Simmons and Simmons
[2013] FCCA 304
•24 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIMMONS & SIMMONS | [2013] FCCA 304 |
| Catchwords: FAMILY LAW – Parenting – allegations of child sexual abuse – unacceptable risk. |
| Legislation: Family Law Act 1975 (Cth) Federal Circuit Court Regulations |
| M v M (1988) 166 CL 69 Briginshaw v Briginshaw (1938) 60 CLR 336 WK v SR (1997) FLC 92-787 Johnson and Page (2007) FLC 93-344 Napier v Hepburn (2006) FLC 93-303 |
| Applicant: | MR SIMMONS |
| Respondent: | MS SIMMONS |
| File Number: | MLC 1235 of 2010 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 15 & 16 April 2013 and 2 & 3 May 2013 |
| Date of Last Submission: | 3 May 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 24 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Pavone |
| Solicitors for the Applicant: | Perry Weston Lawyers |
| Counsel for the Respondent: | Mr Stavris |
| Solicitors for the Respondent: | Mohan Yildiz & Associates |
ORDERS
The consent orders of 27 July 2011 in respect of the child [X] born [in] 2008 continue in full force and effect.
There be liberty to the parties or either of them to apply in regard to any issues arising from the mother’s change of residential address.
All extant applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Simmons & Simmons is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1235 of 2010
| MR SIMMONS |
Applicant
And
| MS SIMMONS |
Respondent
REASONS FOR JUDGMENT
Applications
These proceedings concern the one child of the parties, [X], born [in] 2008 (aged four years).
The father is the applicant. He seeks an order that [X] lives with him. He does so primarily on the basis of his argument that the mother has instigated false allegations of him sexually abusing [X] and has coached [X] to make disclosures accordingly. He proposes that the mother undertake therapy for a period of three to six months and during that period have supervised time with [X]. Upon successful therapeutic counselling, the father says that [X] then spend time with the mother each second weekend from 10 am Saturday until 5 pm Sunday. He proposes injunctive orders that the parties not denigrate the other to [X] or discuss these proceedings or their nature to or in the presence of [X].
The mother proposes that [X] continue to live with her. She argues that [X] has made a number of voluntary disclosures that are consistent with sexual abuse at the hands of the father. In his final address, counsel for the father, Mr Stavris, conceded that the evidence was such that it would not be open to the court to make a positive finding that sexual abuse had occurred. He argued, however, that the evidence was such that a finding of “unacceptable risk” was open to the court and that [X]’s time with the father should continue to be supervised. Counsel then conceded that if the court was not able to make a finding of “unacceptable risk”, then the previous shared care arrangement be restored whereby [X] would be spending six nights a fortnight with the father and eight nights with the mother.
[X] is the only child of the parties or either of them.
The father is 55 years of age and in full-time employment as a [omitted]. There is no evidence that he has re-partnered in a permanent or committed relationship, although the mother alleges numerous liaisons for the father with various women post their own separation. Mr Simmons lives in stable accommodation in the [omitted] area of Melbourne.
The mother is 41 years old. She is of Assyrian origins and migrated to Australia on a refugee visa in 2004. She has not repartnered.
The parents married [in] 2007 and appear to have separated by December 2009 when the mother obtained an intervention order against the father made by consent but without admission as to the allegations therein.
Proceedings in respect of [X] and financial matters were commenced in early 2010. Dr K, psychiatrist, completed psychiatric assessments on each of the parents in April and May 2010. A family report by Ms F was released in October 2010.
The parties entered into consent orders on 27 July 2011 providing inter alia:
1. That they have equal parental responsibility for [X];
2.That [X] live with the mother;
3.That [X] spend time with the father in a short graduated regime commencing four nights per fortnight but extending to six nights from [X]’s fourth birthday in [omitted] 2012;
4.Property settlement orders.
Legal Principles – Parenting Matters and Sexual Abuse Allegations
Standards of Proof
The allegations against the father are serious in their particulars and their context of his daughter being not yet four years of age when they first arose.
Child safety is a major object of the Family Law Act 1975 “the Act”. A consideration within the best interests of the children’s parenting and living arrangements is provided at section 60CC(2b) and, following amendments in 2012, now with particular emphasis. That subsection states:
The need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
It follows that when confronted with a particular allegation or set of allegations it will be the task of the Court to determine whether a child has been or is at risk of being abused. The court may be able to make findings which either substantiate or reject the allegation, but not always. As the High Court noted in M v M[1]:
It is a mistake to think the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would if it were trying the party for a criminal offence …
[1] (1988) 166 CL 69 at 76
In family law matters the court’s focus is on the “risk” moving forward to a child of being subjected to abuse or harm if time is permitted between the child and the alleged perpetrator and taking into account the conditions, such as supervision, that might be attached to any orders. That risk might be physical, psychological or emotional.
The standard of proof that the court must apply is one where it be satisfied as to the allegation being made out or there being an unacceptable risk on the “balance of probabilities”, but with consideration as to the seriousness of the particular allegation and the potential consequences and ramifications which then might require some variation in the actual standard of proof. Dixon J in the High Court in Briginshaw v Briginshaw[2] 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 references.
[2] (1938) 60 CLR 336 at 362
The importance of the standard of proof is made clear when the High Court in M v M (supra) noted in respect of Dixon Js comments:
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute.
Section 140 of the Evidence Act 1995 (Cth) essentially enshrines the Briginshaw test in statute in the following terms:
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;
C. The gravity of the matters alleged.
Keeping in mind that counsel for the mother in the matter now before me conceded that it would not be open for me to make a positive finding that sexual abuse had occurred, it is relevant to note that the Full Court in WK v SR[3] said:
In children’s matters under part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony or indirect inferences are insufficient to ground a finding of abuse.
[3](1997) FLC 92-787
The issue left for me, however, on the case of the mother, is whether there is an “unacceptable risk” of sexual abuse of this child at the hands of the father. The High Court in M & M (supra) distinguished the term “unacceptable risk” at page 77,081 in the following terms:
It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child …
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 assessing the magnitude of that risk…
To achieve a proper balance, 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.
Counsel referred to a decision of the Full Court in Johnson and Page[4] where their Honours cited a paper by John Fogarty A.M. extracting a set of principles from M v M (supra) as follows:
[4] (2007) FLC 93-344
1 The decisive issue is and always remains the best interests of that child.
All other issues are subservient.
2 The nature of the risk is best expressed by the term “unacceptable risk”. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
Whilst these might be considerations and references rather than “principles” in the true sense, they do give a framework to judges in considering the notion of “unacceptable risk” in respect of the evidence adduced in any particular case.
