Simmons & Simmons
[2021] FamCA 136
•19 March 2021
FAMILY COURT OF AUSTRALIA
Simmons & Simmons [2021] FamCA 136
File number(s): PAC 5215 of 2019 Judgment of: HANNAM J Date of judgment: 19 March 2021 Catchwords: FAMILY LAW – INTERIM PARENTING –Where the mother contends that the children are at risk in the father’s care on the basis that he sexually abused the eldest child in the past – Where the mother proposes that she hold sole parental responsibility for the children and that the children spend no time and have no communication with the father – Where the father denies that the children are at risk in his care on any basis and proposes orders supported by the ICL that he have limited supervised time with them – Where single expert made recommendations which appear to support a relationship between the children and their father even if the Court ultimately finds that the father engaged in sexual abuse as alleged – Where the Court considers it in the children’s best interests to make orders as sought by the father to maintain a pathway for them to have a relationship with him, and considers that any harm posed by the father is sufficiently mitigated by supervision – Orders made as sought by father and supported by the ICL. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA Cases cited: Deiter& Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13
Number of paragraphs: 143 Date of hearing: 17 November 2020 Place: Parramatta Counsel for the Applicant: Mr Grew Solicitor for the Respondent: Phillip A Wilkins & Associates Counsel for the Independent Children's Lawyer: Mr Blank ORDERS
PAC 5215 of 2019 BETWEEN: MR SIMMONS
Applicant
AND: MS SIMMONS
Respondent
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
19 MARCH 2021
PENDING FURTHER ORDER:
1.The mother hold sole parental responsibility for the children X born … 2012, Y born … 2014 and W born … 2014 (“the children”).
2.The children live with mother.
3.The children spend time with the father each alternate Saturday for a period of three (3) hours with such time to be supervised by B Services (“the supervision agency”) commencing on the first Saturday available to the supervision agency.
4.If the supervision agency cannot facilitate time in accordance with Order (3) above then such time occur on one occasion each fortnight at times nominated by the supervision agency.
5.For the purposes of time in accordance with Orders (3) and (4) each party shall:
(a)Contact the supervision agency within seven days and arrange an appointment for an intake assessment if applicable;
(b)Attend the assessment;
(c)Comply with all reasonable rules of the supervision agency; and
(d)Comply with all reasonable requests or directions of the staff of the supervision agency.
6.The father is solely responsible for payment of the supervision in accordance with Orders (3) and (4).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to
IT IS NOTED that publication of this judgment by this Court under the pseudonym Simmons & Simmons has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
The parties (“the mother” and “the father”) cannot agree about the future parenting arrangements for their three little girls (“the children”) following the breakdown of their five year marriage.
The children have lived with their mother at all times since separation in 2015 and initially spent regular time with the father as agreed between the parties.
The informal parenting arrangement continued until March 2016 when allegations that the father sexually abused the eldest child (who was then aged almost four) first surfaced.
At various times over a number of years, allegations of sexual abuse said to have been made by two of the children have been investigated by various police and child welfare teams. None of these complaints were substantiated following investigation until late 2019 when the Joint Child Protection Response Program (“JCPRP”)[1] substantiated the father as having abused the eldest child. None of the children have spent time with the father since this time.
[1] The Joint Child Protection Response Program is made up of officers from Community Services and police and investigate complaints of sexual abuse and serious physical abuse of children.
It is the mother’s contention that the father poses an unacceptable risk of sexual harm to the children and seeks orders at this interim hearing and on a final basis that she hold sole parental responsibility for the children and that they live with her and spend no time and have no communication with the father.
The father has at all times denied that he has harmed any of the children in any way or that there is an unacceptable risk that he would do so in the future. In this application, he seeks interim orders that the children spend time with him for three hours each alternate Saturday and that this time be supervised by a private supervision agency. He submits that such an arrangement would provide the children with adequate protection in relation to any unacceptable risk alleged, whilst promoting their relationship with him in a safe and secure environment.
The ICL does not support the mother’s proposal that the children spend no time with the father. It is the ICL’s view that such a proposal carries with it the risk that the children’s relationship with their father would be unable to be restored, and that there is also a risk that the children would become enmeshed in an inaccurate narrative about the father which the ICL submits is present in the mother’s household. Both the ICL and the father agree that the father’s proposal for time would at least maintain a pathway for the children to have him in their lives in the future, should the Court consider this to be in their best interests when all the evidence is tested at a final hearing.
The question for me to determine is which of the completing interim applications is proper having regard to the children’s best interests as the paramount consideration.
BACKGROUND
The mother who is 33 and the father who is 35 commenced a relationship in 2006 and married in 2010.
The first of the parties’ children, a daughter who appears to have a range of emotional and behavioural difficulties (“the eldest child”), was born in 2012 and is now almost nine years old. Although it is common ground between the parties that from a young age this child exhibited some concerning behaviours, the father asserts this child’s behavioural difficulties are not as extreme or extensive as the mother contends.
The parties’ twin daughters, now aged six (“the younger child A” and “the younger child B”, collectively “the younger children”), were born in 2014.
