RILEY & DENNIS
[2018] FamCA 412
•6 June 2018
FAMILY COURT OF AUSTRALIA
| RILEY & DENNIS | [2018] FamCA 412 |
| FAMILY LAW – CHILDREN – Best Interests – Where the mother and father have been involved in court proceedings for most of the child’s life and each parent has made very serious allegations against the other involving neglect, emotional, physical and/or sexual abuse against the children – Where the evidence does not support a finding that the father has sexually abused the child or that there will be an unacceptable risk of exposure to family violence or alcohol abuse if the child remains with the father – Where there is an unacceptable risk of harm to the child by reason of the mother’s steadfast belief that the father has sexually abused the child – Where the Court cannot be satisfied of any circumstances in which the child can safely spend time with the mother. |
| Family Law Act 1975 (Cth) |
| Baghti & Baghti [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 N and S and the Separate Representative (1996) FLC 92-655 |
| APPLICANT: | Mr Riley |
| RESPONDENT: | Ms Dennis |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Kingston |
| FILE NUMBER: | BRC | 7304 | of | 2009 |
| DATE DELIVERED: | 6 June 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 12 - 16 March 2018, 16 & 17 April 2018 |
REPRESENTATION
| THE APPLICANT: | Self-represented for 12 – 16 March 2018 and by Ms Hellewell by direct brief on 16 & 17 April 2018 |
| THE RESPONDENT: | Self-represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms K. Oakley |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Norman & Kingston |
Order
The father have sole parental responsibility for the child X born … 2007 (“the child”).
The child live with the father.
The mother be restrained and an injunction hereby issues restraining the mother from spending any time with the child or communicating with the child other than as permitted by this Order.
The mother be permitted to send a gift and card to the child on his birthday, at Easter and at Christmas by sending the gift and card to a post office box number or address provided to her by the father.
Within 21 days the father is to inform the mother of a post office box number or address to which the mother can send a card and gift as provided for in paragraph 4 of this Order and upon receipt of any card and gift the father is permitted to vet the card and gift to consider whether the items are appropriate for the child to receive.
The mother be restrained and an injunction hereby issues restraining the mother from coming within 200 metres of the child or from coming within 200 metres of the child’s residence or school.
The mother be restrained and an injunction hereby issues restraining the mother from encouraging or facilitating any other person on her behalf coming within 200 metres of the child or from coming within 200 metres of the child’s residence or school.
The mother be restrained and an injunction hereby issues restraining the mother from contacting the child or the father (other than as permitted by this Order), or attempting to locate the father or the child, or engaging or asking any other person or organisation to contact or locate or carry out surveillance of the child or the father.
The father be at liberty to provide the Queensland Commissioner of Police and the Commissioner for Children and Young People and Child Guardian with a copy of the entire electronic recordings contained in exhibit 16 (not limited to the particular parts of that recording that were relied upon at trial) and for this purpose the father is permitted, at his cost, to obtain a copy of those recordings from the court file.
The independent children’s lawyer be discharged upon the expiry of the relevant appeal period.
The Senior Registrar of the Family Court of Australia, Brisbane is directed to forward a copy of the Reasons for Judgment to the Queensland Commissioner of Police and the Commissioner for Children and Young People and Child Guardian for such investigations as they may deem appropriate in relation to Ms Dennis, Ms B and Ms C.
That the Senior Registrar of the Family Court of Australia, Brisbane is directed to refer the findings contained in the Reasons for Judgment in relation to Ms C and a not for profit organisation with deductible gift status called E Group of which Ms C is the Chief Executive Officer and founder, to any authority with responsibility for registering or regulating such an organisation for the purpose of investigating whether Ms C should be removed from her position within the organisation or whether the organisation should have its deductible gift status removed.
That the Senior Registrar of the Family Court of Australia, Brisbane, refer the findings contained in the Reasons for Judgment in relation to Ms B and a not for profit organisation with deductible gift status called the D Centre of which Ms B is the operating officer, to any authority with responsibility for registering or regulating such an organisation for the purpose of investigating whether Ms B should be removed from her position within the organisation or whether the organisation should have its deductible gift status removed.
Any outstanding application be dismissed.
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 Riley & Dennis 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 7304 of 2009
| Mr Riley |
Applicant
And
| Ms Dennis |
Respondent
REASONS FOR JUDGMENT
Mr Riley and Ms Dennis are the parents of X born … 2007. Mr Riley and Ms Dennis have never lived together but had a relationship for a number of years which ended in or about 2007, prior to the child’s birth.
The parents have been involved in court proceedings for most of the child’s life. Each parent has made very serious allegations against the other involving neglect, emotional, physical and/or sexual abuse of the child.
The parents have come to the Family Court of Australia because they cannot resolve their own dispute.
The child has lived with his father since December 2015 and has spent no time with his mother since July 2017. By all independent accounts he is thriving.
For the reasons which follow, I reject the mother’s allegations that the father presents an unacceptable risk of harm to the child and I propose to make an order that the child continue to live with his father.
The mother will never accept my finding that the father does not present an unacceptable risk of harm to the child and, given that she has already absconded with the child during supervised time, I cannot envisage any circumstances in which the child can safely spend time with his mother.
Poignantly, the child said in a police interview on 10 June 2017 that he had spoiled his parent’s lives and if he had not been born they would not be fighting. What a terrible burden for such a young child to carry.
issues
The issues relevant to the determination of where the child should live and what time, if any, he should spend with the other parent are:
a)Does the father present an unacceptable risk of harm to the child by reason of sexual abuse or alcohol abuse or exposure to family violence in the form of yelling and swearing at the child?[1]
b)Does the mother present an unacceptable risk of harm to the child by reason of her steadfast belief that the child is at risk of harm from the father?[2]
[1] Although in exhibit 9 the mother refers to physical abuse and neglect the case conducted by the mother related to alleged alcohol abuse and exposure of the child to the father yelling and swearing.
[2] The father raised historical allegations of neglect against the mother which were not ultimately pressed and in light of Dr G deferring to Dr H’s opinion that the mother did not suffer from a psychiatric disorder the father did not press his assertion that the mother suffered from a mental illness.
background
Before turning to a consideration of the issues, I note by way of background that the father is 54 years of age and employed full time. He and the child live in a suburb of Brisbane. The father has two daughters aged 23 and 21 who were present in court for some of the proceedings. There was some suggestion by the mother that the father also had a child living in the UK. Whether he does or not is not a matter relevant to this hearing.
The mother is 45 years of age and self-employed. She lives in a neighbouring suburb to the father and the child. The mother lives with her five year old daughter, known as Y. It is unclear whether Y’s father sees her. The mother obtained a protection order against him in 2012. The mother was briefly married to another man, Mr F, in or about 2016 but he has since returned to his home country. The child met Mr F prior to commencing to live with the father in December 2015 and he attended at the contact centre where the mother was spending supervised time with the child on a couple of occasions.
As noted earlier, the parents have never lived together but did have a relationship for a number of years. The relationship ended in or about 2007 when the mother was twelve weeks pregnant with the child. There was a three-week attempted reconciliation in 2009.
In 2010 and again in 2014 court proceedings between the parents were finalised when the parents agreed for the child to live with his mother and spend time with his father.
The child was removed from his mother by police and child safety officers on 7 December 2012 and placed with the father. The mother remains adamant that the father orchestrated the child’s removal. The father denies the allegation. The child was removed from the mother at hospital while she was in labour with Y. I have no doubt the removal was a traumatic event for both the mother and the child.
On 25 January 2013 the mother, with the assistance of three men, removed the child from the father. This was another traumatic event for the child.
The father commenced proceedings on 30 January 2013. The father spent some intermittent time with the child from then until an Order was made in August 2013 for the child to spend alternate weekend time with his father.