An “unacceptable risk” as a finding brings its own particular difficulties. It is not a simple determination of “guilt” or “innocence”. Firstly, there is the adjective “unacceptable”. It follows as a matter of logic that not all risks will be accompanied by a cessation of time or a condition being placed on time. Indeed, it can be argued that there is always some “risk”. The term “unacceptable” then brings some qualitative, relative or proportionate aspect to the notion of “risk”. There remains, however, as in all determinations, the requirement to consider whether the evidence establishes that there be a risk of the child being at harm in the future and whether such a risk is unacceptable. As the Full Court in Napier v Hepburn[5] noted:
There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.
[5](2006) FLC 93-303 at 81,120
Warnick J in Napier v Hepburn (supra), in a separate judgment stated:
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge while the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for a change.
Generally, and although the focus in this matter is on the allegations of sexual abuse of [X], I must make determinations that are in the best interests of the child[6]. I determine those best interests with regard to section 60B and section 60CC of the Act. Section 60B provides the objects and principles and the principles underlining those objects in the following terms:
[6] s.60 CA of the Act
60B(1) The objects of this part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CC of the Act sets out numerous mandatory considerations that I am to address with reference to the probative evidence before me and the proposals of the parties. Those considerations are divided into “primary considerations” and “additional considerations”. There is, however, no hierarchy of importance save and except that I am to place some emphasis and weight on the protective considerations in section 60CC2(b) as set out above. I will address each of the considerations in these reasons below. I note, however, that the focus and ambit of the dispute in the matter now before me emphasises the allegations against the father. The father himself argues that the mother has coached the child and he relies on any findings in this regard to ground an order that there be a change for [X] from primarily living with the mother to living with him. The mother says that she will accept findings of the court as to unacceptable risk or not and, if not, then she will accede to a return to the orders from July 2011. Within these terms, and given the nature of the consent orders made as recently as July 2011, there was little evidence and there can be little argument as to the capacity of the parents to attend to [X]’s needs, the willingness and ability of the parents to facilitate [X]’s relationship with the other parent and the nature of [X]’s relationship with each of the parents. Similarly, [X] is just four years of age and not able to rationally provide an expression of her views and preferences as to her living arrangements.
The Evidence ─ Mr Simmons ─ the father
The applicant father gave evidence. He relied on his trial affidavit filed 15 March 2013. In his affidavit and in cross-examination he denied any sexual impropriety towards [X]. He says the explanation for [X]’s notifications is that she has been coached by the mother.
Mr Simmons says that he first learned of the allegations against him in a letter from the wife’s solicitors received 15 June 2012 and which suspended his time with [X].
Mr Simmons formally consented to interim orders on 10 July 2012 giving him supervised time with [X], but on the basis that supervision served to protect him from further allegations of abuse.
Mr Simmons in his affidavit alludes to concerns in respect of the wife’s emotional or mental state historically. He suggests some danger to [X] accordingly. At paragraph 11 of his trial affidavit Mr Simmons deposes:
I did have concerns following a number of incidents in which [X] suffered bruising and cuts while in the wife’s care when she appeared to be inexplicably afraid or distressed by the wife. This included incidents in April 2009 when I found the wife in a foetal position rocking back and forth with [X] who had a bruised and scratched head and face. On another occasion in November 2009 I heard a loud bang and then [X] screaming, and ultimately the wife said that [X] had fallen off her change table. The Department of Human Services (“DHS”) spoke with both of us following this incident but did not formally investigate …
The wife appeared almost obsessed with [X], and overprotective to the point of paranoia as it seemed to me. I would be permitted to play with [X] only when the wife was having a shower or was actually unable to look after [X] herself …
On 6 January 2010, I saw that [X] had suffered extensive bruising to her head and face. My wife simply told me that [X] had fallen over.
These allegations must be seen within the context of the father entering into consent orders on 27 July 2011 whereby [X] was to live primarily with the mother.
The father refers to frequent and regular romantic overtures from the mother post separation and continuing to at least December 2012. To Mr P, the family reporter, he estimates up to 30 occasions of sexual intimacy between the parties following separation and including the period after [X] is alleged to have made disclosures to the mother and others. He says that these events were instigated by the mother with a view to a reconciliation. He denies any ulterior motive on his part as suggested by the mother such as eliciting sexual favours from her in order to allow her instances of contact with [X] when the child would be otherwise with him pursuant to the orders.
Mr Simmons denies any improper or manipulative relationship with the professional supervisor during the period of the interim orders. It was put to him in cross-examination that he had manipulated the contents of the supervisor’s reports of his time with [X] to the extent that he was questioned as to whether that relationship with a supervisor had become a personal one.
He does concede, after being confronted with tape-recordings, of telling [X] that she could speak to him in “baby talk” during court-ordered telephone time. The allegation against him is that, in doing so, he was planning a complaint to the department of human services against the mother and/or attempting to shore up his own case before this court. He denied this allegation and says that he was simply enabling [X] to be herself on the telephone.
Much of the cross-examination of Mr Simmons centred on his supervised interim time with [X] and the nature of his relationship with the supervisor, Ms P. He was challenged only generally as to the allegations of sexual abuse and not intrusively or in detail as to the particulars of each notification. There was also lengthy cross-examination as to the instances of sexual intimacy between the parents post separation and whether he was the instigator and, if so, his motives? He was cross-examined as to conversations, taped by the mother, between himself and Ms P in the presence of [X] which were alleged to be denigrating of the mother.
I had the advantage of hearing and seeing Mr Simmons give his evidence in court. He presented as an assertive and somewhat empowered witness. There was little or no emotion when confronted with the serious allegations of sexual abuse. He was, however, vehement and direct in his denials. At times his evidence was directed to what he perceived to be his own “rights”. He gave answers such as “What about my time …?” and “What about me …?” I accept, however, that Mr Simmons had the benefit of consent orders in respect of [X] dating from July 2011 which allowed him time with [X] for up to six days per fortnight and that the serious allegations against him had thwarted his time and that, should the allegations be untrue, he would be entitled to feel aggrieved. Overall, I found Mr Simmons to be an impressive and direct witness. His evidence in cross-examination remained forthright and consistent.
