Rose and Rose
[2010] FamCA 935
•20 October 2010
FAMILY COURT OF AUSTRALIA
| ROSE & ROSE | [2010] FamCA 935 |
| FAMILY LAW – CHILDREN – With whom children live – Best interests – Alienation |
| APPLICANT: | Mr Rose |
| RESPONDENT: | Ms Rose |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Jaquie Palavra |
| FILE NUMBER: | TVC | 933 | of | 2009 |
| DATE DELIVERED: | 20 October 2010 |
| PLACE DELIVERED: | Townsville, Qld |
| PLACE HEARD: | Townsville, Qld. |
| JUDGMENT OF: | Monteith J. |
| HEARING DATE: | 10 – 13, 16 - 20, 23 – 27 August 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fellows |
| SOLICITOR FOR THE APPLICANT: | MacDonnells Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Collins |
| SOLICITOR FOR THE RESPONDENT: | Guides and Elliott |
| INDEPENDENT CHILDREN'S LAWYER | Ms Pagani |
Orders
A1.That Mr Rose Senior and Mrs Rose Senior be joined as parties to these proceedings.
IT IS ORDERED UNTIL FURTHER ORDER THAT:
Mr Rose (the father) shall have sole parental responsibility for the children, B, born … April 1998 and L, born … February 2002, and shall keep the mother advised about the children’s major long-term issues including but not limited to:
(a)Education;
(b)Health;
(c)Place of residence that would affect the time the children spend with the other parent;
(d)Religion
The children live with Mr Rose Senior and Mrs Rose Senior (the paternal grandparents) at E Station.
Mr Rose Senior and Mrs Rose Senior shall have responsibility for the day-to-day care, welfare and development of the children when the children are in their care.
The father shall have responsibility for the day-to-day care, welfare and development of the children when the children are in his care.
The children spend time with and communicate with their father:
(a)At evening meal times;
(b)For weekend leisure activities;
(c)During sporting and extra curricular activities;
(d)In such other ways and times as agreed between the paternal grandparents and the father;
(e)For the purposes of Clause 6.
The father shall:
(a)Engage Dr C, or if he is unavailable, some such other suitable professional approved by the Independent Children's Lawyer to be a therapist for the family (which for this purpose shall be defined as the father, the mother, the children and the paternal grandparents) with any such therapy or counselling to be non-confidential and reportable; and
(b)Take all reasonable steps to engage and employ a social worker or family support worker to reside with the children and the paternal grandparents at E Station from as soon as practicable from the making of these Orders until at least the conclusion of the September/October school holidays to assist the children to transition from the care of the mother to the care of the paternal grandparents and the father;
(c)Bear responsibility for the professional fees or wages payable to Dr C and the person engaged pursuant to Order 6(b) until the matter is resolved or comes before the Court, whichever occurs first.
For the purposes of implementation of these Orders:
(a)It shall be permissible to release to Dr C and the person engaged pursuant to Order 6(b) a copy of these orders, the Family Reports of Ms K and the Reasons for Judgment;
(b)The father shall instruct Dr C and the person engaged pursuant to Clause 6(b) that they must cooperate with and provide all such reasonable information concerning the work undertaken by them with the family as may be requested by the Independent Children’s Lawyer and any Family Consultant appoint pursuant to Order 11.
The mother shall not spend time with or communicate with the children unless:
(a)Dr C requests that this occur for the purposes of the therapy referred to in Order 6(a); or
(b)It is otherwise agreed between the father, the mother and the Independent Children's Lawyer.
The maternal grandmother is restrained and an injunction issued restraining her from spending time with or communicating with the children unless:
(a)Dr C requests that this occur for the purposes of the therapy referred to in Order 6(a); or
(b)It is otherwise agreed between the father, the mother and the Independent Children's Lawyer, and such contact is supervised by Relationships Australia Children’s Contact Service or a person approved by the Independent Children's Lawyer.
For the purposes of immediate implementation of these Orders:
(a)The Independent Children's Lawyer shall make arrangements with S School, for the children to be released from school at lunch-time Friday, 27 August 2010 and to be safely escorted to the Family Court of Australia at Townsville;
(b)Upon the children’s arrival at the Family Court at Townsville, the Independent Children’s Lawyer and the Family Consultant shall explain these Orders to the children; and
(c)Thereafter, the children shall be delivered to the paternal grandparents.
(d)The mother shall make a selection of the children’s clothing, toys, school materials and personal effects available for delivery to the paternal grandparents outside the E Police Station at 3.00 pm on Saturday, 28 August 2010;
(e)The mother shall, within seven (7) days of the date of these Orders co-operate in making arrangements whereby a designated employee of E Station (other than the father) shall attend for collection of the children’s pets (their dogs and pony).
Pursuant to section 65L of the Family Law Act:
(a)Compliance with these Orders shall, as far as practicable, be supervised by a Family Consultant; and
(b)A Family Consultant shall give to any party (including the paternal grandparents) such assistance as shall be reasonably requested by that party in relation to compliance with and the carrying out of the parenting order.
Unless otherwise agreed between the parties and the Independent Children's Lawyer:
(a)This matter shall be listed for further hearing before Justice Monteith on or about 15 December 2010;
(b)Any application in a Case and supporting affidavits shall be filed and served not later than 14 days prior to that date; and
(c)Any Response and supporting affidavits shall be filed and served not later than 7 days prior to that date.
(d)The Independent Children’s Lawyer shall arrange for the provision of a report from Dr C to be filed prior to the hearing.
Notwithstanding the provisions of Order 11 the father, mother, paternal grandparents and Independent Children's Lawyer shall attend upon any mediation convened by the Legal Aid Office for the purposes of resolving ongoing parenting arrangements prior to any further hearing date.
A copy of these Orders and the Reasons for Judgment shall be delivered to the Department of Communities, Division of Child Safety.
The father shall take all reasonable steps to attend and complete a St John’s Ambulance Course.
Both parents shall take all reasonable steps to attend a Parenting After Separation course.
The Independent Children's Lawyer have liberty to apply on 24 hours’ notice to the other parties.
Costs reserved.
Pursuant to s.65DA(2) and S.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Rose & Rose is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: TVC 933 of 2009
| MR ROSE |
Applicant
And
| MS ROSE |
Respondent
REASONS FOR JUDGMENT
Introduction
On the last day of the trial, being 27 August 2010, I made interim orders which appear at the front of this Judgment.
As can be seen from the terms of the Judgment, they set in place what was referred to during the Trial as a road map which, in essence, removes the children from the influence and sphere of influence of the mother and the maternal grandmother and places them in the care of the paternal grandparents, in the expectation of being able to re-establish a relationship between the children and their father with the assistance, in particular, of Dr C, who it is intended will provide therapy for the family, which includes the father, the mother, the children and the paternal grandparents.
In addition, I ordered that a social worker or family support worker be engaged to reside with the children and the paternal grandparents to assist the children to transition from the care of the mother to the care of the paternal grandparents. On the final day of the trial, evidence was adduced which persuaded me that that had been done.
The maternal grandmother, who I judged to be at the least an unhelpful influence on both the mother and the children, has in the interim been restrained from spending time or communicating with the children except for the purposes of therapy or by agreement, and only if supervised.
I made an order pursuant to s 65L that the orders be supervised by a family consultant.
I ordered that the counselling be non-confidential and reportable and I ordered that the matter be relisted for further hearing before me on or about 15 December 2010.
I further ordered that the Independent Children's Lawyer have liberty to apply on 24 hours’ notice.
It can be seen, therefore, that the orders are interim in nature in that they seek to trial the reunification of the children with their father with the assistance of appropriate therapy, and that the matter be reconsidered in December.
Just prior to making the orders, I announced to the Court:
This has been a long and hard-fought case where many issues of fact have been disputed. Each Counsel has put their respective positions to me at some length. I have listened to the evidence with great care and I have listened to the submissions made by Counsel.
My usual practice is, at the conclusion of a trial – particularly one that has gone for three weeks – to reserve my decision because it is better for the parties to be able to see the reasoning behind the Orders that I make. It is only occasionally that I make Orders and give my Reasons at a later date. Sometimes, the circumstances require me to do that. For instance, some relocation orders require that to happen. But even the High Court did it most recently where they published the Orders and then gave their Reasons at some later date because the High Court regarded it as essential in the circumstances of the children in that case to make the Orders immediately.
I listened to Mr Collins and to Mr Fellows who have the competing proposals really. Mr Collins counsels me against making orders today. He submits that to do so is unnecessary and will place the children at a risk that I should not be prepared to take. He proposes that I should make the Orders that have most recently been proposed in the further amendments to the Response that I gave leave to make yesterday.
Those orders propose for a gradual introduction of the father to the children with the addition of professional therapeutic assistance. Mr Fellows, on the other hand, proposes that I should make Orders immediately today. He says that the circumstances in which the children presently find themselves have developed into such a toxic state that if I do not remove them from the mother’s care and put them in the care of the paternal grandparents any Orders that I may make with respect to therapeutic intervention are bound to fail. That submission is supported completely by the Independent Children’s Lawyer and in fact, the Orders proposed are Orders crafted by Counsel for the Independent Children's Lawyer.
I have come to the conclusion that unless I make an Order today removing the children from the mother’s care and placing them in the care of the paternal grandparents, the effect will be that any therapeutic intervention will be sabotaged. I cannot allow that to happen. Two years with the mother have produced a result which anybody looking at this evidence could not but feel is a complete disaster. I cannot allow that to continue.
Consequently, I have made the Orders in terms of the Orders sought by the Independent Children's Lawyer save that I have given the Independent Children's Lawyer liberty to apply on 24 hours notice and I have reserved the costs.
Background
Before I go to the Chronologies, it is necessary to deal with an issue which was raised on the morning of the first day of the Trial. On the application of Counsel for the respondent mother, I granted her a Certificate under s 128(3) of the Evidence Act 1995, with respect to any evidence she may give on the issues of cohabitation and claims for benefits and payments made to her from Centrelink, including any documents or affidavits produced by her.
On the following morning, I gave leave to the respondent mother to file a further affidavit which was sworn that date, which dealt, in part, with those matters.
It will be seen from the very nature of the terms of the Certificate that the mother has a significant problem with respect to claims that she has made on Centrelink.