On 13 May 2014 another ‘final’ parenting Order was made by consent. It provided for the child to live in an equal time arrangement with his parents. The mother was restrained from reporting allegations of sexual abuse relating to the matters already investigated. The mother now says she signed that order under duress. The mother was legally represented at the time and had told the family report writer some time prior to the order being made that she was no longer pressing her allegations and would agree to the father spending time with the child.
In the period May 2014 to August 2015 the child lived in a week about arrangement alternating between his parents. The mother stopped the child’s time with his father from 13 August 2015 and also his attendance at school without explanation. The school was concerned about the child’s non-attendance as no arrangements had been made with the school or with Department of Home Education for the child to be home-schooled. When the child was interviewed by child safety officers on 4 September 2015 he said that his mother was keeping him away from school so that his father did not ‘steal’ him and described his father as a ‘bad man’.
There was no time spent between the child and his father until December 2015 when, pursuant to a court order, the child commenced to live with his father and spend supervised time with the mother each alternate Saturday for two hours at a contact centre.
The child has not spent any time with his mother since mid-2017, as a result of the mother removing the child from the contact centre during a supervised visit.
The child is now in grade five at a local State school in the suburb in which he lives.
There have been four family reports prepared in this matter by family consultant, Ms J. Her reports are dated 19 March 2013, 6 March 2014, 3 June 2016 and 28 February 2018 respectively. Ms J also saw the parents and the child on 11 February 2013 and 19 January 2016 resulting in two memorandums to Court.
There are competing allegations of family violence with each party contending the other was the perpetrator. It is common ground that the child has been exposed to significant verbal abuse between the parties. By way of example on 3 November 2011 the mother attended to collect the child after he had spent time with the father and said to the father in front of the child – ‘You men are all the same. You’re a shower of fucking arseholes. You think you can just go around fucking whoever you like when you like.’
The child attended upon a psychologist, Ms K in 2012/13 and another psychologist Dr L over about four or five months in the first half of 2013. He also saw a counsellor for about twelve sessions in 2014/2015 called Mr M. There is no evidence that any disclosure of abuse was made to any of these professionals.
The mother has made allegations of sexual abuse against the father and his daughter, Ms N, involving the child.
The father has historically made numerous allegations against the mother including that she has repeatedly threatened to commit suicide; that she burnt herself with cigarettes; that she has been involuntarily admitted to hospital on a number of occasions; that she failed to feed the child sufficiently; that she made false allegations against him and Ms N; that she did not send the child to school.
proposals of the parties
The father adopted the proposal recommended by the independent children’s lawyer at the end of the trial, namely, that the father continue to have sole parental responsibility for the child and that the child continue to live with him and spend no time with the mother.[3]
[3] The precise form of order recommended by the independent children’s lawyer and adopted by the father is set out in exhibit 21.
In the event that the father is found to present an unacceptable risk of harm to the child by reason of sexual abuse, physical abuse or neglect then the mother proposes that the child live with her and spend supervised time with the father for two hours once a fortnight. If the father is not assessed to present an unacceptable risk of harm to the child the mother proposes that the child live in a week about arrangement with changeovers to occur at the child’s school or a contact centre.[4]
[4] The order sought by the mother is set out in exhibit 9 although as noted above the mother did not present evidence of the father having physically abused the child or neglecting him.
At the conclusion of the trial the independent children’s lawyer recommended that the child continue to live with the father and spend no time and have no communication with the mother.[5] This recommendation was in accord with that of the family report writer, Ms J.
[5] The precise form of order sought is set out in exhibit 21.
Legal principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper,[6] but such consideration will focus in particular on matters raised as significant issues by the parties and of course the Court.[7]
[6] See Family Law Act 1975 (Cth) s 65D.
[7] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637.
The Court is not required to make findings of fact on every factual dispute raised by the parties.[8]
[8]Baghti & Baghti [2015] FamCAFC 71.
The objects and principles of Part VII of the Act are set out in s 60B(1) and (2) and those sections make clear that the Court is concerned with children’s rights to be, among other things, cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child etc. (s 60CC). In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in what is sometimes referred to as the ‘legislative pathway’ I have considered all sections as required when making my determination.[9]
[9]Banks & Banks (2015) FLC 93-637.
In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the ‘inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’ and proof to the reasonable satisfaction of the court ‘should not be produced by inexact proofs, indefinite testimony or indirect inferences’.[10] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[11]
Does the father present an unacceptable risk of harm to the child by reason of sexual abuse or alcohol abuse or exposure to family violence in the form of yelling and swearing at the child?
[10] See M & M (1988) 166 CLR 69 (“M & M”) citing Briginshaw v. Briginshaw (1938) 60 CLR 336, 362 (Dixon J).
[11] See M & M (supra) and see also N and S and the Separate Representative (1996) FLC 92-655.
The sexual abuse allegations
The mother submits that a finding should be made that the child has been sexually abused by the father and that there is an unacceptable risk of the child being sexually abused by him in the future.
Sadly, sexual abuse of a child by a family member does occur and it can be a difficult allegation to prove or disprove. Once an allegation of that nature is made it can damage, sometimes beyond repair, relationships between parents and/or between a parent and a child. It is not an allegation to be made lightly but if reasonable suspicion of such a vile act exists a parent would be remiss not to raise it with appropriate authorities and in court proceedings.
In this case the mother first made allegations of sexual abuse against the father in June 2013 and since then she has repeated the allegations and added to them. The allegations have been investigated by police and child protection authorities and the allegations have been dismissed as groundless. The relevant authorities regard the mother with suspicion and suspect that she has coached the child. The mother is highly critical of the quality of the investigations undertaken and sought to use this trial as a means of attacking those that undertook the investigations. It was pointed out to the mother that the purpose of this trial is to determine what order best meets the needs of the child and that purpose cannot be derailed by a party seeking to attack an investigation conducted by others. This Court will consider all evidence presented to it and make its own determination.
Evidence of sexual abuse relied upon by the mother
The evidence upon which the mother relies to support her allegation of sexual abuse comprises:
a)Sexualised behaviour exhibited by the child over a period of two months prior to the first ‘disclosure’ on 3 June 2013;
a)Statements by the child made to her and others;
b)Drawings done by the child said by the mother to be ‘indicative’ of sexual abuse; and
c)The child’s fear of the father.
Background to the allegations
Before turning to consider this evidence it is important to appreciate the background to the allegations.
The father had made numerous complaints to the Department of Child Safety[12] (“the Department”) about the mother allegedly neglecting and emotionally abusing the child. The mother remains antagonistic towards the father because of these complaints. While there were some concerns by child safety officers about the mother’s lack of bonding and failure to respond to the child at times, none of the father’s complaints led to the child’s removal from the mother.
[12] Department of Child Safety, Youth and Women.
However, on 13 November 2012 a social worker from the O Hospital (“OH”) interviewed the mother and her presentation led to a notification to the Department. This was the mother’s first ante natal visit of any kind in relation to her second pregnancy. The mother insisted that the child (then 5 years old) be present during the interview and the hospital records refer to the interview as follows:[13]
[Ms Dennis] has stated that she would like [the child] present during labour and delivery as ‘he is my main support person’. … [Ms Dennis] reported that she has no supports in Qld and stated that [the child] is her ‘life partner’. [Ms Dennis] became agitated when [social worker] challenged the appropriateness of this role falling on her 5 yr son. [Ms Dennis] reported that she is considering adopting this [baby] and is ‘not bonded’. [Ms Dennis] reports that she wanted to adopt [the child] but was ‘guilted’ into keeping him and ‘regrets’ this decision. [Ms Dennis] reports that she plans to take [baby] home & ‘see how we parent’ (the ‘we’ referring to herself and [the child]) – again she became agitated when challenged on this point. [Ms Dennis] reports that she has arranged a dog sitter but has not thought about child care options … [Ms Dennis] reported no family/friends available to stay to provide child care. …Reports … DVO btw herself & [father of baby] [Mr P] & custody issues with [the child’s] [father] [Mr Riley]. … [the child] has made reference to staff ‘being in disguise’…. [Ms Dennis] reports that she is scared of hospitals and will attempt to birth at home or on side of road – no insight into risk to self/baby. …
[13] Exhibit 10 volume 1 pages 124 – 126.
