Sellers and Saxton
[2011] FMCAfam 597
•15 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SELLERS & SAXTON | [2011] FMCAfam 597 |
| FAMILY LAW – Children – parenting orders – best interests of the children – risk of harm – allegations of abuse – parental responsibility – sole parental responsibility – risk of harm – whether unacceptable risk – supervision. |
| Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA |
| W v W (abuse allegations: unacceptable risk) (2006) 34 Fam LR 129 M v M (1988) 166 CLR 69; 82 ALR 577; 12 Fam LR 606; FLC 91-979 |
| Applicant: | MR SELLERS |
| Respondent: | MS SAXTON |
| File Number: | WOC 682 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 15, 18, 19 February, 20 April, 25 June, 29 July 2010 |
| Date of Last Submission: | 29 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Alexander |
| Solicitors for the Applicant: | Verekers Lawyers |
| Counsel for the Respondent: | Mr Gould, then in person |
| Solicitors for the Respondent: | RMB Family Lawyers, now in person |
| Counsel for the Independent Children’s Lawyer: | Ms Doosey |
| Solicitors for the second Respondent: | Legal Aid NSW |
ORDERS
All earlier parenting orders are discharged.
The Respondent Mother is to have sole parental responsibility for the children of the marriage [X] born [in] 2000 and [Y] born [in] 2004.
The children [X] and [Y] are to live with the Mother.
The parties are to inform each other of any change of their address, mobile telephone number or landline telephone number within forty-eight (48) hours of such change occurring.
The parties are to contact Relationships Australia at 63B Market Street Wollongong New Wales telephone 4228 7711 within fourteen days for the purpose of making an appointment for an assessment as to the suitability of individual counselling and counselling for the children.
If assessed as suitable and Relationships Australia nominate counselling or a program then the parties must attend and undertake the counselling or program within a reasonable time.
The Independent Children’s Lawyer is given leave to provide a copy of the Single Expert Report prepared by Dr W and a copy of these Orders to Relationships Australia.
ORDERS RELATING SPECIFICALLY TO THE CHILD [X]
The child [X] is to spend time with the Applicant Father as follows:
(a)During school term time each alternate weekend from the conclusion of school on the Friday afternoon until the commencement of school on the Monday morning PROVIDED THAT if the Monday following the weekend is a public holiday then until the commencement of school on the Tuesday morning commencing on Friday 24 June 2011;
(b)During school term time from the conclusion of school on the Tuesday afternoon until the commencement of school on Thursday morning commencing on Tuesday 19 July 2011 and fortnightly thereafter;
(c)For the first half of all New South Wales School Holidays at the conclusion of Terms 1, 2 and 3 in each year commencing from the conclusion of school on the last day of the school term and concluding at 6:00pm on the middle Saturday of the school holidays;
(d)From 7 January to 21 January in each year;
(e)For a period of three (3) hours on the Father’s birthday, on [X]’s birthday, and on Father’s Day in each year if any of those days do not fall on a day when the child would otherwise be spending time with the Father as provided in these Orders;
(f)From 11:00am on Christmas Eve until 11:00am on Christmas Day in 2011 and each odd numbered year thereafter;
(g)From 11:00am on Christmas Day until 11:00am on Boxing Day in 2012 and each even numbered year thereafter; and
(h)At all times when the child [Y] is spending time with the Father in accordance with these Orders.
NOTWITHSTANDING the provisions of Order (8) above, the Father’s time with the child [X] will be suspended on the following days:
(a)Mother’s Day in each year;
(b)The mother’s birthday; and
(c)For a period of three (3) hours on the child’s birthday if that day should fall on a day when the child would otherwise be spending time with the Father in accordance with these Orders.
The Mother is to inform the Father of any illness or injury sustained by the child [X] requiring hospitalisation or treatment by a medical specialist and any medication prescribed for him.
The Father is to inform the Mother of any illness or injury sustained by the child [X] at any time when he is in the care of the Father and any medication prescribed for him.
The Mother is to authorise the Principal of any school attended by the child [X] to provide to the Father at his expense copies of all school reports, newsletters, information about school photographs and other documents usually forwarded to parents of children attending that school.
The Father is at liberty to attend any sporting fixtures and school functions relating to the child [X].
The Father is at liberty to make any necessary arrangements with [X]’s school in order that he may attend a parent-teacher interview about the child’s progress at school PROVIDED THAT such interview is held separately from any such interview attended by the Mother.
For the purposes of Order (8) the Father is to collect the child [X] from the child’s school and return him to the child’s school where appropriate and at other times the Mother is to deliver the child to the Father and the Father is to return the child to the Mother at the McDonald’s Family Restaurant at [address omitted] New South Wales or such other place as the parties may agree.
ORDERS RELATING SPECIFICALLY TO THE CHILD [Y]
The child [Y] is to spend time with the Applicant Father as follows:
(a)For a period of three (3) hours each alternate Saturday being the same Saturday as the child [X] is spending time with the Father as provided by Order (8)(a) above at times to be agreed between the Mother and the Father but in default of agreement from 12 noon to 3:00pm PROVIDED THAT all such time must be supervised by either MS M or MR M each of whom must sign an Undertaking to the Court that they understand the responsibilities of a supervisor and will comply with those responsibilities;
(b)For a period of three (3) hours on the Father’s birthday, on [Y]’s birthday and on Father’s Day in each year if any of those days do not fall on a day when the child would otherwise be spending time with the Father as provided in these Orders;
(c)For a period of three (3) hours on Christmas Eve 2011 and each odd numbered year thereafter;
(d)For a period of three (3) hours on either Christmas Day or Boxing Day in 2012 and each even numbered year thereafter.
