SENN & JOLIMONT
[2007] FamCA 1740
•28 August 2007
FAMILY COURT OF AUSTRALIA
| SENN & JOLIMONT | [2007] FamCA 1740 |
| FAMILY LAW – CHILDREN – With whom a child lives – Best interests of child – Allegations of Sexual Abuse | |||
| Family Law Act 1975 (Cth) | |||
| Napier v Hepburn (2007) 36 Fam LR 395 | |||
| APPLICANT: | Ms Senn | ||
| RESPONDENT: | Mr Jolimont |
| INTERVENOR: | Department of Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Ms O’Connor |
| FILE NUMBER: | PAF | 2922 | of | 2004 |
| DATE DELIVERED: | 28 August 2007 |
| PLACE DELIVERED: | Parramatta |
| JUDGMENT OF: | Flohm J |
| HEARING DATE: | 26-28 February 2007, 1, 2, 5, 6, 7, 8 & 9 March 2007, 23-25 May 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr P Schroder |
| SOLICITOR FOR THE APPLICANT: | Watson Stafford Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr G Thistleton |
| SOLICITOR FOR THE RESPONDENT: | Coode & Corry Solicitors |
| COUNSEL FOR THE INTERVENOR | Mr Anderson |
| SOLICITOR FOR THE INTERVENOR | NSW Crown Solicitors Office |
COUNSEL FOR THE INDEPENDENT CHILDREN’S
LAWYER: Ms G O’Connor
SOLICITOR FOR THE INDEPENDENT CHILDREN’S
LAWYER:Legal Aid Commission of
NSW
Orders:
That all previous parenting orders in relation to S born on … July 2001 (“the child”) are vacated.
That Mr Jolimont (“the father”) and Ms Senn (“the mother”) are to have equal shared parental responsibility for decisions relating to the major long-term issues for the child.
That the child is to live with the father who is to have sole responsibility for decisions as to the child’s daily care during periods when the child is living with him, and this Order is to take effect from 10.00am on Saturday 1 September 2007 with residence changeover to occur at the Central West Contact Service (“CWCS”) at Harris Park.
That the child is to spend time with the mother as follows:
(a)Each alternate weekend from 9.00am Saturday until 6.00pm Sunday evening commencing on Saturday, 15 September 2007.
(b)Each alternate Saturday from 9.00am until 6.00pm commencing on Saturday 8 September 2007.
(c)During the Christmas festive season in 2007 from 3.00pm Christmas Day until 6.00pm on Boxing Day.
(d)For a period on the child’s birthday as agreed between the parents, and in the absence of agreement from 3.00pm to 8.00pm.
(e)For a period on Mother’s Day as agreed between the parents, and in the absence of agreement from 9.00am to 6.00pm.
(f)Commencing with the second term school holidays in 2008, for one half of each school holiday period as agreed between the parents and failing agreement for the second half of school holidays which commence in 2008 and each alternate year thereafter and for the first half of school holidays which commence in 2009 and each alternate year thereafter.
(g)In those years when the child is living with the father in the first half of the Christmas school holidays, the mother is to spend time with the child from 3.00pm Christmas Day until 6.00pm Boxing Day.
(h)At any other time as agreed between the parents,
and the mother is to have sole responsibility for decisions as to the child’s daily care during periods when the child is living with her.
That in the event that the child is spending time with the mother at the following times the child is to live with the father:
(a)For a period on the child’s birthday as agreed between the parents, and in the absence of agreement from 3.00pm to 8.00pm.
(b)For a period on Father’s Day as agreed between the parents, and in the absence of agreement from 9.00am to 6.00pm.
(c)In those years when the child is spending time with the mother in the first half of the Christmas school holidays, the child is to live with the father from 3.00pm Christmas Day until 6.00pm Boxing Day.
That following the commencement of the third school term in 2008, and each school term thereafter, the father may, upon the giving of 14 days notice in writing to the mother, suspend Order 4(b) hereof on one occasion in each school term, and the suspension may occur on a long weekend.
That changeover of the child’s care is to occur at CWCS, and in the event that that Service is closed on a Public Holiday or otherwise unavailable then changeover is to occur at the McDonalds restaurant in … or such other McDonalds restaurant as is agreed between the parents.
That the mother is to have telephone communication with the child on each Tuesday and Thursday evenings between 6.00pm and 6.30pm.
That the mother and the father are to each enrol in and complete a Positive Parenting Program, such course to be completed within a period of 12 months from the date of these orders.
That the father is to sign all documents and do all acts necessary to authorise the school at which the child may from time to time attend:
(a)to furnish the mother with copies of all school reports, notices and advices concerning the child and any activity involving the child;
(b)to make available to the mother order forms for school photographs of the child.
That each parent is to keep the other informed at all times of their respective residential address and telephone number.
That each parent is to provide to the other as soon as possible after such occurrence, details of any illness or injury to the child whilst in their care requiring specialist medical attention or hospitalisation, including the name and address of the medical specialist or hospital.
That each parent is restrained from denigrating the other parent or their family to or in the presence or hearing of the child, and from causing or permitting any other person to so denigrate to or in the presence or hearing of the child.
That pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all documents produced to the Court in response to subpoena or tendered as an exhibit in the proceedings be returned at the expiration of fifty-six (56) days from today’s date.
That all outstanding applications are dismissed and removed from the Pending Cases List.
IT IS NOTED that publication of this judgment under the pseudonym Senn & Jolimont is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAF 2922 of 2004
| MS SENN |
Applicant
And
| MR JOLIMONT |
Respondent
And
DEPARTMENT OF COMMUNITY SERVICES
Intervenor
REASONS FOR JUDGMENT
the applications
Mr Jolimont ("the father") and Ms Senn ("the mother") are the parents of S, born in July 2001 (“the child”). Each parent seeks orders which reflect their opposing view of what is in the child’s best interests.
The father seeks orders that the child reside with him and that any time the child is to spend with the mother should initially be fairly restricted, before moving to weekend and school holiday periods. A residence order in favour of the father is supported by the Independent Children’s Lawyer, although there is some diversion between the position of the father and the Independent Children’s Lawyer as to the time that the child initially spends with the mother following any change of residence.
It is argued on behalf of the father and the Independent Children’s Lawyer that the mother has raised unfounded allegations of sexual abuse against the father, and that unless there is a change of residence the child's relationship with the father will forever be sabotaged by the mother raising further similar allegations and continuing to align the child with her position. It is further argued by the father and the Independent Children’s Lawyer that the mother has demonstrated not only that she does not have the capacity to meet the child's emotional needs, by virtue of her unnecessarily involving the child in unfounded allegations of sexual abuse, but also does not have the capacity to provide for the child's physical and intellectual needs, by virtue of her demonstrated neglect of these areas in the upbringing of her older children, who remain in her care.
The mother seeks orders that the child remain living with her and that any time the child spends with the father should be supervised. The mother's position is supported by the Department of Community Services ("DOCS"), who have intervened in these proceedings.
It is argued on behalf of the mother and DOCS that there is an unacceptable risk of sexual abuse if the child were to spend any unsupervised time with the father in the future.
There are many factual issues in dispute between these parents and these will be addressed in the course of the judgment. What is not disputed is that, as a result of sexual abuse allegations by the mother in October 2004, all contact between the father and the child was supervised from that time until the conclusion of the final defended hearing in August 2005. Shortly after the allegations were made in October 2004 the mother moved with the child to live in Queensland. There is some dispute about what supervised contact the father had with the child, and the circumstances thereof, until April 2005 when the mother was required to return the child to the Sydney area by order of this Court. Thereafter, the father's supervised contact with the child continued until August 2005, when, on the third day of the final defended hearing, the parties entered into consent orders which provided for unsupervised contact between the child and the father to be reintroduced a month or so thereafter. Those consent orders included an agreement on the mother's part to remain living with the child in the Sydney area. The father’s contact with the child commenced as agreed, but in late October 2005, not long after unsupervised contact was re-established, allegations of sexual abuse were once again raised by the mother. Thereafter the father had no contact at all with the child for a substantial period of many months and when contact recommenced it has been supervised up to the time these proceedings commenced. My calculation is that there was a gap of about 10.5 months between the October 2005 allegations and the father seeing the child again.
The parties' applications
The mother's Amended Application in these proceedings was filed on 6 June 2006 and sought orders as follows:
1.That Order 4, Order 6, Order 10 (as varied), Order 11.1, Order 11.3 and Order 14 of the Orders made in the Family Court on 3 August 2005 (‘the Family Court order’) be discharged.
2.That Order 4 and Order 5 of the Orders made in this Court on 16 December 2005 (‘the FMC orders’) be discharged.
The father filed an Application in these proceedings on 20 April 2006, and sought the following orders:
1. That the orders made by the Family Court of Australia on the 3rd of August 2005 be discharged.
2.That the child of the relationship [S] born […] of July 2001 live with the applicant father.
3.That the applicant father be responsible for the day to day care, welfare and development of the child.
4.That the applicant father and respondent mother be jointly responsible for the long term care, welfare and development of the child.
5.That the respondent mother have reasonable contact with the child.
Brief chronology of events
The background facts of this matter, briefly stated, are as follows. The father was born in 1961. The mother was born in 1972. In 1989 the mother’s first child EP was born. In 1995 the mother’s second child NR was born. The parties commenced cohabitation in April 2001 and in July 2001 the child the subject of these proceedings, S, was born.
On 12 October 2004 a risk of harm report was made by the mother in relation to the allegations of a sexual nature involving the father and S. On this date the parties separated.
On 14 October 2004 JIRT officers interviewed S and on 15 October 2004 the child was examined by Dr B at Westmead Children’s Hospital.
On 4 November 2004 the child was again interviewed by JIRT. In late November 2004 the mother and the three children moved to Queensland to live.
On 28 January 2005 the father commenced proceedings seeking orders that the mother to return to New South Wales with the child.
On 8 April 2005 the mother returned with the child to New South Wales from Queensland pursuant to an order of the Family Court and the father commenced supervised contact with S.
