegations pre-dating the making of this order that the children have been abused or are at risk of being abused by the father an/or any member of his family; and

   (ii)taking of the children to any medical or allied health professional, the police or any body charged with the protection of children in relation to any allegations of sexual abuse of the children by the father and/or any member of his family, that pre-date the making of these Orders.

2. That for the purpose of implementing paragraph 9 of the Order made 30 June 2008 the father shall deliver the children to the mother at …, Tullamarine Airport, International Departures, at 11.00 am on 10 September 2008.

3. That the mother be entitled forthwith to collect the children’s passports from this Registry of the Family Court and she be responsible for returning the passports to the father with the children at the conclusion of their time with her.

4. That the father’s application filed 28 July 2008 (as amended) and the mother’s response thereto be otherwise dismissed.

5. That the order requesting the appointment of the independent children’s lawyer be and is hereby discharged.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8853 of 2007

MR PEDDAR

Applicant

And

MS VINA

Respondent

REASONS FOR JUDGMENT

ex tempore

1. The father, Mr Peddar, makes an application to discharge permanently orders that I made on 30 June 2008, pursuant to which the children F, born in April 1997, and E, born in April 1999, would spend a month with the mother, Ms Vina, in Sweden commencing tomorrow.  The father seeks that henceforth, all time which the boys are entitled to spend with the mother take place in Australia. 

2. He bases his application on the fact that on 3 March 2008, after written submissions were concluded in the contested proceedings but before I delivered judgment, the mother wrote to Victoria Police cataloguing a series of allegations of sexual abuse allegedly perpetrated by the father, the paternal aunt and uncle, or in which they were all complicit. 

3. The mother concedes that her actions constitute a change of circumstance such that the father is able to re‑open my consideration of the matter.  Otherwise, she resists his application except to say that, as a condition precedent to the time she has with the children, she agrees to be restrained from raising any sexual abuse allegations against the father or family members either with the children or any appropriate authority in Australia or in Sweden.

4. I restate here and incorporate into these reasons, my reasons and findings published on 30 June 2008 in case neutral citation (2008) FamCA 519. I will examine my previous findings in light of the new evidence and determine whether my order of 30 June 2008 is still a determination consistent with the best interests of the children, or whether my earlier decision must yield as proposed by the father or in some other way. It was not submitted to me by any party that I should deal with the matter in any other way.

5. The applicant father relies on his amended application filed 28 August 2008 and his affidavit sworn 28 August 2008.  The mother relies on her response filed 5 September 2008 and her affidavit sworn 5 September 2008. 

6. As part of the preparation of this matter for today's trial, a psychiatric assessment of the mother was undertaken by Dr T, and his report is before the court; it is marked exhibit C1.  Other pieces of evidence by way of exhibit are the mother's letter of allegation dated 3 March 2008, which is exhibit F1; and the Victoria Police record, including of the interview of the children at their school on 15 January 2008, which is exhibit F2.  There is a letter from the mother to the State Central Authority dated 14 August 2008, which is exhibit M1. 

7. The mother, father and Dr T gave evidence orally and were each cross‑examined.  I found the opportunity to observe the parties and the expert psychiatrist give their evidence, to be particularly helpful in assessing the evidence and the weight to be given to their evidence. 

8. On 1 September 2008, the boys and the mother were interviewed by the family consultant Mr K.  That interview and consequent assessment was directed to what time the children should spend with their mother whilst she was in Australia.  It is transcribed.  I have regard to that evidence. 

9. In the course of the assessment, Mr K opined that he was most concerned about the circumstances of the mother's complaint of 3 March 2008.  In his view, a psychiatric assessment of the mother was "absolutely essential" in order for the court to be placed in a situation where it could eliminate mental illness as a factor in the mother's recent complaint.

10. The mother's allegations are set out in her letter of 3 March 2008, received by police on 12 March 2008.  For the purpose of the transcript, I read into it here my summary of the abuse allegations.

    ·In a letter dated 3 March 2008 (received by the police on 12 March      2008), the mother writes to the ‘Victoria Police Centre’ at 637        Flinders Street.  The purpose of M’s letter is to inform the police about       sexual abuse she believes has been perpetrated upon her two children,        E (born in April 1999) and F (born in April 1997), by the paternal uncle and the father.  The mother expresses a preference that her details be kept anonymous.

    ·          The letter contains the following specific allegations:

    In Australia in 2002 and in Sweden in 2003 and 2005, the boys told [the mother] and showed [the mother] that they had been sexually abused by [the paternal uncle] and [the father].  […] ([the paternal uncle’s] wife and [the father’s] sister) was “in the same room”.

    [The paternal uncle] may have sex video tapes of the boys at his property.  [The mother] describes where she believes [the paternal uncle] may have hidden the tapes.