All time spent by the child [Y] with the Father in accordance with Orders (16)(b), (c) and (d) must be supervised by either MS M or MR M as provided in Order (16)(a) above.
The time spent by the child [Y] with the Father in accordance with Order (16)(a) above may be extended to a period of five (5) hours from and after 7 January 2012 PROVIDED THAT either MS M or MR M will be available to supervise the child’s time with the Father during that entire period of time.
The Father must file at the Court and serve on the Mother and the Independent Children’s Lawyer the Undertakings signed by Ms M and Mr M by 24 June 2011 and in the event that either Undertaking is not filed and by the time specified then that person will be unable to supervise the child’s time with the Father until compliance with this Order.
NOTWITHSTANDING the provisions of Order (16) above the Father’s time with the child [Y] will be suspended on the following days:
(a)Mother’s Day in each year;
(b)The Mother’s birthday; and
(c)For a period of three (3) hours on the child’s birthday if that day should fall on a day when the child would otherwise be spending time with the Father in accordance with these Orders
The Mother is to inform the Father of any illness or injury sustained by the child [Y] requiring hospitalisation or treatment by a medical specialist and any medication prescribed for her.
The Father is to inform the Mother of any illness or injury sustained by the child [Y] at any time when she is in the care of the Father and any medication prescribed for her.
The Mother is to authorise the Principal of any school attended by the child [Y] to provide to the Father at his expense copies of all school reports, newsletters, information about school photographs and other documents usually forwarded to parents of children at that school.
The Father is at liberty to attend any sporting fixtures and school functions relating to the child [Y] on condition that he is not alone with her.
The Father is at liberty to make any necessary arrangements with [Y]’s school in order that he may attend a parent-teacher interview about the child’s progress at school PROVIDED THAT such interview is held separately from any such interview attended by the Mother.
For the purposes of Order (16) the Mother is to deliver the child [Y] to the home of Ms M and Mr M at the commencement of the child’s time with the Father and is to collect the child from the home of Ms M and Mr M at the conclusion of the child’s time with the Father.
IT IS NOTED that publication of this judgment under the pseudonym Sellers & Saxton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 682 of 2008
| MR SELLERS |
Applicant
And
| MS SAXTON |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the Father of two children, a boy and a girl, for orders that they should live with him. He also seeks orders that he should have sole parental responsibility for the children.
The Mother opposes those orders and seeks that the children should live with her and that she should have sole parental responsibility for them.
The Mother originally used the surname of “[Saxton-Sellers]”, which is the surname of the children. However, during the course of these proceedings, the Mother informed the Court that she had decided to revert to the use of her former name of “Saxton”. She will be referred to by that name.
Background
The parties commenced to live together in approximately November 2007 and were married [in] 1999. They separated under the one roof on 3rd February 2008. They physically separated on 13th April 2008 when the Mother left the home with the children. She returned on or about 26th April 2008 and left the home finally on 30th April 2008.
The Mother was born [in] 1973. The Father was born [in] 1974.
There are two children of the marriage, a boy called [X] and a girl called [Y].
[X] was born [in] 2000. He is now ten years and eight months old.
[Y] was born [in] 2004. She is therefore six years and seven months old.
The Mother claims that the little girl [Y] disclosed to her that her father had been inappropriately touching her. The Mother says that the first of these disclosures was made to her on or about 26th April 2008 and the second was made to her on 11th May 2008. The Mother states that a further disclosure was made by [Y] to a family friend called Ms J on 19th or 20th May 2008.
The New South Wales Department of Community Services was notified. The Department made inquiries and subsequently closed its file.
On 30th May 2008 the Mother consulted a psychologist called Ms D.
The NSW Police applied for an Apprehended Violence Order against the Father on 30th May 2008, naming the child [Y] as the protected person. On 11th June 2008 the Local Court of New South Wales at [omitted] continued the provisional Apprehended Violence Order against the Father and adjourned the matter to 22nd September 2008.
The matter was referred to the Joint Investigation Response Team (known as JIRT) who investigated the matter, but no charges were laid.
The parties are now divorced.
The Father commenced proceedings for parenting orders by filing an application and an affidavit in support on 18th July 2008. In his affidavit sworn on 3rd July 2008 the Father deposed that he had not seen the children since the end of May 2008.
The Father also referred to various incidents during the marriage where he claimed that the Mother had assaulted him.
The former matrimonial home was sold in July 2008.
The Father’s application was returnable on 29th August 2008. Kemp FM made interim orders by consent:
(1)That the children live with the Mother;
(2)That the Father spend time with the children:
2.1Each alternate Sunday supervised by [omitted] Children’s Contact Service; and
2.2For such other times as the parties agree.
(3)The parties were restrained from making critical comments about each other in the presence or hearing of the children.
(4)The parties were to keep each other informed about medical attention for the children, any prescribed medication and any change of residential address.
(5)An Independent Children’s Lawyer was appointed to represent the children
On 26th September 2008 Kemp FM made further interim consent orders, including appointing Dr W, a child and family psychiatrist, as a Single Expert for the purpose of producing a report on the welfare of the children.
On 24th November 2008 Kemp FM made further directions relating to documents being produced on subpoena.
Further directions were made on 11th December 2008, providing that the parties should pay the fees for the Single Expert Report out of the proceeds of sale of the farmer matrimonial home.
The Single Expert Report was released on 23rd February 2009.
On 26th March 2009 the proceedings were transferred to the Wollongong Registry of the Court.
On 1st May 2009 the Mother filed an Amended Response in which she sought certain property orders.
