Smythe & Leopold (No. 2)
[2012] FamCA 350
•16 May 2012
FAMILY COURT OF AUSTRALIA
| SMYTHE & LEOPOLD (NO. 2) | [2012] FamCA 350 |
| FAMILY LAW - CHILDREN - allegation of sexual abuse – question of unacceptable risk – mother coaching child - whether to make a negative finding – change of primary parent with recommendation from Independent Children’s Lawyer |
| Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC (2), (3), (4A), 60CA, 61C, 61DA, 65DAA |
| Hartford and Ansilda [2009] FamCA 23 |
| APPLICANT: | Mr Smythe |
| RESPONDENT: | Ms Leopold |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Patrick Fitzgerald |
| FILE NUMBER: | LNC | 391 | of | 2008 |
| DATE DELIVERED: | 16 May 2012 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 16, 17 & 18 April 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Marcus Turnbull |
| SOLICITOR FOR THE APPLICANT: | Levis Stace & Cooper |
| COUNSEL FOR THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Patrick Fitzgerald |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission |
Orders
Previous parenting orders in respect of E Smythe born January 2006 (“the child”) are discharged.
PARENTAL RESPONSIBILITY
Subject to these orders Mr Smythe (“the father”) have sole and exclusive parental responsibility for the child.
The father must:-
(a)Inform Ms Leopold (“the mother”) of his intention to make a decision about long term major issues prior to its implementation (save for a medical emergency – in which case he will inform the mother as soon as is reasonably practicable) to ensure the mother can genuinely be involved in relation to such decision.
(b)Consult with the mother in relation to decisions to be made about long term major issues; and
(c)Make a genuine effort to take into account the mother's views about such issues including, but not limited to if that view is rejected to give an explanation as to why the view is rejected;
The father is to use his best endeavours to ensure appropriate records of schools, churches, medical providers, hospitals, and the like and note the mother as a person with whom that entity or person may provide information. This being in terms of the child's care, including issues of education, religious and cultural upbringing, health and changes to the child's living arrangements.
In the event the child is recognised by an Aboriginal community as being Aboriginal, Order 2 is conditional upon and requires the father to actively engage the mother, as culturally required, in any decision or activity regarding the child's aboriginality.
Subject to any medical emergency the mother be restrained from presenting the child to any medical or other health care professional without first obtaining the permission of the father and to remove any doubt the mother is not to present the child for the purposes of investigating alleged abuse without first contacting the appropriate Child Protection Authorities, Police and the father.
The child shall live with the father.
The mother spend time with the child at dates and times as agreed between the mother and father. Such time to be supervised as agreed between the parties or otherwise ordered by a court exercising jurisdiction under the Family Law Act.
The father will do all things reasonable to promote the relationship between the child and her siblings including, but not limited to Ms Y and for that purpose the father will liaise with Ms Y to arrange regular times that the child and Ms Y may see each other.
The mother and child have telephone communication each Monday and Thursday at 7.30 p.m.
The father will do all things reasonable to promote continuing telephone communication between the child and her siblings, particularly Ms Y.
The mother be restrained from removing the child from any school which the child attends save and except with the written permission of the father or at the direction of a Court, Child Welfare Services, Police or school authority.
Neither parent discuss the allegation of sexual abuse with the child save and except at the direction of the child's mental health or medical practitioner or allow others to discuss the allegation in the presence of the child.
The father provide a copy of these orders, the reasons on which they are based the reports of Mr J of 29 May 2009, 17 November 2010 and 29 November 2010 and the Family Report of 2 August 2011 to the child's general medical practitioner and/or any mental health practitioner, for the purposes of considering enrolling the child in appropriate programs to help her manage her parents’ conflict, including the changes in her living arrangements to date and to help her cope with her family circumstances (including separation from her siblings) as identified in recommendations 11 and 12 of the Family Report with such counseling or engagement with the program only to occur if recommended by the child's general practitioner and for that purpose the father will take the child to the general practitioner with a copy of this Order and the Family Report.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED
For the purposes of Orders 8, 9 and 10 herein both parties attend the F Parenting Program (or similar) as recommended by the coordinator of the said program.
Prior to the mother making any application to a court for unsupervised time with the child the mother should consider providing a report from a qualified mental health care professional confirming that she has addressed the concerns set out by Mr J in his reports. For that purpose leave is given to the mother to provide copies of the said reports to any of her treating mental health care professional.
The Independent Children’s Lawyer shall provide to the Co-ordinator Service Centre Operations, Child Protection Services NW, of the Department of Health and Human Services Tasmania a copy of these orders, the Reasons on which they are based, the reports of Mr J dated 29 May 2009, 17 November 2010 and 29 November 2010 and the Family Report dated 2 August 2011.
The Independent Children’s Lawyer is requested to contact the principal of the child’s school and provide to that principal a copy of these orders and a copy of the reasons that these orders are based on and to indicate that it is appropriate for the mother to attend the school in an appropriate way, to engage with the child’s teachers being cognicent of the orders made by this Court and to indicate that it is appropriate for Ms Y to, in an appropriate way, engage with the child at school.
IT IS FURTHER DIRECTED AND ORDERED
All oustanding applications are dismissed (including the husband’s application for costs).
This matter be removed from the list of cases requiring determination.
All subpoenaed documents are to be returned to the persons or institutions from which they emanated.
Exhibits are to remain on the Court file.
The Independent Children’s Lawyer forward to the mother, by ordinary pre-paid post to her last known address and at her email address, a copy of these orders and a copy of the reasons upon which these orders are based.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Smythe & Leopold (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: LNC 391 of 2008
| Mr Smythe |
Applicant
And
| Ms Leopold |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
These are proceedings between Mr Smythe (“the father”) and Ms Leopold (“the mother”) over the parenting arrangements for their daughter, E (“the child”), who was aged six at the time of the hearing. The proceedings were conducted under the Magellan protocols of the Family Court, as there were allegations that the child had been sexually abused whilst in the care of the father. An Independent Children’s Lawyer had been appointed.
A significant issue was whether the child is at risk of sexual abuse in the unsupervised care of the father. The mother holds a strong and fixed belief that the father has sexually abused the child and that the child was and remains at risk of sexual abuse in the father’s care. Counsel for the father and the Independent Children's Lawyer submitted that the child was at risk of harm as a consequence of the mother imbuing the child with a false belief that she had been abused. It was submitted by such counsel that the child is at risk of physical and emotional harm in the unsupervised care of the mother.
At the conclusion of the hearing the Independent Children’s Lawyer tendered a draft order[1] in which he submitted that:-
·The father have sole parental responsibility for the child (there were some conditions in relation to the exercise of parental responsibility);
·the child should live with the father;
·the child should spend time with the mother but such time ought to be supervised at dates and times either agreed between the parties or ordered by the court;
·the child should communicate by telephone with the mother each Monday and Thursday at 7.30pm and that the father must do all things reasonable to promote a continuing telephone communication between the child and her siblings, particularly Ms Y;
·the mother be restrained from removing the child from the school which the child is attending without the father’s permission; and
·neither parent would discuss allegations of sexual abuse of the child except at the direction of a medical practitioner.
.
[1] Exhibit ICL6.
There were a number of other ancillary orders which the Independent Lawyer sought. The father supported the making of those orders.
The mother, who did not participate in the final hearing, sought orders that the child live with her and that the child spend supervised time with the father for a period of six to twelve months followed by a further review.[2]
[2] Exhibit ICL7.
The mother’s participation in these proceedings
These proceedings had originally been listed for hearing in Launceston on 3, 4, 5 and 6 November 2009. At that time, the mother was represented by Mr McViety of counsel, the father was represented by Mr Lewis of counsel and Mr Patrick Fitzgerald was counsel for the Independent Children’s Lawyer.
The proceedings settled and consent orders were made. Those consent orders were of an interim nature to enable the development of a relationship between the father and the child over a period of time and leading towards unsupervised time.