On 21 June 2005 Dr W’s first report was released and on 3 August 2005 final orders were made by consent on the third day of a hearing in the Family Court. The orders included that S was to live with the mother and that the father was to have unsupervised overnight contact. The mother and S travelled to Queensland between contact visits. In September/October 2005 unsupervised contact commenced in Sydney and on 20 October 2005 the mother and S travelled from Queensland to Sydney; the mother says the reason was to reconcile with the father and the father says the reason was that the mother was going to leave S in his full-time care so the mother could live in Queensland.
On 22 October 2005 the parties had an argument, and a violent incident ensued. The mother was charged with malicious damage and subsequently convicted.
On about 27 October 2005 further allegations of sexual abuse of S by the father were made by the mother. On 4 November 2005 S was interviewed by JIRT. On 9 November 2005 an Interim Apprehended Violence Order for S’s protection was made, naming the father as the defendant. The mother and child again moved to Queensland.
On 16 December 2005 orders were made in the Federal Magistrates Court pursuant to a successful Contravention Application brought by the father, the orders including that S was to live permanently in Sydney.
On 4 April 2006 an Apprehended Violence Order was made at the Local Court for a period of 12 months naming S as the protected person and the father as the defendant. On 20 April 2006 the father filed an application in the Federal Magistrates Court seeking residence of S. On 24 May 2006 the Director-General of the Department of Community Services (“DOCS”) intervened in the proceedings. On 14 June 2006 the matter was transferred to the Family Court.
On 21 September 2006 orders were made for supervised contact at a Contact Centre and on 23 September 2006 the father had his first supervised contact with S.
On 26 February 2007 the defended hearing commenced.
The mother's case
The mother provided affidavit evidence and was cross-examined, as were her two witnesses, Ms J and Ms P, who both support the orders sought by the mother. The maternal grandmother provided an affidavit in the mother's Case in Reply but was not required for cross‑examination. The mother's case, as it unfolded, contends that the orders she seeks are in S’s best interests because:
(i)The father sexually abused S in October 2004 and again in October 2005, and accordingly there is an unacceptable risk of physical and psychological harm to S if she were to spend any time at all with the father in the future, other than in a supervised setting.
(ii)During the parties' cohabitation the father was a harsh disciplinarian of the mother's two older children, and was physically violent to both the mother and to the mother's eldest child, EP.
(iii)The father has a controlling personality.
(iv)By virtue of the matters set out in (ii) and (iii) above, the child will be at risk of physical and psychological harm if she were to be in the primary care of the father.
(v)The father's proposal for primary residence is otherwise flawed because he is an inexperienced parent; he lives alone and would rely on others to assist him with the care of the child.
(vi)The child has lived all her life with her mother and siblings, and in the recent past the mother's household has been shared by Ms J and her two young daughters, and S’s wishes and attachments support an order for primary residence to continue in favour of the mother.
the father's case
The father provided affidavit evidence and was cross-examined, as were two witnesses, Mr F and Mr R, who both supported orders sought by the father. As the father's case unfolded, it became clear that he contended that:
(i)The father has at no time behaved in a sexually inappropriate manner towards S and there is no unacceptable risk of such conduct occurring in the future.
(ii)In 2004 the mother opportunistically used statements made by the child about innocent events to discredit the father at a time when she wished to move interstate with a man with whom she had formed a new relationship.
(iii)In mid-October 2005 the mother had been prepared to place the child in the father's primary care in order to remain living in Queensland.
(iv)In late October 2005 the mother either again opportunistically used statements still being made by the child about 2004 events or fabricated alleged disclosures by the child or coached or encouraged the child to make disclosures of events that had not occurred in order to live in Queensland with the child.
(v)The mother does not have the capacity to meet the child's emotional needs, by virtue of the manipulation of the child in relation to the sexual abuse allegations and her causing the child to be the victim of “systems abuse” in relation to those allegations.
(vi)The mother does not have the capacity to meet the child's physical and intellectual needs, as demonstrated by her neglect of the care and supervision of the two other children in her care, and neglect of their school attendance.
(vii)The close and loving relationship between S and the father has been damaged by the mother's sexual abuse allegations and it is only with a change of residence that a meaningful relationship between S and the father can be restored and maintained.
(viii)The father's proposal for S’s primary care is child-focused and responsible. He is an experienced parent who has provided hands‑on care for S and the other children in the past and he has extended family support if required.
Those are the matters in issue between these parents. I turn now to the evidence before me which is relevant to those issues and relevant to my ultimate determination. However, something should initially be said about the witnesses and the reliability of their evidence in this case.
Witnesses’ Credit:
It is contended by the father and the Independent Children’s Lawyer that I would make an adverse finding in relation to the mother's overall credit.
The mother provided written and oral evidence on a number of issues and whilst not all were issues relevant per se to the ultimate determination I must make, demonstrated to the Court, it is argued, that she has been less than truthful in her dealings with others and with this Court, which must influence the reliance I place on the mother's version of events which are relevant to my determination.
The evidence which, it is argued, reflected very poorly on the mother's credit includes the following:
(i)The inconsistency in the mother's versions to the Court and to others about her relationship with the father, ie. whether she was in a de facto, that is a sexual relationship, with him until separation in 2004, as she told the Court in both written and oral evidence, or whether she simply let him “board” with the family because he was S’s father, as she told others, including Dr B and the police. I am satisfied that the mother has not always been truthful on this issue.
(ii)The mother's failure to make any mention in affidavit material that the father saw the child in Sydney in January in 2005, as opposed to the concessions she made under cross-examination. I am satisfied that the mother has been deliberately evasive on this issue.
(iii)The mother's version to the Court, which conflicts starkly with her version to Dr W, about the father's contact with S in Queensland in February 2005. I am satisfied that the mother has been untruthful on this issue.
(iv)The inconsistency between the mother's evidence in these proceedings about her state of mind and how that affected the “atmosphere” between the parents and child on 22 October 2005 after she and the child got off the train in Sydney during which trip she alleges the child disclosed further sexual abuse, and her evidence to the Federal Magistrate’s Court in December 2005.
(v)The inconsistency in the mother's three different versions as to why, when provided by the police with an opportunity to give an explanation for the conduct for which she had been arrested on 22 October 2005, she did not tell the police that the child had again, including that day, disclosed sexual abuse by the father. This is a serious discrepancy, on a very serious issue.
(vi)The inconsistencies in the mother's evidence about the timing of the commencement and continuation of her relationship with Mr V.
(vii)The mother’s unsatisfactory explanation about the failure to have Mr V provide corroborative evidence about the child’s sexualised behaviour towards him and statements allegedly made to him by the child about the father’s sexual abuse, either in the August 2005 proceedings when he was physically in Sydney at that time, or in these proceedings.
(viii)The considerable body of conflicting evidence, including the mother’s own evidence, about her desire to move to and remain in Queensland, including in the period immediately following the August 2005 consent orders wherein she had agreed to reside with the child in Sydney. I am satisfied that the mother has been dishonest on this issue.
(ix)The mother's unconvincing denial of reporting Ms J to the Queensland Police about Ms J’s care of her children, in the face of the compelling evidence to the contrary of Mr R and police records. I am satisfied that the mother has lied to the Court on this issue.
(x)The mother's evidence in December 2005 to the Federal Magistrate’s Court about EP’s endeavours at school to enable him to fulfil his professional ambitions, at a time when the mother knew EP had just been expelled from school in Queensland.
(xi)The discrepancy between the mother’s evidence to the Court and JIRT police officer’s records about the extent of discussion between them after the child was interviewed by JIRT in 2005. The mother’s assertion, that she was never told that the child had probably had enough interviews and that nothing was coming out of them, is unconvincing as is her assertion that she has only now learned of what the child had said to JIRT officers about the father during the three interviews. I do not accept the mother’s pretence of ignorance of these important matters; and I note that the mother considered it to be an appropriate course to seek further JIRT intervention later in 2005.
(xii)The discrepancy between evidence given by the mother in the August 2005 proceedings and the history provided by the mother by Dr B about any allergy the child might have to soap.
(xiii)The mother's inability to satisfactorily explain why, having on her own evidence been advised to make notes of significant events, particularly disclosures by the child of inappropriate conduct, has failed to do so on a number of occasions, including failing to make notes of what the mother describes as the child's “bombshell” disclosure.
(xiv)The mother's unconvincing assertion that the child told her the father had shown her a list of things to say in the 2005 JIRT interview, given that the father had not seen the child for many days prior to the interview and when he had last seen the child he would not have known either about any subsequent abuse allegation or a JIRT interview about that allegation. Logic suggests the mother’s assertion is unlikely to be true.
(xv)The mother's contradictory versions of the level of her concerns and reactions to the family’s sleeping arrangements prior to separation, telling the police that from when she smelt semen on the child when she was a few months old she became protective. That is hardly consistent with allowing a child to sleep at night when the adult male whom she had suspected of producing the semen, an adult male who always slept naked. Significantly, the statement to the police in October 2004 includes the mother's assertion that the child sometimes asked the mother to put underpants on her when she was to sleep with the father. That statement attributed to the child appears nowhere else in the mother’s written evidence or in any history provided by the mother to others investigating the father’s conduct towards S, or, as far as I am aware, in her oral evidence.
(xvi)As for the mother's contention that she and the child came to Sydney from Queensland in October 2005, following an agreement between the mother and the father to reconcile and live together, I do not accept that that was the case. Whilst not all the text messages sent by the mother to the father in the days preceding her trip south are consistent only with the father's assertion that she was bringing the child down to live with the father and that she would thereafter return to Queensland, some, and one in particular of the messages could only be interpreted as corroborative of the father's contention, whilst none of the messages could be interpreted as corroborative only of the mother's position.
(xvii)Further, the evidence of the mother’s text message and photograph sent by the mother to the father when she was at Darling Harbour in Sydney on 11 October 2005 and the evidence of the text message allegedly sent by the mother to her mother on 22 October 2005, about which more will be said later, supports the father's contention about the agreement reached.