On 6th May 2009 at Wollongong, Jarrett FM ordered that the parties attend a conciliation conference with a Registrar and the Application be set down for a one day hearing on 24th August 2009.
A conciliation conference was held on 5th June 2009 but the property matter did not resolve.
On 30th June 2009 at Wollongong Brewster FM transferred the application back to the Sydney Registry of the Court.
The parties were divorced on 15th July 2009.
On 10th August 2009 Orchiston FM set the matter down for final hearing on 14th, 15th and 16th December 2009. Unfortunately, the Court was unable to hear the matter on those dates and on 14th December the application was transferred into my docket and listed for final hearing on 15th, 18th and 19th February 2010.
The application was heard on a final basis before me on 15th, 18th and 19th February 2010 and was adjourned part-heard to 20th April 2010. However, the parties were able to resolve the property issues between them and I made orders by consent on 19th February, finalising the property application.
The hearing continued on 20th April 2010 and was again adjourned part-heard, this time to 25th June 2010. The evidence completed on that day and the application was adjourned to 29th July 2010 for submissions.
Issues
There is really one issue in this matter, but it is a very serious issue. It is the Mother’s case that the Father has sexually abused the parties’ daughter [Y] and, as a consequence, she seeks orders that will protect the child from the risk of harm.
Orders Sought
The Father, in his counsel’s written submissions, seeks these orders:
(1)That the Father have sole parental responsibility for the children [X] born [in] 2000 and [Y] born [in] 2004.
(2)That the children live with their mother other than when they are living with their father.
(3) That the children live with their father:
3.1For all periods other than the Christmas school holidays, from after school on each alternate Friday (or at 5:00 pm where the Friday is not a school day) until before school on the following Friday (or at 5:00 pm where the Friday is not a school day).
3.2 During the Christmas school holiday period:
(a) from after school on the last day of Term 4 until 2:00 pm Christmas Day in each even numbered year;
(b) from 2:00 pm Christmas Day in each odd numbered year until 5:00 pm New Year’s Day;
(c) from 5:00 pm New Year’s Day in each odd-numbered year until 5:00 pm on the third Friday of that year; and
(d) from 5:00 pm on the third Friday of each even numbered year until after school on the first Friday of the new school year in each even numbered year.
(4) That changeover occur at school or at an agreed location during school holiday periods, or, failing agreement, at Wollongong Police Station.
(5)That the children communicate with the parent with whom they are then not living by telephone:
5.1 at any time at which they request to do so; and
5.2 each Wednesday between 6:00 pm and 7:00 pm.
(6)That the Mother undertake such therapeutic counselling as is recommended by her treating counsellor, with such counselling to deal with:
6.1 the allegations against the father; and
6.2strategies for dealing with the implementation of these orders.
The Mother, in her written submission, filed in Court on the last day of the hearing, sets out the orders that she seeks:
1. [X] and [Y] live with me the Mother.
2. The Mother has sole parental responsibility for the long term care, welfare and development of the children,
3. The Father’s application be dismissed.
4. That the Father pay the wife’s costs of an incidental to this application.
5. Supervised visitation of the children with their father to continue and remain until at least the end of primary school with all parties participating in counselling if the Court deemed so. Three options for visitation including unsupervised for [X] are listed at the end of the summation.
The Mother sets out three proposals in the final two pages of her submission. In summary, they are:
a)The Father’s time with both children continues to be supervised on a fortnightly basis at the contact centre where it is presently taking place, with the possibility of increasing the time from two hours to three of four hours.
b)The Father’s time with both children continues to be supervised on a fortnightly basis but with the supervision being carried out by a private individual, such as a family member or friend.
c)The Father’s time with [Y] continues to be supervised, with [X] also being present, but, in addition, the Father would have unsupervised time with [X] as well.
The Independent Children’s Lawyer proposes two sets of orders. The first set of orders are proposed on the basis that the Court finds that there is no unacceptable of harm to the children, and the second set of orders are proposed on the basis that the Court finds that there is an unacceptable risk of harm.
If the Court finds that there is no unacceptable risk of harm, the orders that the Independent Children’s Lawyer proposes[1]:
[1] summarised
(1)The parties have equal shared parental responsibility for the children.
(2) That the children live with the Mother.
(3) That the children spend time with the Father:
(a)from after school Tuesday until before school Thursday each alternate week;
(b)from after school Thursday until before school Monday each alternate week;
(c) on Father’s Day;
(d)from 3:00 pm Christmas Day 2010 until 3:00 pm 26 December 2010 and each alternate year thereafter;
(e)from 3:00 pm Christmas Eve 2011 until 3:00 pm on Christmas Day and each alternate year thereafter;
(f)for the first half of the Term 1, 2 and 3 school holidays; and
(g) from 15 January to 25 January each year.
If, however, the Court were to find that there is an unacceptable risk of harm, then the Independent Children’s Lawyer proposes these orders:[2]
[2] Also summarised
(1)the Mother is to have sole parental responsibility for the children.
(2) that the children live with the Mother.
(3) That the children spend time with the Father:
(a)for a minimum of 5 hours each alternate Saturday, at times agreed to between the mother and the father, to be supervised by Ms M or Mr M;
(b) additional time on a weekend, also supervised.
(4) That [X] spend additional time with the Father:
(a)from after school Tuesday until before school Thursday and thereafter each alternate week, with the Father to collect the child from and return the child to school;
(b)for the first half of the Term 1, 2 and 3 school holiday periods; and
(c) from 15 January until 25 January each year.
(5) Order 4(a) is suspended during school holiday periods.
