Senna and Jensen
[2016] FamCA 373
•20 May 2016
FAMILY COURT OF AUSTRALIA
| SENNA & JENSEN | [2016] FamCA 373 |
| FAMILY LAW – CHILDREN – SEXUAL ABUSE – Best interests – Whether the children are at an unacceptable risk of sexual abuse in the father’s care – Where the children have made various consistent disclosures – Where the mother has attempted to facilitate a meaningful relationship between the children and their father. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60CA, 60CC, 65DAC |
| Briginshaw v Briginshaw (1938) 60 CLR 336 M v M (1988) 166 CLR 69 N and S and the Separate Representative (1996) FLC 92-655 W & W (Abuse allegations: unacceptable risk) (2005) FLC 92-235 |
| APPLICANT: | Mr Senna |
| RESPONDENT: | Ms Jensen |
| INDEPENDENT CHILDREN’S LAWYER: | Elizabeth Rayment |
| FILE NUMBER: | BRC | 11168 | of | 2013 |
| DATE DELIVERED: | 20 May 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 4, 5 & 6 February 2015 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Lawrence |
| SOLICITOR FOR THE RESPONDENT: | Alexander Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Oakley |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | ELR Law |
Orders
That all previous Parenting Orders are discharged.
That the children, B born … 2006 and C born … 2009, (“the children”) shall live with the mother.
That subject to paragraph (4) hereof, the mother shall have sole parental responsibility for the children.
That when the mother is to make a decision about any of the “major long-term issues” (as that term is defined in the Act) in relation to the children:
(a) She shall inform the father in writing of the decision to be made;
(b) She shall invite written input from the father;
(c)She shall take the father’s input into account when making the decision; and
(d) She shall inform the father in writing of the decision she makes.
That the children shall spend time with the father as agreed between the mother and the father in writing, but failing agreement as follows:
(a)For up to four hours on one Saturday or Sunday each calendar month to be supervised and to take place either at E Org, children’s contact centre at D Town or off-centre from E Org at D Town as can be arranged by the parents with the management of E Org, with the mother and the father to forthwith take all steps necessary to put such arrangements in place as soon as can be practicably arranged with E Org;
(b)Any costs imposed by E Org for the ongoing provision of supervision of the children’s time with the father pursuant to these Orders shall be borne equally by the father and the mother.
That the children shall communicate with the father as agreed between the mother and the father in writing, but failing agreement then by telephone between 5:00 pm and 6:30 pm each Sunday night on weekends when they do not otherwise spend any time with the father and on the special days listed below:
(a)The father shall make the telephone call to the mother’s mobile telephone or landline telephone (if she has one), which number/s the mother shall keep the father informed of at all times;
(b)The mother shall make the children available to speak with the father for up to a maximum of 20 minutes each child during those hours;
(c)The mother shall give the father and the children privacy during their conversations;
(d)The special days on which the children shall communicate with the father pursuant to these Orders are Father’s Day, the father’s birthday, the birthdays of each of the boys, and Christmas Day.
The mother shall provide the father with copies of each of the boys’ school reports as she receives them.
That the Independent Children's Lawyer be discharged.
That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Senna & Jensen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 11168 of 2013
| Mr Senna |
Applicant
And
| Ms Jensen |
Respondent
And
| Independent Children's Lawyer |
REASONS FOR JUDGMENT
These parenting proceedings are about the two boys, B (almost 10 years of age) and C (7 years of age).
A hearing of the competing applications of their parents took place before me over three days in February last year. Unfortunately, my judgment has been reserved for a long time since then. That is regrettable. Such a long period of time between trial and delivery of judgment in parenting matters like this prolongs the uncertainty in the lives of the parents, their extended families and in the lives of the subject children that being involved in a parenting dispute in the courts otherwise creates. The difficult issues involved in this case, the time required to consider the evidence and to write this judgment and the number of other equally difficult and complex cases that have had to be heard and decided in this Court since the trial concluded are all factors that have contributed to the length of time between concluding the trial and delivering this judgment.
Determination of the proper parenting orders to make in this case in respect of B and C, having regard to the boys’ best interests as the paramount consideration, involves consideration of the mother’s belief that the boys have been subject to sexual abuse by and in the presence of their father. She argues that as a consequence the boys’ time with the father should be supervised on an ongoing basis.
The father denies that he has abused the boys. He contends that the allegations made against him are baseless and made to restrict his relationship with the boys as they grow because the mother is jealous of him.
Although he was represented by solicitors early in the proceedings and his affidavit of evidence in chief relied upon at the trial was prepared by those solicitors, the father was unrepresented at the trial. Of course, that made his task more difficult for him. The mother was represented by solicitor and counsel and the Court was assisted by an Independent Children’s Lawyer (“the ICL”) who briefed counsel for the trial. The father’s lack of legal representation is regrettable; no doubt a reflection of the scarcity of legal aid resources currently available. The fact that he was not legally represented was a matter that remained in the forefront of my mind when considering the evidence in this case.
The Court also had the benefit of two family reports that were prepared by a family consultant over the period of time from commencement of the proceedings to the hearing. There was also evidence from a psychologist who the mother took the boys to for a number of appointments prior to the commencement of the proceedings by the father, as well as evidence produced under subpoena by the Queensland Police Service (“QPS”) and the Queensland Department of Communities, Child Safety and Disability Services (“the Department”).
By what legal principles does the Court deal with these allegations of sexual abuse in this case?
Many of the parenting cases heard in this Court involve allegations of sexual abuse made by one parent against the other. They are, almost universally, very difficult cases to hear and to determine. I have observed many times now in deciding such cases that the High Court has held that parenting orders cases are not about one parent enforcing a right to have a child live with or spend time with him or her. The Court’s duty in such cases is to determine and make such orders as, in the opinion of the Court, will best promote and protect the interests of the child or children. In doing that, the High Court acknowledged, the Court will:
give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access [as were the terms used at the time of that judgment], but because it is prima facie in the child’s interests to maintain the filial relationship with both parents.[1]
[1]M v M (1988) 166 CLR 69 at page 76.
In the course of its judgment in the case I have just referred to, the High Court also relevantly observed that:
…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.[2]
[2] At page 76.
The Judges of the High Court also said:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.[3]
[3] At page 75.
Of course, the High Court’s reference to “the paramount issue which [this Court] is enjoined to decide” is reference to the statutory requirement that the Court’s task in determining the proper parenting orders to make in respect of any child is to be undertaken with mandatory regard to that child’s best interests being the paramount consideration (see s 60CA of the Family Law Act 1975 (Cth) (“the Act”)). In that respect, the Act also sets out a list of matters that must be considered by the Court in determining what is in a child’s best interests (see them set out in s 60CC).
The High Court acknowledged in that decision 28 years ago that disputed allegations of sexual abuse will naturally have an “important, perhaps decisive, impact” on the decision in a parenting orders case. That clearly applies to this case, too. One of the central issues in the determination of the parenting orders in this case is the alleged sexual abuse of the two boys by and in the presence of their father. My findings in respect of those allegations will be centrally important in determining the proper parenting orders to make in this case.
As I so often say in cases like this, it is worth reflecting upon the seriousness of the issue of child sexual abuse. Fogarty J, a former Judge of this Court, said in his judgment in the Full Court decision of N and S and the Separate Representative (1996) FLC 92-655 at 82,709:
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.
In 2005 the Full Court said in W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 those words remain “poignant and relevant”. In my judgment they remain so today. That said though, significantly, the High Court went on in M v M to expressly say (at pp 76-77):
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p 362. There Dixon J said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
That test, known as the “Briginshaw test”, has been given legislative force in s 140 of the Evidence Act 1995 (Cth), which provides:
s 140(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.
The High Court in M and M continued, (at page 77) to say:
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
….
The test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse (my emphasis).
In W and W (Abuse allegations: unacceptable risk) the Full Court discussed what it called ‘the unacceptable risk test’ and said (at para 111):
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S… do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
At paragraph 105 of that case, their Honours of the Full Court, referring to that judgment of Fogarty J in N and S and the Separate Representative, said:
Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
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 have the allegations been made? 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?
Accordingly, pursuant to statute and authority, all of the evidence in this case must be considered and weighed in the light of the “primary” and “additional” considerations mandated by s 60CC of the Act in determining the parenting orders that are in the best interests of B and Kai, with particular focus being on determining whether they will be exposed to an unacceptable risk of harm by way of sexual abuse, or otherwise, in their father’s care.
Some of the background facts in this matter
The father was born in Africa and moved to Australia with his parents in 1989 when he was around 15 years of age. The father is now 41 years of age. In addition to the two boys the subject of this case, the father has a son with a woman who was his girlfriend before he met the mother in this case. The evidence is that the woman and child now live in Europe. The father said the woman left him when she was pregnant with that child and that he has lost contact with her.
At the time of the trial, the father said he was working casually and was living by himself in a one bedroom unit in Suburb F in Brisbane.
