Sealy and Sealy
[2016] FamCA 523
•30 June 2016
FAMILY COURT OF AUSTRALIA
| SEALY & SEALY | [2016] FamCA 523 |
| FAMILY LAW – CHILDREN – whether two of the children have been sexually abused by the father – where there is no suggestion the parties’ male child has been sexually abused by the father – whether the children are at an unacceptable risk of harm if they spend unsupervised time with the father |
| Family Law Act 1975 (Cth) Evidence Act 1995 |
| Briginshaw v. Briginshaw (1938) 60 CLR 336 |
| APPLICANT: | Mr Sealy |
| RESPONDENT: | Ms Sealy |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 958 | of | 2012 |
| DATE DELIVERED: | Orders made 14 August 2015; Reasons published 30 June 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 26, 27 & 28 November 2014, 10 December 2014 and 4 & 5 February 2015 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms McDiarmid |
| SOLICITOR FOR THE RESPONDENT: | Delaney & Delaney Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Carmody |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
IT IS ORDERED THAT
All previous Orders and Parenting Plans are discharged.
IT IS ORDERED BY WAY OF FINAL ORDER THAT
The children B, born … 2005, C, born … 2007, and D, born … 2009, live with the mother.
The mother have sole parental responsibility for the major long term issues for the children in respect of:
(a) the children’s education (both current and future);
(b) the children’s religious and cultural upbringing;
(c) the children’s health; and
(d) the children’s names.
Before making a decision about any such issue, the mother shall:
(a)inform the father in writing of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision;
(b)allow the father fourteen (14) days after the provision by her of the information referred to above to respond to the same in writing;
(c)consider the father’s response, if any, when coming to her decision about any such issue; and
(d)inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.
Each party has responsibility for daily decisions about the day to day care, welfare and development of the children whilst they are in his or her care.
The children shall spend time with the father at all times as may be agreed by the parties in writing but, failing agreement as follows:
(a)commencing on Sunday 23 August 2015 and for eight (8) weeks: thereafter each Sunday from 10.00 am to 2.00 pm, with Dr E to be present for the duration of the visit; and
(b)commencing on Sunday 18 October 2015 and for four (4) weeks thereafter: each Sunday from 10.00 am to 4.00 pm, with Dr E to be present for the duration of the visit; and
(c)commencing on Sunday 15 November 2015 and for four (4) weeks thereafter: each Sunday from 10.00 am to 6.00 pm; and
(d)commencing on Saturday 12 December 2015 and for four (4) weeks thereafter: overnight each weekend from 12.00 pm Saturday until 6.00 pm Sunday; and
(e)commencing on Saturday 9 January 2016 and for eleven (11) weeks thereafter: overnight each alternate weekend from 9.00 am Saturday until 6.00 pm Sunday; and
(f)commencing on Friday 15 April 2016 and for the duration of Term 2 2016: overnight each alternate weekend from after school Friday until 6.00 pm Sunday; and
(g)commencing on Friday 15 July 2016 and thereafter: overnight each alternate weekend from after school Friday until the commencement of school on Monday; and
(h)during the 2016 Easter, June/July and September/October school holiday periods for a period of five (5) consecutive nights as agreed between the parties and failing agreement as follows:
(i)from 4.00 pm Friday 1 April 2016 until 10.00 am Tuesday 5 April 2016; and
(ii)from 10.00 am Monday 4 July 2016 until 10.00 am Saturday 9 July 2016; and
(iii)from 4.00 pm 23 September 2016 until 10.00 am Tuesday 27 September 2016.
(i)for the first, third and fifth week of the December 2016/January 2017 school holiday period and, unless otherwise agreed between the parties in writing:
(i)from 9.00 am on the Saturday immediately after school concludes for the Term until 5.00 pm on the second Saturday after school concludes for the Term with changeovers to occur at McDonald’s Restaurant F Town, (“McDonald’s Restaurant F Town”);
(ii)from 9.00 am on the third Saturday after school concludes for the Term until 5.00 pm on the fourth Saturday after school concludes for the Term with changeovers to occur at McDonald’s Restaurant F Town;
(iii)from 9.00 am on the fifth Saturday after school concludes for the Term until 5.00 pm on the sixth Saturday after school concludes for the Term with changeovers to occur at McDonald’s Restaurant F Town;
(j)commencing with the school holiday period at the conclusion of first Term in 2017 and, unless otherwise agreed between the parties in writing:
(i)for the first half of the school holiday periods in even numbered years; and
(ii)for the second half of the school holiday periods in odd numbered years.
From the start of Term 1 in 2016, the operation of Clause (6) shall be suspended during any school holiday period and shall resume with weekend time commencing:
(a)on the first weekend of school Term if the children have spent time with the father in the first half of the holiday period; or
(b)on the second weekend of school Term if the children have spent time with the father in the second half of the holiday period.
The operation of Clause (6) of this order is suspended for the weekend on which Mother’s Day occurs such that the children will remain in the mother’s care for that weekend.
In the event that the children would not otherwise be spending time with the father on the weekend in 2016 on which Father’s Day occurs, the children shall spend time with the father from after school Friday until 5.00 pm Sunday on that weekend with the father to collect the children from school at the commencement of time and changeover to occur at McDonald’s Restaurant F Town at the conclusion of time.
From 31 January 2015, unless otherwise agreed between the parties in writing, the children shall spend time with the father:
(a)from 5.00 pm Christmas Eve until 12.00 pm Christmas Day in odd numbered years; and
(b)from 12.00 pm Christmas Day until 12.00 pm on Boxing Day in even numbered years.
From 31 January 2015, unless otherwise agreed between the parties in writing, the children shall spend time with the mother:
(a)from 12.00pm Christmas Day until 12.00pm on Boxing Day in odd numbered years; and
(b)from 5.00 pm Christmas Eve until 12.00 pm Christmas Day in even numbered years.
Unless otherwise agreed between the parties in writing or otherwise provided for in this Order, changeovers shall occur:
(a)until 15 April 2016: at McDonald’s Restaurant F Town; and, thereafter
(b)to and from school if occurring on a school day and, otherwise, at McDonald’s F Town on all other occasions.
The parent with whom the children are living or spending time shall ensure that the children telephone the other parent each Wednesday between 6.30 pm and 7.30 pm.
The children are at liberty to call either parent at all reasonable times and the parent whom they are with shall assist the children to make any calls they request.
Neither party shall attend at the other party’s residence unless that party gives prior permission in writing.
The mother is hereby restrained from enrolling the children in any activity which will occur in the time the children are to spend with the father, without first obtaining the father’s written consent.
Neither parent denigrate the other or their family to, or in front of, or within the hearing of, the children and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the children and, failing their compliance with such a direction, shall remove the children from that environment immediately.
Neither parent shall discuss these proceedings or the allegations made therein with the children unless such discussion occurs in therapy intended to support the children in their time with the father.
During the time the children are with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b) speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the children; and
(d)use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
Each party keep the other informed of the children’s doctors, health care and other treatment providers and by this Order, those practitioners are authorised to provide each parent with such information as they are lawfully able to provide about the children.
Each party inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner to release the children’s medical information to the other parent.
Each party keep the other informed of any daycare, school, educational facility or extra-curricular activity provider and by this Order such providers are authorised to provide each parent with such information as they are lawfully able to provide about the children and their progress.
If there is a cost associated with the provision of any information or documents by the children’s doctors, health care and other treatment providers or daycare, school, educational facility or extra-curricular activity provider, that expense shall be borne by the parent requesting the information.
Each parent keep the other parent informed at all times of their residential address and contact telephone number and notify the other parent at least 30 days prior to relocating their residence beyond a 20 kilometre radius from where they currently reside.
Subject to the conditions imposed by the children’s schools, this Order authorises both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interview.
The parties shall keep one another informed of those matters required by this Order via email to an email address advised by each party to the other.
The parties have liberty to provide a copy of the Reasons for Judgment delivered in support of this Order to the Department of Communities, Child Safety and Disability Services, Queensland, the children’s school and any psychologist who may be engaged to treat the children.
AND IT IS FURTHER ORDERED THAT
All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sealy & Sealy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 958 of 2012
| Mr Sealy |
Applicant
And
| Ms Sealy |
Respondent
REASONS FOR JUDGMENT[1]
[1]I extend the parties an apology for the delay in finalising this matter. I have, of course, revisited and reread my notes, the affidavit material, the exhibits, the expert reports prepared by persons with professional expertise for the Court’s assistance and the contents of the parties’ respective summaries of argument, however described. I have also had regard to various extracts of the transcript of the proceedings.
The parties commenced cohabitation in about 1998. They separated at the end of 2010.
They have three children:
a)B, born in 2005; and
b)C, born in 2007; and
c)D, born in 2009.
The children remained living primarily with their mother in F Town after separation. The father accepted that he suffered significantly from mental ill-health in 2010. He had periods away from paid employment in that year and 2011. He suffered recurrences of mental ill-health at times in 2012.
Apart from an incidental meeting at a shopping centre in July 2013 and during their involvement in the two interviews for the preparation of Family Reports – in October 2013 and October 2014 respectively – the children had not spent time with their father since May 2013.
This cessation of their time occurred in the context of allegations that the father previously sexually abused B and D – because of this, the mother contends the children will be at a risk of harm and will not be safe if they spend time with him. She is supported in this contention by members of her family.
The father emphatically denies he has engaged in any improper or abusive behaviour of any kind whatsoever toward any of the children. He is supported in these denials – in the sense that she accepts his denials of any abusive behaviour toward his children – by his partner. He has not been interviewed by any statutory authority in relation to the suggestion he has sexually abused his daughters, nor has he been charged with any offence.
B has not made any disclosures to anyone that her father or anyone else has sexually abused her. In fact, when spoken to by Police, she expressly denied that anyone has ever touched her in such a manner. Neither she nor D articulated during interview by Police that their father had perpetrated any abuse of them.
