Seabrooke and Seabrooke
[2017] FamCA 386
•2 June 2017
FAMILY COURT OF AUSTRALIA
| SEABROOKE & SEABROOKE | [2017] FamCA 386 |
| FAMILY LAW – CHILDREN – Best interests of the child – Where there are allegations that the father sexually abused his step daughter – Where there are allegations the father poses an unacceptable risk of sexual harm to the child – Where there is a serious risk the father did sexually abuse his step daughter – Where the father poses an unacceptable risk of harm to the child – Where there are allegations of family violence in relation to the mother’s partner – Where the mother’s partner has shown insight – Where the mother’s partner is not an unacceptable risk of harm – Where the father raises concerns as to the mother’s parenting capacity – Where the mother has demonstrated protective behaviour towards the child – Where the mother has adequate parenting capacity – Where there is no benefit to the child in having a meaningful relationship with the father – Orders made for the mother to have sole parental responsibility – Orders made for the child to have no contact with the father. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC |
| Deiter & Deiter [2011] FamCAFC 82 |
| APPLICANT: | Mr Seabrooke |
| RESPONDENT: | Ms Seabrooke |
| INDEPENDENT CHILDREN’S LAWYER: | Hartley’s Lawyers |
| FILE NUMBER: | MLC | 3678 | of | 2012 |
| DATE DELIVERED: | 2 June 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 28 - 31 March 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Pappas QC |
| SOLICITOR FOR THE APPLICANT: | Schembri & Co Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Burt |
| SOLICITOR FOR THE RESPONDENT: | Victoria Legal Aid |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Dosanjh for Hartley’s Lawyers |
Orders
That all previous parenting orders be discharged.
That the Respondent Mother have sole parental responsibility for the child B born … 2007 (the child).
That the child live with the Respondent Mother.
That the child spend no time with the Applicant Father.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Seabrooke & Seabrooke has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3678 of 2012
| Mr Seabrooke |
Applicant
And
| Ms Seabrooke |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
The parents of B (“the child”) who is ten years old cannot agree about her long time parenting arrangements.
Ms Seabrooke (“the mother”) believes that Mr Seabrooke (“the father”) sexually abused one of her older children from a previous relationship and poses an unacceptable risk of harm to the child. For this reason she proposes that the current parenting arrangement should continue in which the child lives with her and spends no time with the father.
The father seeks orders that the parents equally share parental responsibility for the child, that the child live with the mother and spend substantial and significant time with him. He also proposes that the mother be restrained from allowing the child to come into contact with her current partner. The father contends that there is an unacceptable risk that the child will be psychologically harmed by exposure to domestic violence and psychologically damaging aspects of the mother’s relationship with her current partner.
The Independent Children’s Lawyer (“ICL”) supports orders that would see the mother have sole parental responsibility for the child who would live with her and spend time with the father, initially supervised and then in an increasing regime leading to substantial and significant time.
The question for me to determine is which suite of orders is in the best interest of the child.
Background
The mother, who is 45, and the father, who is 42, began living together in about March 2004. The mother’ three children, from previous relationships, D who was then about 15, N who was then about 10 and E who was then about seven, lived in the family household.
The parties married in 2004.
In about mid 2006 the mother became pregnant with the child B and was admitted to hospital for the later stages of her pregnancy. The father cared for the mother’s three older children at this time. The mother contends that the father sexually abused N who was about 13 during this period though the mother was unaware that this had occurred at the time. The father denies the allegation which is dealt with later in these Reasons.
The child B was born in 2007 and is 10 at the time of these proceedings.
The mother contends that the father drank to excess throughout the relationship and at times was violent associated with his alcohol misuse. She says that in September 2008 the father assaulted her then 20 year old son D after drinking. The issue of the father’s level of drinking and associated behaviour is a matter in dispute which is to be dealt with later in these Reasons.
At about the same time as the alleged violent incident towards D in September 2008 the mother contends that she found a video on the father’s phone which depicted N, who was then 14, undressing.
The parents had a heated argument concerning the existence or otherwise of the video of N which caused the parents to separate for two to three months. During this time the father lived with his parents and attended two to three sessions with a counsellor. N was not aware of the allegation that the father had the video on his phone.
A counsellor contacted the Department of Health and Human Services (“the Department”) in his capacity as a mandatory reporter on 28 October 2008. The counsellor reported that one of his clients, the father, had disclosed that about three weeks previously when doing maintenance work outside [his home] he saw his stepdaughter changing her clothes in her room and took video images of her. The counsellor reported that the father believed he had deleted the images soon after but [his wife] had found the images on his mobile phone and asked him to leave the home. The counsellor also reported that his client currently resides with his parents and has provided information regarding this incident to them.
The complaint made by the counsellor to the Department was followed up by police. When interviewed, the mother told investigators that she had asked the father to move out of the family home.
The decision of the Departmental investigators in relation to the report was that the mother was acting protectively as the father was no longer in the family home and all contact with the children was now supervised by the mother. The Department took no further action about the notification.
At the end of 2008 the father returned to the family home. The mother’s child N was apparently still not aware that the mother alleged that the father made a video recording of her undressed.
At some unspecified time in 2011 N wrote a document for the purposes of a school English class about a 13 year old child experiencing sexual abuse at the hands of her father. The contents of the essay were not known by any other family members at the time it was written.
In about October 2011 the parents had a very heated argument including about the issue of the recorded images of N which N overheard. The parties then finally separated and the father moved out of the family home.
In about December 2011 N began exhibiting concerning behaviours such as self-harming and she was referred to a psychologist.
In May 2012 the parents consented to orders in relation to the child’s parenting. Pursuant to those orders the parents equally shared parental responsibility for the child who lived with the mother and spent time with the father on alternate weekends from Friday to Sunday, half the school holidays and on special days. The child spent time with her father in accordance with these orders and both parents report that time together went well.
In August 2012 N’s psychologist reported to her general practitioner about the progress of N’s therapy and suggested that she be referred to a psychiatrist. The psychologist wrote that N reported having been sexually abused by the father whilst her mother was in hospital when pregnant and that the abuse continued for months and ceased after the mother returned home with the baby. The psychologist said that until now N had not discussed this allegation with anyone and was reluctant to discuss it in any detail. The mother was not aware of N’s allegations of sexual abuse.
In October 2013 the mother began a relationship with her current partner Mr F.
From April 2014 Mr F appeared in court on numerous occasions in relation to charges of contravening Family Violence Intervention Orders (FVIO)s, assault and making a threat to kill. These charges related to Mr F’s former partner and a number resulted in findings of guilt or convictions against him.
In June 2014 N was admitted to hospital following a suicide attempt. The mother found the essay written by N three years previously at this time. The mother sent a text message to the father blaming him for N’s attempted suicide and in a subsequent message the mother referred to the essay the child had written previously. The mother stopped making the child available to the father from this point in time. At around this time the mother also reported her concerns about the father to the Department.
The child N was again admitted to hospital in July 2014 following drug use. At that time when reporting her background, N gave a history of sexual abuse at the age of 13 by her mother’s partner at the time.
On 19 July 2014 a further report was made to the Department about the father’s historical conduct towards N. In the course of the ensuing investigation both the mother and father were interviewed. The child was also interviewed in relation to the question of any risk posed by the father to her. The Department did not substantiate any risk of harm to the child and assessed the mother as having acted appropriately and protectively in relation to the child. Accordingly the Department did not take any further action in relation to protective concerns about the child at that time.
The child N made a number of suicide attempts throughout late 2014.
On 23 March 2015 the mother obtained an interim FVIO against the father for the protection of herself and the child. The father opposed the intervention order and there were a number of court events in relation to these proceedings throughout 2015.
In January 2016 the police obtained an FVIO for the mother’s protection against Mr F.
In January 2016 Mr F assaulted the mother and contravened the Intervention Order. The mother and child moved out of Mr F’s home, Mr F was charged with these offences and subsequently convicted.
In May 2016 the child was diagnosed with a benign brain cyst. She has also been diagnosed with other health issues.
On 13 May 2016 the father commenced these parenting proceedings.
On 2 June 2016 the contested intervention order proceedings were determined and no final order was made against the father. In the same month the mother resumed her relationship with Mr F though they have not resumed living together.
In September and October 2016 a Family Consultant interviewed the family members and prepared a Family Report dated 28 October 2016. A clinical and forensic psychologist also prepared a report in relation to the parties for the purposes of the proceedings.
The Family Consultant has tertiary qualifications including a Master of Psychology and has held a range of positions in the course of her employment for over ten years. For the last seven years she has been a Family Consultant at the Melbourne Registry of this Court. She has experience in particular as a counsellor and advocate in a sexual assault service. The Family Consultant interviewed the parties in person on two occasions each and observed their interactions with the child. She also had access to a wide range of documents produced on subpoena from numerous agencies and had regard to the psycho-sexual report of both parents by the clinical and forensic psychologist. She was cross-examined by all parties and made some concessions though generally remained firm in her opinions. She was not significantly challenged about any of the factual matters upon which her opinions were formed. In these circumstances I accept the opinion of the Family Consultant and attach significant weight to it.