(xviii)When one looks at the text messages against a background of the mother's demonstrated preference at that time to be in Queensland, I am satisfied that the mother has not been truthful about her intentions in travelling to Sydney on 21 October 2005. I am satisfied that on or about 16 October 2005 when the father made it clear to the mother in a telephone conversation that he intended to go back to Court to enforce the August 2005 orders that the child live permanently in Sydney, the mother decided that the child could live with the father in Sydney so that she could remain in Queensland. I use the term "remain" because although the mother had accommodation in Sydney, renting her cousin's home in south-west Sydney, she had already sent NR back to school in Queensland by June 2005 when she saw Dr W, and had spent every possible moment in Queensland since the August 2005 hearing, which, given the contact orders then made, required the mother and S to travel a great deal. The father deposes to conversations between them at this time wherein the mother tells him she wants to go back to Queensland to live and that she regretted agreeing to do otherwise. On 18 October 2005, a few days before the mother left Queensland to travel south with S, EP was re-enrolled in his old school in Queensland. Further, I am satisfied that prior to leaving for Sydney with S the mother had told the father of her decision to bring S to live with him in Sydney and to return to Queensland.
(xix)Those findings should not be interpreted as findings that the mother was happy about what she no doubt saw as being forced to make a choice between remaining in Queensland and having S live with her. I have no doubt that she would have preferred S to live with her in Queensland. I am satisfied that either at some time on 22 October 2005 or in the days following the mother changed her mind about separating S from herself and her siblings. The mother's stated reasons for changing her mind are dealt with in later examination of the evidence of the father’s alleged sexual abuse of S, but for the purpose of the present discussion of the mother's truthfulness or otherwise I am satisfied that, in denying to this Court that she had decided in Queensland to give S into the permanent care of the father and to herself then return to Queensland and denying that she travelled with the child to Sydney in October 2005 for that purpose, the mother has been untruthful and I do not accept her evidence on this issue.
(xx)There are a number of further examples of the mother providing misleading or inconsistent evidence to the Court and to others about the child's alleged sexual abuse disclosures to her, but these will be discussed later pursuant to an examination of the evidence in relation to the alleged sexual abuse.
When one takes into account the mother’s unreliability on issues referred to in this judgment, both in the preceding paragraphs and in the following discussion of the allegations of sexual abuse, regrettably I have determined that I must question the truthfulness of the mother's written and oral evidence in these proceedings.
Further, the mother gave her evidence in these proceedings in a manner which was quite evasive and it was punctuated by pauses which frequently left me with the impression that the mother was calculating which response to a question would be of most assistance to her case. Of course a witness's presentation, however unconvincing, should be accompanied by a more tangible demonstration of lack of credit - ie in evidence itself - before an unfavourable credit finding can comfortably be made. In this case, as discussed, such evidence is before the Court on a number of issues.
The father's credit has also been the subject of some criticism. That criticism includes an alleged inconsistency between the father's oral evidence and the history he provided to Dr W in relation to the extent of his use of a private investigator to report on the mother's activities. Those two versions are not, prima facie, consistent. However, when carefully re-reading Dr W’s report on that issue, I am not entirely convinced that the only interpretation of that report is that the father was seeking to underplay the extent of his use of private investigators. On one interpretation of Dr W’s report, the incidents under discussion at the time were restricted to the 2006 events: Dr W was specifically asking the father, as he had specifically asked the mother, about the events that led to the criminal proceedings against the mother, and that the father was providing information to Dr W about surveillance of the mother at a time relevant to the mother being charged with ublic mischief. Whilst it may be that the father was not honest with Dr W on that issue, deliberately seeking to play down the extent of his use of private investigators presumably to make a better impression on Dr W, but the evidence falls short of enabling the Court to reach such a conclusion.
Although not the subject of final submissions on behalf of the mother, I note that the father was cross-examined about the apparent discrepancy between his evidence to the Court and the history provided to Dr W about his relationship with the mother in the post-August 2005 period. Taking into account all of the evidence on this issue, I am satisfied that the father has, retrospectively, sought to distance himself from a discussion with the mother at that time about reconciliation.
One issue which did form the subject of final submissions by the mother's counsel was the father's credit in relation to what he had been told by Mr F about the medical findings. The point argued is that the information provided by the father to the police was that he was informed by the man who had accompanied the mother to the hospital to obtain the final report on the child's condition that a thrush infection could be involved. The Court is aware that that man was Mr F, who has provided affidavit material and oral evidence in these proceedings in support of the father’s case. There has been no submission made on behalf of any party in these proceedings that Mr F is other than a totally reliable witness. Mr F made it clear in his oral evidence that the doctor he spoke to at the hospital did not mention thrush, and that when he spoke to the father later that day, whilst telling the father that the doctor did not think there had been any molestation, did not tell the father that the doctor had mentioned thrush. However, Mr F does recall having a discussion at another time about the possibility of thrush; he is unsure when that conversation occurred but he says it could have been a discussion with the father.
In those circumstances, in my view the evidence falls short of convincing me that the father deliberately provided misleading information to the police on that issue in order to exonerate himself. Whilst the information he provided to the police was not accurate, the fact that he identified to the police the source of the information, thus providing the police with a means by which they could verify the information, is, in my view, inconsistent with deliberately misleading conduct on the father's part, and it may be explicable in terms of confusion on the father’s part if thrush had been mentioned to him by Mr F at some other time.
There is also an attack made on the father’s credit that in his interview with the police he did not mention, as he has told the Court in these proceedings, that in the days prior to the medical examination the child had been “red raw” on the pubic area which required the application of cream. The issue is dealt with in a later discussion of the child’s physical condition and findings made that no adverse inference about the father’s credit can be drawn from this evidence in circumstances where any suggestion of “recent invention” is inconsistent with the mother’s own evidence about the child’s “red raw” pubic area and the application of cream in the day/days before the medical examination.
An issue raised in these proceedings was the assertion that the father had forged text messages which he was alleging the mother had sent, had the forgeries photographed, and had produced them for the purpose of these proceedings. The issue arose in circumstances where, during cross‑examination, the father told counsel for the Independent Children’s Lawyer that on 22 October 2005, at the mother's home in Sydney prior to the altercation which led to the mother's arrest, the mother requested to borrow his mobile phone and that she sent a text message to her own mother on the father’s phone. When asked if there was a record of that message the father responded that there “may be” as he had arranged for a number of text messages to be photographed and provided to his solicitor, at his solicitor's request. A call was made, and responded to by the father’s solicitor, for the production of a photograph of that message. The contents of that text message is corroborative of the father's position as to the parties' intentions at that time about S’s future residence, and is therefore damaging to the mother's case.
Given the unexpected emergence of that evidence, leave was granted to the mother's counsel to further cross-examine the father on this issue, which had been described by the mother's counsel as a “smoking gun”. Presumably on instructions from the mother, it was put to the father that that message was not sent by the mother but that the father had, at some later time, taken advantage of modern technology to himself invent and reproduce a message on his phone which was damaging to the mother's case, and attributed authorship to the mother and then used it in these proceedings. That was denied by the father.
The mother's counsel then put to the father, and the father denied, that the photographs of the text messages from the mother, annexed to his affidavit and covering the period from 17 October to 21 October 2005, were also forgeries. I reject that proposition in circumstances where not only had that proposition not been put to the father during his initial cross‑examination by the mother's counsel but the mother had adopted in oral evidence that she had sent those messages to the father at that time from her phone. At this point in the proceedings an adjournment was, in any event, to follow.
During the adjournment, telephone providers' records were obtained, including records of the maternal grandmother’s telephone number, and these supported the father's contention, notwithstanding a very slight time discrepancy. Further, it must be borne in mind that the father did not in fact rely on that photograph in his affidavit or oral evidence‑in‑chief, and it would never have come to the Court's attention had it not been produced in response to a call during his cross‑examination. It defies commonsense that the father and/or his legal advisers would have been prepared to take a chance that an opportunity would arise during the father’s cross‑examination to produce it. In circumstances where the mother had not earlier been cross-examined about sending that message to her own mother, the most likely explanation is that the existence and/or the significance of the photograph had been overlooked by the father and/or his legal team. I am also convinced by the father's denial of the forgery accusation and accept his response that he has no idea how to achieve that outcome by electronic manipulation.
During the course of final submissions it was argued by the mother's counsel that what he had himself referred to as the “smoking gun” text message had emerged in circumstances where cross‑examination of the mother had concluded and it had not been put to her. However it had been open to the mother to present a Case in Reply to address that issue, and indeed that course was taken. But the case in reply did not include any evidence from the mother herself, consisting only of an affidavit by the maternal grandmother, who had hitherto not been part of this case, which stated that she had no memory of receiving such a text on 22 October 2005. Given the inconclusive nature of the grandmother's evidence and the fact that subpoenaed telephone records and concessions made by the mother as to the maternal grandmother's phone number at the relevant time made it clear that a text message was sent from the father's phone to the grandmother’s phone on that day, not surprisingly the grandmother was not cross-examined.
In concluding the analysis of the father's credit, the Court also takes into account that, when the allegation of sexual abuse was made against the father in October 2004, he returned home without delay to speak to the mother about it, he made himself available to police officers for a record of interview, he embarked on two lie detector tests and it is not disputed by the mother that he invited the mother to formulate questions for those tests. Dr W’s evidence, which I accept, is that those actions by the father were the actions of a responsible and concerned parent.
Overall, in the giving of his oral evidence, I thought the father provided appropriate concessions and plausible explanations for a number of things. I formed a view that the father was doing his best to provide a truthful account to the Court. Overall, the reliability and truthfulness of the father's evidence contrasted sharply with that of the mother; and it follows that I would more readily accept the father's version over the mother's version on those issues in which there are factual disputes between the parties.
This is a significant issue in these proceedings, as Dr W says in his second report at page 14, in evidence which I accept:
"Another matter which may assist in clarification of this is the fraught and disputed circumstances of October 2005, which goes to the credit of the parties. Certainly, if the Court forms the view that the father was the less reliable, then bearing in mind the physical findings, a finding of unacceptable risk would probably be appropriate. If on the other hand it is the mother's credit which is most seriously in question, then it is quite possible that the allegations as they stand may be the result of contamination, and it is even possible, depending on the Court's assessment of the mother's credit, that the contamination may have been intentional."
I accept that evidence.