The OH records also reveal that the mother had had a ‘longstanding involvement with mental health services in the past pertaining to undifferentiated personality disport with psychotic symptoms, dysthymia and difficulty with stress tolerance.’
On 26 November 2012 the mother telephoned the OH following a visit from Departmental officers and demanded to know who had reported her.
On 30 November 2012 the child was interviewed by police and a child safety officer at his day care. During the interview he said some rather alarming things including:
a)His mother had told him about Daniel Morcombe[14] and that he is dead;
b)His mother was unwell;
c)His mother faints all the time;
d)They are not allowed to have visitors until after the baby comes out;
e)‘We’ do not know what we are doing with the baby yet;
f)He does not have a father;
g)His mother wanted to give the baby to someone else.
[14] A 13 year old boy who had been abducted and murdered.
At the time of interview, the child had not spent any time with his father since 29 May 2012. The mother contends this is because the child feared the father. The mother had recently separated from Mr P, the father of Y. The mother accused Mr P of attempting to choke her and a protection order had been made against him.
On 4 December 2012 the police officer who interviewed the child on 30 November 2012 attended at the mother’s home. The mother refused to permit entry to her home. The child was heard in the background to say – ‘are they trying to trick you in the head?’. The mother refused to reveal when her baby was due.
On 5 December 2012 two child safety officers attended at the mother’s home but she refused them entry and refused to engage with them. The possible consequences of failing to co-operate with an investigation were brought to the mother’s attention i.e. removal of the child if considered in need of protection.
On 7 December 2012 the child was removed from the mother by police and a child safety officer while the mother was at the hospital in labour with Y. The child is reported to have said ‘I can’t handle it’ and ‘They’re going to snatch me’ prior to his being removed. Prior to the police attending at the hospital the father had been contacted and told to be ready to receive the child.
The mother believes the removal of the child was orchestrated by the father and there remains considerable bitterness towards the father because of this incident. The mother alleges that the father was in a relationship with the police officer involved in the child’s removal. There is not a skerrick of evidence to support this allegation and I reject it.
I find that the reason the child was removed from the mother was because of the mother’s behaviour and statements on 13 November 2011, her history of contact with mental health services, her refusal to co-operate in the child safety investigation and the belief by police and the Department that the child was in need of protection at that time, from the mother.
That said, I have no doubt the whole affair was traumatic for the child and for the mother.
I find that the child was made aware of the mother’s belief that the father was behind his removal from the hospital. I say that because the child, during a police interview on 29 March 2013 said ‘Dad is a bad man, he is trying to take me away, he is a liar, he says bad things about mum.’ And ‘Bad police trying to snatch me away.’ The scene was set for another bitter feud between the parties to which the child was exposed.
On 25 January 2013 the mother, with the assistance of three men, accosted the father and removed the child from his care. The mother and child then flew to New South Wales. The father commenced court proceedings on 30 January 2013.
During a child inclusive conference with Ms J, family consultant, on 11 February 2013 both parents admitted that the child had been exposed to their high conflict and verbal abuse for which each blamed the other.
During the first family report interviews on 21 February 2013, Ms J opined[15]:
69. … [the child’s] demeanour, statements and interactions with his mother and father illustrate that he is an emotionally disturbed and confused five year old. In my view [the child’s] behaviour is a combination of his exposure to longstanding hostilities between his mother and father and is also a manifestation of [Ms Dennis’s] psychopathology. …
…
71. [The child] has in my opinion imbued [Ms Dennis’s] construct of [Mr Riley] as a dangerous man who cannot be trusted. But, [the child’s] construct is confused because he appears to have difficulty assimilating [Ms Dennis’s] construct to his own experience of [Mr Riley], because they are incongruent. Statements the child makes about his father being a liar and a bad man without any ability to provide any examples illustrates this. [The child’s] relaxed and playful manner with [Mr Riley] when [Ms Dennis] is not watching as opposed to monitoring and filtering his behaviour and looking to his mother for direction or reassurance with [Mr Riley] in [Ms Dennis’s] company also illustrates this. …
[15] Exhibit 1, Family Report of Ms J dated 19 March 2013.
On 29 March 2013 the child was interviewed by police in a recorded interview lasting 32 minutes. The child confidently states his name incorrectly. He clearly does not want to be there. He says his mother brought him to the police station because his father was trying to take him away. The child is fidgety and naughty and says he wants to leave the interview. He repeats on numerous occasions that his dad is a liar and a bad man who wants to take him away. He stops any attempted discussion about his mother saying that his mother said there was to be no talking about her or she will get into trouble.
During her oral evidence the mother was unable to say why the child was interviewed on this occasion.
Dr L is a child psychologist who commenced clinical contact with the child in March 2013. He produced a report dated 28 May 2013 in which he said, among other things:
[The child] is aware that his mother and father do not get along with each other. This has caused [the child] to be fearful. This has caused [the child] to be concerned when he has to have simultaneous contact with his parents.
Considering the background just outlined, I consider Dr L’s opinion to be of some significance. I accept his opinion that the child is likely to be fearful at the thought of his parents coming into contact.
Sexualised behaviour
The first statement indicating sexual abuse was made on 3 June 2013 and was made in the context of a two month history, according to the mother, of ‘sexualised’ behaviour which she describes in general terms as ‘adult simulated masturbation’, ‘simulated sex with one of the dogs on a number of occasions’, ‘trying to pee on one of his friend’s faces at a playdate earlier this year’, ‘trying to put his penis into the mouth of his baby sister’s mouth (sic) when the baby was just 5 months and exposing his penis and bottom on a regular basis for no reason’.
In her oral evidence the mother was asked about the sexualised behaviour and she described that on one occasion she observed the child attempt to put his penis in Y’s mouth. Y was five months old at the time and the child was five. The mother then gave an account (which does not appear in any other evidence before me), namely, that she asked the child ‘Where did you get that idea?’ and the child said ‘dad showed me on TV’. When it was suggested that this account was a recent invention the mother claimed she had given this account in an earlier affidavit. No such affidavit was produced.
Also in her oral evidence the mother described what she meant by ‘simulated sex with one of the dogs’. She said she saw the child rub his penis against the dog.
The mother’s evidence about alleged ‘sexualised’ behaviour was less than convincing. Her evidence was inconsistent and embellished on occasions. The mother provides little detail of the alleged behaviours. Her evidence was at times vague and I had the impression she was making it up as she went along. There is no evidence that the child displayed such behaviour in front of anyone else. There is no evidence as to the significance, if any, of the alleged behaviours.
There is no mention of the alleged ‘sexualised’ behaviour in Dr L’s report dated 28 May 2013 yet he was seeing the child regularly over the relevant two month period. The mother did not call Dr L as a witness in her case. The mother initially said during cross-examination that she had not told Dr L about the ‘sexualised’ behaviour because he was a man and she did not feel comfortable telling him. A day later she changed her evidence and said that she had in fact told him. There is no corroboration that the mother told Dr L about what she saw. I note with interest the account of the Department’s contact with Dr L on 21 June 2013 which reports,[16] among other things:
[The child] was very apprehensive to see him and he didn’t want to leave his mother and insisted on being present when [Dr L] spoke to her. He appeared overprotective of his mother but after he saw him alone he started to open up and then there was this allegation and [Dr L] has refused to see him anymore as he is unable to provide an objective view.
[The child] needs to see someone objective and so do both the parents and only that way will the truth be found and he does not think he is the person to do that. What he sees happening is that one parent is being alienated from [the child] and this will be for good reason but who is the culprit?