    ·          Included with the letter for the police are the following documents:

    a)A 10-page document written by the mother which is described in her letter as “Austr 20 Nov 2002”.  This document principally deals with a holiday the family took in November-December 2002 to Australia and the alleged abuse which was perpetrated by the paternal uncle on the boys during that holiday (aided/abetted by the father).  It also describes the boys’ sexualised/disturbed behaviour subsequent to that holiday.

    b)An account, dated 7 January 2003, of an interview of the mother conducted by the Swedish police (Mr N).  This interview took place after the mother reported her concerns regarding the paternal uncle, father and the holiday to the police on 6 January 2003.  It details the alleged disclosures the boys made to her and their subsequent behaviour.  The document does not appear to be the original police document but a translation provided by the mother.

    c)A report, dated 7 September 2004, allegedly written by Kobra (A NGO associated with ROKS – The National Organization for Women’s Shelters and Young Women’s Shelters in Sweden).  This report relates to a different time period than the earlier two documents:  it relates to allegations of sexual abuse perpetrated by the paternal uncle on the boys when they were living in Australia with the father in 2004.  It is the mother’s account of what the boys allegedly told her in July 2004.  Again, the report is presumably (due to the absence of formatting/headed paper etc.) a translation provided by the mother rather than the original report from Kobra.

    ·          Considering each of these documents in turn:

    a)The Document Titled ‘[the paternal uncle] (10 pages)

    In this document the mother makes numerous serious allegations against the paternal uncle and the father.  These allegations relate to the following periods:

    i.Pre-November 2002:  allegations that the father and paternal uncle abused the boys;

    ii.Between 22 November 2002 and 24 December 2002:  during a holiday in Australia which the mother, the father, the children and the maternal grandparents took, the mother alleges that the paternal uncle sexually abused both F and E and that the father aided and abetted in this.

    iii.Post 2002 holiday:  The mother describes how, upon the family’s return from the holiday, the children displayed sexualised behaviour and appeared disturbed e.g. constant nightmares.  The mother reported her concerns to the police shortly after their return (January 2003 – see next document described below which is the police interview) and the children were examined in March and April 2003 by a doctor.  The mother states that the doctor (in April) had serious concerns and reported the matter to social welfare.  However, the father intercepted the doctor’s report which was sent to their home (and which outlined these concerns) and the woman the matter was reported to at social welfare was the father’s “best friend”.

    The allegations made by the mother can be put in chronological order and amount to the following:

Date	Allegation	Page
May 2001	The paternal uncle and the paternal aunt are on holiday in Sweden. The uncle kisses F quite a few times “on the mouth and [F] sucked [the uncle’s] titts.”	Page 2
June-July 2002	Whilst in Sweden, F has a friend, V, over to play.  V, F and the father play in a “big wardrobe”.  The mother describes the following: “[V] pissed himself and on the carpet, he started to cry.  [The father] then called Australia and asked [the paternal uncle] how to take away piss on the carpet.  [The mother] asked [the father] why he calls Australia.  [The father] answered back and said [the uncle] had big experience in kids pissing on his carpet.”	Page 5
July–September 2002	The father is sitting in front of the computer.  The father shouts at the mother to come and have a look and the mother sees a lot of photos of naked children.  (The uncle’s son (then aged 30), had sent the email from Adelaide.) The computer was from the father’s job at X Company in Sweden. When F stopped working at the company, he returned the computer and hence the mother has not been able to retrieve the photos.	Page 5
September–October 2002	F is playing in his room with a friend and the father.  F’s friend starts to cry and says that he never wants to come back and play. The mother “now understands” that the children were video filmed and the film is probably on the internet.	Page 5
November 2002	The mother, the father, the children and the maternal grandparents travel from Sweden to Australia on holiday (they arrive via Kuala Lumpur on about 22 November 2002). On the second day of this holiday, whilst they are in Adelaide, the uncle takes the boys out with him at 10pm at night to buy ice cream.  F said to his mother afterwards that they went to the uncle’s mother’s house to get crisps and said the house had lots of bedrooms.  When the mother asked if they had seen the bedrooms the boys looked shocked and scared and said “no”. The boys slept a night by themselves at the uncle and his wife’s house at the uncle’s request.  The boys later said to the mother that they slept in the same bed as the uncle and he slept between them the whole night.  The mother says after this night the boys had nightmares and slept badly almost every night. During the month in Australia, the uncle told E that he was not allowed to touch the mother’s hair or suck his thumb.  E was in shock.  F was not allowed to hug or kiss the mother good night because the uncle had decided that he could not. E reported that the uncle sat naked with him in the sitting room and E told his mother that “[the uncle] sounded like, you know mum, like when you blow up a balloon.”  Also, when the uncle did something with E’s bum, E later said the wet thing was “poo-poos” (he used the English word). The mother alleges that the uncle “tongue kissed” E and F in his sitting room and “became strange in his face” when he did so.  “[The uncle’s] eyes turned black”.	Page 1
24 December 2002	F could hardly sit still on the plane from Australia to Malaysia (the return trip home) and begged the whole trip for help.  (The boys had spent the last two days in Australia at the uncle’s house). F later said to the mother:  “I had lots of mosquito bites in front and behind when I was sitting on the plane from Australia”.	Page 6-7
6 January 2003	The mother reports the paternal uncle to the police in Sweden. The mother is subsequently interviewed by the police (see below).	Page 2
14 January 2003	At a Christmas party at their nanny’s house, F said:  “mum can I suck milk from your titts?  I use to suck milk from [the uncle’s] titts”.  F said this in front of 12 people at the table in the kitchen.	Page 6
15 January 2003	The boys “tongue-kissed” the mother for the first time. The boys were playing with their cousin and both took off their trousers and sat on their cousin’s head.	Page 7
16 January 2003	E spoke with the father on the phone and said “lick tomato sauce from the foot”.  The father then hung up. The mother relays the following conversation (whilst she was watching TV): F:  “Mum do I need to tell you everything I did in Australia?” The mother:  “you don’t need to tell me now” F:  “Okey, I went on a roundabout but [the uncle] didn’t kiss me on my bum in front and behind in the sofa in front of the TV in [the uncle’s] sitting room. [The uncle] didn’t dribble in mum bum in front and behind in the sofa in front of the TV. [The uncle] didn’t spit in mum bum in front and behind in the sofa in front of the TV. Let’s see what more did he do (whilst he was thinking) [The uncle] didn’t take on my bum in front and behind in the sofa in front of the TV. [The uncle] didn’t put tomato sauce in my bum in front and behind in the sofa in front of the TV.” F went to bed directly afterwards and said:  “mum I can’t sleep, when I close my eyes my thoughts goes in a racing speed.”	Page 7
18 January 2003	In the morning, E said to the mother:  “mum take out you tongue, please do that”.  The mother touched the mother’s tongue.  E said “[the uncle] does that.”	Page 7
19 January 2003	The mother and the boys had breakfast together. E said to the mother:  “can I get your thumb mum?” The mother:  “no” E then took the mother’s thumb and started to suck it in and out. The mother asked if the uncle does that with his thumb. E said:  “I do that with [the uncle’s] thumb”. E looked shocked. The mother asked E if he had tomato sauce on other parts of his body apart from his foot. E pointed to both his eyes, his nose, the left and right sides of his face and his mouth.  He did not say anything but looked shocked.  He then said that everything he had done, F had done too. The children still have nightmares. F described a nightmare as follows:  “The dream was yellow and white and there was a wolf or no I thin it was more like a ware wolf.  He did this..” He then started to show the mother. The mother describes the following: “He lied down on his back on all four and lifted him selves up and started to move his bum up and down in full speed. [F] said:  The ware wolf was so crazy.  I think it was [the uncle] lying there or he was thinking was it dad?  No, it was [the uncle] I think.”	Page 7
22 January 2003	The mother alleges that she overheard a conversation between “G” and the paternal aunt (the paternal uncle’s wife) during which the aunt told G that “now at last [the father] and [the mother] is going to divorce and our plan has now been fulfilled” i.e. implying that the aunt and the uncle have been attempting to split the mother and father up for 15 years.	Page 3
22 January 2003	The boys slept in the mother’s bed.  They took off their pyjamas and started to play naked in the beds. The mother reports the following: “[F] bent down on all fours and [E] looked in to [F’s] bum.  [F] said please [E] don’t put your thumb into my bum, [F] looked worried, [E] didn’t put his thumb in [F’s] bum. They continued… Now it was [E’s] turn, the same procedure.  [E] stood on all four.  [F] said: do you have any poo there? [E] sat himself with his face looking in to the wall. He stood on his knees Legs wide open He started to move his bum in and out from the wall and turned his head Looked behind himself with his face They continued… They lied down next to each other, on one bed each.  They lied in the bed, with their back towards the bed.  They lifted themselves up with their hands and arms.  They lifted up their bum up in the air and started to move the bump up and down.  They did team work everything they did they did on the same time. They continued… They lied down on all four, face down towards the bed.  They started to move their bum up and down.  [E] came over to [F] and looked in [F’s] bum “see if I’ll find any marbles in here” [F] afterwards went over to [E’s] side of the bed.  [F] said “see if I’ll find any marbles in here”. [The mother] was staying at the door in the bed room and watched them.  The children knew she was there.   Her reaction is that [E] and [F] has done this many times before.  The children new exactly what to do.  It was team work.  They had one bed each to lie in and they did everything on the same time, without stopping.  They did everything very quick. Later [F] said to [the mother]: “mum, why is it like before our visit to Australia, we always went to sleep at 7pm and now we can’t sleep at all”.  They fell asleep at 10pm every night.  “Mum you know why we can’t sleep don’t you”.”	Page 8-9
25 January 2003	F said “mum how do you know everything about us even though we don’t tell you anything.” In the evening he said “mum if [the uncle] wants to touch [E’s] hair and if [E] won’t let him, then something very scary going to happen.” F said:  “I like [the uncle] because he is like a child.  He’s eating spaghetti and tomato sauce with his mouth without a fork.”	Page 6
28 January 2003	The mother describes an incident where E allegedly jumps up in bed, his face towards the bed, stands up on all fours and starts to move his ‘bum’ up and down. He then jumps off the bed and runs away.	Page 3
March 2003	The mother states that the children are examined at the hospital.	Page 2
19 March 2003	The children were in the park and the mother watched them for an hour.  The mother could see that F touched himself (on the ‘bum’) all the time.	Page 6
22 March 2003	E said to the mother “suck here” (but in Swedish in baby words).  He was lying on his back in bed.  E put his willy towards the mother’s mouth and laughed.  He said a few times “dad do so” (in Swedish).	Page 6
23 March 2003	E said to the mother (in Swedish):  “put the finger on the bum, put the finger right inside the bum” (referring to his own bottom).	Page 6
30 March 2003	The mother states that she called the father at his apartment.  The father and the boys were playing cards.  E said to the mother on the phone “I’m going to poo on the cards” and both of the children breathed hard in to the phone.  E said:  “I’m not allowed to miss you mum”.	Page 3
31 March 2003	E said to the mother:  “I am lying down on dad’s head” next to the TV.	Page 3
2 April 2003	E asked his grandmother:  “do you want me to put my willy in your mouth?”	Page 3
4 April 2003	E and F’s bottoms are red.  They are also red further up in the middle “where the line is ending”.  F also has bruises on his bottom and a red scratch on his ear.  The mother thinks that the father has forced F’s head towards the father’s penis	Page 3
5 April 2003	The mother describes the following incident occurring: E said to the mother “mum put your hand here” (on E’s willy).  E showed the mother what to do – press his willy between her two fingers as hard as she could press.  He lied in the bed on his side and put his willy towards the mother’s mouth. He turned and lied on his back.  He took off his trousers more.  He took up his willy towards his navel and said “feel my willy”.  The mother said no.  E touched his willy and then smelled his fingers and laughed and said “smells willy”.  He continued and said “touch here” on his willy.  The mother said no.  E said yes and then showed the mother that she should put her own finger in her mouth. E asked if the mother wanted to put her finger in his bum.  He had his trousers on.  He showed with his finger and pressed his finger straight into his bum. He continued and put himself on all four on her head, in the bed.  He then put his willy towards the mother’s mouth.  He had taken off his trousers.  He then said “It feels like it’s coming blood.”	Page 3-4
7 April 2003	Both boys have nightmares. E lies flat on his back and lifts his ‘bum’ up and down several times and turns to his side and turns his ‘bum’ up towards the pillow.	Page 5
7 April 2003	The mother called a doctor, Ms O, at the hospital in …, Sweden.	Page 5
9 April 2003	The mother says that the children were examined.  The mother alleges that the doctor said “this is very serious” and that she had to report the matter to the social welfare. The mother states that unfortunately the social welfare woman, Ms B, was the father’s “best friend”. The letter from the hospital was sent to the house and the mother alleges that the father (knowing that it was arriving from a conversation he had with the boys) intercepted it and kept the letter.  The mother alleges that she has not been able to get a copy of the letter since.	Page 5

