S & S
[2001] FMCAfam 185
•28 September 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
S & S [2001] FMCAfam 185
FAMILY LAW – Contact – allegations of sexual abuse – finding that unsupervised contact would expose child to an unacceptable risk of sexual abuse – discussion of the advantages and disadvantages of supervised contact.
| Applicant: | B J S |
| Respondent: | J J S |
| File No: | ZC 2254 of 2000 |
| Delivered on: | 28 September 2001 |
| Delivered at: | Canberra |
| Hearing Dates: | 18, 19 & 20 April 2001 17, 18, 19 & 20 July 2001 |
| Judgment of: | Brewster FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Brzostowski |
| Solicitors for the Applicant: | Chris Crowley & Associates |
| Counsel for the Respondent: | Mr Hodgson |
| Solicitors for the Respondent: | Anne Marie Proctor & Associates |
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA
ZC 2254 of 2000
B J S
Applicant
And
J J S
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns issues of contact between the father, J S and his child, J C S. The father seeks unsupervised contact on weekends and during school holidays. The mother opposes any order for contact.
Background
The father is aged 34 and the mother 33. They were married on
18 June 1994. Their only child, J, was born on 31 March 1996. J is therefore now aged five.The parties separated in 1999. At the time, they were living in C. The mother continues to live there. The date of separation is a matter of dispute between the parties. The mother says that is was July of that year. She says the husband left the matrimonial home at this time but later returned. The husband does not agree that this occurred. All agree, however, that in October of that year, the father moved out of the former matrimonial home and did not return. It is not necessary to make a finding as to which version is to be preferred.
A couple of weeks after leaving the former matrimonial home the father moved from C to Sydney. He returned to C every second weekend and saw J on these occasions. This contact occurred at the former matrimonial home with the mother present.
On 1 May 2000, orders were made by consent in the C Local Court. These provided that J live with her mother and that the father have contact "at such times as agreed between the parties".
In July 2000, the father moved to T. He spoke to J frequently on the telephone, but there was no face-to-face contact during this period.
In the meantime, the mother had commenced a relationship with M D. This commenced in early 2000 and Mr D moved into her home in July of that year. They have lived together since that time. They plan to marry.
In September 2000, the father returned to Sydney. On 23 September, he visited C for six days. He had contact with J from 9 am to 6 pm on each of these days. This contact did not occur in the former matrimonial home and was not in the presence of the mother.
On 8 October, the father again visited C. He had contact with J that day. He took her to a circus.
At this time M D was not working and was looking after J during the day. The mother was, and still is, employed as Chief Executive Officer and Director of Nursing at the C Nursing Home. On 9 October, Mr D alleges that J made certain disclosures of a sexual nature to him. His account as related in an affidavit sworn 7 November 2000 is as follows:
On 9 October 2000, between 11 or 11.30 am, I was in the kitchen cleaning up. I walked to the lounge room where J was sitting in front of the TV watching cartoons. She had her hands down her pants. I said to J, "Get your hands out of your pants and stop doing it". J said, "My daddy does it". I said to J, "He does what?" J said, "He tickles my wee wee". I left the room to regain my composure. I felt flushed and I felt queasy in my stomach. I went back to the lounge room and said to J, "Do you laugh when your daddy tickles your wee wee?" J said, "Yes". I said to J, "What do you do when Daddy is tickling your wee wee?" J said, "I tickle his wee wee the same way and we both laugh".
I left the room again, unsure if I should continue the conversation or not. I then went back in the lounge room. I said to J, "Where was it that you tickled each other?" J said, "In his car". I said to her, "Do you park his car somewhere?" J said, "Yes". I asked her, "How often do you tickle each other?" J said, "Every time daddy takes me". I said, "Do you do anything else in the car?" J said, "Yes, we rub our wee wees together". I said, "What happens then?" J said, "We rub faster then powder comes out and spreads over my wee wee". I said to her, "Was it very messy?" J said, "Daddy cleans me up".
I left the lounge room again. I was confused and disturbed. I did not want J to see my reaction. I was not sure what to do. I then went back to the lounge room and said to J, "Are you allowed to tell Mum about playing with Daddy's wee wee?" J said, "No, I can't. I will get in big trouble and get a big smack", J said, "But I don't play with your wee wee. I don't love your wee wee". I said, "No, you don't do that". I also said to J, "Did daddy tickle you yesterday?" J said, "Yes". I said, "When?" J said, "Before the circus".
At one stage during my conversation with J, I said, "Show me what he does". She stood up, pulled down her track suit pants and underwear down. She put her fingers in her vagina and said, "He tickles my wee wee". She was moving her hand in a circular motion. I felt very embarrassed. After this conversation with J, I said to her, "We're going for a drive". J said, "Where are we going?" I said “to see what Mummy is up to.”
Mr Downey then drove to the C Nursing Home. When he arrived he spoke to the mother about his conversation with J. The mother says that she was too upset by what was being disclosed and asked him to stop. She then at some stage said, or wrote, "Write it down". Certainly those words appear on a piece of paper as also do the words, "What happened?" Mr Downey then wrote on this piece of paper an account in terms similar of his affidavit. What should be noted, however, was that this written account made no reference to the demonstration by J.
J was then taken to be examined by her general practitioner, Dr Ward. This examination revealed no physical sign of abuse. J was later interviewed by the police. She made no disclosures in this interview. She was subsequently seen by a paediatrician, Dr Preddy. This examination confirmed no physical signs of abuse. Dr Preddy also wrote in his notes, "Denied any play with dad". I will return to the significance of this later in this judgment.
The mother alleges that for a period after 9 October, J made a number of other disclosures. These are described in her affidavit as follows:
Shortly after the medical examination (that is by Dr Preddy on 11 October) I was in the playground at McDonald's in Wagga with J and she said, "You know my dad didn't wear gloves when he played with my wee wee".
I might add that in other accounts she has given of this conversation, she has used the word "touched" rather than "played with". She further says:
On 12 October 2000, I was in the shower. J came into the shower. We put the plug in to have a bath. J said, "My Dad puts his fingers in the middle of my wee wee and rubs in circles". J put her fingers in her vagina and demonstrated this act. I said, "You're a good girl for telling mummy that". She said, "But don't tell my Dad". I said, "Why?" She said, "I can't tell you. I am scared".
