Polson and Polson (No 2)
[2017] FamCA 530
•21 July 2017
FAMILY COURT OF AUSTRALIA
| POLSON & POLSON (NO 2) | [2017] FamCA 530 |
| FAMILY LAW – CHILD ABUSE – where there are allegations the father sexually abused the parties’ daughter and may have abused their oldest son – where it is agreed that the children will continue to live primarily with the mother – whether there is an unacceptable risk to the children – whether the father’s time with the children should be supervised –whether the parties have the capacity to make decisions jointly. |
| Family Law Act 1975 (Cth) Evidence Act 1995 (Cth) |
| McCall & Clark (2009) FLC 93-405 M v M (1988) 166 CLR 69 R & C (1993) FamCA 62 W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 |
| APPLICANT: | Ms Polson |
| RESPONDENT: | Mr Polson |
| INDEPENDENT CHILDREN’S LAWYER: | Sba (Shila Batenburg & Associates) Lawyers |
| FILE NUMBER: | BRC | 3300 | of | 2014 |
| DATE DELIVERED: | 21 July 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 13, 14 & 15 February 2017 27 March 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Cullen of Counsel on 13, 14 & 15 February 2017 Mr Bunning of Counsel on 27 March 2017 and 29, 30 & 31 May 2017 and 1 & 2 June 2017 |
| SOLICITOR FOR THE APPLICANT: | Pippa Colman & Associates on 13, 14 & 15 February 2017 SJP Law on 27 March 2017 and 29, 30 & 31 May 2017 and 1 & 2 June 2017 |
| APPLICANT: | Later in person on 15 February 2017 |
| COUNSEL FOR THE RESPONDENT: | Mr Page of Queen’s Counsel and Mr Taylor of Counsel on 13, 14 & 15 February 2017 Mr Page of Queen’s Counsel on 27 March 2017 and |
| SOLICITOR FOR THE RESPONDENT: | Ms Smith, PD Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Sweetapple of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Batenburg, Sba (Shila Batenburg & Associates) Lawyers |
Orders
IT IS ORDERED BY WAY OF FINAL ORDER THAT
All previous orders are discharged.
IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT
The children, D born … 2009, B Polson born … 2011 and E born … 2013, live with the mother.
IT IS ORDERED BY WAY OF FINAL ORDER THAT
The father and mother have equal shared parental responsibility for the major long term issues for the children with such issues to include but not be limited to:
(a) the children’s education;
(b) the children’s religious and cultural upbringing; and
(c) the children’s health.
Each party has responsibility for daily decisions about the day to day care, welfare and development of the children whilst they are in his or her care.
The children shall spend time with the father at all times as may be agreed between the parties and failing agreement as follows:
(a)commencing on the first weekend on which D and E would have been due to spend time with their father pursuant to the Order made 30 October 2015: for two (2) hours at F Contact Centre with D, B and E, after which B shall be returned to her mother and D and E shall continue to spend time with the father for a further three (3) hours; and
a)on two (2) consecutive days in August 2017:
i)for two (2) hours at F Contact Centre with D, B and E: after which B shall be returned to her mother and D and E shall continue to spend time with their father for a further five (5) hours
ii)for two (2) hours at F Contact Centre with D, B and E: after which B shall be returned to her mother and D and E shall continue to spend time with their father for a further five (5) hours.
b)on two (2) consecutive days in September 2017:
i)for two (2) hours at F Contact Centre with D, B and E: after which B shall be returned to her mother and D and E shall continue to spend time with their father for a further seven (7) hours;
ii)for two (2) hours at F Contact Centre with D, B and E: after which B shall be returned to her mother and D and E shall continue to spend time with their father for a further seven (7) hours.
c)on two (2) consecutive days in October 2017:
i)for two (2) hours at F Contact Centre with D, B and E: after which B shall be returned to her mother and D and E shall continue to spend time with their father for a further seven (7) hours; and
ii)with D, B and E: from 9.00 am until noon, after which B shall be returned to her mother and D and E shall continue to spend time with their father until 5.00 pm.
d)on two (2) consecutive days in November 2017:
i)with D, B and E: from 9.00 am until 2.00 pm, after which B shall be returned to her mother and D and E shall continue to spend time with their father until 5.00 pm
ii)with D, B and E: from 9.00 am until 2.00 pm, after which B shall be returned to her mother and D and E shall continue to spend time with their father until 5.00 pm;
e)on one weekend in December 2017:
i)with D, B and E: from 9.00 am until 5.00 pm on Saturday; and
ii)with D, B and E: from 9.00 am until 5.00 pm on Sunday.
f)on one weekend in January 2018:
i)with D, B and E: from 9.00 am Saturday until 3.00 pm Sunday.
g)on one weekend in February 2018:
i)with D, B and E: 4.00 pm Friday until 4.00 pm Sunday.
h)on one weekend in March 2018:
i)with D, B and E: 4.00 pm Friday until 4.00 pm Sunday.
i)from 9.00 am Saturday to 4.00 pm the following Tuesday during the Easter 2018 school holiday periods; and, thereafter
j)commencing in Term 2 of 2018:
i)on one weekend each school term: from 3.00 pm Friday until the commencement of school on Monday; and
ii)for four consecutive nights in the first half of the June/July 2018 school holiday period, with the time to commence at noon on the first day and to end at 4.00 pm on the last day;
iii)for four consecutive nights in the first half of the September/October 2018 school holiday period, with the time to commence at noon on the first day and to end at 4.00 pm on the last day;
iv)for five consecutive nights in the first half of the December 2018/January 2019 school holiday period, with the time to commence at noon on the first day and to end at 4.00 pm on the last day;
v)for five consecutive nights in the second half of the December 2018/January 2019 school holiday period, with the time to commence at noon on the first day and to end at 4.00 pm on the last day;
k)commencing in 2019:
i)on one weekend each school term : from 3.00 pm Friday until the commencement of school on Monday; and
ii)for half of each gazetted school holiday period (being the first half in even numbered years and the second half in odd numbered years).
Provided that the father is not permitted to nominate the Mother’s Day weekend or the weekend on which the mother’s birthday occurs, the father shall be permitted to nominate the dates on which the children’s time with him during the school terms will take place.
The father must provide the mother with no less than 28 days’ notice in writing of the dates on which the children’s time with him during the school terms will take place.
Until the end of October 2017, changeovers at the commencement of the children’s time with the father will occur at F Contact Centre (with the father to bear the costs of the same) and changeovers at the conclusion of the children’s time with the father shall occur at a place nominated by the father at the G Shopping Centre.
From 1 November 2017:
(a)in the event that the children’s time with the father commences or concludes on a school day, then change over shall occur via the children’s schools, with the father to collect the children from school at the commencement of their time with him and return the children to school at the conclusion of their time with him; and
(b)changeovers during school holiday periods or days which are not school days shall occur at a place nominated by the father at the G Shopping Centre, with the mother to deliver the children to the father at the nominated a place at the commencement of their time with him and the father to deliver the children to the mother at the nominated place at the conclusion of their time with him.
Each party shall communicate with the children, when they are not in their care, by telephone/Skype or Facetime at all reasonable times and not less than each Wednesday between 6.00 pm and 6.30 pm and in order to facilitate this:
(a)the parent in whose care the children are at that time shall make the children available to receive the telephone call; and
(b)the parent with whom the children are not spending time shall initiate the telephone call.
Each party shall be at liberty to communicate with the children, when they are not in their care, by telephone/Skype or Facetime on each of the children’s birthdays, each parent’s birthday, Good Friday and Easter Monday and Christmas Day between 6.00 pm and 6.30 pm and in order to facilitate this:
(a)the parent in whose care the children are at that time shall make the children available to receive the telephone call; and
(b)the parent with whom the children are not spending time shall initiate the telephone call.
In order to facilitate telephone communication referred to in Clauses (10) and (11) of this Order, each parent shall:
(a) ensure that the children are available to receive the telephone call; and
(b)arrange for the children to telephone the calling parent on the following night if, for any unforeseen circumstance, the children miss the telephone call from that parent; and
(c) ensure that the children have privacy during the communication.
The children shall be at liberty to call either parent at all reasonable times and the parent with whom they are at the time shall assist them to make any calls they reasonably requests.
Each party shall be entitled to have another person attend changeover on their behalf, provided that such person is known to the children.
Neither parent shall enrol the children in any activity which occurs during time they are living or spending time with the other parent without first obtaining the written consent of that parent.
Neither parent denigrate the other, or their family to, or in front of, or within the hearing of, the children and each shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the children and, failing their compliance with such a direction, shall remove the children from that environment immediately.
Save in a therapeutic setting, neither parent shall discuss the allegations made herein with the children.
During the time the children are with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent; and
(b) speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of the children; and
(d)use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
Each parent attend at and complete a Parenting Orders Programme forthwith and, unless otherwise agreed in writing, provide the other with proof of such attendance and completion by no later than by no later than 21 March 2018.
Each party keep the other informed of the children’s doctors, health care and other treatment providers and, by this Order, those practitioners are authorised to provide each parent with such information as they are lawfully able to provide about the children.
Each party inform the other parent as soon as reasonably practicable of any medical emergency, significant health issue or significant illness suffered by the children and, by this Order, any treating medical practitioner is hereby authorised to provide each parent with such information as they are lawfully able to provide about the children.
Each party keep the other informed of any day-care, school, educational facility or extra-curricular activity provider at which the children attend and, by this Order, such providers are authorised to provide each parent with such information as they are lawfully able to provide about the children, their attendance and their progress.
If there is a cost associated with the provision of any information or documents by the children’s doctors, health care and other treatment providers or day-care, school, educational facility or extra-curricular activity provider, that expense shall be borne by the parent requesting the information.
Each party shall ensure that the other is nominated as an emergency contact with any school, medical practitioner or extra-curricular service provider upon which the children attend.
Subject to the conditions imposed by the children’s schools, this Order authorises both parents to attend school functions to which parents are ordinarily invited: including, but not limited to, carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
Each parent keep the other parent informed at all times of their address, contact telephone number and email address and:
(a)notify the other as to any change in those details as soon as practicable after such change; and
(b)notify the other parent at least 30 days prior to relocating their residence beyond a 50 kilometre radius from where they currently reside; and
(c)notify the other of the details of any change of address within seven days of such change occurring.
Each parent has liberty to provide a copy of the Order made on 21 July 2017 and the Reasons for Judgment delivered 21 July 2017 to any school at which and the medical practitioner/s upon whom the children attend and to the Department of Communities, Child Safety and Disability Services.
The Independent Children’s Lawyer is discharged.
All outstanding Applications are dismissed.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Polson & Polson (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 3300 of 2014
| Ms Polson |
Applicant
And
| Mr Polson |
Respondent
And
| The Independent Children’s Lawyer |
CORRIGENDUM: Errors of paragraph numbering and the certification clause of these Reasons have been corrected in the manner indicated.
REASONS FOR JUDGMENT
After hearing the evidence given by Mr H, who authored the two Family Reports prepared in this matter, the father’s legal representatives told the Court the father no longer sought orders for nearly eight-year-old D[1], six-year-old B[2] and nearly four-year-old E[3] to live primarily with him.