The mother concludes this document (Pages 9-10) by providing the names, addresses and contact numbers for the father, the paternal aunt and uncle and J Peddar (the father’s half brother) and his family and the names and ages of various other relatives.

The mother alleges that J Peddar and his family think that the paternal uncle is a “dangerous person”.  She states that J Peddar used to help the uncle and aunt with the IT for their company but since the uncle baby-sat their daughter (when she was 5 – she is now in her twenties) and said continuously to their daughter during the baby-sitting “mum is bad”, they have had no contact with the paternal uncle.  The mother thinks that J Peddar has seen photos of naked children in the family of the paternal uncle and in their company’s computers.

b)The mother’s Report to Police:  7 January 2003

This document describes an interview of the mother conducted by Mr N of the Swedish Police.  The interview was conducted on 7 January 2003 between 10.15am and 12.05pm.  It was conducted at the mother’s house.  The interview was set up as a result of the mother contacting the police on the evening of 6 January 2003.  The mother agreed to meet the police officer at her house the next day to discuss what had happened.

The Background (page 1)

The mother describes to the police officer the background to the allegations.  She states that:

·          The mother and the father have been married for 10 years.

·          They have lived in Sweden for almost 4 years.

·          Their sons are F (almost 6) and E (almost 4).

·          The father comes from Australia. 

·They have visited Australia a few times during the years and have stayed in the father’s home town of Adelaide.  On these visits they have had a lot of contact with the father’s sister, the paternal aunt, and her husband, the paternal uncle. 

·The paternal aunt and uncle have also visited Sweden a few times.  The last time was in May 2001.

·The mother has, for a long time (for at least the last year) suspected the paternal uncle of sexually abusing her children. 

·After their last visit to Australia in December 2002, her suspicions were confirmed by her youngest son, E.

The mother describes how the family rented an apartment in Adelaide for their 2002 holiday.  However, the father and the children stayed with the paternal aunt and uncle on quite a few occasions (when the mother and her parents stayed at the rented apartment).

Family Situation (page 2)

The mother describes to the police officer that “she is and has been happily married” to the father.  She states: “[The father] is a good father to both children and her sons love their dad.  [The mother] has never been suspicious about [the father].”

However, she goes on to describe that the father “changed personality” when around the paternal uncle, particularly during the visit to Australia in 2002.  He became “closed up” and it was difficult to communicate with him.

The mother stated that they returned from holiday on New Year’s Eve 2002.  On Thursday, 2^nd January, the father stayed at a hotel in Sweden.  He stated to the mother:  “We’re finished now.  We have to follow our plan, the rest of your life is going to be like hell.”  

The father’s Relationship with the paternal uncle

The mother describes how the paternal uncle and the father were neighbours growing up and that they had a close relationship, particularly after the father’s half-sister married the paternal uncle.  The mother states that the father listens to the uncle and the uncle controls the father.

The visit to Australia in December 2002

The mother describes travelling to Australia at the end of November 2002 and how after a few days the boys ended up staying on many occasions at the uncle and aunt’s house with the father.