Ms J gave evidence in the mother's case and was cross-examined. Aspects of her evidence appeared to the Court to be unreliable: for instance, I consider it unlikely that she was unaware that it was the mother who made a complaint to the police about her care of the children in 2005. The fact that she is supporting the mother’s denial of that allegation demonstrates to the Court that Ms J would be prepared to give misleading evidence to the Court in order to support her friend. They have lived together now for a considerable period of time and are of support and assistance to each other, raising, as they do, their children without any real involvement by the father of any of the children. I also take into account the unsatisfactory evidence by Ms J as to the timing of a very serious statement she attributes to S to the effect that the father masturbated and ejaculated in S’s presence and the child had to change her underpants, which she reported to the mother; one clear interpretation of her evidence is that the statement was made by S prior to the mother bringing S to Sydney to live with the father. There are also conflicting versions given by Ms J about her conversation with S about an object said to be a dildo. The Court would have some difficulty in placing a great deal of weight on Ms J’s evidence, if not corroborated by a reliable witness. That is a significant finding in these proceedings as Ms J provides evidence, much of which is uncorroborated, of statements made to her by the child about abusive conduct by the father.
Ms P, another friend of the mother's, provided affidavit evidence and was cross-examined. Her main contribution to the body of evidence before the Court is as a witness to statements made to her by the child. Some suggestion was made during the course of cross‑examination that Ms P may have misheard what the child said because of a hearing difficulty but I am satisfied that Ms P gave a reasonably accurate version of what she heard the child say, which of course is not to say that the child was telling her something that had in fact occurred. She also provided evidence of statements made to her by the mother, which will also be referred to in later discussion.
The unchallenged evidence of the maternal grandmother, who provided a brief affidavit in the mother's case in reply, has already been referred to.
Mr F provided an affidavit in the father's case and was cross‑examined. I found him to be an entirely reliable witness and not only was no assertion to the contrary made during final submissions on behalf of any party, he was singled out by the mother's counsel as a particularly truthful witness, whose evidence I should accept. I accept everything that he told the Court in his affidavit and his oral evidence.
Mr R was called in the father's case and was cross-examined. I found Mr R also to be a most impressive witness. He was, in my view, clearly making every effort to provide a truthful account to the Court of events of which he had a personal knowledge. His main contribution to the body of evidence was about his involvement in the report made to the Queensland police about Ms J’s care of her children. True it is that his recollection of the time of the call from the police station in Queensland to him does not correspond with the police records in evidence; in my view that does not compromise the credibility of the significant matters about which he gives evidence.
Ms O provided an affidavit in the case of the intervening party, DOCS, and was cross-examined. Although she was not personally involved in S’s case at the time of either the 2004 or 2005 allegations, Ms O has been the officer responsible for this case since at least the date of the Magellan Report, which she prepared. That report was obviously prepared by reference to documents which came into existence at a time when Ms O had no involvement in the proceedings. Ms O is the DOCS officer who has, with brief exceptions, been in attendance throughout these proceedings and, on her own evidence, has been the DOCS officer who has provided instructions to the intervenor's legal team. Ms O adopted the proposition that when she refers to DOCS’s view she is in fact referring to her view. Of course I make no criticism of that situation, in circumstances where it is commonsense that the Director-General of DOCS delegates the making of decisions to individual officers of his Department. I was somewhat concerned however by Ms O’s frank admission that in the Magellan Report she has been selective in the inclusion or exclusion of certain very significant material and that she had used pejorative terminology. Ms O was unable to offer any explanation at all for this approach.
A police officer with the JIRT team, Ms M, provided affidavit evidence in these proceedings and was cross-examined. She provided her evidence in a straightforward, helpful manner, and there was no submission made on behalf of any party that I should do other than accept all of her evidence, including records of JIRT’s interviews with the child and records of JIRT’s involvement, including conversations, with the mother.
Dr B, a medical practitioner, provided affidavit evidence in these proceedings and was cross-examined. Whilst highly experienced in the area of medical examinations in the context of sexual abuse, in these proceedings she demonstrated herself to be capable of inaccuracies in her written records made at the time of the relevant examinations of S. The significance of that is Dr B’s own evidence that she rarely has any independent recollection of her involvement with alleged victims of abuse, and for the purpose of Court proceedings relies on her notes. Ultimately, there was criticism of the unreliability of the data with which Dr B herself had been provided by the mother, as well as the unreliability of Dr B’s evidence because of the inaccuracies in her records.
Dr W was appointed as the Court expert to prepare a report in June 2005 for the August 2005 hearing and to prepare a report for this hearing. Accordingly, he has been involved with this family over a considerable period of time and has provided two thorough reports and was cross‑examined. There is no suggestion made on behalf of any of the parties in these proceedings that the Court would find Dr W’s evidence other than entirely reliable and of great assistance.
the evidence
I certainly do not intend to set out all the evidence in this case or make findings in relation to each and every issue. There are, however, a number of issues which require the Court's examination and determination. In summary these are:
(1)Has the father sexually abused S and/or is there an unacceptable risk to the child of sexual abuse in the future if she is in the unsupervised care of the father?
(2)If there is no unacceptable risk to the child in the father's care, does any contribution by the mother, deliberate or otherwise, to the 2004 and 2005 allegations and their investigations reflect an attitude that is likely to continue and expose the child to more questions and examinations and again deprive the child of an opportunity to develop and maintain a meaningful relationship with each of her parents; if so should residence be changed and the mother's time with S monitored, at least in the short term?
(3)If there is no unacceptable risk of abuse and the Court is satisfied that the mother will in the future promote a meaningful relationship between the father and the child, are there other deficits in the mother's parenting capacity that justify a change of residence in any event, notwithstanding the child's strong attachment to the mother and her siblings, with whom she has lived all of her life?
(4)If there is evidence to support a change of residence, does the father have the parenting capacity to meet the child’s needs?
Some of the evidence is relevant to more than one issue, so, inevitably, there will be some overlap in the following discussion. I will deal with the evidence of sexual abuse separately, then with the other issues within the framework of the relevant legislation.
the allegation of sexual abuse
It is acknowledged by all parties in this case that, on the evidence before this Court, no finding to the requisite standard could be made that sexual abuse or inappropriate conduct of any kind has or has not occurred.
However a somewhat unusual aspect of this case is that the two parties to the proceedings who are not formally aligned to the position of either parent - that is, DOCS, and the Independent Children’s Lawyer - have made final submissions in support of orders which are the exact opposite of each other. DOCS urges upon the Court a finding of unacceptable risk of abuse and seeks orders that all future contact between S and the father be supervised, thus supporting the mother’s position. The Independent Children’s Lawyer urges upon the Court a finding that not only is there no unacceptable risk of sexual abuse but there should be a change of primary residence to the father, thus supporting the father’s position.
The fact that the two unaligned parties in the proceedings, who each come to Court with a genuine desire to achieve an outcome which will protect S and promote her welfare, ultimately propose opposing outcomes demonstrates that this is indeed a very difficult case.
There have been a number of cases which have guided first instance judges, in circumstances where there is insufficient evidence to find that abuse has actually taken place, away from the path of “falling back” on a finding of unacceptable risk. Those authorities emphasise the importance of the necessity to examine the allegations with a vigour appropriate to the seriousness of the allegations and the consequences which flow from such a finding in the context of parenting proceedings in the Family Court.
Napier v Hepburn (2007) 36 Fam LR 395 is a case in which an appeal was allowed because, inter alia, there was insufficient examination and inquiry by the trial Judge into whether allegations of abuse were true or false and, where those allegations were not answered, into whether an unacceptable risk of abuse existed. That case cited with approval a passage from the dissenting judgment of Fogarty, J. in N v S (1996) FLC 92-655 at 82,713, which provided guidance which might assist in assessing future risks. Fogarty, J. said:
"Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?”
Adopting Fogarty J's guide in dealing with the evidence in this case, the following issues are raised. Again, there will inevitably be some overlap in the categories into which I place the evidence.
1. To whom is it alleged the child has made the statements?
The child is alleged to have made a statement about the father's inappropriate conduct in October 2004 to the following persons: to the mother on 12 October, part of which was overheard by Ms J; to JIRT on 14 October 2004; to the mother later the same day; to Dr B on the 15 October 2004; to JIRT, in a second interview, shortly thereafter; to Ms P at the local swimming pool at some time in late 2004; to the mother, when she was in the car with Mr V in Sydney on 29 November 2004; to the mother in Queensland in late 2004 in the presence of Mr V; to the father, in the presence of Mr F on 4 May 2005; to the father on 28 June 2005; and between April 2005 and August 2005 to Ms J, these complaints continuing after the August 2005 proceedings. I take into account the evidence of each statement attributed to the child by those persons.
The mother says that between 17 and 20 October 2005, after the child’s unsupervised contact with the father had recommenced, the child made statements to her in Queensland, which continued on the train trip down to Sydney; that the child, in the mother’s presence, confronted the father on 22 October 2005, and made a further statement to the mother at a shopping centre on 27 October 2005. It is alleged that a complaint was made by the child to Ms J, the precise date of which cannot be recalled but could have been in mid-October 2005, wherein the child described an activity with the father which included ejaculation and which referred to a dildo, and a further statement made following the Bananas in Pyjamas concert which had occurred between 22 and 27 October 2005. There was a further interview with JIRT on 4 November 2005, where the child made certain statements. It is alleged that the child continued complaining to the mother during November 2005 and to the mother and Ms J between 27 and 30 December 2005. There is also allegedly a statement made by the child to the mother about a dildo, on a date which is unclear. Ms P says the child described a dildo to her during a conversation in March 2006. I take into account the evidence of each statement attributed to the child by those persons.
I note that although Dr W interviewed the child in June 2005 and, for the second time, I believe, in early 2007 the child made no statement to Dr W that was construed by Dr W as describing deliberately inappropriate conduct towards her by the father.
In his first report Dr W carefully assesses the significance of the child’s statements about the alleged 2004 abuse. He says:
I note the documents obtained under subpoena from the NSW Police Service. I note that [S] was interviewed by [suburban Sydney] JIRT on October 14th 2004 and again on November 4th 2004, apparently in the absence of the mother. I have not seen the transcript of these interviews, however I note from the case narrative of the first interview that [S] was very reserved and it took over an hour to build rapport before the interview could commence. She apparently disclosed that while sleeping with her father he touched her “works” with his foot, but that he was asleep at the time. She also indicated she had seen her father’s and her brother’s “works”, apparently during toileting. It was concluded from this interview that there was no indication of a criminal offence.
