Seaton and Fogarty
[2018] FamCA 837
•18 October 2018
FAMILY COURT OF AUSTRALIA
| SEATON & FOGARTY | [2018] FamCA 837 |
| FAMILY LAW – CHILDREN – Best Interests – Where the Court rejects the mother’s allegation that the child has been sexually abused by the father or that he presents an unacceptable risk of sexually abusing her – Where the Court finds that the mother poses an unacceptable risk of psychological harm to the child by the interrogation of her – Where the Court finds that this has resulted in a significant interruption in the Child’s relationship with her father – Where the Court is also concerned that the mother lacks sufficient parenting capacity to provide a safe home environment for the child – Where it is in the child’s best interests to have a change in residence and live with the father after a carefully managed transition – Where it is also in the child’s best interests to spend regular time with the mother after an initial no-contact period. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Baghti & Baghti [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 N and S and the Separate Representative (1996) FLC 92-655 SCVG & KLD (2014) FLC 93-582 |
| APPLICANT: | Ms Seaton |
| RESPONDENT: | Mr Fogarty |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Thompson |
| FILE NUMBER: | MLC | 674 | of | 2012 |
| DATE DELIVERED: | 18 October 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 17 - 21 September 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kanarev |
| SOLICITOR FOR THE APPLICANT: | Tyler Tipping And Woods |
| COUNSEL FOR THE RESPONDENT: | Ms Tulloch |
| SOLICITOR FOR THE RESPONDENT: | David Stagg Tonkin & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Thistleton (with Ms Wilkening-Le Brun on the first day) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Clark Family Lawyers |
Orders
Subject to paragraphs 3, 4, 6 and 7 herein Mr Fogarty (“the father”) have sole parental responsibility for major long term issues for the child X born … 2011 (“the child”).
Subject to paragraphs 3, 4, 6 and 7 herein the child live with the father.
Upon the rising of the Court today the child leave the building with Mr B Fogarty (“the paternal grandfather”), and remain in his care in accordance with this Order.
The father is restrained and an injunction hereby issues restraining him from approaching the child until there has been compliance with paragraph 6 herein (this Order does not prevent the father from spending time with the child for the purpose of complying with paragraph 6 herein).
The mother is restrained and an injunction hereby issues restraining her from removing the child from Child Dispute Services and the mother should leave the court precinct immediately upon the rising of the Court.
The father shall forthwith vacate the home currently occupied by him with the paternal grandfather and not return to the home until the child and the father have met separately and then together with one of the following experts:
(a) Ms C; or
(b) Dr D; or
(c) Ms E; or
(d) Ms F; or
such other expert as may be recommended by the independent children’s lawyer if none of the above are available, so that the child can have the Order and judgment explained to her; so that the father can gain insight in how best to approach the child and allay any ongoing concerns she may have about him; and so that the first two encounters between the father and the child can occur in the presence of the expert.
Notwithstanding the above paragraphs the father shall not return to live at the home with the child and the paternal grandfather for a period of not less than three weeks. In the event that the sessions with the expert have not occurred in that time then the father is to remain away from the home until they have.
The costs of the expert in relation to paragraph 6 herein be paid for by the father.
The mother be at liberty to attend upon the same expert retained by the father as referred to in paragraph 6 herein (at her cost) to gain insight in how best to approach the child when they next meet and for that purpose the mother is also at liberty to attend with her child, Y if agreed to by the expert. The sessions with the mother are not to occur before the sessions with the father and the child.
Commencing no earlier than 21 December 2018 the mother spend time with the child for up to five hours each alternate Saturday (or the maximum that a supervisor will agree to) to be supervised by a person agreed to in writing by the mother, father and paternal grandfather (and if no agreement can be reached at a Contact Centre closest to the father’s residence) and after no less than 12 supervised visits between the mother and the child, the mother spend unsupervised time with the child at all such times as may be agreed in writing between the mother and father and failing agreement each alternate Sunday from 9:00am to 5.00pm but not overnight.
For the purposes of paragraph 10 herein the mother be at liberty to bring her other children to the supervised visits if agreed to in writing beforehand by the supervisor.
Upon the cessation of the requirement for supervision, the changeover shall occur at a place and time agreed to in writing between the mother and father. Failing agreement the mother shall collect the child from the father’s residence at the commencement of time and the father shall collect the child from the mother’s residence at the conclusion of time.
The mother and father keep the other informed at all times of their residential address, mobile telephone number and email address.
The father engage in counselling with an appropriately qualified and experienced child psychologist (if possible, the expert retained pursuant to paragraph 6 herein) to assist him to further develop insight into and respond to the child’s transition from her mother’s care; to improve his parenting skills and to assist the child in her future developmental needs and to continue to attend upon that expert for so long as recommended by that person.
The independent children’s lawyer is requested to provide a copy of this Order and the reasons for judgment to the Department of Health and Human Services and is thereafter discharged.
Notation
A. The Court was impressed with the paternal grandfather, Mr B Fogarty’s commitment to his granddaughter, the child and the respectful way in which he referred to the mother during the proceedings. It is to be hoped that he will engage in counselling with the father to better understand the child’s developmental needs and the challenges that she will face in the transition from her mother’s care to her father’s care.
B.The father and paternal grandfather are encouraged to take into account the perceptions of the family report writer, Ms G, into what she interpreted as aggression on their part and to seek professional advice to gain insight into how others may perceive their conduct and how to change their behaviour to minimise such perceptions.
C.It is intended by this Order that the father and child will be reunited after each of them have met on one occasion with the expert retained pursuant to paragraph 6 herein and that the expert facilitate two sessions with the father and child to assist the child in transitioning to the father’s household.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Seaton & Fogarty has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 674 of 2012
| Ms Seaton |
Applicant
And
| Mr Fogarty |
Respondent
REASONS FOR JUDGMENT
Ms Seaton and Mr Fogarty are the parents of the child who is 7 years of age. The child X lives with her mother and has not spent time with her father since May 2017.
Ms Seaton contends that the child has been sexually abused by Mr Fogarty. The allegations are denied by Mr Fogarty. While the determination of that issue is central to the decision about where the child should live and whether or not she should spend time with her other parent, there are numerous other risks to the child with whomever she lives. All identified risks will be discussed and assessed to determine the magnitude of such risks and how they ultimately impact on the determination of where the child should live.
As to the central allegation made by the mother against the father i.e. sexual abuse of the child, for the reasons which follow I reject the mother’s allegation that the child has been sexually abused by the father or that he presents an unacceptable risk of sexually abusing her.
Like so many cases that come before this Court the options of what parenting order to make are less than optimal. Thankfully, the child has a paternal grandfather who is very much interested in her welfare and, given his ongoing support for the father, I propose to order that the child live with the father. The father has demonstrated a commitment to improve his parenting capacity and the order I propose to make will require him to seek further assistance.
issues
The issues identified as significant in this case are as follows:
a)Has the father sexually abused the child?
b)If the evidence does not permit a positive finding of sexual abuse does the father nevertheless pose an unacceptable risk of sexual abuse?
c)Does the father have the capacity to appropriately and safely parent the child given his admitted past misuse of cannabis and alcohol or for any other reason?
d)Does the mother pose an unacceptable risk of psychological harm to the child by exposing her to interrogation about sexual abuse allegations or by causing her to falsely believe that she has been sexually abused by the father?
e)Does the mother have the capacity to appropriately and safely parent the child given her alleged past misuse of cannabis and OxyContin; given that two of her other children have been sexually abused and given her alleged chaotic lifestyle?
proposals of each party
Ms Seaton proposes that she should have sole parental responsibility for the child and that the child should continue to live with her and spend supervised time with Mr Fogarty on four occasions each year.[1]
[1] The precise form of order including alternative orders are set out as part of exhibit 12.