Both parents agree that the mother has been the primary carer for the children since their births.
While the mother deposes that throughout the parties’ relationship the father perpetrated significant family violence towards her to which the children were sometimes exposed, this matter was not raised by her counsel at the interim hearing and was not the subject of oral submissions made on behalf of either of the parties. I therefore understand that at this interim stage the mother does not contend that the father’s alleged family violence is an issue of significance with respect to the risk of harm he poses to the children. It is noted in this background to provide context to the parties’ dispute.
By 2015, the parties’ relationship had significantly deteriorated and they separated on a final basis in November of that year.
Following separation, the father moved to live with his parents while the children remained living with the mother in the family home. The children initially spent time with the father as agreed between the parties including for about six hours each weekend from around December 2015 when he moved into a new home.
The children’s time with the father then came to a halt in March 2016 when it is alleged by the mother that the eldest child first disclosed that she had been sexually abused by him. At the time, the mother also deposes that she observed “redness” around the child’s genitals and that the child also had a vaginal infection. The child was taken to the family doctor where the mother says the child repeated her disclosure of sexual abuse.
The mother’s case about the risk of harm posed by the father rests on disclosures said to have been made by the eldest child about sexual abuse and other sexualised conduct observed by the mother which are discussed later in these Reasons. It suffices to say at this stage that following this child’s initial disclosure, she was taken by the mother to hospital for various medical examinations and a number of reports were made to the Department of Family and Community Services (as it was formerly known) (“the Department”) about the mother’s own concerns that this child had been sexually abused. The children spent no time with their father for a period of about six weeks while these reports were investigated.
When interviewed by JCPRP officers in March 2016 in the course of the initial investigation, the eldest child (then aged almost four) made no disclosures of abuse by the father. JCPRP officers did not substantiate the risk of sexual harm in relation to the child, but a risk of psychological harm was substantiated against the mother arising from “ongoing reporting by the mother and [the child] having undergone three medical examinations as a result of the alleged sexual abuse”.
Following the completion of the investigation into the abuse allegations, in April 2016 agreement was reached between the parties that the children would commence spending overnight time with the father in his household each fortnight.
In May 2016, the Department received further reports concerning sexual harm and indecent acts which were not referred to any agency for further investigation as they were considered by the Department to duplicate previous complaints.
In early July 2016 the mother presented the eldest child to hospital again after reporting to police that the child had repeated her earlier disclosure of sexual abuse. It appears that reports relating to this matter were made to, and assessed by, Departmental officers, but were subsequently closed with no risk or harm issues substantiated. One other risk of sexual abuse report was made to the Department at the time, but it too was closed as it did not meet the risk of significant harm threshold.
In August 2016 the eldest child was taken by the mother to a dermatologist who identified that the child presented with a skin condition on her vulva. It was speculated that the condition developed as a result of the child rubbing her genital area.
In September 2016 the parties agreed to a parenting plan (“the 2016 parenting plan”) providing that the children spend time with the father each alternate weekend from Friday to Sunday, for dinner on a weeknight, on special occasions and for one week during the Christmas school holidays.
It appears that for the next two years this parenting arrangement continued without significant incident, although it is the mother’s case that there were many occasions on which she observed the children display sexualised behaviour that she denies arose from anything untoward occurring in her own household.
Despite her concerns about the children in this regard, the mother continued to make the children available to spend time with the father as agreed.
Between late 2016 and 2018 eight reports were made to the Department concerning “sexual abuse of child” and “risk of sexual harm”, but only two proceeded to secondary assessment. Safety assessments were completed in relation to these two reports but no risk or harm issues were ultimately found.
Throughout 2018 it became apparent from Departmental records and a report made by a school counsellor from the eldest child’s school that this child had become increasingly aggressive and defiant in both home and school settings.
In August 2018 the eldest child began attending upon a psychologist on a weekly basis.
At some unknown stage of her treatment with the psychologist, the eldest child is reported as having made disclosures of sexual abuse by the father and some complaints about being physically abused by him. Although the precise nature of these disclosures are unclear, they became the subject of further investigation by JCPRP in November 2018 (“the 2018 investigation”).
In November 2018 the eldest child was again interviewed by JCPRP officers in the course of the 2018 investigation. During the assessment the child made no disclosure of sexual or physical abuse by the father. The matter was subsequently closed with no risk or harm issues substantiated and the children continued to spend time with their father in accordance with the 2016 parenting plan.
The mother and the children moved into their current home in around mid-November 2018 and in accordance with an agreement between the parties the eldest child was enrolled into a new school.
From around this time, the mother became engaged with a family support worker to assist her in meeting the children’s needs.
Shortly after commencing at her new school the eldest child was referred by school authorities to the school counsellor due to concerns with her behaviour. The school counsellor reported that the child displayed “significant externalising behaviours” and had general intellectual abilities at a low average level. He made a recommendation that his report be provided to any psychiatrist engaged with the child for further investigation.