The mother describes how when she went to collect the children on their 5^th or 6^th day at the uncle’s house, the following occurred:

“When she arrived at their house [the uncle] was sitting in the sitting room.  When [the mother] came in to the sitting room, then [the uncle] lifted up on of her children on his knee.  She remembered it was [E].  He put [E] on his knee, breast against his breast and “tongue kissed” [E] for a while.  [The mother] recalls about 20-30 seconds.  [The uncle] sat at that time in the sofa (he sat in the arm chair) and lifted up [E] on his lap.  After [E] had jumped down he then told [F] to come and sit, and he did the same procedure, he did with [F].  [The mother] started to wonder, she got a chock [sic] afterwards, when she saw how [the uncle] had kisses the children good bye with his tongue.  She could very well see how he stretched out his tongue against the children’s mouth.  After what she had seen [the uncle] do with [F] and [E], she left the room and the house to get some fresh air.  She went to sit outside.  After a while her husband [the father] came and looked surprised and asked her while she looked so pale.  [The mother] didn’t answer and said nothing of what she had seen.  She saw when [the uncle] gave her sons an Australian 10-dollar note just after he had “tongue kissed” them.”

The mother goes on to describe the following events which occurred after the holiday.

“One morning when [the mother] lied on her back in the bed, [E] went to sit on her head/month and started to jump with his bum pressed against [the mother’s] moth.  On the same time [E] was jumping he said in the English language “I’m gonna poo on you”, [the mother] got at that time frightened and asked [E] what he meant with that.  [F] was in the same room and reacted directly and screamed: ‘No, no, we are not allowed to say anything’ and he tried to get his little brother, [E] away from [the mother].” (Page 3)

“One time when [the mother] was lying down on her stomach in the bed, [E] then came to lie opposite her on his back.  [E] crossed his legs over [the mother’s] head and dragged [the mother] down towards his penis.  [The mother] asked [E]: “who does like this?” [E] answered [the uncle].  [E] still had his legs crossed with a grip over her head and said “It felt as bit as a house and it was wet”.  [The mother] asked [E] if [the uncle] put his moth against the penis, She asked by pointing on [E’s] willy and her moth.  [E] answered yes.  At that moment [E] continued to move [the mother] and put her on her back in the bed.  [E] again put his bum against [the mother’s] head.  He put his bum straight in her moth and said in the English language “I’m gonna poo on you”, translated…and then he again said that it was big like a house and wet and he was naked.  [The mother] the asked if [the uncle] had his clothes on.  [E] answered [the uncle] had shorts and a jumper.  He also said: “it came milk on [the uncle] jumped and shorts”.  In addition he said “mum, mum I screamed, I screamed” [The mother] asked where they were then that happened.  [E] answered it was in the sitting room at [the uncle’s] house.  [E] also told [the mother] that [the paternal aunt], [the uncle’s] wife, came in to the sitting room afterwards and said “it’s enough”…Afterwards [the aunt] helped [E] with his clothes.  [E] was totally naked, had no clothes on.  [E’s] dad [the father] also came running in to the sitting room and took [E] to another room.  [E] hasn’t said anything more about what happened that time.  While [E] (age three) showed his mother what he had been exposed to, then his big brother [F] (age five) sat with a magazine against his eyes and cried.  [The mother] interpreted her son’s story, that [the uncle] did oral sex with [E], both with penis and bum. [The mother] don’t know if [E’s] older brother [F] was in the same room when that happened in [the uncle’s] home.” (Page 3-4)

“During the cross examination, [the mother] remembered one thing.  Her older son [F] five years old.  [The mother] observed that [F] always non-stop walked around and scratched his willy and bum after the nights he slept over at [the aunt and uncle’s] place.  (January-February 2003 he scratched his willy and his bum all the time).  [The mother] asked [F] why he always scratched himself in the bum and [F] answered back he got bitten by mosquitoes.” (Page 4)

“[The mother] has noticed, all the time when [E] has tried to speak to her about what happened, then [F] always says they are not allowed to tell her anything.  [The mother] has asked [F] several times what has happened, without an answer.  [F’s] answer is always a short no.” (page 4)

“[The mother] has now got her earlier suspicions confirmed, after what happened on the trip to Australia.  She has now started to think back on the times [the uncle and aunt] visited them at home in […], Sweden.  From [the uncle and aunt’s] last one week visit in May 2001.  It always happened, every day, [the uncle] took [F] in to the guest room and closed the door.  [The uncle] was in the room with [F] and closed the door to the guest room in the house [in] Sweden.  They never looked the door.  [The mother] could notice that [F] always behaved strange after the visits in the room with [the uncle].  Minutes after the visit in the room [F] always looked very strange.  [The mother] can recall after those room visits [F] always scratched his willy and she asked [F] if he needed to go to the toilet.  [F] never answered the question.” (page 4)

“During the visit at [the mother’s] with family, [the uncle] spoke about his love to children, specially boys at the age of three, to four years old.  [The uncle] said that during their visit in May 2001.  What [the uncle] at that time said, you could put together with all the other things.” (page 4)

“[The mother] recall, during the cross examination: [E] had asked her a very strange question while they were on holiday in Australia. “why is [the uncle] and dad lying naked in the sitting room?” (they were lying naked on top of each other, [E] said).” (page 4)

“The person who did the cross-examination asked [the mother] if that could be true as [E] said, that [the uncle] and [E’s] dad had lied on the floor in the sitting room naked, and why?  [The mother] had no answer to that at the cross examination.  She said she has her suspicion against [the uncle], that he also sexual abused [the father] during his up growing in Australia and because of that has got power and influence over [the father].