B’s school was made aware of the allegations against the father - she was monitored by teachers in 2011 and 2012. No concerns about B’s behaviour at school were reported or recorded by the school.
Despite attending upon Ms G for therapy for an extended period, B has not, at any time, made any disclosure to her to suggest that her father has sexually abused her or acted inappropriately toward her at any time. Additionally, the children have been observed by independent third parties to act warmly toward their father during their interactions with him. Of course, in assessing this evidence, proper regard must also be had to Dr H’s evidence to the effect that an absence of disclosure of sexual abuse by a child does not mean that abuse has not occurred[2] and the fact that a child appears happy to see a parent does not exclude the possibility of sexual abuse.[3]
[2]Particularly if threats were made to the child or there was an implied threat or a child was told that if they said anything their father would go to jail.
[3]Because, if the behaviour by the adult toward the child was such that the child did not see it as abusive – but, rather, as pleasurable – that child would not necessarily show fear of the abusive parent.
I consider that the evidence clearly establishes that, on occasions, B has acted in a manner that is highly suggestive she has been exposed to some adult sexual behaviour/s in some way at some time. That, of course, does not of itself mean that the father is the person responsible.
There is no suggestion the father has engaged in any abusive behaviour of any kind toward C. Thus, the only way in which time with his father can place him at an unacceptable risk of harm is via exposure to modelling of inappropriate and abusive behaviours - if these are considered to have been perpetrated by the father – or by being placed in a situation where spending time with his father causes such difficulties in his relationships with his sisters and mother that he suffers harm or is placed at risk of suffering harm.
When the trial began, the father and his partner, Dr E, were living in Sydney. They had started to live together there in January 2014. At the time of trial, Dr E had not had the opportunity to meet the children or see them interact with their father.
Dr E is clearly aware of the allegations made by the father’s sister (who will be referred to, respectfully, as ‘Ms I’ during these Reasons so as to avoid confusion with the children’s mother), the mother and members of the mother’s family about the father’s behaviours. She has read Ms I’s affidavit. She is aware of the allegations that the father sexually abused B and may have sexually abused D.
During the time the trial was adjourned for further hearing, the father and Dr E moved to live in F Town. Thus, since early February 2015, the parties and the children have all lived in the same city. The father’s decision to return to live in the same city as the children obviously eliminates significant practical issues associated with the children spending time with him, if such time is found to be in their best interests.
After the father’s late application to amend his position to seek orders that the children live primarily with him was refused,[4] what remained in dispute between the parties is whether the children should spend any time with their father and, if so, the manner in which such time should occur.
[4]See: Order made on 4 February 2015 and ex tempore Reasons for Judgment delivered that day.
The proposals
The mother seeks that the children live with her and spend no time with their father. She proposes that, provided she is able to peruse them before providing them to the children, the father should be permitted to send letters and cards to the children.
Whilst the specifics of the father’s position changed during the course of the hearing, it was at all times clear that he sought to spend unsupervised time with the children and to be fully involved in their lives. After he was refused leave to amend his previous position, he proposed that the children spend time with him:
a)each alternate weekend, from after school Friday until 6:00 pm Sunday; and
b)from after school until 6:00 pm each Tuesday and Thursday; and
c)for half of each school holiday period.
He also proposed that the children communicate by telephone, between 5:30 pm and 6:00 pm each Monday, Wednesday and Saturday, with the parent with whom they are not then spending time.
The parties are also in dispute about parental responsibility: the mother seeks an order for sole parental responsibility for the major long term issues relating to the children, while the father seeks that an order for equal shared parental responsibility is made.
General comments about some of the witnesses
Whilst I accept that the witnesses in the matter generally recounted matters from their respective perspectives, this does not necessarily mean that their respective perspectives are factually true or reasonably based.
The mother
Ms J, who prepared two Family Reports to assist the Court, confirmed that the mother told her she did not talk to the children about the dispute with the father. However, during their interviews with Police, both B and D mentioned matters like that the father was mean and lazy and did not work. The children’s comments seem to me to be inconsistent with the mother’s assertion that she had not spoken to the children about the dispute or, at least, that they had not been as shielded from exposure to these types of comments as the mother may have thought or represented to Ms J and the Court.
When asked by Ms Carmody[5] during cross-examination whether she had seen anybody in a relationship sense or gone out on any dates at all after her separation from the father, the mother said ‘No’. However, when taken to her medical records for 13 January 2012 - wherein her doctor noted that she was sexually active – she said that was a reference to something other than a relationship: she said that person was never around the family home and had never met the children.
[5] Counsel for the Independent Children’s Lawyer.
During her cross-examination, the mother emphatically denied asking B, after the March 2011 conversation with Ms I, whether anything (of an abusive nature) had happened to her. However, an entry in her doctor’s notes for an appointment on 14 March 2011 records that “she has talked to [B]. Denies any sexual interference from dad, but she is only five.”
Once taken to this entry, the mother accepted that, as the doctor recorded, she had spoken to B. The mother then maintained that she ‘would not’ have asked B whether “daddy” touched her, but had only asked “has anyone?” She said she asked the question in that manner because, whilst she thought, at that time, the father might be responsible for sexually abusing B, she was not going to “feed [B] lines”.
The mother thus denied that the words “from dad” as recorded by her long-standing GP had come from her. I do not accept this denial. Taking into account the nature of the issue reported and the GP’s otherwise accepted accuracy in recording what the mother told him during that consultation, it is much more likely than not that the GP accurately recorded the entirety of the matters reported to him by the mother. It follows that I consider it more likely than not that the mother asked B whether ‘daddy’ had done anything and that this query was not in the open form she contends.
During her cross-examination, the mother said she had never thought it would be necessary to withhold the information about Ms I’s allegations against the father until the property issues between the parties were finalised. She said Ms I’s information had no impact on the property issues whatsoever – the issues were completely separate. She said she never thought, at any time, that, if the father did not do what she wanted in property matters, the information from Ms I would be relevant. However, a note taken by her GP of a consultation on 1 May 2013 is as follows: “once the father has signed[6], they intend to bring the sexual suspicions forward. This could get the father angry”.
[6]The reference being to the father signing documents to facilitate the mother selling the former shared home to her parents and renting it back from them.
I consider it clear that, contrary to her assertions, the mother was fully aware of the potential impact of raising Ms I’s allegations in the parenting proceedings prior to obtaining the father’s consent to the resolution of property matters between the parties.
The mother said during cross-examination that, after time with the father ceased, B obtained As and Bs at school and is an A Grade English student. However, her 2014 report cards[7] show that B is a B and C Grade student and received Cs in English.
[7] Exhibits 10A and 10B.
It is, I think, clear that the mother has excluded any person other than the father from consideration as a possible abuser of B and/or D. This was despite B and D being in the care of others during the day, including at school and whilst engaged in extra-curricular activities. It is also clear that friends of the family assisted in the care of the children on occasions. Additionally, B alone[8] slept over at her maternal grandparents’ place on occasion: sporadically, about once every two or three months on a Saturday night. These visits ceased sometime in early 2013 when B started not feeling safe.
[8] She was not accompanied by her siblings because they were too young.
The contents of the mother’s GP’s records of an appointment on 23 December 2011 record that the mother told him that her mother had raised the accusation of sex abuse of the two year old D “by a carer?” The mother explained she could only assume she would have said that her mother would have raised the suspicion of sexual abuse of D by someone. She said the question mark ‘by a carer’ would have meant ‘by the father’ because he was the only person ‘they’ were suspicious of at the time. As the father pointed out, he was not, in fact, a carer for the children at this time at all. When this was raised with her, the mother’s immediate response was to say he had previously been and had previously been in the family home.
The matters noted above have caused me to conclude that I should approach the assessment of the mother’s veracity with significant caution. At best for her, it appears she has permitted her view of the father (as it appears to have developed over time) to cloud her objectivity entirely.
The father
The father said he did not remember whether Dr H, a psychiatrist who prepared a report to assist the Court, asked him during interview if he had ever been abused as a child. He said he thought he had been asked if he had been bullied and said he had been. When asked whether he thought it relevant to tell Dr H that he had been the victim of sexual abuse whilst at boarding school, he said he did not tell the doctor because he never asked him whether he had been the victim of sexual abuse.
Whilst Dr H said he was not sure if he asked the father specifically whether he had been sexually abused as a child, he did ask him whether there was anything traumatic in his childhood. Childhood sexual abuse clearly falls within this category.
I consider it more likely than not that the father was very guarded in his response to Dr H. Whilst this may be understandable - given the nature of the allegations with which he was contending - and it is relevant that he (the father) had not withheld the information of his own childhood sexual abuse from Ms J - his guardedness with Dr H mandates that particular scrutiny be applied to his evidence.
Ms I
Whilst Ms I told Ms Carmody that she had never forgotten what she alleges the father did to her when she was a child:
a)she also explained she was not concerned - when told about B’s birth - because she had more or less blocked out what she said happened to her when she was a child; and
b)her affidavit material contains the assertion that she had forgotten the first time on which it was alleged penetration by the father occurred; and
c)she admitted she had forgotten details of a relatively recent conversation with her mother; and
d)whilst her affidavit contains a recounting that her mother told her that the father told her (their mother) he had told Dr E he sexually abused her (Ms I) when she was a child, she accepted during cross-examination that it was possible that, in fact, her mother told her the father had said he had told Dr E everything that was going on.
I record in passing that I accept Dr E’s evidence that the father has never admitted to her that he sexually abused Ms I and that he has never said anything like this to her on any occasion.
Additionally, whilst Ms I originally said she had told her mother about the father sexually abusing her in 1991, she appeared to accept later that she may well not have conveyed this information in a manner likely to have been fully appreciated and/or understood by her mother. Further, whilst she appeared, at least to some extent, to accept that it was ‘possible’ the matters she alleged had been perpetrated by someone other than the father in another setting, she also said she was definite these asserted events did not happen with anyone else.