By January 2019 both parties had re-partnered. The parties, together with their new partners, met to discuss the children’s needs. Particular focus was on the eldest child’s behavioural difficulties and other concerning comments apparently made by the younger child A. At the conclusion of this meeting, the parties agreed that they would each keep a notebook in which each parent was to document any concerning or inappropriate behaviours and comments made by any of the children.
Later the same month, the mother, through a letter sent from her solicitor, informed the father that she wished to formalise the 2016 parenting plan into final orders to be made with the parties’ consent. Further in this letter, the following was noted:
My client instructs that although she understands these investigations came about due to disclosures made by [the eldest child] which were in turn reported to the Helpline by mandatory reporters, my client does not believe that the children are at risk of significant harm in your care or that there is any truth to the previous allegations of sexual harm.
My client is very concerned however to understand why [the eldest child] has made these repeated disclosures and to try to identify any underlying psychological issues that may be causing [the eldest child] to make these false reports.
As a result of the growing concerns about the eldest child’s psychological and behavioural difficulties, on various occasions throughout 2019 the mother presented the child to a range of medical professionals and sought therapeutic intervention for this child through different support services.
The eldest child’s involvement with medical professionals and support services
In February 2019 the eldest child attended upon her first appointment with a child and adolescent psychiatrist who diagnosed her with an attachment disorder.
The following month this child was seen by a consultant paediatrician who hypothesised that while the child did not present as having a serious psychiatric, medical or developmental disorder, her behaviour may be explained by of a history of trauma.
In the same month, the eldest child attended upon a second paediatrician (“the second paediatrician”) who diagnosed the child as having features suggestive of Attention Deficit Hyperactivity Disorder (“ADHD”), but excluded Autism. This doctor reported that the child required “intensive appropriate psychotherapy to address her behaviour and her history of abuse” and also prescribed the child medication to address her sleep disturbances.
The mother deposes that in May 2019 she was referred by the Department to C Services as she had reported experiencing domestic violence perpetrated by the father.
In around June 2019, the eldest child commenced attending at the same service, though the father was not aware of this engagement at the time. The mother also facilitated this child’s weekly attendance upon D Services. It is the mother’s case that the child has not been engaged with these services in relation to the child’s previous allegations of sexual abuse, but for the purposes of managing her sexualised and violent behaviour. The child’s attendance upon these services is a significant matter relating to the allegations of risk made by both parents and is a matter to which I will return.
After several therapy sessions between the eldest child and C Services and D Services, the mother deposes that the counsellors from both services recommended that the child’s time with the father cease. It was the opinion of the child’s counsellor from C Services that the child’s problematic sexual behaviour was likely to be linked to sexual abuse.
On about 20 August 2019, the father received an email from the mother’s then solicitors advising that the mother was no longer prepared to facilitate the children’s time with him based on recommendations made by the eldest child’s treating practitioners and the mother’s other concerns about his limited capacity to meet the children’s complex needs. At the conclusion of the letter the father was advised that the mother did not intend to cease the children’s time with him permanently.
Despite the father later communicating through his solicitors that he did not consent to the children’s time with him ceasing, the mother stopped making the children available to spend time with him and they have not seen him since this time.
Following the cessation of the children’s time with the father, the eldest child commenced taking medication for ADHD and continued to engage with her paediatricians as well as her counsellors from C Services and D Services. On some occasions the mother and the children collectively participated in “family sessions” organised by C Services and the family support service with which the mother was engaged. Some of the sessions focused on protective behaviours relating to abuse.
The 2019 JCPRP investigation
On 23 August 2019 the Department received yet another report concerning child sexual abuse.
According to the mother’s evidence, the eldest child made a disclosure to the maternal grandmother about being inappropriately touched by the father and both she and the child were accompanied by a family support worker to a police station to make a report.
The mother also deposes that around that time there had been an occasion where the younger child A (who was then nearly five) complained of feeling pain when being touched near her genital region, and that this child had also made disclosures during a family session with C Services about sexual behaviour in the father’s household and that the children slept naked at his house.
JCPRP officers investigated the allegations relating to both children (“the 2019 investigation”), and separate interviews with each of them were conducted on 5 September 2019.
On interview, the eldest child (then aged seven) made clear disclosures of abuse by the father. According to Department records, while the younger child A did not disclose harm by the father, she acknowledged that he did not live with her as he had “touched [the eldest child]”.
On 23 September 2019 the father met with a detective associated with the investigation and was informed of the disclosures made by the eldest child. Police records indicate that the father became “visibly distressed” and “shocked” by this information.
In October 2019 when the father commenced these proceedings, the 2019 JCPRP investigation had not yet been completed. The father sought to have the proceedings dealt with urgently contending that despite the history of unsubstantiated allegations made against him (and his own understanding that the 2019 JCPRP investigation would not substantiate the more recent allegations) the mother continued unilaterally to deny him time with the children. He sought orders on a final and interim basis that the parties equally share parental responsibility for the children and that the children live with the mother and spend time with him on a fortnightly cycle similar to the 2016 parenting plan and for half of the school holidays.
The mother filed her Response in November 2019, at which time the 2019 JCPRP investigation was still ongoing. She sought final and interim orders that she hold sole parental responsibility for the children and that they live with her and spend no time with the father.