The child’s statements
[16] Exhibit 10 volume 1 page 246.
To the mother – 3 June 2013
The mother relies upon diary entries annexed to a 2013 affidavit. It is apparent upon reading the diary entries that they were not made at a time immediately proximate to the events e.g. the entry on 5.6.13 includes this statement ‘The same week I contacted [Dr L]…’ which indicates to me that the entry was made by way of summary at a later time.
Turning then to consider the child’s statements, the mother says that on 3 June 2013 at 3.35pm she picked the child up from school and asked him ‘how was the weekend and how was school, is everything well at dad’s now?’ and in an outburst the child said ‘no no no, he makes me watch him naked doing stuff to his penis, and he makes me touch his penis’.
This is the first time the child is alleged to have made a statement indicating sexual abuse.
To police – 3 June 2013
The child took part in a second recorded interview with police on 3 June 2013 at 6.30pm for 28 minutes. It is again apparent from the child’s demeanour that he does not want to be there. The child says – ‘This is real important’; ‘Dad is making me say, he is saying ‘look’ when he is totally naked’. The child then refers to his half-sister, Ms N, and says she does the same thing. ‘She says ‘look the child’, then I walk to the shower and I see her totally naked. It’s the total same thing.’ There is no suggestion that Ms N and her father are in the shower at the same time. The child says that they pretend to pee on him. He says – ‘They are just holding their penis, they are holding their penis and pretending to do it’. The child says he is terrified but when asked what that means he says he does not know.
There are a number of leading questions by the police officer. One such question is ‘do they touch you?’ which elicits a positive response. The child is asked how they touch him and he gestures with his hand, initially moving his hand very slowly as he holds onto a pillow about chest height. He then starts shaking his hand more quickly at the height of his upper torso. He says they touch him really fast. When asked who touches him really fast he says ‘Dad’. When asked where his father touches him he says ‘anywhere’ and indicates his shoulder. The child is asked if his father hurts him which elicits a positive response. When asked how, the child says by laughing at him when he is pretending to pee on him. The child was asked how his mother found out about this and he said ‘by going to court’.
During her oral evidence the mother said that the part of the interview involving the child shaking his hand indicated to her that the father was masturbating the child. I must say that upon review of the video recording I find it impossible to draw such a conclusion.
To the mother – 4 June 2013
The mother says that at 7.35pm on 4 June 2013 the child burst into tears and said that the police officer had been mean to him during the interview and he never wants to go back to the police again. There was nothing in the recorded interview that would be consistent with the description given by the child of the police officer’s conduct.
To the mother – 5 June 2013
On 5 June 2013 the mother says that the child volunteered that he wanted to talk about dad again. Her diary note states the child ‘again said’, that the father is in the bath when he gets the child to touch his penis. There is no mention in the diary entry of 3 June 2013 that the child mentioned the father being in the bath. I note that the alleged statement by the child is not in quotation marks yet other less incriminating statements are in quotation marks. This may indicate that the mother was summarising the more incriminating statements based upon what she thought the child was saying, perhaps as a result of questioning by her. It may also indicate fabrication by her.
The mother alleges that the child made statements to a Dr R on 5 June 2013 indicating sexual abuse. Despite the mother stating that an affidavit would be forthcoming from Dr R no such affidavit was produced and Dr R was not called as a witness by the mother despite there being an adjournment of the trial for a number of weeks and the mother being advised that any further affidavit upon which she wished to rely should be served upon the father and independent children’s lawyer.
The mother was cross-examined about her visit to Dr R with the child on 5 June 2013. The mother admitted saying to the child upon arrival at Dr R’s rooms ‘what do you want to tell [Dr R]?’ The mother denied taking the child to Dr R for the purposes of court proceedings. I reject that denial as it is clear from the mother’s own diary note that that she took the child to Dr R for the purpose of the child making ‘disclosures’ in circumstances where he had failed to make disclosures when he was interviewed by police. The mother gave a different reason for her attendance upon Dr R during her oral evidence, namely, to obtain a referral to a psychiatrist upon the recommendation of Dr L. Yet, as she admitted, she did not ask for a referral on this occasion. I find that the mother’s evidence on this issue was untruthful.
To the mother – 6 June 2013
The mother says that on the morning of 6 June 2013 the child woke up in an agitated state and said he was angry about his father and that his father touches his doodle on the couch. Again the mother’s diary note does not include any quotes from the child about alleged abuse despite using quotation marks in relation to other matters. The diary goes on to state (in narrative form) that the child said that the touching occurs every day he is with his father and that it had been happening for a long time since he was little. It is interesting that the term allegedly used by the child for the father’s genitalia has changed from ‘penis’ to ‘doodle’ in the space of a couple of days. I note that the mother made a particular point during her cross-examination of Dr S that the use of the term ‘doodle’ was a term in keeping with language expectations of a child that age.
Shortly after waking up on 6 June 2013, the child is alleged to have said that his father is naked on the couch and rubs the child’s ‘doodle’. The mother says the child showed her by starting to rub his own penis. It is further alleged the child said his father stood over him and said ‘you better not tell anyone about this’. The mother also alleged that the child had been returned with an ‘infected, sore and red penis’ for the past two years and had regularly complained of pain upon urination. It is important to note here that the child spent no time with his father during the period May to December 2012.
The mother says that Dr T was the treating GP in relation to these recurring problems. Elsewhere in her evidence the mother says the child had recurring ‘injuries’ to his penis. Dr T’s evidence is that she saw the child on three occasions only, namely, 15 March 2010, 1 April 2010 and 16 December 2010. The only reference to the child’s penis appears in the consultation for 15 March 2010:
Redness around tip of penis for one week
c/o pain on urination
Accordingly, there is no medical evidence to support the mother’s repeated assertions that the child had recurring infections or injuries to his penis prior to his making the disclosure of sexual abuse or at all.
By way of completeness I note further medical evidence dated 28 March 2010 from the U Hospital Emergency Department. The mother had taken the child to the hospital at 6.00pm stating the child had had some slight bleeding around the anal area. On examination it was determined that the child had been straining when trying to go to the toilet and he was diagnosed with constipation. Such a diagnosis is consistent with Dr T’s notes from April 2010 and other notes from the hospital from March 2010 and February 2013 about the child suffering from constipation.
To child safety officers – 6 June 2013
In an interview between child safety officers and the child at his home on 6 June 2013, child safety records indicate that the child volunteered to child safety officers that his father is tearing his life apart and that of his mother’s. Such a statement sounds remarkably mature for a five year old. It is more likely to be something he has heard his mother say.
The child said there was nothing good about his father. The child safety officers said to the child that they had heard something about a shower at the father’s place and the child responded – ‘yeah [I have] to have a shower when [I don’t] want to and there are yucky things inside the shower – bugs’. He also said that no one helps him while he is in the shower.
There was no statement made by the child that could indicate abuse yet the mother’s diary entry for that interview includes the following:
I heard [the child] tell them that the father was naked and peeing on his face and asked him to touch his penis.
The child safety records do not corroborate the mother’s evidence and I reject it. If such a statement had been made by the child it would have been included in the records as confirmed by Ms V, a team leader at the Department in her oral evidence.
To child safety officers – 11 June 2013
The child was again interviewed by child safety officers on 11 June 2013. This time at his school. The child was very negative about his father and stated that his father was not a good Christian. He said there was nothing good about going to his father’s place. He briefly appeared excited when he spoke about a party he had gone to with his father but immediately switched to appear sad and said he would have preferred to go to the party with the mother.
To the mother – 12 June 2013
The mother alleges the child told her that his father was still rubbing and pinching his doodle. He said his father threatened to punch him in the face if he told anyone and that his father had told him to kill the baby and hurt the dogs. He also said that the father held his own penis and pointed it at the child while laughing loudly.