That could be the reason why [the father] after they came back to Sweden from Australia, declared he wanted to divorce [the mother] and start a new life.  [The mother] thinks that [the father] has started to realise what has happened and [the father] is because of that scared to lose the contact with [the uncle] forever.” (page 5)

“The days (two days) after the came back to Sweden after their trip to Australia, [the father] and [the uncle] had contact half an hour by the phone every day.” (page 5)

“[The mother] said, she has noticed her sons don’t appreciate ice cream and lollies as much as they did before.  She is scared [the uncle] has used that as a bribe for him to make the boys do as he want.” (page 5)

c)Report from Kobra (7 September 2004)

This document relays what the children have allegedly told the mother (in July 2004) regarding their living conditions in Australia.  It therefore relates to a different time period to the previous two documents and alleges that the abuse of the boys is ongoing.

The mother tells the author of the report that the children have told her that they and the father see a “great deal” of the uncle and the following events have occurred:

“He locks the children in the bathroom and takes their clothes off.  They do things everywhere, on the toilet, on the washbasin, in the Jacuzzi without water, the brother-in-law lies on the flor, face down and face up.  The children say that they must ha their tongue straight into his bottom ‘you know between the stretch in the bottom’.”

“He locks the childrens heads between his thighs and moves his lower part up and down.  They can’t get away.  The children cries, screams as high as they can and [the paternal aunt], his wife usually knocks on the door ‘its enough!’

[E] must keep the yellow sludge in his hand.  [F] said “mother it is yellow now”.

“The brother-in-law gives them a tablet each day which they are forced to take after school, they get dizzy and the day after they are usually sleepy, sometimes they have headache.  [F] who is seven are afraid that the tablet is dangerous.”

“The brother-in-law sprays ketchup around the pool (the children are terrified when they tell this).  They must be in the pool naked with the brother-in-law, move under the water to his penis.  When they try to go up to the surface they get pushed down again.  [F] has said that he has been close to drowning several times but that he has made it.  It’s worse for [E] who is 5 he says.  [E] has really been close to drowning several times.  Around the pool there shall be blood and the children shall be monsters the brother-in-law says.”

“The brother-in-law has also made death threats, saying that they must die within two years.”

“There is a strong emotional bond between the father and the brother-in-law, for further information on this please see that attached report from the mother to the police in Sweden.  The mother thinks that the father is fully aware of what the children are exposed to.”

The report states that there have been two reports to the Swedish police regarding the allegations.  In August 2004, a police officer, …, stated (via telephone) that the police authorities in Australia had been contacted by fax and letter but that the uncle “probably hasn’t been interrogated”.

The report concludes:

“The mother has got in touch with Kobra a NGO who is associated with ROKS (The National Organization for Women’s Shelters and Young Women’s Shelters in Sweden).  The council of Kobra has looked into all the documents for example, the police investigations, notes on the detailed narratives from the children and from that we see the necessity of action.” (page 2)

1. The mother sent a letter to the State Central Authority dated 14 August 2008.  That is exhibit M1.  In that letter she said inter alia, and I quote:

   “I found it strange my children, [E] and [F], still lives with [the father].  The children must visit [the father’s] brother‑in‑law, [the paternal uncle], or he comes to visit the children.  [The paternal uncle] earlier suspected for serious sexual abuse on both children, and [the father] for sexual abuse of the children”. 

2. In viva voce evidence, the mother said that her surprise attached to the original adverse custody finding in Sweden; that was, that the father had been successful in securing orders that the children live with him and not her.  I do not accept that evidence; I attribute the surprise expressed in the letter of 14 August 2008 to pertain to the sexual abuse allegations and to constitute at least an affirmation of her previous allegations.

3. In assessing the complaint made by the mother to Victoria Police, I have taken into account the obvious language barrier.  The fact that English is not the mother's first language, cannot assist the mother's description and depiction of alleged events.  However, all of the documents sent in support of the letter are documents for which the mother gave some if not all of the primary information, and which were then translated by the mother.  The mother's difficulty with the English language is likely, I am satisfied, to put her at some disadvantage when describing matters.  However, it cannot be wholly responsible for the bizarre nature of some of the allegations which are included in the material sent to Victoria Police.

4. The mother gave evidence.  As I have indicated, she struggles with the language, but it appeared to me not to the point of requiring an interpreter.  Ultimately, I regard it not as an assessment for me to make in this second round of proceedings.  The mother was always represented by competent counsel.  I observe the mother's demeanour to be reasonably strong.  She did not appear to give evidence dishonestly, but was unable in some instances to explain some of her actions; for instance, why she had written the letter to Victoria Police on 3 March 2008. 

5. In summary, her evidence was that some time in March, on a date that she could not recall, she had googled the names of the children on the internet and received a home page for a child pornography site.  She testified that she contacted the Department of Human Services in Victoria and was told that nearly anybody's name could lead to a child pornography site.  Her evidence was that she accepted that advice and then thought little more of the site. 