At the first return date before a Registrar on 12 November 2019 the proceedings were placed into the Magellan Program and a Magellan Report was ordered.[2]
[2] The Magellan program is a fast-track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of the Department with the family.
In January 2020 the Magellan Report was released to the parties which included the following outcome of the 2019 JCPRP investigation:
Sexual abuse has been substantiated as a result of [the eldest child]’s interview and [the father] has been recorded as a person having caused harm to [the eldest child]…given [the eldest child]’s disclosure of abuse, risk of sexual harm has been substantiated for [the younger children].
The Magellan Report also indicated that since the 2019 JCPRP investigation, a further seven reports were made to the Department alleging child sexual abuse which did not proceed to secondary assessment and were subsequently closed.
Despite substantiation by the JCPRP, the father has not been charged with any offence.
Events preceding the Interim Hearing
From February 2020 the eldest child commenced counselling sessions with a new treating psychologist from C Services (“the C Services counsellor”) upon whom she attended on a regular basis. The younger child A also attended upon this counsellor about four to five times.
In March 2020 orders were made with the consent of the parties appointing a single expert clinical psychologist to the proceedings (“the expert”) for the preparation of a report relating to the welfare of the children.
The family was assessed by the expert across two occasions in May and June 2020 and the interviews of each parent were conducted electronically due to the restrictions associated with the COVID-19 global pandemic.
In June 2020 the mother gave birth to a child (“the children’s half-sibling”) whose father is no longer in a relationship with the mother.
In July 2020 the expert’s report was released to the parties. A more detailed summary of the expert’s findings and observations is provided later in these Reasons. It suffices to record at this stage that the most salient issues arising from the assessment pertain to the question of whether the father sexually abused the eldest child or engaged in family violence towards the children and the mother, and whether or not the mother coached the children and/or maintained poor boundaries with them. There were also concerns expressed by the expert about the eldest child’s ongoing relationship with the C Services counsellor, and various recommendations were made including in relation to the children being offered the opportunity to spend time with the father with the aid of therapy.
From August 2020 the mother and the children engaged with a new family support worker who conducted weekly home visits to assist the mother in meeting the children’s developmental and additional needs.
In September 2020 the father’s solicitor sent an email to the mother’s solicitors in which it was canvassed that the parties engage in family therapy in order to facilitate the children’s time with the father in light of the recommendations made by the expert. The mother was not prepared to undertake family therapy with the children and instead pressed her application that the children spend no time with the father.
On 2 September 2020 the younger child B attended upon a paediatrician who diagnosed her as being on the autism spectrum. The eldest child was also referred to this paediatrician who currently remains the children’s only treating paediatrician.
The Interim Application
At the hearing of the parties’ competing applications, the father sought interim orders that the children spend time with him each alternate Saturday for three hours supervised by a private supervision agency, and that he be solely responsible for payment of that supervision. He also sought an order that the mother be restrained from facilitating the attendance of any of the children upon D Services and C Services, but did not press the order he initially sought that the parties and the children engage in family therapy.
The ICL supports the father’s interim proposal in relation to the time the children are to spend time with the father and the restraint on the mother from facilitating the children’s attendance upon D Services and C Services.
The mother in written and oral submissions pressed her application that she have sole parental responsibility for the children and that they live with her and spend no time and have no communication with the father. Although the mother’s Outline of Case was silent as to the order sought by the father restraining her from facilitating the children continuing to receive treatment from D Services and C Services, counsel for the mother confirmed at the interim hearing that the mother opposed orders that this therapy cease.
The general tenor of the submissions made by the father and the ICL in support of the restraint on the mother continuing the children’s treatment with D Services and C Services was that such treatment had proceeded on the assumption that the father’s abuse of the children had occurred. Both parties and the ICL later agreed that in the event a restraint was made as sought by the father, it would nevertheless be appropriate for the children to receive psychological support to assist them in navigating the conflict between the parents and the family law dispute.
At the conclusion of the interim hearing, I made an order restraining the mother from facilitating the attendance of any of the children upon D Services and C Services other than in accordance with a court order or agreement of the father for reasons which were given at the time.
An order was also made with the consent of the parties that they facilitate the children’s attendance upon a therapist nominated by the ICL for the purposes of assisting them in managing the dispute between their parents.
THE LAW AND DISCUSSION
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode (2006) FLC 93-286 (“Goode”).
Goode sets out a framework for the conduct of interim proceedings which involves identifying competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts.
Assessment of Risk
When considering interim orders, the Court may, and in some circumstances must, also have some regard to the matters in dispute. There is a long line of authority to the effect that a court must make an assessment of disputed facts relating to alleged risks to children.
In SS & AH [2010] FamCAFC 13 their Honours said at [100]:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Deiterv Deiter [2011] FamCAFC 82 (“Deiter”) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk. The Full Court said at [61]:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
The central dispute between the parties is the question of whether the father poses an unacceptable risk of harm to the children arising from him having sexually abused them or any one of them in the past.
In assessing the probabilities of the competing claims about sexual abuse, it is significant in my view to first consider the long history and context of the allegations said to have been made by the eldest child in particular.