Again the diary entry from which this evidence emanates does not quote the child when such statements are made yet the child is quoted in relation to less important matters.
To Dr W – 13 June 2013
The mother was afforded every opportunity to produce an affidavit from Dr W but none was forthcoming. Dr W was not produced for cross-examination.
The mother alleges the child told Dr W on 13 June 2013 that the father was rubbing his doodle. Dr W provided a referral to a child psychiatrist Dr S. The referral is in evidence and includes Dr W’s notes of the consultation on 13 June 2013.[17] The mother asked the child to tell the doctor what he had told her. The child then says that his father has been touching him on the doodle on the couch and that it happens every time he is there. Dr W made a mandatory report to the Department.
[17] See exhibit 11.
To Dr S 20 June 2013
Dr S was called in the independent children’s lawyer’s case and was a most unwilling participant in the proceedings. She thought she was initially consulted by the mother for the purpose of providing therapy for the child but after the first session the mother cancelled the next appointment and she never saw the child again. Dr S saw the child on one occasion on 20 June 2013. She said that she spoke to the mother first who gave her some background about her relationship with the father and the child’s reluctance to spend time with the father from November 2011 with the child saying he was sick. The mother said that by March 2012 the child was increasingly reluctant to see his father. The mother also told Dr S that the father had had the child removed from her care in December 2012.
Dr S’s notes reveal that the child was reluctant to enter her room and said ‘Mum can tell you’. The following exchange between the doctor and the child occurred:
Doctor: is there something you are worried about?
Child: I’m scared of him.
Doctor: Who?
Child: [Mr Riley]
Doctor: Why’s that?
Child: He touches my doodle (child looked to the floor)
The following further exchange then occurred:
Child: It makes me feel bad. I say no, he doesn’t listen. It gets red
Doctor: What gets red?
Child: My doodle. It gets sore.
A mandatory report was made by the doctor to the Department. The email to the Department differs from the notes set out above. There are additional comments attributed to the child e.g. ‘he pretends to pee on my face in the shower’.
On 1 July 2013 the mother attended at the Dr S’s rooms with an affidavit for the doctor to sign. The mother also brought along her own Justice of the Peace to witness the affidavit. The request for an affidavit was refused by the doctor but at the mother’s insistence the doctor provided a letter which confirmed she had seen the child and made a report to the Department.
In her oral evidence Dr S was very cautious about expressing an opinion as to the significance of the statements made by the child. She acknowledged that she did not have any particular expertise in sexual abuse cases but she made it very clear that in making such an assessment it would be crucial to understand the family dynamic. She also opined that children of this age are very keen to please a parent and are open to persuasion. Contrary to the mother’s evidence, Dr S denied advising the mother not to permit the child to have contact with the father. Dr S was confident that she had not said that to the mother because she did not have that authority. I accept Dr S’s denial.
It is significant in my view that the mother’s purpose in taking the child to Dr S was to elicit a ‘disclosure’ from the child. The mother relies on the child’s demeanour as being consistent with disclosing abuse but the child’s demeanour is equally consistent with the child being forced by the mother to say something he did not want to say. The mother was not interested in obtaining assistance for the child. She was intent on gathering evidence as is apparent by her attendance at the doctor’s rooms with the affidavit and Justice of the Peace on 1 July 2013 and her cancellation of the next appointment.
To Acting Principal Ms Z – 10 August 2015
On 10 August 2015 the child spoke with his teacher and said he needed to speak with either the Chaplain or the Principal.
The child spoke with the Principal on two occasions on that day. The information was recorded in writing while the child spoke. No questions were asked of him. In the first lunchbreak he is reported to have said the following:
Dad has been touching my private parts – I can’t think of anything to do to get him away from me
He’s touched both of my private parts
He’s threatening mum and lying about mum and he said she is trying to brainwash you (sic) to stay with her
I want to stay with my mum because dad is touching my private parts
I want to stay with my mum because dad is really evil and it’s really hell over there
I have to go there Thursday for 3 hrs because it is my birthday and then the weekend
He picks me up Friday afternoon and I get dropped back to school Monday. I have one weekend with mum and the next with dad
Mum has known about this for seven years – dad has been pretending, now she knows he is bad
In the second lunch break he is reported to have said:
The place where I was – was in the home – greenish skin coloured couch. Dad was wearing a black shirt and blue jeans. I was wearing blue or black track suit pants and a batman shirt.
The time was the afternoon – just one time in the morning – rest was afternoon
He does it one time a day – usually afternoon
A mandatory report was made by the school to the Department. The mother was also informed and she attended at the school.
During the trial the mother was ordered to produce the recording which she had made on the 10 August 2015. The recording commences upon her arriving at the school after the alleged ‘disclosure’ had been made to the acting principal, Ms Z.
What I found most concerning about this recording is the pathetic and pleading tone of the child when he tells his mother that he had talked to the Principal ‘really seriously’ and that he had told the principal what he was wearing at the time. He sounds conspiratorial. It is apparent the child was trying to impress and please his mother.
To Dr AA and Dr BB – 13 August 2015
The mother repeatedly stated throughout the trial that these medical practitioners would be witnesses in her case. They failed to materialise.
There is however, a letter before me from Dr AA dated 17 December 2015[18] which sets out that both she and Dr BB were present at the consultation on 13 August 2015 with the child when he was brought into practice by a person who described himself as a family friend. He gave his name as Mr CC.[19]
[18] Exhibit 10 volume 1 page 103.
[19] The mother did seek to rely upon an affidavit by Mr CC in the proceedings but he was unavailable for cross-examination because he was away on holidays. Accordingly, his affidavit was not received.
Dr AA’s letter to an unnamed person says, among other things:
… [the mother] made claims … about inappropriate touching of [the child’s] genitals when he was a baby and having his nappy changed.
[The child] spoke eloquently and frankly with direct eye contact to me about his alleged abused and recalled an episode which happened on the couch at his father’s place ‘remembering he was wearing a Batman shirt at the time. He was very distressed at the thought he would have to go to his father’s house and felt that “no one was believing him”….
The mother denied that she had made claims to Dr AA about inappropriate touching of the child’s genitals when he was a baby having his nappy changed. She said, in effect, that she had been misunderstood because there was an occasion when she was concerned about the father changing the child’s nappy when he was drunk and some of his friends assisted her. I reject her account and accept that the note by Dr AA is more likely to be an accurate account of what she was told by the mother. The mother was caught out in a fabrication and tried to cover her tracks.
To police – 1 September 2015
By now the child is very practised at being interviewed by police and that is apparent in his demeanour. This interview lasts 64 minutes.
The child complains about his father always calling him ‘the child’ and makes it clear that his mother has brought him to the police station to talk about all the bad things his father has done. The child says that is why he is not attending school because his father will steal him. The child blames his father for taking him from the hospital.
The child volunteers so much information about his father touching his ‘private part’ three or four years ago and ‘he is still getting away with it’. He talks about his father being drunk when he was a baby.
The child certainly gives the impression that he is on a mission to convince the police officer that his father is a bad mad who has abused him in the past.
Other police interviews
This little boy has been interviewed seven times by police.[20] He becomes more and more practised in his presentation at these interviews. He volunteers more and more detail to his stories about his evil and bad father touching his penis or his private parts or his doodle. He refers to his father as the enemy and needing ‘a contract’ to keep him away.
[20] 30 November 2012; 29 March 2013; 3 June 2013; 2 September 2013; 28 March 2014; 1 September 2015; 10 June 2017
In the interview that took place on 1 September 2015 he said that his mother was talking about these issues a lot. The child talks about ‘DOCs’ (a reference to the Department of Child Safety) but it is apparent he has no idea what it means. He says his father touched him four years ago which would make him three or four years of age.