Unfortunately those arrangements did not work out, and an updated psychological assessment was obtained. A single expert psychologist, Mr J, had provided his first assessment in May 2009 and then provided a second assessment in November 2010. In December 2010, as a consequence of that second assessment (details of which I will allude to later in these reasons), proceedings came before the State Magistrates Court under the Children Young Persons and their Families Act 1997 (Tas) and also returned before this Court.
The arrangements for the parenting of the child were changed so that she commenced living with the father. She has lived with the father since that time.
In view of that significant change, the final hearing of these proceedings were listed, with priority, in the Launceston sittings of the Family Court commencing 28 February 2011. Shortly before the hearing was due to commence, the mother (who was at that time represented) sought an adjournment of the hearing to enable her to obtain psychiatric evidence. That application was successful and the proceedings were listed for hearing in the July 2011 Launceston circuit. The matter was given priority and the hearing was expedited.
In May 2011 the parties were ordered to file trial affidavits for the July 2011 hearing. The proceedings came before Johnston J on 20 June 2011 and the proceedings were again adjourned, at the request of the mother. The proceedings were then listed for hearing in the Launceston circuit in November 2011. The mother was to file and serve her affidavits by 30 September 2011. The mother was represented at that time.
On 22 September 2011 the proceedings were again adjourned at the request of the mother and subsequently were again listed for a final hearing, this time for five days commencing 16 April 2012 at Hobart. The parties were again directed to file and serve their material by 29 February 2012. This was the fourth listing of the matter for final hearing.
On 16 and then again 17 April 2012 the mother made oral applications for further adjournment of the hearing. Those two adjournment applications were unsuccessful and the proceedings continued. I include and have regard to the reasons I gave in respect of each of those two adjournment applications in terms of these reasons.
The Court was aware that the mother was unrepresented and the difficulties that circumstance imposed upon her. She was told that she had permission to adduce her evidence orally (she had not filed any affidavits in recent times), she was provided with copies of documents when she indicated to the Court that her solicitor had not provided some to her. In fairness, the Independent Children’s Lawyer said he would cross-examine the witnesses before the mother so that she would have an opportunity to deal with that evidence at the end of cross-examination. The mother was encouraged and urged to remain part of the proceedings. At the mother’s request she was permitted to conduct the proceeding by telephone rather than travel the 200 km from Launceston to Hobart. Despite these accommodations, the mother elected not to further engage in the hearing.
BACKGROUND
The father is aged 53 and is employed in the transport industry who resides in Town S in Tasmania. He works on a part time basis three days a week and the child lives with him.
The mother is aged 45 and lives in Town W in Tasmania. She apparently has had some health difficulties which are outlined in the reports of Mr J and in her October 2011 medical certificate relied upon by her in her adjournment application.
The mother has four other children, G, D, H and Ms Y from prior relationships. All of those children are over the age of eighteen years, Ms Y having celebrated her eighteenth birthday earlier in 2012.
The father has one other child, C who is over the age of eighteen years.
It seems that the parents had a relationship from about 2005 to 2007 but did not live together. The child was born in January 2006.
When their relationship broke down, the parties entered into a written parenting plan.[3] This was in about May 2007. That plan provided that the parents have equal shared parental responsibility and that the child live with the mother. At the time of this agreement the child was about two and a half years of age and the agreement provided that the child spends each alternate weekend with the father and other times.
[3] Annexure A to father’s affidavit filed 29 February 2012.
By May 2008 this arrangement had failed and for a period of five months, until October 2008, the child did not see her father.
In July 2008 proceedings were commenced in the Federal Magistrates Court and in February 2009 an order was made for Mr J to prepare an expert report. That report was released to the parties in May 2009 and in June 2009 the proceedings were transferred to the Family Court. They were designated Magellan proceedings and eventually listed for hearing before me in November 2009.
After the commencement of the proceedings in early November 2009 the parties settled the parenting dispute. At that time each of the parties were represented by a legal practitioner. The proceedings were part heard and no findings were made. The proceedings were listed for mention in July 2010. In the meantime orders were made that the parents have equal shared parental responsibility for the child and that the child live with the mother. Interim orders were put in place that the child would spend time with the father, unsupervised, on an escalating time basis. The parties were given leave to have the proceedings relisted before me, if need be, at an earlier date.
Unfortunately those arrangements were not successful and an updated report was requested from Mr J. In that report Mr J expressed concern for the safety of the child when the mother read his opinions and recommendations. The report was released initially to the Independent Children’s Lawyer who forwarded a copy of the report and other material to the Tasmanian State Child Welfare Authorities.
The Child Protection Authorities took proceedings in the Tasmanian Magistrates Court and the child was placed in foster care. The father saw the child whilst she was in foster care. Subsequently orders were made by this Court on 16 December 2010 whereby the child commenced to live with the father. She has lived with the father since that time. I have set out a history of the proceedings subsequent to that time, earlier in these reasons.
The child has had intermittent contact with her mother and her maternal siblings since December 2010.
A short family report was prepared by Ms K, the family consultant, in December 2010 and an updated report prepared by her in July 2011.
The evidence relied upon by the Independent Children’s Lawyer (apart from exhibits which I have referred to from time to time) were primarily:-
(a)the reports of Mr J of 29 May 2009, 12 November 2010 and 29 November 2010. These were by way of reports tendered by the Independent Children’s Lawyer but affirmed by Mr J on oath.
(b)the family reports of Ms K (referred to earlier);
(c)an affidavit by Ms Z (the child’s kindergarten teacher filed 3 June 2011);
(d)an affidavit of Ms FF filed 12 July 2011; and
(e)a letter from Legal Aid Commission Tasmania to Mr J of 25 November 2010 (to give meaning to Mr J’s third report).
The father relied upon his affidavit filed 29 February 2012 and short oral evidence given by him during the hearing.
In evidence in chief the father was shown Exhibit ICL6 and confirmed that he agreed with all of the orders but sought an order for the mother not to approach the child’s school. He wanted a broader injunction.
The father gave evidence as to why that ought to occur but when pressed by the Independent Children’s Lawyer conceded that it was not necessary. That concession was subsequently adopted by him in his counsel’s submissions as to what orders ought to be made.
In this case any statement of fact is to be regarded as a finding of fact unless it is clear, from the context, that that is not to be the case.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
The provisions in the Family Law Act 1975 (Cth) (“the Act”) relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm. These objects are contained in s 60B(1) of the Act, which provides:-
(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).
When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration. In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Act.
There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. If there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence the presumption does not apply.
If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable. Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable.
As to alleged abuse, Brown J summarised the principles in such determinations in Hartford and Ansilda [2009] FamCA 23, where she said:-
19 The core principles are those enunciated by the High Court in M and M (1988) 166 CLR 69. The High Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) made it clear that the ultimate and paramount issue to be decided in proceedings for what are now called parenting orders is whether the making of the orders sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation of sexual abuse by the parent who seeks residence or time with a child does not alter the paramount and ultimate issue which the court has to determine. The High Court found (at 76) that although findings on the disputed allegation of sexual abuse will have an important, and sometimes a decisive, impact on the resolution of that issue,
…it is a mistake to think that 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 be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parte in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318: McKee v McKee (1951) AC 352 at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447 at pp 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a context between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
20.In a joint judgment in B and B (1993) FLC 92-357 the Full Court (Fogarty, Baker and Purvis JJ) discussed the relevant principles, having regard to the High Court’s decision in M and M and at 79,778 said:
The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is 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.
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
21.In Re W (Sex abuse: standard of proof) (2004) FLC 93-192 the Full Court (Kay, Holden and O’Ryan JJ) examined the principles applicable in cases involving difficult questions of sexual abuse where the only witnesses to the alleged abuse are the alleged perpetrator and the alleged victim, noting the particular difficulties where the victim is young and does not give any direct testimony that can be the subject of forensic testing.