(6)The Mother is to keep the Father informed of illness, hospitalisation, medication, referrals to any health professionals relating to the children, and also any change to her address or telephone number.
(7)The Father is to keep the Mother informed of the same things.
(8)The Mother is to provide the necessary authorities to the principal of each school attended by the children to ensure the school forwards school reports, etc to the children.
(9)The Father is permitted to attend sporting fixtures, extra curricular activities and school functions relating to [X].
(10)The Father is entitled to attend sporting fixtures, extra curricular activities and school functions relating to [Y] provided that he is not alone with her.
(11)The Mother is to deliver the children to the home of Ms M and Mr M and collect the children from there for the purpose of proposed order 3(a) and 3(b).
(12)To facilitate Order (4), the Father is to collect [X] from an agreed changeover point or, if there is no agreement, the McDonald’s Restaurant at [address omitted].
(13)The Father and Mother are to contact Relationships Australia to arrange an appointment as to suitability of individual counselling and counselling for the children.
(14)The Father and Mother must attend appointments with Relationships Australia.
(15)If Relationships Australia nominate counselling or a program that is child inclusive the parties must attend.
(16)The Independent Children’s Lawyer be given permission to provide a copy of the Expert Report and a copy of this judgment to Relationships Australia.
The Single Expert Report
Dr W prepared a Single Expert Report, dated 2nd February 2009, which was released on 23rd February 2009. For the purposes of his Report,
Dr W conducted the following interviews:
a)with the Mother alone;
b)with the Mother and the two children;
c)with the Father alone;
d)with the Father and the two children;
e)with the two children together; and
f)with the little boy [X] by himself.
In her interview with Dr W, the mother described the Father’s “very explosive temper”. She said that:
He has tantrums and he screams and yells and puts her down…She said that he was more overbearing than physically abusive. She also indicated that her husband would often leave the house after a tantrum and sleep somewhere else.[3]
[3] Report of Dr W 2.2.2009 page 4
The Mother also told Dr W about her concerns that the Father’s niece, Ms T, had made allegations that the Father had inappropriately touched her when she was a young child. She said that the niece had made these allegations when she was 16 and in counselling as a result of another incident unrelated to the Father. The Mother said that Ms T had written to her after she had separated from the Father, describing the incidents. The Mother also told Dr W that the niece had withdrawn her offer of assistance in these proceedings “because she now understood that in essence, this was a civil matter which could not result in a gaol sentence and that she was fearful of being cross-examined in front of Mr Sellers and also of Mr Sellers himself.”[4]
[4] Report of Dr W 2.2.2009 at page 6
When he saw the children with the Mother, Dr W described her as “warm and responsive with them” and “quite attuned to their respective interests”.[5]
[5] Ibid
When he was interviewed by Dr W, the Father said that he had two natural brothers, with whom he has no contact, and had three adoptive siblings, a brother and two sisters. His adoptive brother had died in his 40s and his adoptive sister, [name omitted], the mother of Ms T, had died of cancer.
Dr W reported that the Father told him:
He said that he does not communicate with his sister Ms F now or with her daughter Ms J. He said he felt that they have been manipulated and used by his wife. He expressed the view that [Y] had been coached. He said that the accusation has only come up with family members and [Y] has not said it to professionals.[6]
[6] Ibid at 7
As to the allegations by his niece Ms T:
He said that she has always been a very difficult child. She was verbally abusive and violent….He said that she had also accused her bagpipe leader of molesting her and had got him thrown out of Wollongong.[7]
[7] Ibid
The Father told Dr W that the Mother had at times struck him when she was drunk and described an incident where he said the Mother had kicked him and struck him with her elbows and “he finally got her home and she locked herself in the garage and screamed and yelled.”[8]
[8] Report of Dr. W 2.2.2009 at 9
The children showed no hesitation in seeing their father. Dr W reported that:
They approached him and greeted him with warmth and genuine enthusiasm…Both children seemed to be intensely engaged with their father but they were not competitive for his attention and I did not observe any problems with sharing or jealousy.[9]
[9] Ibid at 12
As to [Y], specifically, Dr W noted that:
[Y] was very tactile with her father. She crawled up on his shoulders and encouraged him to roughhouse with her, which produced squeals of delight.[10]
[10] Ibid
The Mother conceded that [X] loves his father and he gets on quite well with his sister, but he has always been a bit competitive with her.
[X] told Dr W that his father had been “fun” when his parents lived together, but when they separated “his father was yelling a lot at his mother”.[11]
[11] Ibid at 15
The Mother conceded that [Y] loved her father but, at the time of the interview, was only four years old and did not understand the seriousness of her concerns about the Father’s behaviour. The Mother emphasised to Dr W that she was not coaching [Y] about her statements as to what her father did.
Dr W came to the following conclusions about the children:
a)[X] appeared to be a fairly sensitive child who was troubled by conflict. It was possible that some of his recent disruptive behaviour was related to increasing tension in his parents’ home. [Y] had, in late 2008 and early 2009, shown signs of emotional tension in the form of bed wetting, nightmares and soiling. While these could be indicative of the Mother’s concerns, their very recent build up is also consistent with emotional conflict over the visits to her father.[12]
[12] Report of Dr W 2.2.2009 at 19
b)Dr W did not obtain [Y]’s wishes due to her age, but noted that she seemed very happy to be with him. [X]’s views were contradictory, in that he said that it would be good to stay overnight with his father but he was also happy with the present arrangement. Dr W felt that “his views have been affected by the attitude towards his father in his mother’s home and also with his own experiences with his father between February and May 2008 which to his mind could have been consistent with this”.[13]
[13] Ibid
c)[Y] appeared to have a close relationship with both of her parents. [X]’s relationship with each parent was more difficult to appraise, but he seemed to relate quite well to both of them and each parent acknowledged that he had a close relationship with the other parent.