6. She also testified that she then wrote out a number of translations, which were the enclosures to her letter to Victoria Police.  It took her not less than nine hours to do so, which time ended in the early morning.  Then she hurriedly wrote the covering letter of introduction; that took about another hour.  It is of concern to me that in that context, the mother was unable to say what motivated her to send that correspondence.

7. The other aspect was that she is not going to make any further allegations of sexual abuse which concern the children.  She said repeatedly that she wishes to move past those allegations; that she does not believe those allegations are leading anywhere.  Her evidence was that she realises it is now pointless to make any further reports.  When pressed, the mother said that she sent the letter to Victoria Police hoping that the police would take her allegations seriously.  She wanted the children not to have to live in the father's environment; she wanted the children to live with her.

8. The mother's evidence was that the allegations which she first made in 2003 and thereafter remained as unresolved in her mind in March 2008, as they were in 2003 and 2004 in Sweden.  The mother demonstrated little insight into the impact of her earlier allegations on the decision of the Swedish court.  She referred to the Swedish determination being flawed because it was based on incorrect or inaccurate evidence.  She was, however, quite resolute in her assertion that she will not make any further reports, and - as will become apparent - my assessment of her evidence is that what she said was genuine.

9. For this purpose, I do not consider that it matters that her resolve not to make any further reports is based in all probability on a fear that if she does so she will lose any meaningful contact with the children, than it would otherwise be based on the fact that she dearly wants the children to live with her and to parent them on an ongoing basis.  It is not realistic nor fair or proper for me to be critical of the mother for wanting to parent the children and spend as much time with them as possible.  I do not consider that she has to relinquish her heart-felt desire to do so in order to spend time with them in Sweden.  This is a case more about the wife's behaviour and how that behaviour impacts on the children, than it is about what she truly feels or her inner thoughts. 

10. The father gave evidence and was cross‑examined.  He conceded that for a considerable period the mother has not raised the allegations of sexual abuse of the children in any way; that is, in the face‑to‑face time she has spent with the children in Sweden or the very limited time she had in Australia, or by the twice-weekly or daily telephone calls which she places to the children.  He conceded that the allegations that she raises to authorities could have been raised whether she has time in Australia or in Sweden.  However, he doesn't consider that the mother has the capacity or the desire not to raise allegations.

11. In the context of the mother’s preparedness to abide orders of the Court, he points to a very recent visit where the mother did not deliver the children at the appointed time or at the appointed changeover place.  Having heard all of the evidence, I am unable to come to the conclusion that that was anything other than a mistake on the mother's part.  It was possibly a mistake based on poor organisation, but it was not a contravention of orders which leads me to conclude that the mother has a propensity not to abide orders of the court.

1. There was considerable cross‑examination of the father around his compliance with orders of the court:  both the orders in Sweden and the orders which I made on 30 June 2008.  None of that cross‑examination is of particular assistance to me, because his motivations are not in issue.  The father said that he would be prepared to pay for airfares and accommodation for the mother's time with the children if it were to be in Australia, up to a contribution of $3500, and a refund of any child support paid on a yearly basis. 

2. I accept the father's evidence of his concerns.  I accept that his concerns are genuine.  I do not find that he is exaggerating his concerns to bring about the result of the children not going to Sweden. 

3. The mother seeks an extra order, that the children be delivered to her at 11 am at the airport tomorrow for the purpose of boarding a plane to take them back to Sweden.  Whilst opposing the fact that the mother have time with the boys, he said that he foresaw no difficulty in complying with that order if that order was made. 

4. The psychiatrist gave evidence and was cross‑examined.  Dr T’s qualifications are set out as an addendum to his report.  His qualifications weren't in issue.  The father cross‑examined him about the amount of time he had been able to spend with the mother to make his assessment.  That was approximately one hour.  The doctor fairly, in my view, conceded that more time would perhaps have been better; but he did not indicate that he was unable to make a sound assessment.

5. I note and have regard to the evidence of the psychiatrist that he was struck by the mother's distress, and that it was apparent that he felt considerable sympathy for the mother's position.  That of course is a different focus than the court is required to have.  Nonetheless, the doctor's clinical judgment was that the mother was terrified that she would lose the children, and in that respect recognizes that there is no point in pursuing complaints or allegations of sexual abuse. 

6. Dr T confirmed his opinion that the mother did not present as suffering from any mental illness.  He saw no evidence indicating a personality disorder or psychological disturbance.  He found her distress to be genuine.  He did not form the view that she was vindictive or trying to cause difficulty for the father.  He did comment that, having observed the mother give evidence in court this morning, he was struck by the fact that she could not explain why she had written the letter to Victoria Police on 3 March 2008, but said on at least two occasions that that may have had something to do with the fact that the mother was being asked to respond in the formal setting of the court. Apropos of that, the psychiatrist agreed to speak with the mother briefly outside court.  All of the parties were supportive of that idea, and the psychiatrist then returned to give some evidence.  The reason that I permitted the psychiatrist a further opportunity was that on his own evidence he had not asked the mother these questions at the time of their interview and they were matters to which his report should have been addressed. 