22.The Full Court considered the relevance of the decision in WK v SR (1997) FLC 92 -787. In that case the trial judge had found that the father had sexually molested both his step-daughter and his own daughter. The Full Court said, at 84,691:
26. However, the evidence of ZH was in fact the core evidence relied upon by his Honour in order to substantiate the allegations of abuse against the father. Given the gravity of the allegations raised by the evidence, and the Court's duty to apply a rigorous civil standard of proof pursuant to the test enunciated by the High Court in Briginshaw (supra) and restated in s 140 of the Evidence Act 1995(Cth), her evidence needed to be very carefully evaluated.
[…]
46.It is clear therefore, that a finding that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw. Section 140 of the Evidence Act 1995 (Cth) has adopted this test as follows:
'140 (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.
47. 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.
48. This is a matter which must be specifically borne in mind by a Court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this Part, the Court's paramount consideration must be the best interests of the child, in accordance with s 65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Furthermore, when deciding what orders are in the best interests of a child, a trial Judge may often be confronted with a multiplicity of issues and facts. In these circumstances, evidence which, for example, is relevant and probative in relation to the question of an unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred.
The Full Court found that the trial judge had not paid attention to these views, and that unless the rigorous approach set out in WK v SR is taken, in circumstances where the often inevitable result of a positive finding of abuse is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and the child the disastrous effects of a positive finding that is reached in error. The Full Court found that the termination of a worthwhile relationship between the parent and child ought to in most cases be the course of last resort, noting (at 79,217-8):
The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to remain conscious of this imperfection at all times.
23. The Full Court then referred with approval to the dissenting judgment of Kay J. in K v B (1994) FLC 92-478 where his Honour said, at 80, 972:
In cases of alleged sexual abuse, there is a significant risk that the ultimate effect of orders to be made by the court, and of the proper operation of the legal system, will be overlooked in the court’s anxiety to ensure that the risks of sexual interference are minimised. Where the evidence of sexual abuse consists of ambiguous statements of a pre-kindergarten aged child coupled with perceived but possibly otherwise explicable behavioural changes, it is almost impossible for the party denying any impropriety to prove that party’s position.
In an article entitled 'Prediction, Prevention and Clinical Expertise in Child Custody Cases in Which Allegations of Child Sexual Abuse Have Been Made', appearing in Volume XXVI No 2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law), at p 170, it was observed:
'Unfortunately the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draw the clinician — and perhaps even judges and jurors as well,... away from what ought always to be the starting point of her or his evaluation enquiries, which is that the event did not (or very highly probably did not) occur. Because the null hypothesis (and, correlatively the absence of an event) cannot be proved, in their testimonies concerning possibilities of alleged events, clinicians strongly resist exonerating the targets of their evaluation. Because it is always possible that a given individual — even one randomly drawn from the general or a specific population — has sexually molested a child, an inconvertible proof that the individual has not molested a child is impossible.' (Emphasis in original)
The article concerns itself with research carried out at the University of Michigan. Case notes concerning the possible sexual abuse of a three year old child were provided to 8 senior clinical psychologists, 23 graduate students undergoing clinical training in psychology and 50 members of staff of child guidance clinics including social workers, clinical psychologists and psychiatrists all specialising in child development in areas of child mental health. They were asked individually and then in groups to evaluate the probabilities that sexual abuse had occurred and then to recommend what if any ongoing child/father contact should take place.
The range of opinion on whether there had been abuse was so wide that the authors concluded as follows:
The most striking feature of these studies’ findings is the extremely large range across experienced and non-experienced clinicians of estimates concerning the likelihood that M was sexually abused by her father. When given all of the relevant facts of the case, child experts and trainees varied greatly in their individual judgment... These findings lend strong support for the view that individual experts can provide courts little if any assurance that they are able to provide even crudely reasonable (i.e. objective) estimates of likelihood that child sexual abuse has occurred or will occur, when they are confronted with the same set of ambiguities faced by the courts in these cases.
24.In Re W, the Full Court concluded its analysis of the relevant legal principles by remarking, at 79,218:
The lessons to be learned have not changed. The risk that the Court will find heinous behaviour where none has occurred needs be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.
25.As I have observed before, and with respect to the Full Court, one might as well say that the harm and injustice that flows to both parent and child from an erroneous negative finding is almost too horrible to contemplate, that harm including repeated sexual abuse of a child. Nevertheless, I am bound by the exposition of principle in the judgment.
26.In W v W (Abuse allegations; unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) examined principles relevant to child sexual abuse cases with particular emphasis on what is meant by unacceptable risk, the potential cessation of a significant or meaningful parent/child relationship and the appropriateness or otherwise of supervised contact. As a starting point the Full Court referred to the significant detrimental harm to a child who is sexually abused, noting (at 79,906) the discussion by Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 where His Honour said, at 82,709:
The sexual abuse of a young child by a parent or care giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long term, can be devastating.
27.The Full Court also had regard to Fogarty J’s acknowledgement of the potential for false allegations. Referring to Thomas J’s judgment in S v S [1993] NZFLR 657, Fogarty J said (at 82,711):
Courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception or information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.
28.After considering a number of decisions in which the concept of unacceptable risk was considered, the Full Court in W v W (Abuse allegations: unacceptable risk) concluded (at 79,910):
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognized the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty.
A court must assess and determine the relevant facts in issue. The Court must then conclude whether abuse has or has not been established and/or whether an unacceptable risk of abuse exists into the future.
THE EVIDENCE AND DISCUSSION
In his report released to the Court in November 2010, Mr J raised concerns about the mother's reaction to the report. He said:-[4]
The father’s interim proposal for [the child] to live with him until these proceedings are finalised is considered appropriate to [the child’s] current needs and would enable more meaningful evaluation of her relationship with the father in the future. A significant concern associated with this proposal is that the mother could respond unilaterally to prevent such a transfer from being realised. The possibility that the mother may take impulsive and unsophisticated action that could jeopardise [the child’s] safety must be considered. If an Order is made that [the child] should live with the father then implementation of this would need to be carefully considered.
[4]At paragraph 49.
As a consequence, arrangements were made for the report to be released to the Independent Children's Lawyer who then sought further information from Mr J and obtained a further report. The Independent Children's Lawyer reported that material to the Tasmanian State Child Welfare authorities who took proceedings under the child welfare provisions of the state legislature and the child was taken from the mother and placed in foster care for a short period of time and eventually placed in the care of the father. Shortly after that occurred the proceedings came back before this Court and orders were made that the child remains in the care of the father.
This Court was concerned that the issues of the alleged sexual abuse of the child by the father had not been properly ventilated and that the mother ought to have time to present her case. At that time it was the clear view of the single expert and the Independent Children's Lawyer that the child was not at unacceptable risk in the care of the father. I shared that view. The mother has had from December 2010 April 2012 to prepare her case. These proceedings had been given priority and a number of directions were made for the filing of affidavits.
When the February 2011 adjournment was sought by the mother, she asserted that the delay was to enable her to obtain psychiatric evidence in respect of her own wellbeing. That request was understandable, given the then untested concerns about the mother which were raised by Mr J in his reports. Ms K, the family consultant, raised that issue with the mother in June 2011. In her consequent July 2011 family report, Ms K, observed:-[5]
[The mother’s] mental health is a matter for an appropriate expert. [The mother] asserted that the focus in these court proceedings on her mental health is misplaced. She seemed to say that she has only suffered some brief depression in the past. She claimed that her son [D’s] father had used her mental health as the means to gain care of him. She appeared to compare this past experience with her contemporary experience with [the child]. [The mother] said she had been interviewed by an unnamed psychiatrist in April 2011 but a psychiatric report was not prepared in deference to her expressed wish [emphasis added]. She appeared to be dissatisfied with her experience of the psychiatric interview. [The mother] said there was no need for such a report. [The mother] claimed that [Mr J’s] reports were biased because he misconstrued what she said. The prospect of obtaining a psychiatric report at this stage, she said, depended on the judge ordering this step but it would be, she added, "against her human rights".