At the second interview, she was reported to have disclosed that a doll had hurt her “works” when she was sleeping with her father, but she provided no further details. At the conclusion of this interview the officers apparently concluded that, given the number of interviews that the child had undergone, that the process was abusive.
I note the documents obtained under subpoena from Westmead Children’s Hospital. In this interview [S] was assessed on October 15th 2004 by Dr [B] and a social worker. She apparently began to talk quite spontaneously about how her father used to tickle her with her doll and that he used to try to put the doll’s foot inside her “works” which hurt. When asked to show her “works” she pointed to her anus. Some redness and dilatation of the anus was noted. The genital examination was reported as abnormal with non-specific redness as well as perianal redness and anal laxity with internal redness. The findings were reported as not allowing penetrative injury to be excluded and that the genital redness suggested a strong possibility of friction secondary to sexual activity in a child who is toilet trained and does not wear nappies. (First report, page 13/14)
Although I have not seen the transcripts of the JIRT interviews, I note that the first interview was quite lengthy for a child of this age and that the “rapport building” took more than an hour. One must have concerns about the weight to be put on anything that a three and a half year old child says after more than an hour with two strangers. Nevertheless taking it at face value, the summaries which I saw of this interview and also of the interview in November do not appear to indicate anything which is clearly sexually predatory or sinister. Indeed it would seem to be consistent with the child in the first instance being rolled on by a very large father and in the second instance by some kind of tickling play with toys. Dr [B’s] account is perhaps of more concern, not so much for the statements attributed to [S] as for the physical findings. While the findings were reported in rather ambiguous terms, it is my view that the Court should have the opportunity of a second opinion from a paediatric expert in sexual abuse. I would note that my understanding of this general area is that ambiguous findings such as these often have innocent explanations. (First report, page 16)
I accept that evidence. Regrettably, the second medical opinion referred to was not obtained as recommended.
In his second report at page 10 Dr W reviews the interviews and disclosures made by the child:
I tried to enquire about what she and her father had done during the period of unsupervised contact in mid to late 2005 but she told me she could not remember. She then told me that she knew that her father had come to her preschool. In response to a question, she said that she had not seen him herself, but she had been told that he had been there. She said that he had brought something and a teacher had given it to the police.
I confirmed that she had been visiting her father for a while and then that had stopped, and then she had started seeing her father again at the Contact Centre. However when I asked her why it was that she had stopped seeing him in 2005, [S] withdrew into the corner and became mute, although she was prepared to talk in a general way about the Contact Centre visits. She told me that she draws with her father.
[S] has put on quite a bit of weight since I last saw her. She presented as a quiet, somewhat shy, chubby child. She was generally quite wary whenever the subject of her father was brought up and her responses tended to become much briefer and less informative.
At pages 10 to 14 Dr W continues:
I have perused the videotape records of the three JIRT interviews with the assistance of the transcript of each. The first interview occurred on October 13th 2004 and was conducted by a DOCS officer. The interview appeared to be quite leading in many places and it was difficult for the interviewer to maintain [S’s] attention with the interview, which lasted for a total of 35 minutes. [S’s] inattentiveness is hardly surprising given that she was only aged about 3 years 3 months at the time. What emerged from the interview was that she was aware that her parents had separated and she refers to her father having gone. With the assistance of a body parts diagram, there was some discussion about touching and she seems to describe her brother and sister both touching her in the bottom area. She also indicates that she has seen both her father’s and her brother’s “works” and she appeared to be describing having witnessed them urinating standing up.
At Question 208 she declares that “Daddy touched my works”. This seemed to be unprompted. She goes on to indicate he had touched her with his leg and that this had woken her up and that the touch had occurred on her nighttime clothing, although she mentioned that her father himself was not wearing clothes. There was some question, which became quite leading, about whether the father had hurt her on the “works”, and she indicated that he had and that it had been his leg which he had wriggled around. She indicated again that he was sleeping and that the touch had occurred through her pyjamas.
Two days after this interview she was seen at the Westmead Children’s Hospital where she made some statements which were apparently quite spontaneous about how her father used to tickle with her doll and used to try to put the doll’s head inside her “works”, which hurt. There were some non-specific medical findings which the examining doctor said did not allow penetrative injury to be excluded, and that the genital redness suggested a strong possibility of friction secondary to sexual activity.
Apparently as a result of this, a second JIRT interview was conducted on November 4th 2004 by the same interviewer. The interview questions focussed particularly on the toy “[PO]” which was described as a big toy with buttons. Later descriptions seemed to indicate that the toy did have some electronic component to it. It appeared that the interviewer was having difficulty maintaining [S’s] attention to the questions to the point that [S] became quite restless and was writing on the floor. In the face of this, rather more leading questions were put about what [S] had told the doctor, to which [S] did not appear to provide coherent replies, so the interviewer returned to questions about “[PO]” and received responses consistent with “[PO]” having been in her “works” and bum. Unfortunately however [S] became even more distractible and with repeated enquiries she seemed to indicate that her father was there when this happened but that he was sleeping. However there were also some inconsistent responses such as “[PO]” being said not to be in the bed now and also that both parents were in the bed when “[PO]” hurt her. By this point, [S] seemed to want to go to the door, and her general demeanour during this phase of the questioning was consistent with her treating the questioning as a game. Further questioning about this seemed to yield the result that [S] was in her father’s bed when “[PO]” hurt her and her mother was asleep in [S’s] bed.
After a number of questions which appeared to be quite leading, which is perhaps understandable given [S’s] difficulty maintaining a focus on the interview, the question was put directly to her whether she had told the doctor that her father hurts her “works” with “[PO]”. Her response to that was “we don’t like him anymore”. This interview lasted 30 minutes.
The third JIRT interview occurred on November 2nd 2005 and relates to the most recent allegations. At the time [S] was aged 4 years and 4 months. The interview was conducted by a different interviewer. [S] started in a very hesitant way, but in response to a question about why she was there, she indicated that her father had hurt her at his old house. She then identified on an outline the location of her vagina and where she wees from. Through a number of build up questions, she indicated that her father had poked her in the bum with his finger and that this had happened when she was sleeping. She then reiterated that her father hurt her. She also complained that her father had rung the police on her mother. She went on to talk about “[PO]” who apparently is in her father’s care at the moment.
There were a number of attempts to clarify how he hurt her “works” but she was unable to provide coherent responses and she was becoming increasingly distracted again. The questions then moved on to examine the effect of a poke by a finger in her bum, although on one occasion [S] corrected the interviewer to say that it had been her “works” and she declared that he was trying to do it to her and it hurt her.
Finally, with the use of quite leading questions, she basically indicated that her father had poked his finger in her bum in his bed, but interspersed with this was some mention of their being plastic under the sheets (possibly for bedwetting) in both she and her father’s bed and something to the effect of her father helping her mother. This interview lasted 35 minutes.
I note the Magellan Report dated October 25th 2006. I note the analysis of issues. In particular I note that two days after the first JIRT interview on October 12th 2004, the mother contacted JIRT and informed them that [S] had disclosed that her father puts [PO] in her “works” and she requested An urgent medical examination which JIRT arranged and apparently occurred later that day. They note that [S] reiterated this statement to the examining doctor. A further JIRT interview was conducted on November 4th 2004 but the disclosure was regarded as not containing sufficient details to proceed with criminal charges and no other further action was deemed necessary as the mother was demonstrating protective behaviours and an Apprehended Violence Order was in place.
Following the alleged disclosures of October 2005, [S] was interviewed again during which she disclosed that her father touches her bottom when she is sleeping in her father’s bed in the old house, but she was regarded as not being able to provide sufficient detail to substantiate that these were new allegations.
The report then refers back to the medical examination in October 2004 and emphasises that the medical findings do not allow penetrative sexual abuse to be excluded. I also note that the disclosure to the doctor was described as “spontaneous”.
I found the available materials difficult to interpret in relation to sexual abuse, and I would agree with the conclusions of the Department of Community Services staff in relation to the content of all three interviews. The third interview, which is most relevant to these proceedings is quite unsatisfactory in that it is not clear whether [S] is referring to past, present or a combination of events and when she does provide relatively spontaneous detail beyond a single central assertion, the incidents do not immediately appear to be particularly sinister – seeing the father urinating, having been kicked accidentally by the father while both were asleep, and perhaps [S] rolling onto or her father perhaps pushing a hard toy into her. At the third interview there were also references to her father’s finger in her bottom but this seems to relate to when she was in bed, there is a question as to whether the mother was in the house. Moreover it does not appear to bear any resemblance to the mother’s account of two incidents in which [S] described her father “looking for farts” apparently in situations outside the bed.
Unfortunately the interviews themselves were quite unsatisfactory. Not surprisingly for her age, but perhaps also for reasons of anxiety and perhaps even embarrassment, [S] was extremely distractible. Indeed she probably provided the most clear and coherent accounts in the first interview. After that, virtually every detail was lead by the interviewer, particularly anything that was elaborated. Moreover, it may well be that the videotape interview did not represent all of the discourse between the interviewers and the child. I note that in my first report I referred to an hour of “rapport building” with [S] before the first interview. This was clearly not captured in the videotape record which only lasted for 35 minutes and probably represents the interview after the so-called “rapport building”. Given the leading nature of the questions then, one may well have concerns about what was said before that interview as well as before the two other interviews.
I accept that evidence.
In his oral evidence Dr W says that he is aware of the contents of the interviews with the child and the interviews with the father and nothing in any of them made Dr W feel uncomfortable about the father doing something inappropriate. In his oral evidence Dr W confirms his written evidence about the child’s interviews and disclosures and does not resile from his written conclusions. I accept that evidence.
What are the statements attributed to the child about sexual abuse by the father?
I refer to and take into account each of the statements made to each of the persons referred to pursuant to the previous question. I note that the statements range from the statement that the father hurt the child's works with his leg whilst he was asleep in bed to statements in which the child allegedly describes masturbation, ejaculation and the father's use of the dildo in the presence of the child. In taking those statements into account there is no doubt that a number of the statements attributed to the child, if made and if accurately describing an event which occurred, are very serious indeed.
Over what period of time are the abusive events alleged to have occurred?
The first statement was made by the child on 12 October 2004. It is alleged that she was still making adverse references to the father, and, as I have said, in a much more explicit manner and of a more serious nature, in March 2006.