The Matters in Dispute
Central to the mother’s position in these proceedings and the orders she proposes is her contention that the father sexually abused her older child N in late 2006 and that at some time in about October 2008 the father took video images of N undressing. She contends that the father poses an unacceptable risk of harm to the child on this basis.
The parents each also make allegations about many other matters which are in dispute. Many in my view are peripheral to the question of the child’s best interests, such as the father’s allegation that the mother fraudulently obtained a grant of legal aid in the proceedings. Others, such as the mother’s allegation that the father drinks to excess were overtaken by more significant allegations such as sexual abuse. Other matters in dispute arise from the inferences that may be drawn from undisputed facts such as the father’s contention that the mother’s partner Mr F poses an unacceptable risk of harm. None of these matters require a detailed consideration of each parties’ version of events.
Risk of harm arising from alleged sexual abuse by father
In M v M[1] the High Court said when discussing allegations of sexual abuse at [23] – [25]:
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….
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access….
In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[1] (1988) 166 CLR 69; [1988] HCA 68.
The High Court also said at [18]:
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 factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
In Johnson & Page[2] the Full Court agreed that reference to the Evidence Act 1995 (Cth) (“Evidence Act”) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.
[2] [2007] FamCA 1235 at [72].
I also have regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk. One of the cases reviewed in Johnson & Page[3] at [65] is W & W (Abuse Allegations: Unacceptable Risk)[4], where the Full Court noted at [111]:
We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.
[3] (2005) FLC 93–235.
[4] [2005] FamCA 892;(2005) FLC 93-235;(2005) 34 Fam LR 129.
The first question therefore, is whether I am satisfied that the allegations that the father sexually abused the mother’s older child N are proven on the balance of probabilities, taking into account the matters set out in s 140(2) of the Evidence Act.
Allegation of sexual abuse in late 2006 – early 2007
It is the mother’s contention that although she was not aware of it at the time, the father sexually abused her daughter N in late 2006 to early 2007 when that child was 13.
There is no dispute between the parties that the mother spent about four months in hospital as she had complications with her pregnancy between about October 2006 and January 2007 and that during this time the father cared for the mother’s three older children including N.
In his affidavit and under cross-examination the father maintained that the mother had concocted the allegation that he had sexually abused N in an effort to stop him from seeing the child.
The mother relies first upon unchallenged evidence concerning N’s behaviour from which she contends an inference can be drawn that N experienced some sort of traumatic event at the time. She deposes that N often when visiting her in hospital “begged me to allow her stay the night at the hospital”. The mother also deposes to having discussions with N’s school teacher [in February 2007] when she returned home for about four weeks before the child’s birth. The mother says that the teacher invited her to attend the school to discuss a change in “drastic change in [N’s] behaviour over the last few months”. The mother says N’s teacher explained that N was becoming more disruptive in class. The mother was not challenged on her evidence that at the time she attributed the change in N’s behaviour to her absence from the home for a few months.
Video allegedly taken by the father in 2008
The mother alleges that the father recorded images on his phone of N undressing in 2008. She relies upon this conduct as evidence of the father’s continued prurient interest in N which she says is consistent with him having sexually abused N two years previously. She contends that this conduct is also of itself a matter from which the court should conclude that the father poses an unacceptable risk of harm to the child in these proceedings.
According to the mother’s affidavit, in September 2008 she and the father attended a “grand final day” [AFL] barbeque at the home of one of the father’s friends. The mother says the following occurred:
I asked [the father] if I could look up something on his mobile phone and as I flicked through the contents on the phone I noticed a video he had taken a couple of weeks prior. The video was recorded from outside [N’s] bedroom window, behind the sun curtain to the side of the room. The video depicted [N] without clothes as she was getting changed. She was around 14 years old at the time. I could tell by the clothes that [N] was initially wearing that the video must have been taken on the Friday night [that there was a violent incident between the father and the mother’s 20 year old son]…
I was in shock over the discovery and felt very sick about what I had just viewed. I confronted [the father] about it and he denied it saying “what are you talking about?”. He then asked me to show him the video by passing the phone back to him. I naively gave him back his phone and he proceeded to delete the video straight away at the barbeque.
The mother says that she told the father never to come near her and the children again and left the barbeque with the child.
The mother says that the father who did not return home over the following days sent her numerous texts “trying to deny the existence of the video”. She says the following then occurred:
He then called me and broke down crying saying that he was drunk at the time and he did not know what he was doing. He denied watching it and said he had forgotten it was on his phone. He also said “what do I have to do to stop you from going to the police?” I responded by saying words to the effect of “you can’t stop me from going to the police but you need help and I want you to tell your parents about it. I would also like to be present when you tell them.”
The mother says that a few days later she and the father arranged to visit his parents and he told them about taking the video. She says that they were also shocked and asked him why he would do such a thing and that the father then stayed with his parents for several months. The mother says that during those months the father started seeing a counsellor and says that the father told her the counsellor reported him to the police.
The mother deposes to there being an occasion when the father returned home during this period to collect some of his belongings and she received a phone call from the Sexual Offences Child Abuse Investigation Team (SOCIT). She says that the father had threatened her not to say anything to police and as she did not want to incriminate him she told police that she had no concerns about the father and they did not pursue their investigation any further.
The mother deposes to not telling N about the video at the time as she did not want N to feel uncomfortable or embarrassed about it. The mother also says that after several months the father returned to live with her and her children as the father had convinced her that he had changed and was adamant that he had not harmed N.
Under cross-examination the mother confirmed that she knew that the video in question had been taken from outside N’s bedroom window behind the sun curtain and could identify the furniture in the room. She said that the video depicted N removing her clothes until she was naked and she found it very confronting. The mother also confirmed that after she saw the video, the father deleted it and handed his phone back to her saying “I don’t know what you’re talking about”.
There was some cross-examination concerning the suggestion that the mother had told the clinical psychologist who prepared the report in the proceedings that she had deleted the video but it was ultimately accepted between the parties that at all times the mother has asserted that the father deleted the video.
It was not put to the mother under cross-examination that there was no video of N undressing on the father’s phone or that the father did not delete the video. It was also not put to the mother that the father did not confess to his parents to having made the video of N. Under cross-examination by the ICL the mother confirmed that she was present when the father confessed to his parents that he had taken the video. She also confirmed that the father’s parents who she described as “very good people” were very shocked and his mother kept asking the father why he had done it and he said he didn’t know. The mother also maintained that the father had told her that he had forgotten the video was still on his phone and it was not put to the mother that the father had not said this.
The mother also remained firm as to her evidence concerning the police investigation into the complaints about the matter. A report provided by the Department pursuant to s 69ZW of the Family Law Act 1975 (“the Act”) records that the mother was interviewed by police on two occasions. The report records [in the first interview] “the mother stated that she had found a video of her daughter [N] on the father’s phone where [N] was wearing a bra but no underpants” and that “the video was not clear and her genitals were not able to be seen”. This report indicates that the Department assessed the mother to be acting protectively at the time as she had asked the father to leave the family home and agreed that future contact with his daughter and step daughters would be supervised. The mother confirmed under cross-examination that she had the conversation with police summarised in this report in the presence of the father when he was visiting the home. She agreed that she had not told the full story in relation to this incident and agreed that she had underplayed what had happened “unfortunately” and lied to the police as she was under threat [from the father].
Although the father “vehemently denies” having recorded N undressing as alleged, he does not set out in his affidavit his version of the events relating to the mother’s alleged discovery of the video in question on his phone and events that followed. The father accepted that these allegations are a really important issue in the proceedings but could not explain why he had not set out an account of the event in his affidavit.
In his trial affidavit the father responds to the mother’s allegations about this incident as follows:
In response to paragraphs 28 to 33, I strongly deny the content therein and say that, once again, these events simply did not take place. I did not record [N] getting undressed and as such have never had a recording of that nature on my mobile telephone or any other device. I told my parents that the mother had accused me of taking the video of [N], however they never “asked [me] why [I] would do such a thing” because I did not take the alleged video nor have I ever seen the alleged video.
In response to paragraph 34, I agree that I went to see a counsellor for between one and three sessions (I cannot recall the number of times) as the mother insisted that I went (sic). The conversation regarding me threatening the mother to “not say anything to the police” is simply untrue and did not take place…
…I agree that I told my parents that I had accidently seen [N] naked whilst walking past her bedroom window on my way to the shed on one occasion. This is entirely unrelated to the mother’s allegation that I videotaped [N] getting undressed. I simply told the mother and my parents that on my way to the shed one night it was dark outside and the lights were on in [N’s] bedroom. She had not closed the blinds as I walked past I noticed her in her room and I immediately continued walking as I realised she was not completely clothed.
Under cross-examination the father agreed that the mother asked if she could look at his phone at the grand final day barbeque and something on his phone caused the mother to become distressed. When asked what the mother was distressed about the father said the following:
“Seeing something on my phone. Um I’m a tradesman. Things get sent to my phone all the time. I’ve never not let [the mother] grab my phone at any occasion in any way form or fashion. She’s used my phone, she used my phone daily. I had nothing to hide”
When it was then put to the father that the mother passed his phone back to him and he deleted the video the father stated “No I did not. I looked and I couldn’t find anything and I gave it straight back to her and I said what are you talking about”.