[5] At paragraph 25 of the Family Report 22 July 2011.
The report was the primary reason for the mother’s first adjournment application and I must conclude that the evidence of the un-named psychiatrist would not have assisted the mother.
There have been extensive police investigations and inquiries by the Child Protection Services in respect of the allegations. The extent of the allegations was discussed by Mr J, a psychologist appointed by orders of the Federal Magistrates Court, in his May 2009 report. I note the breadth of the investigation undertaken by Mr J in relation to the preparation of his first report which included:-[6]
[6] At paragraphs 1 to 12 of Mr J’s report dated 29 May 2009.
Interviews conducted and observations made
Thursday 26 March 2009 at [Devonport]
·Interview with [the father];
·Interview with [the mother];
·Interview with [ H - mother’s son];
·Interview with [Ms Y – mother’s daughter];
·Interview with [G - mother’s son];
·Observation of interaction between [the child] and significant others, including the father;
·Phone discussion with [Detective Sergeant N];
·Phone discussion with [O mental health facility];
·Phone discussion with [C – father’s son];
Friday 27 March 2009
·Phone discussion with [P], Coordinator Child Protection Services, CFS.
Friday 3 April 2009
·Further interview and psychometric testing of cognitive ability with [the mother];
·Interview with [mother’s friend Q].
Tuesday 26 May 2009
·Phone discussion with [P], Coordinator Child Protection Services, CFS.
Documentation reviewed
·Application filed 15 July 2008;
·Affidavit of the Applicant father filed 15 July 2008;
·Affidavit of the Applicant father filed 15 September 2008;
·Response filed 19 September 2008;
·Affidavit of the Respondent mother filed 19 September 2008;
·Affidavit of [H] filed 19 September 2008;
·Affidavit of [Q] filed 19 September 2008;
·Documents from Tasmania Police obtained on subpoena;
·Documents from [I] Medical Centre obtained on subpoena;
·Documents from [R] Clinic obtained on subpoena;
·Subpoena addressed to Child Protection Service filed by ICL on 30 January 2009;
·Documents received under that subpoena;
·Order made 23 February 2009;
·Letter of the ICL dated 4 March 2009;
·Letter of the ICL dated 18 March 2009;
·Letter of [T] dated 20 March 2009;
·Letter of the father to [Detective A] written 22 March 2009;
·From [V] on 26 March 2009, transcript of audio recording made by [Ms Y] of statements made by [the child] on 2 March 2009.
·Summary medical records were requested from [Dr X] on 30 March 2009.
·Discharge summaries requested from [R] Clinic relating to [the mother’s] admissions in 1986/87;
·Letter from [RR], psychologist, dated 13 April 2009;
·Subpoenaed documents from [NN Hospital];
·Subpoenaed documents from [Dr X];
·Subpoenaed documents from Tasmania Police;
·Subpoenaed documents from [R] Clinic;
·Family Report in the matter of [B and L] dated 29 October 2004.
Review of documentation
1.Documentation received from Child and Family Services show the following notifications: [noting some 7 notifications between June 2007 and January 2009]
2.Documents obtained from [R] Clinic on subpoena detail one incident on [March 2007] when [the mother] was assessed by a psychiatric registrar in the Department of Emergency Medicine where she had been brought by ambulance following an overdose of oxazepam (anti-anxiety / benzodiazepine medication). The clinical interview notes indicate [the mother] was tearful and depressed with onset of symptoms recorded as being 3months prior. Relationship problems were cited as the cause. [The mother] had seen her GP the day before and prescribed oxazepam. The suicidal gesture occurred after a phone call from her ex-boyfriend. She had taken all 25 tablets plus alcohol. Her daughter called the ambulance. The Review of the history revealed post natal depression 20 years ago after the birth of her first child, and […] childhood. The diagnostic formulation was of adjustment disorder with brief depressive reaction with possible dependent and ‘cluster B’ personality traits. Admission to [R Clinic] was advised by the Consultant Psychiatrist but declined by [the mother]. The risk of harm was not considered significant and she was allowed to leave hospital.
3.Documents obtained from [R] Clinic by the Writer detailed three admissions to [R] Clinic [this was from September 1986 to May 1987].
4.Medical records were obtained on subpoena in relation to [the mother] from [I Medical Centre] was supplied on 4 July 2008. In relation to mental health issues, the following records are noted – [detail removed].
5.Documents obtained from Tasmania Police summarise the following events: [from August 2007 to March 2009]
6.The report on 26 May 2008 advised of a notification made by the mother alleging [detail excluded] possible sexual abuse of [the child] in father’s care [detail excluded]. [The child] was interviewed by Police on 29 May 2008 when she did not speak much and no disclosures were made. [The child] was again interviewed on 16 June 2008 when no disclosures were made. A report was completed on 16 August 2008 and forwarded to Department of Public Prosecutions for review and recommendation. The matter did not proceed because of a lack of evidence.
7.At the request of the Writer, [V] provided a transcript of four recordings taken on [Ms Y’s] phone of statements made by [the child] on 4 March 2009. [Ms Y] explained her phone had been dropped in water and she was unsure if it was still functional, but said the recordings had been transcribed by [V] l. The recordings detail discussions between [Ms Y] and [the child].
8.[RR] has been providing psychological treatment to [the child] since 28 January 2009. There have been seven occasions of treatment to date that have taken the form of play therapy to allow rapport to establish. [RR] has spoken with [the mother] and her ‘son and daughter’ who each detailed the statements [the child] made at home. [RR] said rapport is developing well with [the child] separating more easily from her mother and spending time alone with [RR]. To date [RR] has not heard [the child] make any statements indicative of possible inappropriate sexualised conduct, nor has [the child] suggested such inappropriate behaviour in her play therapy with dolls and toys. [RR’s] impression is that [the child] has an underlying anxiety disorder with significant separation issues.
9.Documents obtained from [NN Hospital] show that the mother presented with [the child] on a number of occasions: [May 2008 to March 2009]
10.Medical records obtained from [Dr X] detail six consultations commencing 11 February 2009. No treatment for mental health issues is noted. [The mother’s] stress associated with concern for [the child] is noted at several consultations. On 14 August 2008 [Dr X] referred [the child] to the Child and Adolescent Mental Health Centre for assessment and impartial interview regarding the concerns of possible sexual assault. CAMHS apparently declined the referral. On 27 October 2008 [Dr X] referred [the child] to psychologist [RR] requesting [RR] to undertake an interview with [the child] for the same reasons. [Dr X] recorded on 5 March 2009 that [RR] had ‘done some work with [the child]. In his letter to the Writer dated 31 March 2009, [Dr X] summarised that ‘[the mother] has presented entirely appropriately for a mother in her predicament. Her story has been consistent and coherent. Her frustrations with lack of due process by the relevant authorities that she has appealed to appear to be well founded. She has not presented with any features or symptomatology suggestive of personality disorder, anxiety, or depression. Her judgement and actions as described to me have been entirely appropriate to the situation that she has found herself in.’
11.The family report of [the mother’s] separation from [Ms Y’s father] was requested to ascertain if any of the same issues of concern about inappropriate sexualised behaviour emerged at that time. The report indicates that those issues did not arise at that time.
The investigations undertaken by Mr J were extensive and thorough.
As to the mother’s then allegations, Mr J said in his 29 May 2009 report:-[7]
Asked when she first became concerned that [the child] may not be safe in the father’s care, [the mother] said even at 17 months, not long after the parenting plan came into effect, [the child] was coming home tired from visits. Normally happy, she became upset before going to see her father. She came back from visits ‘red below’ at about 18 months. She thought it was nappy rash, but [Q] first raised the possibility of possible inappropriate sexualised conduct. [The mother] said ‘[the child] was showing signs of being hit by re-enacting it. First hitting us, then hitting herself.’ At about 20 months she started faecal smearing - undoing her nappy and playing with her faeces. [The mother] said she did not have any proof of maltreatment and tried to be trusting. The disruptive behaviour became progressively worse. When [the child] said that ‘Daddy does it’ after being told not to play with her bottom, [the mother] said that was first confirmation of sexual abuse. She recalled thinking ‘What an idiot I have been’ for not realising sooner and being more protective. She said she ‘cried and cried’. She said ‘It was like a puzzle had been completed. Everything he had done, it was like he planned it, to have her, he wanted a girl. He wanted someone to have a girl baby.’ When her meaning was checked, [the mother] said again that it is her ‘instinct’ that [the father] had groomed her to have a baby that he could later sexually abuse. When certain inconsistencies were raised, such as her report that the father did not want to have a baby, and was aloof and uninvolved in much of her early life, [the mother] was reluctant to let go of her belief that somehow it was all planned by him.