Such matters persuade me that careful scrutiny must be made of her evidence also.
Dr K
Dr K, a psychologist upon whom Ms I attended for therapy for about three years, provided two reports. For reasons outlined further below, these were compiled completely from memory. The issues arising from this are clearly demonstrated when regard is had to one aspect of her 12 November 2014 report: in it, she notes that the motivation for Ms I to disclose was precipitated by a report from the mother about the father’s “violent and unpredictable behaviour which resulted in her [the mother] asking him to leave”; however, when asked, Dr K could not remember significant details of what she had been told constituted the asserted ‘violent and unpredictable behaviour’ by the father, said she felt uncomfortable making a clear statement because she did not recall the exact words and had based her assertion/description upon “the essence of what was felt.” Orally, she also acknowledged that it would be unfair for her to use such words to describe the father’s behaviour because she was not party to it.
For these reasons and others developed more fully below, I am persuaded it is necessary to approach Dr K’s evidence with particular caution.
Some historical context
The January 2011 event: the father tries to “steal” B
The parties separated on 31 December 2010. On 2 January 2011, the father attended at the former matrimonial home. During the course of an argument between the parties, he went to B’s bedroom, picked her up from her bed and said he was going to take her with him. He walked with her to the doorway. The mother intervened. He thought B (then five years old) was awake by that stage. I accept the father’s evidence that he then realised taking the children would split the family and would not work, so he ceased in his attempt to remove them from the home. I accept that, by this stage, B was probably screaming, hysterical and definitely upset.
I accept the father’s explanation that he acted as he did on that night because he was afraid the mother would not let him see the children in the future.
I consider that, even on the mother’s account of the father’s attempt to remove B from the home that evening, it is not accurate to assert that he was trying to ‘kidnap’ or ‘steal’ her.
I note that B wrote a letter about this event to Ms J. I accept its contents were consistent with B’s comments to Ms J during her interviews. I accept that each of the children raised the January 2011 event with Ms J during each of her assessments (in 2013 and 2014 respectively) and that she did not initiate such discussions with them. This is particularly relevant given that C was about 3½ years of age and D much younger when the event actually occurred. In such circumstances, I consider it much more likely than not that the “memory” of the same has been kept alive for the children during their time in their mother’s care or when in the care of members of the extended maternal family.
Further support for this conclusion is found in the evidence of Mr L, whose relationship with the mother started in August 2014. Mr L recounted that the mother told him (in September/October 2014) that, in early 2011, the father had tried to steal B. Mr L said that, accepting the mother’s information about what she said happened and relying on the fact that B was upset when she spoke of this event, he believed the father tried to “kidnap” B at or around separation.
Mr L outlined that the mother continued to become quite upset about this event on regular occasions. He also said that B will sit at dinner and say “daddy kidnapped me”. Mr L explained that B behaved like this when crying for no apparent reason: when asked, she said she was missing her father. Adopting Mr L’s words, “the story” develops and she speaks about her father having stolen her or having tried to steal her. This behaviour has occurred about once a week from October 2014 onwards.
Mr L could not recall the mother telling B or the other children on any occasion that the father would not take or steal them. This evidence provides a foundation for my conclusion that the mother has not thought it appropriate to reassure any of the children - either at all, or effectively- about this event. In fact, the mother clearly has been content over time to permit the story of the attempted stealing of B by her father to become part of the shared familial folklore.
Despite the manner in which the January 2011 event has continued to be portrayed in the mother’s home and during these proceedings, reference to more contemporaneous records suggests that, closer to its occurrence, it was not seen in so significant a light: for example, on 25 February 2011 (about six weeks after the incident), the mother told her GP she had talked with the father, was establishing ground rules, that he (the father) wanted to see the children every night and she was “happy with this”.[9]
[9] Exhibit 1, Tab 6, page 40.
This reporting is at odds with the manner in which the event at the home has been portrayed as time has passed. It certainly is inconsistent with the current recounting – which appears to have been repeatedly relayed to the children either deliberately or inadvertently – to the effect that the father tried to ‘steal’ B and that they are at risk of this occurring again if they spend time with him.
The father’s previous time with the children
I accept as likely that the father did not spend time with the children from the time of the January 2011 event until sometime after March 2011. I accept that there may well have been some limited telephone communication during this time.
I accept the father’s evidence to the effect that he did not go to the house on B’s first day of school in 2011 because the mother had said she would, perhaps, take out a domestic violence order against him. The father’s evidence in this respect is, to some extent at least, corroborated in part by the contents of the mother’s GP’s notes of an attendance on 11 March 2011 - these are to the effect that she had decided not to take out a domestic violence order against the father because, as he was in Brisbane, her fear was not so acute and he (the father) still had an emotional hold over her.[10]
[10] Exhibit 1, Tab 6, page 40.
The father accepts that he saw the children on only approximately seven occasions between separation and August 2012.[11] I accept as likely that about three or four of these occurred in 2011 and were supervised by the mother or a member of her family. I accept the father’s evidence to the effect that he agreed to supervised visits because he just wanted to see the children: on each party’s account, after the March 2011 telephone call with Ms I, it is highly likely the mother told the father she did not trust him around the children and that the girls were not safe in his care. Thus, if he wanted to see the children at all, the father’s only option was to accept the imposition of supervision over their time together. I am not persuaded that the father’s acceptance of supervision in such circumstances amounts to an admission of any kind that he had acted in the manner alleged by Ms I or that he represented a risk to either of the girls or any or all of the children.
[11] Affidavit of the father filed 23 January 2015 at [39].
After the parties attended mediation in 2012, the children’s time with their father occurred on a supervised basis at the local Contact Centre for a couple of occasions. Commencing in about November 2012, the children spent unsupervised time during the day with their father every two to four weeks until May 2013. On Ms M’s evidence, B’s interaction with her dog (as discussed later) had started in early 2012; on the mother’s evidence it appears this behaviour started in about either or October or November 2012.
That the mother permitted this unsupervised time establishes, in my view, that, despite her knowledge of the father’s interactions with the children before then and despite the contents of her March 2011 telephone call with Ms I, she did not consider him to be a risk to the children; it also provides a basis for the conclusion that she was then supportive of the children having the opportunity to spend regular, unsupervised time with their father. Considered logically, this is highly likely to have been because she thought such interaction would benefit them.
I accept the father’s evidence that, on occasion, the children were in separate rooms at his home during these visits because they wished to engage in different activities. I do not accept that he acted deliberately to separate them from each other for some nefarious reason or to prevent them from observing his behaviour toward B.
The children’s time with their father ceased in early to mid-May 2013, after Ms G – a psychologist upon whom B in particular had been attending – responded to the mother’s then solicitor’s request for a recommendation about the children’s ongoing time with him. The contents of this correspondence shall be the subject of further discussion later in these Reasons.
Principles
In these proceedings, being proceedings for a parenting order[12] in relation to the children, I may, subject to s 61DA[13] and s 65DAB[14] and Division 6 of Part VII of the Act, make such parenting order as I think proper.[15] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[16] In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration.[17]
[12] s 64B of the Family Law Act 1975 (Cth).
[13] Presumption of equal shared parental responsibility.
[14] Parenting plans.
[15] s 65D of the Act.
[16] s 60B of the Act.
[17] s 60CA and s 65AA of the Act.
I must consider whether there is benefit to the children of a meaningful relationship with both parents: an affirmative finding in this respect does not depend simply on there being a lack of danger of physical or psychological harm to them arising from time and/or communication with that parent.
The mother told Ms J[18] in the October 2014 interview that she would not restrict the father’s time with the children if she was confident he had not abused the girls.[19] Additionally, save for raising concerns about his previous mental health functioning and the impact this may have on his capacity to parent the children and care for them appropriately, she did not agitate any other particular basis for restricting the children’s opportunity to spend time with their father.
[18] Who authored the Family Reports relied upon in this matter.
[19]Updated Family Report dated 7 November 2014, [21]; affidavit of Ms J filed 18 November 2014.
Ms J noted[20] that the mother accepted that, provided they are safe, the children “need a relationship” with their father. I intend to regard this assertion as a tacit acceptance of the proposition that there is benefit to the children of having a meaningful relationship with both parents provided interaction with their father does not put them at risk of harm.
[20] After the October 2014 interviews with the parties.
Whilst authority makes it clear that the resolution of allegations of sexual and other abuse are “subservient and ancillary” to this Court’s determination of the terms of a parenting order which is in the children’s best interests,[21] a close assessment of such allegations is clearly necessary given that the prescribed statutory framework imposes an imperative of protecting children from harm.[22]
[21] M v M (1988) 166 CLR 69 and the numerous authorities which have followed it.
[22] Section 60CC(2)(b)
The Court is not required to determine positively whether the father acted toward Ms I (when she was a child and he an adolescent) as she alleges, nor is it compelled to make a positive determination about whether the father sexually abused B and/or D.
It is also well established[23] that a finding about a matter such as the allegations that the father sexually abused his sister (when he was an adolescent and she was a child) and/or sexually abused his daughters should not be made unless the Court is satisfied, to the highest standard on the balance of probabilities, that these alleged events occurred.[24] In determining whether the issues have been proven to the reasonable satisfaction of the Court, due regard should be paid to matters like the seriousness of the allegation, the inherent unlikelihood or likelihood of an occurrence of a given description and the gravity of consequences flowing from a particular finding. Further, ‘reasonable satisfaction’ should not be produced by ‘inexact proofs, indefinite testimony or indirect inferences’.[25]
[23]See, for example: M and M (1988) 166 CLR 69; W & W [Abuse Allegations: unacceptable risk] (2005) FLC 93-235; (2005) 34 Fam LR 129 at [92]; [111].