Ms T
The father’s sister, Ms T, gave evidence and was cross-examined. She relied on two affidavits filed on 5 August 2012 and 8 March 2013. She is a former [occupation omitted]. She accompanied Mr Simmons on a number of supervised visits with [X] and observed a generally good, positive and bonded relationship. Ms T does, however, depose to recent observations of [X]’s demeanour and, in particular, at paragraph 15 of her affidavit where she said:
I am concerned about [X]’s welfare in that I have noticed a marked deterioration in her confidence, her level of functioning, her ability to concentrate and I believe her apparent anxiety has increased remarkably as well. It seems to me that [X] does not feel able or committed to enjoy spending time with me and/or her father. I believe that [X] is becoming anxious about how she should behave in the care of her father and me. She has lost the confidence to undertake activities which just six months ago she was participating in happily and confidently, now saying “I can’t”.
Not surprisingly, Ms T is generally supportive of the father’s relationship with [X] and dismissive of any allegations against him.
Ms M
Mr Simmons adduced evidence from a forensic psychologist, Ms M. Her affidavit is sworn 27 September 2012. She interviewed
Mr Simmons on 23 August 2012 and again by telephone on 12 September. Ms M had read the Department of Human Services material and was aware of the allegations against Mr Simmons. Ms M examined and commented on the specific allegations and notifications made to the time of her interviews. She carried out a psychometric assessment of the father together with a risk assessment. Ms M makes the following conclusions at page 9 of her report:
There is no evidence that [X] is subject to physical or psychological coercion in regard to sexual violence by her father, however the documentation would suggest that [X] may be subject to psychological coercion on the part of the mother in the making of allegations of sexual violence.
There is no evidence that Mr Simmons attempts to minimise the serious (sic) of the allegations or that he expresses attitudes that condone sexual violence.
Mr Simmons,(sic) a man who presents as man who is insightful with no deficits in self-awareness, no significant difficulties with coping with psychosocial stress, or with planning. He has no history of mental illness, other than transient distress associated with separation identified by Dr K, there are indications of psychopathic traits or personality disorder, and no history of suicidal or homicidal ideation. He does not have a history of sexual abuse. Mr Simmons, (sic) not have a history of substance abuse.
In her evidence in court Ms M noted that any disclosure of child abuse is concerning but that a court or investigator would benefit from knowing the complete interview procedures in the form of all questions asked of the child and within context. She opined, that the best interviews are those conducted by police officers and that, “the problem with DHS records is that we never know what comes before and never have a full transcript.”
Ms M has concerns in that there is evidence in the police notes of suggestive conversations between the mother and the child. She says that the most important event in the forensic investigation is the, “first disclosure,” and that there is a danger of subsequent notifications being contaminated because of what has gone before. Ms M noted that neither the police nor the Department of Human Services chose to proceed against the father following their interviews with [X].
Ms P
Ms P has been a supervisor of [X]’s time with the father. She works for an organisation known as, “[A].” Her affidavit was sworn 13 September 2012. Ms P was challenged as being a partisan to Mr Simmons’ case. She was accused, of acting inappropriately and unprofessionally in that her case notes were selective in their content and favourable to the father. She was accused of having inappropriate conversations with and in the presence of [X]. She was presented in the witness box with the tape recordings of the supervised time these been clandestinely made by the mother by placing recording equipment in [X]’s possessions or on [X]’s person during supervised time periods.
Ms P’s reports of time between [X] and the father are generally positive and demonstrative of a good and bonded relationship. She is not critical of Mr Simmons in his interactions with [X]. Ms P conceded in cross-examination that she may have at times gone outside of her job description although the evidence is that the terms of her particular employment are not detailed. She denied any personal or improper relationship with Mr Simmons. She denied that her report was selective or that it improperly included false comments or facts favourable to the father’s case. She conceded, however, that any relevant or empirical observations or conversations with the father might be included including some at the suggestion of the father.
I found Ms P to be a witness of the truth. She readily conceded that she may have had conversations in the presence of [X] which referenced the mother and which were inappropriate. Generally, however, I am satisfied that there was no collusion between Ms P and the father and that I give some real weight to her contemporaneous reports of the supervised time – with visits.
Ms C
Ms C was also a supervisor and also works for, “[A]”.” Her affidavit was sworn 4 April 2013. Ms C was cross-examined as to her duties as a supervisor and her method of preparing reports. Ms C reports of appropriate interaction between Mr Simmons and [X] indicates a comfortable relationship between child and father.
Ms C reports from the visit of 6 January 2013 as follows:
[X] appeared to enjoy herself with her father and once again on the return to her mother, [X] asked the writer to not tell her mother that she had had a good time with the father as her mother will be angry. [X] also spoke about wanting to go to her father’s house and that her mother won’t let her and that she didn’t know why.
The writer suggested talking to her mother about this and [X] said, “No, mummy will be angry with me if you do that.”
Ms Simmons – the mother
The mother gave evidence with the assistance of an interpreter although her understanding of and speech in English appeared to be reasonable. The interpreter was not required to translate each and every word of the proceedings but was used more for unusual language or legal concepts. I am satisfied that the mother had a proper understanding of the proceedings and I was able to understand her responses in cross-examination.
The mother relied on her affidavit filed 6 July 2012. She had sworn and filed an affidavit of 12 April 2013 this being filed contrary to trial orders and directions. A successful objection was taken to reliance upon that affidavit. Nevertheless, it eventuated that Ms Simmons was cross-examined as to the contents of that affidavit and it was thus tendered as an exhibit.
Ms Simmons denies any history of mental illness. She deposes to historical concerns regarding sexual abuse of [X] or, alternatively, exposure to sexual activity in the father’s house. At paragraph 3 and following of her affidavit of 6 July 2012 the mother deposes:
The applicant tends to sleep with little clothing on and sleeps in the same bed as [X]. [X] has in the last few months indicated that she sleeps with the applicant and sees him wearing only underpants to bed. [X] has also told me that she has seen her Father shaving his genitals. Whilst the applicant and I were living together he certainly did not have shaved genitals. [X] has further disclosed that the applicant leaves the bathroom open he showers and often sees him in the bathroom shaving his genitals.
After some generalised comments in that affidavit, Ms Simmons then reports taking [X] to a paediatrician, Dr B, on 11 May 2012. She deposes:
I took [X] to see the Doctor because she was agitated and confused. [X] was seen by the doctor alone and made disclosures to the doctor that the Applicant had licked her vagina and anus. The doctor disclosed this to me and I was horrified.