Asked what is her view about the disclosures [the child] has made, [the mother] said she is inclined to believe what [the child] has said, that [the father] ‘touches her fanny’ and plays ‘rudie games’. When questioned, [the mother] said she also believed the other disclosures that [the child] has made, indicating possible sexualised misconduct by a number of men whom she has named as ‘[AA]’, ‘[BB]’, ‘[CC]’, ‘[DD]’ and ‘the mans’.
[The mother] said [the child’s] disruptive behaviour improved immediately that contact with the father stopped in May 2008, and started to deteriorate again immediately it resumed. She said there are no males who stay overnight in her home, other than [G] and [H] from time to time.
[7] Ibid at paragraphs 41 to 43.
Mr J reviewed the documentation in relation to the mother’s mental health. The first allegation was apparently made in October 2007 and the child was examined by a doctor, who found no evidence of sexual abuse. A further allegation was made in May 2008, and the police investigated that allegation and the allegations were not substantiated (this does not mean they did not occur, it just meant that they were not substantiated.) In October a further notification was made and Child and Family Services determined that harm was assessed as unlikely, and no further action was taken. In January 2009 a further notification was made and again in the same month, similarly in March 2009.
The matter, with a report from Mr J, was commenced as a hearing in late 2009. Mr J recommended a move towards the father spending unsupervised time with the child. Orders were made by consent on 4 November 2009. The time between the father and the child resumed in October 2008 but it was problematic. It was manageable until March 2009 when the father said further issues arose. It is significant that the child complained that a counsellor she was seeing hurt her. That may well relate to an examination by Dr EE in March 2009, which is set out in paragraph 58 of Mr J’s first report. That examination was deeply troubling. Having regard to the description of it by Mr J, it was an examination where, apparently, Detective Sergeant N contemplated stopping the examination, such was the child’s distress.
The father alleges a series of contraventions between April 2009 and onwards. On the father’s evidence, the mother was not facilitating time with the child as was provided in the November 2009 consent orders.
Unfortunately for the child, there was an article published in a local newspaper in relation to alleged sexual abuse, and it is clear that article related to the child and to the father. There is no evidence that the mother participated in the creation of this article and I make no adverse findings against her in respect of that article.
When the report was issued by Mr J in early November 2010, the process which I adopted was set out earlier in these reasons and an updated report was obtained. The residence arrangements for the child then changed in December 2010, the child now having lived with the father for a period of approximately 16 months.
As to the witnesses, the father gave evidence in accordance with his affidavit filed 29 February 2012. He gave some oral evidence in relation to his desire that there be an order in place that the mother not be permitted to attend the child’s school. He was cross-examined by the Independent Children’s Lawyer in respect of that evidence and carefully and thoughtfully reflected on his position and did not pursue that part of his application. He adopted a child-centred and child-focused approach in that regard.
The mother chose not to provide evidence or to give evidence. She did send a document setting out the orders she sought, I have referred to this document earlier in these reasons.
The father relied upon the evidence of Ms FF, a social worker, in relation to the child and I have had regard to that evidence.
I had before me the two family reports from Ms K, dated 14 December 2010 and 22 July 2011. That material was read into evidence on behalf of the Independent Children’s Lawyer. I accept that evidence.
The Independent Children’s Lawyer also read into evidence an affidavit by the child’s teacher in which it was said that the child is managing well at school and has settled well into class and seems to enjoy school. This evidence is consistent with the school reports which were annexed to the father’s affidavit.
In his report of May 2009, Mr J noted that the child had made some concerning disclosures and that in his view, the mother’s initial response was understandable. However, the mother’s reaction to the disclosure was cause for concern by Mr J.
Mr J went on to conclude at paragraph 85:-
The Writer’s concluded opinion is that [the child’s] statements are well patterned responses to leading questions and the unintended reinforcement and/or deliberate coaching of others. No persuasive evidence was identified by this assessment to support the proposition that [the child] has been sexually abused. However, the fact that the possibility of sexual abuse cannot be excluded with certainty and that [the child] now appears estranged from the father may indicate a need for more safeguards, and these are discussed later in this report.
In his second report, Mr J confirms his view that the allegations are serious and need evaluation and that the allegations ought to be taken seriously. In the light of that caution, Mr J concluded that the father presented as being of little or no risk of sexual harm in terms of his care of the child and that the father did not fulfil harm risk factors. Mr J said:-[8]
Adopting this structured approach to evaluate the father, the Writer’s judgement is that little or no risk of violence or sexual violence is considered to exist in relation to his care of [the child]. Using the same process to evaluate the mother, the Writer’s judgement is that a higher risk is considered to exist. This opinion is premised on the following grounds: (i) some historical factors exist (such as relationship instability, major mental illness, and personality disorder) were identified; (ii) some clinical factors (such as lack of insight, negative attitudes, active symptoms of mental disorder, unresponsiveness to treatment, and impulsivity) were identified; and (iii) future risk factors such as noncompliance and stress remain risk factors.
In short, while the father does not fulfil harm risk factors, the mother presents with a number of both historical and static risk factors that appear to have given rise to a pattern of querulous behaviour causing conflict throughout her life and in several relationships. In addition to those factors the dynamic context of her interaction with the father exacerbates that potential for conflict.
[8] At paragraphs 41 and 42 of Mr J's report dated 12 November 2010.
Thus Mr J considered that the child was at higher risk of abuse in the care of the mother. Such was his concern, having regard to the mother’s history and her lack of insight into her beliefs and his view that her beliefs approached delusional intensity that he expressed a view that the mother could harm the child when she received his report.
That view was further amplified by his supplementary report dated 29 November 2010, where he considered that it was probable the mother would not comply with orders and probable she would not be able to contain her distress and probable she would enlist the assistance of others to advocate on her behalf including media and public figures. He said;
Asked what would be her response in the event the Court made an Order for [the child] to live with [the father], [the mother] looked directly at the Writer and stated that she would have to do what she had to do to protect [the child]. The Writer did not take this to mean that the mother would cooperate with the Court’s Order. Instead the mother appeared to indicate that she might take matters into her own hands. Noting that the mother has acted unilaterally in the past against Court Orders preventing [the child] from spending time with the father, the Writer’s impression is that the mother is capable of further impulsive independent action. It is difficult to predict what action the mother might take. It is considered probable that she would not comply with an Order that sees [the child] live with the father. It is probable that she would be unable to restrain her distress if [the child] was removed from her physical care and this would be very upsetting for [the child]. It is probable that she would enlist the assistance of others to advocate on her behalf including the media and prominent public figures. It is possible that she could relocate so as to thwart an attempt to facilitate [the child] living with the father. It is possible that she could consider self harm or harm to [the child] in a misguided attempt to protect herself and/or [the child] from the harm the she believes would be associated with her [the child’s] placement with the father.
The term ‘unsophisticated’ is used to indicate the limited comprehension and reasoning associated with a person of low average general cognitive ability. The term ‘impulsive’ is used quite deliberately to indicate a person with limited ability to restrain behaviour and emotional expression. Combined these traits point to the probability of poorly considered reactions to high stress situations. As noted in the updated report, the mother has an over valued belief that [the child] is at risk of harm in the father’s care and she is likely to seek to protect [the child] from that imagined harm.