Prior to the interview with police on 10 June 2017 the mother is heard, on her own recording, priming the child, reminding him that he has made disclosures to various people and instructing him that he does not have to discuss it any further. She tells him he has told enough people and he should not have to talk about ‘that stuff’ anymore. She reminds him he has told Ms B (a reference to Ms B from the Contact Centre) and made drawings. The child says ‘I’ve talked to three counsellors, one Kid Care person’. At one point the mother reminds the child how it all started when he told the school principal and the child says that it all started when he was a baby about nine years ago. The child sounds under pressure at times during the recording. The child Y is present throughout.
In some interviews the child talks about his father washing him in the shower when he was little because he thought he was not grown up enough to wash himself.
Whenever the child is asked anything about his mother he says he cannot talk about her. He repeatedly says ‘This is not about mum’.
The drawings
According to the mother’s diary entry for 5 June 2013 she invited the child to produce a drawing while she had a shower. While in the shower she alleges the child said ‘mum I’ve finished’. The mother’s diary note goes on to record:
[The child] gave me a picture of him with a sad face, his dad with a happy face holding his own penis pointing it at [the child] with pee coming out to [the child’s] face. He wanted to draw more and gave me two more pictures of him and his dad with a cross thru it, another with a tick next to his sad face saying that the tick means ‘always sad with dad’. [The child] has also on another occasion drawn a picture of the father trying to touch the child’s penis, with the child’s face painted black, [the child] explaining this is me shouting ‘NO!’ in my head. I asked [the child] how it made him feel when dad was doing these things, [the child] replied ‘bad’.
The drawings are in evidence and on their face one would be hard pressed to interpret the drawings as described by the mother. They are just a small child’s drawings. What is clear from the mother’s evidence is that she asked questions which elicited responses. The mother wrote on the drawings what the child allegedly said each drawing represented. The mother’s notes on the drawings were not made immediately because the mother’s evidence is that she showed the drawings to Dr L who advised her to ask the child to explain the drawings and to ‘write captions of his statements/explanations’ which the mother did. It is curious that the mother did not call Dr L in her case because she alleges that Dr L told her to submit the drawings into the court because ‘the protrusions from both the child and [Mr Riley’s] bodies were clearly genital and the drawings are forensic evidence of abuse’. I infer that had the mother called Dr L his evidence would not have supported her case.[21]
[21] Jones v Dunkel (1959) 101 CLR 298.
Whatever the timing of the written notations on the drawings, the answers allegedly given by the child were in response to questions from the mother. I note that the child was only five years old at the time.
Child’s fear of the father
The mother maintains that the child was terrified of the father throughout 2011 to 2017.
While the child may well have demonstrated fear at times proximate to the parents coming into contact, the independent evidence suggests that the child and father have a warm and loving relationship.
In particular, Ms J, the family report writer, has observed the father and child on four separate occasions for the preparation of her family reports. In particular, her observations of the child in 2013 were that he was ‘relaxed and playful’ with his father. In 2014 Ms J noted that the child was ‘engaged, relaxed, confident and conversant’ with his father. In 2016 Ms J said the child ‘laughed, chatted happily and appeared relaxed and confident with his father.’ Ms J describes the child as being openly affectionate with his father and both initiating and receiving cuddles. In 2018 she noted that the child and father interacted positively and, in particular, the child was ‘visibly excited to see his father when they were reunited at various times throughout the day’. Ms J’s observations and opinions, which I accept, are contrary to the mother’s claims of persistent fear throughout many years.
Dr DD, a general medical practitioner, had regular contact with the child in the presence of his father during 2013 and her observations support a finding that the child and father have a warm and loving relationship.
Ms EE, the before and after school care co-ordinator, has known the child since 2013 and has observed the child and his father on numerous occasions up to the present time. She gave evidence that the child has always been happy and excited to see his father and that she has noticed a change in the child since mid-2017 in that he seems to be happier and less reserved. I accept her evidence.
conclusion in relation to the sexual abuse allegations
Assessing whether or not sexual abuse has occurred can be a difficult task. It requires the identification of each piece of evidence which, taken together, may indicate that abuse has occurred or that there is an unacceptable risk of it occurring.
I accept that evidence viewed in retrospect can add weight to such an assessment. I also accept that a parent who consents to an order may later regret it based on new evidence.
Assessing whether or not sexual abuse has occurred or that there is an unacceptable risk of it occurring is all the more difficult when major reliance is placed upon statements made by a young child.
The difficulty with statements made by children is that it is rare to know what, if any questions were asked to elicit the statements. A young child is open to suggestion and may be anxious to please the questioning parent. The child’s statements, on their own, often do not clearly indicate sexual abuse but depend upon the interpretation given to the statements by adults who then generally ask repeated questions in an attempt to clarify what they think the child is saying. If there is animosity between parents the inclination to attribute a sinister meaning to the statements is all the greater.
For example a child may say ‘daddy touched my penis’. That statement may indicate sexual abuse or it may be a factual statement explicable by an entirely appropriate act i.e. applying ointment to an infected penis or demonstrating to the child appropriate hygiene.
One should err on the side of caution in assessing risk because the risk to the child if the wrong decision is made can be catastrophic.
Having considered all relevant evidence, I have come to the conclusion that the father does not pose an unacceptable risk of sexually abusing the child for the following reasons:
a)The evidence of the child having been coached or at least influenced to make statements is significant and includes:
i)The almost cheerful demeanour of the child on many occasions when making the statements relied upon by the mother;
ii)The change in language by the child to more age appropriate language e.g. penis to doodle;
iii)The child’s sudden and detailed reference to the clothes he and the father were wearing and the colour of the couch;
iv)The unreliability of the child’s statements e.g. incorrectly stating his name and birthday; that the father abused him as a baby when he changed his nappies; that a police officer was mean to him during interview; that he was terrified when he did not know the meaning of the word;
v)The circumstances and behaviour of the child on 10 August 2015 is highly suggestive of influence by the mother. First the child insisted that he speak to either the Chaplain or the Principal. Second he volunteered information in some detail without any prompting by non-leading questions. Third he volunteered information during the first lunch break and then came back and volunteered further information during the second lunch break;
vi)The child’s pleading and conspiratorial tone to his mother on the 10 August 2015 when he tells her he has spoken to the principal ‘really seriously’;
vii)The child’s statement to police that his mother talks about these issues all the time;
viii)The rehearsal on 10 June 2017 during the car journey to the police station between the mother and child of what the child was to say to the police.