However, in her affidavit sworn only three days before the commencement of this trial, Ms Simmons deposes with greater particularity at paragraphs 17 and 18:
On a number of occasions after coming back from [Mr Simmons]’s house, [X] would talk about [Mr Simmons]’s penis saying that [Mr Simmons]’s penis is a shape of a diamond, on another occasion she said that she saw [Mr Simmons] showering and shaving his pubic area. On another occasion she said that he sleeps without clothes on and that he (sic) had seen [Mr Simmons] taking, (a) his clothes off. I assume that she meant [Ms A] the woman who worked for [Mr Simmons]. On that occasion he said that – he (sic) said that [Ms A] was lying on the coach and [Mr Simmons] took her clothes off and then [Mr Simmons] pulled down his pants. On another occasion she said that [Ms N], has black pubic hair on her vagina. On a number of occasions I asked [Mr Simmons] to be more discreet and to wear pyjamas to bed. On 6 May 2012 [X] came home from a visit with [Mr Simmons] and she said, “[Mr Simmons] played with my pou-pouni” (baby word for vagina). Then she said, “Daddy touched me down there.” This concerned me greatly. I did not want it to be true but my paramount objective was and still is to protect [X] from harm no matter who the perpetrator was. I am aware that [X] is a young child and she may say things that are not true but I must balance this against protecting her from harm. I did not want to jump to conclusions but I felt it was my duty to protect [X] and I wanted to confront [Mr Simmons] about it.
The reading of the applicant’s affidavits of 6 July 2012 and 12 April 2013 give some concern as to why the alleged notification of 6 May 2012 is not referenced in the early affidavit. The indication in the first affidavit, as emphasised by the father’s counsel, is that the mother was “horrified” when advised of her daughter’s disclosure to Dr B. However, it is clear from her later affidavit that a similar disclosure was made to her only days earlier and Dr B’s affidavit deposes to the mother giving such a history to the doctor.
When learning of the [X]’s disclosure to the doctor. No satisfactory explanation was given to the court as to why the alleged primary disclosure to the mother only some five days earlier was not included in the mother’s earlier affidavit.
The mother conceded in cross-examination that she continued to send [X] for time with the father after the alleged disclosure and including a disclosure to Dr B on 11 May 2012. The mother’s only explanation for doing so was that she felt bound by the court order.
The mother admits sexual liaisons with the father post-separation and until approximately December 2012. She says that these were at the instigation of the father and amounted to “blackmail” by him of eliciting sexual favours in return for her speaking with or spending time with [X]. She does, however, concede that she considered and perhaps even sought reconciliation at times including after the alleged disclosures by [X]. Notably she was represented by lawyers during this period which casts some doubt on the veracity of the “blackmail” claims.
The mother denies any coaching of [X]. She agrees, however, that she informed Dr B on 11 May 2012 that [X] had made a disclosure of sexual abuse. She agrees with Dr B that she had reported that [X] had returned back from her father’s house on the previous Sunday and she was upset, distressed and told her mother that her father played with her bottom.
Ms Simmons admits that the father spent the nights of the 5 and 6 June 2012 with her and that sexual intimacy took place. This was the day of and immediately following a physical medical difficulty for [X].
The mother concedes that she had engaged lawyers as early as 22 May 2012 and that a letter from her lawyer to Dr B was dated 29 May.
The mother was cross-examined about historical allegations she had made in respect of the father back to 2010 when she had made an allegation of physical abuse to [X] followed by an allegation with connotations of sexual abuse. It is noted that the mother also entered into consent orders on 27 July 2011 whereby the father would be having unconditional time with [X] graduating to six days and nights per fortnight.
The mother was cross-examined extensively in respect of these historical matters and what is alleged to be her propensity to make false allegations in respect of the father or, at least, allegations that had not be substantiated and are generally contrary to her agreeing to unconditional consent orders. A letter of 12 August 2011 from Dr B to a Dr L of the [omitted] Family Medical Centre was tendered into evidence. [X] had been referred from Dr L to Dr B and that letter cites the following history from the mother:
[X] has a complicated social situation. Her parents were separated nearly two years ago. Her mother was a victim of domestic violence. There were issues of alcohol abuse by the father.
This letter is written only some 13 days after the mother consented to unconditional orders for [X] to spend time with the father.
Mr Simmons was not challenged as to the particulars of alleged domestic violence or alcohol abuse. The inference I am asked to draw by the father’s counsel is that the mother has a propensity to make false allegations against the father and that the current allegations of sexual abuse should be considered in this light.
The mother claims further disclosures by [X] including one that she was allegedly sexually abused by the father in a toilet during a supervised visit on 14 October 2012. Neither the father nor the supervisor was cross-examined as to this alleged disclosure.
The mother generally argues that the supervision is unsatisfactory and that the supervisor may be partisan to the father’s case.
Department of Human Services notes indicate that the mother had a conversation with the child protection officer, Ms O as recently as 8 April 2013 in respect of the alleged disclosure of 14 October 2012 or as put by Ms O “a further disclosure by [X] to another professional”. Nevertheless, the mother’s affidavit of 12 April 2013 does not reference such conversations or alleged disclosures.
I also had the benefit of seeing and hearing the mother give her evidence and be cross-examined. I note her difficulties with the English language and her cultural background. Even within this context, however, her evidence was at times hesitant and unsatisfactory as to its explanation. She regularly blamed her lawyers or former lawyers for omissions of evidence of important events in her affidavits. She was unable to give explanations as to why the father was not cross-examined or challenged as to some important events including alleged disclosures by [X]. Generally I found her evidence in respect of the post-separation sexual history between herself and Mr Simmons to be unreliable and unbelievable. Indeed, her own tape recordings of conversations at times contradicted her evidence in her affidavits and in the witness box and specifically as to the sexual liaisons between father and mother on 5 and 6 June 2012 and her claims of being “blackmailed” into providing sexual favours to the father.
I have ongoing concerns as to the motives of Ms Simmons in secretly recording time – with visits between the child and the father.
Generally, where there are direct issues of credit and disputed fact between the parents, I prefer the evidence of the father.
Dr B
Dr B’s affidavit is sworn 6 July 2012. She was cross-examined. Annexed to her affidavit is a report and letter of 11 May 2012 addressed to Dr L at the [omitted] Medical Centre. Dr B is a paediatrician.
The letter of 11 May 2012 states the following:
I reviewed [X] today with her mother. Her mother reported that [X] has returned back from her father’s house last Sunday and she was upset, distressed and told her mother that her father played with her bottom. Ms Simmons reported this to the separating counselling services a few days later, they asked her to come and see me. Ms Simmons was really worried about the situation at [X]’s father’s house.
Today [X] was looking well. I have interviewed her alone to ask her how she feels. She mentioned that she went to her father’s house last week. There were two ladies in the house called [Ms A] and [Ms N] and also had a few other men came inside the house: They usually come and go. [X], [Ms N] and her father usually sleep in the same bed.