When asked if he understood that the mother claims the video showed N with no clothes on and that the mother could tell the video had been taken the Friday night prior to the barbeque because of what N was wearing the father responded “I don’t understand because I’ve never seen [the video]”. The father maintained that there was never a video of this nature on his phone.
The father denied having said to the mother that he had forgotten the video was on the phone or that he had said “what do you want me to do to stop you from going to the police”. He denied that the mother told him she wanted him to get help and that he had to tell his parents about the video in her presence.
The father denied under cross-examination telling his parents that he had taken the video but agreed that he went to see a counsellor when he was staying with his parents. The father claimed that seeing a counsellor was at the mother’s insistence and that he had been one to three times but he did not know the name of the counsellor. The father also said under cross-examination that when he spoke to the counsellor about the video he denied taking it. The father said he did not tell the mother that the counsellor had reported him to the police and he said that it was the mother who claimed that someone had reported his conduct to police. The father denied any knowledge of the police having spoken to the mother about the report that he had made the video and denied that he had requested her to respond in a particular way to protect him from further police investigation.
The report made to the Department that the father had admitted to a counsellor that he had made a video of N undressing on his phone assumed some significance in the proceedings. The Family Consultant who was not challenged as to this issue recorded that the mother believed the father had “confessed to his counsellor that he had taken the video of [N] undressing and that the counsellor had notified the authorities”. In the same report it is recorded that the father acknowledged attending counselling for three sessions but “denied any admissions of guilt during therapy” and “doubted such counsellor could have made any notification about him”. The father said in his trial affidavit and confirmed under cross-examination that he did not take any video but had seen a counsellor. He denied telling the counsellor that he had taken the video and denied having it on his phone.
Under cross-examination the father initially said he had no idea of the name of the counsellor but after an unredacted record of the Department (relating to this report) was admitted into evidence, he conceded that the counsellor he had seen must have been the counsellor who made a report about his conduct to the Department.
The intake report from the Department dated 28 October 2008 records the following:
Reporter phoned writer at 3.30pm. Reporter informed writer that one of his clients, [the father] had divulged some information. Reporter thought that the matter was important for mandatory reporting. The following details were provided to the writer:
[The father], father of the third child [B] in the relationship with the mother [the mother] used to live with [the mother] in [parties’ address]. Reporter believed that [the father] was married to [the mother]. [The father] is the step father to [N] and [E].
Reporter stated to writer that [the father] disclosed to the reporter about 3 weeks before that he had consumed 6 stubbies and was doing maintenance work outside. [The father] then saw his step daughter N changing her clothes in her room. [The father] took video images of her. (emphasis added) [The father] believed he had deleted these images soon after. However, [the mother] found this video on the mobile and asked [the father] to leave the home. [The father] currently resides with his parents and has provided information regarding this incident to them.
The reporter was not clear on the surnames of the children or the mother [the mother].
The father had a poor recollection under cross-examination with respect to the information he had provided to his counsellor. He did not recall informing the counsellor that he was the father of the third daughter but then agreed that it was more than likely that he had. Ultimately, he said “I assume I said things to that nature to him”.
The cross-examiner then took the father through each of the matters that the counsellor had reported the father had divulged to him but was unable to recall information he had provided to the counsellor. The father however, specifically denied telling the counsellor that he had told his parents about the video and ultimately said that the counsellor’s report was “one hundred per cent wrong” adding that he [the father] had only told the counsellor “what I was accused of”.
The father was then cross-examined about the next entries in the Departmental report relating to actions taken following the report by the father’s counsellor. It is recorded that the following day, 29 October 2008 an officer connected to the police SOCIT Unit spoke to the counsellor again and the counsellor “provided the same information”. The father could not explain why the counsellor would provide this information (which he contends is incorrect) to the authorities on two separate occasions.
The father confirmed that he lived with his parents for one to two months following the argument at the Grand Final barbeque and that it was a requirement by the mother that he discuss the matter with his parents. The father maintained that he was required to tell his parents of the mother’s accusation and what had happened. Although he maintained he had not made any “confession” to his parents, the father was not able to offer any explanation as to why his parents had not filed an affidavit confirming his version of this conversation with them.
Further investigations in relation to the allegation that the father had recorded N while undressing were also made in August 2014. By this stage the mother had become aware of N’s allegations that the father had sexually assaulted her in late 2006 and the mother was withholding the child from the father. The mother deposes to reporting to the Department in June 2014 concerns about the father’s sexual abuse of N. Although the report related to the complaints made by N to various health professionals about the alleged sexual assault (in late 2006) the complaint also related to the alleged recording by the father of N undressing in September 2008.
The information given to the Department by the mother on this occasion was generally consistent with the earlier complaint by the father’s counsellor. The Departmental report includes the following with respect to an interview of the father.
An interview of the father occurred on 29/08/2014. The father advised that when the alleged incident occurred with regards to [N], the father had been going in and out of the house to collect fire wood. [N] had been getting changed. However, he did not take any photos of her. The mother had seen the father’s mobile phone and saw a pornographic photo. The father explained that he was a tradesman and a friend had sent him a photo. However, when the mother challenged him, she had already deleted the message and therefore the father was not clear what the photo was. The father maintained that the mother had alleged that he had taken photos of [N] and that this was not the case.
Under cross-examination about his interview by SOCIT in August 2014, the father agreed that the Departmental records “mostly” accurately reflected what he had said.
Discussion-Allegation of video recording in 2008
In determining whether I am satisfied to the requisite standard that the father made a video recording of N undressing in about September or October 2008, I first note that there are many matters not in dispute between the parties.
It is not a matter of dispute between the parties that they together attended a barbeque on the day of the football grand final in 2008 and in the course of the day the father handed his mobile phone to the mother at her request. It is also not a matter of dispute that the mother became very distressed and upset when she had possession of the father’s phone and that she alleged at the time that this was due to an image on the phone and that she handed the phone to the father. It is also not in dispute that the mother alleged to the father that day that there was a video recording on his phone of N undressing and that the mother demanded that the father leave home, engage with a counsellor in relation to his behaviour and tell his parents about it.
The first matter upon which I place some weight in determining this issue is that for reasons which were not explained the father does not set out a detailed version of this event in his affidavit and much of his evidence only emerged under cross-examination.
Second, the mother’s version of events that she did see a video of N undressing on the father’s telephone at the time has remained consistent. Although it has been recorded in some documents that the mother said she deleted the video, it was ultimately accepted in the proceedings that the mother has maintained at all times that the father deleted the video and that the record suggesting that the mother deleted it is incorrect. Even when the mother deposes to providing incomplete details and lying about the extent of her concern to the authorities when interviewed in October 2008 (when she says the father was placing pressure on her) she still maintained that she had seen an image of N at least partially undressed on the father’s phone. The mother’s version in her affidavit and maintained under cross-examination is also consistent with the account she gave to the Family Consultant. The mother has remained consistent about other matters concerning the incident including that the father confessed to his parents that he had made the video and also told her he had confessed to his counsellor who reported the matter to the authorities.
The father’s version about any images on his phone that may have caused the mother to become upset and many of the other circumstances concerning this allegation has changed over time.
First, the mother says that the father told her shortly after the incident and at a time when he was living out of the family home in the course of a telephone conversation that he was drunk at the time [he made the video] and did not know what he was doing but denied watching the video and had forgotten that it was on his phone. The mother was not challenged about this evidence under cross-examination. The tenor of this evidence is that the father had confessed to making the video when intoxicated but denied watching it and had forgotten that it was on his phone until he was confronted by the mother.
In his affidavit the father “vehemently denies” having recorded N as alleged and says he never had a recording of that nature on his mobile phone.
In his affidavit the father also deposes to having a conversation with his parents about the incident (a matter to which I will return) in which he says that on an entirely unrelated occasion he accidently observed N naked while walking past her bedroom on his way to the shed.
The counsellor who made a report to the Department (and who the father ultimately accepted must have been the counsellor he consulted) reported that the father gave yet a different account. The counsellor reported that the father told him that after he had consumed alcohol and while doing maintenance work outside he took video images of N changing her clothes in her room. The counsellor reports that the father said he believed he had deleted the images but the mother had found them on his phone and asked him to leave the home. Although this version is inconsistent with the father’s trial affidavit it is roughly consistent with the mother’s version of the confession the father made to her shortly after the incident.
The Family Consultant was not challenged about her evidence that the father told her that he did not deny accidentally seeing N undress through her window on one occasion while he was walking past on his way to the shed but denied making a video recording of her on his phone. He also maintained that the one incident when he accidentally saw the child undressing “did not correlate” with the date alleged by the mother.
When interviewed by police in 2014 it is recorded that the father made a connection between the mother’s allegation and having seen N getting changed when he went in and out of the home to collect firewood. He denied to police that he made a video recording of N but said he did have a pornographic video on his phone, sent by a fellow tradesman which the mother saw and which she deleted.
I am of the view that the differing versions proffered by the father about his conduct and admissions concerning his conduct do not adequately explain the undisputed reaction of the mother when she confronted him about images on his phone. The father does not dispute that the mother was highly distressed at the time and insisted that the father move out of the family home, engage in counselling and discuss the matter with his parents.