Harm here is intended to indicate both possible emotional and physical harm.
The risk of physical harm is difficult to predict. If the mother feels she has nothing left to lose she may be capable of self harm or harm to [the child] to protect her from an unacceptable reality or overwhelming emotion. The risk of emotional harm is more probable, more immediate and just as injurious, and a sufficient basis for careful management of this transfer of care.
Implementation of a transfer of care could be facilitated with the involvement of the school where [the child] currently attends for two half days each week. The father with assistance of Police could be authorised to collect [the child] from school. It may not be necessary for [the child] to return to school for the remainder of the 2010 year. If she does return to school, the school should be given notice that the mother is not to remove her from school grounds. The father ought then to have a period of uninterrupted care of [the child] so that she becomes settled in his home. Observations of her wellbeing could be undertaken by an independent person such as a Child Protection worker. The mother could spend time with [the child] initially at the Contact Centre with supervision until such time it is clear that it is safe for [the child] to be in her unsupervised care. It would be appropriate after a period of not less than three months for an updated single expert assessment of [the child’s] functioning in the father’s care.
As noted, the mother is considered to have a Borderline Personality Disorder, a condition characterised by affective instability, impulsivity, intense reactions to perceived abandonment or persecution, with self harm behaviour quite common. Psychotic features are sometimes present. The causal factors are largely static (unchanging) and exacerbated by interpersonal stress. Some symptom containment can be achieved by intensive treatment but the condition does not usually resolve.
The most likely scenario is that [the child] will be exposed to the mother’s intense emotional reactions, and this could be very frightening for her. For example, her mother might threaten suicide. Somewhat worse, [the child] might be physically removed from her home base and predictable routine in the mother’s misguided attempt to protect her from imagined harm.
In my view [the child] is at risk of emotional abuse by the mother, and that the mother currently lacks sufficient parenting capacity to provide for [the child’s] psychological needs. The grounds for this are that the mother is unable to shield [the child] from her over-valued belief that [the child] is at risk of sexual and physical and emotional abuse in the father’s care with the effect that: (i) [the child] is likely to be confused and made to feel insecure in the face of her mother’s distress; (ii) she may form the erroneous belief that she has been abused; (iii) her opportunity to spend time with her father will be disrupted; and (iv) she will become estranged and alienated from him.
I accept the evidence of Mr J. I was satisfied that as at December 2010 and at the hearing of these proceedings in April 2012 the child was at risk of both emotional and physical harm in the unsupervised care of the mother.
I note and have had significant regard to paragraphs 47, 48 and 49 of Mr J’s report dated 12 November 2010, in which he says:-
47.The mother has little insight into the possibility she may be wrong in her belief that [the child] is being sexually abused by the father and his associates. Her beliefs approach delusional intensity and she has shown that she is not amenable to intervention or alternative explanation. She augments any information that supports her view and discounts any evidence to the contrary. Her cognitive un-sophistication makes this more complicated. She feels entitled to act unilaterally in the manner that has seen her withhold [the child] from spending time with her father. The Writer’s view is that the mother is unlikely to shift her thinking and she can be expected to behave in much the same manner in the future. She indicated her willingness to breach any future Court Order if she considered it her maternal obligation to protect her daughter.
48.In the absence of any evidence to support the conclusion the father is sexually abusing [the child], at least two alternative interpretations are possible. Either the mother is endeavouring to alienate [the child] from the father, or she holds the over-valued, almost delusional belief that she is being sexually abused. Both of these conclusions indicate considerable concern for [the child’s] future psychological wellbeing if the current care arrangement is allowed to continue. Even if the mother is not intentionally alienating [the child] from her father, her misguided over-concern will very likely estrange her from him in time. The Writer’s opinion based on the information available is that the father presents no such risk of psychological harm and has sufficient parenting capacity to provide for all of [the child’s] needs.
49.The father’s interim proposal for [the child] to live with him until these proceedings are finalised is considered appropriate to [the child’s] current needs and would enable more meaningful evaluation of her relationship with the father in the future. A significant concern associated with this proposal is that the mother could respond unilaterally to prevent such a transfer from being realised. The possibility that the mother may take impulsive and unsophisticated action that could jeopardise [the child’s] safety must be considered. If an Order is made that [the child] should live with the father then implementation of this would need to be carefully considered.
I am not satisfied on the facts before me that the child is at unacceptable risk of abuse in the care of the father.
The mother did not participate in the proceedings and did not file any recent affidavits. Her allegations and concerns in relation to alleged abuse of the child by the father are set out at paragraph 41 of Mr J’s report referred to earlier in these reasons.
By May of 2008 the mother was convinced that the father was ‘touching’ the child and playing ‘rudie’ games. She also believes, from disclosures made by the child, that there was sexual misconduct by a number of other named men.[9]
[9] At paragraph 42 Mr J’s report dated 29 May 2009.
Mr J interviewed a friend of the mother, who had observed that the child was returning from the father and looking ‘pasty, white and lethargic’. She observed this on three occasions. She raised with the mother concerns about genital reddening as an indication of possible sexual abuse. This friend informed Mr J that two months prior to April 2009 (February 2009) she observed the child in the company of the mother poking her tongue out, wriggling it around and saying words to the effect ‘daddy does that to my fanny’.[10] The friend said that in about January 2009 the child made further allegations about ‘rudey’ games and objected to seeing her father shortly before April 2009.
[10] Ibid at paragraph 70.
Mr J accepted that the child made the statements attributed to her when he analysed the disclosures referred to. He observed that ‘because of her age it is difficult to know with certainty, what, if anything, she intended to mean by her comments’. He said that the child was, at that time, two years old and her limited cognitive ability would have made it difficult to determine with confidence her intended meaning even at the time the statement was made and it would be more difficult twelve months later.
Mr J observed that the mother felt that the statement confirmed sexual abuse and that the mother had a strong emotional reaction to it. He set out at paragraph 80 and 81 of his report. Mr J summarised the issues at paragraph 84 of his report and then concluded, from his perspective, that there was no persuasive evidence identified to support the proposition that the child had been sexually abused. He also concluded that the child’s statements were ‘well patterned responses to leading questions’ and ‘the unintended reinforcement and/or deliberate coaching of others’.[11]
[11] Ibid at paragraph 85.
Mr J was concerned that ‘either someone has behaved in that manner to [the child] (in that she was sexually abused) and she is naively explaining an actual experience or she has been specifically coached to say that phrase and tongue gestures’.[12] Mr J went on to say that it ‘was not implausible that the child had been coached in this way having regard to the mother’s psychiatric history’.[13]
[12] Ibid at paragraph 81
[13] Ibid.
The impact of these allegations and the investigations has been profound in terms of this child including a number of intrusive physical examinations at least one of which was distressing to the child.[14]
[14] At paragraph 58 of Mr J’s report dated 29 May 2009.
It was in the light of this report and the evidence as it then stood that the mother consented to orders in November 2009 that the child spend unsupervised time with the father.
After the orders were made in November 2009 the parties reported very different views about how the child was coping with her time with the father. The mother, in particular, disagreed with a report from the contact centre indicating the child’s transfers between the parents were taking place in a positive manner with no undue distresses observed.[15]
[15] At paragraph 2 of his Mr J’s report dated 12 November 2010.
Mr J went on to note that there were further complaints in respect of the child being engaged in inappropriate sexualised behaviour by the father. These interviews took place in early to mid November 2010.
The mother asserted to Mr J that the child’s reaction to spending time with the father had been extreme. The mother said that she was still concerned the father was behaving inappropriately and that the child has made allegations that the father hits her and hits himself.
The mother was also concerned about a statement made by the child that she had been locked in some sort of a cage in the darkness and that the father withheld food as punishment.
Mr J had discussions with the manager of Children’s Services in the local area. He noted that there were two separate police investigations including forensic interviews with the child but found no evidence to support the mother’s concern.