Has there been consistency in the statements about sexual abuse attributed to the child by others?
In evidence already referred to, Dr W carefully analyses the child's disclosures to JIRT in particular. He concludes, and this is not challenged, that there is a decided lack of consistency and clarity in what the child has told JIRT over three interviews. It is also quite clear, on the Court's analysis of the child’s statements made to professionals and allegedly to lay witnesses over a considerable period of time, that if the child made all the statements attributed to her, she appears to have released information about the father in a somewhat piecemeal fashion. To use an example, in November 2005 S says nothing at all to JIRT about dildos and ejaculation but there is allegedly quite a graphic description of both to Ms J at some unspecified date in late 2005. I note, as does Dr W, that the child's attempts to describe events to JIRT are almost incomprehensible but in statements she allegedly makes to the mother and to Ms J the child speaks clearly and describes serious abuse in graphic detail.
There appears no doubt that the more serious allegations attributed to the child are in clear statements allegedly made to those who may obtain some forensic advantage from such disclosure, or those who support a person who might obtain forensic advantage from such a disclosure.
Has there been consistency or otherwise in the reports made by the mother to others about the child's alleged statements to her?
The mother has reported S’s statements to a number of people, to Dr B, to Dr W, to DOCS, to JIRT, to the police and of course to the Court in written and oral evidence. A significant discrepancy is the evidence of the statement which the mother made to DOCS about the child’s statements on the train, when she eventually notified DOCS some approximately 7 days later, to the effect that the father tickled her in a game (pointing to her anus and vagina) as opposed to the mother’s version to JIRT some days later of this disclosure, which by then had, according to the JIRT records, come to include “he tickles her inside leg and moves up to her anus and vagina”. The embellished allegation is not reported to anyone else at any other time, and is not included in the mother’s evidence in these proceedings. I reject the mother’s assertion that the JIRT records do not accurately record her statement to JIRT.
It is also clear that the statement attributed to the child by the mother at the time that S allegedly touched Mr V’s genital area in Queensland, a statement which associates the father with genital touching, was never mentioned by the mother or Mr F in the proceedings which concluded in August 2005, although that incident clearly predates that period, other than to Dr W (see first report) that Mr V was one of a number of people to whom S had said that her father had hurt her with his “fingers in her bum”.
It is also my view that the mother’s evidence about the child’s statement at the shopping centre on 27 October 2005 about the father “looking for farts”, which the mother describes as “the bombshell” which caused her to eventually notify DOCS in 2005 despite the many statements attributed to S since 16 October 2005, was hardly a bombshell at all. The mother’s evidence to the Federal Magistrates Court in December 2005 was that S dropped the bombshell when she got home from that final contact visit with the father. Her oral evidence to this Court is that what the child said to her at the shopping centre was the bombshell. However, the mother had told Dr W during his June 2005 assessments for his first report that S had referred to a game which her father looked for farts in her bottom, and the mother’s oral evidence to this Court confirms her affidavit evidence in these proceedings that on 20 October 2005, in Queensland prior to boarding the train for Sydney, the child had allegedly said: “Daddy puts his fingers in my bottom and looks for farts”.
Further, whilst the mother’s affidavit material is silent about any contact at all between the father and child in January 2005, her concessions in cross examination that this had occurred was accompanied by an assertion that during one January 2005 contact the child said “Daddy, you’re a liar, you did hurt me”. Despite the many opportunities provided to the mother to provide a history of the child’s complaints, that is the first and only reference to such a statement being made by the child at that time.
The mother says, on one version, that amongst the “further” statements made by the child which prompted the mother to contact JIRT again in 2004 and which triggered another interview with the child, was the child’s identification of the troll doll YO as one of the toys with which the father had hurt her “works”. And yet another version is that the mother cannot remember if S had mentioned any particular toy at that time.
In the course of the mother’s denial, during cross examination, that the child had called excitedly to the father from the car on 29 November 2004, she said that in fact the child had said “Daddy’s trying to get me, he’ll try to hurt me”. This statement attributed to the child by the mother does not appear in any affidavit evidence or in any history provided by the mother to any other person.
Has the level of detail in the child's statement varied over time?
It is clear that it has, depending on who is attributing statements to the child. This has been covered in the previous discussion in relation to the consistency or otherwise of the child's statement.
Has there been a consistency in the clarity of the statements allegedly made by the child?
I again turn to Dr W’s evidence, which was unchallenged on this issue, that the statements made by the child to JIRT, over three interviews, varied in clarity. He says that the first interview, which occurred, I believe, on 14 October 2004, was the clearest interview and that the interviews thereafter were characterised by an inability of the child to paint a clear picture of anything that had occurred. The later interviews are described by Dr W as generally unsatisfactory because it is so unclear what the child is saying. He points out the number of leading questions that are asked of the child and indeed a careful reading of the JIRT interviews, particularly the one that occurred on 4 November 2005, indicates a process whereby a police officer was continually attempting to keep the child “on track” by the use of leading questions.
As Dr W says, and I accept, whenever the child did say something spontaneous, the child described events which had no sinister connotations whatsoever. Further, says Dr W, it was really difficult to know whether she was talking about past events or present events or a combination of both. Dr W says, and I accept, that the interview process has assisted to contaminate any statement made by the child.
What significance, if any, does the unfavourable credit findings in relation to the mother and the findings in relation to the unreliability of Ms J play in an analysis of the statements attributed to the child by these two women.
It does not appear to be in dispute that something was said by the child on 12 October 2004 about the father hurting her “works”. I am satisfied that, on all the evidence, the child was likely to have been referring to the father hurting her “works” in bed with his leg at a time when he was asleep; in other words, hurting her accidentally. It seems that that complaint about the father has been repeated many times by S since 12 October 2004 and it is likely, in the view of Dr W, who saw S in November 2006 and whose evidence I accept, that the child has been referring to the original incident in subsequent complaints. I note in this regard that the child was still talking about that incident in May 2005, to the father himself in the presence of Mr F, describing quite clearly to the father how he had hurt her with his leg in bed. In May 2005 the father had not had any unsupervised time with the child since the incident occurred.
I turn now to the subsequent statements attributed to the child, and I refer particularly to the evidence of the mother and Ms J. In the absence of reliable evidence about the context in which the child made the statements I cannot be satisfied that if the statements were in fact made they were unsolicited statements by the child rather than as a result of an idea planted by other persons. When one looks at the leading questions that have been used in this case by professional interviewers, it is not difficult to imagine a non‑professional questioner, particularly a questioner with a particular agenda, being able to obtain the information they were looking for from a young and suggestible child. If in fact the statements attributed to the child were made to the mother and Ms J, regrettably I am highly suspicious of the way in which those statements may have been obtained, given the advantage to the mother’s lifestyle preferences afforded by evidence of the father’s abuse of S.
I am particularly suspicious about the statement and actions of the child said to have occurred at the shopping centre, the child's conversations with the mother in relation to having been shown a list by the father of what to say to the police and the alleged conversations which contained the graphic description of a dildo and of the father ejaculating on the child.
I do not attribute any ulterior motive to Ms P and am of the view that the child is likely to have repeated to Ms P conversations she has had with the mother or Ms J on previous occasions in circumstances referred to in paragraph 63 hereof.
What was the significance, if any, of the timing of the allegations, by reference to events in other events in the adults' lives?
Taking into account all of the evidence, I am satisfied that from about August 2004 the mother wished to leave the relationship with the father. I am satisfied that soon thereafter she formed a romantic, if not then sexual, relationship with Mr V, who lived in Queensland and travelled weekly to Sydney to work with the father. He in fact lived with these parents during the week.
It appears likely that the child did make a statement to the mother on 12 October 2004, a statement further exploration of which by the mother would have revealed, as it was revealed in the JIRT interview two days later, that it was a description of an innocent, accidental event. Such an approach by the mother would have triggered a different reaction on the mother's part had she not seen it, as I am satisfied she did, as an opportunity to distance herself and the child from the father and to pursue her relationship with Mr V. Consistent with that opportunistic approach is the manner in which the mother thereafter set about gathering evidence of abuse, notwithstanding the advice she received from JIRT after their first interview which included that a medical examination was contrary to the child's welfare. I am satisfied, on all of the evidence, that the mother pursued the matter, including reporting further statements allegedly made by the child, until she was able to obtain the support of DOCS. In obtaining an AVO to keep the father away from the child, it enabled the mother to make her move interstate.
It is difficult for the Court to accept that the mother had a genuine belief that the child had been sexually abused by the father in October 2004, in circumstances where there followed a series of events quite inconsistent with that position: the child had contact with the father, albeit with the mother present or in the vicinity, in Sydney in January 2005 and in Queensland in February 2005. It is also clear on the evidence that August 2005 consent orders reflected the mother’s agreement to the father having unsupervised contact albeit that she was clearly not happy with the consent orders, which required her to remain in Sydney. All the evidence points to the mother's desire from at least October 2004 and probably earlier, to move to Queensland and from August 2005 to again move permanently to Queensland, despite having agreed in August 2005 to orders requiring her to remain living in Sydney with both S and NR.
As I have found earlier in this judgment, ultimately the mother decided in October 2005, albeit reluctantly, that in circumstances where the father was making it clear that he would neither agree to the child living in Queensland nor to her travelling back and forth between contact visits, it was easier to take the child to Sydney to live with the father, and herself remain in Queensland with her other two children and perhaps with Mr V, the status of whose relationship with the mother at the time is uncertain. That may well have been a continuing romantic/sexual relationship, as it emerged in the mother’s cross-examination that Mr V was with the mother in Sydney at Darling Harbour in early October 2005 and that at the end of 2005 Mr V accompanied the mother when she attended the school in relation to EP’s expulsion.
I have found that the mother travelled to Sydney with S on 20 October 2005 to leave the child with the father. The mother changed her mind about leaving S in Sydney because of the argument which developed between the parents on 22 October 2005, an argument triggered, on the father’s evidence which I accept, by the father's express disapproval of the mother's callous words to the child that “[S] will have her father and [EP] and [NR] will have their mother”, and on the mother’s evidence, which I reject, that it was triggered by a further disclosure of sexual abuse by the child albeit that the father says that earlier in the day the child had referred to him hurting her works. I am satisfied that, upon changing her mind, it then became necessary for the mother to adopt a different strategy to enable her and the child to live in Queensland with the rest of the family.