It was not explored with the mother under cross-examination why she would react in this way to an accidental observation of N undressing which was not filmed or otherwise pursued or the presence of a pornographic image of a person other than N on the father’s phone. In my view the mother’s unchallenged evidence about her reaction after receiving the phone from the father is more consistent with her version that she saw images of N undressing than with the father’s version that there was no image at all of this nature or that it was a pornographic image of an unknown person on his phone.
The mother’s requirements that the father leave the family home, seek counselling and make a confession to his parents regarding his conduct is also consistent with the her version that the father admitted to making the video when intoxicated and forgetting it was on his phone. It is not consistent in my view with the father’s version that the only incident in which the observed N undressing (which he reported to the mother) was an accidental and fleeting encounter on a completely different occasion.
In my view the father’s contention about the mother’s motivation in inventing this allegation is inconsistent with the uncontested evidence about the party’s relationship following the incident. Both parties agree that the father lived out of the family home for a couple of months following this incident. It is also clear from independent records that a complaint was made to child protection authorities at the time that the father had made the video and some investigation was carried out including an interview of the mother. There is no dispute that the father returned to the home following the short separation and the parties resumed their relationship until October 2011 when they separated. It is also not in dispute that following separation and pursuant to the first parenting orders the father spent extensive time with the child including overnight time and other additional time by agreement or at the request of the mother. These matters are in my view entirely inconsistent with the mother having invented the allegations or used them to damage the father and impede his relationship with his daughter. The allegations are clearly not a recent invention of the mother’s and are consistent with the tenor of her evidence in these proceedings that she feels considerable regret over not having attached sufficient weight to her concerns about the father’s conduct at the time.
Another matter which causes me to prefer the evidence of the mother over the father where it differs in relation to this allegation is the consistency of the mother’s evidence with the records of the Department concerning reports made to it by the father’s counsellor at the time.
The mother has maintained at all times including to the Family Consultant that the father said he had confessed to the counsellor about his conduct and that the counsellor was the person who had notified the Department. When the unredacted record of the Department became available it was confirmed that the counsellor had reported the father’s admission of having video recorded N undressing on his phone in the counsellor’s capacity as a mandatory reporter.
The father conducted the case at times on the basis that there was some doubt that the person who reported his conduct was in fact the counsellor he had consulted. At other times, including in his affidavit he expresses the view that he believed the mother had reported his conduct to the Department. At other times he challenged the accuracy of either the counsellor’s account or the recording of it in the Department’s records. I have no doubt that the counsellor who reported the father’s admission about his conduct to the Department was the counsellor who provided therapy to the father in October 2008 and I am also satisfied that the Departmental records are accurate for the following reasons.
Ultimately, the father agreed under cross-examination that his counsellor must have made the report to the Department. I am of the view in any event that the details provided by the counsellor about information given to him by his client make it absolutely clear that his client was the father in these proceedings.
I am also satisfied about accuracy of the matters reported to the Department and the accuracy of the records maintained by the Department. The counsellor was a mandatory reporter and as such would not have had anything to report if the father had not made any admission to him. The record kept by the Department indicates that the information divulged to the counsellor by the father was regarded by the counsellor as “important for mandatory reporting”. Further, the record is completely accurate as to other details such as the names of the children, relationships within the family and home address and is consistent with the mother’s version of the incident in question. Also, the Departmental record indicates that the report was followed up the following day with the counsellor who again provided the same information about what had been divulged to him by the father.
I draw an adverse credit finding against the father on the basis that he continued to deny having told the counsellor that he video recorded N undressing. For the reasons given in my view there is no other explanation for the counsellor having reported to the Department that his client divulged this information other than that the father did make such a disclosure.
Another matter of some significance in preferring the version of the mother over the father concerns the failure of the father to adduce any evidence from his parents about any conversations he had with them concerning his conduct as alleged by the mother. It has been a consistent feature of the mother’s case at all times that the father confessed to his parents in her presence that he had made the video recording of N undressing.
I draw the inference from the father’s failure to call his parents (to give evidence that he did not confess to recording N undressing) that his parents’ evidence would not have assisted his case.[5]
[5]Jones v Dunkel (1959) 101 CLR 298.
For the forgoing reasons including the internal consistency of the mother’s account, the varying accounts given by the father, the consistency of the mother’s version with records that are independent and likely to be reliable, the father’s denial of having made an admission to his counsellor, the counsellor’s report of the admission to the Department, the credit finding adverse to the father and the inference to be drawn from the father’s failure to call his parents, I am satisfied that the father did make a video recording of N undressing in about September 2008 which he retained on his phone until confronted by the mother.
Reports about the 2006 sexual abuse allegation following separation
In contending that the father sexually abused N in late 2006 – early 2007, the mother further relies on the document written by N at some unknown date in 2011 for the purposes of a school English class, the contents of which were not revealed to any family members at the time it was written. The mother contends the document which was admitted into evidence[6] amounts to a written account by N of the sexual assaults.
[6] Exhibit 2
The documents is attached to a cover sheet with the heading “Unit 4 English 2011 practise SAC Creating and Presenting” and also bears the statement “Prompt: the search for truth and justice is vital in resolving conflicts”. The document includes the following:
Plan
Young girl being sexually abused by her father. Trys to tell her mother but deep inside she knows the damage it will cause
Reflective element
–What happened
–Sexually abused each night
–Scars on her arms/cutts [sic]
–Thoughts of how she is going to break up the family
The body of the essay is as follows:
How can you begin to contemplate destroying so many lives, just to bring mine back. Knowing that in the process of finding closure and support, would in turn create more pain and suffering than what it already has. Was I to destroy a man who was supposed to protect me, a man who is supposed to hold and comfort you when a nightmare haunts my slumber. But really this man is the very cause of my nightmares, the reason I’m fighting for my life. My father wasn’t going to get away with a crime that I have hidden for four years. The crime that no daughter should have to bare. Here I was, having to decide weather or not to save myself from being consumed by my own darkness or was I to destroy my family to save myself. I had to be the one to protect myself, no one else could. The person who was supposed to look over his children, was the reason I felt unsafe. Who was going to protect me when the light went out?
Lying snug in my bed with the covers pulled over my head to keep the cold night air from nipping at my ears. Slowly drifting into my slumber after a long day of running around in the Sun earlier that day. Just before I’d fallen asleep a noise began to stir in my parents room. Some one was awake. I closed my eyes and firmly grasped my covers. As a child I thought that my duna would protect me from anything. That once it was pulled firmly over my head, nothing could harm me. Not even the monsters under my bed. I was foolish to think that I would be safe in my own bed. To think that a piece of material would hold the force of my father. But what child would or should ever feel unsafe in their home, unsafe around the very people that brought you into the world I was foolish to feel safe. How can a thirteen year old girl begin to realise that some thing as simple as a cuddle could turn into my worst nightmare. I was only thirteen, still daddy’s little girl.
I pulled the covers down under my chin. The sound of my daddy’s door opening broke the silence of the night. A bright yellow light shone under the small gap under my bedroom door loud thumping footsteps started coming down the hallway. Have you ever been able to identify a person by the sounds of their footsteps. Hearing those loud thuds each night, the sounds of a large man unevenly distributing his weight in each step. Those were the sounds of my father, those steps that travel down the hallway each and every night. A little piece of me prayed that maybe, just maybe, daddy had to go to the toilet. The he wouldn’t be coming to my door. The bright yellow light that streamed underneath my bedroom door was broken by two black shadows. I began to pray, begging God to make him keep walking down the hall. Praying that tonight I could have a break, that I could get some sleep. I couldn’t handle any more pain, anymore damage. I just wanted one night to sleep to recover.
I pulled the covers closer to my face, only having my eyes peeking out the top waiting for the light to stream through my door and fill my room. The light that I so desperately wanted to fill my room was the light that would bleed through my window, the rising of the sun. The only thing that would protect me. Pleading for God to bring morning just that little bit earlier. Praying that I wouldn’t have to feel his cold touch against my skin. I was supposed to be his daughter, did he not love me when he looked into my eye as a small bundel of joy, did he imagain that he would be hurting me in the future. That his little baby girl would by haunted by his once loving touch.
My thoughts were interrupted by a bright light filling my room. I pretended to be asleep hopeing he wouldn’t disturb me. All my prayers were ignored. The covers that I hoped would protect me, were pulled back. I was completely vonrable, nothing stood between my father’s rough touch and my innocent body. My nightmare wasn’t’ something I experienced in my sleep, my nightmares were reality. Each night my fate was sealed. When would mummy come back and save me from this monster.
On the return of my mother, I was saved from the sleepless night well in the sense of being stolen from my room. When it came to sleeping, my nights were filled with vivid imagery of each night, playing over and over in my head. The trauma of these nights followed me for years.
How was I supposed to destroy my family. I couldn’t continue to live my life like this. Would it be selfish to tell my mother, knowing that it would kill her inside to know that the man she trusted to look after her children, the man who was supposed to protect me, had committed such an act against her little girl. I had to somehow tell her. If I kept this much longer, I wouldn’t be here to reveal the truth and to bring Justice to my life. Four years went by, as the darkness consumed me. I watched the scars grow on my arms, I watched the light fade in my soul. I had to make that decission that would destroy a life either way. I had to tell my mother of the crude fate I faced when she was absent.