Mr Fogarty proposes that he should have sole parental responsibility for the child and that after three months the child spend supervised time with Ms Seaton for a period and thereafter each alternate weekend and half school holidays. The submissions did not make it clear how long supervised time should occur but I have assumed the three month period (as proposed by the independent children’s lawyer) is adopted by the father.
Counsel for the independent children’s lawyer (regrettably, Victorian Legal Aid does not fund the attendance of the independent children’s lawyer during the trial) proposes that the child should live with Mr Fogarty and after three months (but prior to Christmas) spend supervised time with the mother for a period of three months with the assistance of a private practitioner such as Ms E or Ms F who were recommended as appropriately qualified and experienced by the family report writer. No submissions were made about parental responsibility.
Legal principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper,[2] but such consideration will focus in particular on matters raised as significant issues by the parties and of course the Court.[3]
[2] See Family Law Act 1975 (Cth) s 65D.
[3] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637.
The Court is not required to make findings of fact on every factual dispute raised by the parties.[4]
[4]Baghti & Baghti [2015] FamCAFC 71.
The objects and principles of Part VII of the Act are set out in s 60B(1) and (2) and those sections make clear that the Court is concerned with children’s rights to be, among other things, cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child etc. (s 60CC). In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in what is sometimes referred to as the ‘legislative pathway’ I have considered all sections as required when making my determination.[5]
[5]Banks & Banks (2015) FLC 93-637.
In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the ‘inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’ and proof to the reasonable satisfaction of the court ‘should not be produced by inexact proofs, indefinite testimony or indirect inferences’.[6] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[7]
[6] See M & M (1988) 166 CLR 69 (“M & M”) citing Briginshaw v. Briginshaw (1938) 60 CLR 336, 362 (Dixon J) and Evidence Act 1995 (Cth) s 140.
[7] See M & M (supra) and see also N and S and the Separate Representative (1996) FLC 92-655.
The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.”[8]
[8] See ‘Unacceptable risk – A return to basics’ by the Hon. John Fogarty AM quoted with approval in Johnson & Page (2007) FLC 93-344, [68].
background
Ms Seaton is 37 years of age and unemployed. The mother contends that she receives social security payments of $1,700 per fortnight and child support of $984 per month.
In her early twenties Ms Seaton admits that she was a heroin addict and prostitute. She has criminal convictions in relation to those activities. With financial assistance from a former client, Mr H, now in his late sixties, Ms Seaton underwent a detox program. She and Mr H have three children together, namely, Y born in 2003 and now aged 15, Z born in 2005 and now aged 12 and W born in 2008 and now aged 10. It is unclear how often Mr H saw his children in the past but the mother contends he now spends time with them monthly. He apparently lives in a caravan park and when he did see his children in the past he was generally not able to accommodate them all at once. The mother contends that he pays child support of $800 per month.
Ms Seaton and Mr Fogarty had a brief relationship from about 2010 to about January 2012. Together, they had the child X who was born in 2011. Mr Fogarty currently pays $184 per month in child support.
Ms Seaton has a fifth child, namely, V born in 2015 and now aged 3 years and 10 months. V’s father, Mr J, and the mother had a brief relationship but separated a number of times before finally separating in or about August 2015 when Ms Seaton moved to country Victoria. Ms Seaton contends that Mr J was violent and abused alcohol. He has not spent any time with V since 2015 and pays no child support.
Ms Seaton lives with the child and the child’s four half siblings in a house in Suburb K, a Melbourne suburb about 62 kilometres south east of the Melbourne central business district (“CBD”). They moved to this house in July 2018 from L Town, a township 152 kilometres south east of the CBD. Prior to that the mother lived in Suburb M, a suburb of Melbourne about 25 kilometres north east of the CBD and about 15 kilometres south of Suburb N (where the father lives).
Mr Fogarty is 49 years of age and employed full time (currently six days a week) as a labourer. He lives with his father at Suburb N which is a Melbourne suburb situated about 47 kilometres north east of the CBD and about 86 kilometres from Suburb K (and 175 kilometres from L Town).
The child has been primarily living with her mother since 31 March 2017 and has not spent time with the father since 14 May 2017.
Prior to commencing to live with the mother, the child lived with the father and paternal grandfather from at least early 2015. The mother concedes that the child lived with the father from January 2015 after Y was sexually abused by a former neighbour of the mother’s. The mother contends that the arrangement which saw the child move to live with the father was supposed to be temporary. The parties are in dispute about the child’s care arrangements prior to that time.
The paternal grandfather, Mr B Fogarty, maintained a diary from November 2012 setting out the number of nights the child stayed with him and the father during that time. I accept that his diary is an accurate record (indeed he was not challenged about its accuracy) and it establishes that for the period 30 November 2012 to 13 May 2017 the child lived with the father and paternal grandfather for 1,306 nights out of a total of 1,626 nights. The diary is exhibit 11 in the proceedings. I note in the context of this finding that the child spoke to the family report writer in July 2016 of living with her father “for a long time”. Y also said during a police interview in June 2017 that the child had lived with the father for three years before living with her mother from March 2017. The comments by the children lend some weight to my finding that the child primarily lived with her father and paternal grandfather up until March 2017. Nevertheless, the child spent considerable time with the mother and her sisters up until January 2015.
The mother and father separated on 28 January 2012. On 30 January 2012 the police applied for an intervention order on behalf of the mother against the father based on an allegation that the father had pushed the mother through the house and front door and as a result the mother fell down three steps outside the front of the home. The mother suffered a grazed knee. The father provides a different account of the incident alleging that the mother was hysterical and attacked him. He says that she could not balance herself and was assisted down the stairs outside the house. The police attended but he was not charged with any offence. The father contends that the application for an intervention order was unsuccessful. As no such order is in evidence I accept the father’s contention that there was no order made.
After the mother and father separated, the mother lived for a time in a motel while the child continued to live with the father.
It seems that during this time the mother left Y, Z and W with a male neighbour, Mr O. Mr O was then in his mid-sixties. The three little girls remained with him overnight on 27 March 2014. I reject the mother’s evidence that she was present. Her account of this day gave me the clear impression she was making up a story. The arrangement came to the attention of the authorities when Y took one of her sisters to the local medical centre for attention after she had caught her hand in a door. Staff at the centre arranged for the children to be taken to school. Attempts to contact the mother were unsuccessful but assistance was offered to the mother to identify appropriate care arrangements for the children.
The mother at some point obtained accommodation for herself and the children in Suburb M.
In August 2012 a parenting order was made by consent providing for the child to live with the mother and spend time with the father. As noted above the parents have different versions of the extent to which this order was adhered to and I have already found that it is more likely than not that despite the August 2012 order the child spent more time with her father than her mother up until March 2017.
The child attended the Suburb N Early Learning Centre three days each week from early 2015 until the end of 2016. A report from that centre is before me as part of exhibit 10. It is noted that the child was usually dropped off by her paternal grandfather and collected by the father. She is described as a cheerful and confident child who interacts well with peers and adults. The child was noted to be able to manage her physical needs and wellbeing independently e.g. using the toilet, having her lunch, putting on her hat and sunscreen. The child was not afraid to speak up if she perceived centre rules were not being adhered to. The child is described as having extremely skilled and coordinated gross motor skills and showing a strong interest and advanced ability in all physical pursuits. In a letter co-signed by Ms P, kindergarten teacher, and Ms Q, early childhood educator, they state that they have been working very closely with the father since the child commenced at the centre in April 2015. They describe the father as a “caring, loving and nurturing father and his love for the child is undeniable.”