When I asked about what type of playing she does with her father, she said “Daddy played with my bottom and he has done it twice. He also licked my bottom.” I have spoken with the [G] Centre about these concerns and what to do. I have not performed a physical exam on [X] today. I have notified the [omitted] Child Protection Services.
Dr B recalled taking a history from the mother prior to her consultation with [X].
Dr B was cross-examined about the wording of her interview with [X] and it being leading of the child and in particular:
I asked about what type of playing she does with her father …
The mother used that same word “played” in her report of the disclosure. Dr B answered that the term “played” is commonly used when questioning children.
Dr B reported [X] as speaking fluently and not being distressed. She said that she had not been necessarily concerned about [X] being coached although this is a matter that is always within her consideration with the proviso that it is not the doctor’s duty to forensically make a determination as to truth or falsity of an allegation.
Ms O – Department of Human Services – Child Protection
Ms O is an advanced child protection worker with some years experience. She is the author of a letter tendered to the court and dated 15 April 2013 being the first day of the trial. Ms O concludes and recommends in that letter as follows:
The DoHS is of the view that the current carer arrangements for [X] are appropriate and has assessed that she is not at risk of harm in Ms Simmons’ care. Given [X]’s contact with Mr Simmons is currently fully supervised, the DoHS has assessed that it does not have a further role in this matter. The DoHS is of the view that [X]’s referral to [G] should be reinstated and that she be allowed counselling. However, in the event that Ms Simmons, Mr Simmons’ contact was changed to unsupervised or is he were to become the primary carer of [X], the DOHS would be highly concerned given her allegations of sexual abuse.
That letter details a history of involvement with [X] since 2012 and various reports and allegations of alleged sexual abuse. It also notes an investigation as to whether [X] has been coached by the mother and under the heading of, “Result of DOHS Investigation”, states the following:
The DOHS has now completed its current investigation. The concerns regarding [X]’s allegations of sexual abuse have been substantiated by the DOHS pursuant to section 162(1)(d) and (e) of the Child Youth and Families Act (Vic) 2005. Whilst there is no forensic evidence to indicate that any sexual abuse has occurred, the DOHS is not in a position to rule out the possibility of abuse in light of the disclosures by [X]. [X] has disclosed that her father is, “naughty,” and that he has licked her on the vagina and fondled her. She has been able to demonstrate what she means by a lick (licking herself on the arm) and then clasping herself in between her legs to show where the lick by her father had occurred. The DOHS is concerned that [X] continues to disclose sexual interference and has knowledge about the abovementioned forms of sexual contact which is beyond her years.
That same letter reports and concludes in respect of observations of Mr Simmons, the father as follows:
Mr Simmons has also been observed in his interactions with [X]. He presents as a very structured and regimented parent. It is clear that whilst [X] enjoys seeing her father, she is noticeably more awkward or confused when in his care than she is with her mother. Mr Simmons has high expectations of [X]. He does not regard her as a child who is meeting her developmental milestones, despite this claim being rejected by kindergarten professionals who confirm that [X] is academically sound with no noted delays. Mr Simmons does not allow [X] to demonstrate basic free play and becomes frustrated when she does not focus upon educational tasks he has set. Mr Simmons is scathing of Ms Simmons’ care of [X] in all areas claiming that she keeps her isolated, that she does not sit at the table to eat, she does not read at home, and other allegations. It is unclear how he would have knowledge of their daily routines as communication between Mr and Mrs Simmons is non-existent and has been for a substantial period. Mr Simmons has consistently timed his phone calls with [X] and makes regular complaints with [X] are short and erratic. He concludes that she is coached into not engaging with him via telephone by Ms Simmons and that she is very fearful of her mother and therefore will not disobey her. Mr Simmons dismisses child protection’s assessment. That misbehaviour is simply typical for a four year old child. He has argued that [X] has demonstrating regressed academic capabilities because she cannot conduct a telephone conversation and the onus for this falls upon Ms Simmons.
Ms O conceded in cross-examination that the focus of her department’s brief is to protect children and to, “err on the side of safety.” She agreed that the historical file notes in respect of this matter cast doubts on the veracity of the disclosures and also reference concerns as to the mother’s possible coaching of the child. Ms O had considered the disclosures of 6 May 2012 to the mother and 11 May to Dr B. She had considered subsequent to disclosures at the child’s kindergarten and the mother’s report of the allegation of abuse during supervised time on 14 October 2012.
Significantly, Ms O volunteered yet another alleged disclosure by [X] and as reported by the mother and not otherwise aired during these proceedings. This involved the mother reporting that [X] had disclosed to her that she had made corroborating disclosure apparently to the supervisor. Neither Ms P nor the father were cross-examined as to this allegation and it is not referenced in the mother’s latter affidavit. [X] is alleged to have told the supervisor that, “daddy licked me.”
Mr P – Family Reporter
The court was greatly assisted by a Family Report prepared by Mr P, psychologist. That report is dated 17 September 2012. He was cross-examined by counsel for each of the parties. Mr P had the benefit of a previous Family Report prepared by Ms F in 2010 as well as the affidavit material filed in these proceedings. It is proper to note that Mr P experienced some difficulty in his interview with Ms Simmons through the use of an interpreter and particularly in respect of questions in relation to sexual abuse and also noted some cultural awkwardness in the mother.
Mr P noted the fact of the allegation and counter-allegation between the parties but his observations[7] as follows are of interest:
Mr Simmons vigorously denies the allegations of abuse and doubts that anything untoward has occurred in relation to [X] at all. He notes that these allegations were raised just prior to the implementation of the second phase of the Final Orders that would have seen his time with [X] increase to six nights in a 14-night cycle. He described a close and loving relationship with his daughter.
Mrs Simmons had a scatter of concerns regarding [X] and her father that dated back to the early times of separation. Much of her focus, however, seemed to be on her concerns regarding Mr Simmons’ behaviour and his relationship with her rather than his relationship with [X] as such.
[7] Family Report paragraph 10 & 11
Mr P had the opportunity to observe [X] with the father. He comments as follows:
Upon seeing her father, [X] greeted him warmly, raised her arms and sought to be picked up by him. They shared a physical embrace, they engaged warmly and cooperatively, interacted comfortably and this reunification seemed to occur quickly and effortlessly. They played cooperatively, Mr Simmons engaged positively, was genuinely a part of her activity and included. At one point, [X] indicated to her father her need to go to the toilet and she allowed her father to tend to her physical needs without fear, reluctance or apprehension. Mr Simmons attended to her toileting without difficulty or his own hesitation. Together they maintained an excellent level of dialogue and communication.