[1] Born in 2009.
[2] Born in 2011.
[3] Born in 2013 and who is also known as ‘E’ in his mother’s household.
Rather, the father joined with, and adopted the overall tenor of, the submissions ultimately made by Counsel for the Independent Children’s Lawyer to the effect that the children’s best interests are met by them continuing to live primarily with their mother – as they always have done – and spending unsupervised time with him for as much time as can practically occur given that they, their mother, her partner and their child live on Region N and he and his partner live in JJ Town.
The decision by the father to adopt this position renders it unnecessary to discuss much of the evidence given by various witnesses where the same was relevant to the issue of whether it is in the children’s best interests to live predominantly with their father. Of course, to the extent that evidence is relevant to those disputed issues which remain[4], it has been the focus of consideration, even if not specifically mentioned in that which follows.
[4]And which are, themselves, relevant to the determination of the terms of the parenting orders which are in the children’s best interests.
By way of broad summary, the Independent Children’s Lawyer submitted that the father should spend time with the children as follows:
a)with D and E only: from 9.00 am to 3.00 pm on two consecutive days in July 2017; and thereafter
b)with all children: from 9.00 am to 4.00 pm on both Saturday and Sunday in one weekend in each of July 2017 and August 2017; and, thereafter
c)from 9.00 am Saturday to 4.00 pm the following Tuesday during the September/October 2017 school holiday periods; and, thereafter
d)from 4.00 pm Friday until 4.00 pm Sunday on one weekend in each of October 2017 and November 2017; and, thereafter
e)from 9.00 am Saturday to 9.00 am the following Saturday (that is for one week) on two occasions during the Christmas 2017 school holidays, with one week to occur in the first half of the school holidays and one week to occur in the second half of the school holidays; and thereafter
f)commencing in 2018:
i)on one weekend each school term: from 3.00 pm Friday until the commencement of school on Monday; and
i)for half of each gazetted school holiday period (being the first half in even numbered years and the second half in odd numbered years).
The Independent Children’s Lawyer also submitted that, provided that he not be permitted to nominate the Mother’s Day weekend or the weekend on which the mother’s birthday occurs, the father be permitted to nominate the dates on which the children’s time with him during the school terms take place. She proposed that changeovers occur at F Contact Centre (located at J Town) for the remainder of 2017 (with the costs of the same to be shared equally between the parents) and that, from 2018, changeovers occur at school or, when the children’s time with their father begins or ends on a non-school day, at a place nominated by the father at the G Shopping Centre. She also proposed that the children be able to communicate with each of their parents by telephone/ Skype/Facetime on one occasion each week (when not in that parent’s physical care) and on other significant days, such as birthdays and those at Christmas time.
Counsel for the Independent Children’s Lawyer also submitted that it is in the children’s best interests for the Court to make an order pursuant to s 65L of the Family Law Act 1975 (Cth), requiring that a Family Consultant in the Brisbane Registry explain the orders to the children and introduce B to the father and his partner.
The mother’s final position was as is particularised in her Application[5]: namely, that all of the children spend supervised time with their father for two hours on one weekend per month at F Contact Centre and that she be accorded sole parental responsibility for the children. Her proposal that all of the children should spend supervised time with their father is made despite the fact that, when she spoke with Mr H on 14 July 2016, she explained that she only supported him having supervised time and only with D.[6]
[5] Initiating Application filed 13 September 2016.
[6] Affidavit of Mr H, filed 5 August 2016, paragraph 3.
However, these terms were not what she had agreed to on 13 February 2017, the first day of the trial.
After spending that day engaged in negotiations, both parents signed a Minute of Order[7] , the terms of which included that the children live primarily with their mother and spend unsupervised time with their father. The parenting regime contained within the Minute, if made by way of order and implemented, would have meant (albeit following the provision to the children of counselling support) that all of the children spend unsupervised time with their father for one weekend each term (from 4.00pm Friday until 4.00pm Sunday) and for half of each of the school holiday periods, including half of the six-week-long end of 2017 school holiday period.
[7] Exhibit 1.
Further, the terms of the Minute did not include any requirement that any of the children’s time with their father occur on Region N or even in South East Queensland (even initially) and left it entirely to the father to determine the location of the same.
Despite the request made by the lawyers who then appeared for each of the parents and the support of the Independent Children’s Lawyer, I did not make the orders outlined in Exhibit 1.[8]
[8] The proposed Minute of Consent Order, dated 14 February 2017.
My rejection of the parents’ ostensibly joint request to make final parenting orders for the children to spend unsupervised time with their father followed my investigation about how this position could be reconciled with the mother’s previous contention/s that the father had sexually abused B (when she was no older than about two years and eight months of age) and, probably, D and that, consequently, all of the children were at an unacceptable risk of harm if their time with him was unsupervised.
Once Ms Cullen, who was then Counsel for the mother, informed that her client did not resile from these contentions, I was not prepared to make the orders because I was not persuaded about the likelihood of their implementation.
Instead, the trial proceeded.
Each parent reverted to their original position: the father originally asserted that the children were at an unacceptable risk of emotional harm via exposure to the mother’s asserted belief that he had sexually abused at least B and contended that the only way they could have an ongoing relationship with him of any kind (let alone one that was meaningful) was for them to live with him; the mother asserted that the father had, indeed, inserted his ‘snake’ (penis) into B’s ‘butterfly’ (vagina) and had possibly sexually abused D and, in any event, had no relationship with E because of that child’s age at separation.
The events of the first two days of this trial have meant that, in addition to those issues raised by the parties, another issue requires consideration: namely, whether, in agreeing to the terms contained within the Minute (being terms which provided for the children to spend unsupervised time with the father, albeit following supportive counselling) on the first day of the trial and joining in the application to have final orders made in those terms, the mother had no intention of ever implementing such terms but, rather, was engaged in an attempt to manipulate the Court so as to remove all risk that the children might be ordered to live primarily with their father, as was his formal position at that time.
The parents: a few matters relevant to an understanding of their attitude to each other
The parents met in about March 2007 and married in 2008. There appears to be a minor dispute about exactly when they separated: the mother contends this happened in December 2013, whilst the father says it happened in about mid-November 2013[9] and he spent time with the children until 24 December 2013, when the mother and children left K Town. Given it is accepted that the mother and children moved from K Town to live in South East Queensland at the end of 2013, it seems unnecessary to resolve this minor discrepancy.
[9]According to the information he provided to Dr M, a psychiatrist upon whom each parent has attended to facilitate the preparation of a psychiatric assessment.
In any event, the father remained living in the K Town area. He continued in the same employment in which he remains. His current roster is one which involves him working in the approximate regime of four days on, five days off, five days on and four days off.
The parties are also in dispute about who left the relationship. The mother told Mr H she instigated the separation after receiving a “kick” from the father. In contrast, the father told Mr H he left because the mother had a “violent outburst”[10] toward him while he was holding E: he alleges this occurred in front of the other children and was the event which caused him to decide to leave the marriage.
[10]Which he contends involved her running up from behind him, shoving him in the back and nearly causing E to fly from his hands: Affidavit of Mr H, filed 9 October 2015 at [41]; I note that his affidavit contains the assertion that E did in fact fly from his hands.
At this stage of these Reasons[11], it is sufficient simply to record that the parties separated after an argument which occurred in the presence of all of their children. D’s comments to Mr H appear to confirm that he saw at least some part of this interaction. It is also sufficient to record that, whichever account is accepted, the interactions that day constitute family violence[12] such that the presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them does not apply.[13]
[11]It being my intention to consider each parent’s account of this event during my consideration of the issue of family violence.
[12] As defined in s 4AB Family Law Act 1975 (Cth).
[13] S 61DA(2) Family Law Act 1975 (Cth).
The parents also differ about the time at which the father commenced his relationship with his current partner, Ms L: the mother contends the father and Ms L had an affair, whereas the father and Ms L assert that their relationship did not start until January 2014. Even on the father’s account, it is obvious that his relationship with Ms L started very, very shortly after the mother and children moved to Region N.
That this is the case, even on the ‘best-case scenario’, clearly has not contributed positively to the mother’s attitude toward the father or Ms L: an attitude she expressed in the following text messages sent to the father in early 2014:
·I never stopped u seeing your kids just told u I didn’t want u taking them with your skank. Maybe you should speak to his psychologist and see how his going you are the most selfish person I have ever come across I told u about how [D] was going and you-
·month you gave me $607 for bills which didn’t even cover half of them and left me to sort out the car and $198 child support maybe your $4g was spent on your slapper cos we certainly didn’t see a cent of it!! If you can’t get your shit together on $7500 you will never get it together we used to live on $3000-
·you stop spending all your money on your lil slut you keep showing all over [K Town] you might have some money. By the way tell the bitch to stop taking and spending the kids money she earns $7000 a month she can fucken use her own
·don’t u dare blame me ever you’re a lying cheating bastard and you have put that skank before all of us it’s bullshit u wouldn’t even be making that sort of money if it wasn’t for me. I know u r with the slapper all the time and I believe looking back now even when I was pregnant I know she is always at your house and with u [K Towns] a small place you just make yourself look like a dickead denying it. I was your wife you said u would love and be with forever and now you have put a dirty hoe before all of us I never thought u would do what u have done to us the kids are and always will be the most important thing to me unlike you slurries come first hey?? You threw all our stuff in a room closed the door and screwed a skank and then slept with me and now her again I fucken swear if I have anything, you kissed her right at our front door and the neighbours saw Silver Holden Colorado with personalised plates that should say SLUT. Stop fucken lying about it you have done enough to us all. [D] hasn’t even started kindy thanks to you and sleeps on a couch and now-
The father also asserts that, before the mother and children moved to Region N in December 2013, she told him he would “never fucking see the children again”; and that, after she relocated to the Region N area, her attitude about him contacting her about the children changed such that she became obstructive about the children communicating with him and hostile toward Ms L.
Given the mother’s belief about the timing of the start of the father’s relationship with Ms L and the attitude toward him and Ms L expressed in the messages set out above, I think it highly likely that the mother told the father, after they separated, that he would never see the children again. However, whether this was a comment made out of anger and in the heat of the moment or a precursor to following events is much more difficult to resolve.
I also think it quite likely that, once she had successfully relocated the children to Region N (without opposition from the father), the mother’s attitude to his communication with the children became, at best, one of disinterest or, at worst, one of positive obstruction. Support for such conclusion can be found in the mother’s comments to Mr H during her first interview with him on 9 October 2015, about which more will be said later.
I accept that, when the father mentioned, during mediation with the mother on 19 February 2014, that he intended to borrow Ms L’s car to use to travel to Region N to see the children, the mother was vehemently opposed to Ms L coming into contact with them. This reaction is completely consistent with the tenor of the comments set out above.
An indication of the mother’s more recent attitude to Ms L having any interaction or involvement with the children may be found in the following. The Order made by Registrar Brooks, by consent, on 16 March 2016 contained the notation that: “The Father intends to have his partner, [Ms L], attend some visits at the contact centre and neither the Mother nor the Independent Children’s Lawyer object to her attendance.”