The mother is now 32 years old. At the time of the trial, she was living with her husband, who she married a few years ago, and the two subject children in a home at Suburb G in the north of Brisbane. She was working running her own small family business.
The mother and father first met in Region H in 2002 on the mother’s 18th birthday. They commenced a relationship straight away and within weeks the father was living with her in her parents’ home. The mother said that they had a happy relationship for the first three years and that in 2005 her parents moved into a home that had a flat underneath it into which she and the father moved.
The mother said that the father could not maintain steady employment and started to drink more alcohol, at the same time trying to conceal that by hiding bottles that he was drinking from, around their home. The mother fell pregnant unexpectedly around this time and B was born in 2006. The mother said that her relationship with the father was deteriorating after this time with the father drinking more, going out by himself a lot and becoming aggressive with her when he was under the influence of alcohol.
In 2007, the couple and their child moved to their own home in I Town.
Significantly, in my judgment, the mother gave evidence that the father seriously mislead her, from the moment they met, about his age, his background and his personal family circumstances. She said that he told her initially he was only a couple of years older than her and that he had just moved from Africa to Australia on his own. She said that she first found out that this information was false a few years later when they ran into a relative of his by chance at a theme park. She said the father was trying to prevent her from talking to this relative at that time. She said that after that event she made some enquiries and found out that the father had actually been living in Australia since he was 14-15 years old and that all of his family were living here, too. She learned that he had not told her of his correct name or age either. She said that when she raised all of this with him he broke down and cried and was inconsolable. She said that she forgave him but that she then noticed him drinking a lot more alcohol and she started finding more and more alcohol hidden all over the house.
The mother said that after this time the father would sometimes take baby B for long walks and not tell her where they were going and would even turn his phone off so that he could not be contacted whilst out with the baby.
The mother said that her separation from the father occurred in 2008 when she was pregnant with their second son, C, after an incident where the father came home drunk and threw the dinner that she had prepared for him all over the room. She said that their son, B, ended up with food over him and that she was not prepared to tolerate this type of behaviour, so she packed up her belongings over the subsequent days and took B back to live with her parents.
None of this evidence that I have referred to was disputed by the father. I accept it as true.
Also of significance in this matter is the undisputed evidence that after the separation of the mother and the father, their relationship was fairly amicable. The mother said that the father informed her he was going to Alcoholics Anonymous and that she believed he was looking a lot better and as if he was less dependent upon alcohol. By agreement between them, the child, B, started spending time, including overnight time, with his father. After the second child, C, was born, both children spent time with the father with the father spending some overnights with them, staying at the mother’s residence. Over the next few years, the father moved about fairly frequently and there were times when he was living in shared housing with other adults. The children did not always stay overnight with him in those shared residences, but did in at least one of them, which he shared with female housemates. The boys would, by agreement, sometimes also stay with him at the paternal grandmother’s house in Suburb J. Clearly, by then he had re-established a relationship with his mother that must have been in abeyance for the first few years of the couple’s relationship.
In or around September 2009, the mother commenced a relationship with the man who she has since married. He is North African by origin but was living in Asia when they began communicating with each other through the internet. He moved to Australia in June 2012 and the mother married him soon after his arrival. They have been living together since.
It was in 2010 that the mother and two boys moved out into their own home and in late 2011/early 2012, the mother told the father that he needed to find his own home that was suitable for him to have the boys stay with him as she could not simply continue to accommodate him turning up whenever he felt like it at her place, which is what she said he was regularly doing before then.
The first emergence of concerns on the mother’s part
The mother said that she made arrangements with Relationships Australia in early January 2012 to begin family dispute resolution processes. She had an intake interview on 13 January, 2012.
In the mother’s trial affidavit, she said that at that interview she expressed some concerns she had about some of the children’s behaviours she had been observing. Examples she gave included the children crying before showers, the children crying when the father was changing their nappies, and demonstrations of “separation anxiety” when leaving her. Rather curiously, having regard to the detail of those matters just referred to, the mother said that the Relationships Australia (“RA”) interviewer told her that “these were some possible signs that could be related to sexual abuse”. The mother said that the interviewer gave her referrals to places she could talk to about the matter.
The Department’s records reflect a first notification to the Department of concerns about the children and the father’s care of them on that same day as the mother’s interview at RA, on 13 January, 2012. Although the identity of the notifier is not given, the notes of the notification reflect that it was not the mother and is more likely to have been the RA counsellor who spoke with the mother that same day. Information recorded in the notification includes that the mother had reported that she noticed the children do not like their father changing their clothes, toileting them or bathing them and that they become angry and aggressive with him when he tries to do any of these, hitting him and pushing him away. The notification records the notifier reporting that an attempt to talk the mother into applying for a domestic violence protection order had been made and that she had been spoken to about protective behaviours in respect of the children. The notifier also reported that the mother had informed that the father had disclosed to her that he had been a victim of child sexual abuse himself.
The Department’s record reflects that Departmental officers considered the notification and determined that no action was warranted at that time.
The mother said in her trial affidavit that she and her mother (who had accompanied her to the RA intake interview) discussed the interviewer’s advice on the way home from the intake interview and agreed that the father “plays with the children well” and “seemed like a good father” and that they were probably “worrying about nothing”. She said that upon her arrival at home that day, she received a telephone call from the manager of the RA run centre who advised her to “get some help” and “look into getting a protection order”. The mother said that she told the manager that she did not want to make it difficult for the father to see the children.
The mother said that she helped the father find share accommodation nearby, around this time. This was the house he shared with two female housemates. The mother met them and said it seemed like a nice environment, so she let the boys spend time with the father at that place on weekends. Clearly, she was not putting obstacles in the path of him having time with the boys then.
One of those women who the father shared a house with gave evidence at the trial for the father. She was very complimentary of the care and attention he provided for his boys when they were spending time there with him. She observed he was quite capable of caring for them.
The father was only at that place for a couple of months before he moved again. After that, he began spending time with the boys again at the mother’s home. That stopped after the mother’s new partner moved in with her in June 2012. Around this time, the mother said the father told her that he had hired a private detective to find out information about the mother such as her planned wedding date and holiday destinations, and also to “follow” her. He gave evidence at the trial that he did this because he thought that there was a chance of the mother and him getting back together. I do not accept that as truthful. I consider that may have been his hope, but I do not accept that he truly thought it might happen.
In October 2012, the father moved into his one bedroom apartment in Suburb F. The mother began permitting the boys to spend weekends with him at that apartment, going there on Friday afternoons and returning home on Sunday afternoons. She said that the boys demonstrated behavioural changes again when they started spending this time with the father, particularly when going to him at the start of such visits. The mother said she considered it to be separation anxiety again. She said that C, who had ceased regular bed wetting at night by this time, began bed wetting again after staying weekends with his father. She said B started to become very withdrawn also.
Alleged Disclosures of abuse
The mother said that on Sunday 28 October, 2012 she was putting B to bed after he had come home from the weekend at his father’s place when he told her that his bottom was sore. She said that she asked him “on the outside?” to which he replied, “no, on the inside it feels burning”. Then a few days later, on the Wednesday evening, she had showered him, when he said to her “I don’t want to go to Daddy’s this weekend”. The mother said that she asked him “why?” to which he responded “because when I’m naughty he smacks me on the private area”.
She said that on Thursday 1 November 2012, she was putting B to bed and he said to her that his bottom was still sore. She said that when she asked him what it felt like, he replied “it is still burning”. She said that she asked him if it hurt when he went to the toilet that day to which he replied “yes”.
I accept that these things were said to the mother, as she deposes.
The mother said that she took B to see a doctor on Friday 2 November with the doctor diagnosing that the pain was probably caused by constipation and prescribing medicine to treat it. There is no evidence that the mother acted in any way at that time that was consistent with thinking or believing that the boy’s remarks to her suggested sexual abuse.
The mother said that on Tuesday 6 November, at the father’s request, she allowed C to go and spend the day with the father. I expect B was at school. The father returned C to the mother at 6:00 pm. The mother said the child was in a bad mood on return.
The mother then said that on Sunday 11 November 2012, the children had both come home after spending the weekend with the father. She said that when she was putting C’s nappy on that night she noticed “a tear and a scratch near the entrance of his bottom”. She put some nappy rash cream on it and C put his hands over his face and closed his eyes as she did that. The very next morning, the mother said that she was sitting with C whilst he was on the toilet after he asked her to stay with him whilst he was there. As he was sitting on the toilet, she said that he said “I have sloppy poos today”. She went to wipe him and saw there were no faeces in the toilet, but rather just “an oily clear substance”. She called the doctors and made an appointment for the afternoon but by the time of the appointment she said that the scratch she had observed had gone away, and, unsure of herself, she cancelled the doctor’s appointment.