I would add that the mother said that she was told by Kaylene Kreuser, a police officer with the Child Protection Unit, that she should say to J words such as "You're a good girl for telling that, J", every time a disclosure was made. I should add that if this is the case such advice is egregiously wrong. She goes on:
On 14 October 2000, I was in B visiting a friend. J and I were playing in the park near a train. J said to me, "Mum, do mummies know everything?" I said, "Well, not everything, but they know everything about their little girls". J said, "All right. I do play with my Dad's wee wee". I said, "Thank you for telling that, J". J started to cry. I said, "What's wrong?" She said, "I won't see my Daddy ever again".
On 22 October 2000, I was watching television with J. She said, "I miss my Dad", and she put her hands down her pyjama pants. I noticed her touching herself. I said, "Why are you doing that?" J said, "I'm getting stuff out of my wee wee". I said, "Don't do that". J said, "Daddy touches my wee wee sometimes". I said, "Thank you for telling me that, J. I love you". J said, "My Dad touches my wee wee in the middle but don't tell my Dad". I sad, "Why?" And J said, "Because he will hit you really hard". I said, "Who told you that?" J said, "My Dad. He won't love me no more and he won't love you no more, so don't tell my Dad". I said, "I won't". J said, "Do you love my Dad because he brought me a beautiful dress?" I said, "It is a beautiful dress". J said, "Yes, but do you love my Dad?" I said, "Let's watch some more TV".
On Sunday, 29 October 2000, I was sitting in the kitchen and J sat on my knee. Mark Downey was making dinner. J said to me, "Mum, can you ring up my Daddy?" I said, "Not at the moment, J". J said, "Did you tell my Daddy that he tickled my wee wee?" I said, "No, I didn't, J". J said, "Because he won't love me no more and he won't love you no more". I said to J, "No-one is allowed to touch your wee wee". J said, "Daddy did". I said, "Daddy is not allowed to touch your wee wee". J said to me, "Why?' I said, "Because it's not right". J said, "I really miss my Dad". I said, "I know". I hugged her as she left the room.
On Sunday, 18 February, I was in the kitchen. I heard M D yell, "B, look at this". I went into the lounge room where J had been watching television. ….. I saw J squatting and getting up off the floor. J had her hand near her bottom on the back and was trying to pull her pyjama pants up. She had a very frightened look on her face and I said to M, "Don't yell at her. It's not her fault. You go and I'll handle this". I sat on the lounge with J and put my arm around her. I said to J, "You don't do things like that". She said, "Why not?" I said, "Because it's very very naughty. You don't do those sorts of things to your body". She said, "But mummy, someone did". I asked, "Who was that?" And she said, "I can't remember his name". J then said to me something like, "When can I please see Daddy?"
The mother and her friend M C report an earlier incident of a sexualised nature which occurred in February or March 2000. Mr C says that he was visiting the mother at her house when J was having a bath. He said that J came into the kitchen where he was and dropped the towel which she had wrapped around her and said, "Do you want to have a look at my wee hole". He says that the mother then took J out of the kitchen.
The mother's account is a little different. In her affidavit she relates that when J dropped her towel, she said, "Oh, I'm a rudey", to which the mother said, "Well, I think you had better put your clothes on". J then said, "Oh, and don't you want to see my wee wee?" She says that when she went with J out of the kitchen, J said, "I can see your wee wee and we can put them together". The mother said that she then asked, "Where did you see that?" To which J replied, "Oh, I saw that on movies I watch with Daddy". She further said that this was "a long long time ago while you were at the meeting".
In his oral evidence, Mr C also referred to the "rudey" comment, although on further questioning, was unsure as to whether this in fact had been said.
I do not propose to have any regard to this incident when making an assessment of the allegations against the father. I do not regard the conversation in the kitchen on any version to be significant. I am not convinced of the reliability of the mother's account of the conversation that took place in the kitchen.
I add at this point that evidence was also given by a friend of the mother, Ms J D, as to tongue kissing by J. I do not propose to have regard to this either. I am not prepared to find any link between this and the alleged sexual abuse.
Following the events of 9 October, the mother refused to permit any further contact. Ultimately, however, an agreement was reached for contact every three weeks, supervised by the Canberra Contact and Change Over Centre at M. Provision was also made for telephone contact on Tuesday evenings. During the course of the hearing, I made orders dispensing with the telephone contact.
Discussion
The Family Law Act requires that, in making a decision as to issues of contact between a parent and a child, I am to regard the best interests of the child as the paramount consideration. Section 68F(2) sets out the matters which I am required to have regard when assessing what is in the best interests of the child. I will discuss each of the matters set out in that subsection.
Section 68F(2)(a) requires me to take into account any wishes expressed by the child and factors such as age or maturity which are relevant to the weight to be put on such wishes.
I have no direct evidence of any wishes by J in regard to contact with her father. However, Dr Stevens, the Order 30A expert in this case, reported a good relationship between J and her father and evidence from the mother, which I have already referred to, indicates that J is missing her father. I have no doubt that she would want to see as much as possible of her father. However, she is only aged five, and if she has been the victim of sexual abuse at the hands of the father, she is far too young to appreciate the nature and significance of this. If contact with her father would expose J to an unacceptable risk of sexual abuse, then any wishes she might have must be disregarded if giving effect to those wishes would expose her to such risk.
Subsection (b) requires me to have regard to the nature of the relationship of the child with each of the child's parents and with other persons. I am satisfied there is a good relationship between J and her father. I am also satisfied that there is a good relationship between her and her mother. Some aspects of Dr Stevens' report raised questions about how J perceives Mr D, but overall I do not conclude that this relationship is other than a good one.
Subsection (c) requires me to have account of the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents, or any child, or other person with whom he or she has been residing. There is no issue of separating J from the mother or from Mr D. If the term “separation” in this subsection can include issues of contact then I will return to this later in the judgment.
Subsection (d) requires me to have account of the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis. This is not relevant to this case.