Her supporting arms embraced me as the tears roled down her eyes. I learnt that day that in resolving my conflict I needed to reveal the truth to find Justice. I was no longer living in fear. I was no longer lost in the darkness. My scars will fade in time. The smile will return to my face.
I am now free.
The essay concludes with the following words:
Written explanation
I have chosen to write an memoir because [incomplete]
The mother was not challenged about her evidence that she was unaware of the essay at the time it was written by N.
In October 2011, the mother says that she and the father had an extremely heated argument in which she threatened to tell N about the video of N undressing that she had found on the father’s phone. She says that the father who was drunk said that he did not care if N knew about it. N apparently overheard the argument and the mother told her then about the video which was recorded years previously. According to the mother N was quite embarrassed and emotional about the video and she and the father separated that night on a final basis.
The father does not set out an account of the parent’s separation in his affidavit though he generally denies the contents of this paragraph in the mother’s affidavit and does not agree that N overheard the conversation as alleged by the mother.
In the same year, 2011, the mother deposes that N’s teacher approached her at her workplace to discuss “some problems she had observed with [N]” but the mother says she deflected the conversation with the teacher. The mother says in her affidavit and confirmed under cross-examination that she thought the teacher was referring to problems associated with N’s sexuality as the mother was aware that N was at that time “struggling with her newly – discovered identity as a lesbian” and she did not think it was an appropriate topic for discussion at her workplace.
The mother also says that N’s artistic expression such as drawings at the time included themes of loneliness and abandonment which indicated to her concerns about N’s mental state.
The mother next relies on complaints made by N to mental health practitioners. Although the mother makes no reference to N consulting a psychologist in late 2011, records produced under subpoena which were tendered in the proceedings include a letter to N’s doctor in August 2012 written by a psychologist to whom N had been referred in December [2011] “for psychological treatment in the context of anxiety, depression, eating issues and family problems”. The psychologist’s letter indicates that the presenting problem for N was related to concerns about eating behaviour and body image. The letter went on to outline difficulties in the relationship between N and the mother which the psychologist says “has been problematic for years”. The letter then says:
[N] reports being sexually abused by [B’s] dad whilst her mother was in hospital while being pregnant with [B]. This abuse continued for months and then ceased after her mother returned home with the baby. Until now [N] has not discussed this with anyone. She continues to be reluctant to discuss in any detail. I have concerns about her sister [B] but [N] refuses to address the issue any further than what she has.
The psychologist concludes the letter by suggesting that a referral be made to a psychiatrist. There is no evidence to suggest that the mother was aware of the allegations that had been made by N at this time.
In April 2012 the mother’s eldest child was married and invited the father to the wedding. The mother deposes to N being very anxious about seeing the father. The mother and N had a significant argument at the wedding and the mother says N yelled at her saying “you have no idea what he has done” with reference to the father. The mother and N became somewhat estranged following this incident.
The mother says that in late 2012/early 2013 she noticed that N started self-harming as she observed superficial scars on N’s arms and legs from cuts.
As previously noted the psychologist who wrote the report in relation to N in August 2012 was sufficiently concerned at that time to refer her to a psychiatrist.
There is no further evidence concerning N’s state of mental health until June 2014, when N was admitted to hospital following a suicide attempt. The mother deposes to being told about that incident by her niece (N’s cousin) and says that when she returned home from hospital she saw that N had left the essay written in 2011 on her bed. The mother said that she was completely distraught at reading the contents of the essay.
According to the mother’s affidavit and records from hospitals and various health services, N made a number of suicide attempts and was admitted to hospital numerous times following the first admission in late June 2014.
Records in relation to one of these admissions dated 19 July 2014 from Headspace (National Youth Mental Health Foundation) record the following in relation to a hospital admission the previous night.
…in [the] E D [hospital emergency department] intubated following having gone to a nightclub last night and allegedly spiked with GBH (initially presented with global coma scale of 3)…
Reporting background history of sexual abuse age 13 by mother’s partner at the time when her mother was hospitalised for 3/12 for last trimester of her pregnancy. Mother later found photos of [N] naked on his phone and told [N] about this a few years later. [N] was most distressed that her mother did not leave this partner until much later although mother not fully aware of the extent of abuse.
Similar entries are reported in the Inpatient Discharge Summary in relation to that admission and other hospital records relating to the admission.
Although the mother does not state in her affidavit that N complained to her that the father had sexually abused her, under cross-examination she stated that in July 2015 N had told her that she was sexually abused when the mother was in hospital.
The mother deposes to contacting the Department to report the sexual abuse in June 2014. She says that the Department informed her that as N was now an adult they would not commence an investigation in relation to that alleged abuse but did commence an investigation in relation to concerns about the child in these proceedings.
The report provided by the Department indicates that some consideration was given to the allegation that N may have been sexually abused many years previously though it is also clear from the report that the focus on the investigation at that time related to whether the child in these proceedings has been sexually abused. The Department assessed that there was insufficient evidence to suggest that this was so and the mother was regarded as acting protectively by preventing contact from occurring between the child and her father. It is recorded that the mother was encouraged to seek to have the Family Law orders amended and no further action was taken by the Department.
The conclusion of the Department recorded in the report in relation the allegations concerning N is that “there is an indication that [N] may have been sexually abused” and it is noted that N had not disclosed this abuse to police or professionals. This last statement is however incorrect as it is clear that N had in fact disclosed sexual abuse to numerous professionals at this stage. Overall, the Department concluded:
“The likelihood remains that the father may have perpetrated sexual abuse against [N] in one form or another. This is based on [N’s] mental health profile, her alleged comments to her mother that the father had sexually abused her and the incident where the father used his mobile phone to record her in a state of undress”.
The records in relation to N’s ongoing mental health issues indicate that in the months following July 2014, N continued to display symptoms of anxiety, risks that she may self-harm and ongoing concerns about her relationship with her mother. In a session with a clinician on 11 September 2014, it is recorded:
“YP [young person] reported significant stressors in family due to current CP [child protection] investigation. YP reported feeling overwhelmed by pressure from Mo [mother] to be involved. Stated clearly she did not wish to be involved in the investigation”
According to the mother’s affidavit in around August 2014 N herself contacted SOCIT in the mother’s presence and after the police described to N the process of giving evidence she decided not to proceed with making a complaint against the father. The mother says that N said that she did not feel strong enough to be cross-examined about the events and for this reason the police did not pursue any charges against the father.
Although the mother does not refer to any matters concerning N’s mental health in detail after about March 2015, the records of X Service, a mental health service utilised by N, in April 2016 include the following:
[N] went onto report that [the father] [previously recorded as “step Father”] sexually abused her @ age 14 for = 3 months and [N] never told anybody about it. Also said her Mo told her later that [the father] had videos of [N] undressing which he had taken of her through her bedroom window. [N] said her Mo found out about the abuse = 17 [indecipherable] when [N] attempted suicide and her mother cleared out the room and found some writing [N] had done which revealed that she had been abused.
The Family Consultant reports in her Family Report that at the initial interview in September 2016, the mother expressed concern about N being required to become involved in the parental dispute as she did not believe N was psychologically stable enough to withstand this. It is reported that upon further interview in October 2016, the mother indicated to the Family Consultant that N had contacted her and suggested a willingness to participate in the assessment in order to provide evidence in association with the alleged sexual abuse to protect her sister. As N had not explored making a police report at that stage the Family Consultant was of the view that the Family Report assessment was not “an appropriate port of disclosure” and that N had therefore not participated in the assessment “much to the mother’s disappointment”.
When interviewed by the Family Consultant and under cross-examination the mother confirmed she is now convinced that the father sexually abused N despite the absence of any specific disclosure by N.
Discussion – Sexual abuse allegations
It is the mother’s contention that the father poses an unacceptable risk of harm to the child as he sexually assaulted her older child N in late 2006 to early 2007 and video recorded her undressing in about October 2008. The father maintains that both allegations have been invented by the mother to justify withholding the child from him and for the purpose of destroying his relationship with the child.
For the reasons given earlier, I am satisfied to the requisite standard that the father made the video recording of N undressing in about September or October 2008.
The mother relies upon the following matters in support of the submission that I should be satisfied to the requisite standard that the father sexually assaulted N during the period of time when the mother was hospitalised with complications associated with her pregnancy in late 2006 to early 2007:
·The unchallenged evidence of the change in N’s behaviour at the time of the alleged events.
·The father’s video recording of N undressing about two years after the alleged sexual abuse when the child was about 14 and which according to the opinion of the Family Consultant indicates that the father was sexually preoccupied with N.
·The adverse finding in relation to the father’s credit that arises from his denials about making the video recording and disclosing the same to his counsellor.
·The unchallenged evidence of the mother concerning the onset of N’s self-harm and mental distress shortly after the parents separated (when the mother says N first became aware of the video recording and the mother’s maintenance of a relationship with the father after this event for another two years).
·The school essay written by N in 2011 which is consistent with N’s subsequent disclosure to various clinicians and health professionals about the time, duration and other circumstances of the alleged sexual abuse.
·The records of the first psychologist consulted by N in December 2011 in which N disclosed over a period of months having been sexually abused by her step father at the age of 13 when her mother was in hospital and being concerned about her younger sister but feeling reluctant to discuss the matter in detail.