d)Dr W said:
In general, children who can maintain a satisfactory relationship with both parents are less likely to experience emotional, behavioural, educational and relationship difficulties in the future. It is my view that these principles apply in this case.[14]
[14] Ibid at 20
e)Dr W had these comments to make about the likely effect of any changes in the children’s circumstances:
Presuming that a finding of no unacceptable risk to [Y] was found, although the children have had less to do with their father since they and their mother moved out of the matrimonial home in April 2008, up until that time he had played a very significant part in their day to day lives, albeit perhaps a little less substantial than the mother’s…it is likely that they would settle into the change that the father proposes reasonably well. [Y] would probably have more difficulty with it because of her age…
In the even that the Court takes the view that there is an unacceptable risk to [Y], the Court might make orders that the children continue to see their father under supervised circumstances. On the face of it, they seem reasonably content with this arrangement at the moment, however I think it would probably become increasingly unsatisfactory for [X] and probably also for [Y].
Finally the Court may take the view that the risk is confined to [Y] and that only she needs to spend supervised time with her father. Under those circumstances if the court made orders along the usual lines for [X], and particularly if [Y]’s recollections of the abuse faded with time, this could probably set up a degree of tension between the siblings and lead to some jealousy by [Y] towards her brother. However in my view if this developed, it would probably be appropriate to introduce some measured counselling to help her understand the reasons for the different ways in which they are treated. Under the circumstances of these orders, it is not my view that it would be a particularly troubling matter to [X].[15]
[15] Report of Dr W 2.2.2009 at 21
f)Dr W was of the view that the conflict between the parties during the relationship was more to do with the relationship itself than over perceived parenting difficulties in the other parent, and did not feel that either party demonstrated a significant difficulty in his or her attitude concerning the responsibilities of parenthood.
g)Each parent was critical of the other’s parenting abilities. However, Dr W formed the view that both parents had made significant contributions to parenting and that to a significant extent they had relied on each other to co-parent. He said that both parents were capable of meeting the children’s material, emotional and intellectual needs.
h)Dr W said the Mother, despite apparently experiencing psychological adjustment symptoms in the latter stages of the relationship as she perceived it to deteriorate, otherwise seemed to be “an emotionally stable, conscientious and committed person”. Dr W said that, the account of the Father’s melodramatic and attention seeking behaviour when he was seen at [omitted] Hospital, together with the Mother’s account of his statements on the telephone after the allegations were made, suggested that “he may have problems with a degree of emotional immaturity and self-centredness.”[16]
i)Dr W found the issue relating to the need to protect the children from harm arising from abuse, neglect or family violence difficult to appraise. He formed the view that “it is likely that [Y] has made the statements that are alleged, but the ambiguity lies in the reasons for this and the construction that should be put on her statements.”[17] He raised the possibility that the Mother, after [Y] had made the statements she made, had asked her leading questions which may have subtly reshaped the child’s responses to turn something innocent into something more sinister. Dr W was somewhat critical of the involvement of Ms D, the psychologist consulted by the Mother, saying:
Ms D’s involvement could, in retrospect, have been somewhat of a concern in respect of the above, but she arrived on the scene after the original allegations had been made so at worst she may have only consolidated [Y]’s statements and at best, she may indeed have obtained some further details. I note her qualifications though, which do not immediately suggest this is an area of expertise for her.[18]
j)Dr W referred to the effect of the children spending equal time or substantial and significant time with each parent, saying:
Although there is relatively little research on the subject of shared physical care, there are emerging findings from Australia and overseas that such arrangements are best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond self-centred decision-making in order to adequately embrace the changing developmental needs of their children. Indicators of significant problems in these areas include tension-ridden changeovers, exposure to expressed acrimony, ongoing denigration of one parent by the other, and insidious embroilment of the children in supporting the opposing views of each parent, upon which they continue to depend.[19]
[16] Report of Dr W 2.2.2009 at 22
[17] Ibid
[18] Ibid at 23
[19] Ibid
Dr W gave oral evidence on 25th June 2010. He was somewhat critical of the report of Ms D, saying that [Y] had made no disclosures to the Mother or to DOCS that were comparable to those made to Ms D, who was “unguarded” in accepting the allegations.
There were no complaints made by [X].
In answer to a question by counsel for the Independent Children’s Lawyer about the duration of supervision if that were deemed necessary, Dr W said that unless the risk was reasonably high the goal would be to try to make the child self-sufficient, which would be towards the end of primary school.
He further said that it was time for the children to move on from supervision at the contact centre if community based supervision, such as that offered by Ms M and Mr M, were available.
Evidence
The Mother deposed in her affidavit of 27th August 2008 that the first occasion when [Y] made any mention of having been inappropriately touched was on or about 26th April 2008, after the parties had separated, when the child said to her words to the effect of:
“Daddy touches me down here and it is sore”.[20]
[20] Affidavit of Ms Saxton 27.8.2008 at paragraph [18]
The Mother stated that she noticed the child’s vagina was “a bit red” but she thought that the soreness may have been due to spending time in the sand at [beach omitted] the previous day and not having had a bath for 24 hours.
The Mother deposed that the child said to her on or about Sunday 11th May 2008:
“I am sore, Daddy touches me here.”[21]
[21] Ibid at [20]
The child pointed to her vagina.