Despite informing the Registrar of this position, the mother had not signed the documents required by F Contact Centre to facilitate Ms L’s involvement in the children’s supervised time with their father before the trial commenced on 13 February 2017 (nearly one year later). When asked in Court on 15 February 2017 whether she agreed to sign the necessary documents, she said she would. Despite this assurance, she had not done so by the time the trial resumed on 27 March 2017 and I made an order that day which provided that the father be at liberty to be accompanied by Ms L during any time with the children at F Contact Centre.
Whilst Mr Bunning, who then appeared for the mother, placed on the record that she had intended to sign the documents when she dropped the children to F Contact Centre on Sunday (which I took to be a reference to the previous day) but was ill and, therefore, unable to and had provided him with her consent to agree that she would attend and sign the documents within seven days, these excuses are unpersuasive in all of the circumstances and all too redolent of ‘too little, too late’.
That the mother approached the issue of Ms L’s attendance at F Contact Centre in this way is, I think, one example of the way in which she has generally engaged in these proceedings: that is, it is but one of a number of occasions on which she has agreed to something and then, simply, failed to implement it. For example, she has previously agreed to all three children spending supervised time with their father at a Contact Centre but, despite this ostensibly being something she considered to be in their best interests, has really only facilitated D’s interaction with his father. I reach this conclusion because I do not regard simply physically taking a child to a Contact Centre and remaining silent during the ‘going through’ process as discharging the obligation, implicit in the consent order that provided for such time, to facilitate, support and encourage each child’s interaction with their father.
Another example of the mother’s antipathy toward the father can, I think, be found in the fact that her case has involved at least the implication that, in deciding not to oppose the children’s relocation from K Town to Region N (where the maternal grandmother lives), the father evidenced disinterest in the children and in maintaining an ongoing parenting relationship with them. I do not consider this to be the case at all.
That his decision to accept the mother’s desire to seek family support after their separation has been interpreted in this way is a further demonstration of the animosity the mother has toward him, an attitude which clearly existed before the events which culminated in the allegations of sexual abuse.
The mere existence of antipathy or animosity does not, of course, mean that the allegations reported by the mother, as having been made by B to her, were deliberately invented by the mother. It does, however, form part of the atmosphere which existed in the mother’s household at that time and suggests that it is unlikely that any equivocal comments or events would be interpreted in a way that was beneficial to the father.
The allegations were first made in April 2014. I accept that the children did not spend any time with their father between the end of December 2013 and April 2014. I also accept that this situation arose because the father’s plan to travel south to Region N in February 2014 to spend time with them was thwarted by the occurrence of a cyclone, which prevented him travelling.
One consequence of the allegations of sexual abuse has been that any time between the father and the boys which has, in fact, occurred since April 2014 has happened on a supervised basis at F Contact Centre. Obviously, such time has only occurred when the father has travelled from northern Queensland for that purpose. That he has continued to so over the last couple of years is, in my view, a further demonstration of his desire to have an ongoing and meaningful relationship with all of his children.
A further consequence of the allegations of sexual abuse has been that B has not spent any time with her father (nor even seen him) since the end of December 2013. That is, she has not seen her father at all since she was about two years and eight months of age.
In the event it is concluded that the father did not sexually abuse B or that she is not at an unacceptable risk of being sexually abused by him in the future, the absence of interaction between them is obviously very relevant to the consideration of the likely impact on her if she is now to be required to spend time with him. It is also relevant to a consideration of the supports which may need to be put in place if a resumption of her time (and consequent relationship) with her father is considered to be something which is likely to be beneficial to her and in her best interests.
The mother’s credit
Given that the mother is the main – and, certainly, the first – source of the reports of B’s alleged comments about her father’s alleged behaviour toward her, it is, I think, appropriate first to discuss matters relevant to an assessment of her credit and/or reliability before embarking upon a consideration of the particular allegations.
A number of matters, examples of which are discussed below, have persuaded me that I should approach the mother’s evidence with very significant caution. I have reached the conclusion that, on occasions, she simply lied.
Re: the father’s requests for time with the children
In her April 2015 affidavit (the first she filed in the parenting proceedings), the mother said that, between December 2013 and April 2014, the father never requested to spend time with the children.[14] However, she told Dr O in May 2014 that, during mediation in April 2014, the father asked for time with the children and, in her November 2016 affidavit, she said he was due to visit the children on 9 February 2014, but this visit did not proceed because his flight was cancelled due to inclement weather. [15]
[14] Affidavit of Ms Polson filed 8 April 2015 at [11].
[15] Affidavit of Ms Polson filed 29 November 2016 at [124].
Re: living with Mr W
Further, when the mother spoke with Mr H in September 2015, she told him that she and Mr W started to live together in about April 2015. However, when she spoke with Dr M on 8 June 2016, she said she was on the single parent’s pension; her partner had his own place, but stayed from time to time: when asked why she and her partner were not living together, the mother told Dr M that: “basically I don’t want to rush it.” When asked during her cross-examination about her comments to Mr H, the mother said, in essence, that she was then referring to a ten day period during which Mr W lived with her and the children in the house he owned (and into which they had moved and she rented from him) and that he subsequently worked away a lot and, when back, stayed at a colleague’s house – not the house he owned.
Re: the prospect of the father having unsupervised time with the children
Significantly, the mother said[16] that, until the parties engaged in negotiation on 13 February 2017, she had not even contemplated the children having unsupervised contact or time with their father, until that idea was presented to her that morning.
[16] Affidavit of Ms Polson filed 23 March 2017 at [17].
This evidence is completely contradicted by the evidence given by Ms Cullen of Counsel (who appeared for her until 15 February 2017) and Ms Wilson (her solicitor until that date). Both Ms Cullen and Ms Wilson were adamant that the possibility the father might obtain orders for unsupervised time with the children had been raised with the mother during a conference in November 2016 and I accept their evidence in this respect.
In addition, I note that during the course of been cross-examined about whether she had ever told D that his father was seeking that he live with him, the mother said, amongst other things, that she had first told him his father wanted to spend more time and unsupervised time with him a couple of months before the trial in February 2017.
I also note that, in correspondence authored by Ms Q on 18 February 2016[17] (being the day the mother attended upon her) and directed to the Independent Children’s Lawyer, Ms Q outlined that the mother had been diagnosed with “anxiety and difficulty adjusting to what has allegedly happened to her daughter” by the father and recorded that the mother was concerned about what could occur if the father was granted unsupervised visits in the future.
[17] Affidavit of Ms Q filed 5 April 2016, Annexure “TG-1-B”.
Re: the diary
During her cross-examination on 15 February 2017, the mother was asked whether she kept notes of what B said to her on Anzac Day 2014. She said she wrote down when B first told her what had happened. When she was asked where her notes were, she said they were in her diary. When asked where her diary was, she said at home. After being asked to do so, she agreed to bring the diary and any other diaries in which she had made notes of conversations with the children with her the next day. As it turned out, the matter was adjourned later that day.
When the matter resumed, Mr Page QC returned to the issue of the diary. When he asked the mother where it was, she said she had believed she had it at home and looked for it but could not find it; she said she spoke to her mother about it and her mother told her it was thrown out when everything in her mother’s home was thrown out because toxic mould was discovered there. She explained she bought the diary when she, her mother and the children went into temporary accommodation in March 2014; when, toward the end of October 2014, they were told they could move back to her mother’s home, her property (including the diary) went back to her mother’s home whilst she and the children went to stay with a friend for a week before moving into their own rented accommodation; however, after the belongings had been moved back into her mother’s home, the house was inspected and found to have toxic mould and everything in it was disposed of: everything, including her diary, was thrown out.
This account, in which the diary was part of all of her property at her mother’s home that was thrown out in late 2014 is, I think, hard to reconcile with her unequivocal answer, when first asked about it during the trial in 2017, that her diary was at home.
It is, I think, highly likely the mother realised this difficulty, because she attempted to explain her February 2017 answer by saying that she then thought the diary may still have been at her mother’s place; that she thought it might still be there and was hoping it would still be there. None of these equivocations formed part of her first response to the request for the production of the diary and these later assertions seem to me to be inconsistent with her other evidence (and that of the maternal grandmother) that all of her property which was at her mother’s home was thrown out in late 2014.
My scepticism about the existence of a diary in which any comments made by B were recorded by the mother is heightened by the fact that Ms Cullen’s evidence is that she did not even know about the existence of the same until the mother spoke of it during her cross-examination. That no mention had been made by the mother to her legal representatives of a contemporaneous note of B’s disclosure to her in April 2014 is difficult to believe.
Overall, the mother’s evidence about the asserted diary was very unconvincing.
Re: B and urinary tract infections
During her cross-examination, the mother said that B had only had one urinary tract infection when she was living in K Town. When challenged about the contents of Dr R’s note of 28 April 2014 – in which it is recorded that B “has trouble with recurrent UTI”- the mother said she told him B had ‘a’ UTI in K Town. Whilst the doctor was not a witness in the case, it seems to me to be somewhat unlikely that, in the context of receiving the mother’s account of B’s asserted complaint of alleged sexual abuse by her father, he would have used the word ‘recurrent’ if he had understood the information provided to him to be referring to a single urinary tract infection.
Further, whilst the mother’s evidence in her 8 April 2015 affidavit is that B had not had any urinary tract infections since she left the former matrimonial home (which was in December 2014), it seems likely she told Dr R on 19 May 2014 that B had a urinary tract infection for a few weeks.[18]
[18] Affidavit of Ms S filed 16 December 2016, Exhibit 4.
Re: account to Mr H about B’s interaction with the father at F Contact Centre
Whilst the mother told Mr H during her 14 July 2016 interview with him that Ms T (the supervisor at F Contact Centre) acted to remove B from her interaction with her father because of the child’s reaction,[19] it is clear that no-one at F Contact Centre ever actually saw B and her father interact because the Centre permitted the mother to take the child home after she said she did not want to see her father.
[19] Affidavit of Mr H, filed 5 August 2016 at [15].
Re: asserted support for the children’s relationship with their father
I do not accept the mother’s evidence that, after she and the children moved to Region N in December 2013, she made several attempts to contact the father to arrange for him to see the children because “I wanted him to have some time with the children”. [20]
[20] Affidavit of Ms Polson filed 29 November 2016 at [121] & [122].
Given the content of her communications with the father (as set out above), her recounting of his behaviour toward her during their marriage, her view of him as a disinterested and uninvolved parent and her reaction to what she believed his actions were vis-à-vis Ms L, I consider it highly unlikely that the mother in fact felt this way about the father at this time.
Re: Mr H’s management of his first interview with the mother
In his first report, Mr H remarks that the mother did not tell him about the sexual abuse allegations. Whilst she agrees she did not tell him about the allegations, she says this was because he asked her specific questions, told her to stick to them when she tried to talk about other things and gave her absolutely no opportunity to bring up the issue of sexual abuse by the father, despite her attempt to do so about three-quarters of the way through her interview.
It did not seem to me that these matters were specifically raised with Mr H during his cross-examination and I struggle to accept as likely that he would have refused to listen to attempts by the mother to raise the issue of the sexual abuse allegations against the father which are so integral to this matter.