The mother said that on Thursday 29 November 2012, B again complained of having a sore bottom and she got some of the medication previously prescribed by the doctor and gave him that. Then, on Sunday 16 December, 2012, B wet the bed after spending the weekend with the father, the first time he had wet the bed, according to the mother, since he was four years old (two and a half years before).
Still, the mother has given no evidence and there is no other evidence that supports any finding that at that point in time the mother believed or thought that the father had sexually abused either or both of the boys.
The mother said that on Wednesday 19 December, 2012, C pulled his pants down and started dancing around to some music that was playing. The mother said that she asked him “who dances like that?” to which the child replied “Daddy. He shakes his willy like this and dances”. The mother said that she then asked B “does he?” to which B nodded in the affirmative and then put his head down.
The mother said that on Friday 21 December, C started to cry and became hysterical when she took him to hand him over to his father for the weekend. She said that this continued to happen each time C was to spend time with the father.
There is no evidence consistent with the mother having formed a view, even as at that time, that the boys were experiencing abuse in the father’s care such that she should not permit them to go to spend time with him or such that required reporting to police or the Department. This soon changed though.
The mother said that on 5 February 2013, she was putting C’s nappy on when he said to her “you can’t look at my bum”. She said she responded by saying “I don’t want to look at it; I’m just putting your night nappy on.” She said C responded by saying “Daddy does, and it’s gross”. She said she asked C “what does daddy do?” to which he responded “puts his finger in and puts water in”. She said that she then asked him “then what?” and the boy said “I sit like this and say eeer eeerr”. She said that as he was saying this he got up “on all fours kicking his legs up in the air”. She said she then said again “then what?” and C replied “Then I get the water out like this” whilst he made a pushing motion and held his genitals.
She said she then asked C “is this a story or real life?” and the boy replied “real life”. The mother said that B walked into the room at that very moment and B said “no just a story from a book” and then walked out again.
The mother said that the next night, 6 February 2013, whilst she was putting C’s nappy on for the night, she asked him “Would you be able to show me what daddy does when he puts your night nappy on?” She said that C replied by saying “he puts his finger here” whilst he pointed directly to his anus. She said she asked C “is he cleaning you?” and C replied “he is checking for blood, I poo blood at daddies’”. The mother said she asked “why do you poo blood?” and C replied “I don’t know. Lucky its better”. The mother said she then asked C to “show me again what daddy does” and C pushed one of his fingers into his anus again. The mother said that she asked C “does he clean the inside or just the outside?” to which C responded “inside”. She said that she asked him “does it hurt?” and he pulled a painful face and said “yes, he has sharp nails”. She said that she asked him “so he puts his finger inside?” and C said “only one” and then started trying to push his finger insider his anus but then said “I can’t do it. You do it, mum”. The mother said that she then said “no, that’s ok honey, I don’t need to”.
The mother said the conversation continued. She said she asked “what about the water?” and that C replied “he puts it inside my willy like this” and as he said that, he pulled his foreskin open. She said he went on to say “Then, I wee it out. Daddy drinks the water then puts it in here and I wee it out and some on my bum.” She asked “When does daddy do this?” and C replied “at night”. The mother said that B walked into the room at that time and the conversation stopped.
On 7 February, 2013, the mother said that she asked C if he would feel comfortable telling anyone else about what happened to him, like his nanna or a doctor or a police officer. The mother said that C responded “Nanna will think it’s too gross” and the mother went on to say that when she asked him about a doctor or police officer he said “yes”.
A video recording the mother made on her mobile telephone of a conversation with C, apparently had on 7 February 2013, was adduced into evidence and played at the trial. I have viewed it again recently.
The video records the mother conversing with C. It runs for about five minutes.
In this conversation, some of the questions asked by the mother have to be described as leading and asked in a way to elicit answers the mother must have been expecting, having regard to her evidence about the disclosures said to have been made to her over the preceding days. Nevertheless, I consider she is demonstrating some restraint and appearing to be genuinely trying to ask questions in a way so as not to suggest the answers to the child. The transcript of the conversation is as follows:
[C]: He did like that.
Mum: Yeah, and what else did he do? Does he put…
[C]: Water went in it.
Mum: He puts water in it. And what does he do with his finger?
[C]: Put it in my bot, bottom.
Mum: Show me? How?
[C]: Like this.
Mum: All the way in?
[C]: Yeah.
Mum: One, just one finger?
[C]: Yeah.
Mum: That one? And then what does he do with it?
[C]: And put two in it. And he put two in it.
Mum: And he puts two in it. And, does he move it?
[C]: Nah it’s just leave it where it be.
Mum: So he doesn’t move it?
[C]:Just three, it’s gonna stink, then four, I’m gonna cry, then five, I’m gonna [indecipherable] and cry
Mum: Oh
[C]: And then this many, then this one
Mum: So which, how many does he do?
[C]: Like ten thousand
Mum:No, how many does he actually put in there, at night time, when did he put…
[C]: Just three. Three
Mum: Does it hurt?
[C]: No
Mum: What else does he do?
[C]: Put a bottle in it, three bottles of it
Mum: Hmm
[C]: Three water
Mum:But does he, does he move his fingers around or does he just leave it sitting in there?
[C]:Just leave it sitting in there, and I put a nappy on and you can still feel it
Mum: You can still feel it when he puts your nappy on
(Child nods head in the affirmative)
Mum: Feels like his finger’s still there
[C]: But it’s not
Mum: Yeah. But does it hurt when he does it?
[C]: No. Just tickles
Mum:Tickles? And how do you have to lay down, does he tell you to lay down or do you sit up, what do you do
(Child lies on the floor facing down)
Mum: Like that, and how, show me what he does
(Child grabs his bottom)
Mum: Oh yeah. And what do you say?
[C]: I say don’t do that
Mum: And what does he say?
[C]: He can do that
Mum: He can do it? Do you like it?
[C]: No. I say you can’t do it
Mum: Yeah. And when does he do this?
[C]: Huh?
Mum: When does he do it?
[C]: At night time
Mum: Yeah, where’s…
[C]: And day time, night time and day time
Mum: Night time and day time?
[C]: Yeah
Mum: Where’s [B], when he does it?
[C]: [indaudible] to Daddy?
Mum:Yeah, no, when, where is [B] when daddy is doing that to you, where’s [B]?
[C]:He go to the bedroom, and I was in the kitchen with daddy, and I lay down on the kitchen and I hurt myself
Mum: You what?
[C]: I hurt myself
Mum: You hurt yourself?
[C]: Yeah
Mum: When you lay down on the kitchen floor?
(child nods head in the affirmative)
Mum: And where was [B]?
[C]:In the bedroom and I was in the kitchen and daddy was in playing Xbox
Mum: Oh, when you hurt yourself?
[C]: Yeah
Mum: That was a different time was it?
[C]: Yeah
Mum:But when daddy does that with his finger, where’s [B], what’s [B] doing when he’s, when daddy’s doing that to you?
[C]: Playing Xbox
Mum:Yeah. And at night time, where’s [B] when he does it, at night time
[C]: Still playing Xbox
Mum: Still playing Xbox? Oh. And what does daddy say to you?
[C]: Nothing
Mum: How do you know that he wants you to do that?
[C]: What, what did you say?
Mum: When, um, when does he put his finger in your bottom?
[C]:Um, I just go like this, and he puts my nappy on and he puts my bum bum
Mum: He puts, when he’s putting a nappy on?
[C]: Yeah
Mum: For bedtime?
[C]: Yeah
Mum: And what does he say?
[C]: Like…. fucking hell
Mum: He says that? For what? Why does he say fucking hell?
[C]:I don’t know. All because [indecipherable] and then say fucking hell
Mum:Oh yeah, no but when he, when he’s doing that thing with your bottom, what, does he say anything?
[C]: Yes, he says fucking hell
Mum: Oh, and is he doing anything to himself?
[C]: No
Mum:No. Has daddy got clothes on when he does that to your bottom?
[C]: Yes
Mum:Yeah. So what’s he doing, what’s he doing that to your bottom?
[C]: I don’t know
Mum: Hhmm.
(Child playing with toys and talking to himself)
Mum:So do you, do you want to go back to daddy’s? [C], do you want to go back to daddy’s house?
[C]: No
Mum: No? Why not?
[C]: He alway do that
Mum: He always does what?
[C]:Put my bum, put water in my bum, and put his finger in my bum
Mum: Hhmm, OK.
(Child continues playing with toys and making loud noises)
Mum:Well thank you for telling, thank you for telling mummy, it was very good of you to tell me, thank you
When the boy is asked, right near the beginning of this recorded conversation, “And what does he do with his finger?” he responds “put it in my bot, bottom”. The mother then says “show me. How?” The video recording depicts the boy lying on his back and then pulling his knees up towards his chest and demonstrating by putting his index finger on his right hand up to where his anus would be.