[24] s 140 Evidence Act 1995.
[25] See: Briginshaw v. Briginshaw (1938) 60 CLR 336 per Dixon J at p. 362.
Instead, the paramount requirement remains to make orders which are in the best interests of each of the children. In this case, determination of these must not lose sight of the undisputed matters summarised in paragraphs 7 - 10 above.
Whilst the case began with the Court being urged to make a positive finding that the father had sexually abused B and D, Counsel for the mother conceded during her submissions that the evidence did not support such a finding. She maintained, though, that the Court would be persuaded that the children would be at an unacceptable risk of harm if they spent time with the father.
The basis upon which it is asserted that the children will be at an unacceptable risk of harm if they spend time with their father
The mother contends that, when regard is had to the combination of:
a)Ms I’s evidence; and
b)the father’s asserted admission to Ms I that he sexually abused her when she was a child; and
c)the paternal grandmother’s asserted tacit acknowledgement that she knew that the father was sexually abusing Ms I when she was a child and/or that Ms I told her about the asserted abuse at the time; and
d)the contents of the mother’s telephone call with Ms I in March 2011; and
e)the father’s failure to deny the truth of Ms I’s allegations; and
f)the father’s asserted pre-separation interactions with the children; and
g)B’s behaviours and comments; and
h)D’s behaviours and comments; and
i)Ms G’s evidence,
the Court would be persuaded to conclude that the father represents an unacceptable risk to the children.
Ms I’s contact with the father prior to March 2011, her allegations and evidence and other evidence relevant to an assessment of her allegations
Ms I was in regular contact with the father during the parents’ relationship. Ms N, her partner since 2002, said that, whilst she had only met the father two to three times during the course of her relationship with Ms I, anyone who saw them together would have thought that they (Ms I and the father) had a normal, friendly, brother/sister relationship.
Ms I was made aware of the births of each of the parties’ children. She said that, when the father rang to tell her about B’s birth in 2005, she had no concerns about how he might interact with his daughter. When asked why this was the case, given her evidence of his behaviour toward her when she was a child, she said she had more or less blocked out what happened to her when she was a child and it was not at the forefront of her mind. She also said that the information the father had a daughter did not trigger a recollection of the events she alleges. Ms I also said that, when the father called to tell her about D’s birth in 2009, she was happy and did not think anything about it. Again, she did not think at that time that he presented any risk to any of the children.
I think it more likely than not that the first telephone conversation between the mother and Ms I occurred in about January 2011 when, having heard of the parents’ separation, Ms I called the mother. I consider it likely that, during this conversation, the mother told Ms I her account of the January 2011 event. This account – namely, that the father had been acting irrationally or erratically and had tried to remove (or ‘steal’) B from the home - appears to have been the catalyst for Ms I’s decision to tell the mother that the father had sexually abused her when she was a child and he was an adolescent, home from boarding school during the holidays.
The father denies ever sexually assaulting Ms I. He denies that, when he was 10 to 15 years of age and Ms I was seven to 12 years of age, he sexually abused her. He denies starting a game of tongue touching, looking at and touching her genitals, restraining her, performing oral sex on her or engaging in a lot of sexual conversation with her. He denies sexually abusing her in his bedroom. He further denies raping her on the three occasions she alleges. He denies having any conversation with Ms I to the effect that their mother would not believe her if she said anything.
Ms I said that the father’s inappropriate behaviour toward her started in Easter 1987. She was seven years of age and the father was about 10 years of age. She said that all she could remember occurring on that occasion was that they touched tongues: that is, each poked their tongue out and touched the tips of them together. Even if this happened as Ms I described, it does not seem to me to amount to an act of sexual abuse.
She said that the next thing she could remember was being in the father’s room and being restrained by a rope: whilst this was said to have occurred in 1988/1989, she could not recall the year and was not sure of her age. It seems as though she would have been about eight or nine years of age and the father about 11 or 12 years of age. She described that the father tied her hands behind her back: she said that, at the time, she guessed she thought it was a game and that she and the father had previously engaged in play fighting. When asked initially by Ms Carmody, she said she could not provide any further details because she could not answer that question, at least not immediately. She later said the father had looked at her private parts: he asked her to open her legs and she did. She said he had removed her shorts. She said she did not realise what was going on. She said he moved closer to her and just looked between her legs and at her vaginal area. She said she had no idea what it meant at the time.
Ms I said that the father also performed oral sex on her. She said he tied her up; he would tell her if he was going to restrain her. Ms I said, during her cross-examination, that she was unable to say the word “rape”. In written form, she said he had raped her but she did not recall what happened the first time this occurred: she said that, whilst she remembered being raped previously, she did not remember what happened the first time; she did remember that the second occasion occurred during the June 1991 school holidays. On Ms I’s account, the father’s abusive behaviour toward her occurred during school holidays when he returned home from boarding but stopped completely when he left boarding school to return to live at home permanently.
During her cross-examination, Ms I said she had always remembered what she said the father had done to her when she was a child, but not necessarily the specifics of the same. However, as noted above, she also said that, as at the time of B’s birth in 2005, she had more or less blocked out what she said happened to her when she was a child.
Integral to an assessment of Ms I’s evidence is the evidence of both Dr K and Ms N.
Dr K’s evidence
Dr K is a clinical psychologist who provided therapeutic support and counselling for Ms I between August 2009 and June 2012. At this time, Ms I and Ms N lived in Asia. During the last two years of this period, Dr K had a case load of between 15 and 18 clients per week. Whilst she has previously worked with adults who presented with symptoms originating from sexual abuse, Dr K does not consider herself a specialist in treating childhood sexual abuse survivors.
At the request of the mother’s solicitors, Dr K provided two reports (dated 12 November 2014 and 18 November 2014) in relation to her interaction with Ms I. The first report was prepared after, first, Ms I and, then, the mother’s solicitors contacted her to request that she confirm she had previously seen Ms I in therapy. The second report was prompted by later contact from the mother. After she provided her second report, Dr K was again contacted by the mother with a request that she provide further details of her experience and qualifications.
Because she destroyed all of her practice notes[26] when she returned to the United Kingdom from Asia, the content of Dr K’s reports and her oral evidence were based completely upon her recollection of conversations during the three year period during which Ms I attended on her. In the period from June 2012 until she wrote her November 2014 reports, Dr K saw about 20-30 people per year.
[26]She explained she destroyed her records because, having finished therapy with Ms I about two years before she returned to the UK, she was concerned her notes may fall into the wrong hands during transit.
Ms I self-referred to Dr K in August 2009 (about two months before D’s birth) for chronic and severe depression. Dr K said that, at that time, Ms I had not disclosed her later reports of the abuse she said had been perpetrated by her brother. This recounting does not appear consistent with Ms N’s evidence that Ms I had told her something about the asserted abuse prior to the commencement of her therapy with Dr K.
In any event, Ms I did not present to Dr K on the basis that she needed to speak to someone about what had happened to her as a child but, rather, with depression.
Dr K explained that the style of therapy in which she engaged with Ms I involved an intensive assessment period. After this phase, Ms I was presented with a ‘map’, prepared by Dr K, in which the therapist documented what Ms I’s core pain was and the main boundaries within her: Dr K explained that, for example, if a patient had experienced abuse or rejection or abandonment and an absence of care, that person’s ‘map’ would contain a reciprocal role of “rejecting to reject” and “abandoning to abandon”; that is, it would be explained to the person that they could either become very rejecting of themselves or very rejecting of others.
Dr K explained that the therapy she administered sought to identify cycles or patterns of behaviour caused by a person’s past experiences and to assist the person to develop tools to break out of, or away from, these patterns of behaviour.
When asked whether she had explored with Ms I whether things she said had happened had, in fact, happened or not, Dr K said that there was too much evidence to indicate that it was an imagination. When asked to provide details of the evidence she relied upon to reach this conclusion, Dr K said that Ms I’s symptoms, on presenting to her, were “classic indications of child sexual abuse”. When asked to describe these, Dr K said that Ms I:
a)presented with severe depression and a pattern of self-loathing, such that she would cut herself on her arms; and
b)found it very hard to trust, had a sense of worthlessness and did not believe she had any power; and
c)experienced flashbacks, would relive the memories and dissociate when they started working on “the material” and when “those memories” got accessed; and
d)blamed herself, said it was her fault and was disgusted with herself; and
e)found it very difficult to engage in “normal, healthy sexual relations” (although exactly what this phrase was intended to convey was not described with any further particularity); and
f)wrote letters about what the father had done to her as part of her therapy and as they explored, in therapy, the details of the flashbacks.
However, when pressed further to outline the ‘raw data’ Ms I had presented to her with at the commencement of their therapeutic relationship, Dr K said Ms I was open about her deliberate self-harming: that is, this, along with depression, appears to have been her presenting issues.
Dr K initially said that, when she asked Ms I what was going on in her life to precipitate her deliberate self-harming, Ms I said she had:
a)experienced traumatic abuse from her brother; and
b)experienced traumatic experiences of racism; and
c)experienced traumatic experiences of growing up in a religious family where her homosexuality was not accepted; and
d)not had contact with her father and felt abandoned and rejected by him; and
e)experienced a mother who herself had experienced mental health issues (which Dr K conjectured may have meant she was less available to Ms I).
The matters outlined above are those with which Dr K recalled Ms I presenting during the assessment phase of their therapeutic relationship - the phase which provided the details and context for the therapy which followed.
When pressed, Dr K confirmed that Ms I had not used the phrase “traumatic abuse from (or with) her brother”. She clarified that this was her (Dr K’s) summary of her understanding of what Ms I told her. When asked to outline what Ms I had told her in the assessment phase of their therapeutic relationship to lead to her reaching this understanding, Dr K said that Ms I had said that her brother had ‘hurt’ her.