Subsection (e) requires me to have regard to the capacity of each parent, or other person, to provide for the needs of the child, including emotional, intellectual needs. Leaving aside issues of sexual or physical abuse, there is no evidence that either parent has any deficits in relation to this capacity.
Subsection (f) requires me to take into account the child's maturity, sex and background, including the need to maintain a connection with the lifestyle, culture and tradition of Aboriginal peoples and Torres Strait Islanders and any other characteristics of the child the Court thinks are relevant. This subsection is not relevant to this case.
Subsections (g), (i), (j) and section 68K address issues of violence.
Subsection (g) requires me to have regard to the need to protect the child from physical or psychological harm caused, or that might be caused, by:
(i)being subjected or exposed to abuse, ill treatment, violence or other behaviour; or
(ii)being directly or indirectly exposed to abuse, ill treatment, violence or other behaviour that is directed towards, or may affect, another person.
Subsection (i) requires me to have regard to any family violence, involving the child or member of the child's family and subsection (j) refers to any family violence order that applies to the child or a member of the child's family. Section 68K(1) provides as follows:
In considering what order to make, the Court must, to the extent that it is possible to do so consistent with the child's best interests being the paramount consideration, ensure that the order:
a)is consistent with any family violence order; and
b)does not expose a person to an unacceptable risk of family violence.
Subsection 68K(2) provides that for the purpose of paragraph 1(b), the Court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
I will deal with the issue of sexual abuse later in this judgment. There is, however, an issue of family violence raised by the wife. The following appears in her affidavit:
About March or April 1998, J got up to J and I heard what sounded like hitting noises. J was screaming louder each time the hitting noise occurred. I then heard what sounded like a muffled scream as I was getting up to go to her myself. I heard these noises from our bedroom which was at the other end of the house. I went to her room. J was still yelling at J as I got there. I told him to, "Leave the room". I said to him, "She’s had a nightmare. You don't yell and hit children when they are frightened". J went out into the hallway and continued yelling. I picked up J and J said, "All you care about is her". He went into the lounge room and I shut the hallway door. I got into J's bed with her and stayed with her for the rest of the night. She calmed down. She said, "Daddy hit me and he put my pillow on my face." After this event, I always made sure I got up first to attend to J at night.
On numerous occasions, J put his hands around my throat and squeezed until I lost consciousness. I can vividly remember seeing grey spots before my eyes and then everything would go black. I can remember thinking that I was going to die. On a couple of occasions, J said while squeezing my neck, "I'm going to kill you". On one occasion when I was working for the S Retirement Village in N, I went to work with finger marks around my neck after J had squeezed my throat. The CEO at the time, D G, stated that if I came to work with injuries again, he would inform the police. I asked him not to on the occasion he saw the marks.
The presence of other people did seem to deter him from being violent to me, except on an occasion when J and I were staying at Fairlight with a girlfriend, J D. …. J and I were arguing in the lounge room. Even while J was in the kitchen, he punched me in the stomach and then pushed me into the bedroom. While we were in the bedroom, the applicant bent my finger back causing me great pain. I was severely winded and found it very hard to breathe, although I did not get to the point of fainting. The pain from the punch, the bending of the finger and difficulty to gasp for enough air was a most excruciating experience.
On numerous occasions throughout my relationship with J, I suffered various injuries as a result of violence inflicted on me by him. On another occasion, in or about November/December 1994, we were living in F C, N. We were arguing on the front verandah. J picked me up off the ground under the arms and dropped me backwards. I put my hand out to break the fall and broke my arm. I was too scared to report this incident.
When I attended the hospital where I worked to have the arm set, I said to staff “I fell off my horse.” I did not want to bring about any report to the police. In about February 1999, J and I had an argument at home. He'd returned from the hotel in the evening and became abusive to me. He grabbed me by the throat with both hands. He let me go, but then he pushed me across the room. I fell backwards and hit my head on one of the dining room chairs. At some stage during this incident, he kicked me with his work boot. I was absolutely petrified for my life. I said to him "Please don't, J, please don't do this to us". When I felt my head and the blood down the back of my neck, I said, "Oh, no. Oh, no. This time you're going to kill me". I received a 3 centimetre cut to the top of my head at the back. I applied pressure to stop the bleeding. From my training as a nurse, I recognised that the pain I was suffering from in my rib cage. I believe I received broken ribs on the left side of my body during the incident. I found it difficult to breathe straight away. I was too scared to report the incident and I covered the gash with my hair. The next day I had bruising in the form of finger marks on the side of my neck and upper left arm. I also had bruising to my upper body and legs. J was in the home when this incident took place. I was working at home compiling a policy manual for the nursing home for accreditation, so my work colleagues did not witness my injuries.
On about February or early 1999, J came home drunk. I was on the phone. He then ripped my pink shirt off completely in front of J. He also ripped off my bra violently, pulling it off from the front without undoing it. He was yelling at me throughout his assaults, saying things such as, "You're on the phone again. Who's on the phone, interfering people". I then heard someone arriving at home. It was my friends A and A J. They then stayed with me at home until J fell asleep. I observed he could not speak properly and was in an intoxicated state.
On or between April to June 1999, J and I were in the driveway our home in D Street, C. He was sitting in the driver's seat of the car with the door wide open and I was standing next to him in front of the open car door. We were arguing. He was taunting me, saying, "You only care about J. You won't give me sex. I'll find someone who wants it". I tried to reason with him, I said, "Just stop this". He turned the ignition on, put the car in reverse, and put his foot down hard on the accelerator. The car door knocked me flat on the ground as it went out the driveway and the front right hand wheel of the car on the driver's side went over my wrist. I had a solid gold, hard bangle on. The wheel went over the bangle and squashed it. It all happened so fast. J drove off quickly. I had a bruise on my wrist under where the wheel had gone over and squashed the bangle. My knees were grazed and my pantihose was laddered from falling on the ground. I was dressed for work at the time.
J often became very aggressive if J spilled something while feeding herself. When J was about three years old, she spilled some food off her spoon. J picked up a kitchen chair and threw it across the room. After that, I noticed that J would cringe and sink down with a frightened look on her face if she spilled something in J's presence. She also began to demand that I feed her. It was a period of regression in her development.