The child commenced prep at Suburb N before moving to live with her mother at L Town where she attended L Town Central Primary School until the mother moved to Suburb K in July 2018 and the child now attends Suburb K Primary School. The mother’s move to L Town in August 2015 was undertaken without consultation with the father and had the consequence that when the child spent time with the mother she was required to travel a number of hours at the commencement and conclusion of the weekends. This requirement for extensive travel continued after the child moved to live with the mother in March 2017 until her last visit with the father on the weekend ending 14 May 2017.
According to the mother, in January 2015 Y was sexually abused in a local park. (I note the report from the Department of Health & Human Services in exhibit 2 states that Y was sexually assaulted on 31 May 2015) The man responsible was a 56 year old neighbour of the mother and he was prosecuted and convicted of digital rape. Z and W were also in the park at the time of the assault and W also came into contact with the man, apparently sitting on his knee before he assaulted Y. Z and W followed the man into the bushes with Y and tried to stop the assault. The incident stopped only when an adult female entered the park. The mother gave a rather elaborate account of the circumstances leading up to the children being in the park alone. She sought to explain her failure to supervise her children by, in part, blaming Y for ignoring her instruction to wait. I reject her account of what occurred. Her story seemed improbable as she spoke about having just finished the vacuuming and waiting for V’s bottle to heat up but then referred to Mr J being present and shifted some of the responsibility to him. I had the clear impression that she was making up a story. While such an incident could randomly occur to any child even with the best parenting, the totality of the evidence on this and other events persuades me that this was one of a number of occasions where the mother placed her children at risk or recklessly disregarded her parenting responsibilities.
As a consequence of that assault, Y and Z were subjected to police interview.
More harm was to come. At the end of 2015 Z was left by the mother overnight with a man, Mr R. Z was allegedly sexually abused by him. I say allegedly because while Mr R has been charged with offences he apparently denies the allegations. The mother contends that she did not become aware of the incident until mid-2016 when Z told her she was molested by Mr R while sharing his bed. The mother contends that Mr R was a family friend whom she had known for about twelve months and trusted. He is married and has children. Z has been interviewed about the sexual assault and may have to give evidence if the matter proceeds to trial next month. The mother contends that Mr R has taken out an intervention order against her. The circumstances of that order are unclear.
The mother repeatedly sought to shift responsibility for this incident to Z and Y saying variously that Y had told her others would be staying at Mr R’s home and that Z had pleaded with her to be able to stay. The mother nevertheless demonstrated remorse for her decision to leave Z with Mr R overnight.
After the mother’s move to L Town, she also befriended a local taxi driver, Mr S. He became a regular visitor to her home in L Town and she has visited him at his home on at least one occasion. Mr S accompanied the mother and the children to a local pub to celebrate W’s birthday in 2017. Mr S provided small gifts to the children from time to time. He also drove the mother long distances when she was spending time with the child for weekends and the changeover venue was the Suburb T Railway Station. I reject her evidence that she always paid him for his services because he was clearly more than just a taxi driver and the mother would not have had sufficient funds to pay him for such services.
The Department of Health and Human Service records (part of exhibit 10) record a complaint made against the mother that she left her children with Mr S (the record does not name him but the mother accepts he was the person implicated). I reject the mother’s denials. She admitted leaving them in the taxi with him on at least one occasion. Again I was left with the very clear impression that the mother was making up a story about the circumstances of her leaving the children with him on that occasion. Given the other evidence already referred to I consider it more likely than not that the mother would have left the children with Mr S unsupervised as she had done so in the past with other men. The mother contends that the complaint against her leaving the children alone with Mr S was malicious and made by Mr R. It is unclear to me why Mr R would make such a complaint against Mr S.
The mother has also befriended another man, Mr U, who was the only witness in her case. He is the father of NN who was involved in the audio recording of the child in 2017 (this incident is discussed in detail below). Mr U was very defensive, if not aggressive, during his evidence. He conceded that he had booked and paid for the mother’s accommodation during the trial and was in fact sharing a room with her. He has taken a special interest in the mother and her children. He intervened on the mother’s behalf with the school when there was an issue. He is a regular visitor at the mother’s home without his wife. He sometimes collects the mother’s children from school. The L Town Primary School records indicate some concerns about Mr U’s interest in single mothers and his alleged aggression. Mr U denies that he has assisted other single mothers and denies being aggressive although he conceded that he can recall he was “stern” with someone from the school when he felt his daughter had been unfairly punished. Whether or not there is any basis for the concerns raised by the school, Mr U did not impress as a witness of credit e.g. I do not believe his evidence about when the recording of the child was made by Y and his daughter NN and the circumstances surrounding it. He was also initially deceptive about when he first had contact with the mother after she left L Town.
Prior to the time that the child commenced to live with the mother in March 2017 and after the mother moved to L Town in August 2015, the child spent time with her mother on weekends. Some of those weekends were spent at the home of a Mr AA, a man now in his late seventies and described by the mother as a close friend of Mr H (the father of Y, Z and W). The mother and Y (in a police interview) refer to him as ‘uncle’ but he is no relation to them. He lives alone in a large home and all of the children have spent time at his home during the weekends the child was with her mother. The mother no longer sees Mr AA although she admitted that he attended the court during the trial and had a conversation with her. (I note that a notation to an order made on 21 February 2012 provides – the mother agrees with the denial of the necessity that she will not permit the child to come into contact with [Mr AA]). I am unsure whether he is one and the same as the AA with whom the mother stayed after she moved to L Town.
In May 2017 the mother alleged that the father had sexually abused the child. The child had spent the weekend of 12, 13 and 14 May 2017 with the father and paternal grandfather and was also observed on that weekend and on other occasions by Ms BB, the paternal grandfather’s partner (although they do not live together). Ms BB describes the relationship between the father and the child as “wonderful” and describes the child as a “happy child.” the child attended a barbeque with the father and members of his family on 14 May 2017. The child’s paternal great aunt, Ms CC, also saw the child that day and says that the child communicated “openly and freely” with her about her school, her mother, brother and sisters. Ms CC did not notice anything unusual about the child on this day. She opines that the child “idolises her father” and that the child also has a very close relationship with the paternal grandfather. She says that the entire family miss the child dearly.
The child was next due to spend a weekend with the father commencing on 26 May 2017. The father attended at the L Town train station to collect the child. The mother had not informed the father that the child would not be attending. He telephoned the mother repeatedly to find out why the child was not at the station. The mother did not answer his calls. The father had spoken to the mother and the child on 19 May 2017 and he contends that the child was expecting to spend the weekend with him commencing 26 May. While at the train station the father saw Y at approximately 5.15pm. Y informed the father that the child would not be going with him that weekend and that the police were involved. The father again telephoned the mother later that evening and was told by her that the child had a urinary tract infection. The mother admits this was a lie. On the following day the father contends that the mother said to him during a telephone call that he had interfered with the child and “you will not see the child again”.