There is no medical evidence in relation to any treatment of the child. Mr J quite properly observed that [16]‘notwithstanding the lack of support for the mother’s concern, the possibility that [the child] was being subjected to sexualised behaviour, cannot be ruled out. Sexual abuse of children is a complex phenomenon and children often fail to report the confusing behaviour perpetrated against them’. For those reasons Mr J took the statements seriously.
[16] Ibid at paragraph 38.
Mr J concluded that there was ‘little or no risk of sexual violence to exist in relation to the father’s care of the child’[17]. Since the child has moved into the father’s care in December 2010 there have been no indications that the child has been subjected to any abuse, neglect or violence. Nothing arises from the school reports or from the reports of Ms K, the family consultant.
[17] Ibid at paragraph 40.
Some of the allegations raised by the mother are inherently unbelievable. The mother has gone to extreme lengths to get or to collect information to support her views including those to which I have alluded to earlier involving the physical examination of the child.
I accept the submissions of counsel for the father that the mother’s claims have become increasingly bizarre, including that the father locks the child in a cage and that the child’s therapist has abused the child. Counsel for the father has urged upon me, for the sake of the child, to make a finding that there has been no sexual abuse.
I am reluctant to do so. There are the allegations of the mother which she has chosen not to prosecute and which have become less cogent and more strident over time. To make a finding in the negative is open to me but I am not prepared to do so, on the present state of the evidence.
The child has lived with the father for well over a year since the orders were made in December 2010. There are no signs from objective observers including the family consultant and a teacher that the child is acting out in a way which would raise any concern.
I am satisfied on balance that the child is at risk of abuse in the care of the mother. To that end, I accept and adopt the submissions of the Independent Children’s Lawyer. There is a risk that the mother may act out and as such the time the mother should have, or at least at present, ought to be supervised, and I will make an order to that end.
It therefore follows that I accept that it is important that the child have a relationship with the mother as there is a benefit to a meaningful relationship. I am troubled that the mother has not engaged in seeing the child as much as was available to her since the change of residence.
It is clear from the report of the family consultant that it is something the child would like to have occurred. Whilst the father has not been as proactive as he may have been it is clear he, at least at some levels, does not demonise the mother and has endeavoured at some levels to engage her in the process.
To that end I note his evidence given during the hearing and his decision not to pursue an injunction restraining the mother from attending the school, his approach in facilitating the mother’s ability to be involved in these proceedings and his willingness to consent to an order or to adopt an order that the child’s relationship with her sibling Ms Y take place.
The family consultant, Ms K, opined that her concerns about the interaction between the child and Ms Y and how that needs to be done on a better basis and orders have been made to that end. From the evidence of the family consultant it is clear that the child wants a relationship with her mother and Ms Y.
The child’s primary attachment figure was the mother until December 2010. Since that time, the child has been with the father and has, in the words of the family consultant, “adjusted well enough to living with the father and starting primary school”. This expression was thoughtfully guarded and the family consultant asserted and I accept that the child needs a stable nurturing home environment. Having regard to the evidence of the father, Mr J and the family consultant, it is clear that at the present the most nurturing and stable home environment is that of the father. However, it is important that the child develop and maintain a relationship with her mother and the maternal side of her family.
There is a concern that the child could feel abandoned by her mother and her sister unless some proactive steps are taken in that respect. Accordingly I have made the orders with regard to the sister, Ms Y, and the mother, as set out in relation to this matter, these proceedings.
I am satisfied that the father is willing and able to facilitate and encourage a relationship between the child and the mother and her broader family. This will take time. On the other hand, I am not satisfied that the mother can or will encourage a relationship between the child and the father.
The child’s circumstances were turned upside down in December 2010. That occurred out of the concerns arising from the three reports of Mr J. It is noted that it was on the bases of those reports the child was removed from her mother’s care by the State child welfare authorities and then placed in the care of the father by those authorities and then by this Court. Any further significant change would have a significant adverse effect on the child and to that extent I note the material contained in the Family Report.
Mr J has set out in his reports his concerns about the mother’s psychiatric health and what he observes as some traits of borderline personality disorder. There is evidence that the mother has minimised her psychological and psychiatric health. It is informative to note that the first adjournment sought by the mother in February 2011 was to enable her to obtain a psychiatric evaluation for the purpose of these proceedings and that such report was not produced, in the circumstances to which I have allude earlier in these reasons.
Parental Responsibility
Having regard to the serious allegations raised by the mother and the father I am satisfied that the legislative presumption is rebutted. This is primarily given by my concerns about the mother’s claim and the potential risk the mother poses to the child. I will however consider equal parental responsibility notwithstanding the above observation.
The family consultant considered the question of parental responsibility in her July 2011 Family Report, she said:-[18]
It would not seem to be practical for [the child] to live equal time between her parents and nor would such an arrangement benefit [the child] psychologically given the nature of her parents’ conflict and inability to cooperate. It may not even be practical for [the child] to live with one parent and spend substantial and significant time with her other parent. Now that [the child] is at school and there is significant travelling distance between her parents’ homes, the most likely scenario is that [the child] would live with one parent and spend time with her other parent during non-school time, that is, weekends and school holidays. It probably would be difficult in practice for [the child] to be with her other parent and extended family on special occasions that occur during the school week, unless the adults travel to her locality. Telephone calls and other communication would be possible but will be sustained best over the long term by physical contact. Communication also could be creative including letters, gifts and cards. It will be important while [the child] lives with her father, that he help [the child] to send gifts to her mother and other family on significant occasions such as birthdays and mothers day and to send samples of [the child’s] art and crafts.
[18] At paragraph 56.
Clearly, having regard to the considerations detailed elsewhere in these reasons this is not a matter where there ought to be an order for shared parental responsibility. I will accept and adopt the submission of the Independent Children’s Lawyer that the father has sole parental responsibility for the child.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
I have determined that it is important that the relationship between the child and the father continue and these orders will provide that it will continue.
Having regard to the recommendations of the family consultant in her report I am satisfied, in all the circumstances, that there ought to be a relationship between the mother and the child and that there is a benefit to a meaningful relationship between the mother and the child.
However, in the absence of the mother participating in the proceedings all that had to be done was to put in place the orders suggested by the Independent Children’s Lawyer. I will do so, however it is clear that the mother and the child’s other siblings ought to be encouraged to maintain that relationship with the child.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I have discussed the risk to the child earlier in these reasons and I need not repeat them here.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The child’s views were expressed through the evidence of the father and, more particularly, through the Family Report from Ms K (“the family consultant”) in July 2011.
The family consultant said at paragraph 50 of her family report the following:- [19]
The situation of only two brief encounters between [the child] and her mother in six months must be remedied as soon as possible. Lacking the mental maturity to understand her complex family situation, [the child] could feel abandoned by her mother and possibly her sister [Ms Y] with increased risk of adverse consequences for her future mental health. [The child’s] psychological and physical safety is critical but ideally, [the child] needs to be spending time with her mother and maternal family in their natural family environment, as soon as possible. Alternatively the next best arrangement would be for [the child] to spend time with her mother and significant family members in another safe setting and to have vibrant communication with them.
[19] Family Report dated 22 July 2011.
I have had regard for the need for the child to have a relationship with the mother and a relationship with her siblings, notwithstanding the mother’s failure to become involved in these proceedings I have put in place orders, recommended by the Independent Children’s Lawyer, which are, as best as I can in those circumstances, designed to reflect the views of the child in that relationship.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The child was primarily in the care of the mother until December 2010. Since that time the child has been primarily in the care of the father. The child seems to be coping adequately in the care of the father and managing reasonably well at school.
The child was cared for reasonably well in the care of the mother with the exception of the matters to which these reasons have discussed elsewhere and those set out in the reports of Mr J.
Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent including the father’s views as to the mother’s involvement with the child
It is clear that the mother is both unable and unwilling to facilitate a relationship between the child and the father. Whilst the father has not been without criticism in the reports, it is clear that he is open to the mother having a relationship with the child. In evidence he was content for the mother to attend at the child’s school provided she did not take the child away from the school.