·The consistent reports made by N to other clinicians including clinicians at hospital following several suicide attempts in mid-2014 and a mental health service, X Service thereafter and another psychologist in about April 2016.
·The consistency between the mother’s account and the paralysing guilt she has experienced since becoming aware in mid-2014 of N’s complaints of sexual abuse and the breakdown of the mother’s relationship with N.
The father’s case that he did not sexually abuse N and that the allegation has been invented against him by the mother in order to damage his relationship with the child is based upon the following factors:
·The father has consistently at all times denied that he sexually assaulted N.
·The observed disturbances in N’s behaviour since around 2011 are related to the toxic and highly damaged relationship between the mother and N which is well documented in N’s health records.
·The court would be satisfied that the father did not make the video recording of N as alleged.
·The mother’s credibility is adversely affected as she admits to having lied to police when first interviewed about the video on the father’s telephone and gave some inconsistent evidence in her affidavit about her initial observations of the video recording.
·The court would have real doubts that the essay written by N in 2011 relates to the father in these proceedings.
·Little weight should be attached to the repeated allegations made by N to clinicians in the absence of any direct evidence from her.
In assessing whether the allegation is proved to the requisite standard I first give consideration to the change in N’s behaviour around the time of the alleged abuse. As noted previously, the mother’s evidence about this behavioural change from about the time of the alleged sexual abuse was not challenged, and there is no evidence to suggest at that time that the mother’s relationship with N was damaged or dysfunctional.
The essay written by N in 2011 has features which support each case. It has many features consistent with the allegations that a young girl was sexually abused by “a man who is supposed to hold and comfort [her]” at night when the girl was in her bed during a time that her mother is away. The essay is also written in the first person and described as a “memoir”. In the essay N also expresses the conflict she feels as it would destroy her family and “kill her” [mother] “to know that the man she trusted to look after her children, the man who was supposed to protect me had committed such an act against her little girl”.
In support of the father’s contention I note that N refers to the perpetrator variously as “my father” (on numerous occasions) and the young victim as “daddy’s little girl” and “his daughter”, and reflecting on herself in the past as “a small bundle of joy” and “his little baby girl”. It is contended that this cannot be a reference to the father who is N’s step-father.
In my view, the reports to various clinicians between December 2011 and April 2016 are all consistent with the mother’s allegation that the step father sexually abused N at the time alleged and that the mother was unaware of the abuse at the time. However, the reports are second hand hearsay and it is in my view of significance that there is no direct evidence of N’s allegation and in particular of the behaviour she alleges constitutes “sexual abuse”.
In determining this issue I also attach weight to my finding that the father made the video recording of N undressing in about October 2008 from which an inference can be drawn that he had a sexual fixation on the child.
Further, the father’s credit is adversely affected by his denials that he made the video and his denial which was contradicted on the Department’s records that he had admitted to his counsellor that he had done so.
I am of the view that the sequence of events alleged by the mother which has remained unchallenged is consistent with the mother’s case. N’s overt expressions of self-harm and distress first manifested shortly after N became aware for the first time of the video made by the father of her undressing three years previously. It is in my view entirely consistent with the mother’s version of these events that N became very distressed, felt betrayed by her mother and was concerned about potential harm to her younger sister (the child in these proceedings) as the mother had remained in a relationship with the father even for three years after he had made the video recording. These matters were also all reported to the first clinician N consulted about two months after separation and then two other clinicians following her suicide attempts from mid-2014.
Although many of these matters support the mother’s allegation, having regard to the matters set out in section 140 of the Evidence Act as discussed earlier in this judgment, in particular the gravity of the allegation under consideration, I cannot positively find that the father sexually abused N.
However, although I am not satisfied to the requisite standard that the father did sexually assault N I also am not satisfied that he did not do so. There remains a risk that he did sexually abuse N in the past and may sexually abuse the child in these proceedings in the future. This is the central matter to be determined in these proceedings.
In Johnson & Page (supra) when discussing a determination of unacceptable risk the Full Court cited with approval the following at [68]:
In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1 The decisive issue is and always remains the best interests of that child.
All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary.
In Deiter & Deiter[7] the Court was particularly concerned with the situation where the contested facts related to an assessment of risk in interim proceedings and where it was said at [61]:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.
[7] [2011] FamCAFC 82
The two elements referred to are equally applicable to an assessment of risk in final parenting proceedings.
In dealing with the second of the two issues referred to in Deiter (supra), it is beyond dispute that if the harmful events (sexual abuse) were to occur, the severity of the impact is of the highest order. As stated by the Family Consultant:
The impact of childhood sexual abuse on adult mental health outcomes is significant and thus a cautionary approach may need to be considered in the event of any probability or risk of sexual abuse.
So far as the likelihood that the father may sexually abuse the child is concerned, I attach significant weight to my finding that he made a video recording of his 13 year old step child undressing. The Family Consultant said that this indicated that the father was sexually preoccupied with N and that the finding in relation to the making of the video in itself raises a risk to the child posed by the father because of its sexually explicit nature, that the subject of the video was a minor and the father’s step daughter. The Family Consultant was adamant that regardless of the circumstances in which the father made the video, that is whether he was drunk at the time or had deleted it, the making of the video involved active steps on his part. The Family Consultant was also concerned that the father had later taken steps to cover up his actions including lying about his behaviour, attempting to suggest that the mother had made it up and attempting to falsify information such as that it was the mother who had reported his conduct to the authorities. The adverse credit finding arising from the father’s evidence about the video recording and his denial that he had admitted such conduct to his counsellor in my view also adversely affects the entirety of his evidence in relation to allegations of sexual abuse.
In determining whether the father poses an unacceptable risk of harm to the child I also attach weight to the mother’s unchallenged evidence that N first began showing signs of mental distress and self-harming after becoming aware for the first time that the mother had remained in a relationship with the father for three years after he made the video recording.
Although there is no direct evidence in the proceedings from N about the father’s conduct I also attach weight to N’s disclosures to three different clinicians on numerous occasions between December 2011 and April 2016 that her step father had sexually abused her at the age of 13 when her mother was in hospital when pregnant with N’s younger sister.
The father submits that I should attach significant weight to other reports made by N to various clinicians about the toxic and controlling nature of the mother’s relationship with N which is also consistent with N’s self-harm and mental distress. I formed the impression that there has been a poor and quite dysfunctional relationship between the mother and N since separation which N associates with her personal distress, but note that N continues at all times to maintain with clinicians that her step father abused her and there is no record of her resiling from this allegation.
I also attach weight to the opinion of the Family Consultant about a particular unusual feature of the mother’s allegations in this matter which is relevant to the father’s contention about the mother’s motive to concoct the allegation.
In her family report the Family Consultant says the following:
False allegations of sexual abuse are at times used in high conflict families as a form of estranging a child from the supposed perpetrating parent. Features of such cases often include escalating allegations and over exposure of the child to form a negative view of the other parent. However, in this case, [the mother] is aware that [the child] continues to love her father, and in this respect she does not appear to have sought to alter her daughter’s views. Any negativity appears to surround the father’s alleged behaviour, rather than to vilify his character as a whole to her daughter. Thus the mother does not appear to have attempted to alter [the child’s] view of her father to deliberately influence or separate [the child] from her father to meet her own emotional needs. Instead, the mother truly believes the father sexually abused her eldest daughter. Consequently, her behaviour appears to have been organised towards protecting [the child] from the same fate, rather than any deliberate attempt to undermine her relationship with her father.
Under cross-examination when questioned about this opinion, the Family Consultant said that the position taken by the mother in not deliberately attempting to undermine the child’s relationship with her father is “highly unusual” compared to other cases where similar allegations are made.
Another factor taken into account in determining the question of unacceptable risk is the mother’s presentation to the Family Consultant which is consistent with her presentation in the hearing as “emotionally overwhelmed by the guilt of not protecting N and angry with her ex-husband for reportedly violating her daughter and significantly impacting her development and mental health”.
In my view, some features of the essay written by N in 2011 are not consistent with the document being an accurate record of sexual abuse perpetrated by N’s step father, the father in these proceedings. However, other features in the essay are consistent with the contention that the father abused the child. This document is not however, in my view, particularly persuasive either way.
I do not accept the submission made on behalf of the father that the allegations of sexual abuse were concocted by the mother in an effort to undermine his relationship with the child. As previously noted when considering the issue of the video recording it has been the mother’s consistent position that the father made the recording in around September or October 2008 and I have found that that is the case.
It is inconsistent with the suggestion that the mother concocted this allegation in an effort to undermine the father’s relationship that the mother remained in a relationship with the father for another three years and continued to support the relationship between the father and the child for almost three years following separation. It is the mother’s unchallenged evidence that she first became aware in June 2014 of the allegation that the father had sexually assaulted N in late 2006 to early 2007. The suggestion that the mother concocted the allegation of sexual abuse at this stage as a pretext for withholding the child from the father is entirely inconsistent with the unchallenged evidence that N had first made the identical allegation to a clinician to whom she was referred in December 2011.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
This consideration is concerned with the need to protect the child from harm arising in particular ways.