There was considerable evidence given on this matter and I will refer to some of it later in my Judgment, but the nub of it is that she made claims on Centrelink as if she were a single parent and with respect to Child Support, when in fact, she was living with the father and he was providing support for her and the children.
The evidence discloses that she owes Centrelink in excess of $100,000 and is at risk of being prosecuted for fraud against the Commonwealth and if convicted, imprisoned.
Because of the matters I have just referred to, I propose to use the Chronology provided by the father as being far more reliable than that of the mother.
Date Event Comment […]/68 Mother’s DOB […]/71 Father’s DOB 1994 Parties meet 24/12/97 Cohabitation commences at [E Station] […]/4/98 Child [B] born [B] now 12 […]/11/98 Date of marriage 2000 Mother lodges Application for Child Support for child [B] (private collection) Father is unaware until September 2008 […]/2/02 Child [L] born [L] now 8 2002 Mother lodges Application for Child Support for child [L] (private collection) Father is unaware until September 2008 Sept 2006 Date of separation according to Father. Parties and children continue living on [E Station]. Mother does not stipulate a date of separation August 2008 Allegations of inappropriate behaviour by the father are first raised by the Mother. Father tells Mother to leave [E Station]. Mother refuses to leave [E Station] until she gets a property settlement. Mother says that [L] made disclosure to her on the morning of 10/11/2008 12/11/08 Mother takes children and leaves [E Station]
Father is denied any time or contact with the children.
13/11/08 [L] sees [Ms W], Clinical Psychologist Father is unaware until December 2008 14/11/08 Notification made to Townsville Police Office 15/11/08 Department of Child Safety becomes involved 15/11/08 s.93 interview takes place with [L] 27/11/08 Father is interviewed by Police. Father denies the allegations. 28/11/08 Father seeks time with children on a shared care basis. 5/12/08 Father is denied access to the children unless the Father’s visits are supervised by the Mother The Father has not seen his children since 12/11/08 25/12/08 Father has his first 2 hour visit with the children at [local] Park; supervised by the Mother. Family members of the Father and the Mother are also present. Mother video tapes the visit. Children are interacting. 7/1/09 Police withdraw their investigations into the disclosure made by [L] to his Mother […]/09 [L’s] birthday : Father cannot be present at 1 hour visit at the [local] Park because he is flood bound; supervised by the Mother with the Father’s parents present. Father has telephone time with the children. Mother video tapes the visit. Children are interacting. […]/4/09 [B] birthday : Mother arranges a party for [B] during the Father’s 1 hour visit at the [local] Park. Father is seated away from the main table so interaction was minimal. Father was unaware that the Mother had arranged a party to coincide with the Father’s one hour with the children May 2009 to Feb 2010 One hour visit each week; supervised by the Mother at the [local] Park. Children are not interacting with the Father nor with the Father’s family. 20/2/10 to 24/4/10 One hour visit each fortnight; supervised by Mrs [H] at the [H Family] residence in accordance with Court Orders made 16/11/09 Children are not interacting with the Father nor with the Father’s family; nor with the [H] family. Visits supervised with Mrs [H] ceased 24/4/10 3/4/10 to present One hour visit each alternative fortnight at Relationships Australia when Father was not at the [H Family] residence; then when the visits ceased at the [H Family] residence; the Father’s time is now reduced to each fortnight 2 hours at Relationships’ Australia Children are not interacting with the Father; but interact with the staff at R.A.
Proceedings
The father commenced proceedings in this Court on 24 September 2009. On 12 November 2009, a Notice of Child Abuse or Family Violence was filed by the mother in which, inter alia, it was alleged “Child [L] disclosed to mother on 10.11.2008, to [maternal grandmother] on 11.11.2008 and to child Psychologist, [Ms W] on 13.11.2008 and to Police that his father had touched him on his penis (“willy”) inappropriately”.
On 16 November 2009, Justice Murphy designated the matter Magellan and made the usual suite of orders and in addition, orders by consent in relation to the children spending supervised time with the father:
(a)from 3.15pm to 4.15 pm each Tuesday at the local Park in the presence of the mother as supervisor;
(b)after the appointment of an independent supervisor by the ICL from 10.00 am to 12 noon each Saturday at the local Park in the presence of the person appointed by the ICL as supervisor.
Issues
In the applicant father’s Outline of Case document, the issues are set out as follows:
Without intending to derogate from the menu of considerations set out in the Family Law Act the primary factual issues in this case may be summarised as:
1.Has the father sexually abused the children (or one of them); Alternatively, is there an unacceptable risk of sexual abuse of the children at the hands of the father? It might be phrased “What has dad done to them”?
2.Conversely, has the mother “created” the allegations in question; Alternatively, is there an unacceptable risk of emotional or psychological abuse of the children at the hands of the mother? It might be phrased “What has mum said to them”?
3.In any event, how might the relationship between the father and the children be restored and made meaningful?
In the mother’s Outline of Case document, under the heading “Forensic Debate”, the following appears:-
2.The respondent concurs with the approach taken by Counsel for the applicant that he “does not propose to debate factual issues at length in this Case Outline”. There is a validity to that point. The fundamental issue identified by Ms [K] at paragraph 147 of the Family Report is that both parties have entrenched position.
3.The applicant father and his parents have “prioritised” the findings of the QPS as it apparently suits their position and he seeks vindication rather than contemplating a need to act protectively towards his children.
4.The respondent mother has acted protectively after investigation and on the advice of Docs.
Part VII of the Family Law Act 1975 (Cth) (ss60A-70Q)
The High Court recently considered this part of the Act which was substantially amended in 2006. The decision is reported as MRR v GR 80ALJR 220.
In a consideration of this case, it will help if I set out in some detail what the High Court had to say.
[6] Part VII of the Act (ss60A – 70Q) concerns children. It was substantially amended in 2006 by the Family law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by “ensuring that [they] have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”. Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.
[7] Section 65D(1) provides that the Court may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
In the present case, the father seeks sole parental responsibility for the children and in the further amended Response filed 12 November 2009 by leave, the mother seeks equal shared parental responsibility with the father.
Consequently, the first question that I have to consider under the legislative scheme is whether the presumption of equal shared parental responsibility when making parenting orders under s 61DA applies. Section 61DA is headed “Presumption of equal shared parental responsibility when making parenting orders” and provides:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parenting responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
This section raises a presumption of equal shared parental responsibility being in the best interests of the child, but provides that that presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence and further provides that the presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
“Abuse” is defined under s 4 under the heading “Interpretation of the Act”. It provides as follows:-
Abuse, in relation to a child means:
(a)an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b)a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.
Family violence is also defined in the same section as follows:-
Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
Consequently, it would seem that issues of abuse and family violence must be considered by the Court as individual matters as defined under the definition section, and in the event that the Court finds reasonable grounds to believe that such abuse or family violence has taken place by a parent, the presumption does not apply.
However, under ss 4 which deals with the presumption being rebutted, that requires the Court to consider whether the presumption has been rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. As the best interests of the child are to be determined by reference to the matters enumerated in s 60CC, a consideration of whether the presumption has been rebutted under s 61DA(4) requires a consideration of that evidence in light of s 60CC.
As the High Court said in MRR v GR (supra):
Section 65D(1) provides that the Court may make such a parenting order as it thinks proper subject to the provisions of ss 61DA and 65DAB.
Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
Consequently, if s 61DA does not apply, then the Court may make such parenting order as it thinks proper.
This case raises issue of sexual abuse of a child by the father which sits within the definition of abuse that I have previously referred to. It also raises issue of family violence by the father which fits within the definition of family violence that I have previously referred to.
However, there is also an issue about whether the mother has engaged in emotional abuse of the children. It neither fits within the definition of abuse or the definition of family violence. Consequently, evidence with respect to emotional abuse of the children by the mother, for the purposes of s 61DA must be dealt with under ss(4).
Consequently, I propose to deal sequentially with the following issues:-
(a)Whether there are reasonable grounds to believe that the father has engaged in sexual abuse of the child, L;
(b)Whether there are reasonable grounds to believe that the father has engaged in family violence;
(c)Whether the presumption of equal shared parental responsibility has been rebutted by evidence that satisfies me that it would not be in the best interests of the children for the parents to have equal shared parental responsibility and in particular, in answering that question, whether the mother has engaged in emotional abuse of one or other or both of the children.
Sexual Abuse Allegations
The first matter that I want to deal with is precisely what ss 2 of s 61DA requires. To paraphrase, the presumption does not apply if there are “reasonable grounds to believe” that a parent of the child has engaged in abuse of the child which means, inter alia, “an assault, including a sexual assault”. This seems to require a positive finding.
Although this case was argued by reference to the well known High Court case M and M 12 FamLR 606 and the subsequent cases dealing with unacceptable risk, it seems to me that s 61DA(2)(a) does not involve an assessment by the Court of whether the father poses an unacceptable risk with respect to deciding whether the presumption does not apply. The Court has to be persuaded there are reasonable grounds to believe that the parent has engaged in abuse.
In re W(Sex Abuse: Standard of Proof) 32 FamLR 249, the Full Court examined a finding by the former Chief Justice that it was probable that the Appellant had sexually abused his daughter.
In a joint Judgment of Kay, Holden and O’Ryan JJ, their Honours had this to say at 254-255:-
[14] In M v M (1988) 166 CLR 69; 82 ALR 577; 12 Fam LR 606; (1988) FLC 91-979 and B v B (1988) 82 ALR 584; 12 Fam LR 612; (1988) FLC 91-978 the High Court considered the circumstances in which a trial judge should make a finding of sexual abuse when considering children’s issues under Pt VII of the Family Law Act. The court, at Fam LR 610-11; FLC 77,080-1, said (citations omitted):
“But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds … McKee v McKee … In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the best interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf J v Lieschke …
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the facts mentioned in Briginshaw v Briginshaw … There Dixon J said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s comments have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.”
[15] In WK v SR (1997) 22 Fam LR 592; (1997) FLC 92-787 the Full Court (Baker, Kay and Morgan JJ) examined the application of the principles set out in M v M to a situation where the trial judge had found that the father had sexually molested both his stepdaughter and his own daughter. The Full Court said at Fam LR 599, 602-3; FLC 84,691, 84,694-5:
“[26] However, the evidence of ZH was in fact the core evidence relied upon by his Honour in order to substantiate the allegations of abuse against the father. Given the gravity of the allegations raised by the evidence, and the Court’s duty to apply a rigorous civil standard of proof pursuant to the test enunciated by the High Court in Briginshaw (supra) and restated in s 140 of the Evidence Act 1995 (Cth), her evidence needed to be very carefully evaluated.