Within the limitations of the mother’s interview with Mr P, he reports:
…Mrs Simmons advised that she had concerns regarding [X]’s behaviour, that she had been coming home from time with her father feeling unwell, that prior to Christmas she was complaining that she was “dizzy and unable to stand on her feet”, that this had become the source of medical inquiry, but no physical symptoms were found … On another occasion returned flushed in the face and told her that her father had been playing with her vagina and when asked how, she allegedly told her with his finger. Mrs Simmons recalled that time after time when [X] returned from visiting her father that she kept saying the same thing and then added that, “he licked it too”.
Ms Simmons reported to Mr P of her distaste of Mr Simmons having relationships with other women. She confirmed that there had been an ongoing sexual relationship between her and Mr Simmons post-separation and post the disclosures by [X] albeit not with such frequency as alleged by the father.
Mr P observed [X] and the mother to have a positive and warm relationship.
Mr P, armed with the supervisor’s notes, raises a concern that the mother had coached the child and that negative statements by the child at that time were contrary to Mr P’s observations of [X] with the father. At paragraph 40 of his report Mr P states:
The intensity of these communications, the impact on a child of [X]’s age and the unmistakable messages of restraint should not be overlooked. In subsequent visits, the same pattern is reported, that is, that [X] made clear that she didn’t with [sic] to see her father, she made reference to her father hitting her mother, and of there being a shared construction and belief between Mrs Simmons and [X] about that which transpired and in particular reference to Mr Simmons having taken [X] to the toilet when Ms P clearly told her that this was not the case. This is a troubling development. The co-construction of beliefs of events is not an uncommon phenomenon when false-positive allegations of sexual abuse emerge. The co-construction of Mr Simmons taking [X] to the toilet is likely to have evolved through a series of questions, inquiry, supposition and elaboration. Because of [X]’s age and stage, the co-construction of these spoken realities become truth and embedded as fact. Children of this age range communicate in a manner that is referred to as transducive reasoning that makes them particularly vulnerable to the co-construction of false recollections. The fact that Mrs Simmons conveyed a sense of doubt and disbelief in relation to Ms P suggests something about her, her feelings, her construction of reality and likely reflects the amount of intrusion that these beliefs have upon [X] and her cognitive functioning. The fact that [X] when physically separated from her mother is able to engage with her father in a manner that is completely contradictory to her stated feelings, suggests the extent to which she is in a state of inner turmoil, her need to split the world and to encapsulate her time with her father. Whether in fact Mrs Simmons actually says these things to [X] or whether [X] understands the unspoken intent is difficult to comment upon. It seems clear from Ms P’s account that the negativity of Mrs Simmons affect and the clear and unmistakable communication of this negative affect to [X] is blatant.
Two specific issues are particularly noteworthy. The claw game that has evolved into abuse may well be reflective of the extent to which there is a co-construction of a false reality. [X]’s reference that her mother will die if her father takes her away from her in the context of Mr Simmons having made an application to have [X] reside with him, suggests that the boundaries between [X] and her mother may be blurred in t he extreme.
Mr P considered various explanations of [X]’s disclosures including what he termed “emotional fact-finding” where people form a belief and then go out to seek the facts to substantiate the belief. In addition, however, it is important to note that Mr P agreed that children of a young age do not always manifest a negative response to an actual sexual abuse in that their naivety and youth does not allow them to rationalise that the behaviour is wrong.
Mr P notes the possibility of [X]’s disclosures being false-positive allegations of sexual abuse within the context of the mother’s complaints generally in respect of the father and in relation to collateral issues. He agreed that “escalation” of details of an alleged instance of abuse by the child would be of concern as to the veracity of any allegation. Such “escalation” of detail from [X] was noted in the child protection records.
Within the difficulties set out above for the courts and other professionals in making findings and conclusions in respect of sexual abuse allegations, Mr P concludes[8]:
From an objective perspective, what this assessment reveals is that there are other explanations for what [X] has said and how she has behaved other than the sexual abuse allegations, and of greatest concern of all is that one such possibility is the direct manipulation and coaching of her by her mother.
[8] Family Report paragraph 45
In respect of the forensic investigations generally, Mr P was most enthusiastic as to anything disclosed at or flowing from any police investigation. He said in cross-examination:
…because of the good, modern police interview techniques, if we give a disclosure to police then we should stand up and take notice.
In relation to the possible options and explanations for [X]’s disclosures, and in cross-examination by the mother’s counsel, Mr P conceded that “I think that mum is genuine in her belief” which on the face of it might be seen as being inconsistent with any mala fides on the part of the mother proceeding to coach the child to make blatant false disclosures but might be consistent with other explanations such as “emotional fact-finding”.
Mr W
Mr W is a consultant forensic psychologist. He prepared an assessment on the mother and is her witness. He examined the mother on 7 and 21 August 2012 and spoke with her on the morning he gave evidence. His report is dated 7 September 2012. He had the benefit of Ms F’s family report from October 2010, the mother’s case outline and affidavit material of both parents. He did not speak to the father. He did not see the child. He administered a psychometric assessment on the Beck Depression Inventory which canvasses symptoms of depression and anxiety. Some reactive depression relative to the marriage breakdown was detected.
Mr W did not find any major psychological disturbance. He found the mother to be a reliable witness and consistent in her reporting to him. He did not find evidence of Personality Disorder. He noted that the reported allegations were not accompanied by any obvious process of alienation of the child from the father.
Not surprisingly, Mr W’s report suffers from him obtaining the history primarily from the mother although he did have the father’s affidavits. He conceded in cross-examination that the truth of the reported history and absent any selective admissions or exaggeration was important in arriving at his findings.
Mr W was asked whether he would have concerns if it was found that the child had made a serious disclosure to the mother on 6 May 2012 and to Dr B on 11 May 2012 but the mother continued to allow unsupervised time with the father including overnight time for a further month? He responded that he would have some concerns and noted that the mother was keen to reconcile with the father. He noted that such a scenario would be “unusual”. He then noted “inherent inconsistencies in the history she has given”. In re-examination he conceded that inconsistencies might be explained by language difficulties, use of an interpreter, and the mother’s high level of anxiety.
Police Records
Victoria Police records of interviews with [X] were tendered into evidence. They were at court under subpoena. Those records note a disclosure received on 12 May 2012. This is the day following Dr B’s consultation with [X].
There is then a reference of 31 May 2012 in the following terms:
Rcvd call from Ms Simmons. Detailed that since SOCIT last spoke to her daughter she has had further access with her father and returned with bruise to her chest. Detailed that daughter has stated that her father had hit her. Further stated the daughter is still talking about her father touching her bottom. Advised that she has spoken her solicitors who didn’t believe she had sufficient grounds to take matter before FLC to have access with father varied/removed.