On or about September or October 1999, J walked in the back door of the house. He had a stubby of beer in his hand. J said to J, "Don't be mean to my mummy". J put both hands outstretched towards J. I feared for J's life because I could see that J was reaching towards her neck in the same way he often reached out for my neck when assaulting me. I stepped in the middle between J and J and pushed J backwards out the door. He stood outside yelling abuse. I said to him, "How dare you try to hurt J. Get out of here. Go away!".
She says that she went inside with J and locked all the windows and doors and the police came to the house. While the police were in the house, she says the father telephoned her and said:
"You rang the police, you bitch. They have no right to tell me what to do in my own house with my own wife".
There is some corroboration in relation to some of these allegations. Ms J D who has already been referred to, says that shortly after the mother and father returned from their honeymoon that the mother would ring her frequently, sounding distressed, and often said things like, "J has hurt me again. He has twisted my arm up so much that it felt as if it was going to break. He tried to run me over. He punched me again. He punched me several times. He forced me to have sexual intercourse with him. He intimidated me".
She relates the incident referred to earlier. She says that in June 1996, the mother and father stayed with her at her home in Sydney. She was in the kitchen preparing coffee and could hear the mother and father in the lounge room. She says she stepped into the doorway leading to the lounge room and I quote from her affidavit:
I saw J punch B in the stomach. Before I could react, he pushed her through the door leading from the lounge into the bedroom I was letting them use. J slammed the door behind him. I could hear various sounds from the bedroom and as I approached the door, J swung the door open and pushed past me. He said, "I'm going for a walk". He walked and spoke very fast. I entered their bedroom and saw B sitting on the bed, doubled over. She was shaking. She was holding her stomach tightly with both her arms and avoided eye contact with me. I said to her words to the effect of, "Are you all right? I saw him hit you." She said, "It's all right, J. It happens all the time. Please just leave me alone and don't get involved", or words to that effect. I offered my assistance. B said, "Please, I just don't want to speak about it".
L J swore an affidavit and gave evidence in these proceedings. He said he was a friend of both the mother and father and would visit them at their home in C every couple of weeks. He says that some time in 1999, before the parties separated, he received a telephone call from the mother about midnight. I quote from his affidavit:
She was sobbing and gasping for breath. She said, "J threw me across the room and I hit my head on the dining room chair. I'm bleeding from a cut to my head and I can't see how bad it is” or words to that effect. I said, "Is there anything I can do?", and she said, "No". The next morning, I called around to see her at home. B showed me a gash of around 3 centimetres on the top of her head, parting her hair to show me. The cut ran from the front to the back of her head. There was dry blood in her hair. B seemed to have trouble breathing, her breathing was shallow. She said, "It still hurts" and she was pale. I could see bruising on her neck and upper arm. The bruises were round and smallish, such that they looked like finger marks on one side and a single thumb bruise on the other side. There were bruises on her arm, again the same finger and thumb mark pattern on opposite sides of the arm. They were clearly visible on her upper arm.
J O'C, a friend of the mother, swore an affidavit and gave evidence in these proceedings. I quote from his affidavit:
One day when I was working in the laundry at the C Nursing Home, I observed B S holding herself in a funny way. I said to her, "What's wrong with you?" B said, "I've got sore arms". I said to her, "They can't both be sore." As I said this, I lifted up one of her sleeves which was covering her arm. I noticed that B had bruises on both of her upper arms and shoulder towards her neck. I said to her, "What happened here?" B said, "J thumped me". I said to B, "Why don't you leave him?" B replied, "It's all right for you to say that, it's not that easy".
There is some further corroboration in the form of a letter written by the father to the mother in which he expressed regret for having hit her.
It should also be noted that in the course of her interview with Dr Stevens, Dr Stevens asked J if she was naughty and I quote from his report:
She said that her mother "smacks me on the bottom". How many times? She said, "Heaps. But sometimes she doesn't". What about her dad? She said, "He doesn't like it and he won't take me to the pool". She added, "A long time ago, he tried to hurt me. Mummy pushed him away and he spilt the beer. He tried to hurt me". Was she scared? She said, "I was really scared. My dad went to T's house because he had to sleep there. Now I be nice to him all the time". … I asked if she'd seen her father hit her mother. She said "No". Has she seen her mother hit her father? She said, "No. That happened when daddy was trying to rip mummy's pink shirt. That wasn't nice".
The wife mentioned another alleged incident in the course of her cross-examination. It was to the effect that the father had raped her in October 1999 about the time of separation.
The father denied using significant violence. He admitted pushing the mother and said that this was what he meant when he wrote about hitting her. He denied striking her.
It is necessary at this stage to address issues of credibility vis-a-vis the father and the mother, and vis-a-vis the father and the other witnesses called on behalf of the mother that I have referred to.
In many respects the mother was not an impressive witness. I did not accept all of the evidence she gave uncritically. For example, whilst I will not repeat what was said, her evidence in relation to a trip to Bali with Mr D and his involvement in that trip was most unsatisfactory. I was also troubled by the rape allegation. It was not included in any affidavit and indeed it appears that the mother told the Department of Community Services shortly after the alleged incident that there had been no assaults at the time of separation. She further told Dr Stevens that the father had never forced her to have sex. I am sceptical as to the reason advanced for this, namely embarrassment. The other respects, I believe the mother in her evidence engaged in a deal of obfuscation, prevarication and exaggeration. It should also be noted that when the mother saw Dr Stevens, she completed a questionnaire concerning J's behaviour. She reported many things concerning that behaviour not included in her affidavit. Her credibility is not enhanced by this questionnaire.
However, notwithstanding my reservations, I accept the mother as basically a witness of truth. I am satisfied, on the basis of the standard of proof referred to in Briginshaw v Briginshaw 60 CLR 336, that the assaults referred to in the mother's affidavits occurred, although I do not find that the father deliberately ran over her in the motor car incident. Notwithstanding significant disquiet, I am inclined to accept the rape allegation, but the degree of satisfaction in relation to this does not meet the Briginshaw test.