I am satisfied that the father will encourage a relationship between the child and the mother, provided the mother is open to doing so. I am satisfied that the father is open and willing to promote the relationship between the child and her maternal siblings.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The arrangements reflected in the orders have been in place since December 2010. There are no proposed changes except to encourage the relationship between the child and her mother (in a supervised venue) and the child and her maternal siblings.
It is important that that change of circumstance takes place and the orders reflect the need in that regard.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
There are practical difficulties in respect of the child spending time with one or other of the parents which have been addressed in the Family Report and the reports of Mr J to which I have had regard.
In a geographic sense the difficulties are not great, however, in the context of the dispute between the parties they are significant. The family consultant observed in her report:-[20]
The barriers to [the child] spending time with her mother and maternal family may be both practical and psychological on the part of her parents. Both parents have modest financial means with which to travel so that [the child] can spend time with her other family. [The father] and [the mother] also hold personal views that have prevented [the child] from spending time with both her parents. That is, [the father] believes that [the mother] lacks commitment to [the child] and [the mother] believes that [the father] is uncooperative. This impasse is becoming intractable. There is some risk that [the mother] may withdraw from [the child’s] life if she believes the barriers are insurmountable, however it is noted that she now has some communication with her older son [D] from whom she withdrew when he was very young. It is a credit to [the mother] in coping with her own distress about [the child] that she has kept up telephone communication with [the child]. Without regular physical time together however telephone communication in itself will be insufficient to sustain a relationship between [the child] and her mother and the maternal family. The communication is likely to dwindle as [the mother] and [the child] have no ongoing shared experiences upon which to sustain telephone conversation.
While [the child] lives with her father, her opportunities to relate to her maternal siblings and other maternal family members depend, firstly, upon [the mother’s] views of the allegations against [the father] and these court proceedings and, secondly, upon [the mother’s] ability to maintain contact with [the child]. That is, the maternal family may be likely to believe that [the mother] poses a risk to [the child] and/or will not support [the child’s] relationship with their family, if [the mother] maintains her views of [the father] and expresses these views within her family. Consequently, after the court proceedings are finalised, negative views about [the father] in the maternal family could pose a barrier to [the child’s] relationships with not only her mother but also her siblings and extended maternal family and family friends.
Therefore without intervention from the Court, [the child’s] relationships with her maternal siblings including her sister [Ms Y] and other family members may be at some risk. If [the mother] is unable to spend time with [the child], it is perhaps even more important that [the child] have some contact with her maternal siblings. Otherwise she may not be able to retrieve these important sibling relationships in later life. [The child’s] older siblings probably feel unable to approach [the father] directly and [the father] might not consider it his role to initiate visits between [the child] and her maternal siblings. [The child’s] relationship with her older paternal brother, [the father’s] son [C], will not compensate for the potential loss of her relationships with her maternal siblings to whom she is emotionally bonded by virtue of her earlier life with them. It may complicate maternal family relationships if [the mother] does not spend time with [the child] but her older children do. On the other hand if [the child’s] siblings find the means to spend time with [the child] then [the mother] probably would want to be involved.
[The child’s] relationship with her sister [Ms Y] is especially important as it is probable that a significant emotional attachment exists between the sisters, with their separation causing mutual grief. [Ms Y] may have met some of [the child’s] emotional needs when her mother was unavailable emotionally. In future, [Ms Y] may facilitate [the child’s] maternal family relationships if [the mother] cannot. As she is approaching adult independence, [Ms Y] may be able to spend time with [the child] if she and [the father] make mutually suitable arrangements. They would need to establish trust, respect and cooperation. This will be very difficult if [Ms Y] has a negative impression of [the father]. Consequently it may be important for [Ms Y] to receive a balanced and coherent explanation of the Court’s consideration of the allegations against [the father] and of the rationale for the final orders. [The mother] may not be able to provide this perspective to [Ms Y].
[20] Ibid at paragraph 51.
The Independent Children’s Lawyer submitted that the orders proposed by him, in general terms, meet these concerns. I accept that submission.
Section 60CC(3)((f) the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The father has demonstrated a capacity to meet the needs of the child since December 2010 and, but for the allegations to which I have referred earlier, the mother had met the physical needs of the child. There is some issue and some evidence in relation to the mother’s ability to meet the needs of the child emotionally and intellectually over that period of time bearing in mind the criticisms of Mr J and the father.
I am also satisfied that the father has the capacity to care for the child in both a physical and emotional sense. I am satisfied that the mother has the capacity to care for the child in a physical sense but, having regard to the evidence of Mr J, I am not satisfied that she has the capacity to care for the child’s emotional needs and is, in many ways, destructive of those emotional needs.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
and
Section 60CC(3)(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
The mother had recently asserted an Aboriginal culture. The mother adduced no evidence in respect of that claim as is open for her to do so. The father has set out in his affidavit steps he will take to ensure that the child’s Aboriginal culture will be met in a meaningful way. The child will be aware of her Aboriginal culture and, in the circumstances; I have had regard to that culture and the impact of the orders in that regard. In terms of responsibility to parenthood, I simple refer to the matters I have spoken about earlier.
The family consultant observed:-[21]
The Court may need to consider the implications for [the child’s] parenting arrangements of [the mother’s] recently expressed claim of Aboriginal cultural heritage. If this is the case, it may be important for [the child] to have the opportunity to know, understand and participate in the cultural practices and associated social networks of her maternal family. [The father] is not able to be supportive if he is unconvinced of the validity of [the mother’s] claim. He probably could provide limited support to [the child] learning about and expressing her cultural identity, which differs from his own, if he is convinced this applies to [the child]. [The mother] may need to demonstrate to the Court how she can support [the child’s] experience of her Aboriginal cultural identity if this is the case. It would not seem to be essential that [the child] live with her maternal family in order to experience her Aboriginal cultural identity, but she would need to spend time with them and be available to attend significant cultural events.
[21] Ibid at paragraph 57.
It is open for the mother to pursue this aspect of the child’s upbringing and I note and accept the recommendations of the family consultant albeit in the circumstances that the mother has not engaged in these proceedings.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The attitude of the mother in respect of parenting has been detailed elsewhere in these reasons. The father seems to be managing the care of the child well since December 2010.
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
I have had regard to all of the material which was put before me particularly the evidence of Mr J and the family consultant. I am not satisfied that the child is at risk of violence in the care of the father.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is important for this child to have finality. It is important that this child, that the litigation surrounding this child be brought to an end and not continue as it has for years and years without a determination. Accordingly, final orders need to be made.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.
Having regard to all the facts and circumstances of this case and to the way in which the case was conducted, I have made the orders as are set out at the commencement of these reasons. I am satisfied that in all of the circumstances of these proceedings this is in the best interests of the child
Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
I have had regard to the factors that have taken place since separation and particularly since the orders of 4 November 2009 and I have had regard to the circumstances that have existed since the parties’ relationship ended in 2007.
I have had regard to the circumstances of the child since separation since substantially adopting and implementing the orders of the Independent Children’s Lawyer. There were a number of recommendations by the family consultant. I have determined where the child lives and the question of parental responsibility. In accordance with the recommendation of the family consultant I have provided methods by which the mother can obtain information about the child including school, medical information and school photographs.
I am satisfied that the father, in the present circumstances, can best provide for the child’s welfare and development and will support her relationship with the other parent and extended family.
I have not been able to design provisions for the child to spend time with the mother, bearing in mind the mother did not engage in these proceedings. Similarly with [Ms Y] I could not make particular orders as she was not a party to these proceedings although I make it clear in these reasons and I have made it clear in the orders that it is important for the child to have a relationship with her.
I have put in place a provision for supervision which would deal with the transition of the child to the mother hopefully, when that occurs. The orders are in a form which seems best to address those recommendations of the family consultant.
Accordingly I have made the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and twenty seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 14 May 2012.
Associate:
Date: 16 May 2012
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