Re: “I’ve fucked my case”
Both Ms Cullen and Ms Wilson said that the mother said “I fucked my case” after she left the Court room on 15 February 2017.
Ms Wilson’s contemporaneous notes include a record that the mother made this statement during discussion with her and Ms Cullen about the evidence she had given about what B said to her in April 2014, the issues they thought arose from this evidence and the consequences of this.
It was not put to Ms Wilson that she deliberately and falsely wrote the phrase into her notes and/or that she deliberately and falsely attributed it to the mother and I do not accept any implicit suggestion to that effect. I accept that Ms Wilson heard the mother say this and that she accurately recorded the same in her contemporaneous notes.
Whilst Ms Cullen said she was not surprised the mother might not have recalled saying this because it was a highly emotional time and she (the mother) was very emotional when she made this comment, the mother’s denial of making this statement is definite and absolute. Her evidence is that there was no occasion or stage during the proceedings when she made this comment. In fact, she says that, after she and Ms Cullen and Ms Wilson went into one of the interview rooms outside the Court, Ms Wilson said: “This is fucked. I need to ring [Ms Colman].”[21] Ms Wilson denied making these statements and said she did not call Ms Colman. I accept her evidence in this respect.
[21] Who is the principal of her firm.
I do not accept the mother’s assertion that she did not say that phrase on that occasion. I accept the evidence of both Ms Cullen and Ms Wilson that this is exactly what the mother said after she left the Court at that time.
As remarked upon in relation to the relevance of parental feelings of antipathy to the assessment of allegations of sexual abuse of a child by a parent, the fact that I have concluded that the mother is a person whose credit is significantly impaired does not mean that it is appropriate to simply dismiss out of hand the evidence she has given about what she says B told her in April 2014.
Principles and matters relevant to a consideration of the sexual abuse allegations
Authority makes it clear that the resolution of allegations of sexual and other abuse are “subservient and ancillary” to this Court’s determination of the parenting order which is in any child’s best interests.[22] It must always be remembered that the ultimate and paramount requirement in parenting proceedings is to make orders which are in each child’s best interests.
[22] M v M (1988) 166 CLR 69 and the numerous authorities which have followed it.
However, an assessment of such allegations is clearly required when the prescribed statutory framework imposes an imperative of protecting children from harm.[23] Orders which place any child at an unacceptable risk of harm clearly could not be seen as being in that child’s best interests.
[23] ss 60CC(2)(b) and 60CC(2A) of the Act.
This Court is not compelled to make a determination about whether the father sexually abused B. Nor is it required to make a determination about whether the father sexually abused D.
Authority also establishes that a finding that sexual abuse has been perpetrated, in this case by a parent, should not be made unless the Court is reasonably satisfied about such allegations, having regard to the severity of the allegations, the inherent likelihood of what is alleged to have actually occurred and the gravity of the consequences flowing from a positive finding. Such reasonable satisfaction ought not to be produced by inexact proofs, indefinite testimony or indirect inferences.
I accept, as a general proposition, that sexual abuse in childhood can cause lifelong psychological difficulties and that, if B has, in fact, been sexually abused by her father, the damage to her from such behaviour is highly likely to be extremely significant. In addition, I also consider it more likely than not that if B has not, in fact, been sexually abused by her father, a continued incorrect belief that she has been subjected to such abuse may well be enormously harmful to her.
Matters relevant to the sexual abuse allegations, B’s disclosures and the subsequent investigations
I note that Dr O, the paediatrician who examined B on 7 May 2014 noted that the mother reported B had had problems with dysuria (painful urination) and incontinence and UTI in August 2013.
However, in her 8 April 2015 affidavit, the mother says that B had some urinary tract infections up until about four months before E was born in 2013. This affidavit also contains her evidence that, although she has no certainty about this, she believes this was when ‘the touching’ may have occurred. She also outlined that, when B had a urinary tract infection, she would refuse to settle at night and cried and the father ‘always chose’ to settle her in her bed and shut the door and yelled at her (the mother) that she was disturbing B if she (the mother) came in to help him settle her. She also said that B had never had ‘night terrors’ before this, or problems settling in bed, and that the father explained that these behaviours may have occurred because she was pregnant and B was jealous.[24]
[24] Affidavit of Ms Polson filed 8 April 2015 at [45] – [46] (read by father in his case).
Given that there is no evidence to suggest that, at the time of these events, the mother thought there was anything untoward about them, her assertions are made through the prism of later events.
It is, I think, also relevant to consider what was happening in the children’s lives in the period from their relocation to Region N at the end of 2013 and Anzac Day 2014.
The mother and children move to live with the maternal grandmother
It seems the mother and children moved to stay with the maternal grandmother in her house at J Town on about 20 December 2013. At some time after this, when the mother and maternal grandmother were supervising D and B’s showers, the maternal grandmother told her daughter she should never allow the children to bathe together again and that the children should not be “touching each other like that”.[25] At this time, D was about four and half years of age and B was not much more than two and half years of age.
[25] Affidavit of Ms Polson filed 29 November 2016 at [87] – [88].
Whilst there is no detail about the nature of the behaviours to which the maternal grandmother was referring when she made this comment, it seems to me to be much more likely than not that it is likely to have been a reference to the children touching each other’s private parts because what would be the issue with them touching (for example) each other’s hands or arms or legs?
It seems these comments had quite an effect on the mother because her evidence is that after this, she thought, in hindsight, that D and B did touch each other “too much”. The comments also clearly made her question her own previous approach to parenting her children, because later she said she should have asked more questions but thought they were just children who were curious about each other’s bodies.
It seems implicit in this evidence that the mother’s “hindsight” about the interactions between B and D during their bathing only came after her mother told her she should not be permitting them to bathe together – something she and the father had both previously implemented and, I assume, both previously considered appropriate.
It also seems to me to be more likely than not that the mother’s later reflections about the father’s actions in bathing the children and dressing them in their pyjamas before she arrived home from work – which is certainly capable of being seen as an appropriate contribution to parenting – has now also been cast in a much more sinister light.
The attendance on ‘Ms V” at P Group, J Town
The mother’s evidence during cross-examination appeared to me to be that her first motivation for finding and contacting “Ms V” to arrange counselling for the children was after B made the allegations to her on Anzac Day 2014; and so that they could have counselling about what B had said to her on Anzac Day 2014.
However, in the Questionnaire she filled out at the request of the Independent Children’s Lawyer, the mother listed “Ms V” (described as a social worker at X Street J Town), who she said D and B saw between February 2014 and November 2014. That is, their attendance started before any allegations of sexual abuse were made by B to anyone.
This conclusion seems supported by the mother’s evidence that she was pretty positive she took the children to see Ms V while they were still living with her mother, because she left E with her when she took them. The mother and children were not living with the maternal grandmother as at Anzac Day 2014 because all of them had been moved into temporary accommodation as a result of the issues with the maternal grandmother’s home.
I also know that the mother said she was “pretty sure” that, during the time the children were seeing Ms V, B made a comment to her (the mother) that D had put his doodle in her. What I do not know is when this comment was made vis-a-vis Anzac Day 2014.
When she was asked when B made this comment to her, the mother said she did not know and could not provide a date; she could not remember where she was when she heard this and could not remember where she and B were or what they were doing at the time.
When she was asked whether B made this comment after Anzac Day 2014, the mother said something like: “it must have been then.”
However – whilst none of this is in any of her affidavits – when asked what she did after B made this comment to her, the mother later said that she sought help for the children: she took them to ‘a lady’ who went through certain body books with them and gave the children a copy of the same. She said the lady did some drawings and got the children to do some drawings “to see what was going on” and let the children talk about private parts and talked with them about private parts. I also know from the mother’s evidence that, when the children saw Ms V, she (Ms V) went through the issue of “private parts” with them and, in her presence, read a book with them before speaking individually to each child.
It was also revealed that this was not the first discussion in which the children had been spoken to about the topic of body parts: that was when their mother spoke to them after the maternal grandmother made the comments outlined above to the effect that they should not be “touching each other like that.”
When asked where ‘the lady’ to whom she took the children was located, the mother said it was on X Street in J Town; she said she was pretty positive it was with the P Group, that the lady was a psychologist and her name was “Ms V”.
I do not have any evidence from “Ms V.” I do not know, therefore, what was the particular focus of her involvement with the children at any particular time.
Given all of these the details, it seems to me to be more likely than not that the mother took the children to see “Ms V” at X Street because of the comment B made to her about D putting his doodle in her and that this comment was made at some time before February 2014 (because this is when the children first started to see “Ms V”) and that, by Anzac Day 2014, the children had been exposed to at least some discussions and material about the topic of ‘private parts’, likely in the context that they should not touch anyone else’s private parts and, given the maternal grandmother’s reaction, that to do so was ‘naughty’.
I acknowledge that these conclusions involve a not insignificant degree of supposition and have been reached in the absence of evidence from Ms V (which would, obviously, have answered questions about timing, the initial event which led to the children’s attendance on her and the content of her session/s with them, both before and after Anzac Day 2014) and in circumstances where the mother’s evidence seemed to oscillate between being “pretty sure’ she was referred to Ms V after Anzac Day (which cannot be right if her other evidence about the children seeing Ms V between February 2014 and November 2104 is correct); saying, when asked whether taking the children to ‘the lady’ was in response to Anzac Day comments (and not in response to B’s comment that D put his doodle in her), that she had taken the children to see ‘this lady’ on several different occasions; saying that she thought she took the children to see ‘this lady’ in response to what B said to her on Anzac Day; and her later evidence that she did not take the children to see anyone specifically in relation to B’s comment that D had put his doodle in her.
I also know that the mother’s evidence is that she recalled speaking with Ms V about D after a session: she said Ms V told her that “she hadn’t got anything out of him”, she recalled that Ms V was ‘struggling to try” to see if “anything” came out when she was speaking with the children. I do not know, though, when this session occurred.
I also know that the mother agreed with the proposition that she stopped taking the children to see Ms V in November 2014 because Ms V could not get anything out of D. The mother’s evidence was to the effect that Ms V “was struggling to get anything out of [D].”
B’s asserted[26] disclosure to her mother: 25 April 2014
[26]I have used this term because the father does not necessarily accept as a fact that B in fact made comments to her mother on Anzac Day 2014 as asserted by the mother.
The mother has recounted what she asserts B said to her on Anzac Day 2014 in a number of affidavits and to a number of different people. It is, I think, instructive to have regard to these accounts chronologically.
To the maternal grandmother (Ms Y) on 25 April 2014
The mother said that, after B spoke to her, she took the child to the pool for a swim and met her mother there. She broke down when she told her mother what B had said to her. She also said her mother did not, in her presence, ask B anything about what B had said to her earlier and that she (the mother) did not ask B again about this.
Ms Y said that, after the mother called her to tell her she was taking the children to the pool, she met her there so that she could mind E. When she arrived, the mother (who she described as looking absolutely devastated) called her over and told her that she would not believe what B had just said to her. When Ms Y asked her ‘What?’, the mother told her that B had told her that her father had abused her. When Ms Y asked: “In what way?”, the mother said : “Sexually”.