As noted in the Magellan Report, there have been 38 reports received by the Department between March 2016 and November 2019 and almost all of these reports have related to sexual abuse. None of these complaints were substantiated until late 2019 where it appears from the Magellan Report that the substantiation was made on the basis of the eldest child’s disclosure of sexual abuse by her father in her third interview with investigating authorities in September 2019.
Although there is no transcript of that interview available, a document entitled “Alternate Assessment (SARA exception)” dated 1 January 2020 sheds light on the disclosures made by the eldest child on interview. In that document it is recorded that when asked at the interview what the child had come to talk about, the child said “about daddy touching me…he has been touching me everywhere and I’m not going to see him anymore. He has been touching me on my vagina, bottom and everywhere else…he went up my vagina, it hurt me a lot”.
In the same document, the various behavioural disturbances and conditions with which the eldest child has been diagnosed are noted, as well as some of the opinions expressed for the child’s presentation by various health practitioners with whom she has been engaged. It is also recorded that the counsellor from C Services (whose qualifications are unknown) spoke to Departmental caseworkers in the course of this investigation and expressed the view that this child “is displaying problematic sexual behaviour likely to be linked to sexual abuse”. It appears from this report that the assessment of the JCPRP that the father had sexually abused the eldest child (determined on the balance of probabilities) is based primarily upon this child’s clear disclosure of abuse and identification of her father as her abuser and the information about her behavioural difficulties, and in particular problematic sexual behaviour and the likelihood that this behaviour is linked to her experience of sexual abuse.
In addition to the findings of the JCPRP, I must also consider the opinion expressed by the expert in relation to the probabilities of the eldest child having been sexually abused.
Given that this is an interim hearing, I do not make any findings and any reliance upon the expert’s opinion must be approached with caution as it is at this stage untested. I am of the view, however, that the following opinions expressed by the expert attract some weight in considering the likelihood that the claim of sexual abuse of the eldest child will be found proved at the final hearing or form the basis of a finding of unacceptable risk posed by the father.
When considering the records produced on subpoena by the family’s medical practitioner, it is observed by the expert that the mother disclosed to the general practitioner (“GP”) that she had been sexually abused as a child. It is also recorded that the eldest child at the age of four, apparently requested to see the GP on her own and told the GP in that separate appointment that she wanted to spend time with her mother individually while her sisters spent time with their father.
The expert observed that when the mother joined the appointment she reassured the eldest child that they would have time together when the younger children started day care when they turned two the following month. The expert opines that this “raises some concern about potential learning by [the eldest child] that she was able to gain attention from her mother by making allegations against her father”.
In relation to the information expressed by the C Services counsellor that the eldest child’s problematic sexual behaviours were “likely” to be linked to sexual abuse, the expert expressed the following opinion:
While this may be the case, there are many reasons that a child may demonstrate sexualised behaviours, and sexualised behaviours should not be used as an independent indicator of sexual harm.
I consider that this last expressed opinion is based upon the expert’s extensive expertise and experience as a psychologist in the field of sexual abuse which is not in dispute between the parties and thus unlikely to change under cross-examination. I also prefer the opinion of the expert who is particularly well qualified and experienced in the field of sexual abuse and has provided an independent expert assessment of the whole family, over the opinion of the counsellor treating the child whose qualifications are also unknown. For this reason, it is a matter to which particular weight may be attached in this interim application.
It is also apparent that the expert viewed the eldest child’s JCPRP interview undertaken in the course of the 2019 investigation and sets out in her report the reasons for her conclusion that the child “did not suggest with any certainty” that the father had perpetrated sexual abuse against her. The expert notes various features of the child’s account in that interview which cause her to come to this conclusion.
First, the expert considers that the child’s answers were “given in an unemotional way”. She observes that “at one point after saying that [the father] touched her vagina and bottom, [the eldest child] looked directly at the camera and smiled” and that “[the child] had difficulty particularising the context surrounding her allegation of putting his finger inside her vagina”. The expert opined that while this is not unusual given the child’s age, she also noted that the history of the allegations suggest that the father had abused her on numerous occasions and that “even if she could not detail a particular incident, it would be expected that she would provide a general account of the nature of this abuse”.
The expert also notes that, contrary to the suggestion that the father had abused her numerous occasions, the eldest child told the interviewing officer that the father had never sexually abused her except on one occasion. She also observes that the child’s account of her father’s language was dramatic and exaggerated. For example, the expert noted that the child reported that after the father abused her by putting his finger inside her vagina, he stated “oh my gosh, woof, that was nice!” The expert formed the impression that the child was “relaying a story and creating details as she went”. The expert’s impression in this regard was reinforced by the child telling a story about the last time she was interviewed, in which she reported that the police officer who interviewed her “yelled” at her, was “mad” at her and played a game with her including chasing her out of the room. The expert observed that the child’s “demeanour when telling this clearly fictional account was consistent with her demeanour when describing her father’s alleged abuse of her”.