Dr K also said that she did not go into much more detail than this in the assessment phase of the therapy, but simply noted there was a history of abuse. Dr K said it was very difficult for Ms I to “articulate the nature of what that hurt looked like”. In fact, on Dr K’s recounting, Ms I was not forthcoming in saying that the father had sexually abused her and, to use Dr K’s exact words: “that took some prompting”.
Dr K reiterated that, in clarifying what Ms I meant when she said that her brother had “hurt her”, she would have asked her questions like: “Does he touch you? Was it sexual?” These were the ‘prompting questions’ she asked Ms I, a person who presented to her with a history of chronic depression and who had described the traumatic experiences outlined earlier.
It became apparent, from Dr K’s evidence during cross-examination, that the “map”, in which she had documented what would trigger Ms I’s self-harm and what triggered her depression, contained Dr K’s assessment that Ms I had been the victim of sexual abuse perpetrated against her by her brother. In fact, in the map, Dr K depicted this as the origin of Ms I’s ongoing abusive behaviour toward herself.
That is, in depicting sexual abuse in the map presented to Ms I at the end of the assessment phase of the therapy and before the therapeutic phase began, Dr K proceeded on the basis of her conclusion that the traumatic abuse Ms I said she had suffered at the hands of her brother was sexual abuse – a conclusion arrived at in the absence of any details or particulars at that time and where she (Dr K) was unaware of the nature or extent of the asserted traumatic behaviours.
That is, very early on in their therapeutic relationship, Dr K, in effect, informed Ms I that the cause or source or origin of her destructive personal behaviours was that she had been sexually abused by her brother when she was a child: she did so, it seems to me, in the absence of any particular disclosure or indication from Ms I herself. I consider that, rather than attempting to facilitate a supportive process of disclosure, Dr K appears to have informed Ms I that her self-abuse resulted from being the victim of sexual abuse perpetrated by her brother and then to have commenced to explore with Ms I the “true” nature and extent of the same.
I note also that Dr K gave no evidence that, before arriving at her conclusion that Ms I was the victim of familial sexual abuse, she had explored and excluded the possible contributions to Ms I’s functioning of the other matters outlined in paragraph 85.
It seems to me that, having formed her conclusion that Ms I had been sexually abused by her brother (the father), Dr K then attempted, during the start of her therapeutic process with Ms I, to explore the nature of Ms I’s presentation of traumatic abuse. She said Ms I was initially very reluctant to go into this.
When asked to explain how, given her description of Ms I’s reluctance, the “true” nature and extent of the abuse (as she described it) emerged some two years into the therapy, Dr K said that, as Ms I felt safe, “the memory started to come back”: she said that, as Ms I developed trust in her, the ‘abuse’ became more and more prominent: she described it as though a memory box which Ms I had shut started to force itself open. She said she had to ‘help’ Ms I articulate and that she did this by asking her questions like:
What do you mean? Did he hurt you? Did he touch you? Did he – was it – did it become – was there intercourse? Was it – did it become sexual? Was it sexual?
To use Dr K’s exact words again: “Anyway I had to – I had to prompt that.”
Dr K said it had been “confirmed” that Ms I had suffered sexual abuse because she (Dr K) was aware “very early on” that it was sexual in that Ms I “confirmed” that “it had started with kissing, touching and then intercourse”. When asked to explain her use of the word “confirmed”, Dr K said that Ms I found it very difficult to disclose and to disclose details: as a result, “in the beginning”, Dr K would ask a lot of closed questions (such as those detailed above) and Ms I would nod or cringe or nod with her eyes closed; she also said Ms I would tell her that she did not want to talk about it. She also said that, on occasion, Ms I would say, in response to her question, that the father had touched her.
It is in this context, then, that Dr K’s explanation that, during the therapeutic relationship, when she and Ms I started working on particular memories, “the depths of the memories obviously become more” must be assessed. It is also in this context that Dr K’s description of the process - as being that she (Dr K) “took her back there” or Ms I took herself back there and it got to the point where, according to Dr K, “the memory blocks…opened up”; Ms I started to experience “flashbacks”[27] of that time in greater detail and, when confronted with the “raw material” she had not processed at all, dissociated – must be considered. This was the time when, on Dr K’s evidence, they “really started to do the work”.
[27]used by Dr K to refer to the process by which a memory which is blocked out or compartmentalised is brought to the forefront; she used it to describe the reliving of a memory and reliving it, almost as if the recalled/relived event was happening now.
Dr K said the flashbacks Ms I experienced involved Ms I kind of reliving the experiences again and, in that process, more information was presented. This information was, it seems, the subject of Ms I’s subsequent written description of what she said had happened to her. As Dr K described it, the information detailed in the writings was not “with” Ms I, but had been put away and compartmentalised and revealed during her flashback experiences.
The written material was then provided to Dr K – because Ms I found it very difficult to put “it” into words – who gathered information by reading what Ms I had written[28] about what she said had happened to her as revealed during the flashbacks. The documents were later destroyed as part of the process.
[28]Dr K said that there was a lot of graphic detail disclosed in those letters and they were highly traumatic for her, as a therapist, to read and to recall.
It is within this context and against this background that Dr K was confident in expressing that, between the ages of seven and 12, Ms I had experienced very violent sexual abuse, which was meditated, happened anywhere, involved tying up with ropes, a lot of threats to the effect that Ms I enjoyed what was happening and, therefore, it was her fault.
Ms N
Ms N said that Ms I had told her in the first year of their relationship that she had been sexually abused by the father when she was between seven and 12 years old.[29]
[29] Affidavit of Ms N filed 25 November 2014, [1]
When cross-examined by Ms Carmody, Ms N said that Ms I said the father had fingered her and it proceeded to rape; Ms I told her this happened when the father was home from boarding school during holidays. She said Ms I did not go into any further details but told her that it proceeded to full sex over time. When asked to provide further detail about how Ms I had conveyed to her that it “proceeded to full sex over time” - given her definite evidence that Ms I was not good at “telling” words - she said she could not remember the exact words but that was her (Ms N’s) understanding of it.
Ms N said Ms I had told her she had been tied up. When asked to provide further detail, Ms N said she thought it was just Ms I’s hands, that Ms I had not really gone into detail with her and she could not say what happened to Ms I once her hands were tied.
Ms N also said that, when she and Ms I first started their relationship, Ms I thought she had dealt with what she said occurred in her childhood. However, she later became depressed and engaged in therapy.
Did the father admit to Ms I during a telephone conversation in March 2011 that he had sexually abused her when she was a child?
Ms I made three calls on 12 March 2011: the first to the father, the second to her mother (the paternal grandmother) and the last to the mother. The mother asserts that the father admitted to Ms I during the telephone call between them that he had sexually abused her when she was a child.
Unbeknownst to the father, Ms N and Dr K were present with Ms I[30] when she called him.
[30] in Asia.
Ms I said that, during the conversation, the father told her he remembered abusing her, thought and hoped she had forgotten, he had been bullied at school and he did not want her to tell the mother.
Ms I accepted, during cross-examination, that she did not tell the father the specifics or particulars of her allegations about his behaviour during the telephone call. She accepted that her phrase – which was something like “what you did when we were children” – was such that the father could have interpreted it as a reference to fighting with her.
Ms N said Ms I had asked the father if he remembered when he was at boarding school and whether he remembered what happened: all the abuse that happened when he was home from boarding school. She said Ms I did not use the phrase “sexual abuse” because she (Ms I) found it very difficult to say the words “sexual abuse” or “rape”. Whilst Ms N said she was “pretty sure” Ms I had used the term “abuse”, she also noted the conversation had occurred a while ago. She said that, whilst the father said he remembered what happened, he was not specific in replying. She said she thought he admitted “it” was a terrible thing and said he was getting bullied at school. She said he asked Ms I not to tell the mother, but she could not remember if he was asking that she not tell her about “it” or about “abuse”. Ms N later said the father begged Ms I not to tell the mother and cried and that Ms I also cried at the end of the conversation, or after she terminated it.
In her 12 November 2014 report, Dr K said the father admitted to “his abuse” of Ms I and told her that he was being abused himself at boarding school. However, when asked in cross-examination to recount how Ms I raised the issue of abuse with the father during the telephone call, Dr K outlined that Ms I said something along the lines of: “Do you remember what happened to us when I was a kid? Do you remember what you did to me?” and that it was more likely she asked: “Do you remember what you did to me? Do you remember how you hurt me?”
Dr K said the father said ‘yes’, he did remember and that bad things had been happening to him, he was also being abused and he was going through his own trauma.
Dr K initially could not recall whether the father said he was being sexually abused. She then said she thought he did not say this. She then appeared to recollect that the father said that he was being “hurt” at boarding school. Dr K confirmed that Ms I had not pursued further information from the father to clarify what he was referring to when he said he was also being abused.
Perhaps unsurprisingly given the matters already discussed above, it certainly appeared that Dr K formed her own impression that the father had said he had been sexually abused: that is, she appears to have drawn an inference and then a conclusion about what, in fact, the father was referring to in his comments during the telephone conversation in March 2011.
Dr K said the father told Ms I he had gone to see a counsellor and they had told him not to bring ‘it’ up with her. She said Ms I told him that the reason she was calling him, and everybody, was that she was concerned about his behaviour and that he would do something similar to his children: that was why she decided to call him, their mother and the mother all in the same period. Dr K said that, at this point, the father became distressed, did not want the ‘disclosure’ to go to anyone else and asked Ms I not to tell anyone else.
The father accepted that Ms I may have asked him if he remembered what he had done to her when they were children. He denied confirming he had sexually abused her. He denied telling her he had been sexually abused at boarding school or that he had received counselling for this. He also denied that he asked her not to tell the mother. He did not remember whether Ms I asked him why he never spoke to her about what happened in their childhood. He denied saying to Ms I that he hoped she had forgotten. He further denied that Ms I told him that she had not forgotten and lived with the memory every day. He accepted that, during the conversation, he may have said he had been bullied at school. He denied urging Ms I not to tell the mother and further denied crying when she said she would tell the mother. He did say, however, that he was upset that his sister would make such allegations to the mother.