Although the mother was not present she provides a different account of the encounter between the father and Y on 26 May 2017. She says that the father was “extremely aggressive” to Y “standing over her and screaming in her face”. Y provided a version of the encounter to police when she was interviewed on 6 June 2017 upon which the mother’s evidence is clearly based. On the basis of this alleged conduct the mother applied for an intervention order against the father on 9 June 2017. An interim order was made naming the mother and all five children as protected persons and the order had the effect of suspending the child’s time with the father. On 17 July 2017 a final intervention order was made by consent without admission. It had the effect of reinstating the Order permitting the child to spend time with the father but time did not recommence. The father’s time with the child was formally suspended by Order on 15 August 2017.
On his own admission the father was an habitual cannabis user for fifteen years from about age 19. Also on his own admission and despite criminal convictions for possession and cultivation of cannabis he continued to smoke cannabis until at least 2015. He also admits to selling cannabis and using the mother as his agent for that purpose when they were in a relationship. He has been convicted for possession of cannabis and contravening a bail condition in August 2015 and served a community corrections order which expired in August 2016.
The father also has a problem with alcohol misuse although the details of that are somewhat unclear. What I do know is that he was imprisoned for three months in March 2012 in relation to drink driving offences and he currently has an interlock device fitted to his motor vehicle which prevents him driving without first registering a sample of his breath. Apparently it is a requirement that he drive at least monthly but the father has not driven for many months because his mechanic has had ongoing health problems. No corroboration was provided for that evidence and it seems doubtful. The interlock device was required to be attached to the father’s motor vehicle until 2020 but that has now been extended to 2023. In a report from Mr DD from EE Pty Ltd dated 18 February 2016 he assessed the father as showing no signs of problematic alcohol use and no further recommendations for follow up treatment were made. The father presented urine samples for analysis on 5 June, 26 July and 31 August 2018. No drugs were detected.
I turn now to consider the particular issues raised as significant in the proceedings.
Has the father sexually abused the child?
The mother submits that the evidence supports a positive finding that the father has sexually abused the child. Given the state of the evidence I had some difficulty understanding the basis upon which such a submission could be made. When queried about the submission the following exchange occurred between myself and counsel for the mother:
HH: What findings do you urge upon me?
Counsel: It’s a package
HH: I don’t know what that means. I want to know specifically what findings you urge upon me.
Counsel: In the first instance, and that is why I said it was a package, the issues of, we will call it ‘allegations of sexual abuse’, has to be also bundled, that is why I said it is package, with, and I haven’t got to this part yet, about how [Mr Fogarty] has minimised his use of illicit substances, marijuana...
HH: I’m sorry but I would like you to deal with my question to you. In relation to sexual abuse, which is the matter about which you are addressing me, what specific findings do you say I can and should make on the evidence before me, specifically?
Counsel: Specifically, you could make that the jumbled distortions that the child has made have a kernel of truth and thereby they are in fact a grounds for that there is significant risk.
[my emphasis]
Ultimately counsel for the mother submits that I should make the following specific findings:
a)That the father asked the child to touch his penis;
b)That the father licked the child on her tongue;
c)That the father put a rock like object into the child’s rectum;
d)That the father taught the child the ‘foot game’: submitted to be where you use your foot and rub on the genital area of the person you are facing; and
e)That the ‘foot game’ observed by the mother was a demonstration by the child acting out the sexual abuse that she had experienced at the hands of the father.
The Notice of Risk filed by the mother on 4 August 2017 purports to provide particulars of alleged abuse of the child in the following terms:
1) In May 2017, the child … made disclosures of sexual abuse by the father … from approximately 2015 until March 2017. …
2) …
[emphasis added]
I observe that the Notice does not in fact provide any particulars and it remains unclear the basis upon which the date range was included in the Notice of Risk.
The evidence relevant to the sexual abuse allegations comprises a recording made by the child’s oldest sister, Y, and Y’s friend, NN; the mother’s observations of the ‘foot game’; a visual and audio recorded evidence (“VARE”) police interview with the child on 1 June 2017 and a further VARE on 27 March 2018; a VARE police interview with Y on 6 June 2017; notes from a VARE interview with NN on 24 June 2017; the mother’s observations of the child experiencing nightmares, grinding her teeth and suffering some irritation to her vulvar area on one occasion on or about 12 May 2017 and an interview between Child Protection and the child on 5 September 2017 at her school.
The mother’s affidavit filed 4 August 2017 says that upon the child commencing to live with her and the child’s four siblings at the end of March 2017 she noticed the following behaviours in the child:
a)She was a little bit quieter than usual;
b)She was behaving strangely, “wetting herself, and behaving sometimes like a cat hissing and clawing with her hands and acting out when she was upset”;
c)Talking in her sleep more than she usually did; and
d)On or about 12 May 2017 the child “started to complain about her ‘rude parts’ being sore, and not wanting to urinate “because that way it didn’t hurt so much.” The mother inspected the child and noticed her genitals were extremely red and irritated.
In relation to the mother’s observations of redness on the child’s genitals, the mother did not take the child to the doctor but did telephone the father and ask him if he knew why the child might have an irritation. The father told her that he had a prescription cream that he would apply whenever the child complained about being sore there. The father agrees that a conversation along those lines took place. He says he told the mother the name of the cream and that it was applied whenever she had a rash in that area. There could be any number of reasons for the child presenting with a rash in her vulvar region e.g. reaction to soap. In the absence of medical evidence I am unable to attribute any significance to the occasional redness observed and indeed only observed by the mother on one occasion.
Ms G, family report writer, opined that the significant change in the child’s living arrangements in March 2017 may account for her nightmares. I accept her opinion. Both parents contend that the child has a habit of grinding her teeth during sleep. I am not persuaded that the observations described by the mother are indicative of sexual abuse. The child had left a home where she was an only child to live with her four siblings. She had to change schools and spoke about missing her school when interviewed by the family report writer. The changes to which the child was exposed were significant and may well account for the behaviours observed by the mother.
The mother says that on the afternoon of Tuesday, 16 May 2017 she was told by Mr U that the child had made disclosures to Y and NN that the father had been sexually abusing her ever since she had been living with him in or about 2015. The mother says that she was shocked by this revelation. In her oral evidence the mother says that she then listened to the recording made by the girls but did not listen to the entire tape recording until it was played in court. The mother says that later on the night of 16 May 2017 she spoke to Y who told her that she (Y), NN and the child had been watching YouTube videos when the child said to them that “her dad did ‘that’ stuff to her as well, being kissing that she saw on the video clips.” The mother then sets out in her affidavit selective parts of the recording which is exhibit 8 in the proceedings. Significantly, the leading questions and coercion are not included.
The mother and Mr U initially gave evidence that the recording of the child made by Y and NN occurred on 13 May 2017 and occurred without their prior knowledge. Their evidence changed when it became clear that the child was not with the mother on 13 May 2017. The mother and Mr U each provided a new elaborate account of the recording having been made on 14 May 2017 and of when they first became aware of it. Their accounts were unconvincing.
I find that that recording was not made on either 13 or 14 May 2017 because, as accepted by the mother, the child was not with her on 13 May and in the recording there is repeated mention of something allegedly said by the child “yesterday” which indicates it could not have been recorded on 14 May either. It follows that I do not accept the elaborate accounts given by the mother and Mr U as to what each of them did and/or said on 14 May 2017 or the day after when Mr U is alleged to have told the mother for the first time that the child had been sexually abused by the father.
I find that the recording was made on an unknown date but prior to 1 June 2017 (this being the day of the child’s VARE with police and when the USB was provided to police) on NN’s iPhone and uploaded first to her computer and then to a USB. Only the USB is in evidence.