…
[46] It is clear therefore, that a finding that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw. Section 140 of the Evidence Act 1995 (Cth) has adopted this test as follows:
“140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.”
[47] In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
[48] This is a matter which must be specifically borne in mind by a court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this Part, the court’s paramount consideration must be the best interests of the child, in accordance with s 65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Furthermore, when deciding what orders are in the best interests of a child, a trial judge may often be confronted with a multiplicity of issues and facts. In these circumstances, evidence which, for example, is relevant and probative in relation to the question of an unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred.”
The Evidence relating to Sexual Abuse
(a) There are alleged disclosures by L to his mother.
(a) There are alleged disclosures by L to his maternal grandmother.
(b)There are disclosures by L to Ms W, Child Psychologist.
(c) There is an interview of L by the Department of Child Safety.
(d) There are disclosures by L to the Police.
(e) There are disclosures by L to the Family Court Counsellor.
I shall now set out the disclosures alleged by the mother to have been made to her and her version of the sequence of events thereafter as deposed to in her Trial affidavit:-
DISCLOSURE
10.On Monday 10 November 2008, [B], [L] and I were at [E Station], all sick with bronchitis. It was about mid-morning. [L] and I were sitting in the dining room of the house located at [E Station]. I was sitting in a recliner lounge chair and [L] had come to sit on my lap and to watch a cartoon on TV. I can’t recall how the discussion about sleeping arrangements began, but I do remember that earlier, [B] had asked whether [L] was going back to his own room to sleep. He had been on a mattress on her floor sleeping for about the past two weeks. I had been sleeping on [B’s] floor for a long time, so all three of us had been crammed into one room.
11.I asked [L] why he didn’t want to sleep in his own room, as he had said words to the effect that he didn’t want to go back to his room; he wanted to stay in [B’s] room with me. It was then that [L] said “Daddy has been touching me down here” or words to that effect. As he was saying this, he was indicating his groin area with his left hand. There was a pause. I felt sick in my stomach. He had just “blurted” it out. [L] was facing away from me, looking at the TV. I was close to, if not, in tears. [L] didn’t see me in that state as he continued to watch TV.
12.I was shocked with what [L] said to me but I comforted him by giving him a cuddle and saying words to the effect that it was “alright, and that he could stay on the mattress in [B’s] room”. I then asked about whether it was in bed or in the shower. He said bed, as set out below. I didn’t say anything more about it. I changed the subject as I didn’t know what to do. My mobile didn’t work out on the farm because it was out of range. I did not want to use the home phone as I could not be assured of privacy. In a later Police Statement made by me, I omitted also to say that at the time of the disclosure, I asked [L] one more question, “In the shower?” and he replied “No Mummy, in my bed”. We slept overnight at [E Station] with [L] sleeping in [B’s] room with me. It dawned on my [sic] that [L] had wanted his mattress in [B’s] room away from the door.
13.The following day, Tuesday 11th November 2008, I drove from [E Station] to [P]. As [L] was still sick, I left him at my mother’s house and took [B] to school. After I picked up [B] from school, [B] and I went to my mother’s house. [B] and I were sitting outside and [L] was inside. I had told my mother previously that [L] had not been sleeping in his own room. I was unsure what to do and whether [L] would tell another person. To put this in context, it was a young boy and his father and I was finding it hard to understand that [the father] could be involved with his son in this way.
14.I asked my mother to go and ask [L] why he didn’t want to sleep in his room. My mother was with him for a few minutes.
15.When my mum came out, she said to me to call my solicitor. I did not know what to do so I thought it best to contact my solicitor, Mr John Hopes.
16.I was not able to speak to John Hopes until 12th November 2008. My original plan was to stay in the house at [E] Station until the settlement proposal was put together by [the father]. On 28th August 2008, [the father] had provided me with details of the rental houses in town where he wanted the children and I to live, but I refused. On the 12th of November 2008, my solicitor made arrangements for me to contact Ms [W], a psychologist. I wanted to be sure about what [L] was saying as I understood the seriousness of the allegations. I had no intention of leaving [E Station] prior to that time. On the evening of Tuesday 11th November 2008, we went home. I didn’t let the kids out of my sight. On the evening of 12th November 2008 we stayed at mum’s. On 13th November 2008 I had an interview with [Ms W] in Townsville and then she spoke to [L] alone. Ms [W] subsequently, after her interview with [L], told me that I should make a report immediately to the Department of Child Safety. I was devastated.
17.I know that [the father] may try to allege that I put [L] up to this but it is not true – it is the last thing I would want to put the child through. Further, I did not want to leave the Station at that point, I wanted to stay until a settlement was worked out.
18.I provided a Statement to the Police, a copy of which is annexed hereto and marked with the letters “KRM02”. I was not in the room with [L] for either interviews [sic].
19.After the matter was reported, the Investigating Officer, [Officer BH], asked me to bring [L] in for an interview. At 9am on Saturday 15th November 2008, [L] and I went to the [E] Police Station so that that could occur. I was not present during this interview. After the interview, [Officer BH], the Investigator, asked me if I wanted the details of what [L] had said and I said that I was too distressed to know the exact details and I would prefer not to know at that point. I was advised by Child Safety to continue to act protectively. On the evening of 19th November 2008, [the father] phoned to speak to the children. I became very upset because [L] became distressed. I said that he should speak to his father. [L] was distressed and broke out in hives. Annexed hereto and marked with the letters “KMR03” are [sic] a copy of the photos.
20.In relation to [the father’s suggestion that [L] may be confused because I have previously checked their nappies, I say:
(a)I always put the children to bed at night and at no time can I recall [the father] ever being present with me;
(b)[B] is 11 years of age and has not worn nappies for seven years or so;
(c)[L] wore pull-ups to bed but I have never checked him to see if his pull-ups are wet, in the manner alleged by [the father];
(d)I also find it strange that the child could be confused between [the father] and I. We are vastly different in body structure. I am 20kg or so lighter than [the father] and I have always worn the same perfume for years. It would be easy for my children to distinguish [the father] and I.
21.I recall observing [the father] at about 6pm on 11th November 2008 (the day after the disclosure) attempt to enter [L’s] room and [L] yelling out words to the effect that [the father] was to get out. On 10th November 2008, I ensured that [L] slept in [B’s] room with me.
The mother’s Police Statement I set out hereunder:-
[The mother] states:
1.I am a separated woman, forty years of age and I live with my parents at [P].
2.I am currently in the process of a divorce from my husband, [the father]. [The father] and I have been married since the […] 1998. We have two children, [B] who was born at Townsville on the […] of April 1998 and [L] who was born at Townsville on the […] of February 2002.
3.[The father] decided that he and I should divorce in August 2008 however we have remained living in the family home at [E] Station [E] with the children.
4.[The father] usually finished work at about 5.30pm during the week. [The father] would have a shower and then take [L] and [B] down to his bedroom to play. This would happen nearly every afternoon during the week. I was attended [sic] to the evening meal and other household duties while [the father] and the children were in the bedroom.
5.[B] and [L] both have their own bedrooms. For the past two years I have been sleeping in [B’s] room.
6.About six weeks ago [L] wanted me to sleep in his bedroom. I asked him why but he didn’t answer me. At the time I put it down to the fact I was sleeping in [B’s] room and he felt left out.
7.For about the last four weeks the children and I have been staying at [P] with my parents for three or four nights and only spending three or four nights at home. We stay at my parents when the children have sport in town because it is too late by the time we get back to the station.
8.For the last two weeks [L] has been sleeping in [B’s] room and not wanting to sleep in his own room.
9.On Monday the 10th of November 2008, [B], [L] and I were at home sick. It was about mid morning and we were sitting in the dining room talking. I said to [L] “Why don’t you want to sleep in your own room.” [L] said “Daddy’s been touching me down here.” As he was saying this he was indicating his groin area with his left hand.
10.I gave [L] a cuddle and said “It’s all right you can stay on the mattress in [B’s] room.” I didn’t say anything more about it and changed the subject.
11.On Tuesday the 11th of November 2008, [L] was still sick so I left him with my mother, [the maternal grandmother]. After I picked up [B] from school we went to mum’s house.
12.[B] and I were sitting outside and [L] was inside. I then told mum to ask [L] why he doesn’t want to sleep in his room. I had not told anyone what [L] had said to me about why he didn’t want to sleep in his room and wanted to see if he told mum the same thing.
13.Mum came out a short time later and told me certain things about what [L] had said.
14.I then contacted my solicitor, John HOPES and I was subsequently put in contact with psychologist [Ms W].
15.I took [L] to Townsville for an appointment with [Ms W] on Thursday the 13th of November 2008. I was not present when [ms W] spoke to [L].
16.After the appointment with [Ms W] I attended the office of the Department of Child Safety in Townsville and advised them of the situation.
17.On Friday the 14th of November 2008, I received a telephone call from Detective [BH]. As a result of that call I took [L] to the [E] Police Station at 9.40am the following morning.
18.At the police station Detective [BH] had a conversation with [L] in the station interview room. I was not present during that conversation.
19.On Sunday the 16th of November 2008, I again attended at the [E] Police Station with [B] at the request of [BH]. [BH] then had a conversation with [B] in the station interview room. I was not present during that conversation.
20.I then provided this statement to Detective [NL].
[The mother]
In the maternal grandmother’s trial affidavit, after deposing to a considerable amount of background information which I will need to deal with later, at paragraph 13, she commences her evidence with respect to the disclosure. I set it out hereunder:-
13. I remember the morning of 11th November 2008. On this morning, I had a conversation with [the mother]. [The mother] asked me to talk to [L]. She wanted me to talk to [L] alone as he had told her a story and she wanted to find out whether or not it was true. She thought that he might repeat it to me or tell me as well. Although [the mother] never told me what [L] had said to her, I did have an idea as to what she may have been talking about because of the following:
(a) [The mother] asked me to talk to [L] alone;
(b) [The mother’s] mannerisms exhibited to me some concern;
(c)I had had, in the past, concerns about the children that had lead me to call Crime Stoppers;
(d)I had asked the specific question as I knew by way of background from other discussions with [the mother] and the weeks leading up to this day, that [L] had not been sleeping in his own room. Although it is not in my Police Statement, I knew that the topic that I had to raise with [L] was his father coming into his room at night and hence I asked the question as stated in paragraph 9 of my Police Statement.