I am not persuaded by the evidence given by each of those present during the telephone conversation that day (as briefly summarised above) that anything said by the father amounted to an admission he sexually abused Ms I when she was a child.
The March 2011 telephone call between Ms I and her mother
After speaking with the father by telephone on 12 March 2011, Ms I then called her mother. Ms N said Ms I asked her mother whether she remembered what had happened. She said Ms I said something like “you know...when [Mr Sealy] abused me”; she acknowledged, however, that Ms I’s statement was vague. Ms N could not remember whether either Ms I or her mother actually said what each of them were speaking about and what they meant. She was, however, clear in saying that Ms I would not have said the words “sexual abuse” during this telephone conversation – she may have said “abuse” or that the father did “stuff” to her.
Ms N said the paternal grandmother said she had not wanted to believe it because she had been abused as well. Ms N interpreted this as a reference to “sexual abuse.” She reported the paternal grandmother said she remembered the father had been bullied and that it was a difficult time for him.
Dr K said Ms I asked her mother if she knew what the father had done to her when she was a little girl and that he would come back from boarding school on holidays and hurt her and abuse her. Dr K said the paternal grandmother was ‘devastated’ to learn about this, was very upset and apologised to Ms I.
Ms I herself accepted that she had not specifically told her mother, when she was a child, that she had been sexually abused by the father. She agreed her mother had not acknowledged that the father acted in such a manner before she told her during the telephone conversation on 12 March 2011. It appeared from Ms I’s evidence during cross-examination that she had assumed that her mother had acknowledged, in a “round about way”, that the father had sexually abused her.
Given the disparity in the recounting of this conversation by Ms I, Dr K and Ms N – and the failure to call the maternal grandmother to give direct evidence of what she understood Ms I to refer to, what she had been referring to when she apologised to Ms I for the “hurt” and “abuse” and what she was referring to when she said she had been abused as well – I am not persuaded that there was, in fact, any acknowledgement by the paternal grandmother of her asserted knowledge about asserted sexual abuse during this conversation: rather, the accounts very much suggest that the parties to the conversation are unlikely to have been as one about what, in fact, was being spoken about.
I am not persuaded that the father has ever admitted – to Ms I or any other person – that he acted toward Ms I in the manner she alleges. I am not persuaded on the evidence before me that Ms I told her mother about the alleged abuse when she was a child. I am also not persuaded, on the evidence before me, that there has been any tacit acknowledgement by the paternal grandmother (who was not a witness in these proceedings) that she knew the father was sexually abusing Ms I when she was a child.
The 12 March 2011 telephone call between Ms I and the mother
The mother said[31] that, during the telephone call, Ms I told her:
a)she had been sexually assaulted and molested by the father for a significant period of time between 1987 and 1992 (when she was between the ages of seven and 12 years and he was between the ages of 10 and 15 years) and that he repeatedly sexually abused her by engaging in behaviour which ranged from inappropriate touching to rape; and
b)she had confronted the father about this for the first time ever on the telephone earlier that day and that he begged her (Ms I) not to tell her (the mother); and
c)she (Ms I) was concerned for the safety of the children if they spent unsupervised time with their father.
[31] Affidavit of the mother filed 16 October 2014 at [21] to [23].
The mother said that, during this conversation, Ms I asked what was going to happen with the children: the mother told her the father had not even made an effort, had disappeared, was out of contact with the children and was not worried about them.
The mother said during cross-examination that, during the initial conversation, Ms I told her that the father had molested her, “sexually molested” her and assaulted her and she “left it at that”. She said she thought about this information and came up with a number of questions, which included whether the father had raped Ms I. She said the conversation in which this occurred was shortly after the initial telephone conversation. That is, it appears the mother and Ms I had spoken a number of times after the initial conversation and that, during one of these conversations, when the mother asked Ms I if the father had raped her, Ms I said ‘yes’.
That is, contrary to the mother’s initial assertion (but perhaps a little more consistent with the evidence that Ms I had trouble “telling” and consistent with the therapeutic process in which she had engaged with Dr K) it appears much more likely than not that Ms I did not tell her during the 12 March 2011 telephone call that the father had raped her.
This tentative conclusion is somewhat clouded by Ms N’s evidence. She said Ms I used the word “abuse”; the mother sought to clarify what Ms I was telling her and asked what type of abuse she (Ms I) was speaking about. Ms N said Ms I confirmed it was sexual abuse – the mother then asked for more detail, including asking if it progressed to rape: Ms I agreed/confirmed that this was the case. Ms N reiterated that Ms I could not use the word “rape” but could respond in a “yes/no” fashion when asked particular questions. Ms N could not remember whether Ms I provided the mother with any further detail about what she said had happened on this occasion.
In contrast, Dr K said Ms I was clearer with the mother than she had been with the father. She said Ms I told the mother she had something to tell her that was going to be very difficult for her to hear and very difficult for her (Ms I) to say: she said it was about her brother and about what he had done to her when she was a little girl. Dr K said Ms I told the mother: “When I was little girl, you know, he – he sexually abused me.”
Given that this account directly contradicts the accounts given by both Ms N and the mother, I consider it much more likely than not that Ms I did not speak as directly to the mother as Dr K’s evidence suggests.
Dr K said the mother was shocked, became upset, wanted more detail and asked questions like “What happened? How old? What did it mean?” Dr K said Ms I said she could not disclose any more information at that point.
Whilst Ms M, the mother’s sister, was in the mother’s home at the time of this call, she did not overhear it. She said that, after the mother finished the telephone call, she was crying and told her the father had sexually abused Ms I when she was a child; this had occurred over a period of time and the father had raped Ms I.
Whatever the exact details of the conversation on that occasion, it is clearly established that either then or at some time soon after it, the mother was provided with information by Ms I (either directly or as a response to leading questions of a similar nature to those used by Dr K in ‘prompting’ Ms I during therapy) to the effect that she had been sexually abused by the father when she was a child.
What did the mother do after the conversation with Ms I?
The mother did not call the Police or the Department after Ms I’s telephone call. She explained her inaction on the basis that she “talked [herself] out of [the father] being a possible sexual offender to [the children]”. She also said that, as “there was nothing that had been disclosed”, the Police could not do anything.
Relevantly, when asked why she did not go to the Police to report she had been told by the children’s aunt that their father sexually abused her when she was a child and that she (the mother) believed he had been doing that to their children as well, she said: “because there’s no evidence to suggest that at that stage”.
That is, as at March 2011, the mother considered there was no evidence that any of the father’s behaviour toward the children during their relationship and in the period from separation until March 2011 suggested he had sexually abused the children nor did she conclude from the information provided to her by Ms I that he was a risk to the children.
The mother denied the suggestion she had not reported to the Police then because she did not really believe the father had sexually abused the girls at that time. She said she had told her boss – who was a Police officer – and he told her the Police would have told her there was insufficient evidence if she had gone to them. However, on Ms M’s account, whilst they (she, the mother and the maternal grandmother) did not go to the Police the evening of the March 2011 telephone call with Ms I because the mother was a mess, they (she, the mother, the maternal grandmother and the children) went to the Police the next morning to tell them about the father raping Ms I. Ms M said the Police spoke with the children after that and later told them that nothing about anything happening to the children had been disclosed during that conversation.
On 14 March 2011, the mother told her general practitioner she had received a phone call from Ms I who told her that the father sexually abused her for five years when she was a child and that this was the first time she (Ms I) had told anyone.[32] Given the evidence of Ms I and Dr K and Ms N, this is not the case. However, the mother clearly thought this was the situation from her recollection of her conversation with Ms I.
[32] Exhibit 1, Tab 6, page 39-40.
The mother also told her doctor she had not[33] had any real concerns about the father and the children but, in retrospect, there were ‘a couple of possible times.’ This is the consultation the notes of which record that the mother said she had spoken to B who denied any sexual interference by her father. As noted above, whilst this note is inconsistent with the mother’s evidence that she had not spoken with B after Ms I’s telephone call to her, it does establish that, when asked for the first time whether her father had been inappropriate toward her, B denied that he had harmed her.
[33] My emphasis.
However, by 18 March 2011, the mother had seemingly formed a view that the children were at risk of harm if they spent unsupervised time with their father because, on that day, she told her general practitioner she had “drawn a line”: that is, she was willing to compromise to the father having supervised visits (and no contact with her), otherwise she would expose the sexual abuse stuff, even if this meant jail.[34]
[34] Exhibit 1, Tab 6, page 39.
The children’s time with the father after the March 2011 telephone call
Despite this decision, the mother later agreed that the children spend unsupervised time with their father. It is clear she did so despite her family’s concern. It is also clear, from Ms M’s evidence, that members of the children’s extended maternal family had all agreed that they should ‘watch’ the children. By this, I take her to mean that the family members had decided it was necessary to scrutinise the children and their behaviour very carefully.
Ms M said the mother agreed to the children spending time with their father because the children wanted to spend time with him, she (the mother) did not want to stop them from seeing him and, as the time was to occur at a Contact Centre, the mother felt okay and that nothing untoward could happen.
It is undisputed, though, that after a relatively small number of supervised visits, the mother agreed to the children spending unsupervised time with their father.
When the mother was asked what she had done, after receiving Ms I’s call, to protect the children, she initially said she only permitted the father to have supervised time with the children. When challenged that this was not accurate, she explained she allowed unsupervised time after a short period only because she received legal advice from her previous solicitor that, if she stood in the way of the father having a relationship with the children, she would be ‘punished by the court’ and the children would be taken from her and ordered to live with the father.