The recording is of no forensic value in determining whether or not the child has been sexually abused by the father because:
a)It is clear that the USB does not include the entire conversation between the child, Y and/or NN on the day it was recorded;
b)It is also clear that there were other conversations that occurred prior to the day the recording occurred;
c)The questions asked of the child were leading in the extreme e.g. “Was it dad? Did he put his finger up in you?”
d)The “jumbled distortions” (as counsel for the mother referred to the things said by the child) are not a sufficient basis upon which to make a finding of sexual abuse;
e)The child was coerced, badgered and interrogated to the point that at times the child can be heard whimpering and pleading to be let out of the room so she can play;
f)The child, Y, has herself been a victim of sexual abuse (in January 2015) and interviewed by police which may have influenced both the questions she asked the child and the interpretation she gave to things said by the child.
As noted, the mother says that she was told about the recording by Mr U on the day after Mother’s Day 2017 i.e. on 15 May 2017 (although in her affidavit she says it was 16 May 2017) and that she then had a conversation with the child. It is not clear to me when the mother was told about the recording. As she was present in the home at the time of the recording it may well be that she was aware of it being undertaken. The mother does not disclose the content of the conversation she had with the child in any detail. The mother contends that the child referred to the father as “the bad man” and that he would go to gaol. The mother says that the first time the child had referred to the bad man and gaol was “on the day of the recording” and has referred to him as the bad man since then. There is no mention on the USB of the bad man or gaol. I consider it more likely than not that the reference to the father being a bad man and going to gaol was something said to the child by the mother as the child told police during an interview on 1 June 2017 that her mother told her that the father was going to go to gaol.
On 1 June 2017 the child was interviewed by police in a VARE. The child tells the police officer that she has come to tell the police what her dad has done to her. The child’s demeanour throughout the interview is cheery but distracted. The police officer repeatedly has to bring her back to the purpose of the interview. At all times during that interview the child refers to the father as either ‘daddy’ or ‘dad’. The child says that her dad kissed her on the rude spot and points to between her legs. The child gives inconsistent accounts of whether or not she was clothed when this occurred e.g. at one point stating she had just come out of the shower and at another point stating that he undressed her. She then talked about him eating part of a banana and putting some of that in her rude spot and a necklace with a rock that broke off and it hurt when she went to the toilet. (In the recording made by Y and NN, the child talks about the father putting the banana skin in the wrong bin and having to go outside. She was laughing when recounting that story. She also talks about a piece of her necklace getting caught in her bottom and caused her to have “green poos” which she thought was very funny). The child tells the police officer that the mother had told her that the father was going to go to gaol. In response to a specific question the child says that she has seen her father’s penis once when she walked into the bathroom and he was singing. There was no suggestion by her that she touched his penis or that he asked her to touch it.
On 6 June 2017 Y was interviewed by police in a VARE. Interestingly Y refers to the child having lived with the father for about three years until “we got her back”. She very much identifies with the mother which is perhaps understandable given her age and the responsibility she no doubt has for the care of her younger siblings from time to time. Y said that the child first told her something when they were staying at an uncle’s place, who was not really an uncle. It became apparent that Y was referring to a Mr AA (referred to above) who is a friend of Mr H. Mr AA is in his late seventies and the mother and children often stayed at his home in Suburb FF when the child spent weekends with them. Y says that the child said - “my dad does stuff and it is a secret” and when asked what stuff she says the child says it was “rude stuff”. It is not clear when this was allegedly said by the child but Y did not tell the mother. I am not at all confident that the child said anything of the sort. If she had I cannot imagine that Y would not have told the mother about it.
In a letter from the mother’s solicitor to the father’s solicitor dated 9 June 2017 it is alleged:
We are instructed that, as soon as the child came home to our client following the final hearing of this matter, she displayed disturbing behaviours and was constantly wetting and soiling herself. Following a few days at home, she made disclosures of an horrific nature to her mother and to her sisters. Our client immediately reported the disclosures at [L Town] Police Station on or about 18 May 2017. ….
[emphasis added]
The mother provides no evidence in these proceedings of the child soiling herself nor of having made disclosures to the mother of an horrific nature. Indeed the mother contends that the first she knew of the allegations of sexual abuse were after Mr U told her about the recording made by Y and NN and the mother does not particularise any conversation she had with the child other than the reference to the bad man. No explanation for her failure to address those matters is provided.
On 5 September 2017 the child was interviewed at her school by Child Protection officers. When she was asked about the father she said “he is gonna go to jail, he did rude stuff to me, …”. When asked what she meant by rude things the child responded “like playing in my rude spot or something” and “he did it to me and I noticed it was rude things.”
The investigating officer, Detective GG, advised Child Protection that the father would not be charged with any offences due to insufficient evidence. Concerns were raised about the questions asked by Y and NN during what is described as the original disclosure and that the questions appeared to be “leading the child down a path”. The assessment prepared by Child Protection noted that the mother had been assessed as responsible for harm to two of her other children, namely, Y and Z, as a result of them being sexually assaulted by unrelated males in the past.
It is noted in the documents forming part of exhibit 10 that the mother was very distressed about the father not being charged with offences relating to her allegations of sexual abuse against the child.
The mother says in her affidavit that on 17 January 2018 she observed the child and JJ (the four year daughter of Ms KK, whom the mother describes as her 25 year old step-daughter) in JJ’s bedroom. In her affidavit she says:
17. On or about 17 January 2018 I took the children over to my step-daughter’s house …
…
20. I went into [JJ’s] room, and I saw [the child] sitting on the floor while leaning against the door. [JJ] had her foot on [the child’s] private area and [the child] was doing the same to [JJ] with her foot.
21. I took the girls immediately out to the lounge room. I made sure [JJ] was okay, and told [Ms KK] what had happened.
22. I spoke with the child while [Ms KK] and her partner were in the room, and explained that it is not okay to touch other people on their private parts. I asked her what she was doing, and why.
23. [The child] replied that it was the ‘foot game’ and the ‘Bad Man’ (referring to the Respondent) had taught her how to play and they used to play when ‘Poppy was gone’.
[emphasis added]
When cross-examined about this incident the mother said it occurred on 27 January 2018 and that the date in her affidavit was an error. The mother gave the following oral evidence (not in italics):
…
Mother: So [the child] and [JJ] were in the bedroom.
Counsel: Which house please?Mother: At [Ms KK]’s house in [Suburb HH]. And I walked in and [the child] had her foot on [JJ’s] private parts and [JJ] had her foot on [the child’s] private parts. And [the child] was rubbing [JJ] with her foot.
Counsel: When you say rubbing, she was moving her foot up and down – I am putting words in your mouth again –up and down on [JJ’s] crutch?
Mother: Like that with her foot.
Counsel: A circular motion you are demonstrating
Mother: Yes
Counsel: What was [JJ] doing?
Mother: She was just sort of laying there.
Counsel: Did you say anything?Mother: Yes, I told them come out to the room - both to come out to the room. Then they were in the kitchen. I told [Ms KK] – I pulled her aside because she was in the lounge room and I explained to her what had happened. I apologised for what had happened.
HH:What did happen? What do you say I should infer from what you have just described to me?
Mother: Well, I see it that [the child] was actually acting out by what I had seen.
HH: Acting out what?
Mother: Like, sexually, by having her foot on [JJ’s] private parts.Counsel:So you went out and you apologised to [JJ?] I beg your pardon, apologised to [Ms KK]?