The Mother deposed that on or about Tuesday 20th May 2008 the Father’s niece Ms J, who had been babysitting [Y], telephoned her to report that the child had disclosed to her that her father had touched her inappropriately and she had reported the matter to the (then) Department of Community Services.[22]
[22] Ibid at [21]
An examination of the child at hospital showed no sign of assault.
The Mother arranged for a child counsellor, a psychologist named
Ms D, to counsel the child. Ms D had three counselling sessions with the child, on 30th May, 20th June and 8th July 2008. She reported that the child had said to her that her father had touched her, including placing his index finger inside her vagina.
The matter was reported to JIRT by the Department of Community Services.
The Mother’s mother, Ms S, deposed in her affidavit 19th September 2009 that whilst she was staying with the mother, the child made two disclosures that concerned her. On 15th June 2008, when she was helping bath [Y], the child put her legs up in the air and said words to the effect of “I’ve got two holes”.[23]
[23] Affidavit of Ms S 19.9.2008 at paragraph [24]
Ms S further deposed that on Wednesday 25th June 2008 the child said to her, in the presence of the mother, “Daddy touches me here”. When asked where this happened the child said words to the effect of “At Daddy’s house…in my princess bed”. The child also said that she asked her father to stop and also said that the touching also took place in her father’s bed.[24]
[24] Ibid at [25]
The Father’s sister, Ms F, deposed in her affidavit of 26th August 2008 that on 19th May 2008 she received a call from her daughter, Ms J, who was babysitting [Y]. Her daughter told her that [Y] had disclosed to her that her father had touched her inappropriately. Ms F went to the house where Ms J and [Y] were. The child followed her into the kitchen, pulled down her pants, sat on the floor, spread her legs and pointed to her vagina. She repeated “[Ms F, Ms F]. It’s sore in there!”[25]
[25] Affidavit of Ms F 26.8.2008 at paragraph [4]
The child went on to say words to the effect of “Daddy did touch me in there”.[26]
[26] Ibid at [5]
The following day [Y] was again left in Ms J’s care. Ms F deposed that Ms J rang her to say that the child was not well and was clinging to her. Ms F went to her daughter and found that [Y] had diarrhoea and was clinging to Ms J. The child was repeating the words “Don’t want to go to Daddy’s house. Want Mummy.”[27]
[27] Ibid at [7]-[8]
Ms J had contacted the Department of Community Services. That evening the Father rang her and asked who had called DOCS. Ms F said she could not say anything. Shortly afterwards the Father rang her again, saying words to the effect of “I’ve got [X] with me right now. You better get out here and get [X] otherwise I’m going to put a knife to my throat!”[28]
[28] Ibid at [11]-[12]
Ms J, the Father’s niece, deposed in her affidavit of 26th August 2008 that she began babysitting [Y] on 31st March 2008. She stated that on 19th May the child told her she was sick. During the afternoon the child pulled down her pants, opened her vagina and said that it was sore. She said “Daddy touched it”.[29]
[29] Affidavit of Ms J 26.8.2008 at paragraph [6]
Ms J stated that she rang her mother and asked her to come over. She stated that when her mother arrived, the child followed her into the kitchen:
I could see the kitchen from where I was sitting. I saw [Y] pull her pants down and heard her say words to the effect of “It’s sore, daddy touched it”.[30]
[30] Ibid at [8]
Ms J telephoned the Department of Community Services.
The following day, Ms J was again babysitting [Y]. The child was upset during the day and was suffering from diarrhoea. When Ms J told the child that her father would be collecting her:
[Y] then became extremely upset and started crying. She kept saying things like “No, no not daddy, I don’t like daddy, I don’t like daddy’s house”.[31]
[31] Ibid at [12]
The Mother’s lawyers attempted to call evidence from the Father’s niece Ms T about the allegations she had made to the Mother about the Father. Ms T did not make an affidavit and expressly declined to give oral evidence. She was excused. Her allegations will not be taken into account.
The Father set out in his affidavit of 3rd July 2008 that he was advised by one Mr R of the Department of Community Services in late May that there was no evidence of any injury and that the Department’s file was closed.[32]
[32] Affidavit of Mr Sellers 3.7.2008 at paragraph [8]
The Father further stated that had various conversations with officers of JIRT and was advised that there was no basis for the allegation made and that they were closing their investigation.[33]
[33] Affidavit of Mr Sellers 3.7.2008 at [10]
The Father gave oral evidence that he wished the children to live with him. He said that he did not want to see the children taken away from their mother and he proposed that they would see her once a twice a week, depending on her workload. He conceded that their present relationship was poor, as an Apprehended Violence order was in place. He has formed a new relationship and he assumed that she would be spending time with him and the children. She had not made an affidavit. He agreed in cross examination that he had spat in the Mother’s face (“once, maybe twice”) during an argument but denied anything at her or kicking a door off its hinges.
The Father said that he accepted that [Y] had made statements to her mother and other people alleging that he had touched her in the vaginal area. He stated that the child had said those things for another reason. His belief was that she had been coached to say those things by her mother. He admitted that nobody had directly said to him that the Mother had coached [Y]. However, it was his view that the Mother had coached [Y] for the purpose of these proceedings.
As to the disclosures that [Y] was said to have made to Ms J, the Father said that he did not think that Ms J had anything to do with the fabrication. He had not spoken to Ms J since May 2008.
The Father was cross examined about the allegations made by Ms T and denied them.
The Father proposed his friends Mr M and Ms M as supervisors of his time with the children if supervision were necessary.
The Father told Ms Doosey of counsel, who appeared for the Independent Children’s Lawyer, that he sought sole parental responsibility for the children for the “safety and security” of the children.
The Mother was cross examined and maintained her evidence about [Y]’s disclosures.