The expert also commented upon features of an account that the child gave in this interview of an alleged assault by her father upon her mother, including elaborated details that during the incident the father had taken the children (including her younger sisters who were not born at that point) for a drive.
The expert gives considerable attention to the reports about the eldest child’s behavioural difficulties and in particular her conduct that the mother considered to be “sexualised”. In expressing an opinion in relation to these matters, the expert carefully considers all of the sources of information including school records, the records of all of the health professionals who have seen the eldest child, and the various counsellors and other services engaged with this child. The expert sets out in her report a comprehensive summary of the child’s presentation in all of these settings.
In relation to the eldest child’s behaviours, the expert opines in summary:
… it is apparent that [the eldest child] is a child who has demonstrated challenging behaviours from approximately three years of age. This is around the time that her parents separated. It appears that [she] demonstrated sexualised behaviours prior to her parents’ separation. Sexualised behaviours by children can appear for a number of reasons, including exposure to domestic violence or other traumas (including attachment disruptions), experiencing sexual abuse or being exposed to other sexualised material, or as a self-soothing behaviour in children who have limited other coping skills. It appears that [the mother] and other agencies involved with the family have suggested that [the eldest child]’s sexualised behaviours are triggered at least some of the time in relation to emotional distress. It is apparent that [the eldest child]’s behaviour has improved significantly in response to being prescribed medication to manage ADHD, and it seems feasible that her sexualised behaviours may have been related in part to impulse control difficulties related to this disorder.
The expert took a psychosexual history from the father given the allegations of sexual abuse and opines that his account did not raise concern regarding sexual deviancy, including sexual interest in children or a history of concerning sexual behaviours.
The expert felt that a relevant matter in relation to gaining clarity about the allegations of sexual abuse is the timing and nature of those allegations. In this regard, the expert observed that both parties described the eldest child engaging in sexualised behaviours prior to their separation and that the mother first raised concerns about the child rubbing her vulva with her GP in February 2016.
The eldest child’s first disclosure of sexual abuse by her father was that he “…” (apparently a reference to her genital area) while they are playing a particular game. Although the mother presented the child twice to a hospital and was said to have made a similar disclosure to staff at the hospital, the child did not make such a disclosure when first interviewed by JCPRP in March 2016.
The expert notes that in August 2016 a dermatologist identified that this child had a skin condition related to her rubbing her vulva and in September 2016 this child told her GP that she wanted more time alone with her mother.
There were then no further allegations of abuse until August 2018 when the eldest child made a further disclosure to a psychologist which prompted a second investigation in November 2018 which, like the first investigation, was not considered substantiated by the Department.
Throughout this period the eldest child had demonstrated a range of challenging behaviours that the mother had difficulty managing and various diagnoses were given in relation to the child’s presentation. The child then began engaging with D Services in June 2019 on the assumption that she had been sexually abused.
One of the paediatricians engaged with the child diagnosed ADHD and the child began taking medication on 2 September 2019. The child last spent time with her father on 13 August 2019 and was interviewed for a third time by the JCPRP on 5 September 2019.
At the end of September 2019, the paediatrician described the eldest child’s behaviours as significantly improved. The expert opines that it is impossible to differentiate between the impacts of various events and attribute the child’s improved behaviour to feeling a sense of safety (if she no longer had to spend time with her father who had harmed her). Other possibilities are that this child had improved in response to experiencing reduced emotional pressure in relation to the discord between her parents or that her changed behaviour is solely due to the commencement of medication.
The expert also opines that unfortunately the involvement with numerous services means that the eldest child’s account of her experiences “has been irrevocably influenced through their various approaches, but specifically through her involvement with C Services and D Services given their view that [she] had experienced trauma”. The expert also opines in this regard that if all of the allegations of sexual abuse were correct, it would be expected that the involvement of numerous services would increase the likelihood of her making a clear, unambiguous disclosure to at least one of these services, if not the police. The expert’s review of the documentation and discussions with clinicians involved suggests that this child’s disclosures have not been clear and unambiguous.
The expert also opines that if the eldest child had been sexually abused by her father since 2016 it would be expected that she would be able to provide contextual details surrounding these experiences, but that such contextual details were not provided to either the first psychologist with whom the child was engaged or one of her counsellors at D Services. The expert’s own observations of the child’s account in her third JCPRP interview on which substantiation was based is that the child’s disclosures had “a number of features that raised concern…regarding the veracity of her statements”.
In summary, the expert opines that the bulk of the evidence available to her “suggests that it is more likely than not that [the father] did not sexually abuse [the child]”.
The question of whether or not abuse occurred will be a matter for the trial judge at final hearing. It seems likely in my view that in considering this matter a trial judge will attach weight to the expert’s opinion about all of the foregoing matters identified by the expert.
I also consider it likely that the expert’s opinion (that appears to be based on uncontroversial facts) that there may be various explanations for the child’s sexualised behaviour, will be considered weighty by a trial judge.
It also appears that there is no dispute that the mother’s need for parenting support has been identified by a number of services, though as identified by the expert, each agency holds a slightly different view as to the reasons for the mother’s difficulties in setting boundaries and providing consistent care for her children. In this context, a trial judge may attach weight to the expert’s opinion that “the bulk of the evidence available [to the expert] indicates that [the mother] has unwittingly reinforced [the eldest child]’s disclosures as a way that [this child] receives support and care from her mother”.