Mother:No, sorry. I took them out of the room and I, umm, yeah, I spoke to [the child] and [JJ] first and I said, you know, I didn’t go mad at [the child] but I said, you know, that is inappropriate, like that’s not right behaviour. What were you doing and I asked and they said they were just playing a game and I said that is not sort of, yeah, that is not the right thing to be doing, it is inappropriate. And then I called [Ms KK] over and she had then, I had told [Ms KK] what had happened, and she said it was ok and she just told [JJ] and [the child] not to go back in the room and we made sure that they were in our view so they weren’t allowed to go back in the room or anything like that. Umm, and yeah, I apologised to [Ms KK].
Counsel: What did you say to [Ms KK]?
Mother: I just, yeah, I apologised and I said sorry that, umm, [the child] had done that and yeah, she just said it is ok, it’s alright.
Counsel: Tell me, is [Ms KK] in a relationship, does she live with someone or is she by herself?
…
Counsel: Just taking you back to that incident, don’t you think you could have just said “Come on [the child], knock it off” or “just stop it” or just call the kids out. You made a song and dance out of it…
Mother: Because at the end of it there were disclosures that [the child] said so that is why it concerned me. After I told [the child], she then, I said “Why were you doing that anyway?”.
HH:I am troubled. [Counsel] has invited you to give your account of what happened, you gave your account of what happened, I thought, and now I am hearing something that you didn’t tell us about. So now you say that [the child] made what you have described as disclosures?
Mother: Yes
HH: On this day?
Mother: YesHH: Can you please tell us what the child said and what you said, as far as you can recall, precisely?
Mother: Ok. I said to [the child] “Why were you doing that anyway with [JJ]” she said “My daddy does it. It’s called the foot game”. And that was it.
Counsel:When that disclosure, as you say, was made, [the child] would have known that she was in trouble from the foot game, wouldn’t she?
Mother: No, she wasn’t actually - what do you mean?
Counsel: She would have known that she had done something wrong and you were making enquiries about it. She would have been able to tell that, wouldn’t she?
Mother: Yes, she would have been able to tell.
[emphasis added]
There are inconsistencies in the accounts of this incident given by the mother. They include:
a)There is no mention in the affidavit of the child rubbing JJ as described by the mother in her oral evidence; and
b)In her affidavit the mother says that the child implicated ‘the bad man’ in the foot game yet in her oral evidence she said the child had said ‘my daddy does it’.
I note that when the mother spoke with Ms II, a social worker, on 30 January 2018 she said only that the child had her foot on JJ’s private parts and that when she asked the child how she learnt the game the child said it was from the bad man.
The mother gave no explanation for the inconsistencies in her accounts.
The child was interviewed on 27 March 2018 by police. The interview was recorded and the DVD is in evidence. The interview took place over 43 minutes. The child confirms that her mother told her off for playing the ‘foot game’. The child is a reluctant participant in the interview. At times she yawns and says she has nothing to say. At other times she says she is sick and has a sore tummy and needs a break. She identifies the ‘foot game’ as “we put each other’s foot on the private parts” and explains that ‘private parts’ is “your rude spot”. She describes ‘rude spot’ as where you “wee or poo”. At another point she says she does not know what the ‘private part’ does. She says that the bad man taught her how to play the ‘rude game’ and that the bad man is “my dad”. She says this is the only thing her daddy has taught her and that they only played it once, “not long ago” when she had clothes on. The child denies that anything else has ever happened with her dad.
Overall I am not persuaded that a positive finding of sexual abuse of the child by the father is open on the evidence before me because:
a)The evidence is riddled with inconsistencies;
b)The influence of others including Y, NN and the mother on what was said by the child is likely to be significant;
c)the child has been subjected to leading and persistent questioning (which was most clearly demonstrated in the USB recording before this Court);
d)There are other explanations for the behaviours observed by the mother in the child e.g. she was reacting to substantial change in her living arrangements;
e)The mother informed Dr LL, psychologist, on 14 March 2018 that prior to May 2017 things had been going well for the child with the father and she had had no concerns about sexual abuse;
f)There is no medical evidence suggestive of injury by the alleged insertion of objects into the child’s rectum or vagina;
g)The child, Y, and the mother are likely to be hyper vigilant to any suggestion of sexual abuse given their personal experiences;
h)After investigation there were no charges brought against the father by police and Child Protection determined the allegations were unsubstantiated and that there was no risk to the child spending unsupervised time with the father;
i)Dr LL, psychologist, opines that the description given to him by the mother of the ‘foot game’ suggested nothing unusual;
j)The child was a confident articulate child according to her kindergarten teachers and not afraid to speak out if ‘rules’ had been broken. Accordingly, if the child was being abused by the father I consider it more likely than not that she would have told her teachers or her paternal grandfather;
k)As the High Court held in M v M[9]:
[9](1988) 166 CLR 69,76
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 CLR 336 at p. 362. There Dixon J. said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
79. In summary, the evidence as a whole does not support a positive finding of the matters set out in paragraph 53.
If the evidence does not permit a positive finding of sexual abuse does the father nevertheless pose an unacceptable risk of sexual abuse?
The fact that I have declined to make a positive finding of sexual abuse does not of course end the enquiry as I am nevertheless required[10] (given the statements made to police by the child) to consider whether or not the father poses an unacceptable risk of sexual abuse. Such enquiry requires an assessment of the magnitude of the risk and in particular whether or not the risk is unacceptable.
[10]Johnson & Page (2007) FLC 93-344
While the child has made statements to police which might indicate inappropriate sexual contact between the father and the child, the evidence is so unclear, inconsistent and contaminated by the interventions of others (e.g. Y, NN, the mother) that I am not persuaded that the risk (if there is one) can be assessed as unacceptable.
In coming to this view I have taken into account all of the evidence and conclusions identified above including the past good relationship between the child and the father, the deterioration in that relationship despite her not spending any time with the father and the leading questions put to the child that seemingly implicated the father. I have also had regard to the assessment by Child Protection that the allegation was unsubstantiated and their assessment that there is no risk to the child spending unsupervised time with the father. Finally, I note that a risk assessment was conducted of the father by Dr LL on 25 January 2018 pursuant to the Risk of Sexual Violence Protocol and in his opinion the risk of sexual violence from the father is rated as “Low”.
Does the father have the capacity to appropriately and safely parent the child given his admitted past misuse of cannabis and alcohol or for any other reason?
At 49 years of age the father has struggled at times to be a productive member of society. The father concedes he was an habitual cannabis user for most of his life from aged 19 to his mid 40’s. He smoked cannabis for about 15 years daily and cultivated and sold cannabis for a significant period. The father also admits to continuing to use cannabis in 2015 although significantly less frequently. The child was living with him at that time. He says he kept his use of cannabis from his father.
The father also has a history of a significant problem with alcohol abuse. He has lost his licence in the past and been imprisoned for failure to comply with a request to supply a random breath test. He is required to use an ‘interlocking’ system on his car for the next three years which indicates to me a fairly serious problem which I consider he minimises. He should not consume any alcohol in my view but I have no evidence about what he now describes as minimal consumption impacts on his life.
When assessed by Dr LL, psychologist, on 1 February 2017, the father was assessed as having a defensive presentation, with marked minimisation of substance abuse. Due to these factors, Dr LL opined that the father’s self-report of his use of drugs and alcohol was unable to be taken at face value. Dr LL suggested that the father might benefit from intervention with a family agency and psychological assistance but he was pessimistic about the father’s preparedness to engage fully.
The father claims to have ceased cannabis use 2 and a half to three years ago and rarely drinks alcohol. He relies upon three random drug screens undertaken in 2018 indicating no drugs present at the times of testing.