A reference in the notes of 15 June 2012 suggests insufficient disclosure by [X] to take the investigation further. The same police notes reference an incident where the mother in the presence of the police interviewers, ask [X] directly leading question in respect of alleged abuse by the father.
Child Protection Files
The child protection files in respect of [X] were tendered into evidence but with only specific reference. It is clear that the child protection officers considered both the danger of sexual abuse and of the child being coached. A reference from 22 January 2013 includes the following under the heading “Safety and Well-Being statement”:
Ms Simmons presented well and did not allege anything further against [Mr Simmons] in terms of sexual abuse, in fact, she did not mention him at all. It is hard to ascertain whether Ms Simmons continues to coach [X] into having negative thoughts of her father, or whether [X] is inadvertently entwined within the conflictual relationship, mostly generated by Ms Simmons. Nevertheless, it remains unclear where the sexual abuse allegations have arisen from, and it is concerning either way, ie, whether they have actually occurred or whether the mother has created those memories for [X]. Further investigation required. No new allegations at this point.
A file note of 7 December 2012 states:
[X] presented as very excited and almost uncooperative (difficult to contain). [X] was happy to talk to me but she did not answer many questions, and veered away from topics. [X] spoke so quickly I was unable to unstand (sic) her speech, and she was animated at the same time (dancing and shaking about). [X] did repeat that her father was “naughty” and that he licked her. She also stated that she was with her dad last night. She advised that her dad took her to the toilet at the train in “the man’s one”. The interview was kept to a minimum as [X]’s “silliness” appeared to worsen as the interview progressed.
A note of 12 December 2012 includes the following:
[Mr Simmons]’s contact with [X] is 2 hours supervised on a Sunday by an independent person, and yet allegations continue to be made about [X] being abused during this contact.
The mother Ms Simmons has no history of psych issues (psych assessments stated she had no evidence of psycho-pathology, no evidence of mood disorder, not depressed, not psychotic), she is a refugee from Iraq, both her parents are deceased. CP have not completed a full psycho-social assessment of her because there have been so many assessments that have already occurred.
The allegations of sexual abuse commenced approx 1 year ago, around the time when MGM passed away.
[X] has just started attending Kinder, she has advanced speech. [X] co-sleeps with her mother.
The attachment between [X] and her mother is said to be disorganised – Ms Simmons is unable to calm [X].
The disclosures by [X] have escalated (first physical, then said she didn’t like her father, then sexual abuse, then demonstrating actions).
SOCIT are not pursuing the matter.
CP have not been able to substantiate the sexual abuse. Professionals are more concerned about the emotional impact of the ongoing allegations made and the safety of [X] in her mother’s care.
The father relies on the Child Protection files and reports to show factual inconsistencies in [X]’s statements such as allegations on particular days, when, in fact, [X] was not with the father on such days. There are claimed further inconsistencies in the particulars of allegations made by [X], for example, there are inconsistencies in particulars of [X]’s alleged disclosure at her kindergarten in October 2012 and the subsequent statement of the kindergarten teacher. A file note of 8 November 2012 in respect of this incident notes the following:
I asked [Ms R] (from the kindergarten) about the disclosures made by [X] in relation to sexual abuse. She confirmed that [X] was sitting in a group on Father’s Day as [Ms R] was explaining to the children the “rules” regarding their Father’s Day presents. She advised the children that not all of them would give their presents to their dad, as some will choose to give a present to a grandfather or stepfather etc, depending on the makeup of the family. She stated that [X] disclosed then and there that her father was “bad” and that her father hit both her and her mum. She also stated that her father hit her “down there” and pointed to her vagina. I asked whether she had stated that her father had licked her, and she said no.
Discussion and Conclusions
I have evidence of a number of specific disclosures by this young child commencing 6 May 2012 and to the mother. There is a disclosure to Dr B on 11 May 2012. There is an alleged disclosure at the child’s kindergarten in September 2012. There is [X]’s disclosure, made to the mother, that she was abused by the father during supervised time on Sunday, 14 October 2012. That notification was made in a telephone call from the mother to Child Protection on 19 October 2012. Ms O from Child Protection also alludes to a further disclosure to “another professional”. The particulars of this disclosure are vague and uncertain and not referenced in any other material before the court. No evidence was led from the mother in respect of any such disclosure. Neither the father nor the supervisor were cross-examined in regard to it.
Counsel for the mother does not urge upon me a positive finding of sexual abuse occurring in respect of any of the allegations. Frankly, I think this a proper submission given the state of the evidence.
I must, however, consider whether there is, on the evidence, an unacceptable risk to this child of sexual abuse occurring if there is time between [X] and her father. On the facts before me I must consider this risk even in respect of “supervised time” given that one of the allegations refers to abuse during a period of supervised time. I must consider the evidence within the empirical context and surrounding factors. I must consider the evidence in respect of the possibility of the mother making deliberate false allegations and the other possible explanations proffered by Mr P. I must consider the possibility of a mistaken but honest belief on behalf of the mother and within this context I must take into account the mother’s social and language difficulties. I consider all of the investigative processes. I take into account the expert evidence of Ms M, Mr P, and Mr W.
I find the forensic investigative evidence to be of little assistance. I note Mr P’s comments in respect of general weight to be afforded the competency of police investigations. I note that there were no disclosures by [X] so as to substantiate abuse. I note an instance of the mother, in the presence of the police, asking leading questions of [X]. In this respect I take into consideration Mr P’s comments about “escalation” of a disclosure.
The brief and function of the child protection authorities is different to that of this Court. They candidly (and properly in my view) work from a basis from “erring on the side of caution”. Whilst the Court must place greater weight and emphasis on the protective provisions under section 60CC of the Act, it remains the function of the Court to evaluate and weigh the evidence within the consideration of onus and burden of proof and to consider the overall best interests of the child in regards to her relationships with her parents and her living arrangements. The child protection files as a whole do not assist in a finding of unacceptable risk. “The substantiated concerns” of Ms O in her letter of 15 April 2013 reference only that “the DHS is not in a position to rule out the possibility of such abuse in light of the disclosures by [X].” Whilst I accept that Ms O’s role is different than that of “intake”, the evidence from the child protection files and Ms O as a whole do not lead me to a conclusion of unacceptable risk. Those files note the “escalation” in detail of [X]’s comments. They note the factual inconsistencies mentioned above. In particular, the suggestion, and perhaps suspicion, of the child being coached is also featured in the files.