When Ms Y asked her daughter how B told her, the mother told her that B had said: “He hurt my butterfly” and that she had showed her mother by pointing to her private part.
Ms Y then said that B would not tell her anything at first; she said nothing and would only tell her mother but, afterwards, the mother told B it was all right if she told her “nanna” and so B told her and pointed to her private part and said: “Daddy hurt me in my butterfly”. This conversation between Ms Y and B occurred that morning on Ms Y’s recounting.
Whilst it seems that Ms Y swore an affidavit on 11 June 2014 (that is, about two weeks after Anzac Day 2014), that affidavit contains no reference at all to this conversation.
When asked by Counsel for the Independent Children’s Lawyer, Ms Y explained that B spoke with her about ‘it’ more afterwards. She said that, whilst B was not a big talker, she kept telling her that he hurt her in her “butterfly”. She said she did not have to ask B what a “butterfly” was because B pointed down “at her little private part”.
Ms Y said that B’s conversations about this happened at different times when they were spending time together: that is, B occasionally mentioned or talked about it.
To police: 28 April 2014
The allegation that the father had sexually abused B was reported by the mother to police on 28 April 2014. According to their records, the timeframe nominated for the potential occurrence of the alleged abuse is from 1 January 2013 until 21 December 2013.
The police records[27] contain the following summary:
Whilst getting changed, the three-year-old victim child made claims of having a sore vagina. When asked by her mother what was wrong, the child said it was sore, it was sore when daddy put his snake in my butterfly in the shower – the child was pointing at her vagina as she said this. The mother asked: “Where did daddy put the snake, can you show mummy?” To which the victim child put her finger directly on her vagina, touching just inside her; she then reached round and touched her bottom before touching both cheeks, the tip of her tongue and then saying daddy did wee wee in my mouth.
[27] Affidavit of Ms S, filed 16 December 2016, Exhibit 1 at p.2/6.
To Dr R on 28 April 2014
The mother took B to Dr R at Z Clinic on 28 April 2014. His notes record: “suspected that she may have been molested by her father; has had trouble with recurrent UTI”. I have already noted the discrepancy between the contents of his notes and the mother’s evidence.
To Dr O on 7 May 2014
According to Dr O[28], the mother told her that:
a)she had had concerns after a disclosure by B which suggested that her father had possibly sexually abused her; and
b)at the time, B had been complaining about pain in her genital region; she observed the child’s urine stream was adequate and there were no signs of urinary tract infection; she inspected the area (slightly red) and B asked for some cream; and
c)B later said, when she was in the shower, that it was “ouchy”; she said her father put his “snake into her butterfly” and then pointed to her genital area, anus, cheeks and mouth; and
d)B also said “he weed in my mouth, it was yuck”; and
e)the last time B saw her father was on 21 December 2013: the family were living at K Town; the mother worked full time, the father showered and bathed with the children and B was in nappies; after separation, the mother relocated to Region N and there had been no contact between the father and the children since then, although, during a mediation in April 2014, he asked for time with them.
[28] Affidavit of Dr O, filed 10 January 2016.
During her cross-examination, Dr O said the mother told her B said: “it was ouchy when I was in the shower when he put his snake in my butterfly’, pointed to front/anus/cheeks, “he weed in my mouth it was yuck.” She said she was led to believe by the mother’s report that it hurt B when she was in the shower, and “it also hurt when he put the snake into my butterfly”.
The mother also told Dr O that, since these disclosures, B had made a few further disclosures: she had raised the subject, saying: “You won’t let daddy do it again”; “My dad was very naughty”. The mother also told Dr O that she had spoken with B about safe touching and that AA Group would not deal with the family unless there was a positive finding (presumably, of sexual abuse).
To the father on 7 May 2014
On 7 May 2014, the mother attended at J Town police station, provided a statement and undertook a pretext phone call to the father. The father accepted that, during this conversation (which was the first time he was made aware of the allegations), the mother told him that B had said that: “Daddy put his snake in my butterfly.”
The father denied the allegations and said B had been put up to making the disclosures.
In her April 2015 affidavit (her first sworn account)
In her affidavit filed on 8 April 2015, the mother said that her conversation with B on 25 April 2014 occurred before they went swimming. She explained that it included that, when she asked B to show her where she was “ouchies”, B pointed to her vagina and then said: “It really hurt when daddy put his doodle in there” and gestured toward her vagina. The mother’s evidence is that she asked B: “What did you say Darling?” and B repeated the same phrase. The mother said she pulled B’s bathers down and asked her to show her where; at this time B pointed to her vagina, her bottom and both cheeks “in her mouth” and also told her that: “Daddy wee-weed in my mouth”. The mother said she did not asked B what she meant by “wee- weed”; as B said she still wanted to swim, the mother told her she said she would put some cream on her ‘ouchie’.
When questioned about this account during her cross-examination, the mother said that the first time B told her, she said his “snake”; that the first time she said it, B’s words to her were “his snake” and, when she (the mother) asked her what that was, B said “doodle”.
When asked during her cross-examination, the mother said she did not ask B when the father did this or where he did this; when it was suggested to her that she needed to know such things in order to ascertain whether B was telling her the truth, she said she believed B was telling her the truth because she knew “way too much information for her age that she should not have known.”
She also explained that, as she was not a professional in the field, she was not about to attempt to investigate things she was not sure about. During her cross-examination by Counsel for the Independent Children’s Lawyer, the mother accepted that, what she said in her April 2015 affidavit about what B said to her was similar to what she said B had said to her about D’s behaviour (that is: that he put his doodle in her).
Whilst her later affidavits do not contain any reference to any comment B made at this time about D’s behaviours, the mother’s April 2015 affidavit[29] contains her assertion that, during this period of time, she recalled that B had also said to her words to the effect of “D put his doodle in there” and gestured to her vagina. She said she was concerned that either D witnessed the father with B or was “actively involved.” She also said B had also told her that D had “put his doodle” in her while they bathed together.
[29] Paragraphs [39], [40] and [57] of which were read in the father's case.
To Ms BB on 29 May 2015
According to the Child Inclusive Conference Memorandum to Court prepared by Ms BB in May 2015, the mother told her that, on 25 April 2014, whilst B was swimming, she told her mother that she was “ouchy ouchy” in her private parts; the mother asked B to show her where she was “ouchy” after getting out of the swimming pool and B allegedly then said: “Daddy did really hurt me when he put his doodle in there.”
The mother said that, as far as she was concerned, she never told Ms BB that B said ‘ouchy ouchy’ when she was swimming. She said that, apart from this part, everything in the document was correct and that ‘it’ all happened before they went swimming in the pool.
I accept Ms BB’s evidence that she is very, very sure her report contains an accurate recounting of what the mother told her had occurred on 25 April 2014. I accept she was very particular about her questions of the mother about the context of B’s alleged allegations.
Ms BB was asked if she remembered the mother using the words “snake” or “butterfly” in her recounting of what she said B had said to her on 25 April 2014. Of course, this question contains the implicit (but as yet unestablished) contention that the mother did speak them to Ms BB in her recounting of events that day.
It is in this context that I accept Ms BB’s evidence that she did not remember the mother using the words “snake” or “butterfly”. However, I also accept Ms BB’s evidence that, if the mother had used those words, she would have written them in her report. I accept she was very particular in getting clearly from the mother what was said, particularly given the serious nature of the allegations. I accept the tenor of her evidence to the effect that, if the word ‘snake’ had been used by the mother instead of ‘doodle’, it would have been in her report and that she used the word “doodle” because that was what was said to her.
Ms BB also records that the mother told her the paediatrician (who has to be Dr O) had told her that B said to her unprompted: “It did really, really hurt me when Daddy put his doodle in me”. Dr O’s evidence is that, during her examination using a magnifying colposcope, B said: “That’s where daddy put his snake”.
In her 28 October 2016 affidavit
The mother said[30] that, on 25 April 2014, she was getting ready to take the children to the pool at the apartment in which they were staying. After B said “ouchy’s down there”, she asked her if she needed to go to the toilet; when she said ‘yes’, the mother watched the child urinate to see if there was any indication she might be suffering from a urinary tract infection. She said B’s urine was a normal colour. She asked the child if it hurt to wee and she said “No”.
[30] Affidavit of Ms Polson filed 28 October 2016 at [45(i)].
When the child got off the toilet, she asked her mother if she could put cream on her “down there”. The mother asked B to lie down on the bed so she could see if she was red in her “pee pee” (as she said the child called it). The mother said B’s “pee pee” was a little red, but not too bad, and that she told B she would put the cream on after her swim.
The mother said she then helped B put her bathers on and, as she was pulling them up and they were around her tummy area, the child said: “It really hurt me when daddy put his snake in there”. The mother said she asked B: “Can you tell Mummy that again please B?” and B said: “It really hurts me when daddy put his snake in there”. The mother said she asked B: “In where?” She described that B pointed to her vagina and then to her bottom, touched both of the cheeks of her face and said: “He wee weed in my mouth”.
The mother said she asked B: “What is his snake?” B said: “his doodle”. The mother said B said: “It really hurt and he is naughty”. She also said that B insisted on going for a swim, so she took her out to the pool where they met the maternal grandmother and she (the mother) broke down when she told her mother what B had told her.
The mother said the father used to refer to his “doodle” as his “snake” and that, as a result, D used that term on occasion also.
The mother’s October 2016 affidavit says she was present when the child was examined by the doctor and heard her say: “Daddy really hurt me when he put his doodle in there”; however, as noted earlier, Dr O’ report says that B said: “That’s where daddy put his snake.”
To Ms Cullen and Ms Wilson during conference in November 2016
Ms Cullen said that she recalled the mother telling her, during their conference in November 2016, that she did not know where the “snake” and “butterfly” thing came from and then said: “yes I do” and told her it came about because, when B was being examined in the paediatrician’s office, she was being distracted with butterflies and that was the first time butterfly was used.
She also said that the mother acknowledged to her that she had previously told them that the term butterfly was used in the paediatrician’s office.
Ms Wilson’s notes of their conference in November 2016 contain the following:
Client told us 100% ‘No’, this is not out instructions. Client advised the butterfly was only ever discussed at the paediatrician’s office. She never heard this from B”.
According to Ms Wilson, the “100 % No” refers to the proposition that B used the word “butterfly” to her mother on Anzac Day 2014. She explained that their instructions were that the disclosure B made on Anzac day did not contain a reference to the word ‘butterfly’ and this came about because the paediatrician told the mother not to talk about anything in front of the child, and so she spoke with the paediatrician and B about the butterfly stickers in the paediatrician’s office.
Ms Wilson said that, when she wrote “Client told us 100 per cent” then “NO” in capital letters, “this is not our instructions”, this meant the term “butterfly” was not said at the disclosure on Anzac Day but came after, at the paediatrician’s office. She said the mother’s instructions during a conference in November 2016 were that B had not used the word “butterfly” to her in relation to any allegation of sexual abuse by the father. She said the mother’s instructions were not that B made a disclosure including the term “butterfly” at the paediatrician’s office but that butterflies were spoken about there and that’s where the term came from and how and when it came into the matter.