I was less impressed by the evidence of the father. Where his evidence differs from that of the mother, I generally prefer the evidence of the mother. I add that, with the possible exception of Ms D, who showed considerable hostility towards the father, I accept the evidence of the other witnesses I have referred to in preference to the evidence of the father.
The issues of violence are serious ones. However, for reasons that will become apparent, I do not need to address this issue further.
Subsection (h) requires me to take account of the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents. Again, I leave issues of violence and sexual abuse to one side. In other respects, I do not consider that either parent has deficits in this area relevant to this case.
Subsection (k) requires me to consider whether it will be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the wife. It would be most unfortunate if there were further proceedings in relation to this child, particularly given the impact that those proceedings have on the emotional well-being of the wife. However, in the context of this case, this is not a matter to which I propose to have regard in that there is no one order that I can make that would eliminate the possibility of such proceedings.
Subsection (l) requires me to take account of any other fact or circumstance that the Court thinks is relevant. The other matters that I consider relevant will be addressed in this judgment.
I now turn to the issue which is central to this case, that is the issue of possible sexual abuse of J.
At this stage I should indicate the way I am required by High Court and Full Court authority to proceed. I am not required to make any finding as to whether J has, or has not, been the victim of sexual abuse. I am not required to make a finding as to the identity of any person who may have sexually abused J. In the context of this case, I am required to determine whether or not acceding to the father's application for unsupervised contact, or indeed permitting any contact at all, would expose J to an unacceptable risk of sexual abuse, or would be in her best interests.
The first matter to be addressed is whether or not J made the disclosures alleged by Mr D. Mr D's evidence in this respect was the subject of detailed cross-examination. Criticisms were made of that evidence and of Mr D's truthfulness. In many respects, Mr D was an unimpressive witness. Many of his responses were flippant and in the course of answering questions in cross-examination, he was argumentative and point taking. He also lied to Dr Stevens in relation to convictions for drink driving. Overall, I formed a poor view of his character.
His evidence was attacked because of inconsistencies. There were such inconsistencies. It was also attacked because of the failure to make any reference to the demonstration given by J in his written account. Mr D agreed that the demonstration was the most memorable aspect of the incident at the home on 9 October. It was submitted that under these circumstances, the failure to include that account in the written document was inexplicable and that it casts doubt on the veracity of the whole of Mr D's evidence.
I do not agree with these submissions. I do not consider the discrepancies in relation to parts of Mr D's evidence should cause me to reject that evidence, nor do I consider that the failure to include the demonstration in his written account is inconsistent with the veracity of that account.
I am satisfied that both Mr D and the mother were very stressed about the disclosures. In this respect I quote from the affidavit of L O'C. Ms O'C is the mother's deputy at the C Nursing Home and in her affidavit she says:
On 8 October 2000, I was working at the C Nursing Home. I was having lunch in the staff room. B came to the staff room door and said to me, "L". I looked at her face and I could tell something was terribly wrong. She was just about to burst into tears and her eyes were very wide. Her face was white. I walked into the corridor with B and she burst into tears. I said to B, "Whatever is the matter?" Belinda said, "M has just told me something dreadful. J has sexually assaulted J".
We went into B's office and B's partner, M D, was standing in the office. I looked at M and saw he was crying. He had his hands on his face to cover his eyes. He seemed to be trembling. B walked in and looked at M. B said, "You talk to M". As she was leaving the office and about to close the door, I noticed B was still visibly crying and very upset. I said to M D, "Whatever is going on?" He then relayed a conversation to me that he had had with J. M said to me words to the effect, "J was watching cartoons and I saw her playing with herself. She had her hands down her pants". M then said to me, "I asked J what she was doing, and I said you shouldn't do that". M went on to say, “She said, Daddy does that. Daddy plays with my wee wee". M then said to me “I asked her what does daddy actually do? Then J said to me, he rubs up and down against her and white stuff comes out and spreads". I cannot recall of the conversations. I have never seen a man so upset. I have been a nurse for 30 years and M was emotionally distraught. He was shaking. He was pacing. He was holding his hands up to the sides of his face.
Although I formed the impression that she was prone to a degree of exaggeration when giving her evidence, and while I take that into account, I accept the evidence of Ms O'C.
The evidence of the mother in relation to the events at the nursing home was attacked also on the basis of inconsistencies in her evidence, and on the basis that, in the middle of these events, she took time to respond to a telephone call. It was submitted that if she were genuinely upset she would have asked the caller to ring back. It was submitted also that significance should be placed on the fact that the mother did not attend to J while at the nursing home. It was said if she was as shocked and upset as she claimed, her first instincts would have been to attend to J.
The problem with this type of analysis is it assumes that people under stress will always behave in a logical way. If they did then Mr D would probably have included a reference to the demonstration in his written account and the mother would not have taken the telephone call or ignored J. However I do not believe that it is necessarily the case that in such circumstances people will necessarily behave as one would expect.
I might add however that I think it is likely that Mr D did refer to the demonstration when speaking to Ms O'C. Ms O'C did not include any reference to this in her affidavit. However, in cross-examination she was asked if any mention had been made by Mr D of a demonstration. She hesitated and then said she thought something had been said about this. She seemed unsure at this stage, but later said she was confident in her recollection. The impression I got was that the question awakened a long forgotten memory which gradually came back to Ms O'C. As she said:
Being asked questions like this brings things back in your mind.
It was also submitted that I should conclude from the demeanour of Mr D in the witness box that he is not the type of person who would get as upset about revelations of this type as he indicated or as Ms O’C described. As I previously have indicated, I was not impressed by Mr D but I am not prepared to draw this conclusion from his demeanour in the witness box. In fact, the conclusion I draw from his testimony is that he is unlikely to be capable of feigning distress in the convincing manner described by Ms O'C.
I observed Mr D closely during his detailed cross-examination of the events of 9 October 2000. Notwithstanding my reservations concerning him, and notwithstanding the variations and discrepancies in the various accounts he has given in relation to the events of that day, I believe that he was being truthful when he gave his evidence, and was doing his best to recall these events as accurately as possible. In this respect, the core aspects of his account were reasonably consistent.