There are unusual aspects of this matter for which cultural and language problems might provide some explanation. However, I am concerned that this mother should continue to send her child for unsupervised and unconditional overnight time with the alleged perpetrator of abuse on her daughter. She did so even after the disclosure to Dr B. The mother’s explanation of feeling obliged to comply with a Court order is difficult to accept giving the severe nature of the child’s disclosures. The mother continuing a sexual relationship with the alleged perpetrator of sexual abuse on her daughter might also be considered unusual or, at worst, contradicting of the veracity of the allegations. In this context, the complaints by the mother of the father’s other dalliances post-separation and her own thoughts of reconciliation assume some relevance.
I accept the submission of counsel for the father that there are unusual or inconsistent historical aspects in this matter of the mother making serious allegations against the father but then entering into consent orders. As such, I place some weight on this propensity or tendency evidence.
The omissions from the mother’s own affidavit and her evidence in Court do not assist her case. Her affidavit of 6 July 2012 references the disclosure of [X] to Dr B and the mother being “horrified” at it. That same affidavit is silent as to what the mother now says was a previous serious disclosure by the child to her on 6 May 2012. Similarly, neither the father nor the supervisor, Ms P, were challenged as to an allegation that the child was allegedly abused by the father in a toilet during a supervised visit in 2012 or an alleged disclosure by [X] directly to the supervisor. I cannot be comfortable that even the mother’s language difficulties would explain such omissions. The mother’s reporting of the alleged disclosure at kindergarten does not successfully pass scrutiny of the child protection investigation, and arguably it was not in fact a disclosure at all and, at the very least, is inconsistent with the mother’s version given to child protection.
In summary, the evidence of abuse is inconsistent, at times contradictory, and generally uncorroborated. It has not stood up to forensic investigation by the police and child protection authorities. The mother’s history and post-disclosure behaviour is inherently inconsistent with her young child being sexual abused and is not explained by language or cultural difficulties. I am troubled by the mother’s own tendency to make complaints about the father whilst contemporaneously entering into orders in respect of [X].
Consequently, on all of the evidence before me, I am not satisfied that there is an unacceptable risk for [X] in having time with her father or that such time must be supervised or conditional.
Counsel for the mother then argues that it is open to the court to find that there is an unacceptable risk for [X] in having unsupervised or unconditional time with the father on account of him encouraging the child to be uncooperative in telephone communications with him and thereby giving him ammunition for complaint to the Department of Human Services. On the material before me and, in particular, the tape recordings, I am satisfied on the balance of probabilities that the father did act in this way. This is insightful and selfish behaviour. It fails to recognise the potential effect on a young child of being embroiled in such a way in parental dispute. Similarly, however, the mother’s actions in sending the child for supervised visits with recording equipment secreted on her is similarly appalling behaviour. The actions of both these parents are at best naïve and at worst a form of child abuse. In this sense they are equally culpable. I note the mother’s emotional difficulties in respect of their relationship breakdown together with her own cultural and language difficulties. I note that the father was the subject of very serious allegations of sexual abuse of his only daughter. These are mitigating factors and I am prepared to accept that each of these parents has acted out of character and each event is an aberration rather than indicative of a propensity for such behaviour. In all of the circumstances I am not of the view that of either parent presents as an “unacceptable risk” to the welfare and safety of [X], on the proviso, of course, that they both desist from repeating their wrongdoings. In this sense it is proper to comment that the focus of each of the parents, historically and more recently, appears to have been one of evidence gathering against the other parent. The language of the father in the witness box indicates this when he makes references to “opportunities” to obtain evidence and the like. The mother’s actions in sending the child with clandestine recording equipment speaks for itself.
Given the concession that I cannot and should not make a positive finding that [X] has been sexually abused and my inability on the evidence now to find any unacceptable risk to the health or welfare of [X] into the future of unsupervised time, counsel for the father urges me to change [X]’s primary place of residence from being with the mother to with the father. The basis for this argument is that I can find that [X] has been coached by the mother to make the various disclosures.
This, however, is not the only explanation available for [X]’s statements. Mr P, in his very helpful evidence in the witness box, offers possibilities as to the notifications by the mother and the disclosures by [X]. Mr P’s evidence in cross-examination was highlighted by him volunteering that he thought Ms Simmons to be genuine in her belief that [X] was in danger of sexual abuse. This raises the possibility of misunderstanding or misinterpretation of [X]’s innocent comments by the mother. If note the Police investigators observations of the mother asking blatantly leading questions of [X]. I again note the circumstances surrounding this family. I note the possibility of reconciliation throughout the relevant period. I have had the advantage of seeing the personalities of the parents in the witness box. The coincidence of court orders and increasing time for [X] with the father does not escape me.
The nature, context and inconsistency of some of the disclosures by [X] is relevant. Nevertheless, as pointed out to counsel in his final address, it does not necessarily follow from a finding of no unacceptable risk that the child has been coached. There is a lack of evidence in proper form before me to allow the positive finding of coaching as sought by the father. At its highest, I have comments in police files and child protection reports that these departments have considered the possibility that [X] has been coached. The authors of these notes were not called as witnesses. None of this evidence has been tested with the exception, of course, of Ms O from the Department of Human Services who was not of the view that [X] had been coached to make false allegations.
In summary, it is not the task of this court to arrive at positive findings by reason of default. The onus is on the father, when making an assertion, to prove it on the balance of probabilities. He has failed to do so. I, therefore, prefer the evidence and insightful comments by Mr P that there are other possible explanations for the mother’s conclusions and the child’s statements of outside of either the child having been abused or the mother blatantly coaching [X] to make false disclosures.
Counsel for the mother submitted that if I was unable to make the findings of unacceptable risk then the pre-existing status quo should be restored. This would see [X] now spending six nights a fortnight with the father and eight nights with the mother. The mother has moved residence and put some distance between the two homes and has done so unilaterally whilst the extant orders have been suspended. There is however no evidence before me to suggest pre-existing arrangement is not still reasonably practicable. I intend to order that [X] live between the parties in accordance with the previous consent orders. If the reinstatement of the orders of July 2011 present any logistical difficulties, then I will reserve leave for the parties to apply.
I have considered whether the order for equal shared parental responsibility should remain? In light of the previous order and the regime of shared care that I now reinstate, and despite the difficulties between the parents resulting from the subject matter of these proceedings, I am of the view that these parents should share parental responsibility for [X]. They will each be involved in her schooling and extra-curricular activities as she grows by reason of the live-with orders. They will therefore both need to have input, communication and co-operation in this regard.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Judge McGuire.
Date: 24 May 2013
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