b)My conclusion that the child has been coached or influenced by his mother to make the statements he has, is consistent with the Department’s assessment dated 26 September 2013 wherein it is stated – ‘[the child’s] articulation and particularisation during interviews was concerning in that his use of words was not considered consistent with a six year old child and were more likely to have come from comments made by [Ms Dennis]’;
c)There being more plausible explanations than sexual abuse for the statements made by the child e.g. the father concedes the child has seen him naked in the shower; the father concedes applying ointment to the child’s penis when it was infected and touching the child’s penis when teaching the child appropriate hygiene. In this context I note the child’s statement to police when referring to the shower incident that the father did not think the child was old enough to attend to his own cleaning;
d)The mother’s exposure of the child to her negative view of the father e.g. on the 27 April 2012 when the father called by to collect the child the mother said in front of the child – ‘He really doesn’t want to come to your place because you do nothing but shout at him all the time. He wants to talk to police about you.’ Such exposure is more likely in my view to cause the child to want to please a parent by saying things against the other parent;
e)The mother’s anger over the 7 December 2012 removal of the child from her care and her belief that the father was behind it, was a recurring theme in the mother’s case and provides a motive for the mother’s determination to prevent the father having a relationship with the child;
f)The mother’s insistence that the child was consistently terrified of the father from 2011 to 2017 when the independent evidence is to the contrary e.g. Ms J, Ms EE and Dr DD;
g)To the extent that the child showed reluctance to spend time with his father, such behaviour is consistent with Dr L’s opinion that the child feared the parents coming into contact;
h)The dramatic and hysterical demeanour of the mother (as heard in her recording made on 10 June 2017 with Ms B) and of those who support her ‘cause’ e.g. Ms C and Ms B;
i)The exaggerated statements by the mother e.g. alleging the child was sexually abused every weekend; that the father ejaculated on the child; that the child suffered injuries to his penis over a two year period;
j)The mother’s allegation that the father’s adult daughter, Ms FF, accused her father of sexual abuse. Ms FF was not called as a witness by the mother despite her being at court for at least part of the trial. I infer that had Ms FF been called, her evidence would not have assisted the mother;
k)The mother’s allegation that the father’s other adult daughter had acted in a sexually inappropriate way to the child. Ms N was not called as a witness by the mother despite her being at court for at least part of the trial. I infer that had Ms N been called, her evidence would not have assisted the mother;
l)The mother’s long standing opposition to the father spending time with the child as evidenced by her failure to comply with the 2010 court order during the period May to December 2012 prior to any allegation of sexual abuse;
m)The mother’s untruthfulness, examples of which are:
i)Her false claims about her dealings with Detective Sergeant GG when she said he was re-opening the investigation when he said no such thing;
ii)Her false claims that she had the assistance of a federal police officer who could make warrants disappear;
iii)Her false claim to police that HH Group[22] had a whole file on this matter when in fact they had not been involved at all save for one introductory meeting and a phone call when they said they could not assist her;
iv)Her false claim to Ms B that the father had ejaculated on the child;
v)Her false claim to Ms B that the child had suffered injuries;
vi)Her false claim that the three men who assisted her to remove the child from the father were friends and in particular that she had been friends with one of them for five years when in fact one was a private investigator whom she had met several weeks before hand and the other two were friends of the private investigator whom she did not know.
n)The mother’s propensity to hear what she wants to hear e.g. that the child made disclosures during his interview with child safety officers on 6 June 2013 when he did not; that Dr S advised her not to allow the child to spend time with the father; that Detective Sergeant GG told her that the investigation was being re-opened;
o)The father’s denial of sexually inappropriate conduct towards his son.
[22] An organisation providing assistance to sexual abuse victims.
The mother claims that she has ‘acted in accordance with duty of care for [the child] in response to real evidence (medically reported penis injury, reports made by [the child] to various medical experts, psych experts and education professionals) who all unanimously believe [the child]’. This statement demonstrates the mother’s tendency to misstate and mislead. The evidence does not support her claims.
I do not accept the mother’s evidence that the child has ever made an unsolicited statement to her that on its own could unequivocally indicate sexual abuse.
Alcohol abuse
The mother contends that there is an unacceptable risk of harm to the child by reason of exposure to the father’s alleged alcohol abuse.
There is scant, if any evidence, to support this contention. There is reference in the evidence to one incident when the father and child were camping with other persons not known to the child and the child became frightened when he saw his father vomiting late at night. The father gave a rather implausible account of having taken only a few sips of a home brew and having become violently ill. He spoke about his tendency to vomit loudly. The child has stated to police that he has seen his father drunk three times.
To the extent that there is evidence of the father abusing alcohol it is historical and limited to a few occasions.
Accordingly, the evidence does not support a finding that there is an unacceptable risk in the future of the child being exposed to the father abusing alcohol.
Exposure to family violence
I have come to the conclusion that there is a risk of the child being exposed to family violence because of what I find to be the father’s tolerance for violence. The father gave evidence of one his daughters coming to his home in a distressed state after having broken her mother’s jaw during an argument. It just did not seem to register with the father that was an extreme level of violence. He seemed quite matter a fact about it.
There is also evidence that the child was exposed to verbal arguments involving swearing when the father’s two daughters were in his household many years ago. The father’s daughters are now adults and the child spoke fondly about them in one of the many police interviews. He talked about them coming over for dinner every fortnight.
There is no doubt that the child has been exposed to verbal arguments between his parents.
The mother contends that the father has told the child to kill his sister and others. The father denies the allegation and I accept his denial.
While there is some risk that the child may be exposed to family violence in the future given the father’s tolerance of violence I do not consider the risk to be unacceptable. The instance to which I have referred, involving his daughter breaking her mother’s jaw, did not occur in the father’s household and the occasions of verbal abuse in the father’s household occurred many years ago.
The evidence does not support a finding that if the child remains with the father there will be an unacceptable risk of exposure to family violence.
Does the mother present an unacceptable risk of harm to the child by reason of her steadfast belief that the child is at risk of harm from the father?
The mother has maintained a view for a number of years that the child has been sexually abused by his father. Nothing seems capable of dissuading her from that view. She certainly has no confidence in the investigations undertaken by the Department or police. Evidence that is contrary to her view is seemingly dismissed by her e.g. despite the considerable body of independent evidence that the child is not terrified of his father the mother maintained that to be the case throughout the trial. The mother has had the opportunity during a lengthy trial to test the evidence during cross-examination and had the opportunity to observe all witnesses and the evidence tendered during the trial. The mother nevertheless maintains that the father has sexually abused the child.
Consistent with that view, the mother went to extraordinary lengths to plot the child’s removal from the father by engaging with an active network of people with their own crazed agendas who hold themselves out to be protectors of children. The mother paid for a tracking device to be attached to the father’s car. She organised or was complicit with Ms C (one of the persons from the network) attending upon Ms EE at the after school program to seek her assistance in interviewing and recording the child. I note that Ms C initially lied to Ms EE about who she was and what her purpose was in contacting Ms EE. This network carried out surveillance of places at which the child might be kidnapped including the after school care premises. Ms EE reported her encounter with Ms C to police. The mother and Ms C inspected properties that might be suitable for hiding the child after his abduction. The mother was intricately involved in this plan to abduct the child.
Ultimately the mother changed her mind and withdrew from the plan involving Ms C but nevertheless absconded with the child during a supervised visit on 10 June 2017 with the intention of retaining the child in her care contrary to a court order.
The recordings produced by the mother during the trial provide compelling evidence that the mother is likely to continue to involve the child in her pursuit of ‘the truth’ i.e. trying to convince authorities that her allegations are soundly based. On 10 June 2017 the mother said to the child that she will not give up. She says that she has a lot of people working for him. When police permitted the mother to say goodbye to the child at the police station she took the opportunity to insist that the child say that he has not been coached by her. The mother was both insistent and persistent in her questioning. The police intervened but not before the mother caused significant distress to both the child and Y.
It is most disturbing to hear Y’s voice on some of the recordings. She is five years of age and yet she has been intimately involved by the mother in this dispute. The mother’s expression of her beliefs about sexual abuse are unfiltered even in the presence of her young daughter.
It is Ms J’s view that the mother’s view that the father sexually abused the child is ‘enduring and steadfast’ and that she ‘will persist until she receives her desired response’. Ms J’s opinion accords with my own view.
Accordingly, I find that there is an unacceptable risk of harm to the child by reason of the mother’s steadfast belief that the father has sexually abused him. If the child were to live with or spend unsupervised time with the mother the mother’s unfiltered views would continue to be expressed. The child will not be permitted to enjoy a relationship with his father. He will continue to be told that his father is bad and evil.
what parenting order is proper in the circumstances of this case?
I have concluded that the father does not pose an unacceptable risk of harm to the child but that the mother does. The child will remain living with his father in those circumstances.
The child has lived with his father now since December 2015. By all accounts he is progressing well. He presents as a happy child who has a close and loving relationship with his father. According to the most recent school report, the child had no absences from school in the second semester 2017 and is achieving reasonably well at school. He is described as a ‘responsible and considerate student who tries hard with his work.’ His effort is described as either very good or excellent.
In February 2018 the child was somewhat reluctant to express a view about his living arrangements but told Ms J that he would like to live with both his parents and that the week about arrangement in the past had been good. He was unsure how he would feel about living with his mother instead of his father but that if he stayed with his father he would be happy to see his mother at a contact centre.