I am fortified in this conclusion by the terms of the disclosures. They are given in child-like terms, In particular the statement, "We rub fast and then powder comes out and spreads all over my wee wee" has the ring of being a genuine child’s statement. It is not, in my opinion, the sort of statement that Mr D would invent. Counsel for the father sought to link this statement to cornflour which was applied to J's genitals over the previous week by the mother. I do not believe that any such link reduces the significance of what is disclosed.
I should add that I also closely observed the mother when she was cross-examined about the events of 9 October. I was quite satisfied that she, also, was doing her best to accurately relate those events as she recalled them. Again, there were discrepancies in her evidence and between her affidavit and what she told others about the incident involving M C and the events of 9 October 2000 and following. However, these do not cause me to doubt her evidence.
It is suggested that the disclosure is a fabrication of Mr D, or both he and the mother, the reason being that they wanted to exclude the father from J's life. I reject this hypothesis. I am satisfied the disclosures were made to Mr D in the terms, or substantially in the terms, he sets out in his affidavit. The degree of my satisfaction in this respect easily meets the Briginshaw standard. I am also satisfied that J made further disclosures to the mother in the terms she alleges. However, I am not convinced that they give any greater verisimilitude to the original disclosures to Mr D, except they continue to name the perpetrator as "daddy".
The next matter to be addressed is whether or not J has accurately related a real experience or whether it is an invention, or a distortion of some innocent event.
It will be recalled that when questioned by Mr D, J said that the incident had occurred "before the circus". It will be recalled that the day before, the father took J to a circus. Several people swore affidavits on behalf of the father. These were people who had been with him on 8 October. I am satisfied that he had no opportunity to sexually abuse J that day before they went to the circus. He did have such an opportunity later in the day when they visited a local park.
I do not attach any particular significance to the words used by J. She was four years of age at the time. I would not expect a child of that age to be necessarily accurate as to sequences.
The police took items of J's clothing which were tested for semen. No traces of semen were found. If this were a criminal trial, such evidence might be very significant. However, whilst I do not in any way ignore it, for the purposes of the exercise I am engaged in in this case, it has a more limited significance.
Dr Preddy stated in his notes that J "Denies any play with dad". This was relied upon by counsel for the father as evidence of a positive denial by J of sexual abuse rather than a simple absence of a positive disclosure. I am not satisfied this is so. Dr Preddy examined J after her police interview. He was making notes on a pro forma document. A part of that document is headed "History from Child." It states as follows:
Whenever possible, child should tell story in their own words. Use child's expression. Preferably, parent should not be present during this interview. If the doctor is the first person the child tells, then the history of assault as given by the child should be recorded verbatim. If the doctor is not the first person the child tells, then paraphrase the history.
Dr Preddy has then written below that, "Denies any play with dad". In my opinion, this may well be a paraphrase of the police interview in which there were neither disclosures nor denials.
There is no corroboration of J's account that I regard as significant. There is evidence which I accept that J has sometimes displayed cruelty to animals. Dr Stevens reports that this can be an indicator of sexual abuse. However, it can also be caused by other stressors in a child's life and it is too equivocal, in my opinion, to be regarded as corroborative of sexual abuse.
The mother and others report that J was in the habit of putting her hand down the front of her pants and touching her genitals. Dr Stevens discounts this as an indicator of sexual abuse. I have also already commented on the incident involving Ml C and on the tongue kissing evidence.
As previously indicated, I am not required to make a finding as to whether sexual abuse occurred, or has not occurred. Any such task would be made more difficult by reason of the fact that the only real evidence that it occurred is a second hand account by J. Of course, J has not given evidence in this case. However, without the opportunity to test and evaluate her account of what she said occurred, it is not possible to be satisfied to the Briginshaw standard that she is accurately and truthfully relating an incident or incidents.
Dr Stevens states in his report:
I think that the language (of the disclosures to Mr D) is clearly in a child's language, eg “tickle, wee wee.” J reported a setting for the abuse, in the father's car; and the frequency "every time daddy takes me", and on the previous day before the circus. The concrete details are very graphic, "We rub our wee wees together. … We rub faster and then powder comes out and sprays over my wee wee…. Daddy cleans me up". I have no doubt that if J said this then she has been sexually abused. It is hard to imagine such words being fabricated. I would note that this is more convincing because it is a child's description of adult sexual activity that would not normally be seen or experienced by a young child.
I agree with Dr Stevens. However, I am not prepared to go as far as he does and say that I have no doubt that J has been sexually abused. For the purposes of this case, it is sufficient to say,
(a)I agree with Dr Stevens when he says, in effect, that the language used gives considerable verisimilitude to J's account.
(b)There is no reason to disbelieve the accuracy of that account.
(c)There is no obvious alternative explanation, that is, there is no innocent activity which could be pointed to which J might be confusing with sexual abuse.
The end result is that while I cannot be satisfied to the Briginshaw standard that J has been sexually abused, I am left with very grave concerns that such abuse has occurred.
The position of the father was that if J had been the victim of sexual abuse then it was at the hands of someone else, in this case, Mr D. Dr Stevens included Mr D as a person who he had concerns about in relation to possible sexual abuse. The reason for this was not any direct evidence against Mr D, but the fact that there were certain aspects of his personality and behaviour that fitted the profile of a child abuser. It should be added that in some respects, the father also fitted this profile and, if one added up these things, he might emerge as a stronger candidate than Mr D.
Except for one matter, I do not consider the various factors listed by Dr Stevens to be of sufficient concern to be given any significant weight in this case. The exception involves an incident of shaving of pubic hair. The mother gave evidence that the father requested her to shave her pubic region. This was when J was a very young child. Dr Stevens considered this to be of some significance. I do not regard it as being as significant as Dr Stevens maintains. If it were, Mr D would be in the same position. He conceded that he and his former wife both shaved their pubic region. He said this was at her – that is his wife's – request, but I am not prepared to accept this and am left in doubt as to the precise circumstances under which this occurred.
However, the significance of the shaving incident lies, in my opinion, in the circumstances in which the request to the mother was made. The mother says that the father asked her to shave her pubic hair to – and I quote what she says the father said – "look like J". The father denies he used these words. However, I accept the mother's evidence in this respect. This aspect of the incident concerned Dr Stevens and it also concerns me. It is indication that the father may have perceived J's genitals as having a sexual dimension.