The maternal grandmother, Ms S, was cross examined. She maintained her evidence that the child [Y] had said to her “I’ve got two holes” and had later said “Daddy touches me here”, indicating her vagina.
Ms D was cross examined. She confirmed that [Y] had said to her that she was “sore” and had used the words “Daddy touches me there”.
Ms F gave oral evidence. She said that, although she had read her daughter’s affidavit, she had not discussed the matter with her daughter and she had made her affidavit herself. She maintained her evidence about Ms J’s disclosures.
Ms J was cross examined and firmly maintained her evidence as to what [Y] had said and done.
Submissions
Counsel for the Father submitted that there can be no positive finding that sexual abuse had occurred to either child at the hands of the Father. To come to such a conclusion, the evidence must satisfy the Briginshaw test (see Evidence Act 1995, s.140, and W v W (abuse allegations: unacceptable risk[34]). It was further submitted that the evidence does not support the proposition that there is an unacceptable risk of abuse to the children.
[34] (2006) 34 Fam LR 129
The reasons given are that there was no suggestion of abuse before the parties physically separated and there was no allegation of abuse when [Y] was spoken to by trained investigators, at DOCS and JIRT. The Mother is said to have begun the allegations with knowledge of the allegations made by Ms T (described in the submission as “a psychotic child”) and allowed the allegations to build from there. It was further submitted that the Mother had “allowed her mind to be poisoned by baseless allegations”.
Counsel for the Father submitted that the Father:
a)is critically important to the children;
b)is the source of play for the children; and
c)creates a stability for the children which the Mother does not.
It was further submitted that if the Mother did not respond to counselling about her belief that the child [Y] had been molested by the Father, then a better outcome for the children would be a change of residence.
The Mother in her submission casts some doubt on Mr and Ms M as supervisors, expressing a concern that they stated that they would trust the Father “100%”. She maintains her view that the Father has abused [Y] and poses an unacceptable risk of harm to the children.
The Independent Children’s Lawyer submitted that the opinion of
Dr W should be preferred to those of Ms D, who lacks the requisite expertise in this area.
It was further submitted that the Court would be satisfied that both children enjoy a close, mutually affectionate relationship with both parents.
The Independent Children’s Lawyer does not favour the Father’s proposal that the children should live with him. Since May 2008 the children have not spent any unsupervised time with their father and the mother has been their primary carer. A significant change in the amount of time that the children spend with their mother would be a potentially distressing upheaval, especially for [Y]. The Mother’s proposal that the children should live with her seemed to be more grounded in practical reality.
The Independent Children’s Lawyer did not make any specific submission as to whether the Court should be satisfied that sexual abuse had taken place or whether there was an unacceptable risk of harm to either child.
However, it was submitted that if the Court were not of the view that there is an unacceptable risk of harm to the children, then the presumption of shared parental responsibility has not been displaced.
If, on the other hand, the Court were to determine that there is an unacceptable risk then sole parental responsibility should vest in the Mother.
The Relevant Law
The Family Law Act 1975 makes it quite clear that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (see s.60CA).
The Court determines what is in the child’s best interests by considering the matters set out in subsection 60CC(2) and 60CC(3), including 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 from being subjected to or exposed to abuse, neglect or family violence.
The Court must also consider the matters set out in subsections 60CC(4) and 60CC(4A).
I have considered all of those matters.
The Court must also consider the application of the presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them (s.61DA(1)). If the Court makes such an order, then the Court must consider whether spending equal time or substantial and significant time with each parent is in the children’s best interests and reasonably practicable (s.65DAA).
I have considered those matters, also.
Conclusions
In this case, the main issue is the allegation that the Father has abused the child [Y] and, following on from that, the question arises whether there is an unacceptable risk of abuse to either or both of the children if they spend time with the Father.
The best interests of the children are the paramount consideration. It is clear from the evidence, including the report of Dr W, that it is of benefit to the children to have a meaningful relationship with both parents. It is noteworthy that [Y] and [X] were observed by Dr W to respond positively to seeing their father for the purposes of observation in connection with the preparation of the Single Expert Report. Subject to any concerns relating to the need to protect the children from an unacceptable risk of harm, it is clearly in their best interests to have a meaningful relationship with their father, as well as their mother, who is their primary caregiver.
In dealing with allegations of abuse of a child by one of the child’s parents, the Court should be guided by the principles set out by the High Court in M v M[35]. The Court should not make a parenting order if to do so would expose the child or children to an unacceptable risk of sexual abuse.
[35] (1988) 166 CLR 69; 82 ALR 577; 12 Fam LR 606; FLC 91-979
The Court cannot make a definitive finding that the child [Y] has been the subject of abuse by the Father. However, the Court must consider whether there is a risk of abuse occurring if the children are alone and unsupervised in the presence of the Father and, if so, what is the magnitude of that risk.
The Father has denied any abuse of [Y]. The investigation by the Department of Community Services and by JIRT did not elicit any disclosures by [Y] that justified any action being taken. There is no longer an Apprehended Violence Order in force.
Dr W was critical of the involvement of Ms D in interviewing the child and I am persuaded that little weight should be given to her account. As Dr W pointed, Ms D’s qualifications and expertise are not in this sensitive area.
The Father has submitted that the Mother has allowed her mind to be poisoned by the accusations of Ms T and has remained convinced of the father’s guilt, notwithstanding a preponderance of evidence to the contrary. He even told Dr W that the child had been manipulated by the Mother to say the things that she had said in order to further her own interests in these proceedings.