It is a serious step to prevent a child having a relationship with a parent and would only be considered in circumstances that truly warrant such an outcome.
As I have found that the mother poses an unacceptable risk of harm to the child the question arises as to whether that risk can be sufficiently ameliorated by the imposition of supervision. Supervision did not protect the child in the past. Even with a more vigilant supervisor than Ms B I remain unpersuaded that the mother will desist from constantly testing the child about the allegations of abuse. I have in mind, in particular, her behaviour in the presence of at least two police officers on 10 June 2017. I also have concerns about the ability of the mother to manipulate and persuade people with her lies as she did with Ms B. I am not satisfied that supervision will adequately protect the child from his mother.
There remains the consideration of whether the child might benefit from the receipt of a card or gift at special times from his mother including from his sister Y. If such an order were made it might provide comfort for the child indicating that his mother loves him. On the other hand it may confuse him and bring up old anxieties. It depends on how he interprets the communication. The child told Ms J that he misses his mother and Y and I have no doubt that he does. There remains a concern about the mother knowing the child’s address in the future but cards and gifts could be sent to a post office box. The father could vet any such communication and only provide it to the child if he considered it appropriate. On balance I consider that the mother should be able to send a card and gift three times a year.
Sadly, the child has not seen Y since mid-2017. A sibling relationship is very important particularly in troubled families as siblings often forge a strong survival relationship. Unfortunately, Y has been exposed to and involved in this dispute by her mother although she is only five years old. I have considered how a relationship between the child and Y could be maintained but given the mother’s manipulative tendencies I cannot conceive how that relationship could be fostered free of influence from the mother.
The child remains at risk of abduction by the mother with the assistance of the network to which I earlier referred. People such as Ms C and the mother are zealots. They have no capacity to accept any view other than their own. They are misguided at best and dangerous at worst. I propose to restrain the mother from coming within 200 metres of the child, his place of residence or his school.
This is not a case where the parents have any capacity to make joint decisions about major long term issues and given the history it would not be in the child’s best interests for there to be equal shared parental responsibility.
Miscellaneous
Conduct of the case
The mother was afforded extraordinary leniency in the presentation of her case given the nature of the allegations made against the father, and in particular, the allegations of sexual abuse and the risk to the child if relevant evidence was not presented. This leniency was afforded despite the mother’s continued failure to abide by clear directions and orders made by the Court for the preparation of her case. Although her counsel, who had been directly briefed, withdrew on the morning of the trial, the mother had prepared all the affidavits relied upon in the trial and I am satisfied that the mother had the assistance of legal advice from time to time (I refer in particular to the various recordings in evidence where the mother refers to consulting her lawyer). No application for adjournment was made by the mother.
Despite the mother’s conduct in repeatedly failing to comply with directions and orders about the preparation of her case for trial, everything that might have been of forensic relevance was admitted into evidence notwithstanding the prejudice that might have been suffered by the father. The father took no objection to the course adopted but, in any event, the father was afforded further time to consider the mother’s evidence when the matter had to be adjourned part heard as a result of the mother’s failure to comply with earlier directions and orders and her failure to comply in a timely fashion with her ongoing duty of disclosure.
I raise all of this by way of background because of the mother’s steadfast belief that the child has been sexually abused by the father. The mother was afforded the opportunity to present all evidence identified by her as relevant to a determination of this issue. To the extent that rulings were made that the mother could not rely on certain witness affidavits or parts of her own affidavits, such rulings were made on the basis that the proposed evidence was of no forensic significance.
Ms B and Ms C
Before concluding I must say something about two witnesses in this case, namely, Ms B and Ms C.
Ms B is the co-ordinator of the D Centre. Ms B was a very troubling witness called in the mother’s case. She demonstrated an unusual degree of emotion almost as soon as she entered the witness box. She indicated that this emotion was at least in part as a result of having had a child taken from her Centre. That was pure fiction on Ms B’s part. What Ms B did not know, prior to taking the witness stand, was that she had been recorded by the mother on 10 June 2017 and her complicity in the removal of the child was apparent in that recording. This is despite the fact that Ms B was aware at the time she commenced providing supervision in January 2016 that the mother was accused of coaching the child to make unfounded allegations of sexual abuse.
Ms B provided two affidavits in the mother’s case one of which was allegedly prepared with the assistance of a journalist named Ms Q. Her affidavits were generally unhelpful in that she deposed in very general terms e.g. The child made ‘disclosures of sexual abuse’ without particularising what was said which caused her to form that opinion. What became clear during her evidence was that she had asked the child questions which suggested the answer and had even introduced the topic of sexual abuse. She made sweeping statements e.g. concern the father was going to kill the mother, the child and the mother’s other child, without any factual basis for that statement.
Ms B was prone to hyperbole. For example she said in her first affidavit:
32. I have seen the fear in [the child’s] eyes.
33. I have not seen this type of paralysing fear in any of the hundreds of children who have attended the Children’s Contact Service in the past seven years.
…
35. However, my concern is that if [the child] was removed from his father, that the father could be capable of further domestic violence and/or killing [the child], the mother and possibly [the child’s] younger sister.
Ms B saw herself as the saviour of children. She demonstrated a propensity to engage in paranoia and conspiracy theory as she spoke about paedophile rings and murder. She presented as alarmist and unstable.
I am most concerned that she runs a business (now a not for profit organisation) in which she provides supervision in family law matters when she has no regard for court orders. She is not a fit and proper person to be conducting such an enterprise.
Ms C
Ms C operates a not for profit organisation called E Group. She said that her organisation has deductible gift status which means that persons donating to her organisation receive a tax deduction.
Ms C is a self-proclaimed victim of sexual abuse. She appeared at Court pursuant to a subpoena requiring her attendance. She was very forthright and confident. She clearly considers that her opinions count for more than any court order or finding. She proudly informed the court of her involvement in planning the child’s abduction and placement in a ‘safe house’. She said that she was mindful of not personally abducting the child as that would be in breach of the criminal law. She nevertheless had no qualms about encouraging and assisting the mother in planning to contravene a court order. What Ms C does not perhaps realise is that she could be prosecuted for such conduct.[23]
[23] The Act, ss 65M, 65N.
Ms C demonstrated a preparedness to lie and to do whatever it takes to achieve her mission, namely, saving children from perpetrators of abuse. Such a mission might be laudable were it not for the fact that Ms C sets herself up as the sole determiner of truth. Her hubris was at times breathtaking.
Ms C, like Ms B, demonstrated a propensity to engage in paranoia and conspiracy theory. She is not a fit and property person to be providing advice or assistance to vulnerable women.
The independent children’s lawyer proposed the referral of these women to appropriate authorities and I propose to accede to that request as it is entirely appropriate.
conclusion
I have found that the father does not pose an unacceptable risk of harm to the child by reason of sexual abuse, alcohol abuse or exposure to family violence but I have found the mother to pose an unacceptable risk of harm by reason of her steadfast belief that the father has sexually abused the child.
In summary, I consider the mother has coached or at least influenced the child to make statements to police and others that have raised concern that the child might have been sexually abused or exposed to sexually inappropriate behaviour by the father.
The mother has shown an inability to filter her expressed beliefs about the father sexually abusing the child in front of the child, even in the presence of police officers. She abducted the child from the contact centre where she was supposed to be spending supervised time with him. Supervision of the mother’s time will not ameliorate the unacceptable risk of harm.
The child will remain living with his father and spend no time with his mother.
I certify that the preceding one hundred and eighty-one (181) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 6 June 2018.
Associate:
Date: 6 June 2018
Key Legal Topics
Areas of Law
-
Civil Procedure
-
Negligence & Tort
Legal Concepts
-
Appeal
-
Duty of Care
-
Negligence
-
Causation
-
Damages
0
3
1