In her evidence, the mother said she called the police at K Town that day and they told her to go to the police station. She went there and they told her to go the D Town Police Station to talk with an officer of the Child Protection and Investigation Unit (“the CPIU”). The mother said that when she arrived at the police station she told C to remember to tell the police man what he had told her. This is of note because there is evidence that a police officer overheard the mother saying something like that to the child before he was to see the police officer. This apparently troubled the police a little.
The CPIU detective asked the mother to bring C back with his brother, B, the next day.
The Department’s records reflect that the mother also contacted the Department again that day and made a notification about the child’s disclosures to a Departmental officer.
The mother said that she then took C to the doctors.
Notes from that medical practice are in evidence. The doctor recorded seeing the mother and three year old C with the mother reporting that the child was talking about “weird stuff” and that he had said that “dad sometimes insert his fingers to his bottom”. The doctor’s notes reflect that the doctor examined the boy and thought all was normal externally with no injuries found. The notes say no internal anal examination was done. They reflect that the doctor referred the mother and child to the D Town Hospital and made a notification to the Department.
The Department’s records reflect that notification was made by the GP.
The mother said that she then took the child to the hospital on the referral of the GP. The D Town Hospital records are in evidence. They reflect that the child was taken to the Hospital that night of 7 February, 2013 and seen about sexual abuse concerns. The notes reflect that the mother reported that two nights in a row the child told his mother that his father puts “his fingers in his bum, sometimes he puts 3 fingers and it hurts a lot”. She is also recorded as telling the hospital that the child told her that sometimes he poos blood at his father’s place but that his father cleans it up and he is better before he comes home to his mother.
The Hospital records reflect that on examination the child appeared healthy. An external anal inspection was carried out and the record says “no obvious bruise or tear seen. Perianal reflexes normal”. The child was admitted to the hospital for the night. The mother stayed through the night with him. He was discharged home the next day.
That afternoon the mother took C and his brother, B, to the D Town Police Station where each was interviewed individually by a single CPIU detective. The interviews were each recorded and the video recordings were admitted into evidence and played at the trial before me. I have viewed them again recently.
In his interview, B tells the detective that nothing bad happens at dad’s place and that he does not see his dad do anything bad to C. He says that his father does not do anything bad to C such as smacking him on the bottom. The detective asked him whether his father put his finger in C’s bottom and B says “no, he didn’t do that”. When asked how he knows that, B responds “because I always keep an eye on him”. When asked why he does that, B curiously responds “in case he does anything mean to [C]”.
B is asked does anyone ever touch him where they should not and he says “no”. When asked if he knows what his “privates” are, he says “willy and butt cheeks”. He tells the police officer that C tells lots of stuff about their father, “he just lies”. B says “I don’t know why he lies”.
In his interview with the detective, C is perpetually restless and not very interested in sitting still and co-operating. He describes the process as “boring talking”. He talks about staying sometimes at his father’s place and that his father has toys there. He describes them as “police toys”. He then says it is boring at his father’s place as they just “walk around”. C is asked “has anything bad ever happened at dad’s?” He initially responds “yes” then when asked “what?” he says “no”. Asked again, “has anything bad ever happened at dad’s?” he says “no” again. He does go on to say that his father keeps swearing and gives examples of his father’s swearing. The interview is concluded soon after as C is very restless and distracted. The boy certainly did not disclose that which the mother said he had disclosed to her a few days before.
The mother was told by the police detective after the interviews that the boys had made no disclosures to him.
Nevertheless, the mother chose not to send the boys to their father’s place that weekend because of the disclosures she said they had made to her.
On Friday 15 February 2013, still worried about sending the boys to their father’s place, the mother said she telephoned the father and told him about C’s disclosures to her. She asked the father if there was anything that he could think of that he had done that C could simply have misunderstood, such as wiping his bottom clean. The mother said the father said there was nothing he could think of, then he burst into tears and said “I knew this would happen”.
The mother said she has not allowed the children to have unsupervised time with the father since that time. The evidence supports that.
The evidence is that the mother then arranged with her GP for C to attend for counselling with a psychologist. The mother started taking him to see Ms L, with the first session being on 22 February 2013. Ms L provided a report attached to an affidavit that was adduced into evidence. Copies of her notes of her sessions with C were also attached to her affidavit. She was also cross-examined at the trial.
Ms L reported that C attended eight sessions with her and that during the initial sessions he reported “making movies with his father and his friend ‘[Mr M]’”. She said that C reported having to put fake moustaches on his “willy” (which Ms L identified as his name for his penis). However, of relevance, her notes of the initial sessions made no reference to such disclosures from C.
She reported that in the fourth session on 22 March, 2013 the child disclosed to her that “daddy put his finger (holding up his index finger) up my bottom … sometimes it hurts, he’s done it before. It’s okay, but I don’t want him to do it anymore”. She reported that when she asked about when it happened, C told her “when he was changing my nappy at night”.
Ms L also reported that C had displayed distress in later sessions, saying he did not want to have contact with his father and that he did not want to see his father at “his place”. C is also reported to have said that he would be okay to see his father whilst his mother was present.
The mother said that on Thursday 11 April 2013, she and the boys were watching funny movies on YouTube when she said “we should make a funny movie” to which B responded “we have already made funny movies at Daddy’s, with [Mr M]”.
The mother said she asked “what kind of funny things do you do on the movies?” and B replied “we put moustaches on our willies and dance around”. She said that B went on to say “[Mr M] shows us how to put them on, and then we put them on and do the funny stuff [Mr M] tells us to do because he likes making funny willy movies”. She said B also said “[Mr M] gets us to take our shirts off and run around with our tongues out being crazy.” The mother said that she then asked B “what does [C] do in these funny movies?” and B said “C does other private stuff, but I don’t want to talk about that”. She said she then asked “What other funny things are on this movie?” She reported B as saying “I don’t want to talk about that anymore, it will make me too sad.” The mother said she replied “okay, thanks for telling me”.
The mother said that on Friday, 12 April, 2013, she asked B, whilst he was playing, if he had anything else to tell her about the funny movies they made and he said “I told you, [Mr M] just showed us what to do and I can’t tell you more because it’s too rude and private about [C].” The mother said she asked “Can you just tell me one thing about [C]?” to which B replied “I just lay on him with no clothes on and other stuff.” The mother said that she then asked B if he could tell her a bit about Mr M then and reports B saying “He is a cop, and he does private detective stuff now in a big building, not a police station. He made us badges as well after the movies if we were good, but [Mr M] said it was private detective stuff so not to tell anyone.” She said B went on to say “[Mr M] is a very good cook and he makes us good food when he dresses up like a chef”. She said that she then asked “where was daddy when you were making the movies?” B replied “Sometimes he is there, sometimes he is out for a walk with [Ms N]”.
Ms N is the name of a woman who lives in a neighbouring apartment to the father. She gave evidence for the father at the trial.
The mother said that she asked B “did dad get a badge?” and B replied “yes, because he was good too, and then we went out somewhere special”. The mother said that she then asked B if he would feel comfortable telling Ms L these things and he said he would.
The mother then obtained a referral for B to see Ms L in mid-April, 2013. The psychologist provides a report about the sessions with B, also attached to her affidavit. So, too, are copies of her notes of the sessions with B.
Ms L reports B attended six sessions with her, two of them with C. She reported observing a “strong hierarchical power dynamic shared by the brothers.. whereby [B] actively spoke over his brother when [C] said something [B] did not agree with”. She reported that B showed little tolerance when C stated something that happened at their father’s home that C did not like.
Ms L reported B also telling her of making movies with his father and with his father’s friend ‘Mr M’, saying that Mr M “does private stuff… he has a camera and sees us in the shower.” She reports B telling her that he had to put fake moustaches on his “willy” (reporting that is B’s word for his penis). She reports B telling her that Mr M “was at dad’s every time we went to dad’s – every time [Mr M] hopped into the shower with me and C”. She reported B telling her that “[Mr M] did private stuff … willy and bum”, that they made “puppet shows” and the “moustaches where on the willy and the clouds were on our bum. Dad uses his bum for clouds. I’m the main character. [C’s] the next main character.” She reports B telling her he has fun doing the movies and that “it’s pretty funny – we get to say funny things”. Reporting that when he was asked for an example, he said “the castle is a newspaper; the grass is paper plates”.
In her notes of the initial session with B, Ms L has written down:
[Mr M] - does private stuff - has a camera and sees us in the shower - a couple of years ago (4 y o) (Dad didn’t live in city) - was a neighbour = dad’s friend - he pulled his pants down = its rude - put a moustache on his willy - fake one - stuck it on - hopped in the shower with me and C - then stopped - supervising [C] and [B] while Dad went to pizza - dad doesn’t know - was at dad’s everytime we went to dad’s - everytime [Mr M] hopped into the shower - always pulled his pants down but did not get them to touch his willy - ok that’s all I have to say.