Abuse
First, it involves a consideration of physical or psychological harm arising from being subjected to or exposed to abuse. The risk of being subjected to sexual abuse and the associated harm has been considered at length in this Judgment. For the reasons given when considering the allegations of sexual abuse, I am satisfied that the father poses an unacceptable risk of harm to the child. For this reason, this is a weighty consideration in these proceedings.
As indicated when considering the other primary consideration, the Family Consultant recommended that if such a risk be found the father not spend any time with the child. Ultimately, both parties proposed orders which did not include the father spending time with the child in the event that a finding were made that the father posed an unacceptable risk of harm to the child. The father proposes orders that would allow him to send letters and gifts on special occasions that the mother would be obliged to give to the child.
The Family Consultant was cross-examined about whether there would be any purpose in the father engaging in any therapy to address his behaviour and the risk he poses. The Family Consultant expressed the view that such therapy would not be of any assistance if the father continues to deny his behaviour as such denial demonstrates that he has no insight.
Neglect
The second type of harm contemplated in this consideration relates to neglect. It was also part of the mother’s case that the father misused alcohol throughout the relationship and may continue to do so and thus represents a risk that the child may be neglected in his care. However, ultimately this allegation (which was disputed by the father) did not assume great importance in the proceedings which focused primarily on the risk of sexual abuse.
Family Violence
Although both parents made some allegations of family violence perpetrated by the other in the course of the relationship this did not assume much significance in the proceedings. As noted the only FVIO proceedings related to the parties resulted in no final intervention order being made, though an interim order for the protection of the mother against the father was in place for some months.
It is the father’s contention as I understand it that the mother’s conduct in her personal and sexual life may give rise to a need to protect the child from harm. In particular, the father contends that the mother’s participation in bondage and domination fetish activities may become known to the child and this knowledge may psychologically harm the child. Although this contention does not relate to harm associated with abuse or neglect it peripherally raises the issue of exposure to family violence.
The father expressed some significant concerns in the proceedings about the mother’s participation in bondage and domination fetishes which include membership of an online group. It would appear that this was first raised by the father in an affidavit filed earlier in the proceedings. In an affidavit filed in August 2016 the mother says that the website in question is subscription only website and that the father was also a user of the site. The mother says that she removed her profile on that site in about 2012 shortly prior to the parties’ separation. She says that she has not reactivated the profile and any photographs posted on it have since been removed. In response, the father annexes various screen shots which he says depict the mother taken from the website in January 2017. The father says that the images on that site were posted about a year previously and is concerned that as some images show the mother’s face this may cause embarrassment to the child if the mother is identified by a person known to her.
I am unable to be satisfied that the images attached to the father’s affidavit depict the mother, nor can I determine when they were taken and placed on the website. In any event the uncontradicted evidence of the Family Consultant is that participation in such activities is not necessarily problematic if consensual. The Family Consultant opined that the main concern so far as a risk of harm to the child is concerned may arise if the child became aware of such activity including props or aids used by the participants which could be misinterpreted by the child. There is also of concern is that if such activity results in a person being injured then this raises questions about valid consent and amounts to family violence.
Although the incident on 31 January 2016 resulted in the mother being injured from being whipped by Mr F, the mother does not suggest that this was a consensual activity. She called the police and Mr F was arrested and ultimately convicted in relation to his conduct. Further, the mother and Mr F were not challenged about the assertion that the child was not home at the time and was unaware of the incident and there is no evidence to suggest that the child has been aware of other such activities. I am also not satisfied that there is any risk that the child may become aware of such activities due to the mother’s alleged postings to an adult members only website in the past.
For the reasons previously given I am also not satisfied that there is an unacceptable risk that the child will be harmed by exposure to family violence in the mother’s household.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the child and factors underlying those views
There is no dispute between the parties that the child B has shared a warm and close relationship with her father and wishes to spend more time with him.
The child told the Family Consultant that she misses her father and said she loves him “to the moon and back”. The child appeared somewhat apprehensive in relation to the her relationship with the father and concerned about the ramifications his behaviour has had on others including her mother and sister and expressed the view that it might be best for her not to see the father at present. According to the Family Consultant the child “naively believed that once her sister felt better about what had allegedly happened to her that things would return to normal for her and that she would resume time with her father without issue”.
Having regard to the child’s age and more importantly as the most significant factor in this matter relates to protecting the child from harm, little weight is attached to the child’s views. I do however have regard to the fact that the child’s views indicate the likelihood of her experiencing some emotional difficulties in the event that her time with her father does not resume, a matter to which I shall return.
Nature of the child’s relationship with each parent and other significant persons
The mother has been the child’s primary care giver throughout her life and it can be assumed that she is the child’s primary attachment figure. Although the other step-siblings were not assessed I formed the impression that they are closely connected to the child.
The child appeared to the Family Consultant to be extremely protective of her mother and her mother’s needs in relation to the current conflict.
The Family Consultant also was of the view that the child appeared to have a stronger allegiance with her mother than her father and it appeared that there was an elevated level of stress placed upon the child in relation to the assessment and the child’s need to assist and protect her mother emotionally.
The child reported to the Family Consultant a positive relationship with Mr F and the child appeared to have a close relationship with Mr F’s children.
The Family Consultant is of the opinion that observations between the child and her father demonstrated a strong and positive bond between the two. She expressed the view that their interaction was jovial and warm and said it was evident that the child loves her father and vice versa.
It appears that the child may also have shared a positive relationship with her paternal grandparents who the mother acknowledged were good people. However, the child’s relationship with them appears to have ended when the mother stopped making the child available to the father in mid-2014. It appears that the paternal grandparents have aligned with the father’s position in these proceedings though they did not give evidence on his behalf. In these circumstances there seems to be no prospect of the child rekindling a relationship with her paternal family.
As noted previously when considering the risk of harm posed by the father, there was some cross-examination about the benefit that the father may receive from engaging in therapy to address the concerns arising from his conduct. The Family Consultant said while there would be no benefit in undertaking any therapy to address concerning behaviour if the father continues to deny that behaviour. However, the Family Consultant felt it would be of benefit to the child after she becomes an adult in re-establishing her relationship with the father should the child seek that, for him to have gained some insight and participated in therapy once the insight is gained.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
Following separation and the first parenting orders the parents generally co–operatively participated in long term decision making regarding the child consistent with them equally sharing parental responsibility for the child, though the father alleges the mother made some unilateral decisions such as changing the child’s school in April 2013. The child regularly spent time with her father under these orders and it can be assumed that there was regular communication between the two.
This arrangement came to an end in mid-2014 when the mother ceased making the child available to the father and thereafter unilaterally made all decisions in relation to the child including significant decisions regarding the child’s health.
Neither parent has in my view adequately explained their respective conduct at this time having regard to the parenting orders then in place. So far as the father is concerned, although he contends that the mother took the action she did to undermine the child’s relationship with him, he did not commence these proceedings until May 2016 almost two years after the mother stopped his time with the child. Rather than return to court and seek to enforce or amend the orders the father ceased paying child support and appears to have begun negotiating with the mother about the child using the payment of child support as a bargaining tool.
In a text message interchange between the parents on 12 November 2014 the mother says she sent a text message requesting $4000 in outstanding child support as she was unable to afford the child’s school fees. The father replied “I love my daughter and she needs to see her dad. After I pick her up from school Friday I’ll put money in”. The child was absent from school on the day in question and the father did not pay child support.
The father says that he was informed in about January 2015 that the Department were conducting investigations in relation to the allegations relating to sexual abuse of the mother’s daughter N. He says that following the investigation after several months the file was closed by the Department but he was reluctant to continue to attempt to spend time with the child due to concerns that the mother would try to turn the child against him or make further allegations against him. He claims that for these reasons and as he had limited financial resources he delayed obtaining legal advice.
The father did not take any further steps to restore his time with the child but sent a text message to the mother on 16 March 2015 which included referring to her as a “messed up slut”. According to the mother she also received three threatening phone calls from a private number between January and 16 March 2015 and on 23 March 2015 applied for and obtained an FVIO against the father for the protection of herself and the child “with full conditions”.
The father then engaged lawyers in March 2015 who wrote to the mother requesting a resumption of the father’s time with the child. In response the mother sent an email to the father’s lawyer stating that she would not be making the child available due to the interim Intervention Order (which restrained the father from spending any time with or communicating with the child) and stating that the basis for her withholding the child was “the rape of my 13 year old daughter …” and “the video that he took of my daughter without her knowledge outside of her window”.
The Intervention Order proceedings then took over a year to resolve and ultimately concluded in June 2016 with no Final Intervention Order being made. The father’s position is that he took no further steps to spend time with his daughter while the Intervention Order proceedings were occurring as he was concerned that he may be found in breach of the interim order.
Ultimately, it did not appear to be in dispute that the mother was advised to take steps to have the parenting orders varied on the basis of her concerns rather than simply continue to not comply with them and she did not provide a satisfactory explanation for not taking these steps.
After June 2014 the father ceased paying child support and claims in his affidavit that he could not afford it. As discussed, text messages exchanged between the parties in November 2014 indicate at that stage the father was in arrears in his Child Support and he said he would recommence paying it when the mother permitted him to see the child.
The father agreed under cross-examination when asked about the text message interchange that “to a certain extent” he used the withholding of Child Support to see the child.