I might add at this point that photographs were tendered on behalf of the mother which were taken by the father of J, which show J with her legs outstretched and clearly show her genitals. They were taken when she was performing some form of calisthenics or exercises with the father's mother. In the circumstances in which they were taken, I place no weight on these photographs.
Notwithstanding Dr Stevens' concerns, I reject the possibility that Mr D may have sexually abused J. I do so for the following reasons.
(a)J consistently identifies the person involved as "daddy.” It is true that J has used the term "daddy" to describe Mr D. This occurred in the presence of Dr Stevens. However, this appears to be an isolated, or at least comparatively infrequent, occurrence.
(b)The concept of J relating, in the third person, to Mr D an incident or incidents that they were both involved in, does not make any sense to me.
(c)If Mr D were the perpetrator I cannot imagine why he would choose to disclose the conversation he had with J, or bring to light the possibility that J may have been sexually abused. He would surely have realised that under these circumstances J would be interviewed by police, child welfare workers and doctors, and that there would be an enormous risk that in the course of these interviews the truth implicating him would be revealed.
The father denied sexually abusing J. Those denials do not allay my concerns.
The end result is that, while I do not make a finding that the father sexually abused J, I do find that unsupervised contact between J and her father would involve a very significant risk that she would be subjected to sexual abuse. I have no hesitation in finding that this is an unacceptable risk. I do not propose to accede to the father's application for unsupervised contact.
The question remains as to whether supervised contact should be ordered.
The Full Court of the Family Court case of B v B (1993) FLC 92 357 would indicate that where a finding has been made that unsupervised contact would involve an unacceptable risk of sexual abuse, then all contact, supervised or otherwise, should cease. A similar sentiment is found in the subsequent Full Court case of K v B (1994) FLC 92478 where Ellis and Baker JJ said, at page 80,960:
In most cases, whether the finding be that a parent has sexually abused a child, or that there is an unacceptable risk of abuse if access were to occur, the result would be the same – a suspension of access.
However, I do not regard these cases as precluding any order for supervised contact. Each case must depend on its facts. I do not believe that the Full Court can do other than lay down guidelines in matters of this nature. Each case, in my opinion, must involve a weighing of the negative aspects of supervised contact with the positive benefits that such contact might provide.
In many cases it may be inimical to the best interests of a child to bring him or her into contact with a parent who has abused him or her. There may be a risk of trauma to the child in such circumstances. In the present case, however, there was no evidence that any trauma would be occasioned to J if she continued to see her father and Dr Stevens does not believe that this would be the case.
The real problem with supervised contact in the present case is that to date the continued supervised contact between J and her father has had serious effects on the health and emotional well-being of the mother. The mother's psychological make up I find puzzling and I suspect there is more to it than is understood by the experts. Her reaction to the continued contact between the father and J has been extreme. For example, she would describe the days when the father would telephone J, which telephone conversations she would monitor by listening in on a second handset as "Death Day".
Nevertheless, whilst the mother does not display any signs of fortitude when dealing with her problems, I do not believe that she is feigning her distress or its sequelae.
The mother has consulted a number of doctors, counsellors and psychologists concerning her condition. She has been diagnosed as suffering from a major depressive disorder. She suffers anxiety, hyper-vigilance and panic attacks. Her anxiety has manifested itself in a physical problems. For example, she has significant gastric problems believed to have been caused by excess production of stomach acid, in turn caused by stress.
The stress suffered by the wife is having an effect on her behaviour, both at home and at work. She is reported to be very short-tempered and easily exasperated at home. Before any contact visit she suffers from lack of sleep and often vomits. She reports extreme anxiety and an inability to focus on anything other than the impending visit. The effect on her performance at work has been described by L O'C. She reports that the mother is rude to staff and will not listen to them. She says that she has received complaints from staff. She describes the behaviour of the mother at times as being "obnoxious". She reports that this behaviour emerged after October 2000. The mother herself reports difficulty in coping at home and at work.
It was submitted on behalf of the father that there is no evidence that the mother's emotional condition has had any impact on J. Be that as it may, I have little doubt that if her present symptoms continue, J will suffer. In addition, while it may be true that J has not exhibited any outward signs of disturbance, she is clearly not living in a happy home, and this must have an impact on her own happiness. I might add that Ms Kate Barrelle, a psychologist consulted by the mother, gave evidence that children growing up with a depressed parent may suffer adverse consequence. In fairness, I should also add, however, that Ms Barrelle said that such consequences might be ameliorated if there was another non-depressed adult in the household.
I also have little doubt that unless there is significant improvement in the mother's condition, she will not retain her present job. This would have a marked economic impact upon J's welfare. It would also be likely to cause a further deterioration of the mother's emotional state.
The present litigation, which has been very prolonged, has doubtless been an exacerbating feature. The matter came on for hearing in April. The practitioners had earlier estimated it would take three days, and this time was allocated to it. It is clear that the mother initially expected that it would conclude in this time. It did not finish in that time. It was commenced again in July and again could not be finished. It was finally concluded last week. In all, it occupied ten sitting days over a period of about five months. It was obvious that the mother was finding that litigation stressful.
I anticipate that its conclusion will, to some degree, alleviate the stress she is under. It should also be noted that the mother's emotional problems did not manifest themselves only after October 2000. She was receiving treatment in relation to these problems prior to this date. Notwithstanding this, I believe that continued contact between the father and J is causing considerable stress to the mother and I am satisfied that any continued contact will mean that she will continue to suffer a degree of stress.
This factor must now be weighed against the benefits that continued contact with the father might have. I derive considerable assistance in assessing these benefits from the judgment of Kay J in K v B already referred to. In this judgment His Honour discussed some of the academic literature and judicial pronouncements favouring a continuation of contact, even where the parent involved has sexually abused his or her child. His Honour was in dissent in that case, but I do not regard this as precluding reliance on what is contained in his judgment. At page 80,968 of the report His Honour, under the heading "The Importance of Access", said as follows:
In my view, the denial of an opportunity of a relationship between the child and his father is a conclusion which the Court should only reach with the utmost reluctance. I make this statement notwithstanding the views expressed to the contrary in Brown v Pedersen (1992) FLC 92-271.