If it were just the father’s word as to his drug and alcohol use I would be hesitant to make a finding that he does not pose a risk of harm to the child, but there are a number of factors which minimise the risk in my view, such that it is not unacceptable. Firstly, the father has held down permanent employment for the last several years corroborated by the paternal grandfather whom I found to be an impressive witness. Secondly, the father has the support of the paternal grandfather and other family members including the paternal great aunt and the paternal grandfather’s partner Ms BB, all of whom care very much for the child. Thirdly, the father has purchased a block of land and is making plans for his future. Fourthly, he has undertaken a number of courses to improve himself and has indicated a preparedness to seek further assistance.
The paternal grandfather was a matter a fact man who demonstrated an understandable level of disappointment in his son yet has provided him with a home and financial support, particularly in relation to funding these proceedings. He presented as optimistic that his son is finally committed to turning his life around. While Ms G expressed some concerns about the paternal grandfather indirectly criticising the mother in the child’s presence I consider that he demonstrated respect for the mother during his evidence and has the capacity in my view to reflect upon the criticisms made of him.
Dr LL reassessed the father on 25 January 2018. In his view, despite the father’s minimisation of past substance misuse he presented as “committed to the child and concerned about the mother’s lifestyle.” In my view, there was cause to be concerned about the mother’s lifestyle.
While there remains a risk of relapse to substance or alcohol misuse I do not consider the risk to be unacceptable.
As to other issues suggesting possible risk, much was made of the child apparently viewing a horror movie while in the father’s care called ‘Annabelle’ that had a rating of MA15+. Whether she watched all or part of it, any viewing of it was inappropriate by all accounts. I reject the assertion made by the mother that the father held the child down and forced her to watch it. Such a cruel act would be completely at odds with the nature of his relationship with the child as observed by several persons including teachers and family report writers. It is more likely that he was inattentive. The father seemed somewhat vague about the incident and it can only be hoped that if his failure to properly supervise his daughter’s viewing has caused her distress that he has learnt from that mistake.
The father was cross-examined about a previous girlfriend whom he hit in the face over ten years ago. The father readily admitted that he had slapped his then girlfriend causing her a bloody nose. He also admitted that he was not affected by drugs or alcohol but that he was angry. While nothing excuses such an assault I accept that the father immediately apologised and, apart from the incident on 28 January 2012 (when the mother and father separated and the mother alleges the father pushed her causing her to fall down three steps), there is no evidence that the father has a history of violence. While Ms G was critical of the father’s “verbal violence” to the supervisor of the aborted contact between the father and the child in June 2018 I am not persuaded that his frustration with the deterioration in his relationship with the child falls into the category identified by Ms G. The supervisor makes no complaint about the father’s conduct and he apologised to the supervisor for venting his frustration. Indeed the supervisor comments that the father “remained very calm and sympathetic towards the situation” (the situation being that the child was refusing to see him).
The father completed a course called “Inside Outside Dads” in 2012 and has indicated a willingness to undergo professional guidance with his parenting and in particular how to manage the child’s transition into his care. He also completed a life skills program called “Parenting after Separation” in August 2018.
The most significant issue in relation to returning the child to live with the father is the current rift in their relationship. The father accepts that the attempts to see her in June this year had to be aborted because of the child’s distress.
However, I am not persuaded that the relationship is beyond repair. It is more likely that the mother and perhaps Y have influenced the child against the father and I am confident that with assistance from the paternal grandfather (with whom it is acknowledged the child continues to have a close and loving relationship although she has not spent time with him for a considerable period) and with professional assistance, the previous close relationship between the child and the father can be restored. I base this opinion, in part, on the observations of the child and the father over a number of years by various people including experts. Some observations have already been mentioned above.
In addition, during interviews for a family report on 21 July 2016, Ms MM, the family report writer observed the child to be a “confident and outgoing girl with a lovely nature”. She was comfortable in the company of the father and paternal grandfather whom she referred to as “popsy”. The child shared “I love dad … he’s the best dad in the world.” the child was observed to be comfortable and relaxed with the father and in Ms MM’s opinion the father’s manner with the child was “gentle and interactive”. Ms MM opined that the child appeared to enjoy a close relationship with the father and “no concerns arose as to the appropriateness of this relationship.”
The child was again observed by Ms MM with the father on 3 March 2017 for preparation of a further family report. Again she was observed to be a “delightful, happy and self-contained” little girl who had “an easy and familiar relationship with her father”. It was clear to Ms MM that the child was missing her mother as there had been significant periods when she did not spend time with her (the parties disagreed about why that was so) and the child expressed a clear wish to live with her mother and siblings. She was nevertheless confident that the father would continue to love her.
The child was observed by Ms G, family consultant, on 28 February 2018 for an updated family report. She noted that the child shared a bedroom with Y. Initially the child said she did not wish to spend time with the father but was unwilling to explain why. While speaking about the father, the child “hung her head and appeared reluctant to make eye contact with the writer. The child commented indistinctly about ‘a bad man’ and ‘jail’. The child reported that she missed her paternal grandfather and would like to spend time with him.” Despite her initial reluctance the child agreed to see the father and later reported to Ms G that she had enjoyed spending time with him and had felt comfortable to do so as there were other adults present.
While Ms G is critical of the father for showing affection to the child during the observation in February 2018 suggesting that he should have waited for the child to take the lead, I take a less critical view of the father’s behaviour. I consider it to be understandable for the father to show affection to the child and it may well have been perceived by the child in a negative way had he not done so. In any event, I propose to require the father to seek professional guidance in how best to be reunited with the child.
Does the mother pose an unacceptable risk of psychological harm to the child by exposing her to interrogation about sexual abuse allegations or by causing her to falsely believe that she has been sexually abused by the father?
One of the most distressing pieces of evidence in this case was the ‘interrogation’ and quite possibly ‘indoctrination’ of the child carried out by her sister, Y and Y’s friend, NN, over an indeterminate period, forty-three minutes of which was recorded.
The mother was present in the home at the time and was either oblivious to what was occurring or facilitated it occurring. It is also apparent that the child may have been exposed to possibly sexually inappropriate material on a YouTube video which the older girls were apparently viewing in the child’s presence.
If it is the case that the child has been sexually abused by a person unknown, the evidence has been so contaminated as to be useless. If, as Y suggests during one of the police interviews, the child first made a statement to Y indicating possible abuse during an occasion when she was staying at the Mr AA home possibly in 2015 or 2016 any prospect of identifying the culprit has been lost. Y did not tell anyone what the child said and I place little weight on the words she attributed to the child given Y’s propensity to ask leading questions and what is likely to be her hyper vigilance given her own experience of sexual abuse.
I find that the child has been subjected to psychological abuse in the mother’s household by the interrogation of her. The mother failed to appropriately supervise the child to prevent such abuse. The result has been a significant interruption in the child’s relationship with the father and extended paternal family.
In addition, the child has been identified with various services and her current school as a victim of sexual abuse by the father. The impact on the child growing up falsely believing that she has been abused by her own father is likely to be significant. The mother repeatedly stated that she truly believed that the child has been sexually abused by the father and, despite having had the opportunity to reflect on her stated belief after hearing all of the evidence at trial (including the various inconsistencies and inappropriate questioning asked of the child), she maintains her belief. The risk of psychological abuse from the mother therefore remains unacceptable.
Does the mother have the capacity to appropriately and safely parent the child given her alleged past misuse of cannabis and OxyContin; given that two of her other children have been sexually abused and given her alleged chaotic lifestyle?