When it was suggested to the mother that a parent who truly believed the other parent had sexually abused the children would not permit them to spend time with that parent unsupervised, the mother said that she permitted unsupervised time despite this making her feel sick. She also denied that it was not possible that a mother who truly believed she was sending her children to someone who had sexually abused them would allow the children to spend time with that person.
Ms M confirmed that the children’s time with the father changed to unsupervised time as a result of mutual agreement between the parents. In fact, when she challenged her sister about why she agreed to this, the mother said: “he is their father”.
As already noted, the children started to spend unsupervised time with their father in about November 2012. On 7 December 2012, the mother told her doctor about her concern that the father had allegedly taken D to the toilet during his time with the children and, reportedly, told B to wait outside despite her wanting to use the toilet also.[35] Despite whatever concerned her about this event – which does not, of itself, appear inherently concerning - the mother continued to send the children to spend unsupervised time with their father.
[35] Exhibit 1, Tab 6, page 19.
In fact, the records of the mother’s attendance upon her doctor between December 2012 and April 2013 suggest that there were relatively minimal issues between the mother and father in this period. The records also contain her reports that time between the children and the father was “smoother”.
The father’s failure to deny Ms I’s allegations
The mother’s evidence is that, when she confronted the father about Ms I’s allegations,[36] he was “was very smug about it, telling [her] that [she] did not know the whole story”.[37]
[36] Something he accepts she did.
[37] Affidavit of the mother filed 16 October 2014 at [24].
On 25 March 2011, the mother told her general practitioner that, during conversations with the father, he had “gloated” about the allegations of incest, saying: “you don’t know half of what I did, I did a lot more than that”. The doctor told the mother this was very concerning and the father should not have unsupervised contact with the children.
Ms M said she believed D was sexually abused by the father when she started to spend time with him after separation. It appears that she arrived at this conclusion because D started to not want to go to the toilet and wet her bed. When challenged, she accepted that such behaviour was “notorious” for children of D’s age.
When asked why she concluded that the father had sexually abused D, Ms M said this was because, in mid-2012, the child told her he had shown her his private parts at iPlay. Ms M said she told the mother about this and the mother went to speak to the Police at the Police station. Ms M initially said that this had apparently occurred during an occasion when the mother was present - because of her concerns about the father sexually abusing the children. She then appeared to say that the mother was not, in fact, there on that occasion, but had dropped the children off and had left.
When asked whether there was anything else that made her conclude that D had been sexually abused by her father, Ms M said “bedwetting”. When pressed, however, she then accepted that this was common in young children. She also appeared to connect D’s expressed fear of the dark to her (Ms M’s) “thought” that the father was sexually abusing D.
It seemed to me that Ms M confirmed that it was only the bedwetting, not wanting to go to bed and being scared of the dark that made her think the father might be sexually abusing D.
The maternal grandfather
The maternal grandfather said that, from what he had been told by his wife and the mother, he thought that B might have been sexually abused but could not say that definitely. He made it clear his view was reached on the basis of things that he had been told and not from his own observations.
Whilst he appeared to rely significantly on the change to B’s demeanour, he was prepared to concede that the change in her behaviour after her parents separated could have been the result of upset about that event rather than indicating she had been sexually abused.
The maternal grandfather also said that it was possible that D had been sexually abused. When asked why he had arrived at that conclusion, he said she was refusing to go to the toilet and was hanging on until it was too late. Whilst he accepted that it could simply have been an accident, he appeared to rely upon this behaviour as a “sign” she may have been sexually abused because she had not behaved like that before her parents separated. He also, though, accepted that this change and/or behaviour could have been a consequence of sadness at the separation of her parents.
Whilst the maternal grandfather said that the father was the only one he thought might be responsible for any sexual abuse of B, he appeared to rely for this conclusion on his opinion that the father gave most of his attention to the girls rather than to C. When pressed to explain how this meant that the father had sexually abused the girls, he could not really say.
The maternal grandfather said that he had not seen anything to suggest that the father had sexually abused D.
Mr L (the mother’s partner)
Mr L, the mother’s partner since approximately August 2014, had been present in Court and had heard all of the evidence given by other witnesses on all days other than that on which he gave evidence.[93] He said that, from what he had been told by the mother, he believed that the father had sexually abused B and D.
[93] He was not a witness in the proceedings at the time the trial commenced.
Until the event involving B he spoke of in his affidavit, he had not seen any behaviours by either child which he thought indicative of sexual abuse. In the circumstances of this case, and given his opportunity to hear the evidence and the nature of the information provided to him by the mother, his conclusion that B acted toward him in a sexual manner is understandable. He, too, it seems, has been so affected by the overall attitude and belief of the mother and members of her family that he has interpreted B’s request to him for “special time like she used to have with her father” as a reference to some sinister and/or sexual interaction with her father. He immediately presumed that “special time” meant sexual abuse. He said he interpreted B’s actions toward him and her statement as a sexual interaction.
He too, it seems, has been enjoined to conclude that, in whispering to B at the end of their time together, the father had said something to the child to make her upset. As was so often the position of Ms M, the maternal grandmother, the maternal grandfather and the mother, when pressed to explain why he had reached the belief that the father was deliberately upsetting B, he could only reply that he did not know why he (the father) would say something to try and make her upset.
At least he was able, when it was raised with him by Ms Carmody, to concede that it could simply have been that B was upset her father was leaving her at the end of their time together.
When asked to name the three main things that had convinced him the father had sexually abused the girls, Mr L said: his knowledge of Ms I’s allegations; similarities in the sexual relationship between the mother and the father and that which Ms I had spoken of (which seemingly included oral sex and the manner in which they engaged in intimate behaviour) and B’s behaviour.
When asked to particularise what about her behaviour led him to conclude that she had been sexually abused by her father, Mr L recounted that: he had seen her with her hands down her pants; her mood swung from happy to depressive/unhappy; without trigger, she asked for her father at sporadic times; and she asked for “special time like she used to have with her father”. When asked whether this could be a reflection of her missing her father, he said that it could be - but C did not ask.
Discussion about the mother’s view (and that of members of the extended maternal family) that the father sexually abused the girls
I have deliberately outlined the evidence of members of the maternal family in particular detail so as to demonstrate both the basis upon which they have reached the conclusions that the girls have been sexually abused (and that the father is the person responsible for this) and the process of reasoning each has followed in arriving at this conclusion.
In my view, a consideration of their evidence clearly establishes that their conclusions do not withstand the force of reasoned and logical analysis. Time and time again, the basis for their conclusions failed to withstand the challenge made to them by Ms Carmody. Time and time again, the matters and behaviours relied upon by them as indicating that the girls had been sexually abused, and by their father, were shown to be matters and behaviours commonly demonstrated by children in the circumstances in which these children found themselves. Common events such as bedwetting, upset and distress at the end of time with the father and significant changes in behaviour following parental separation have been relied upon to found conclusions that the father has sexually abused the girls. No consideration at all appears to have been given by them to even the possibility that, given the relative absence of the father from the children’s lives in the time since separation, some other person may have interacted with B in a manner which has resulted in the behaviours captured on Exhibit 2.
It is, I think, clearly established by the evidence of the members of the extended maternal family that much behaviour commonly seen in children of the girls’ ages at the relevant times have been interpreted as being sexual behaviours or indicators of exposure to adult sexual behaviours.
In this respect, it is, I think, particularly relevant to note Ms J’s evidence about the potential for this type of focus to reinforce in the children those very behaviours. In essence, Ms J said that, if the mother and members of the maternal family “pickup and pay selective attention to” certain behaviours demonstrated by the children, this could inadvertently and unintentionally reinforce that kind of behaviour to them.
Given the evidence of the mother and members of the extended maternal family about the reasoning they have employed to arrive at the conclusions that the father has sexually abused both of his daughters, it seems to me to be highly likely that this has occurred.
Likely effect of any changes in the children’s circumstances
When, in October 2014, Ms J asked B what her mother thought about her (B) seeing her father, B said “she wouldn’t like me to see him probably”. She was not sure as to why that was.[94]
[94]Family Report dated 7 November 2014, [59]; affidavit of Ms J filed 18 November 2014
In response to a similar question, C told Ms J that his mother would say/think “just stay away from him and don’t talk to him.”[95] However, D thought the mother would be happy about her seeing her father.[96]
[95]Family Report dated 7 November 2014, [72]; affidavit of Ms J filed 18 November 2014
[96]Family Report dated 7 November 2014, [79]; affidavit of Ms J filed 18 November 2014
It follows from the above that, if the children are permitted to spend time with their father, they will be placed in a situation of doing so with the knowledge that their mother does not want this to occur. I have no doubt that it is highly likely this may well subject them to stress.
Whilst I have significant reservations about the evidence given by Ms G about the impact on the children (in respect of both their behaviours and their emotional well-being) if they were permitted to spend time with their father, I certainly take into account that it is highly likely any such opportunity will be accompanied by an increase in the overall anxiety within their mother’s home. There may well be some regression at least and particularly initially, in respect of the children’s emotional and psychological well-being.
However, the opportunity to spend time with their father will also provide them with the opportunity to form their own views and assessment of him as a person: that is, they will be able to assess for themselves whether he is in fact the person who attempted to “steal” B in January 2011; they will have the opportunity to spend time with him and to develop a meaningful relationship with him – both of which their interactions with him as observed in particular by Ms J suggest they very much desire.
Likely effect on the mother of an order requiring the children to spend unsupervised time with their father
The mother told Ms J in October 2014 that she would be “devastated” if the Court ordered that the children have unsupervised time with the father. She might consider supervised time at a Contact Centre because she was not confident that Dr E believed the claims and, therefore, thought she would not be sufficiently vigilant if she was present.
In a similar fashion, the father told Ms J that he would be “devastated” if he was prevented from having any contact with the children.