Much of the psychological literature and research claims that it is almost impossible to overstate the importance to the child of the maintenance of an ongoing relationship with their non-custodial parent.
His Honour then referred to a study by Wallerstein and Kelly, "Surviving the Break Up – How Children and Parents Cope With Divorce”, and to other academic writings. He went on:
The major study by Wallerstein and Kelly demonstrates how access can offset helplessness often felt by children during divorce. Access is also a major contributing factor in the mental well-being of the child as children generally view the loss of contact with their parent as an abandonment.
There is a clear connection between denial of access and anger, unhappiness, depression, low self esteem and poor academic performance in children who are deprived of the company of their non-custodial parent.
Furthermore, research points to children's concept of ‘self’ as dependent partly on their understanding of who their parents are.
In a recent Australian study by Margaret McDonald, (Children's Perception of Access and their Adjustment in the Post-Separation Period) … it was concluded that the overwhelming majority of children enjoyed access times and indicated their strong desire to visit the non-custodial parent and to maintain a close relationship with them.
Further, at page 80,971 His Honour said:
In general, disruption of a child's contact with a parent is experienced by the child as an abandonment. Often, a child, with a child's age appropriate egocentric view of the world, can understand the loss of contact only as the result of something he or she did.
Even where a parent has been abusive, contact in a safe setting allows a child to comes to terms with the abusive parent and may serve to avoid destructive repetitions later in life.
His Honour at page 80,969 quoted a Canadian case of Strobridge v Strobridge 42 RFL (3d) 154 where Grainger J said at 179:
In my opinion, there is always benefit to children in knowing their natural parents. The relationship with a natural parent may be close or distant, but there is benefit in knowing such a parent … If it is in the best interests of children that they maintain some type of relationship with their natural parent, then the Court must strive to create an atmosphere in which such a relationship can foster.
I quote this case because it points out that even a distant relationship between a parent and a child is to be preferred to no relationship at all.
I was reluctant to proceed on the basis of academic literature, or indeed judicial pronouncements, which were not the subject of expert evidence in the case. I therefore took the liberty of providing a copy of Justice Kay’s judgment to Dr Stevens before he gave evidence. Dr Stevens indicated that he was familiar with much of the literature quoted by His Honour. He agreed with the conclusions stated in that literature and he agreed with the comments of His Honour.
I believe that contact of, or approaching, the frequency of the present regimen would be too stressful for the mother. The benefits that would flow from such contact would be outweighed by the negative impact it would have on her emotional state. The most important factor in this respect is to ensure that, as much as possible, the mother's emotional health is preserved. In my opinion, if this is not done, J will suffer. This demands, at the least, a substantial decrease in the frequency of contact.
This is to some degree a two-edged sword. Ms Barrelle said that each contact occasion would be more stressful if contact were reduced, but, in such circumstances, there would be greater periods of calm. She believed overall that less frequent contact would be better for the mother's emotional well-being. I agree. From the mother's point of view, and to a degree from J's point of view, the optimal result would be to eliminate all forms of contact. This would enable J to grow up in a happy, stress-free home. However, in my opinion, the cost of this would be too high. The consequences of her growing up not seeing her father could be serious. For the reasons I have set out there are real benefits for J in continuing a relationship with her father.
Dr Stevens would prefer that, even if a finding were made that the father was guilty of sexual abuse, or that unsupervised contact posed an unacceptable risk of sexual abuse, that contact should be as frequent as possible. He would at least support the present three week regimen. He would only have infrequent contact occur if the effects on the mother's emotional well-being of frequent contact were catastrophic. However, Dr Stevens last saw the mother in December 2000. While he knows something of the expert evidence concerning her present condition, he is not in the position that I am to assess the consequences of such frequent contact, nor do I propose to proceed on the basis that contact should only be limited in frequency if its effects on the mother were to be catastrophic.
Conclusion
In my opinion, contact should be restricted to four times a year. This will have the effect of making the relationship between J and her father a distant one. This is to be regretted. However it is, in my opinion, necessary. In my opinion, such contact should be supervised by a professional independent person or organisation. I believe that supervision by any person who does not have the trust of the mother would be too stressful for her. In my opinion the supervisor should, in the absence of agreement to the contrary, be either the Canberra Change Over and Contact Centre, or Kelarnie Home Care. If it is to be Kelarnie, it can be for a period of up to six hours. If it is to be the Canberra Change Over and Contact Centre, then it is to be subject to the resources of that organisation.
The next contact period should be in late December, shortly before Christmas. The next after that should be close to J's birthday, the next in July, then September and late December. Until after the second contact occasion, that is in March 2002, there should be no other form of communication between J and her father. After this, he may send one card to her between each contact period. Needless to say, the contents of this card should be unobjectionable.
The mother has fears that the father may abduct J and take her overseas. I make no comment on the reasonableness of such orders, but will make an order which registers J on the PACE system which should prevent this from occurring. I will make an order that the father not approach J except during contact periods, or approach the mother, or be within 100 metres of the mother's home or J’s school. From when J commences school, I will direct that the mother authorise the school she attends to send the father, at his expense, copies of all reports and school photographs.
I will order that the mother promptly notify the father of any significant medical problems affecting J, and authorise any treating doctor to provide the father with any information concerning her condition or treatment.
I will make an order that the mother be responsible for both the day to day and long term decisions concerning J's care, welfare and development. In my opinion there should be no communication between the parties except to the extent required by these orders.
I have been asked today to make an order that the father sign any consent required for the renewal of J’s passport. The father’s solicitor had no instructions as to this. Accordingly, except for the PACE order, I will not take those orders out for a period of seven days. If the passport order is opposed, the matter will need to be relisted and that can be done by contacting my associate within the next seven days. So these orders, except the PACE order, will not be taken out for seven days and if any adjustments are required, they can be made. I will take out the orders in draft so that there is a hard copy available to everyone.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Brewster FM
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