There is no evidence that the mother has relapsed into using heroin and the only evidence that she used cannabis was during a period when she and the father lived together. The evidence of her use of OxyContin was minimal and certainly insufficient to find misuse or addiction.
The most significant issue in the mother’s household (apart from the risk of psychological abuse already identified) is the risk to the child’s physical and moral wellbeing from others by reason of the mother’s incapacity to properly supervise her or make appropriate judgements about suitable carers.
The mother has failed to protect two of her other children from abuse by others. Y has certainly been sexually abused and it is entirely possible that Z has also been sexually abused. If the child has also been sexually abused it is more likely to have occurred while in her mother’s care given the mother’s propensity to befriend much older men and leave her children or a child in their care.
In this context I have a current significant concern about the safety of Y. While she is not the subject of the proceedings she is a very vulnerable girl. She has had numerous changes of school; she has taken on a parenting role in relation to her younger siblings; she has extensive periods of absenteeism from school e.g. forty days absent in the first semester 2017; she has been sexually abused; she was involved in a sexual relationship for a number of months in or about late 2017 or early 2018 when she was 14 and she has run away from home. Sadly, Y spoke during a police interview in February 2018 of the person with whom she was having a sexual relationship as loving her and calling her his “missus”. She presented as a child desperate for love and attention. She did not know what contraception was when asked by police but confirmed that the person with whom she was having a sexual relationship with had never used a condom. The physical and moral risks to Y are extremely high and of course the risk of pregnancy is also high. The change in Y, as seen during her VARE police interviews in 2017 and 2018 was remarkable. I was most concerned by her recent appearance and I consider her to be at significant risk of sexual exploitation in the mother’s home.
Mr U is not on trial here but there are some very concerning features about him. The L Town school records indicate a concern that he shows an unhealthy interest in single mothers and has demonstrated aggressive behaviour to staff at school. I cannot make findings about those matters as the evidence is third hand and Mr U denied the allegations. However, he has befriended the mother in this case and spends a considerable amount of time (on his own admission) at her home without the company of his wife when he has four of his own children. He may be a person who has the best of intentions but I am not convinced of that. He collects the mother’s children from school from time to time and again there may be nothing at all sinister about that, but given the mother’s history of making unsuitable choices about leaving her children with the likes of Mr R, Mr S and Mr O I consider her friendship and reliance on Mr U should be discouraged.
When assessed by Dr LL, psychologist, on 24 February 2017 he considered the primary issue for the mother related to “personality vulnerabilities to relationship problems and emotional chaos, which obviously would affect the children in her care.” Dr LL considered the mother may benefit from assistance through a “family agency over the next 5 years that could assist her with life skills, planning and organisation.”
Dr LL undertook a further assessment of the mother on 14 March 2018 when she presented as “somewhat more organised than previously although only marginally so.” In his view the mother’s intellectual functioning is in the borderline to extremely low range and he noted a “chaotic parenting pattern”. He identified the mother’s “parental risk overall … as Moderate” and opined that the mother “requires ongoing assistance” including psychological and family assistance over the next two to three years on a relatively regular basis.
The mother has changed homes numerous times. Although I take into account that the mother is at the mercy of the rental market and that housing so many children would not be easy, some of her decisions seem to be made without regard to the impact on her children. Regrettably, the numerous changes in accommodation have involved changes of schools for her children. More significantly though she has been unable to ensure her children’s regular attendance at school (this is certainly the case for at least Y and the child). In semester two 2017 the child was absent from school for twenty days. In semester one 2018 the child was absent for nineteen days. The mother provided no satisfactory account for the absences.
Despite the mother receiving assistance in her day to day life from government and other agencies it does not seem to have made an appreciable improvement in her parenting capacity. Despite the mother’s apparent willingness to comply with this intervention I note Ms G’s assessment that this may in fact be a strategy used by the mother to deflect further scrutiny from professionals such as Child Protection. I accept that opinion.
The mother does not have any real support from family or friends. Her only support person is Ms KK, her 25 year old ‘step-daughter’. Ms KK has two very young children and lives some distance from the mother. This is concerning given the mother’s tendencies to then rely upon the support provided by older men.
Having regard to all of the evidence, I am not persuaded that the mother has the capacity to make appropriate decisions for the care and protection of her children.
conclusion
In is not in doubt that the child has a close relationship with the mother and her siblings and another change in her living arrangements will have a significant impact upon her.
However, in circumstances where I have found that the father does not present an unacceptable risk of harm to the child and that the mother does present an unacceptable risk of harm to the child, I come to the conclusion that the child will need to leave her mother’s home and live with the father. The risk to the child from her mother includes the mother’s continuing belief that the child has been sexually abused by the father and the influence that has had on the child as evidenced by the deterioration in the child’s relationship with the father despite not spending time with him since May 2017. In addition, the mother lacks sufficient parenting capacity to provide a safe home environment for the child.
While the father currently works six days a week he generally finishes in time to collect the child from school. In the past he has worked five days a week and he may return to that when the child is returned to his care. The father also has significant support from the paternal grandfather and other family members.
The child expressed a wish to live with her mother and siblings in 2017 but she was missing her mother and siblings greatly at the time. I am not persuaded that her wishes in 2017 should be given determinative weight.
The transition to the father will need to be managed sensitively given the child’s recent rejection of the father. I am confident that the father and paternal grandfather will do whatever is required of them to assist the child. It is not in doubt that the child continues to have a close and loving relationship with the paternal grandfather so the child will initially be cared for by him (as suggested during the trial) until the father and the child undertake some professional counselling to assist with the transition.
It was recommended by the independent children’s lawyer that there should be a period of no contact between the child and the mother. That will be difficult for the child but I accept that it is a necessary step in the transition. Thereafter the child will spend a period of supervised time with the mother before moving to unsupervised time. I consider that by the time the unsupervised time commences the child will have sufficiently rebuilt her previously close relationship with the father and will be able to withstand any undermining of that relationship by the mother. However, I consider the time spent should be day time only unless the parents agree otherwise. The reasons for this are twofold. Firstly, it will limit the time during which the child might be placed under pressure by the mother and secondly in will minimise the opportunity for the child to be put at risk in the mother’s home.
The mother was most concerned during the trial and during investigations by police and Child Protection that she was being blamed for things beyond her control. But this case is not about blame. It is about trying to make the best decision possible for the child into the future. That must involve assessment of each parent’s parenting capacity based on past actions and decisions. They must each accept responsibility for their decisions.
It is naïve of the mother to seek to minimise the impact of her choices on the predicament in which her children now find themselves. I do not consider the mother can provide a safe home environment for her children or rely on a solid support network to assist her in times of need. A weekly visit from a welfare worker from U Group with limited knowledge of the history of the family is not sufficient. While I have no jurisdiction over the remaining four children I am deeply concerned for their welfare. In my view they are at risk from sexual predators. The mother is of very limited intelligence and befriends older men who have taken advantage of the situation to gain access to the children.
The chronic underfunding of the front line services including child protection, police, legal aid and the courts will no doubt continue to be ignored by governments of all persuasions who mouth concern for the protection of children but persistently respond to endemic problems with announcements of yet more enquiries. The workers on the front line including courts know what needs to be done and some hard policy decisions need to be made that can only be implemented by legislature.
I certify that the preceding one-hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 18 October 2018.
Associate:
Date: 18.10.2018
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Costs
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Remedies
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Procedural Fairness
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Natural Justice
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