14. I went back into the room with [L] by myself and because I knew the child well and I knew that he was a good child and wasn’t one to get into trouble, I asked him straight out. I am not a trained professional investigator but I knew he would tell me the truth if I asked him straight out. I said to him words to the effect of “[L] can you tell me if Daddy has been coming into your room at night?” [L] said “yes, he has and playing with my willy”. While saying this, [L] made a motion with his fingers and hands, opening and closing them.
15. I was shocked with his response and asked him if he was sure. He replied that he was, or words to that effect. I said words to the effect of “but you have got a nappy on” meaning a pull-up overnight nappy. [L] then said to me words to the effect “he is playing with my willy, Granny and he shifts my leg”.
16. At the time that I was asking [L] this, he was playing a Nintendo DS game. There was a pause and I said to [L] words to the effect “[L] are you lying?”. His response to me was “No Granny, I am not lying”, or words to that effect. I was in shock. I went outside and told [the mother] about the disclosure and said that she should ring John Hopes. [The mother] indicated to me that [L] had told me slightly more than what he had told her, namely that he had not mentioned to her anything about [the father] moving his leg to gain access to his “willy”.
17. The children stayed with me that night while [the mother] went back home, fed the animals and came back with some clothes. I was later informed by [the mother] that she was going to see a psychologist by the name of [Ms W] and that she was able to get in via a cancellation of an appointment to see [Ms W] on 13th November 2008.
18. Annexed hereto and marked with the letters “DMA01” is a copy of the Statement that I provided to the Police. I have the original of the diary to which the Police Officer is referring. This diary has been created by me generally on a contemporaneous basis. I am a little bit forgetful with dates and events so I keep notes. I sometimes write down the wrong dates in the diary because I am not perfect. I also write a number of days entries at once. In other words, I don’t fill out the diary every day (but mostly I do).
19. Since the initial disclosure to me and the provision of my Statement, although I have not pushed [L] for information, he has let information slip out to me and I have passed this information on to the Police Officer involved. Details of such disclosures are:
(a)He told me that when his father would touch him, he would roll up into a little ball, describing how he would draw his knees up to his chest;
(b)He told me approximately five weeks ago that he would know that his father was approaching when he could hear the creaking floor boards;
(c)He told me in the first half of 2009 that when his father would be in his room touching him, on one occasion, that when [the father] put his hand on his “willy”, [L] said words to the effect that “he put his hand on [the father’s] hand [the father] got a fright and hit his head on the wall and then he went away and he came back later”;
(d)He has also told me that he is frightened that his father may take he and [B] away, or words to that effect.
The maternal grandmother also made the following statement to police:-
[The maternal grandmother] states:
1.I am a 62 year old mother of one child currently residing at [P]. [The mother] is my only child and she has two children herself. [B] is 10 years old and her brother [L] is 6 years old.
2.I know [the father]. [The father] and [the mother] were married on the […] November 1988.
3.I can remember on the 19th of July 2008 I spoke to Pastor [S] of [N] Church. I had a conversation with Pastor [S] in relation to discovering that [the father] had possession of pornography. [Pastor S] suggested to me that people that watch pornography over a lengthy period of time move into child pornography.
4.I later told [the father], “Do you think that’s right that you’ve got all that porn in the house with those kids?”
5.[The father] said, “It’s what you do when you don’t have sex. It’s locked away in a metal box in the office.”
6.I can remember 11th of November 2008. In the morning of this day I had a conversation with [the mother].
7.[The mother] said, “Do you want to talk to [L]. He’s told me a story and I want to find out if it’s true or not. He might tell you.”
8.I sat on the couch and spoke with [L].
9.I said, “[L] can you tell me if Daddy’s been coming into your room at night?”
10.I asked this question first and knew it couldn’t be anything else because they’re good kids and they don’t get into trouble. At no time did [the mother] tell me anything about why she wanted me to speak to [L].
11.[L] said, “Yeah he has, and playing with my willy.” [L] then made a motion with his fingers and hand opening and closing them.
12.I said, “Are you sure?”
13.[L] said, “Yes, he did.”
14.I said, “But you’ve got a nappy on.”
15.[L] said, “He is playing with my will [sic] Granny and he shifts my leg.”
16.[L] stopped playing his computer game.
17.I said, “[L] are you lying?”
18.[L] said, “No Granny, I’m not lying.”
19.I was in shock. I went outside and told [the mother] what [L] had said.
20.[The mother] said, “He told you more than he told me because he didn’t mention the moving of the leg to me.”
21.On Tuesday the 18th of November 2008 I attended the [P] Police Station and provided this statement to police. I also provided Detective [BH] with a 128page notebook that I keep as a diary in order to remember things. I used this notebook to note the conversation I had with [L] on the 11th November 2008.
[The maternal grandmother]
It will be seen that the mother deposes that the child made a disclosure to her on Monday 10 November when the child was at home sick on E Station about mid-morning. She deposed that the next day she drove the children into P, left L at her mother’s, because he was still ill, and drove B to school. She makes no mention of what she does in the interim but she deposes that she picked up B from school, presumably after school, and returned to her mother’s and it was then whilst B and her were sitting outside and L was inside the house, she asked her mother to go and ask L why he did not want to sleep in his room.
The maternal grandmother, in her affidavit, also has this event taking place on 11 November, except that she has it occurring on the morning of 11 November. She deposes that her daughter asked her to talk to L as he had told her a story and she wanted to find out whether or not it was true. There is no mention of asking L why he did not want to sleep in his own room.
It will also be seen from the Police Statement that the grandmother establishes the time for this event in the morning of 11 November and also makes no mention of asking L why he did not want to sleep in his own room.
The mother admitted under cross-examination that although L made his alleged disclosure mid-morning of Monday 10 November, she did not ring her mother, she did not ring Crime Stoppers, she did not ring her solicitors, in fact, she did not ring anybody. The first time she raised it with anybody was with her mother after school on Tuesday 11 November.
What is a fascinating piece of evidence is that it appears from Exhibit M that on Tuesday 11 November at 12.45pm, she has a conversation with the Child Support Agency restoring her Child Support Assessment to 100 percent care. Her assessment had been reduced down to 50 percent care and advised to her by a letter from the Agency dated 5 November 2008, which is Exhibit M. I will deal in more detail with the Child Support and Single Parent Support benefits later in my Judgment.
The point of this is that prior to making any official complaints or taking any other steps, the very first thing she does is to restore the Child Support assessment. In the context of this case, it is a very telling point.
Both the mother and the maternal grandmother kept diaries over the relevant periods and they became exhibits in these proceedings.
From the mother’s diary, which became Exhibit ICL-6, the entry for 10.11.08 reads “[L] still sick and [B]. Monday. We all stayed home. All sick. Could not get into doctor’s. Rang mum about his room. Kids sick. Spoke to [L]”.
Some of it is written in different ink, all of it is somewhat jumbled in the way it is recorded. There is no reference to the disclosure that the mother asserts the child made. At best, it is perhaps possible to interpret it to suggest that she spoke to L about his room.
The next entry reads:-
Tuesday. Went to town. [L] and [B] sick. 11.11.08. Doctor’s. [L] got hair cut. Mum spoke to [L]. Rang John. Didn’t get back to me. [L] told his father to get out of room.
In the maternal grandmother’s diary which is Exhibit Q in these proceedings and for the preceding pages records Tuesday 4th, Wednesday 5th, Thursday 6th, Friday 7th, Saturday 8th, Sunday 9th and then instead of Monday 10th of November 08 which is how it was originally recorded, it had been altered to read “Tuesday 11th November 08”. As a result of changing that, it has become necessary to change the next three entries in her diary from Tuesday 11th to Wednesday 12th, Wednesday 12th to Thursday 13th, and Thursday 13th to Friday 14th. Her explanation was that she gets confused and sometimes writes the dates wrong.
However, in my opinion, it is clear that those entries were changed because they did not accord with the evidence deposed to in the mother’s affidavit, namely that the disclosure to the grandmother did not occur until the Tuesday.
Insofar as relevant, her diary records the events of Tuesday 11 November 2008 as follows:–
[B] and [L] did not go to school today still sick. Can’t get into the doctors. Doctor’s very busy. [L] told me today that his father has been coming into his room at night when he’s asleep and playing with his private parts (willy). I said are you sure, [L], and he said yes. [The mother] said [L] has been asking her to sleep in his room. [L] now sleeps in the bedroom with his mother and [B] in [B’s] room and he’s a lot better [the mother] said. I don’t think [L] would make up this type of story as he is not like that. He always tells the truth. [The father’s] watching a lot of porn from the Internet on his computer and mobile phone. I think [the father] should seek some sort of help for his problem/kids did not want to go home again.
In her evidence before me, she said that on the Tuesday morning, the mother arrived at her house driving her motor vehicle with the two children as passengers. She, the maternal grandmother, was on the veranda. She said that the mother got out of the car and at some distance from her, yelled something to the effect of that she wanted her (the maternal grandmother) to speak to L with respect to why he did not want to sleep in his room anymore. This was said in a voice which the grandmother said was certainly sufficiently loud for the children to hear.
She said that L went into her house and she followed and that he made the disclosure that his father had been coming into his bedroom and playing with his willy.
She said she then took the child outside. The child got back in the motor vehicle and the mother, B and L drove away.
This is completely inconsistent with all of the other evidence.
It is clear that both children had been sick.
From the diary entry of the mother, it appears that she took L to the doctors on the Tuesday. She also, by the way, took him for a haircut. When cross examined about whether she said anything to the doctor about the alleged disclosure, she said, “At the time I took him to the doctor, I didn’t think it was true.”
There are many other examples through the evidence of inconsistencies and unreliability. Some of them I will need to deal with later in this Judgment. However, it is necessary for me to make a Judgment about the reliability of the mother and the maternal grandmother for the purposes of deciding the issues that I am required to address under s 61DA(2)(a).
The mother was the worst witness I have seen in forty-plus years in the law. At one point during her evidence, she having lied so many times that I was finding it difficult to find any consistent thread through her evidence, I was forced to say to her words to the effect, “How am I supposed to tell when you are telling the truth? Does a light go on or something?”