It is also of particular significance, in my view, that the expert explicitly recognises that it is possible that the mother has had difficulties in her own parenting and the father sexually abused the eldest child and it is possible that this child’s behaviours were a function of her experiences of abuse. Although the expert is not of the opinion that this has occurred, she makes recommendations about appropriate parenting orders even if the Court finds it more likely than not that the father did sexually abuse this child. Although the expert’s opinion in this regard may be considered controversial and has not been tested by cross-examination, I note that it is her recommendation that even if the Court determines that the father did sexually abuse the eldest child, all of the children “should be offered the opportunity for supervised time with their father on a monthly basis”.
In assessing the competing probabilities about the allegation that the father has sexually abused the eldest child or poses an unacceptable risk of harm to the children on this basis, I attach weight to each of the matters raised by the expert (particularly those which appear unlikely to change under cross-examination as they are based on facts which are not in dispute or on research and a body of opinion concerning sexual abuse). I also consider it significant that the Department substantiated abuse on the basis of the child’s disclosures at one interview only (though the child has been interviewed on a number of occasions and the final disclosures of themselves are problematic for the reasons explained), and that there are varying explanations for this child’s behaviour unrelated to sexual abuse. I consider it unlikely that a court will find that the eldest child has been abused by her father and that he poses an unacceptable risk of harm to the children on this basis.
Having regard to the totality of the expert’s opinion which, in my view, is likely to be accepted at final hearing especially where it is based on uncontested facts, I consider that it is unlikely the father will be found to pose a risk of harm to the children. Any risk of harm in relation to sexual abuse that may be found to be posed by him if the children were to spend time with him, may, in my view, be satisfactorily mitigated by an order that such time be supervised.
Risk of psychological harm
The other matter to be considered in this interim application is the question of psychological harm to the children if they spend no time with their father as proposed by the mother.
The expert opines that if the Court assesses that the father did not sexually abuse the eldest child and the mother fails to support the relationship between the children and the father, there is a risk that this may cause psychological harm to the children through interrupting their relationship with the father and perpetuating the view that the eldest child has been abused.
It is difficult to make orders to guard against psychological harm arising from perpetuation of a false view that a child has been abused, especially if that false view may have developed unconsciously as may be the case in these proceedings. However, an order that the children spend no time with the father will undoubtedly reinforce in the children’s minds that the father does pose a risk to them or that they receive no benefit from a relationship with him. The orders as proposed by the father and supported by the ICL will both serve to preserve the children’s relationship with him and protect them from harm.
BEST INTEREST CONSIDERATIONS
Section 60CA provides that in deciding whether to make a particular parenting order in relation to children, a court must regard the best interests of the children as the paramount consideration.
The Court must make such orders as are in the best interests of the children as a result of consideration of the matters set out in s 60CC.
The primary considerations, which are contained in s 60CC(2), are:
(a)The benefit to the children of having a meaningful relationship with both of the children’s parents; and
(b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the children from harm than to the benefit to them of having a meaningful relationship with both parents.
Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[3]
[3] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].
It is submitted on the mother’s behalf that at this interim stage the need to protect the children from harm posed by the father outweighs any benefit they may receive from having a meaningful relationship with him. It is contended on her behalf that until the Court has considered all the evidence and a finding is made as to whether the father has sexually abused the eldest child, it would be inappropriate for supervised time to commence as proposed by the father.
In my view, if orders are made that the children spend no time with the father as sought by the mother, there is a real risk that the possibility for a meaningful relationship between the children and their father will be lost given the lengthy period in which these interim orders may be in place pending final hearing. There is also a real risk that the children will experience psychological harm as a no-time order is likely to promote their view that the father does pose a risk to them or that they otherwise receive no benefit from a having a relationship with him.
Both the father and ICL draw particular attention to recommendations made by the expert in her report in support of the father’s proposal that the children spend limited supervised time with him. They highlight that after considering the competing claims of sexual abuse in the context of the available evidence to her, the expert did not positively recommend that the children be denied time with the father even if the Court were to find that he has engaged in abuse as alleged. The expert is of the view, albeit untested, that the children should be offered the opportunity to spend supervised time with their father on a monthly basis. The ICL in particular further observes that the expert devotes significant discussion to ways in which the risk posed by the father could be reduced if it were the case that the abuse had occurred.
For the reasons given, when weighing the competing probabilities in relation to the question of risk posed by the father I am satisfied that any risk he may be found to pose may be properly mitigated by orders that the children’s time with him be supervised.
I accept the ICL’s submission that the father’s proposal for time will at least maintain a pathway for the children to have him in their lives in the future, and consider his proposal that this time be supervised, provides the children with an appropriate safeguard from any harm that may arise during this time.
While there are also some concerns in relation to a potential risk of psychological harm to the children posed by the mother, both parents at this stage propose that the children are to continue to live in her care.
Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant in this case.