Ms L reported that B told her that Mr M films them and that they watch the puppet show on the computer and sometimes on the TV. B is reported to have said “Sometimes he edits us out and puts it on the internet”. She reports asking him if he thought it was right for him to be filmed by someone in the shower and that he responded “there’s nothing wrong with it, it’s funny”. She reports him adding “I filmed it during the adult show – [Mr M] and dad used their willies and C was the clouds”. She said he also said that they received a badge at the end of the movie and “[Mr M] dressed up as a cop and gave badges when we did what he wanted”.
Ms L went on to report that B later became defensive of his father saying “maybe dad didn’t know it was wrong” and “but it didn’t hurt, it was funny”. She reported that when it was asserted that what was done was wrong, B withdrew and later said “but dad didn’t do anything, it was [Mr M]”.
Ms L reports that B has not accepted that they did anything inappropriate at their dad’s place and believes it to be his mother’s fault that they are not spending time at their father’s place. He is reported to have said to her that he “misses going to dad’s” and wants to go back there. He is also reported to have said “I want to make more puppet movies if mum let’s (sic) me do it”.
The mother said in her trial affidavit that on Monday 1 April 2013, the father called her and was asking her questions about what C had told the psychologist. She said that he demanded that the boys come to his place and she said he said “The boys need to start coming to my house again all weekend, and I need privacy with my boys”. The mother said she would not agree to that.
The Department’s records adduced into evidence reflect that a Child Safety Officer spoke with the father on 2 May, 2013. The father is recorded as saying he wanted to find out what happened with his son; the mother having told him of the accusations that he had put his finger in his son’s bottom.
The notes record that the father denies any knowledge of a person named Mr M. He denies there is a Mr M who is a neighbour or a friend or a family member.
The notes also record that the father told the interviewer that he was “fondled” when he was six years old and that it did not continue long and his parents were not aware.
The Department’s notes reveal that B was interviewed by the same Child Safety Officer on 8 May, 2013. He is described in the notes as being withdrawn and hesitant to talk. B is recorded as saying he felt safe at his daddy’s. He is recorded as saying he could not remember a man named Mr M and the notes say there was no physical response when the name Mr M was mentioned. He is recorded as not being able to think of any good or bad things about daddy’s house.
The Department’s notes then reveal that the Child Safety Officer then spoke with the mother and told her that B had not disclosed anything to her. The notes record that the mother told the Officer again about the boys re-enacting who Mr M was and that they used the name “Mr M” regularly. She is recorded as reporting that the boys told her that they make funny videos, putting moustaches on their willies in the shower.
The Department’s records reflect that an interview of the child, C, conducted by the same Departmental Child Safety Officer accompanied by a student, took place on 10 May, 2013. The notes of the interview reflect that C was very distracted during this interview and was moving around in the room whilst being interviewed. C is recorded as having said that he has a dad and he lives in the city and that he sees his dad sometimes. The Child Safety Officer is recorded as asking if there was anything else about his dad that he could tell her and he is recorded as having said that his dad put his fingers in his (C’s) butt. C is also recorded as saying that he (his dad) thought it was funny but that then he (C) did not think it was funny. C is recorded as saying that he runs away and his dad chases him. The notes record C as being very distracted at the time he was answering these questions.
The notes go on to reflect that the Child Safety Officer asked C if he knew a person named Mr M. C is recorded as replying that Mr M comes to his father’s house and that Mr M said he will be nice. C describes Mr M as having brown skin like daddy, dark hair and as being the same size as (C’s stepfather). The Child Safety Officer asked C what he does with Mr M and C is recorded as saying they play around and run around. They play games such as tiggy and stuck in the mud. C says that Mr M is dad’s friend and they see Mr M when dad is around. C said that he and B sleep over at daddy’s house and they do role play.
In late May 2013, the father informed the mother that he was going to commence these proceedings for orders to be able to see the boys unsupervised and on 16 June 2013 the children started spending time with their father supervised at a children’s contact centre in the north of Brisbane. The boys’ time with the father has been supervised there on fortnightly visits ever since.
The mother said that on Friday 2 August, 2013, B started talking about going back to his father’s place. The mother said that she said to him “I don’t think that it’s okay at the moment because I am worried about the other man and the movies we talked about.” She said that B replied “it’s okay, I’ll just tell him I don’t want to make the movies anymore, they were just funny anyway”.
The mother said she then started a conversation with B about the issue by saying to him “Okay, well you tell me a bit about them and then I’ll decide if it’s safe for you to go to daddy’s”. At this time, apparently without B knowing, the mother began to record the conversation on her mobile telephone. She said she had been advised to do this by Ms L.
Recordings of that conversation were adduced into evidence and played at the trial. I have listened carefully to those recordings again in recent times.
B and his mother are having a conversation. The mother is carefully asking questions in a non-leading way so as to elicit information. B said that “one day we had the private business stuff and then the next day of the holiday we had dancing. So it’s like a bit of a pattern.” He said the pattern starts with “singing and dancing, then the private stuff, then singing and dancing, then private stuff and then dancing and singing”.
The mother asks B what the private stuff is and he tells her a story about doing maths and then not being allowed to go to the father’s place anymore. The mother presses for him to tell her about “private stuff” and he becomes reluctant to talk about it, but does say “privates, it means your privates, every single part which is your private area”. He then says he wants to stop talking as he is getting a little tired. The mother presses him but he says he has forgotten. Then he says “I’ve got it back. You have to show your willies and your bum and put stuff on it, stuff on it which he had”. “He had a moustache with a nose for your willy, and glasses, sunglasses, and a long beard up to here.”
The boy told his mother that these items were clipped on to his ‘willy” with a piece of sponge and a peg. He then said that they had to make their “willies” talk by moving them up and down. He said that they had to stick their “willies” in the back of a little truck. He said “for our bums there were big soft mountains” and “we got to put our willies on the mountains, we got to measure the size of our willies and then we got to build it, and made it sharp and pointy”. He went on to agree with his mother that his father was in the movie and that “daddy was a big floppy cloud. He needed to use his bum though. We drawed fluffy clouds.” The boy then said “and then he turns around and put his willy into another person”. The mother then said “another person? What did this person look like?” The boy said “it was a shape of a stick man.” He says “on the end where we had to take them off and on the part where we need to hop them into the hospital truck we had to take ‘em off and put them on a stick and poke them in the truck”.
Later the mother asked B “how did you make puppets for your willies?” and B immediately replies “[Mr M] made them”. Later B tells the mother that he and C had their puppets in the shower.
He also tells the mother that Mr M puts the movies on his IPad and then “rubs out all of our bodies, even the peg, and then it looks like just the people walking”.
Then B tells his mother that other kids were also involved in making the movies. He also tells her “there was one where we needed to show our bums, our willies, put pegs on them which had pizzas on them. Mine had like a cash sign. It was a fake pizza on [C’s] bum, it was just … I mean it was on the willy. Mine was a cash sign like that and [C’s] was a pizza shape” He then said “then we walked around, it was so, so, so, so weird”.
The recordings of the conversation that night finish with that.
The mother then said that on 3 August 2013 she asked the father if he could return to her all of the children’s clothes that he still had at his place. She said that he did and she put them in the washing machine and as she was getting them out of the washing machine she found a piece of blue and white checked ribbon that looked like police ribbon. She said she asked the boys about it and they told her that it was a police badge they had got at their father’s place. The ribbon was adduced into evidence by the mother. It certainly looks like police ribbon, blue with a chequered white pattern on it.
The mother said that she contacted the police again on 5 August 2013 and told them about the information that B had given in the conversation just referred to, particularly his assertion that there were other ‘kids’ involved in making the funny movies. She said she did not hear back from the police.
A dispute resolution conference in October 2013 was not able to resolve the parents’ dispute about whether the children should be spending unsupervised time with the father.
The mother then says that in January 2014, B told her more things about the movies they had made with the man called “Mr M”. She also recorded that conversation, without B knowing about it, after it had started. The recordings of that conversation were adduced into evidence and played in Court. I have also listened to them again recently.
Again, I formed the impression that the mother was being careful not to lead or coach B in this conversation. Indeed, she gave evidence of being conscious of the need not to.
I will not set out all of the conversation, but will mention some of the parts I consider relevant. These are some things that B says during this conversation:
·The man B knew as ‘Mr M’ was not a stranger but was a friend of the father’s.
·B thought Mr M is a secret policeman.
·Mr M had said he likes police officers. He had brought secret police things.
·Mr M would bring presents for them if they did well in the movies. B said the presents included a Hot Wheels car.
·Mr M brought a TV and a PlayStation.
·Mr M does not have a fat nose but has a skinny nose and he is allergic to cats and dogs.
·Daddy would get presents too.
·You had to smile the whole time when making the movies. You got more presents if you smiled all the way through.
·That clips, on sponges, would be clipped to their willies.
·Their willies would be a little sore after all that. Even daddy’s bottom was sore.
·Mr M comes over to daddy’s place but they never go to Mr M’s place.
·He does not know where Mr M lives.
·Mr M has a lot of names with daddy calling him M and the boys calling him Mr M.