As for the maternal grandmother, at the conclusion of her evidence, I said to her, having regard to the complete inconsistencies and irreconcilability of much of her evidence with any of the other evidence in the trial, words to the effect, “Am I not entitled to regard your evidence as being so inconsistent and unreliable that I should give it no weight?” She was forced to agree.
As a result, I have come to the conclusion that I should reject the evidence given by the mother and the maternal grandmother on these matters as totally unreliable.
The Disclosure to Ms W
Ms W is a psychologist specialising in child and developmental psychology. The mother took L to see her at her clinic on 13 November 2008. This was at the suggestion of her solicitor, Mr John Hopes, and, as it turns out, clearly for forensic purposes.
Two affidavits were sworn and filed by Ms W, the first on 17 November 2009 and the second on 21 August 2010 by leave.
Annexed to her first affidavit is a report which she prepared at the request of Mr Hopes in which she answers questions raised by him.
I will set out hereunder those parts of the report that I think are relevant for present purposes.
1. My understanding of why [the mother] contacted me to see [L]
The mother, [Ms Rose] had asked me to see [L] in relation to a possible disclosure that the lad had made to his Mother and to another family member, whose name is unrecorded in my notes. By recollection [the mother] was also concerned about [L’s] recent behaviour as being ‘different’ from the usual, i.e. wanting to sleep in the same room as [the mother].
2. The methodology used by myself to conduct the interview with [the mother] and with [L]
As is my usual methodology, I interviewed the Mother separate to the child for approximately forty (40) minutes to establish both the typical pattern of [L’s] behaviour and to gain information in regard to [L’s] present behaviour which concerned the Mother (pages 1 and 2 in my notes). I took a full history of the child’s development to establish whether any organic disorders could account for [L’s] change of behaviour. All development was considered within the normal range apart from his language being somewhat lagging. [The mother] stated the child will attend speech therapy in the near future. I also had [the mother] complete a “Strengths and Difficulties” Questionnaire (page 3 in my notes). [The mother’s] responses indicated that she did not view [L’s] behaviour as difficult in any situation, and that he had several strengths, such as volunteering to help others.
I then interviewed [L] on his own with the Mother outside of the room, but within ear-shot. [L] was not aware that his Mother was within ear-shot, as [L] and I were behind a partially opened door. I observed [L] playing in the playroom for a short time, and observed normal or typical interaction with the new environment. After about five (5) minutes I asked [L] to tell me about his family and using the white board, I drew pictures of [L’s] family on the whiteboard. [L] would not draw the pictures himself, but was able to instruct me to draw the stick figures and to assign facial expression on the stick figures faces. [L] spontaneously disclosed possible sexualised interference perpetrated upon him. I asked questions to [sic] [L] utilising techniques recommended in a 12 week course entitled, “Advanced Forensic Interviewing of Children” through Deakin University, in 2007.
3. My clinical observations of how [L] answered the questions including his demeanour/body language.
[L] appeared relaxed and at ease in the play therapy room. [L] had not been in this room prior to this time and, as far as I could recall, had not met me prior to 13 November 2008. [L] interacted appropriately with the toys, that is he was curious, picked things up, looked at them and set them down in the place where he had found them. Walked around the small room easily and settled on sand play toys near the white board. [L] chatted easily with me about school and the toys he was playing with at the time. [L] met my eye gaze as he was talking.
When drawing the family picture, it was evident that [L] knew of the relationship difficulties between his parents and that he was of the impression that the Father was attempting to “steal” [L] from his Mother and that the Father was attempting to “kick us out of the house”. [L] stated that he knew these things because his mother had told him. [L] does seem under the impression that the Father is somehow “bad” however, this badness seems to be only what his mother and his sister have told him. [L] did not say that he considered his Father “bad”.
When [L] made the statement “when I go to bed Dad comes in and touches me”, he began to automatically put his hands in front of his crotch and hunched his shoulders. As [L] went on with his disclosure, his body movements were protective of his genital area. When [L] was talking about how he moved during the alleged sexualised touching, [L] said “I put my leg down” and seemed to automatically draw up both of his legs towards his chest in a protective stance.
When [L] made the statement, “he puts his hand up my pyjamas …” [L] demonstrated by putting his hand up the leg of his board shorts.
[L] continued to intermittently meet my eye gaze throughout the disclosure, in the style which is usual for an adult-child conversation.
My interview with [L] ceased when I judged that the child’s disclosure warranted a notification to Department of Child Safety. I ceased further interview questions so as not to over-question the child prior to any questioning the Queensland Police or the Department of Child Safety might ask of the chil [sic].
During the course of the Trial, it became clear to me that Ms W had not seen the Police interview. I thought it might be useful for her to view the Police interview with a view to comparing the child’s responses in that interview with what she had heard and observed. As a result, she swore a further affidavit which, as I said, was filed by leave on 24 August 2010.
It is quite extensive, but for present purposes, it is sufficient for me to refer to firstly paragraph 4, in which she says:-
4.In my opinion, [L’s] interview with the Police is consistent with his communications to me, not only because the details are consistent, but also that [L’s] body movements are the [sic] consistent.
She also makes some criticisms of the methodology used by the Police Constable and I will set them out hereunder:-
a.DSC [BH] asked several closed questions, i.e. those that required a one word answer and thus did not advance the information supplied. I learned to limit closed questions as the child frequently responds with the answers he or she believes the questioner wants to hear.
b.I learned to utilise as many open questions as possible, i.e. statements that encouraged information, such as “Tell me about …”, or “and then what happened”, or “what else can you tell me about the part where”. These later forms of questions allowed the child to select what information he/she wished to report. The importance of allowing the child to generate details is that, in providing details during a narrative, such details are more likely to be accurate than when they are probed by the interviewer directly. However, it is noted that DSC [BH] did seem to use questions that encourage a narrative style when [L] was speaking about the details of the alleged touching.
c.DSC [BH] did not seem to engage in a method of establishing whether the child knew the term ‘truth’. When I assess the ability of young children to give witness in court proceedings, I engage the child in talking about the concepts of truth and pretend, and have the child tell the truth and tell something ‘pretend’ or a ‘lie’ about the same object. After which I then question the child in regard to disclosures or allegations in the matter. As I was not interviewing [L] to establish whether or not he could give evidence in court, I did not engage in veracity testing.
Before I deal with her cross examination, it is necessary to deal with a couple of matters that Ms W records L telling her.
She records:-
When drawing the family picture, it was evident that [L] knew of the relationship difficulties between his parents and that he was of the impression that the father was attempting to ‘steal’ [L] from his mother and that the father was attempting to ‘kick us out of the house’. [L] stated that he knew these things because his mother had told him. [L] does seem under the impression that the father is somehow ‘bad’. However, this badness seems to be only what his mother and his sister have told him. [L] did not say that he considered his father ‘bad’.
When these matters were put to the mother, she denied that she had told the child any of the matters therein referred to. An extremely telling point, in my opinion.
Under cross examination, I will refer first to some passages where Ms W is being cross examined by Ms Pagani, Counsel for the Independent Children's Lawyer.
MS PAGANI: Yes. Sorry, I will rephrase that. What did you do or say to the child, or what did the mother in your presence do or say to the child, that gave the child an indication of why he was there?---From my recollection I had said that he was here because Mummy was worried about where he was sleeping.
Right. So - - ----Because that was what she presented to me.
All right. And did you say that in front of the mother?---Yes.
All right. So he already knows these are questions about something in his bed or his room or night time?---Or night time.
He knows all of that?---Yes.
Wouldn’t it have been far, far better for you to simply say “I want to talk to you about some things that happen at your house?” No night time, bed connotation. That would have been better, wouldn’t it?---Probably, yes.
If he had been contaminated about beds - - -?---Yes.
- - - night-time, Dad, that stuff - - -?---Yes. Yes. Certainly if he had been contaminated, if I had that information, but I didn’t.
But the thing is, Ms [W], the whole point of this you could not have known whether there had been contamination, could you - - -?---No.
- - - at this stage, so why didn’t you take that precaution and not give him that lead-up cue right from the beginning?---I don’t know.
It was wrong, wasn’t it?---Yes, it was.
And it places a lot of doubt on any reliability that can be placed on your opinions, doesn’t it?---Yes, it does.
All right. Do you accept from what you’ve heard so far that the court really, in these circumstances, can’t rely on your opinion?---Yes, I can see that.
Prior to that, she was cross examined by Mr Fellows, on behalf of the father. I will set out hereunder what I regard as the crucial passages in this cross examination:-
HIS HONOUR: Hold on. By doing that – let me just save Mr Fellows getting annoyed with you. The reality is that by doing that, you led them down that pathway, didn’t you?---Inadvertently. I regret having put that in.
I don’t care whether it was inadvertent or not for the moment. The reality is that by doing that, you led them down that pathway?---That looks like it’s the reality, yes. Yes.
It couldn’t do anything else, could it? Could it?---Well, it wasn’t my intention.
No, well, leave out – for the moment let’s not worry about whether it was your intention or not, the fact is that’s the result, isn’t it?---That is the result, yes.
That’s the result?---Yes.
And at that time, all you had was this child. You didn’t know anything else about – and all you knew was what the mother had told you and you didn’t know what had really happened up until then and the degree to which the child had been contaminated, if he’d been contaminated at all. All you knew was what he told you - - -?---Yes.
- - -and what the mother told you?---Yes.
There may have been a whole lot of other explanations for this - - ----There appear to have been, yes.
- - - which didn’t involve the father being the perpetrator or, for that matter, there being any sexual abuse at all?---Could have been, yes.
MR FELLOWS: And was this your genuine opinion, that my client was the perpetrator?---No, my opinion was that it warranted further investigation.
Disclosures to the Police
L was interviewed by Detective Senior Constable BH on 15 November 2008. There is no transcript of that interview, simply a video-taped recording. No agreement could be reached between the parties with respect to a transcript. I think that that is partly due to the very poor quality of the audio.
I do not propose to attempt to do any more than highlight those matters in the interview that may have some importance.
After introductions, L says that Dad’s been a bit rude and the policeman asks him, “Why is that?” The child responds, “Because he’s been mean and stuff”. He is asked in what way he is being mean and he responds, “Because he is trying to kick us out”, and then explains, “Out of the bush. We live in the bush and we’ve got to go and live at Gran’s today until we find a new house.”
He’s asked, “Who told you that he’s been mean?” and he responds, “Mum did.”