I do not accept this submission. The Mother had separated from the Father because of his erratic behaviour, which had involved verbal abuse and spitting in her face. It seems unlikely that she would have seen the need to fabricate allegations of abuse against the Father in order to bolster her case to have the children live with her.
The Father submits that the Mother may have allowed her mind to be poisoned by Ms T’s accusations. Ms T did not give evidence in this case. She did not depose to an affidavit setting out her allegations. She declined to give evidence, even by telephone, and the only role she played was to seek to be excused from giving evidence. Whatever
Ms T’s claims may or may not be, they do not amount to any evidence against the Father in this case.
The evidence to be relied upon comes from the Mother, the maternal grandmother, Ms J and her mother, Ms F.
I observed the Mother whilst she was giving evidence and listened to her evidence very carefully. She appeared to give a very believable account of what she said [Y] had disclosed, although she at first did not want to believe that the child had actually disclosed abuse by her father.
The evidence of the maternal grandmother, Ms S, corroborates the mother’s evidence as to the child’s disclosures and her sexualised behaviour.
However, it is the evidence of Ms J and her mother, Ms F, that I found particularly persuasive. There is no evidence that the Mother coached [Y] into making the disclosures that she did or that she in some way conspired with either [Ms J or Ms F] to make up this story.
Ms J did depose that the Mother had spoken to her previously about her concern that [Y] was complaining of a sore vagina and asked her if she had noticed anything strange about her behaviour, but the evidence goes no further than that.
Ms J’s evidence is that [Y]’s disclosures to her were unsolicited and caused her so much shock and confusion that she telephoned her own mother, who soon came over and also received an unsolicited disclosure by [Y], which Ms J confirmed.
My observation of Ms J was that she was a very good witness. She was credible and definite, but did not appear to exaggerate. She herself is a young mother, and her reaction to this disclosure was to seek help from her own mother. I regard her as a witness of truth.
Similarly, Ms F’s evidence was credible and persuasive.
It is important to consider the fact that Ms F is the Father’s adopted sister and Ms J is his niece. By taking the action that they did, they have in effect severed the relationship with the Father. Why, it should be asked, would Ms F and Ms J side with the Mother against their own brother and uncle?
The evidence of Ms F and Ms J is of such strength that I have a serious concern that the child [Y] would be at an unacceptable risk of harm of abuse if she were in the presence of her father without adult supervision.
However, it cannot be said that the evidence is sufficient to establish an unacceptable risk of harm as far as [X] is concerned. [X] is a boy and he is older than [Y]. [X] is ten years and eight months old.
There is no evidence that [X] has at any time been the subject of sexual abuse by his father. There is no complaint that he has ever been abused and the Mother has never suggested that the Father has abused him.
A finding that there is an unacceptable risk of harm in respect of a little girl who is now six years and seven months old does not, without more, lead to a finding that there is the same risk of harm to a boy of [X]’s age.
The finding of a risk of harm in respect of [Y] has a significant effect on the orders to be made by the Court. First, it means that it is not in the best interests of the child that she live with the Father. Further, whilst this is not a case where the child should spend no time with the Father, the time must be the subject of supervision. The Mother has in fact consented to an interim order increasing the time that the Father spends with the children on a supervised basis from two hours to three.
It follows that the child [Y] should continue to live with the Mother. Clearly, if [Y] is to live with the Mother, then so should [X]. The evidence is that the children have a good relationship with each other and there is no reason why they should be separated.
The finding of unacceptable risk of harm in respect of [Y] leads to a finding that it is not in her best interests for her parents to have equal shared parental responsibility for her. Notwithstanding the fact that a similar finding has not been made in respect of [X], in my view the level of hostility between the parties is such that equal shared parental responsibility is not in [X]’s best interests, either.
I propose to make an order that the Mother have sole parental responsibility for the children.
[X] has been seeing his father under supervision for over two years. There is no need for it to continue. It is time for him to be able to establish a more normal relationship with his father, which can include spending overnight time with his father.
The Father gave evidence that he has formed a new relationship with a lady who stayed overnight on two occasions each week. It is surprising that the Father never arranged for this lady to make an affidavit. The Court has no knowledge of her whatsoever, not even her name. Bearing in mind the fact that this lady is apparently a permanent part of the Father’s life, it was a rather unrealistic proposal for him to put to the Court that the children should live with him and, at least on a part time basis, a completely unknown person.
However, I am not of a view that this factor should prevent the Court from making a parenting order that would allow [X] to spend more time with his father, including overnight time.
The father’s time with [Y] should continue to be supervised. In my view, [X] should still accompany [Y] when she spends time with her father, as there is evidence that this arrangement has worked well.
Dr W has addressed the question of the effect on the children if [X] were to have extended, unsupervised time with his father whilst [Y] continued to see her father under supervision. His view that [X] would be relatively untroubled but there may be a need for counselling to assist [Y] to accept the reasons why the same regime should not apply to her.
Dr W gave evidence that it was probably time for the supervision to move in from [omitted] to a more community based supervision. Whilst the Mother has been rather lukewarm about Mr and Ms M, whom the Father has proffered as potential supervisors, each of them has given evidence and would, to my mind, be suitable supervisors.
[Y], and [X], for that matter, cannot keep seeing their father in a contact centre. Whilst it may well be a good contact centre, community based supervision offers a broader range of activities and a change of scene. It would also be a more natural environment for [Y] to see her father in a setting other than a contact centre.
Dr W gave evidence that the goal would be to reach a stage where supervision would no longer be necessary, and suggested that this might not be until [Y] had reached the end of primary school. That is some years off, and I do not consider it to be appropriate to make any order at this stage as to when supervision might cease.
I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 15 June 2011
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