·Mr M does not know Ms N and if Ms N comes to daddy’s place Mr M hides because he does not like her.
·There was another kid in a movie who was swearing at Mr M but Mr M does not tell B and C where the other kids’ houses are or where they live.
·Mr M has a sports car. It is green and has pictures of flames on it.
·Mr M said he has four sports cars.
The Family Reports
In June 2014, a family report was prepared by Family Consultant Ms P. Ms P spoke with both of the boys and the parents.
She reports that at the point of the interview with B where she asked him about the “fun games” at his father’s home B stated promptly “I don’t want to talk about it because it was a long time ago”. She said he did go on to say “Daddy had a balcony and his next door neighbour [Ms N] was pretty nice; she came over with Chinese noodles.” She said he continued with “we were very safe, there were camera’s everywhere; [Mr M] just came over. He is pretty funny. He used to be a police officer; [Mr M] was scared of dying and doing high speed chases. He was pretty scared he told me; he was ducking down he told me.”
Ms P reports later that B had drawn a picture of a bird which he offered to her and said “I gave a nice picture of a bird to [Mr M]; I drew it”. He then said “I don’t want to do it again, but it was fun.” She reports he continued with “I miss [Ms N] but not [Mr M] that much; from [Ms N] we got police badges to stick on our jumper.”
Ms P reports that when she spoke with C and they talked about Mum and Dad he said “I am happy to go and play at [E Org]; it is nice. When I get older and drive a car I can go to Daddy’s house.” She does not report him saying anything about Mr M or making any disclosures of abuse.
Ms P observed the boys with their father and described the interactions as comfortable and having a sense of camaraderie about them. She also observed the boys with their mother and described those interactions as warm, spontaneous and loving. She assessed the mother and the boys as enjoying a loving and close attachment.
Ms P reports that when she was interviewing the father he told her “I have no friend called [Mr M] and there is no one else in the house when the children are with me”. She reports he asserted that the boys love to visit his home and that he stressed “I am telling the truth. I have no idea how they came up with these things; everything they say is completely made up. The mother wants the children to tell her more; it is what Mum wants to hear”. He added “[Ms Jensen] wants to make this up because she wants custody of the children”.
Ms P reports that she asked the father whether he experienced sexual abuse as a youngster. She said he stated openly “I was fondled back in [Africa] by some family member probably for two months; it was not sexual abuse just fondling.” He is reported as then moving back to the assertions that the mother wanted him to sign over custody before her ‘new’ partner arrived in Australia. She reports he claimed “she hates that I am doing well and she made up all these stories. She can tell the kids whatever she wants; she lives with them.”
An updated family report was prepared by Ms P in early January 2015, not long before the trial took place.
Ms P reported that the father told her the boys really enjoy spending time with him at the children’s contact centre but they would rather see him again at his place in the city. She also reported that the mother agreed that the boys enjoy spending time with their father. The mother is reported as saying “I make much effort because I want the children to see their Dad; I told him that he can have contact every week-end.” She is reported as saying that she would even agree to off-site supervised visits so that the father and the boys could have a more relaxed period of time together.
Ms P reports the father as telling her that his children have completely lied in this case but that the mother is behind it because of her jealousy. Ms P reports the father expressing puzzlement and surprise at the mother’s delay in reporting the matter to police after the disclosure to her. He asserted that she took three months to report the allegations to the police after telling him of them. I am quite satisfied that the father was wrong about that having regard to the evidence I have considered. The mother reported the disclosures to the police within a couple of days of hearing them in February 2013. The father may be thinking of the things the mother said in her trial affidavit were said by the boys in late 2012. As I have already observed, the mother said nothing to cause me to think that at that time (late 2012) she believed the boys were being abused by their father or exposed by him to sexual abuse by another.
Ms P reports that the father informed her that when he met the mother he was “building up a new life” and that his parents were not very supportive. His information supported the mother’s evidence that she has a reasonably good relationship with the paternal grandmother and that she allows the boys to see her through arrangements they make between themselves. The father reported to Ms P that he and his mother have a “lukewarm relationship; it is very strange it is just her personality”.
The father has never denied anywhere that he deliberately mislead the mother about his background for a few years after he met her. In fact, under cross-examination in the trial he admitted that he had because he wanted to “disappear from his family”. He did not explain why that was or how it is that he now says he has a good relationship with his mother and his brother.
Ms P reports the mother telling her that the name ‘Mr M’ still comes up randomly in conversations. She apparently reported that whenever B is not thinking he mentions ‘Mr M’ and then gets angry saying “it did not happen”. She is reported as saying that B gets angry if C ever mentions Mr M’s name. B apparently says “I don’t want to talk about it, it is not real; I made it all up.”
Ms P reports discussing the father’s views of the mother’s motivation in this case with the mother. She reported the mother stated “I never asked [the father] for a signature to have custody of the children. They were living with me. [The father] was the one who said that he would not come to the house because my husband was there. I agreed that he could have the children every week end at his place.” She is reported to have said that had been the pattern for some six months until C disclosed to her what “was happening”. The mother is reported as saying that the boys behaviour had changed dramatically for the better since they were only having supervised time with their father.
Ms P interviewed the boys again. Significantly, she reports B saying about his father and his father’s place in the city “I already feel safe; I always said to Mum that [Mr M] is not going to come back.” She reports him a little later saying “we both know about [Mr M] and we don’t talk about it anymore. [C] and I are getting better; I sometimes have a nightmare and I wake Mummy up when it is a really freak one.”
Ms P’s interview with C was characterised by his restlessness and lack of paying attention to her. He burst into tears at one point when it was suggested he was responding like a two year old. No disclosures were made by C and nothing was said by him about Mr M.
In her evaluation, Ms P observed that the father’s responses to the sexual abuse allegations impressed as “essentially an attempt at ridiculing the issue and as wishing to distance himself from any such issue as if it had nothing to do with him”. She said he continues to deny any involvement and dismisses the children’s disclosures as lies and as stories fabricated by their mother.
Ms P expresses the opinion that the father’s “apparent disinterest in the consequences of the alleged sexual abuse, whether or not it ever occurred, shows insufficient sensitivity and not quite a mature conception of his role as a father”. He said that he pointed to the children’s happy responses to him as proof that they wanted to spend time with him and that there was nothing to the allegations. She says that apparently to exemplify what she considers is his simplistic approach to the matter.
Ms P, pointing out that B, particularly, wants to have an ongoing relationship with his father, still observes that it is difficult to provide a “plausible explanation” as to how and why the two boys would make these things up or be “coached” to make these things up. She points out the consistency of their disclosures, particularly about the person named “Mr M”, to their mother, the Department (although B denied knowing Mr M to the Departmental officer who interviewed him), and to the psychologist who was counselling them, and she expresses the opinion that this consistency adds to the credibility of the disclosures rather than detracting from it. It is to be noted that B also consistently reported about Mr M to Ms P herself.
Ms P was quite satisfied that the boys have a strong and secure attachment to their mother and that they obtain their emotional and physical security within her care and her extended family network, including their paternal grandmother who the mother willingly involves.
Ms P reports an opinion that the boys appear to “have recovered relatively well from the trauma caused by the abuse issues”. She said that even their school has reported that their behaviour has improved as has their ability to focus.
Ms P reports that the mother has “consistently welcomed meaningful interactions between father and children” and expresses the opinion that “it seems unlikely that she has denigrated [the father] considering the children’s spontaneous reactions with their father and about their father in her presence”. Ms P reports being impressed with the mother’s apparent willingness to facilitate contact and to promote the father-son relationship. Ms P said she could see no evidence to support a view that the mother was motivated to fabricate sexual abuse allegations.
After expressing these opinions, it is unsurprising that Ms P recommends a continuation of supervision of the time the boys spend with the father. She does not recommend a cessation of time all together and in her oral evidence stressed the need, culturally, for the boys to continue a relationship with their father on an ongoing basis, even in circumstances of supervision.
Evidence about time at the Children’s Contact Centre
The records of the children’s contact centre that has been facilitating supervised time between the boys and the father were adduced into evidence. The father’s record of punctuality over the eighteen months of fortnightly supervision was not good. It is accepted that as he was living in Suburb F and the Centre is at D Town, and he had to travel by train to get to and from the centre, that things may have been difficult for him. However, the records show him regularly (more often than not in all that time) arriving late. His lateness is often recorded as thirty minutes late, sometimes even longer. The records also reflect cancellation of the sessions by the father on at least eight occasions, with only a couple of cancellations attributed to the mother.
Interestingly, the father denied that he had ever been thirty minutes late in arriving at the centre and, in Court, he openly questioned the reliability of the records. I do not accept that denial in the face of the records and the number of times an entry showing him being 30 minutes late in arriving appeared. In any event, the father did concede at trial that he had cancelled the last session before Christmas as his work Christmas Party was on the night before the session was scheduled.