He’s asked where he lives at the moment, and he says, “At Granny’s.” He says that his Grandad and also B, his sister, live at Granny’s.
After a few more questions about his school and teachers etc., he is ask, “You said that Dad’s rude. How is he rude?” and he responds, “Because he’s trying to kick us out of the house.” He then goes on to talk about playing with kids next door and he links that in with the fact that now it’s going to be a long way to go and pick them up to have fun with them.
He then goes on to talk about fun things at Granny’s which relate to toys and Nintendo etc. He then is asked where his mother lives and he says, “With [B] and him all at Granny’s place.”
He is then asked where Dad lives and he says, “He’s going to get lovey up in the morning. He’s going to get lovey today.” When asked, “Who’s that?”, he replies, “[J]. He’s going to get [J] to his house today.” When asked, “Who’s [J]?” He replies, “Dad’s girlfriend.” He’s asked if he’s met her and he says, “Yes.” He then goes on to say, “She won’t give us the right food”, and then he replies spontaneously, “I haven’t met her before”, so when asked, “Who told you about [J]?” He replies, “Mum”.
He is then asked some questions about what he eats which doesn’t seem to have much relevance. But he is then asked does he go to Dad’s house and he says, “No, not any more.” He is asked when did he last go to Dad’s house and he says when he was a little baby. He is asked does he go and visit Dad’s house and he says, “Not any more.” And when asked why, he says, “If we go there again, we just live there.”
He is then asked, “Are there any fun things at Dad’s house?” He replies that all his stuff and B’s stuff is about to be moved to Granny’s house.
He is asked what are some good things about Dad’s place. “Are there any good things about Dad’s place?” He shakes his head and says, “No.” He is then asked what are some bad things about Dad’s house and somewhat unresponsively, he answers, “There’s a cubby house” and it appears that the cubby house is to be moved from Dad’s house to Granny’s house and repainted in colours more to his liking.
The Policeman then says that someone has told him that L goes and visits Dad at Dad’s place and he replies, “No. Not any more.” When asked when he last visited Dad, he responds, “A long time ago. When I was a baby.” He is asked if there’s anything he doesn’t like about Granny’s place and he says, “No.” He is then asked if there’s anything he doesn’t like at Dad’s place and he replies, “Yes. We play cards and I don’t like that because he always wins.”
The Policeman then says, “Mum told me that you told her something?” He then says, “Do you know what that is?” and L replies, “No.”
He then asks, “Someone told me that you go and sleep at Dad’s place sometimes” and he replies, “Sometimes I sleep in [B’s] room at Dad’s because he always touches me every time in my room on my willy.” He was asked when does that happen and he says, “Every single night so I have to sleep in [B’s] room.” He’s asked who told him he has to sleep in B’s room and he says, “Mum.” He’s asked does it happen when he sleeps in B’s room and he says, “No.”
He then goes on to explain that Dad touches him on the willy, everywhere on the willy, using his fingers and it lasts two minutes. He says it always happens at night time. He says his Dad doesn’t say anything and he doesn’t say anything. He just stays asleep. He’s asked how many times has this happened and he says, “A thousand.” He then says, “We’re now living at Granny’s until we get enough money to get a house.”
He then engages in some body movements which appears to show a foetal position and then his leg being moved.
He’s asked what happens after the touching and he replies that Dad goes for a bath then goes to his room to watch TV and “That’s not enough. He should help Mum more.” He then goes on that he hasn’t helped Mum for one thousand and sixty thousand weeks.
He is asked who else is in the house when Dad touches him and he says that Mum is doing the dishes and B is always asleep “because we’ve got school in the morning.”
He is then asked, “Did someone tell you to tell me about this?” and he nods but doesn’t indicate who.
He is then asked had he told the truth about Dad touching him on the willy and he nods.
He is then asked again about has anyone told him to tell the Policeman about all of this and he replies, “James.” After some further questioning, he says, “James […]”, who is a school mate of his and the same age as him. He says that he is the first person he told about Dad touching him on the willy. He then goes on to say that this happened on his birthday and James told him that if Dad was rude to him, he should tell a policeman.
He is then asked again if what’s he’s said today has been the truth and after some apparent hesitation and facial grimaces, he says, “Yes.”
It is clear from the interview that much of the information he provides has been provided by his mother and or his grandmother. Although the mother denied telling L these things, he has to have obtained information about the alleged girlfriend from either his mother or his grandmother.
The police not only interviewed L but also his sister, B, who made no disclosures and the mother and the grandmother, both of whom gave Police Statements. The police also obtained photocopies of the grandmother’s diary from Saturday 19 July 2008. The diary as I have already indicated is Exhibit Q in these proceedings. It is replete with speculation about sexual misconduct by the father, the viewing of pornography, the possibility of that leading to paedophilia, the concerns about the father having a girlfriend, one J, etc.
The Police Finalising Report dated 15.01.2009 is as follows:-
Narrative
On 16.11.08, police located a possible witness [James] who was unable to identify any conversation between himself and the victim child relating to this offence.
On 18.11.08, the preliminary informant, [the maternal grandmother], attended the [P] Police Station and provided a statement to police in relation to the matter. A number of concerns were raised at the completion of the statement in relation to a conversation between [the maternal grandmother] and a local church minister in which the minister indicated that people who watch pornography over a lengthy period of time move into child pornography. Another area of concern was the initial questioning of the victim child without prompting. [The maternal grandmother’s] first question to the victim child was, “Can you tell me if Daddy’s been coming into your room at night?” [The maternal grandmother] validated this question to police by indicating that she knew that it could not be anything else because they are good kids and don’t get into trouble.
On 27.11.08, the Action Officer had attended the suspect’s solicitors in Townsville where he was advised of the allegations and declined to be interviewed in the presence of his solicitor. The suspect strenuously denied all allegations.
Considering the evidence provided by [the maternal grandmother] and its questionable nature along with the victim child’s inability to particularise the offence, it was decided that this matter should be considered as unsubstantiated as evidence indicates it was highly unlikely the offence occurred.
On 2.12.08, the Action Officer spoke with informants [the maternal grandmother] and [the mother] and were advised that considering the statement provided by [the maternal grandmother and the limited evidence in the matter, it would be highly unlikely the matter would proceed.
Disclosures to the Department of Communities
The Department of Communities file was subpoenaed which became Exhibit ICL-18 in these proceedings and there was also a Magellan Report filed with the Court dated 7 June 2010.
It is clear from the subpoenaed material and from the Magellan Report that the Department relied upon the evidence from two notifiers. The first is clearly Ms W and I do not need to revisit what I have already said about her evidence.
The second is clearly the mother and I have already found that her evidence is unreliable and not to be accepted.
In the Magellan Report, it is clear that the Department had information from the mother, Ms W and the Queensland Police. I have already indicated the findings of the Queensland Police.
In addition, the Magellan Report indicates:
[L] was interviewed on 4 December 2008. [L] presented as clean, dressed in his school uniform and appeared healthy and happy. He was open with child safety officers during the interview. The sexual abuse allegations were not raised with [L] by child safety officers as Police had interviewed him the previous day in relation to these concerns. [L] did not raise the issue himself. (My emphasis.)
Then, a little later in the Magellan Report, it records:-
The assessment was conducted based on the children living with their mother and being in her primary care.
In relation to [L], an outcome of substantiated, child not in need of protection was recorded. It was assessed that [L] had suffered harm in the care of his parents and was at risk of suffering emotional harm caused by sexual abuse with [the father] being listed as the person responsible. During the assessment, [L] disclosed to Police and his psychologist that he had been inappropriately touched by his father lots of times. [L] said that he had been touched on his private parts by his father and showed a tickling motion with his hands at his crutch. [L] was, however, unable to particularise each incident and said it happened 1,000 times.
It is clear that the Department simply relied upon evidence which I have found to be completely unreliable.
Disclosures to the Family Consultant
On 23 March 2010, Ms K, Family Consultant, interviewed L. At paragraph 137 of her first Report, which is dated 24 May 2010, it reads:
[L] continued that “Mum and Dad had a fight. [The father] gave Mum a mark. Gived her a sore. Gave mum a sore. Dad gave her a bruise. He just hit mum with a water bottle. Mum just asked me and [B] to go to our room and so they can have discussions. And … once … when I’m asleep, Dad comes up when I’m asleep and touches me in the bad part. That’s all I know. I telled you all that’s in my head”.
In her final Report which is dated 25 August 2010, the Report Writer says in paragraph 1:
This addendum has been prepared at the request of the Court after the Report Writer heard the evidence provided by [the father], [the paternal grandfather], [the paternal grandmother], [the mother], [the maternal grandmother] and Ms [W]. Consideration has also been given to the further subpoenaed information, exhibits and in particular, [the mother’s] diary and [the maternal grandmother’s] diary.
At paragraph 7 of her last report, she records:
[The mother’s] and [the maternal grandmother’s] thinking can be characterised as the type of dichotomous thinking that is described above. Based on the evidence that [the mother] and [the maternal grandmother] provided in Court (and entries recorded in diaries), it appears that both share fixed beliefs that:
· The world is a dangerous place and I must always be on guard for threat.
· Bad things happen and they cannot be overcome.
· If I know/think something, it must therefore be true.
· Children do not lie and must be believed.
· People are either for or against you.
· If people are against you, they will harm you.
Then, at paragraph 13 in her report, she records:-
It is difficult to have confidence that [L’s] disclosure was not influenced by his mother and grandmother’s high levels of suspicion, hyper-vigilance to danger and discussions with the children about activities with their father and possible danger/harm. As noted in the Family Report (24 May 2010, paragraph 148, page 23):-
“Children are able to be reliable and credible witnesses to their own experiences when adults around them provide the appropriate context for their disclosure. Significant consideration must be given to the context that disclosures are made in and the type of questions or comments adults make in response to these disclosures. Children tend to provide the most accurate accounts of events when asked vague, open questions. Accuracy of recall may be compromised by leading, suggestive or misleading questions or comments and can result in young children falsely affirming experiences that they have not had and even providing details of these experiences”.