Views expressed by the children
The nature of the relationship of the children with each of the children’s parents, and other persons
Although each of the children expressed some views about both parents and their relationships with each of them in the course of the assessment with the expert, little weight can be attached to those views due to their young ages and concerns that their views may have been influenced by the circumstances of the mother’s care.
As discussed, there is no dispute that the mother has been the primary carer for the children throughout their lives. On this basis, it can be assumed that the children’s primary attachment relationship is with her.
Up until 2019 when the children ceased spending time with the father, it appears to have been accepted that the children had an established relationship with the father who they spent regular time with under the 2016 parenting plan.
While the expert indicated that she is unable to comment on the current status of relationships between the eldest child and the younger child A and their father, she formed the view from observations of the younger child B and the father that this child has a “similar loving relationship with [him]” as she has with her mother. It is the expert’s opinion that the similarities in terms of the younger child B’s relationship with each of her parents suggests that the father has the capacity to offer a similar loving relationship to the other children in the event that he has not perpetrated sexual abuse against the eldest child.
The father proposes that his time with the children be supervised by a private supervision agency. For the reasons given, I consider that such an arrangement would at least provide the children an opportunity to maintain a relationship with him, which the expert considered may be considered appropriate even if the Court were to find that he sexually abused the eldest child.
The mother’s proposal also carries with it the risk that the children may become enmeshed in an inaccurate narrative about the father. It is my view that unless the children are at serious risk of harm in his care, having no time with the father as sought by the mother, involves disadvantages to the children (including their relationships with their father and the paternal family) which may be considered to be significant.
Capacity of each parent and other persons to provide for the children’s needs, including emotional and intellectual needs
Attitude to the children and responsibilities of parenthood demonstrated by each parent
It would appear that the question of the capacity of each parent to provide for the children’s needs, particularly those of the eldest child, may well become a significant issue at the final hearing.
It suffices to say for the purposes of this application that there is no evidence to suggest that the father lacks the capacity to provide for the children’s needs for the purposes of the orders he seeks. Although he initially sought interim orders that the children spend each alternate weekend with him as well as one weeknight and time in the school holidays, he has quite sensibly abandoned this application and proposes a much more limited time regime. Under this regime the children will have also the safeguard of supervision by a private supervision agency that may protect them from any alleged shortcomings in his parental capacity.
Further, there is no clear uncontested evidence as to the attitude each parent has to the children and their parental obligations. If it were to be found that the father physically or sexually abused the children in his care, it would clearly demonstrate an appallingly poor attitude to the children and to the responsibilities of parenthood. For the reasons given I consider it unlikely that such complaints will be proved but do not make any findings in this regard.
If the mother is found to have continually exposed the children to her intense negative views of the father albeit unwittingly, this may reflect poorly upon her.
While counsel for the father also raised concerns that the mother’s affidavit suggests that the eldest child in particular has been exposed to knowledge of the family law dispute, I am equally unable to make any findings as to this matter at this interim stage.
Such other matters the Court considers relevant
Although the mother adduces evidence in relation to family violence and has sought services in the past with respect to this matter, allegations of family violence did not form part of her case at interim hearing about the risks posed by the father. Rather, her case was based entirely on the risk of harm said to be posed to the children on the basis that the father had allegedly sexually abused the eldest child in the past and for this reason poses a risk of future harm.
CONCLUSION
Section 61DA provides that when making a parenting order in relation to children the Court must apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. The presumption does not apply if there are reasonable grounds to believe that a parent of the children (or a person who lives with a parent of the children) has engaged in abuse of the children or another child in the family or family violence. Further, when making interim orders the presumption applies unless the court considers that it would not be appropriate.
It is in my view not appropriate to apply the presumption at this interim stage where there are untested allegations with respect to both parents including allegations made by the mother of family violence. While the father did not press an order for parental responsibility for the children at interim hearing and no submissions were made on behalf of either of the parties in relation to this matter, it would seem in the children’s best interests to make an order that the mother hold sole parental responsibility for the children at this interim stage as proposed by her, given the common position between the parties that the mother has been the children’s primary carer since birth, the reality that they have not spent time or have had communication with their father for over two years, and given there appears to be no existing parental relationship between the parties and or any communication between them.
In coming to a decision about what orders for time are in the children’s best interests, I must balance the various matters to which I have referred.
As explained, I do not consider that the mother’s proposal allows the children to have a meaningful relationship with their father from which, on the available evidence, it may be assumed they receive a benefit. The mother does not contend otherwise. I also consider for the reasons given that any risk that may be present in relation to his care may be mitigated by supervision.
Giving due weight to each of these matters, including the expert’s recommendations that appear to support a relationship between the children and their father, I consider that the father’s proposal for time supported by the ICL is proper having regard to the best interests of the children as the paramount consideration.
For the foregoing reasons, I make the orders as set out at the forefront of this judgment, noting that the orders made on 17 November 2020 restraining the mother from facilitating the children’s attendance upon D Services and C Services and relating to psychological support for the children to be nominated by the ICL remain in place.
I certify that the preceding one hundred and forty-three (143) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 19 March 2021
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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