Under cross-examination the father agreed that his child support arrears reached $16,000 which he finally paid three to four weeks prior to the commencement of the hearing.
Under cross-examination the father agreed that he paid for his own private health insurance but did not include the child [on that policy]. Although the father appeared to suggest that he had known little about the child’s serious health problems and that the mother in some way had prevented him speaking or meeting with doctors, he ultimately agreed that he could have spoken to his solicitor about this matter.
I have some concerns on the basis of this evidence that the father regards his obligations to support the child as dependent upon the child spending time with him and that in the event orders are made as sought by the mother there is a real risk that he will not pay child support as assessed. Conversely it is more likely that he will pay child support if he is able to maintain his relationship with the child. This is not a matter however that weighs in favour of his orders where issues of risk of harm are of such significance.
Likely effect of change in the child’s circumstances
The father’s proposal in the event that the court finds that he does not pose an unacceptable risk of harm to the child is that the child resumes spending time with him on alternate weekends for three nights and an additional midweek night and half the school holidays and special days. This would essentially reinstate a similar arrangement to that which the child enjoyed in the past.
However, for the reasons given, I am satisfied that the father poses an unacceptable risk of harm to the child. In these circumstances the mother proposes that the child spend no time with the father and the father proposes that there be some level of communication permitted between he and the child and the ICL supports this proposed order.
The unchallenged evidence of the Family Consultant is that the child is likely to need some assistance in adjusting to this arrangement. At the time the family were assessed by the Family Consultant, the child was aware that the mother believed that her father had “sexually abused” her sister N but the child did not have a proper understanding of this expression. The Family Consultant expressed the following opinion:
[the child] worried about her friends reaction to the current allegations, particularly as someone at school had told her that they knew about her father. In this regard, she appeared somewhat ashamed, and the allegations have the potential to further impact upon her negatively. As such, professional support in the form of counselling assistance will likely be critical to assisting [the child] emotionally, particularly in the absence of any support for her mother in this regard (given [the mother’s] own struggles as associated with the issues in dispute.
At the time the Family Consultant’s assessment was conducted, the child believed that it might be best for her not to see her father at the present given the reported safety concerns and likely impact on those around her. The Family Consultant opined that the child naively believed that once her sister felt better about what had allegedly happened to her, things would return to normal for her and she would resume time with her father without issue.
In my view, although it is likely that the child will experience some sadness and sense of loss should she spend no time with her father or communicate with him in the future and there is also some risk that she may idealise the father, counselling from an appropriately qualified therapist should address these concerns.
Capacity of each parent and others to provide for the child’s needs including emotional and intellectual needs
Attitude to the child and responsibilities of parenthood demonstrated by each parent
There are no suggestions that either of the parents lacked capacity to provide for the child’s needs prior to June 2014 when the mother ceased making the child available to the father.
The father contends that in withholding the child from him the mother demonstrates a lack of capacity to meet the child’s emotional need to have a relationship with him. It is his contention clearly made in his affidavits that the mother’s refusal to facilitate the child’s time with him is based on false allegations made by her about his conduct. He also contends that her further action in commencing Intervention Order proceedings and her refusal to facilitate the child’s time with extended family give rise to concerns about her mental health and functioning and demonstrate her willingness to use the child “as a pawn” in the dispute with him and “brain wash [the child] into believing her untruths in relation to me”. In behaving this way, the father contends that the mother demonstrates an inability to meet the child’s emotional needs and is emotionally damaging the child.
In my view, the mother has not shown a lack of capacity in meeting the child’s emotional needs. While she has at all times believed that the father poses an unacceptable risk of harm to the child I accept the opinion of the Family Consultant that the mother presented as child focused and did not appear to be actively seeking to negatively impact the child’s view of her father. I accept the Family Consultant’s opinion that any negativity on the mother’s part concerning the father appears to surround his behaviour rather to vilify his character as a whole and in this way the mother does not appear to have attempted to alter the child’s view of her father or deliberately influence or separate the child from him to meet her own emotional needs. The mother’s behaviour in the opinion of the Family Consultant appears to have been organised towards protecting the child rather than a deliberate attempt to undermine her relationship with her father.
Each of the parents clearly loves the child. The mother has taken a generally good attitude to the responsibilities of parenthood with respect to the child though she previously had a significant blind spot with respect to the risk of exposing the child to family violence in the household with Mr F.
Although the mother has not satisfactorily explained why she did not seek to vary the parenting orders in relation to the child as a result of her concerns rather than simply withhold the child from the father, I am satisfied that at all times she did so out of genuine concern for the child’s safety. I am also satisfied that she did not wish to repeat her failure to responsibly respond to the highly concerning behaviour of the father towards her child N and in prioritising her continued relationship with the father over the protection of that child for some time.
The father demonstrated a complete abandonment of responsibility towards N in respect of whom he was in the position of a parent in making the video of her undressing as an adolescent. That behaviour on his part does not fall within this consideration as he was not N’s parent and she is not the subject of the proceedings, but is taken into account as another fact or circumstance that I regard as relevant pursuant to section 60CC(3)(m).
The father’s attitude toward the payment of Child Support and attempting to draw a connection between spending time with the child and payments in circumstances where he was aware that the mother alleged he posed a risk of harm to the child also demonstrates in my view a poor attitude to the responsibilities of parenthood.
Maturity, sex, lifestyle and background and other relevant characteristics of the child
The child is a little girl of 10 who was born after the mother had not intended to have another child but is loved and wanted by both of her parents. It appears that she has close and loving relationships with three older siblings and other extended family members.
Although both parents seem to concede that there were difficulties in their relationship for some time they appear to have shielded the child from these difficulties. Even after separation the parents were also able to maintain a reasonably amicable relationship and were able to act reasonably co-operatively in co-parenting the child. She presented to the Family Consultant as “friendly, polite and charismatic” and despite being aware of the conflict between her parents also presented with a level of emotional maturity.
Despite these strengths the child has some significant vulnerabilities particularly associated with a number of health problems. In May 2016 the child was diagnosed with a benign cyst on her brain stem at the base of her skull which may be the cause of headaches from which she has suffered since the age of four. The child receives medication to assist with her headaches and is also waiting an assessment by a neurosurgeon as to whether it is safe for the cyst to be removed.
The child has also suffered from anxiety and panic attacks and has obsessive compulsive traits. In addition, the child has a medical condition which affects her pituitary gland and can affect her growth and experience of puberty.
Family violence
Although the mother makes general allegations about the father’s aggressive conduct towards her particularly when intoxicated and the father makes general allegations about the mother’s aggression this did not assume particular significance in this matter.
Some months after the mother ceased making the child available to the father in accordance with the parenting orders police also instituted an FVIO application on her behalf. Those proceedings became protracted and each party makes allegations about the conduct of the other and the findings of the court. However, despite a reference to it, transcript or any other independent reliable information in relation to these proceedings was not adduced. I can make no finding other than that while there was an interim order in place at one point protecting the mother ultimately no final order was made as sought on her behalf.
An Intervention Order for the protection of the mother against Mr F made as a result of his assault against her in January 2016 is due to expire at around the time that this judgment is delivered. For the reasons previously given, I am not of the view that there is an unacceptable risk that Mr F will perpetrate family violence against the mother to which the child may be exposed.
Any other relevant fact or circumstance
As noted above, the father’s attitude toward his step daughter N and abandonment of his responsibility towards her is a highly relevant matter in these proceedings particularly in relation to the risk of harm he poses toward the child.
Parental responsibility
It is the proposal of both parents that in the event the court finds that the father poses an unacceptable risk of harm to the child that the mother hold sole parental responsibility for her. Having made such a finding an order for parental responsibility in these terms will be made.
Conclusion
The allegations made by the mother that the father sexually assaulted her older child N when she was about 13 and video recorded the same child undressing when she was about 14 is central to this parenting dispute. For the reasons given I have found that the father did make the video recording in question and that there is an unacceptable risk that he may sexually abuse the child. Having regard to the magnitude of harm to the child in the event that he were to do so I am of the view that the risk of harm is unacceptable. In these circumstances and having regard to the expert evidence, I am of the view that there is no benefit to the child in having any relationship with her father.
In my view, these matters are so weighty that notwithstanding that the child enjoyed a warm and loving relationship with her father in the past and clearly wishes to spend time with him in the future it is not in her best interests for any such contact to occur.
The father and ICL propose that in these circumstances that the father be permitted to send the child cards and presents on her birthday and at Christmas and that the mother be obliged to pass such gifts to the child and to keep the father informed of her current address. The mother opposes an order requiring her to provide the gifts and cards to the child.
I reject the father’s proposal that the mother be obliged to provide any cards or gifts sent by him to the child on the basis that there is no benefit to the child in having a relationship or any contact with her father because of the unacceptable risk of sexual abuse he poses to her. Further, given my finding that there is no benefit to the child in such a relationship it is in the child’s best interests that all contact, including gifts and cards, with her father be ceased so as not to confuse or distress the child.
Accordingly I make orders as set out at the forefront of these Reasons.
I certify that the preceding two hundred and fifty seven (257) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 2 June 2017.
Associate:
Date: 2 June 2017
Key Legal Topics
Areas of Law
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Family Law
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