She goes on in paragraph 14 to record:-
It is still considered that it is difficult to definitively confirm the “truthfulness” of [L’s] disclosure. As noted in the Family Report (24 May 2010, paragraph 152, page 23):-
“Ms [W] noted (in her affidavit of 17 November 2009) that the amount of details in [L’s] disclosures was inconsistent with an account that have [sic] been fabricated or rehearsed and that his use of language was consistent with his telling the truth. It is difficult to determine, however, the accuracy of [L’s] reported memories. As noted above, when provided with misleading information, children may incorporate this into their memory and recall it as ‘true’ memories. If this occurs, they may report accurate events just as easily and as credibly as inaccurate/misinformed events. It is possible that this has occurred with [L] when his mother and grandmother have talked about sexual abuse. If this is the case, then it would result in a reduction in confidence that his statements are entirely accurate. It is important to note that there is no suggestion that [L] lied, rather, that there is the possibility that he recalled misinformation that he had incorporated into his memory”.
The father has consistently denied that he has in any way sexually abused L. He gave evidence before me and was extensively cross examined. His evidence was consistent and credible. He made concessions where appropriate and in my opinion, was telling the truth. I unequivocally accept his evidence on this issue.
Consequently, not only do I find that there are no reasonable grounds to believe that a parent of the child has engaged in abuse of the child pursuant to s 61DA(2)(a), but using the words of the High Court in M & M (supra), this is a case in which I have “no hesitation in rejecting the allegations as groundless”.
Family Violence
As I have previously pointed out, s 61DA(2)(b) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence.
As I have previously identified, family violence is defined in s 4 of the Act.
The evidence is unequivocal that family violence has occurred and that B witnessed one act involving family violence.
There is a dispute on the evidence as to who was responsible for that act of family violence.
Further, the mother alleges that the father engaged in other acts of family violence.
Consequently, it is necessary for me to consider the evidence in relation to this matter.
The act of family violence upon which there is common ground on the evidence relates to an incident that occurred at the breakfast bar in the former matrimonial home.
The father alleges that he was sitting at the bar assisting B with her homework when the mother approached from the other side of the bar and struck him several times with a large calculator, causing him to grab her by the shirt to prevent her hitting him. It is common ground that the shirt was torn in this incident. There is a photograph of the torn shirt in evidence.
It will be necessary for me to refer to that photograph and some other photographs in a moment.
The mother’s evidence is that the father struck her with the calculator. That version is supported by B in her statements to the Department of Communities and to the Family Consultant.
Firstly, there are five photographs which became Exhibit N.
The first shows a bruise on the mother’s left buttock. On the back of the photograph in handwriting, it reads, “Bruising on my back after [the father] had punched me. [B] took the photo after she had seen what her father had done”.
Photograph 2 also shows bruising on the mother’s buttock and on the reverse side, in handwriting, it reads “Photo of my bruising that [the father] did and [B] took the photo for me”.
Photograph 3 shows the same bruise again and on the reverse side, in handwriting, it reads “Photo of my bruising after [the father] had punched me. [B] took the photo after seeing what his father had done to me”.
Photograph 4 shows some bruising or an abrasion to what appears to be the mother’s left arm and on the reverse side, in handwriting, it reads “Photo of my arm with bruising after [the father] had hit me”.
Photograph 5 appears to show some marks on what appears to be the mother’s left arm. On the reverse side, in handwriting, it reads “Bruising on my elbow from [the father]. [B] saw her father hit me and she took the photo. Pushed bikes”.
What became Exhibit O are three photographs numbered 6, 7 and 8.
Photograph 6 shows staining on the floor near a toilet and on the reverse side, it reads “[the father] pee’d over the floor”. Photograph 7 shows a torn or ripped shirt and on the reverse side, it reads in handwriting “Photo of my shirt [the father] ripped when he grabbed me over the kitchen servery” and photograph 8 again shows a minor bruise or abrasion on what appears to be the mother’s left arm and on the reverse side, it reads in handwriting “Photo of my elbow where [the father] had pushed me into the bikes in the car park at [E Station]”.
All of the handwriting is the same and from the way it is expressed, it appears to be, on its face, the contemporaneous record of the mother relating to injuries that she has received at the hands of the husband and with respect to at least five of them, recorded as being taken by B.
Photographs 1, 2 and 3 would seem to be virtually impossible to have been taken other than by a third person. It is possible that photographs 4 and 5 were taken by the mother of her own injuries and it is certainly possible that the mother took photographs 6 and 7, although difficult for her to have taken photograph 8 though not impossible.
In evidence, the mother swore that only photograph 1 was taken by B and that photographs 2, 3, 4, 5, 6, 7 and 8 were taken by her.
This was after she was attacked in cross examination for involving the child in these issues. She then admitted that the description on the back of photograph 1, namely “Bruising on my back after [the father] had punched me [B] took the photo after she had seen what her father had done”, was an accurate description of what had happened. She said this had occurred when the father had pushed her on to a bike.
These photographs had been provided by the mother through her solicitors to the Independent Children's Lawyer. They were presented as being photographs taken with an accurate description on the reverse side in the mother’s hand. Much to the surprise of everyone, it turned out that, in fact, all of the writing on the reverse side of all of the photographs was in the grandmother’s hand, but in the mother’s “voice” – a quite extraordinary turn of events.
The father, in his evidence, denied ever having assaulted the mother other than the description that I have already given, namely grabbing her by the shirt to prevent her hitting him with the large calculator.
I have no difficulty in accepting his evidence and rejecting the mother’s evidence.
The degree to which the mother would engage in deception to achieve a forensic advantage in this trial was quite extraordinary.
Consequently, I find that there are reasonable grounds to believe that the mother had engaged in family violence pursuant to s 61DA(2)(b).
That being the case, the presumption does not apply.
However, in any event, I find pursuant to s 61DA(4) that the presumption has been rebutted by evidence that satisfies me that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
As I have previously said, a Court determines what is in the child’s best interest pursuant to s 60CC.
My starting point is the updated recommendations of the Family Consultant in her Report of 25 August 2010. Paragraph 27 of that report reads “It is recommended that [the father] have sole parental responsibility”.
The Report Writer bases that on paragraph 17 of her report in which she says:-
Based on the evidence provided during the trial, it is likely that the children will be placed at significant risk of emotional harm if they remain with their mother. Further, they are unlikely to be able to experience a meaningful relationship with any paternal family member while they remain in their mother’s care. Similarly, it is unlikely (given [the mother’s] attitude to [the father]) that shared parental responsibility would be practical.
Consequently, since the presumption of equal shared parental responsibility does not apply by reason of s 61DA(2) and has been rebutted by reason of s 61DA(4), not only for the reasons set out in paragraphs 148 and 149 but by reason of my full consideration of s 60CC later in these Reasons, I do not propose to make a parenting order that provides for the parents in this case to have equal shared parental responsibility for the children.
Consequently, s 65DAA does not apply.
That means that s 65D(1) is the operative section which provides “In proceedings for a parenting order the Court may, subject to s 61DA (presumption of equal shared parental responsibility when making parenting orders) and s 65DAB (parenting plans) and this Division, make such parenting orders as it thinks proper”.
Section 60CA requires that a Court must regard the best interests of a child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.
This Section is set out below:-
SECTION 60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations are:
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s rights to maintain personal relations and direct contact with both parents on a regular basis.
(f) the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3)
Right to enjoy Aboriginal or Torres Strait Islander culture
(6) For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
It will be seen that by ss (1), that in determining what is in a child’s best interests, the Court must consider the matters set out in s (2) and s (3).
Sub-section (2) provides the primary considerations that a Court is required to consider.
The first primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents.
The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to or exposed to “abuse, neglect or family violence”.
I have already referred to the fact that abuse is defined in paragraph 4 of the Act. I have set out the definition. I have already found that there has been no sexual assault or other conduct on the part of the father that would fit within the definition of “abuse”.
On the other hand, I have found that the mother has assaulted the father and so there has been abuse in that sense and also conduct by her which would fit within the definition of “family violence”.
What is puzzling is that although ss (2)(b) of s 60CC requires a Court to consider the need to protect a child from psychological harm, it seems that for that sub-section to apply, the psychological harm has to be from being subjected to, or exposed to “abuse, neglect or family violence”.
Therefore, psychological harm of itself is insufficient to fall within the sub-section.
The reason that I raise this legal issue at this time is that on the evidence I am persuaded that the mother and maternal grandmother have subjected these children to immense psychological harm but I am unable to find that that is as a result of exposing the children to abuse, neglect or family violence, save that B was exposed to one act of abuse and/or family violence when her mother struck her father with the large calculator when he was assisting B with her homework. That certainly caused the child considerable distress and on the father’s evidence, the child cowed beside him and was then sent to her room.
However, in the overall scheme of this case, that forms a very small part of deciding what is in the best interests of these children.
So, although it appears that I am not entitled to take into account psychological harm per se, I am nevertheless entitled to take it into account under ss (2)(a), namely “the benefit to the child of having a meaningful relationship with both of the child’s parents”.
I accept the evidence of the Family Consultant in paragraph 17 of her final Report in which she says:-
Based on the evidence provided during the trial, it is likely that the children will be placed at significant risk of emotional harm if they remain with the mother. Further, they are unlikely to be able to experience a meaningful relationship with any paternal family member while they remain in their mother’s care. Similarly, it is unlikely (given [the mother’s] attitude to [the father]) that shared parental responsibility would be practical.
I now turn to consider what are described as the additional considerations under s 60CC(3).
It appears by operation of ss (1) that I must consider each of the matters enumerated in this sub-section.
(a) The children’s views are that they wish to live with their mother and want absolutely nothing to do with the father. I am persuaded on the evidence that these views have been inculcated into these children by the manipulative and malevolent acts of the mother and the maternal grandmother. Given time and released from the oppressive, paranoid, manipulative and malevolent influence of their mother and maternal grandmother, I am hopeful that these children can be returned to what had previously been, in my opinion, a normal and loving relationship with their father, paternal grandparents and extended paternal family.
(b) The nature of the relationship of the children with their parents and grandparents is such that they are completely aligned with their mother and maternal grandmother and alienated from their father, their paternal grandparents and all of their paternal relations, including aunts, uncles and cousins. This alienation has occurred over a period of approximately two years and I am persuaded that it has occurred as a result of the matters that I referred to under (a).
(c) The mother will not facilitate or encourage any relationship between the children and their father or any of the paternal side of the family. She has demonstrated this by her actions over the last two years which are simply appalling.