Ms Wilson emphasised that the mother’s instructions in November 2016 were that “butterfly” had not been the term B used in making her ‘disclosure’ on Anzac Day 2014. She said the mother was very clear at the earlier conference about the butterfly issue.
However, Ms Wilson also accepted that Dr O’s notes (of 7 May 2014) and the father’s evidence about what he was told on 7 May 2014 both use the term “butterfly”.
Ms Wilson did not accept the possibility that in light of this she made a mistake when she recorded her note as she did in November of 2016. She remained resolute that she had accurately recorded the instructions given by the mother that day.
The mother contends that Ms Wilson’s notes are wrong. Further, as I understand at least one aspect of this part of the mother’s evidence, she says the note relates to a question Ms Wilson asked her about what B said when she was being examined by Dr O: that is, the mother’s account is that she made the “100% No” answer when telling Ms Wilson and Ms Cullen that B did not use the term “butterfly” during that examination. This is consistent with Ms Wilson’s evidence (as set out above) but does not answer the proposition that Ms Wilson remained steadfast about.
Ms Wilson said that she and Ms Cullen discussed this aspect of their instructions with the mother after she gave her evidence on 15 February 2017. They did so because, during that evidence she said she was 100 per cent certain B used that term when she spoke to her on Anzac Day 2014.
The mother also gave evidence that “throughout my discussions and throughout my affidavit material and my evidence in Court I have always said that B used the word “butterfly”. When asked, she particularised her ‘discussions’ to be that which she had with police and that which she had with Dr O.
The mother could not remember if she used the word ‘butterfly’ when she spoke to Ms CC of DD Lawyers (the firm that prepared her first affidavit in the proceedings) and accepted that her first affidavit does not contain that word anywhere. She said she did remember telling Mr EE of EE Lawyers (who next acted for her) about the word ‘butterfly’, but also accepted that the affidavit he drew for her does not contain that term either.
Given that the affidavit material prepared for the mother by Pippa Coleman’s firm (for which Ms Wilson works) does not contain the word ‘butterfly’ either, there are no less than three occasions over a number of years which clearly establish that the mother has sworn affidavits in which this term does not appear in her recounting of what she says B said to her on Anzac Day 2014 and, in that sense, she has not, in her affidavit material, always said that B used the word “butterfly”.
During her cross-examination in February 2017
During her cross-examination, the mother said she had a clear recollection of B’s disclosure. She said that the very first time B ever told her, she said ‘snake’; when she asked her what the ‘snake’ was (knowing, she said, what she was talking about because the father and D used the term ‘snake’ as well as the term ‘doodle’), B said: ‘doodle’.
The mother also said that she remembered B her saying “butterfly” as well. This was a term she had never, ever heard and still did not know where B she got that word from. She said that B had never used it since.
When asked why, given that evidence, she linked the term “butterfly” to B’s ‘pee pee’ (the terms she said B used), she said it was because she asked B to point to herself. At that time though, on the recounting set out above, B had already told her mother that she was sore in her genital area because that was the very reason the conversation started.
The mother’s evidence was that the incident occurred as follows: B said “Daddy put his snake in my butterfly”; she asked her to repeat what she had said; B repeated that “Daddy put his snake in my butterfly”; the mother asked her what a snake was and also asked her what her butterfly was and asked her to point to me (I interpolate to note that the fact that the mother asked B to point to her is not mentioned in any earlier account – all of these certainly seem to me to convey that B’s pointing to her genital area accompanies her statement that “Daddy put his snake in my butterfly”) and B pointed to her vagina, which was easy to do because her bathes were down. The mother explained she then took B for a swim at the pool where they met up with the maternal grandmother and she broke down when she told her what had just happened.
During her cross-examination, the mother said her recollection was that B said that he put his snake into her butterfly, but did not say it was in the shower. When asked about the contents of the police documents, she said she had told police that what B had told her was “Daddy had put his snake in my butterfly and it really hurt”; B went on to say about the shower as well, but she did not know if it was at the same time or not.
The mother said that her best recollection of B’s complaint to her was that the child said: “it really, really hurt me when daddy put his snake in my butterfly”.
Other comments made by B after 25 April 2014
Between 25 April 2014 and 7 May 2014
During her cross-examination , the mother said that B randomly said to her a couple of times, out of the blue, that it really hurt her when daddy put his doodle in there. She also said that, when she pulled up at kindy to collect D and a girlfriend/acquaintance offered to help her by taking B out of the car, B said: “It really hurt me when my daddy put his doodle in there”. She said B was not upset when she made this comment.
The girlfriend/acquaintance to whom this comment is said to have been made did not give evidence in the trial.
Mr H in September 2015
Mr W told Mr H on 10 September 2015 that B had said “stuff” to him about what the father had done to her. He said he thought something had happened to her because she talked to him on two occasions about it: he said she told him her father had put his doodle in her mouth and had weed; he also said he said he thought the mother had concerns about this.[31]
[31] Affidavit of Mr H, filed 9 October 2015 at [97].
At school
The mother says[32] that, on 6 October 2015, B’s teacher (Ms FF) told her that B had told a mother who was helping with reading that her father “kicked my mum” and also said: “one time he made my peenie hurt”. This parent wrote a statement[33] but did not give evidence at the trial.
[32] Affidavit of Ms Polson, filed 29 November 2016 at [56].
[33] Affidavit of Ms Polson, filed 29 November 2016 “SPP-7”.
The mother said this happened after the children knew they were going to Brisbane in 2015 and D had asked if they were seeing “[Mr Polson]”. She thought that B “obviously associated” the two, because she made those comments that afternoon. However, the mother also accepted that the statement does not say that B said her father or “[Mr Polson]”. She also accepted that the statement says ‘the name of the person wasn’t clear and asked her again but I did not understand what she said – clear the person male – “one time he made my peenie hurt”.
To Ms Q: from January 2016
B’s session with Ms Q yielded the comments outlined later in these Reasons.
Mr W said that during the negotiations on 13 February 2017 he ‘chucked his five cents worth’ in and said he did not agree with unsupervised time – despite this though the mother still signed the orders.
Mr W says that, from the start of his relationship with mother toward the end of 2014, he formed the view that the children were “way too touchy feely”; they engaged in behaviours that were ‘a bit off’: by which he meant: touching each other too much, too much touching and talking of private parts at their ages (four and five); using the word vagina and penis and weeing in the mouth (which he took to mean ‘ejaculation’) and also making the connection of a penis going into a vagina at their age. He said he noticed these types of behaviours around December 2014: about one year after any of them had sent unsupervised time with their father but only about one month after the counselling with “Ms V” (which, on the mother’s evidence involved discussion about private parts) stopped.
During his cross-examination, Mr W said that, on a random night, B randomly said “my dad” or “my father” (or whatever she called him) put his doodle down there and wee’d in my mouth; he said that he was taken aback. Despite there being no mention of any of this in his affidavit, he said B had said things along the same lines on a couple of other random occasions.
Calling Mr W “Dad”
The mother said that, shortly after she started her relationship with Mr W, D asked him if he could call him “Dad”. She said she was surprised and told D that “Mr Polson” is your father. Thereafter, the children have referred to Mr W as ‘Dad’. She said the children know that “Mr Polson” is their father but they want to call Mr W “Dad”; she and the children have spoken about it many times, it is what they want and they won’t stop calling Mr W “Dad”.
When asked about D’s repeated assertion that “mum says Mr W is our Dad and you’re Mr Polson” during time with his father at F Contact Centre on 10 January 2016, the mother said that was not correct at all. She was surprised D had said that.
Mr W’s attitude to this issue was clear: it is that the children have chosen to call him Dad.” Reference to Mr W’s evidence about this issue is particularly helpful in understanding the overall approach to this issue within the children’s home. When asked whether he had tried to stop the children calling him “Dad” at all he said:
Well, they had already been discarded by their biological father and I felt, at that time, when – when [D] actually asked me, I didn’t – I don’t want to disappoint the kid. I said he could call me whatever he felt comfortable with. He had already been rejected by another previous father figure. I wasn’t going to reject him a second time. He hadn’t seen this – that man, sitting right there, for close to two years…. He didn’t probably think he had a father figure.
As remarked upon elsewhere, Mr W appears to have approached the matter on the incorrect basis that D had not seen his father for close to two years when, as the mother recounts it, he asked to call him “Dad” at about December 2014.
Likely effects on the children of any changes in their circumstances[86]
[86] ss 60CC(3)(d) of the Act.
When D spoke with Mr H in September 2015, he rejected an offer of a magic wand to change any aspect of his life. He said: “I like everything in my life”.[87] At this time, Mr H assessed both B and E as healthy and robust, demonstrating age-appropriate developmental capacities and emotionality and as being clearly attached to their mother and positively bonded to her partner.[88]
[87] Affidavit of Mr H, filed 9 October 2015 at [78].
[88] Affidavit of Mr H, filed 9 October 2015 at [86] and [89].
Whilst Mr H assessed D as “ambivalent” about his relationship with his father, this ambivalence was not assessed by him as necessarily directly attributable to his actual relationship with him but, rather, a reflection of his mother’s attitude to his father: that is, his relationship with his father is still a work in progress. I certainly accept this assessment.
Despite D’s comments to Mr H during his two interviews about his memories of the last ugly incident between his parents, he has interacted well with his father at F Contact Centre.
In the circumstances of this case, as discussed in these Reasons, I accept that a move from unsupervised time to supervised time is likely to be accompanied by some initial anxiety on the part of D and, perhaps, E. However, D in particular has an established pattern of spending relatively regular supervised time with his father and, more recently, Ms L. In addition, E has recently participated in supervised time on a regularly recent basis also and has also had the opportunity to meet and interact with Ms L. The fact that the boys will attend time with their father together is something which, in my view, is more likely than not to ameliorate any anxiety and/or distress they may experience as they transition to, and become accustomed to, a changed parenting regime if their time with the father occurs on an unsupervised basis into the future.
Mr H said that the “litmus tests” vis-à-vis B’s relationship/time with her father had established that it was not possible to have her interact with her father. However, as expressed elsewhere, the efforts at F Contact Centre to encourage and support B to “go through” to see her father with her brothers have hardly been significant. Further, it seems that Mr H adopted the same approach.
I do not accept, therefore, that real, supported and sustained efforts have been made to see if, with the assistance of the presence of her brothers, B can be encouraged to spend the supervised time her mother thought was in her best interests as long ago as 17 April 2015 and Amended 18 May 2015 and continues to think is in her best interests.
I also note that, with the support of her mother, it seems that, in December 2015/January 2016, B was able to feel secure enough to participate in sessions with Ms Q.
Whilst it seems highly likely that the commencement of time with her father at the Contact Centre may well result in some initial anxiety and distress for B, I have no doubt she will be supported in overcoming the use by her mother because supervised time is what the mother proposes is in her daughter’s best interests.
I accept that a transition to spending unsupervised time with her father is something that is more likely to be more distressing for B but, even in this she is likely to be significantly supported by the presence of her brothers.
Family violence and family violence orders[89]
[89] ss 60CC(3)(j) and (k) of the Act.