The father’s evidence at trial when cross-examined about these issues of punctuality and motivation did not impress me. He said that sometimes he simply has “other commitments’ and could not make it to the centre. I formed the view that he just was not prioritising these regular visits as they ought to have been prioritised in his life. Of course, that could be partly attributed to the fact that the visits are supervised and he does not accept that they should be. However, the father even agreed under cross-examination that he does not always call the boys to speak with them as provided for in the existing interim parenting orders. He put that down to still being at work at the scheduled time. Again, that caused me to question his prioritising of his relationships with the boys.
During cross-examination of the father by counsel for the ICL, evidence was elicited that the father had attended upon a psychologist for counselling on two occasions at the end of 2013. He told the Court that he did that because he was feeling the effects of the pressure from being involved in this parenting dispute and these proceedings. He said that stress was also a reason for missing some of the scheduled visits at the children’s contact centre.
A report and notes of that psychologist were adduced into evidence as an exhibit at the trial by the ICL. The psychologist recorded that the father was referred to her by his GP at the recommendation of his solicitor. It is reported that the GP asserted he had been suffering depression and was being medicated for it. The father is reported as having “ongoing family of origin” issues, as well as “family court/parenting issues” that were “significantly impacting him”.
The psychologist reported that:
it was difficult to ascertain a thorough history of his young adult life. He stated that he had drifted and been irresponsible. He alluded to a history of drug and alcohol problems and possibly delinquent behaviour, however it was hard to ascertain details. He described this as having taken a “self-destructive” path and said the felt this was due to him lacking in self-confidence and self-belief. He said he has really tried to turn that around lately, by being more committed to study, work, and playing a bigger role as a parent.
The psychologist said that the father gave the impression of being sincere in his desire for assistance and very distressed by his separation from his children. She expressed the opinion that he reported symptoms consistent with a recent Major Depressive Episode and went on to say that “he may have a temperamental predisposition to emotional dysregulation given his lengthy history of mood symptoms and past drug and alcohol issues.”
She advised further treatment including psychoeducation, behavioural advice, and further counselling with “reflective work around family relationships and boundaries”.
The evidence is that the father never paid the psychologist for the two sessions he had with her even though she wrote to him advising him that he could claim a substantial Medicare rebate in respect of the fees he owed. At trial he conceded he had still not paid her. Clearly, he only had the two sessions with her and no others.
The Father’s evidence about the boys’ disclosures
Under cross-examination, the father accepted that B had disclosed to his mother as asserted by her. He accepted B had disclosed to the psychologist as reported. He accepted that B had disclosed about making movies about puppet shows and that a man called Mr M was present at that time. He also agreed that the detail of the stories disclosed by B is extraordinary and amazing. The father did not seek to explain these matters other than by again asserting his opinion that the mother is jealous of him. He denied that he had had ever touched the boys on their willies, asserting that such an allegation was a lie.
In his oral evidence, the father agreed he had once punched a hole in the wall of a place that he and the mother were living in when they were together. He also agreed that he had been drinking heavily and hiding bottles around the house so his drinking would not be obvious. He agreed that he had attended an AA meeting but said it was in a church environment. He also agreed, as I have observed earlier, that he had been living a lie about who he was insofar as the mother was concerned in the few years after they got together.
The father was also asked about his level of drinking at the time of the trial and he said he still had a drink each day after work. He said he did not consider that he had a drinking problem, saying that a person with a drinking problem was a person who drank alcohol all day. He also admitted to smoking marijuana from after his arrival in Australia (at 15 years of age) until when he was about 25 years of age. He then said that he last had smoked some marijuana only six months before the trial.
When he was asked about the police ribbon and whether he had seen that before, he denied giving it to the boys. He mentioned police awareness days and saying he had seen such ribbons on children wearing them out at shops.
The Father’s neighbour
The father’s neighbour at his Suburb F apartment, Ms N, gave evidence at the trial. I considered her to be an honest and reliable witness. She said she had met a friend of the father’s named Mr Q, who lives nearby to them, but she had never seen the two boys in the company of Mr Q. She said she had never met them in the company of anyone other than the father.
She said she had never seen the father drinking alcohol or smoking marijuana and she had never seen the father discipline his children in any disturbing way. She said that she had never heard of or met a man named Mr M and does not know anyone named Mr M. I note here, though, that B expressly told his mother (in the conversation that was recorded) that Mr M would hide if Ms N ever came to his father’s place as Mr M did not like Ms N.
She said that she and the father had never gone out to get pizza together and left the boys at the father’s place.
As I have already observed, I had no reason to consider the evidence of this witness to be dishonest.
The Mother’s evidence at trial
The mother told counsel for the ICL, when being cross-examined by her, that she believed that the father had played games with the boys’ private parts and inserted something into C’s bottom. She said that she believes a person named “Mr M” exists and that he did make movies with the boys and also played a part in the movies. She said that she believed that the boys had been filmed whilst in the shower and that other children had been involved. She said that she believed that the boys had been encouraged to interact inappropriately with each other and she said she believed all of this because the boys had told her these things. She said that she believes that Mr M told B he had been a police officer. She did agree that B had described Mr M to her as having white skin like her but that C had told the Departmental officer that Mr M has brown skin like dad. Nevertheless, this did not persuade her that the things they had told her about Mr M were not true.
I formed the impression that the mother did genuinely believe these things that she said she believed. I also did not form the impression that the mother was motivated by any desire to deprive the two boys of a relationship with their father. On all of the evidence, I had no reason to consider that the mother’s belief was irrationally based.
The mother’s husband gave evidence also and was cross-examined. Although a little intense, I considered him to be a reliable witness. He told the Court that he had also heard the boys talk about a man called Mr M. He recalled them telling him that Mr M is a fun guy who drives a sports car and gives them plenty of gifts.
Ms L also gave oral evidence at the trial and was cross-examined. She conceded that she was relatively inexperienced and had no prior experience in family law parenting matters in the courts. She said she had not written previous reports for the courts and not previously even done an affidavit or given evidence in Court. She said that whilst she had not previously been involved in matters where assessment of whether a child had been sexually abused was a central issue, she had done two particular training courses in respect of dealing with such matters.
She was questioned about the fact that her notes of the initial sessions with C did not reflect any disclosure by C about making any movies whilst her report reflected this. She confidently reasserted that C had told her about the movies during sessions with him.
She told the Court that B had actually told her that Mr M was an African and had skin darker than his (B’s) own.
Whilst she was relatively young and inexperienced, I did not consider Ms L anything other than professional and as trying to do her best to give reliable evidence. I accept that she reliably reported disclosures made to her by the boys during times that she saw them. I accept that the boys told her the things she attributed to them.
The ICL’s Submissions
Counsel for the ICL submitted that the Court should not make a positive finding that abuse occurred in this case. I accept that submission and will not make such a finding as I am not satisfied to the requisite standard that sexual abuse has actually occurred.
Counsel went on to submit that I should find that the matters of concern are explained by the mother being an overanxious parent who had issues of trust with the father of her own and was aware of the father’s own sexual abuse as a child; that she had reacted disproportionately upon hearing things said by the boys in the first place. Counsel submitted that the Court did not get a lot of assistance from the social scientists in the case. Counsel submitted that in the recordings of the disclosures made by B the child seems to just be “adding and adding to his story”, particularly after being pressed by the mother to tell her about the “private stuff”.
In the end, the ICL submitted that the Court should not find that providing for the boys to have unsupervised time with their father would expose them to an unacceptable risk of harm. It was submitted that the Court should order that after three months of day time unsupervised time with the father, the boys should start spending overnight time with the father again each second weekend from Saturday to Sunday. I certainly have given those submissions made on behalf of the ICL very careful consideration.
The critical findings and central determination
There are a number of factual matters in the case that I consider worthy of specific mention at this point. They are:
·The father lied to the mother and continued to mislead her about his age, his background, his family circumstances and the length of time that he had been in Australia when he met her. He carried this deception on for a few years until unexpectedly caught out by circumstance.
·The father partly explains this deception of the mother by assertion that he wanted to “disappear from his family” who he described as not very supportive of him, but who he now asserts he is close to again with there being no explanation provided for the change.
·The paternal grandmother still communicates with the mother and they make arrangements for her to see the two children from time to time. This is arranged by the mother.
·The father did not put any evidence from his mother (or any other family members) before the Court in support of his case or that supports his assertion that they are close again. Indeed, I do not accept that they are.
·The father was sexually abused as a child by an unidentified family member but apparently did not bring it to the attention of his parents, and he minimises its seriousness when reporting on it, and does not appear to have appropriately addressed its impact on him through counselling or therapy.
·The father admits to having consumed a lot of alcohol during the relationship with the mother, including having hidden bottles of liquor around the house so as to hide his drinking from her. Indeed, whilst he says he attended some meetings of Alcoholics Anonymous and denies that he has a ‘drinking problem’, he asserted at trial that he still drinks each day after work.