Despite the mother, some time later, attending the Local Court to face the criminal charges which arose from the parents’ argument on 22 October 2005 and it being argued on her behalf that the child’s disclosure of sexual abuse on that day triggered the mother’s attack on the father, I am satisfied that the mother's chosen strategy, which was to again raise the allegation of sexual abuse of the child by the father, had not been decided upon on 22 October when she was provided with opportunities to tell the police why the conflict had arisen that day between the parents. However I am satisfied that the strategy had certainly been decided upon by 27 October 2005 when the shopping centre incident allegedly took place and JIRT again became involved.
Has the mother's conduct been consistent with a genuine belief in the allegations she has made?
In assessing this issue, I take into account:
the evidence of the mother's accepting attitude to nudity and bathing and the sleeping arrangements in the household she shared with the father;
the evidence that the mother probably arranged but at least acquiesced to the father spending time with the family, including S, in Sydney in January 2005, accepting as I do the father's rather than the mother's version of those events, the latter version seeking to hide, until cross examination in these proceedings, any contact between the father and the child at that time;
that shortly after the mother moved to Queensland with Mr V in November 2004 there was an incident which occurred on an occasion when, despite the alleged genuineness of the mother’s concerns about sexual abuse of S, again permitted the child to be in bed with an adult male;
the events in February 2005, when the father travelled to Queensland on two occasions, accepting as I do the father’s rather than the mother's version of the time that he spent with S during family occasions in Queensland, the latter version seeking to hide throughout her oral evidence any father/child contact at that time;
the consent orders entered into in August 2005, which provided for unsupervised contact;
that between 16 and 20 October 2005 the mother's text messages to the father indicated an affectionate relationship between the child and the father, inconsistent with any complaints being made by the child at that time about the father abusing her. The complaints and their impact on the mother having arisen since as the mother has arguably reconstructed that period;
the mother's agreement to bring S to Sydney on 20 October 2005 to live alone with the father, accepting as I do the father’s rather than the mother’s version of the agreement they reached;
the fact that there was no complaint made to the police about any sexual abuse allegations made by the child when the mother had ample opportunity on more then one occasion at a police station to do so on 22 October 2005;
the fact that following 22 October 2005 the mother continued to provide the father with unsupervised contact, including additional periods not provided for in court orders until 27 October 2005.
What is the significance, if any, of the timing of the child's alleged statements by reference to other events in the child's life?
I am satisfied on the evidence before me of the child’s likely awareness that the family's move to Queensland in November 2004 occurred because she had complained that the father had hurt her “works”. Later statements allegedly made by the child to both Ms J and to Ms P after the mother was forced to return to Sydney in April 2005 were to the effect that she wanted to go home to Queensland, she did not like Sydney, she did not like her preschool, she did not want to see her father any more because he hurt her, and she wanted to go to Queensland because: "Daddy can't get me in Queensland."
In my view, it is likely that the child was well aware at that time that her mother and siblings wished to remain in Queensland and aware that the reason the family was forced to return to New South Wales was because her father wanted to spend time with her. Repeating her original complaint is explicable in terms of S seeing it as a means of the family being able to move to Queensland again.
One cannot overlook, on the father's evidence which I accept, that during a phone call to the mother in Queensland on 16 October he heard her tell S that “You’re going back to daddy, you will never see mummy, [EP] and [NR] again. Daddy wants to put me in gaol”. On 22 October 2005 the mother said to the child, in what was described by the father, in evidence I accept, as a “callous” way, that S was going to stay with her father and that the mother was returning to NR and EP in Queensland. One would not have too much difficulty understanding that those words, confirming to the child her pivotal role in where the family lived, would have made the child very susceptible to any adult inducement to complain about her father hurting her, and may arguably have caused the child to make unsolicited complaints about the father on occasions.
12. Has the child been influenced or pressured by others to make statements about the father?
On the evidence before me, the mother has also demonstrated neglect of both EP’s and NR’s daily care and supervision for significant periods of time, either delegating that care exclusively to MS J, who was also far from diligent when it came to school attendance, or allowing EP to live at a young age and without any adult supervision in a home alone and/or in a home with a couple about which the mother knew little, other than that she had met the woman on a bus and that the man had a known propensity for drunkenness and violence, in a different State to where the mother was living. I am satisfied that the mother has sought to hide from the Court the true situation in which EP was living in Queensland in early 2006, just after his expulsion from school for an incident the mother understands may have related to drug use.
S’s attendance at preschool has also not reflected well upon the mother. The August 2005 consent orders provided for S to live permanently in Sydney and be enrolled there in preschool. Instead, the mother travelled back and forth to Queensland, apparently only being in Sydney in order to provide the father with contact, and when the issue was raised by the father in the FMC on 16 December 2005, that Court varied the orders so that the child could be enrolled in Sydney by the father, but thereafter it was the mother's responsibility to get S to preschool. S’s attendance records speaks for itself. I do not consider the explanations from the mother as satisfactory. The mother eventually removed S from the preschool in which she had originally been enrolled by the father.
I am not satisfied that the mother has the capacity to meet S’s intellectual needs, by reference to her approach to the schooling of her two other children. Dr W was very critical indeed about the mother's neglect of the school attendance and other areas of NR’s and EP’s upbringing. He expressly urges upon the Court to look at how the mother has done with the other children as a barometer of how well she will do with S.
The mother's capacity to provide for S’s emotional needs has been a focus of much of Dr W’s written and oral evidence, which, he says to the Court, should be looked at very closely to indeed if there is not a finding of unacceptable risk of sexual abuse made. That evidence is:
In his first report, at page 15, Dr W says:
… Setting aside the allegations of sexual abuse in respect of [the father], I would have to say however that there may be somewhat more of a question over the mother’s consistency and depth of parenting. I note the allegation by Mr [F] that the mother had previously complained that [EP] had been sexually abused, yet she made no mention of this to me, which makes me wonder how seriously she had taken this. I also note that [EP] is not attending school at the moment and his mother did not seem to have a particularly organised or disciplined view about his educational needs, and finally I note that [NR] had had some problems with disruptive and noncompliant behaviour for which the mother attended the [local] Community Health Service. Collectively this suggests that there may be a casualness and superficiality about her parenting.
I accept that evidence.
Dr W says, in his second report, at page 13:
… I add to my earlier reasoning that her behaviour in October 2005 and the apparent meaning of her text messages still seem to indicate that she is capable of being extremely changeable.
I accept that evidence.
In his second report, at page 14, he says:
I note in addition that there are available materials which potentially could corroborate either parent’s quite disparate account of the situation immediately prior to and through October 2005 in terms of each parent’s behaviour (setting aside the sexual abuse matters). Cross examination at the hearing may well provide clarification, the outcome of which could be that one or other of the parents is found to be engaged in quite deceptive and misleading behaviour in terms of the materials that have been placed towards the Court. It is my view that this is a case where it may be reasonable to apply the same ruler to that parent’s capacity to parent in a straightforward, consistent and child centred way; that is, self serving and extremely dishonest behaviour by a parent can predict the same types of dealings with their children as well as the various authorities and bodies that deal with children such as schools and welfare authorities.
I accept that evidence.
In his second report, at page 15, Dr W says:
I have also been asked to comment as to whether there is any risk of physical or psychological harm in either household. I was unable to determine any clear physical risk, however in my view there is a possibility of psychological harm. The evidence for this is not clear in the father’s household with the exception of the obvious psychological outcomes of a finding that [S] has been sexually abused. However I note that in my earlier report I made some reference about concerns about the mother’s parenting. These would be particularly acute if the Court found that the mother’s credibility was poor and especially so if the Court found that she had deliberately attempted to deceive authorities, including the Court. Under those circumstances, not only would one expect that there would be an adverse consequence for [S’s] moral development if she were to reside in a household which was inherently deceptive and dishonest and where manipulation was the way to achieve results, but people with such propensities are also inclined to be quiet self absorbed, inconsistently attentive to their children, periodically rejecting of their children and to provide an insecure and unstable household. The father’s allegation that the mother basically intended to abandon [S] to his care would be consistent with this. This may or may not be associated with significant personality defects in the parent. I would have to say that while I did not see obvious evidence of that in the mother, this could have been concealed from me and one manifestation of it could easily be what the father alleges. The consequences of this for children have become increasingly well documented in the past two decades. Essentially they are that such children are at very high risk of emotional and behavioural disturbance in childhood and in adulthood, with the risk probably exceeding 50%.
I accept that evidence.
In his oral evidence Dr W said what he means by "intentional contamination” is that he would be particularly concerned if the Court concluded that the mother had found it was all too hard, and she decided to abandon the child to the father for a life of her own in Queensland, then, shortly after, it seemed opportune for her to make an issue out of sexual abuse again. That is a different form of misusing the child. One is abandoning, two is to subject the child to interviews, etc, again. The juxtaposition of those two things are very concerning about any parents who can be extraordinarily changeable, selfish, dishonest and self-centred; their children do not adapt well into adulthood. I accept that evidence.
Given the various findings I have made about the mother’s duplicitous conduct together with Dr W’s evidence, I am satisfied that the father has demonstrated a superior capacity to the mother to meet the child's emotional needs.
S.60CC(3)(g) – Issues relevant to cultural and lifestyle background of the child and the parents.
This is not an issue relevant to these proceedings.
S.60CC(3)(h) – Aboriginal or Torres Strait Islander heritage.
This is not an issue relevant to these proceedings.
S.60CC(3)(i) – The attitude of each parent to the responsibilities of parenthood.
The parent’s respective attitudes to the responsibility of parenthood have already been discussed pursuant to s.60CC(3)(c) and (f) above. Dr W specifically addresses this issue at page 16 of his first report and page 13 of his second report. I accept that evidence.
S.60CC(3)(j) – Family violence involving the child or child’s family member.
I have made findings in relation to the level of domestic violence which occurred between these parents, based largely, but not exclusively, on the assessment contained in Dr W’s evidence.
S.60CC(3)(k) – Any family violence order that applies to a child or family member.
This is no longer relevant to these proceedings.
S.60CC(3)(l) – Order to avoid further litigation.