Once a relationship has been re-established between the children and their father, I am persuaded that the father will facilitate and encourage a relationship between the children and their mother, but this can only be established after considerable psychological intervention. Even then, I have considerable doubts as to whether the mother has a capacity and/or willingness to change.
(d) The likely effect of any change in the children’s circumstances which involves the separation of them from the mother and maternal grandmother – This will be painful. It was explored with the Family Consultant in cross examination in considerable detail. However, if I am to re-establish a relationship between the children and their father, I have no choice but to separate them from their mother, their maternal grandmother and their, in my view, evil influence.
(e) The difficulty and expense of the children spending time is not immediately relevant. Prior to separation, the children lived on E Station with their parents. E Station is some 70,000 acres approximately 40 minutes by car from P. The children have gone to S School in E all their lives and it is intended that they will continue to do so.
The mother presently lives with the maternal grandmother in P on 10 acres of rural property. Whether she will continue to do so is not clear although I suspect she will.
If, when the matter next comes before me, I make any orders for the children to spend time with their mother, there should be no practical difficulties or expense, save that from time to time, E Station becomes isolated by reason of flood waters.
(f) Each of the parents and both sets of grandparents have the capacity to provide for the needs of the children including emotional and intellectual needs, save that the mother and the maternal grandmother, until such time as psychological counselling has had an opportunity to work, have the capacity to cause considerable emotional harm to these children.
(g) The maturity, sex, lifestyle and background is not really relevant in that the children have always been brought up on this large cattle station owned by their paternal grandparents and lived there with their parents until the parents physically separated, at which time they moved with their mother on to a semi-rural property of some 10 acres in P. They have always attended the same school and will continue to do so. Therefore, there is no specific lifestyle, cultural or traditional matter that I need to take into account other than what I have just referred to.
(h) Neither of these children is Aboriginal or Torres Strait Islander.
(i) The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents.
On the evidence, I am persuaded that the parents played what might be described as rather traditional roles.
The father has always worked on his parents’ cattle station although there is some rhythm to the work, things have to be done when things have to be done.
Mustering is a particularly onerous task and takes a lot of time. Mustering is not done all the time, but when a big muster is on, very long hours of work result.
Apart from mustering, there is constant work related to fencing, attending to bores and making sure that they are operating to provide water for the cattle, attending to feed and all of the things that are simply part of running a large cattle station.
Since his parents moved into town, the father has run the cattle station for them.
On the evidence, it seems that the father’s work was almost a dawn to dusk job but he did have weekends off.
The mother, on the other hand, played the traditional role of keeping the house, washing, ironing, cooking the food, looking after the children and keeping small animals around the house, for instance, pigs, chickens and the like.
There was a dispute as to how much time the father spent with the children, but on the evidence, I am persuaded that he spent as much time as he was able to, having regard to his work commitments.
The marriage was not a particularly happy one, and on the evidence, the parties separated, in that the mother moved out of the matrimonial bed in approximately mid-2006.
The mother and the children did not actually leave the property until late 2008.
Because of the difficulties that the parents had, the family did not seem to spend a lot of time together as a “family”.
(j) Any family violence involving the child or a member of the child’s family – I have already dealt with this extensively and I do not intend to repeat what I have already said.
(k) There was no family violence order in existence.
(l) This relates to whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to a child. I have decided in this case that it is necessary to make interim orders because it will be necessary for me to re-visit this case after the psychological intervention proposed by the Family Consultant and to be provided by Dr C has been assessed. I will need to re-visit this case to decide what further orders, if any, I make. Upon further evidence relating to how the children have coped with the orders that I have made placing them in the care of the paternal grandparents on E Station and attempting to re-introduce them to their father so a relationship can develop. That, of course, involves considerable counselling for the children and the father and grandparents.
However, much more importantly, the mother has to engage in considerable psychological counselling and I have to be persuaded that such counselling has had a dramatic effect on her capacity to parent. Hence, I am unable to make a final order.
(m) Any other fact or circumstance that the Court thinks is relevant - I do not propose to deal with any further matters under this sub-heading because I propose to deal with the matters under sub‑section 4.
Sub-section (4) picks up on the matters that are dealt with under ss (3)(c) and (i). Those sub-paragraphs deal with the parents willingness to encourage a relationship between the child and the other parent and the parent’s attitude to the child and responsibilities with respect to parenthood. Sub-section(4A) requires me, if the parents have separated, that in applying ss (4) to have regard to the events that have happened and the circumstances that have existed since the separation occurred.
Sub-section (4) is concerned with a consideration of the child’s parents taking or failing to take the opportunity to participate in decisions about the child, spending time with the child and communicating with the child, and facilitating or failing to facilitate the other parent’s participating in making decisions about the child, spending time with the child and communicating with the child and lastly, fulfilling or failing to fulfil the parents’ obligation to maintain the child.
To deal firstly with the father’s obligation to maintain the children both before and after the separation, considerable difficulties arise.
From shortly after the birth of each child, the mother claimed Child Support with the Child Support Agency as if she was separated from the father, which she was not. She also claimed benefits from Centrelink for much of the period that she was living with the father as if she was a single, supporting mother.
Both of these claims were fraudulent and have resulted in the mother having a debt in excess of $100,000 to the Commonwealth Government.
I accept without question that the father was completely ignorant of the mother’s duplicitous conduct.
I accept that throughout the period that the parties lived together, the father provided appropriate support for the family. The mother was provided with a motor car, free petrol, registration and insurance, free meat and housekeeping expenses and additional money if asked for. That is the evidence of the father and I accept it.
After separation and for the first time, the father found that because of the fraudulent behaviour of the mother, he had a huge debt for Child Support which was without foundation.
I am satisfied that the father has both before and after the separation completely fulfilled his obligation to maintain the children.
In relation to the father seeking to avail himself of the opportunity to participate in making decisions about the children, spending time with the children and communicating with the children, I am satisfied that during the period that the parties lived together, he did all that could be expected of him. As I have already pointed out, there was a division of responsibilities, as between the mother and the father whilst living on the property.
Once the parties separated, I am persuaded that the father has done more than anyone could possibly expect in an effort to maintain a relationship with his children.
The extent to which he has persevered in the face of complete adversity is staggering.
The mother, on the other hand, has failed to facilitate the father participating in making decisions about the children, spending time with the children and communicating with the children.
The evidence is overwhelming that the children changed from being normal, loving children of their father, their paternal grandparents, their aunts and uncles on the paternal side and their cousins, to completely ignoring them.
There were so many evocative pieces of evidence in relation to this that I can do no more than highlight a few.
The evidence of the paternal grandfather to the effect that B would sit for hours having her hair brushed by her paternal grandmother to a little girl who would not even speak or acknowledge them is quite profound.
The evidence of the photographs taken in the park where supervised time was arranged, where there are photographs of the mother sitting at a table with her back turned to the father and the children copying their mother by having their backs turned to their father, with hats pulled down so low over their head that their faces are obscured and with big sunglasses on, is simply pitiful.
The evidence from Mrs H who was appointed a Supervisor by the Independent Children's Lawyer with a photograph that became Exhibit ICL-19 showing where the children had sat on the tiled step of the veranda, refusing to even come inside out of the rain, and not touching the drinks or fruit provided for them to eat and drink, is quite profound. As she said in her evidence, she took photographs of it because she did not believe she could describe adequately how bad it was.
The mother took video camera shots in the most aggressive way of anybody, including a quite independent witness who came to the park with her own children. The mother subsequently going to that woman’s house and addressing her in such a way as to clearly make the woman frightened was an extraordinarily compelling piece of evidence to show the lengths to which this woman would go to destroy the relationship between the children and their father.
There is no other explanation for the children’s behaviour, which was described I think accurately, as no more than “cardboard cutouts”, at the arrangements made by the Independent Children's Lawyer for the father to spend supervised time with the children, other than their minds had been completely poisoned against the father by the mother and the maternal grandmother.
It is impossible not to look at these photographs and listen to the evidence relating to these visits without developing a feeling of complete horror.
As was pointed out by Mrs Pagani of Counsel for the Independent Children's Lawyer in her final address, there was some evidence from the teacher, one Ms O, in an affidavit filed in these proceedings relating to the issue of alienation.
Ms O was not required for cross examination.
In her affidavit, she swore “[L] last year in the month of September, the first day before Father’s Day, in class for art activity, was asked to choose a coloured piece of card to make a Father’s Day card. He asked me if he could choose pink to make a card for his Mum as he didn’t have a Dad”.
As Mrs Pagani submitted, “The alienation there is complete; he’s wiped his father from his mind”.
Sub-sections (5) and (6) do not apply.
Updated Recommendations of the Family Consultant
The Family Consultant made updated recommendations in her final Family Report dated 25 August 2010.
As has been previously pointed out, this Report was an Addendum to the Family Report and was prepared at the request of the Court after the Report Writer heard the evidence provided by the father, the paternal grandparents, the mother, the maternal grandmother and Ms W. The Report Writer also gave consideration to the further subpoenaed information, exhibits and in particular, the diaries of the mother and the maternal grandmother.
The recommendations are as follows:-
27. It is recommended that [the father] have sole parental responsibility.
28.It is recommended that the children live with the paternal grandparents at [E] Station for a minimum period of three months, with a view to extending this as needed.
29.It is recommended that the children spend time with their father as often as practicable, most notably, evening meal time and weekend leisure activities focused around the children’s interests.
30.It is recommended that an independent, appropriately skilled person reside at the property until the end of the September/October 2010 school holidays to facilitate the transition.
31.It is recommended that the parents, grandparents and the children engage in therapy with Dr [C].
32.It is recommended that Dr [C] make a professional decision as to whether he conducts family sessions, adult/child, or individual sessions.
33.It is recommended that the children do not have contact with their mother or maternal grandparents for a period of three months.
34.It is recommended that after the three months, the children spend supervised time with their mother and/or maternal grandparents, when it is assessed by Dr [C] that this is appropriate for the children.
35.It is recommended that the children spend unsupervised time with their mother and/or grandmother, when it is assessed as appropriate for the children by Dr [C].
I accept the recommendations of the Report Writer save that I consider it appropriate to make interim orders and bring the matter back before me in December for further consideration.
It is for these reasons that I have made the orders which are set out at the beginning of this Judgment.
I certify that the preceding two hundred and twenty-seven (227) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Monteith delivered on 20 October 2010.
Associate:
Date: 20 October 2010
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Procedural Fairness
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Remedies
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