A Domestic Violence Order, which contained the mandatory conditions that the father be of good behaviour toward the mother and not commit domestic violence, in respect of which the mother was the aggrieved and the father the respondent was in force between 14 April 2009 and 13 April 2011.
This Order was made after the police applied for the same following a report made to them on 5 April 2009. According to the contents of the police records for this event, at that time the father accepted or confirmed the account provided by the mother to police (as well as her accounts of previous incidents of domestic violence) and said that he was sorry for what he had done.
The records which relate to the 5 April 2009 event outline, in broad summary, the following: the mother (who was then five months pregnant) reported that, having returned home after going to collect a cot, she started to pack some of her belongings; the father saw her packing, became enraged and started to pull her clothes out from her drawers; when she picked them up, he pushed her and she stumbled back; she then tried to push him back; he screamed at her (calling her a ‘fucking bitch’); she cried; he walked into the lounge and kicked the chair and kept screaming abuse at her; she grabbed her overnight bag to try to leave and, as she left, she kicked the presents she had bought for him to give to his children from a previous relationship; he became more aggressive and pushed past her to head outside to her car; she followed him outside; he tried unsuccessfully to open the driver’s side door, said ‘fuck you’ and kneed that door (which caused a huge dent) and she got into her car and left.
When police attended, the mother had a small bump on her head and the father had scratch marks on his neck.
Police records also contain that the mother told police that the father’s behaviour had deteriorated since they married and his anger was getting out of control; she said he had broken or destroyed several items of property: for example, he had punched the computer monitor and broken it, smashed photo frames and porcelain candle holders and had punched holes in the walls of the house on numerous occasions. She said she had not reported these events to police because she thought he would improve.
Be Police records note that the father agreed with the mother’s description of the domestic violence which had occurred that day as well is previous incidents of domestic violence. Whilst the father accepts the accuracy of this record, his evidence is that he told the police he agreed (even though he did not agree with the accuracy of the recounting) because the mother was his partner.
As I understand the evidence, a report was made to the Department of Communities, Child Safety and Disability Services (the Department) in November 2009 about this event (which occurred in April 2009).
The mother’s accounts
The mother spoke with Ms BB, a Family Consultant who prepared a Child Inclusive Conference Memorandum dated 5 June 2015. It contains Ms BB’s description that the mother described coercive control and violence perpetrated against her by the father; physical abuse; emotional abuse; and that he had anger management problems. Ms BB records that the father denied the allegations and alleged that the mother would get “fired up”; he described conflict instigated violence, but denied being controlling or abusive.
The mother told Mr H on 10 September 2015 that she left the marriage but only after she had “gotten a kick”. When he asked her further about the alleged kick, she told him this was not the first time the father had hit her: she said there had been mental abuse for a number of years; she said the father had kicked the car door (which was reported to police) and was a person who could quickly become upset.[90] She said she was angry about what had happened and remained fearful of the father.
[90] Affidavit of Mr H, filed 9 October 2015 at [19].
The mother told Dr M in June 2016 that, even before she and the father married, he started to get quite controlling. She said that, after she had built the father up and encouraged him, his ego grew and he became quite aggressive: at first this was verbally and then it became physical. She said he had hit her numerous times. She said he bruised her arm when she was pregnant with D: she tried to get away from him, he kicked the car door in and she was petrified. She said he threw her clothes out the door and she had gone to the police to report what had happened. The police attended and spoke with the father and then told her it was okay for her to return to the home.
The mother told Dr M she had not wanted to continue in the relationship because it was getting worse, but the father wrote to her parents to say how sorry he was and that he would get help; the police obtained a Domestic Violence Order and the father was good for a period of time after that.
She told Dr M that, when she left K Town, the father gave her “a really good kick that dropped me” and that the child/ren witnessed this. She said she dragged herself to the bed and D went to the freezer to get an ice pack; the children were upset and she decided that they should not see that.
When Dr M asked the mother whether she had ever been violent within their relationship, she told him that she had pushed the father when he gave her a kick: she said he had become angry when she asked him to pick E up; he was screaming and she told him not to swear in front of the children; she walked past him and he turned around and gave her the kick that dropped her.
She said the father has a short fuse and had thrown the lawnmower if it did not work, punched holes in the wall at the home and pushed a child’s toy shelf and putting his fist through it.
The father’s accounts
The father denied to Mr H on 10 September 2015 that he had behaved in the manner alleged by the mother in her affidavits. He said the matters she asserted did not happen and that he did not kick the mother: he said he tried to push her away after she was trying to punch him when he had the child (presumably, E) in his arms; he said the children were sitting there watching the mother screaming and trying to hit him.[91]
[91] Affidavit of Mr H, filed 9 October 2015 at [55].
The father told Mr H that there had been other occasions when the mother had been violent toward him – he alleged she slapped him so hard across the head it caused his eardrum to “explode” and that he suffered swollen lips which were inflicted during the “pushing and shoving that would happen between us”.[92]
[92] Affidavit of Mr H, filed 9 October 2015 at [56].
The father said he had never attacked the mother; he said everything she accused him of was, in fact, her flying at him, punching and him putting his hands up to push her away. He said that the mother had called the police once: his account was that she became worked up because he had a lot of Christmas presents for his older children to post; she kicked them to shreds and said she was leaving; he got really angry and kicked/kneed the door of her car; he got a massive scratch and bleeding lip during the argument. He also said that, when the police came, they told him he should press charges against the mother but he did not because “that’s not the way was brought up”.[93] In answering questions about this event during his cross-examination, the father accepted that he was really angry at the time he behaved in this manner.
[93] Affidavit of Dr M, filed 18 July 2016, [28/42].
The father also told Dr M that the mother slapped him in the head and ruptured his eardrum: he said violence from her was not “the norm” but she would be violent a couple of times of a year during a heated argument and this usually involved “just pushing and shoving”; he explained that they would argue about normal life “rubbish”, often about money.
The father explained that the relationship ended because there was an argument. His account is that he picked up their youngest child because he started to cry; the mother had a crack at him ; they had a verbal fight during which he was nursing the child; the mother came and shoved him in the back and he nearly dropped E; she went crazy punching and shoving him; he kicked her away (because he had the child in his arms) and described this as more of a “push” which caused her to take two steps back and stumble into the wall: he says that D saw that. He said he decided he had had enough and the argument was the last straw; the children were at the table and saw it all. He also told Dr M that the mother was “a good mother” But it was just getting too fiery.
When he spoke with Mr H in July 2016, the father told him that there had been some pushing and shoving between himself and the mother: he said it was “definitely mutual”. He said he had never “actually bashed” the mother and described her as a feisty person who had actually attacked him physically more than once.[94]
[94] Affidavit of Mr H, filed 5 August 2016 at [37].
During his cross examination, the father accepted that domestic violence had occurred during their relationship but he maintained that it was a mutual occurrence: for example, he said that both parties swear at and speak to each other in derogatory terms. I think it more likely than not that both parents used foul language on occasions and were denigratory and derogatory in their communications at times.
Both parents accept that the children were present during the last argument of their relationship. I think it clear from Mr H’s report that D retains memories of that ugly event. Given his age, I am not persuaded that his recollection is necessarily an accurate representation of the entirety of that incident, but I certainly accept that for him, those memories represent the truth of what occurred.
Parental attitudes and communication
The mother told Mr H on 10 September 2015 that the big issue in the parties’ relationship was their differences in parenting. She explained there was no current co-parenting and said this was unlikely to change because, from her perspective, the father has a mental disorder.
Mr H concluded, in October 2015, that the mother’s perception was that the parental separation was entirely attributable to the father and represented a “repeat of history” given his earlier separation and following relationships with his two older children. He opined that the mother perceived the father as being undeserving of relationships with the children. He noted she reported that the father’s pursuit of contact with the children represented a significant threat to the children’s current adjustments and stability; she also thought it to be financially motivated.
As at October 2015 Mr H opined that both parents had difficulty separating their own needs from those of their children, continued to have unresolved personal and relationship issues which potentially limited their emotional availability and nurturing capacities, had entrenched and limited communications hallmarked by an overreliance on the legal process and consequently both required psycho-educational assistance to improve their individual maturity and co-parenting capacities.[95]
[95] Affidavit of Mr H, filed 9 October 2015 at [170].
Despite these recommendations, when she spoke with Mr H in July 2016, the mother said the parents had not done anything to attempt to improve their co-parenting: she said “but it’s impossible to engage [Mr Polson] anyway”.[96] She expressed her view that it was about time the Court made her “100 per cent responsible” for the children. There is nothing in the mother’s evidence or presentation (or that of Mr W) to suggest any change to this position.
[96] Affidavit of Mr H, filed 5 August 2016 at [23].
I accept Mr H’s conclusion (as expressed in the August 2016 report) that neither parent took up his earlier recommendations about how to target (and improve) their co-parenting capacities and motivations.
The mother’s previous attitude to Court Orders
It was submitted on behalf of the mother that she will comply with the Court orders. In my view, her history of compliance thus far is poor.
What orders are in the children’s best interests?
I may, subject to s 61DA and s 65DAB and Division 6 of Part VII of the Family Law Act 1975 (Cth) (the Act), make such parenting order as I think proper. I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects. In deciding whether to make a parenting order, I must regard each of the children’s best interests as the paramount consideration.
Allocation of Parental Responsibility
The parties agreed to an order for equal shared parental responsibility in the Minute each signed and sought be made by consent on the second morning of the trial in February this year.
The Independent Children’s Lawyer proposed that an order be made that the parents have equal shared parental responsibility for the children. The father adopted this positon, whilst the mother opposed it and sought that she be accorded sole parental responsibility for the children.
As already noted, given each parent’s account of their various interactions during their marriage, the presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them does not apply. Thus, the power to make parenting orders pursuant to s 65D of the Act is ‘at large’.[97]
[97]Subject always to the children’s best interests being the paramount consideration in the determination of those orders thought proper in all the circumstances of the case.
Of course, an order requiring that the parents have equal shared parental responsibility for major long term issues[98] relating to the children can be made if such order is considered to be in the children’s best interests. However, if the Court makes an order that the parties are to share parental responsibility for the children and the exercise of that parental responsibility involves making a decision about major long-term issues in relation to them, such order requires the decision to be made jointly by the parties.
[98] As defined in s 4 of the Family Law Act 1975 (Cth).
The father explained that, in determining to agree to equal shared parental responsibility for the children (during the course of the negotiations on 13 February 2017) he had decided he thought this would work because he was prepared to put the effort in. Given the fact that he has, to date, failed to take up the recommendations made by Mr H in his first report about mechanisms which may assist parental communication, I am somewhat inclined to think that this is a bit of a pipedream but, as there are no specific reason to disbelieve his relatively recently expressed aspirations, I am prepared to accept him at his word.
In support of an order according to the mother sole parental responsibility, it was submitted, in essence, that the Court would be persuaded that the absence of communication between the parents, their views of each other, their previously poor communication and the history of relationship dysfunction and domestic violence all impact upon their capacity to communicate with each other to the extent that they could not reasonably be considered capable of reaching decisions jointly, as they would be required to do if an order was made for them to have equal shared parental responsibility for their children and the exercise of that responsibility involved making decisions about major long term issues.