The mother’s affidavit is silent to her own mental health although the Family Report reveals that she has been prescribed an anti-depressant for her anxiety, and has been since prior to separation.
I accept Dr H’s evidence to the effect that if orders are made for the children to spend unsupervised time with their father, the mother might well need assistance and support to deal with this. She has previously demonstrated the ability to access appropriate support.
I accept, as I have already outlined, that certain aspects of B’s behaviour have been abnormal. I also accept that the mother and, in my view, the father both have reason to be concerned about these aspects.
I am hopeful that the mother will find some support and reassurance in the decision I have reached and the analysis which underpins it, but I accept she may also need some help to come to terms with any order which would see the children spend time with their father.
I am not persuaded that the mother’s parenting capacity would be fundamentally compromised in response to an order for unsupervised time. It cannot be forgotten, in my view, that, even after the information provided by Ms I in March 2011, the mother permitted the children to spend unsupervised time with the father, at least in part because she wanted him to sign documents necessary for the property issues between the parties to be resolved.
During her cross-examination by Ms Carmody, Ms J expressed the view that her impression was that the mother had been very committed to the fact that the girls had been sexually abused by their father. In that sense, it seems she has been “fairly unshakeable” in her belief that the father has sexually abused B and D.
However, during the course of her October 2014 interview with Ms J, the mother said that, if she was confident he had not abused the girls, she would not restrict his time with the children.[97] She acknowledged that the evidence was “not clear”, said she did not want to jump to conclusions, but was concerned to put the children into a situation where they would be “ruined”.[98]
[97]Updated Family Report dated 7 November 2014; [21]; affidavit of Ms J filed 18 November 2014.
[98]Family Report dated 7 November 2014, [47]; affidavit of Ms J filed 18 November 2014
That the mother was able to acknowledge to Ms J that the evidence was “not clear” suggests to me that she retains the capacity to reflect upon the views she has previously expressed about the father’s behaviour toward the girls. I consider that, with assistance, support and the same commitment she has demonstrated to formulating the asserted view that the girls have been sexually abused by their father, there is nothing to suggest that she will be unable to come to terms with an order which provides the children with the opportunity to spend unsupervised time with their father.
The father’s partner
I acknowledge that the mother is concerned, as she expressed to Ms J in October 2014, that Dr E would not be sufficiently vigilant during any time she is present when the children are interacting with their father.[99] Her position is that, because Dr E is in a relationship with the father and supports him, she will not be an appropriate “supervisor” of the children’s interaction with their father.
[99]Family Report dated 7 November 2014, [24]; affidavit of Ms J filed 18 November 2014.
I accept that Dr E had read everything in relation to the Court proceedings and knows all that has been raised in the material before the Court. I accept that Dr E is aware of the father’s past mental health instability. I also accept her evidence to the effect that she has not been aware of any signs of instability in the time she has known him: that is, she has not observed him with either elevated mood or depressed mood. From her account, he has looked after himself and has attended upon a counsellor to stay well.
I accept Dr E’s evidence to the effect that, if she observed something inappropriate in the father’s interaction with the children, she would report this behaviour to the appropriate authorities. I accept her evidence to the effect that the children would be her priority.
Having arrived at these determinations, I accept Ms J’s opinion that Dr E is a suitable person to assist the father in any reintroduction to the children and that her presence would be a safeguard for both him and the children.
Parental responsibility
When making a parenting order, I am bound to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them (“the presumption”): s 61DA of the Act. The presumption is rendered inapplicable by the matters prescribed in s 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them: s 61DA(4) of the Act. If the presumption does not apply, “the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the best interests of [the children] being the paramount consideration – see s 60CA; s 65AA)”.[100]
[100] Cox & Pedrana (2013) 48 Fam LR 651, [19].
If the Court makes an order that the parties are to share parental responsibility for the children and the exercise of that parental responsibility involves making a decision about major long-term issues in relation to them, such order requires the decision to be made jointly by the parties.[101]
[101] S 65DAC(2) of the Act.
I am not satisfied that the evidence is such that the presumption is rendered inapplicable and I intend to proceed on the basis that it applies. However, there are a number of matters which have persuaded me that it is not in the children’s best interests for their parents to have equal shared parental responsibility for them.
For example:
a)the mother asked Ms J to arrange for the parties to have separate waiting areas and/or rooms for the October 2013 and October 2014 interviews so she did not have to come into contact with the father during the interview process; and
b)when each parent spoke with Ms J in October 2014, each reported that, save for an occasion on which the mother contacted the father to ask whether he was still committed to this litigation, they had not communicated; and
c)the mother’s ongoing attitude to the father can easily be seen in her interpretation of his response that he intended to ‘go through’ with Court: namely, that he was motivated to ruin her financially.[102]
[102]Family Report dated 7 November 2014, [40]; affidavit of Ms J filed 18 November 2014.
I accept Ms J’s assessment of this matter as one in which there has been an established pattern of the mother (as the primary parent) making decisions for the children.
I agree that the relationship between the parents is not such that an order for equal shared parental responsibility is “appropriate” or in the children’s best interests. I am not persuaded that improvement in parental communication is likely. I understood the tenor of Ms J’s evidence to be to the effect that it would require big changes in the interactions between the parents for there to be any prospect of an order for equal shared parental responsibility. She certainly could not envisage this working at the current time.
Given this, a requirement to make decisions about major long terms issues relating to the children is highly likely to be too much to expect of either or both of these people in all the circumstances of this case: after all, the mother has raised very serious allegations of abusive behaviour against the father and has been provided with information from his sister which has understandably caused her concern; for his part, the father has consistently denied acting abusively toward his children and denies the allegations made by his sister. All that has been said cannot be undone.
The children will remain living with their mother. She has historically been primarily responsible for making decisions about major long term issues relating to them. In these circumstances, it is in the children’s best interests that she be placed in a position, solely, to make decisions about their future long term issues.
The father has consistently maintained that he should have some input into those decisions relating to the major long terms issues for the children: for example, in October 2014, he told Ms J he had no knowledge about the children save for that gleaned from his reading of affidavits. He thought it disturbing that, despite being their father, he knows nothing about what is happening in their lives.[103]
[103]Family Report dated 7 November 2014, [44]; affidavit of Ms J filed 18 November 2014.
I consider it is in the children’s best interests that their father has an opportunity to express an opinion about decisions which need to be made about long term issues relevant to their care. For this reason, the order will require the mother to advise the father about a decision she intends to make, provide him with the opportunity to express an opinion and take his opinion into account. The decision, though, will be hers alone to make.
Children’s time with the father
Ms J’s evidence clearly establishes, in my view, that the children know their father and desire an ongoing relationship with him. I am persuaded that there is a benefit to them of affording to them such an opportunity.
Given my conclusion that the children will not be at an unacceptable risk of harm if they spend time with their father on an unsupervised basis, the manner in which this process should start needs, in my view, to reflect the significant lacuna in the children’s interaction with their father.
I consider that, given this lacuna in the children’s time with their father since May 2013, their re-introduction to him should be gradual and involve, initially at least, daytime time only. It should also occur, initially, in the presence of Dr E who, for reasons already expressed, I accept would act appropriately and protectively if the need arose.
The graduated process of increasing the children’s time with their father as provided for in the order made will permit the children to become reacquainted with the father; although I note that the observations in October 2013 and October 2014 suggest that, from the children’s perspective, this process may take less time than would otherwise be thought to result from their very limited interaction with him since about the end of 2010.
The graduated increase in the children’s time with their father will also provide the mother with the opportunity to come to terms with such orders and to seek whatever support she determines is necessary to assist her in this process. It will also enable her to start the process of addressing the likely destabilising effect on her parenting of such orders. It will also provide the mother with the opportunity, with the benefit of the conclusion of the proceedings, to commence a process of regaining confidence about the children’s time with their father.
Whilst Ms J recommended visits starting at the F Town Contact Centre[104] for a limited number of occasions to provide a gradual reintroduction and to provide an opportunity for the father to introduce Dr E to the children, I am not persuaded that this is necessary given my assessment of the children’s delight in their time with the father during the Family Report observations. I am also concerned that commencing time at a Contact Centre and then changing it after a ‘limited number of occasions’ will simply add further confusion for the children and may well be productive of further destabilisation. There is nothing, it seems to me, in the children’s observed interactions with their father during family report interview to suggest that they would not be able to tolerate spending, initially, four hours with him, in the presence of another adult and then progressively longer periods of time.
[104] and the father accepted this in his October 2014.
I am not persuaded that it is in the children’s best interests that their opportunity to spend time with the father should be limited to daytime time only. Whilst it may, in fact, be difficult for the mother to support the children in their transition to overnight time with their father, there is nothing in their observed interactions with him to suggest that they will find such transition challenging. Additionally, given the father’s relationship with Dr E, the mother should properly, in my view, find support in her likely presence in his household during such occasions.
Whilst I accept that the determination of the appropriate graduations for increasing the children’s time with their father must take into account the importance to the children of the mother as their primary parent and the importance of providing them with a stable arrangement into the future, these matters should not, in my view, result in what I consider to be the unnecessary limitation of the children’s time with the father to day time only. I arrive at this conclusion taking into account, also, Ms J’s evidence that orders which provided for only daytime time between the father and the children on an indefinite basis would not necessarily be sufficient to enable them to have a meaningful relationship with him in the long term.
I consider it in the children’s best interests that, over time, they be permitted the opportunity to spend time during holiday periods with their father. This will enable them to undertake activities and interactions which would not necessarily be possible during more limited periods of time together. Similarly, their best interests will be served by orders which permit both parents to obtain relevant information about them and their progression at school and during extra- curricular activities and which limit their parents from exposing them to insulting and/or denigratory comments.
I certify that the preceding four hundred and forty-three (443) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 30 June 2016.
Associate:
Date: 30 June 2016
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