7. Dr T’s further evidence was that the mother had told him that in March of 2008 she was very worried that she would never see her children again; that she had expected to see the chilren in Sweden in December 2007 to January 2008, but that had been denied her; that by March 2008 she feared that she would not be seeing them for the scheduled time in June-July 2008; that in March 2008 she was not convinced that the police in Australia had investigated thoroughly enough the allegations of sexual abuse; and that she googled the names of the children whilst still harbouring the belief that her allegations were correct.  She said to the psychiatrist that she was not aware that the police would come to school in uniform, but thought that there may be a plainclothes visit to the father's home or elsewhere. 

8. Dr T gave evidence that his impression was that the mother had reached a conclusion that further questioning of the children (by the police) would not be as damaging as the possibility of sexual abuse continuing and going undetected.  The psychiatrist reported that his impression was that the mother now accepted the findings of the Victoria Police in 2008 to the effect that the children did not make any statements indicative of sexual abuse.  I have difficulty in accepting the fact that the mother may have reached the conclusion that there was no sexual abuse. However, I am accepting of the fact that she accepts that pursuing the issue further may curtail her entitlement to be involved in the lives of the children.

9. I have regard to the psychiatrist's evidence of his conversation with the mother.  I do not accord it the weight that I would have accorded it, had the mother not been in court to hear the discussions on which the further interview was based. Had the mother been paying attention, she would easily have known what further statements to make to the psychiatrist to advance her case.  I give the evidence some weight, but not the weight that I would have given it had the mother been able to make those statements to the psychiatrist when she was assessed on 4 September 2008. 

10. The psychiatrist did give evidence that in his assessment, having regard to the time lines between the conclusion of the hearing and the delivery of judgment, that the mother was under an enormous amount of stress in March 2008.  He still did not think that the mother was suffering from any delusional disorder and he opined that in writing the letter, the mother was employing her only coping mechanism to deal with a situation in which she thought that she would not see her children again.  There is a consistency to that evidence. I accept that evidence.

11. I also accept the psychiatrist's evidence to the effect that the mother is unlikely to react in the same way to the stress of having to part with the children at the conclusion of the time that she is entitled to have with them in Sweden this month.

12. These proceedings are brought under Part VII of the Act.  Pursuant to section 60CA, in deciding whether to make or vary my orders, I must regard the best interests of the children as the paramount consideration.  It is not a matter of me doing fairness to the father or to the mother.  Where necessary, what is right for the parents or either of them has to yield to the interests of the children.  The issue is, how does the new evidence which is before the court and detailed above impact on my previous findings?  For that purpose, I assess the new evidence as if it had been before me at the time that I made my determination on 30 June 2008.  Again, I have careful regard to the primary consideration of protecting the children from physical or psychological harm, and to the relevant additional considerations.

13. The views of the children remain unchanged.  Mr K reported the children as looking forward to seeing their extended family in Sweden. 

14. It is to the father's credit that he has been able to insulate the children from his anxieties about the mother spending time with the boys in Sweden.  I assess that as having been a fairly difficult task so it is admirable that he has pulled it off. 

15. The need to insulate the children from the mother's allegations of sexual abuse is as vital now as it was when the proceedings were before the courts in Sweden in 2004.  The issue is whether I can confidently predict that the mother will be good to her word and not raise the allegations with the children, to them or about them to the authorities. 

16. The father was cross‑examined about his willingness to encourage a close and continuing relationship between the children and the mother.  Whilst there were some respects in which he was found not to have facilitated what time there could have been, I assess those as being outweighed by the fact that he has been able to insulate the children from his anxieties about them spending time with the mother in Sweden. 

17. I need to consider the capacity of the parents to provide for the needs of the children, including emotional and intellectual needs.  None of the new evidence adduced before me leads me to conclude that the mother will not be able to care for the boys adequately for a month. 

18. Having looked at my previous findings in light of the new evidence, I do not consider that I need to adjust the previous orders over and above the restraints which the wife proposes.  The restraints are quite significant.  Non-compliance with those restraints would have the effect of the mother's entitlement to spend time with the children ceasing immediately.  In terms of being in Sweden, the children would have to be returned to Australia forthwith because it would be contrary to the 1980 Hague Convention for the mother to retain them outside their place of habitual residence (which is Australia). 

19. The new evidence of the mother’s complaint of abuse and the psychiatric evidence does not persuade me that it is now necessary for me to impose any bond or require any payment of money before the mother can take the children out of Australia. 

20. In summary, I accept the assurances that are now given by the mother that she will not expose the children directly or indirectly to allegations of sexual abuse of them during the limited time that she will spend with the boys or otherwise.  I rely significantly on the psychiatrist's evidence.  I appreciate that there are risks. This has been a difficult matter to determine.  In making the determination I have had regard to the evidence, my observations and impressions of the parties.  I bring to bear on those the elements of judgment, discretion and intuition which it is proper to have regard. This case, more so than most, brings into play the intuitive aspect of decision making. As with many cases, there is a large degree of prediction. 

21. I conclude that the risk to the children is not of sufficient magnitude to require me to alter my earlier orders.  I would make those orders again today.  Put another way, the risk to the children’s wellbeing does not in my determination outweigh the benefit to the children of spending time with their mother in Sweden.  I will dismiss the father's application. 

22. The order requesting the appointment of an independent children's lawyer is discharged. 

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  25 October 2008