In my view, this is a case where orders that would best avoid further litigation would be orders which place the child with one parent and provide no opportunity to spend time with other parent other than in professionally supervised surroundings. To have the child spend unsupervised time with the father may well result in further sexual abuse allegations being made and to have the child spend unsupervised time with the mother may well result in the mother falsely attributing to the child allegations of abuse. But the avoidance of future allegations of sexual abuse, whilst that is clearly in S’s best interests, is not the only issue in these proceedings, and cannot be determinative of the ultimate outcome.
S.60CC(3)(m) – Any further relevant factors or circumstances.
There are no other circumstances relevant to these proceedings which have not been addressed already in this judgment.
The benefits of a meaningful relationship with each parent.
As I observed in paragraph 158 above, reaching a conclusion in relation to how, if at all, an outcome might be achieved whereby the child is able to benefit from a meaningful relationship with each parent should be a conclusion which flows from findings pursuant to s.60CC(2)(b) and s.60CC(3)(a) to (m). Taking into account the findings I have made, I am satisfied that S will best maintain and develop a meaningful relationship with each of her parents if she spends time with each of them that is unrestricted as to frequency, duration and location by the imposition of professional supervision, notwithstanding other risks, identified in paragraph 200, associated with unsupervised contact.
S.60CC(4) – Consideration of the extent of each parent’s fulfilment of their respective responsibilities as a parent.
These matters have been discussed, and findings made pursuant to s.60CC(3)(c), (f) and (i) hereof. In addition thereto, I must take into account the issue of each parent's responsibility and discharge thereof in relation to the maintaining of the child.
The father has not fulfilled his obligation to maintain S and is in arrears of child support in a significant sum. This reflects poorly upon any parent. I do, however, have some sympathy for the father’s difficult financial position in circumstances where the August 2005 hearing ran for three days before it resolved, and this hearing has run for, I believe, 13 days. The father was not legally aided in either proceedings, and was represented by counsel in both proceedings – an entirely appropriate arrangement given the allegations that have been made against him.
S.60CC(4A) – The circumstances since separation.
There is nothing relevant pursuant to this subsection that has not been covered in earlier discussion of the evidence.
S.61DA - The presumption of equal shared parental responsibility when parenting orders are made.
It has been proposed by the mother that the presumption of equal shared responsibility should not apply in this case. In determining that issue the Court must decide whether:
There are reasonable grounds to believe that a parent (or their partner) has abused the child or another relevant child; or
There are reasonable grounds to believe that a parent (or their partner) has engaged in domestic violence.
In paragraph 157 above I have made a finding that there is no unacceptable risk to S of abuse by the father and at paragraph 177 above I have made a finding that the mother has not made out her case in relation to domestic violence. Therefore I am satisfied that in this case there is a presumption in favour of an order for equal shared parental responsibility.
That presumption, of course, can be rebutted if it is not in a child’s best interests to make such an order, and it is often the case that after a number of dramatic events and allegations and lengthy court proceedings, as there has been in this case, the lines of communication have broken down to the extent that an order for equal sharing of parental responsibility, being a joint process, is fraught with the potential for ongoing conflict which is never in a child’s best interests.
Having said that, the orders that I intend to make in this case may be perceived as somewhat unusual, in that, despite the events that have passed between these two parents since October 2004 and the deterioration of their relationship since October 2005, I do not consider this a case where the parent’s negative feelings about each other are so strong they would be incapable of communicating with each other for the purpose of having equal shared parental responsibility. Their relationship has been quite an unusual relationship, and particularly unusual since their separation in October 2004 when, despite the abuse allegations made at separation, there have been interludes of intimacy, periods when numerous phone calls between them have been made each day, and certainly evidence that they were able to put the 2004 allegations behind them in terms of their relationship with and ability to communicate with each other. It would be naïve to suggest that they could ever fully trust each other again, and the father in particular will be forever suspicious of the mother's motives in the future, but I do perceive their relationship to be such that S should not be deprived of the benefits of having both of her parents involved in the major decisions in her life and I intend to make an order that the parents have equal shared parental responsibility.
In those circumstances the legislation requires the Court to consider whether it would be in the child's best interests to spend equal time with each parent and whether that outcome is reasonably practical. If both of those questions can be answered in the affirmative I must consider making an order for the child to spend equal time with each parent.
Although I have found that the communication between the parents is such that an order for equal shared parental responsibility is a workable arrangement for S, I am not satisfied that these parents could successfully negotiate an equal time arrangement, or that it would be in S’s best interests to order it. Stark contrasts in their parenting styles has been identified by Dr W, in evidence I accept, and a further contraindication is the distance between the parents’ respective homes for the purpose of to‑and‑from delivery to the school S is attending.
If an order is made for equal shared parental responsibility but the Court does not make an order for the child to spend equal time with each of the parents, then the Court must considered whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether that outcome is reasonably practical.
I have decided to make orders which place S predominantly in the care of the father, who, once the sexual abuse allegations were appropriately disposed of, emerged pursuant to all of the evidence before me, particularly the evidence of Dr W, as the far more capable parent and the parent on whom the Court can rely to ensure that all of S’s needs are met, including her intellectual needs. Such an arrangement will place S with the father during the week, so that he can be responsible for her school attendance, homework and overall regular home routines. That will provide S with the opportunity to spend most, but not all, of her leisure time with her mother and siblings during the school term. She will see her mother and siblings each weekend but not for all of each weekend. In all the circumstances of this case such an arrangement will, I am satisfied, promote S’s best interests.
By way of further explanation of the orders I make, I have ultimately found in favour of the position urged upon me by the father, supported by the Independent Children’s Lawyer. Both seek orders for residence in favour of the father but the proposals diverge on the question of the time the mother spends with S. The father is concerned that if the mother's contact with the child is unsupervised, particularly in the initial period, the mother will continue to influence the child to raise allegations of sexual abuse. There is some force in that argument. The Independent Children’s Lawyer acknowledges that risk but has balanced that against the need for S to spend regular time with her mother and siblings, as well as Ms J and the two little girls with whom S has lived predominantly for the last two and a half years.
I have ultimately come to the view that it is not in S’s interests to have her time with her mother and other close family members circumscribed in frequency and duration, such as it would be if it were supervised by a contact centre, even for an initial period. I intend to introduce overnight contact with the mother sooner than has been proposed by the Independent Children’s Lawyer. If the mother is going to raise further allegations I do not see that she is more or less likely to do so if the time she spends with S does not include overnight. If the mother is going to raise those allegations, she will do it in any event, and I have come to the view that S should have an opportunity to spend some overnight time with her mother and siblings and others to whom she is close. I do accept, however, the proposal of the Independent Children’s Lawyer that S would better be able to settle into her father's home if the introduction of block holiday contact with the mother was delayed.
I have made findings about the manner in which S’s original complaint about her father was raised, being a genuine complaint of being hurt by what turned out to be an innocent activity, and that S has continued to raise that allegation for years since. I have made findings that S would be now well aware of the impact of her statements on where she and her family live and specifically who lives with who, having been told by the mother, on at least two occasions, that she is going to be separated from the mother and EP and NR, and sent to live with her father. Accordingly, I am of the view that when these orders take effect and S is separated from her mother and siblings to live predominantly with the father it is likely that S will see further complaints about her father as a means of returning to her mother, at least in the initial weeks. S is unlikely to immediately cease talking about her father having hurt her simply because this Court has determined that there has been no abusive behaviour and that her best interests are served by living predominantly with him. In fact, it seems to me that as these orders take effect S will no doubt be distressed at leaving the permanent care of her mother who has always been her primary carer and is her closest emotional attachment, and may immediately raise allegations that her father has hurt her as a means to avoid separation from her mother and siblings.
The challenge for the mother is to understand that simply because S continues to report on her father's conduct does not mean that abuse has occurred or is occurring. Dr W’s analysis of the JIRT interviews, particularly the later ones, indicates that information provided by S does indeed make it unclear whether she is talking about past or present events or a combination of both. As Dr W says, her father hurting her works in bed has been in the forefront of her mind ever since it happened years ago and the challenge for the mother is to handle any continuing statements sensibly. To do otherwise would be to perhaps again condemn the child to another “round” with the child protection authorities in a process commonly referred to as “systems abuse”.
The mother is now settled in Sydney and, on the evidence, has no intention to move. There is currently no obvious reason why she would seek to impose her own agenda, as I have found she has done in the past, upon an interpretation of any statements made by S, in order to achieve a relocation or otherwise separate the child from the father.
It may well be that, if it is the case that in the future the mother fails to deal appropriately with any statement made by the child and again condemns the child to “systems abuse” and seeks to further interrupt her relationship with the father, it may be appropriate to make the more restrictive orders sought by the father.
It remains to repeat some observations I made during the course of these proceedings. As I have said at one point in the judgment, this is a most unusual case in circumstances where the two objective parties to the proceedings, the intervening Department of Community Services, and the Independent Children’s Lawyer, have urged upon me opposing interpretations of the same evidence. Following my thorough analysis of all the issues in evidence before me and ultimately favouring the position of the Independent Children’s Lawyer in relation to the question of unacceptable risk, my rejection of DOCS’s proposal should not be read as a criticism of the position they have taken nor, more specifically, as a criticism of the competence or professionalism or judgment of any of the department's officers.
DOCS has taken a very cautious and conservative approach in these proceedings and, as I have said earlier, I am very aware of the dilemma for DOCS in terms of the community's perception of its work and that it is often “damned if it does and damned if it does not”. By that I mean that for DOCS it is a very difficult step to take not to err on the side of caution in circumstances where they are often the first to be blamed if a child is not provided with appropriate protection and suffers abuse or worse. I am satisfied that what DOCS has done in this case is, quite properly, submitted to the jurisdiction of this Court, presented the evidence of its witnesses and its recommendations, and, as Ms O has said, ultimately placed its preferred position before the Court but leaving it to the Court to determine whether or not that position is borne out by all the evidence. That is an entirely proper and professional approach and no criticism is made whatsoever of the manner in which the department has conduct its case in these proceedings.
I certify that the preceding two hundred and twenty three (223) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Flohm
Associate:
Date: 20 March 2008
Key Legal Topics
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Family Law
Legal Concepts
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Procedural Fairness
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