·The father admits to a long history of “self-destructive” behaviour as a young adult, including drug abuse (marijuana) and admitted at trial to last using marijuana only about six months before the trial.
·There were identified incidents of poor self-control when angry on the part of the father during cohabitation of the mother and the father eg punching a hole in the wall, throwing a plate of food around the room, including over the baby.
·Assisting professionals identified the need for the father to have counselling from a psychologist who, in turn, identified the need for further assistance, which the father, rather irresponsibly (in respect of not paying for the sessions he had with the psychologist), has not pursued.
·When together with the mother, the father’s work history was erratic and unstable.
·The father’s post-separation residential circumstances and work circumstances were also unstable. Whilst his residential circumstances appeared more stable by the time of the trial, I cannot say that I am satisfied that his work circumstances had also stabilised.
·The mother’s attitude to the maintenance of the children’s relationship with their father post-separation and post-emergence of sexual abuse concerns has nevertheless been positive and appropriate, and she has actively facilitated it around changing circumstances with insightful child-focus that I do not consider demonstrates jealousy as the father asserts or, with respect to the submissions made for the ICL, “over protectiveness”.
·The mother observed a scratch on the youngest boy’s anus in late 2012 and that child disclosed a few months later that his father had put his finger in his bottom and he told the mother he did not want to go to his father’s place because his father puts his finger in his bottom.
·There has indeed been general consistency in disclosure (whilst acknowledging that there have been some inconsistencies on the peripheries of the disclosed information) by the boys of inappropriate behaviour by their father and of another adult in the company of their father across numerous disclosures to the mother, to the psychologist the boys were seeing, to the family report writer and, in respect of the child, C, to a Departmental Child Safety Officer.
·Whilst there was some leading observed in one of the recorded disclosure conversations between the mother and the child, C, the mother has generally demonstrated awareness of issues surrounding leading and suggestion. I am not satisfied that there is evidence from which I can conclude that she has made up, exaggerated, coached or suggested the content of the consistently reported disclosures to the boys so as to make them unreliable.
·Inappropriate conduct by a person known to the father as Mr M, said to be sometimes called O, was one of the consistent disclosures by the boys, particularly the oldest boy, and the boy gave an explanation as to why the father’s neighbour, Ms N, would not have seen or met Mr M, as she asserted she had not.
·The presence of a piece of police ribbon in the pocket of an item of clothing of one of the boys returned to the mother by the father is consistent with information disclosed by the boys and the father denied he had ever seen that piece of ribbon.
·The child, B, disclosed that the boys would be rewarded with gifts for good performance in video movies he disclosed they were involved in with the father and his friend, Mr M. That is an asserted fact that I consider detailed and credible and totally consistent with a probability of such a thing happening.
·The family report writer expressed the opinion that the children’s disclosures impressed as being comprehensive and intricate and, in her view, “impossible to ‘invent’, even by the most imaginative child”. Insofar as B’s reported, repeated disclosures are concerned, I am minded to agree with and accept that opinion.
·That when the child, B, began to understand that his disclosures were central to the change in the circumstances of the boys spending time with their father, he began to modify and retract the information he had previously given but still did not completely retract reference to the person he called ‘Mr M’, despite having previously denied knowing a person called ‘Mr M’ to Departmental staff in May 2013.
·In the end, when pressed by the family report writer for some more information on it, B did say “I don’t want to talk about it, it is not real; I made it all up.” The likelihood of that being true must be considered against all of the previous matters, particularly his apparent increasing desire to disavow his previous disclosures.
The determination of this type of case is generally not easy. The principles espoused by the High Court quite clearly recognise that making positive findings that sexual abuse occurred or did not occur is often not possible. Determining then whether the evidence nevertheless leads to a finding of unacceptable risk is, in my judgment, achieved through a process of careful consideration and weighing of all of that evidence. Various possibilities and probabilities presented by the evidence need to be considered in the process of seeking to “quantify the relevant risk”.
One of the many questions that Fogarty J identified in N and S and the Separate Representative as likely to have to be considered by the trial judge as part of this determination of the level of risk was whether there are satisfactory explanations of the allegations apart from sexual abuse.
In this particular case, I am of the view that if the disclosures made particularly by B are not simply discounted as the product of pure fantasy it is difficult to consider them satisfactorily explained other than as reliable reporting on lived experience approximating, if not accurately describing the events disclosed. As I pointed out, the child only disavowed his previous disclosures, consistently referencing “Mr M”, to the family report writer in the second report process. He had not previously declared it to be fantasy. The Family Consultant report writer expressed an opinion that the boys’ disclosures were not fantasy. The counselling psychologist did not regard the disclosures as fantasy. On balance, I, too, do not consider them to be merely the product of fantasy. The content of the disclosures, reliably reported as I consider them to be, is, in my judgment, quite concerning.
Ultimately, in this case, although I cannot reach a point of satisfaction where I can say that I positively determine that the father abused the boys or was involved in abusing them, I hasten to say that I am most certainly not satisfied that he did not abuse them or that he was not involved in abusing them. All of the facts that I have just referred to in particular, considered together with all of the other evidence in this case, provide me with sufficient cause, in my judgment, to consider that there is indeed a risk of these boys suffering sexual and/or emotional harm in the unsupervised care of the father. Furthermore, in having regard to their best interests as the paramount consideration, I am satisfied, in this case, that the magnitude of the risk to the boys that unsupervised time with their father would expose them to, must attract the descriptor “unacceptable”.
It necessarily follows, at least in my judgment, that an order providing for the boys to spend unsupervised time with their father should not be made at this time in their lives.
What sort of parenting orders should be made?
That the children should continue to live with their mother has never been put in issue in these proceedings. What remains then to be determined in the case is the attribution of parental responsibility for the boys and whether or not the boys should spend supervised time with the father and, if so, then on what terms. There is also a question of whether they should otherwise be able to communicate with their father.
The statutory presumption that it is in the best interests of the two children for their parents to have equal shared parental responsibility for them is rebutted by the evidence that there was family violence in the relationship of the parents, including violence that at least the child, B, was exposed to. I refer specifically to the father’s admission of punching a hole in the wall of a residence they lived in and to the mother’s evidence, which I accept, that the father threw a plate of food in anger in the presence of their eldest child.
Accordingly, a determination as to the conferral of parental responsibility in respect of the boys that would meet their best interests is specifically required.
In circumstances where the boys will be living with their mother and not spending any unsupervised time with their father; circumstances where there is a lack of trust between them and an apparent inability to communicate well, I do not consider it in their best interests for parental responsibility to be shared equally between the parents where s 65DAC of the Act would then impose obligations on them to consult and actually agree when making decisions about major long-term issues in the boys’ lives. I will confer parental responsibility solely on the mother, satisfied that she has the capacity to exercise that in their best interests. I will, though, impose a requirement for her to consult with the father and to have regard to matters he might raise with her, short of reaching agreement in the making of those decisions and for her to communicate the outcome of such decision making to him.
Providing for children to have indefinite ongoing supervised time with a parent is not something to be ordered lightly. In many cases, I have heard expert witnesses discuss the perceived advantages and disadvantages of long-term supervised time between children and a parent. If parenting orders are to provide for it, reasons are, of course, to be given.
In this case, as I have already observed, the family report writer pointed out that the boys are half African by birth. Their father has black skin and dark curly hair. So, too, do the boys. The expert said it will be important to their development of their sense of personal and cultural identity for them to continue to spend time with their father in the future, provided it is considered to be in safe circumstances.
The evidence also satisfied me that the boys, particularly, the older boy, B, really want to have a continued relationship with their father. I consider it in their best interests that they do, lest they begin to develop false impressions of the man their father is and also so that when they are old enough to continue to experience their relationship with him in unsupervised yet safe circumstances they will have a continuing relationship upon which they can build.
I am also satisfied that the children’s supervised time should be fixed for one day per month rather than fortnightly. The father’s demonstrated lack of commitment to the regular supervised sessions and to punctuality persuade me to limit the scheduled visits to one per month. I consider that might have better prospects of being sustained in the long term.
I am also satisfied that the boys’ supervised time with the father need not necessarily take place inside the children’s contact centre but can also take place in off-centre circumstances, if that can be arranged, so that the father and the boys have the opportunity to enjoy some other activities that cannot be undertaken within the confines of a children’s contact centre.
I will also order that the boys can continue to communicate with the father by telephone on the Sunday evening of each weekend save for the weekend when they spend supervised time with him. Work commitments should not interfere with the father’s ability to call them on Sunday evenings, and fewer opportunities to call them will likely increase the prospects of the father calling them, in my judgment. I will also order for telephone communication to take place on special days being Father’s Day, the father’s birthday, each of the boys’ birthdays and Christmas Day. I will impose some conditions and requirements around the telephone communication so that the parties better understand their rights and obligations relating to the phone calls.
I make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred eighty-four (184) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 20 May 2016.
Associate:
Date: 20 May 2016
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Family Law
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