It is clear that, to the extent that she has been able to, the mother has already implemented her own decisions in relation to the name by which E is known. In one part of her evidence she accepted that, when she spoke to the father over the telephone in 2015 to ask him if he would sign the forms necessary to change E’s name to ‘E’, she told him this was the name by which the child had been known by no later than a few months after they separated at the end of 2013.
I am left with no doubt whatsoever that, if an order for sole parental responsibility is made, the mother will be further empowered to continue to diminish the father’s role in the children’s lives. I am not confident that if an order for sole parental responsibility was made to which was attached the “usual” conditions to seek the opinion of the father before making a decision about a particular issue, take it into account and revert to him with the result, that the mother would even comply with such an order.
Of course these conclusions do not axiomatically mean that an order for equal shared parental responsibility is something which is in the children’s best interests.
Whilst others may disagree, I am not persuaded at this time that the children’s best interests will be met by making an order according to the mother sole parental responsibility for them. In arriving at this determination I have taken into account the highly likely prospect of disagreement between the parents about matters encompassed within the exercise of their parental responsibility, especially where the same involve the making of making decisions about major long term issues.
However, it seems to me that the ambivalent nature of the current relationship between D and E and their father and the likely embryonic relationship between B and her father stands the best chance of developing if the children know that both of their parents are interested in them, wish to be involved in making decisions about major long term issues relating to them and seek the opportunity to discharge such parental responsibility.
Not without some trepidation, then, but with a focus upon the importance of supporting this primary relationship, I am persuaded that it is in the children’s best interests that an order be made according to their parents equal shared parental responsibility for the children.
The evidence in this case and the circumstances, as set out in detail above, easily persuaded me that it is not in the best interests of any of the children for them to spend equal time with each parent at this stage; nor would such a regime be reasonably practicable given the geographic distance between the parents, the significant impact that such an arrangement would have on the children at this point in time, the significant limitations on the parties’ current capacity to implement an arrangement for such time and communicate so as to resolve difficulties that might arise in implementing such an arrangement.
For the same reasons, I conclude that, at this time, it is not in the children’s best interests for the children to spend substantial and significant time with each parent. I also consider that substantial and significant time with each parent is not reasonably practicable, given the geographic distance between the parents, the significant impact that such an arrangement would have on the children at this point in time and the significant limitations on the parties’ current capacity to implement an arrangement for such time and communicate so as to resolve difficulties that might arise in implementing such an arrangement.
What other Orders are in the children’s best interests?
It was submitted on behalf of the mother that B and D’s shared belief that the father had touched B in an inappropriate and sexual manner would deleteriously impact on their emotional health if they were to spend unsupervised time with him. However, this issue was not explored with Mr H.
In the event that it is thought that unsupervised time with the father exposes the children to a risk of physical and emotional harm, I consider that the following are factors which further ameliorate such risk:
a)all three children are now older; and
b)Ms L is a member of the father’s household; and
c)at least D and B appear to have participated in counselling with “Ms V” for a not insignificant period, they have the dissipated in what was intended, it seems, to be a therapeutic intervention with Ms Q (but, in my view does not appear to constitute the same); and
d)the F Contact Centre observations of the father’s interaction with D during supervision there; and
e)that, eventually, all three children will attend time with their father together and, thus, each will have the comfort and support of their sibship – and, until that is the case the boys will have the support of the presence of the other.
In addition, in so far as the benefit and support of participation in ‘ongoing education’ was spoken of by the then Counsel for the mother in support of the proposed Consent orders on the second day of the trial, both D and B have already participated in counselling with “Ms V” which, on the mother’s description, involved at least some aspect of education about protective behaviours.
E attended day care for three days each week in 2016. Whilst the mother has decreased his attendance to one day per week from the start of this year, her evidence is that she did not do so because he was not coping (in fact she said he was happy to go), but because she wanted to maximise her time with him before he starts kindergarten in 2018 and because he and his half-sister NN play well together and entertain each other.
She also said that since E had started to ‘go in’ to F Contact Centre there had been no problem.
During the trial, the mother said she was open and happy for the children to spend time with their father whenever he could come down to visit them, including in school holidays: she said she believed the way to ensure the children have a relationship with their father is for them to have more frequent supervised time with him and not just two hours per month. Given the father’s evidence that this is not financially possible for him and the mother’s inability to contribute to the father’s costs of the same, it seems highly unlikely that it is possible for the children to have such opportunity.
Mr H expressed the view that he did not think the mother would enable the children spending overnight unsupervised time with the father without significant change to her attitudes and concerns. He thought that, as she supported supervised time, incremental changes to unsupervised time in the day time only may be easier for her to support.
The weakness in this proposition is that, whilst the mother has ostensibly supported supervised time between the children and their father from number of years via her agreement to orders in those terms, only D and, much more recently, E, have been afforded the opportunity to spend time with the father pursuant to those orders.
As at October 2015, Mr H supported the continuation of the then arrangements which provided for the children to spend supervised time with their father; he thought final orders could not then be made and it was appropriate the matter be further reviewed.
As at August 2016, Mr H opined that it seemed that a significant impasse had occurred in respect of the “contact” arrangements. He questioned the sustainability of the same over time, noting that the Court’s capacity to enable and support improvements in the same becomes increasingly difficult over time. He expressed the opinion that it was unlikely that any orders would sustainably remedy the existing impasse in relation to arrangements for B to spend time with her father.
Whilst he also thought it was unlikely that arrangements in relation to E’s interaction with his father would improve, E has, fairly recently commenced spending time with his father at the contact centre and all reports are that it is going well and he “goes through” with no difficulties.
Despite these issues he identified, Mr H expressed the opinion that it appeared that, at some time, it would be reasonable to enable unsupervised arrangements to occur in respect of D’s time with his father. In my view that time has been reached.
Whilst E’s time with his father to date has been much less than that enjoyed by D, I note he previously attended out-of-home care on three days each week and will be accompanied by his older brother during any future time he spends with his father.
Having taken into account the likely impost upon the boys, the importance to them of the opportunity to embrace the benefits to them of having a meaningful relationship with both of their parents, my conclusions in relation to the issue of whether the father poses a risk and/or an unacceptable risk to them, the developing nature of their relationships with their father, the assessments of the father’s parenting capacity recorded by F Contact Centre and his attitude to the responsibilities of parenting as demonstrated by him travelling to spend time with the children over a not insignificant period of time, I consider that it is in boys’ best interests for there to be a graduated, but increasing regime of unsupervised time with their father.
I intend that this regime increase such that the children are afforded the opportunity to spend overnight time with their father. In arriving at this decision I certainly accept Mr H’s evidence that the graduation of time to overnight time is an important one in the development of a meaningful relationship between the children and their father. The orders I will make endeavour to balance the need to afford the children sufficient opportunity to deal with the changed parenting arrangement and the importance of affording to them increased time with their father so as to continue to develop a meaningful relationship with him.
In order to facilitate the boys’ transition to unsupervised time, I intend to provide for an initial occasion whereby the transitions occur via F Contact Centre but, after this, can see no further purpose of the continued involvement of the Contact Centre in so far as the boys time with their father is concerned.
In arriving at the decision that it is in the boys best interests for there to be a parenting regime which provides for increasing periods of unsupervised time with their father, I have taken into account Mr H’s opinion that, without significant change to the mother’s current attitudes and concerns, there may be increased difficulties in her enabling or facilitating overnight interaction between D and his father. However, I also note the assessments of her as a strong person and that the timing of the regime will permit her to access whatever therapeutic support she considers necessary to be able to discharge her obligation to facilitate this time.
Having regard to the time which has passed since B has spent any time with her father, I consider it appropriate and in her best interests that her time with him initially occur via F Contact Centre.
I do not accept that the orders proposed by the Independent Children’s Lawyer and that the father in so far as B is concerned are orders which are currently in her best interests. Rather, in fashioning the orders I have determined are in B’s best interests, I have taken into account and attempted to balance way and balance the likely impact upon her of being required to recommence interaction with her father with the importance of providing her with the opportunity to rebuild the relationship which I accept previously existed between them. I have also taken into account, of course, that at least during various aspects of her initial time with her father she will be supported by the presence of her siblings.
Given that the mother and Ms L have no relationship and the level of antipathy which appears to remain, I am not persuaded by the proposition that the mother’s concerns may be ameliorated in some way if the orders require Ms L to be present during the children’s time with their father.
In saying that, I note it seems that Ms L intends – as demonstrated by her efforts in travelling to participate in the children’s time with their father at F Contact Centre – to seek to continue to develop a relationship with the children. Nothing in these remarks should be regarded as in any way suggesting that that is inappropriate.
The mother’s proposal that the Orders include a term that neither parent consume alcohol beyond the legal driving limit or consume illicit drugs when the children are in their care
Neither parent was cross-examined about any matter that could provide a foundation for such an order. I am not persuaded of the basis to make the same and decline to do so. Of course, the behaviour of both parents, like all others in Australia, remains regulated by the existing laws governing matters associated with the consumption of alcohol and the use of illicit drugs.
The s 65L order
On 7 July 2017, I made a s 65L Order in chambers. I did so having regard to the following comments made by Mr H in his most recent report:
On balance, the writer considers that a significant impasse has occurred in contact arrangements, and that, over time, the sustainability of such and the capacity of the Court to enable and support improvements becomes increasingly difficult.[99]
[99] Paragraph 94.
It was in an attempt to overcome this impasse that I determined that it was in the children’s best interests to make the s 65L Order.
The involvement of a Family Consultant is intended to assist B to understand that she is about to begin the process of recommencing her relationship with her father. It is hoped that the Family Consultant will be able to explain to B that her mother wants her to attend supervised time with her father at F Contact Centre.
I have made the order because I consider that the Family Consultant has the experience and expertise to be able, if it is deemed age-appropriate to explain the terms of the orders to all of the children in a manner and in terms which are age appropriate and, perhaps, to emphasise to all of them – and B in particular – that her mother wants her to start to spend supervised time with her father at F Contact Centre and to explain to B that doing this will allow her to meet her father again and to meet his partner, Ms L (who her brothers have already met).
Whilst Mr H said that, if there was to be a review, this should happen before overnight time was ordered, he did not say that there should be a review.
I am not persuaded to impose a review process in this case. Subject to meeting the ‘rule’ in Rice v Asplund[100] parents are always at liberty to seek further parenting orders given that these are not necessarily ‘final’ in the sense in which other orders made to conclude litigation between parties are final.
[100] (1979) FLC 90-725.
Final comments
To the extent that other aspects of the orders which will be made are not the subject of particular discussion in these Reasons, I have concluded that they are in the children’s best interests because they will enable both parents to be kept informed about the children and their progress, will afford the children the opportunity to maintain communication with each parent in the time between face to face interactions and are intended to ensure, as far as possible, that the children are protected from the harm which may be caused by exposure to derogatory comments about their parents and other members of each parent’s household.
I certify that the preceding five hundred and thirty five (535) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 21 July 2017.
Associate:
Date: 21 July 2017
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Consent
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Costs
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Jurisdiction
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Remedies
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Standing
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