Song and Wei
[2020] FamCA 368
•15 May 2020
FAMILY COURT OF AUSTRALIA
| SONG & WEI | [2020] FamCA 368 |
| FAMILY LAW – CHILDREN – Best interests of the children – Parental responsibility – Where the mother maintained throughout the proceedings and at trial that she believed the disclosures made by both children about the father’s conduct which she considered allegations of sexual abuse – Where the mother did not press for a positive finding that the father sexually abused the children and did not maintain that he posed an unacceptable risk of harm to them – Where the Court is not satisfied to the requisite standard that the father sexually abused either of the children – Where the father sought orders that the children live with him, for a period following change of residence that the children spend no time with the mother and thereafter there be a graduating regime of time with the mother with the final result being each alternate weekend with her – Where the mother at the start of the hearing sought orders that the parties equally share parental responsibility for the children, the children live with her and spend time with the father that was to commence supervised and slowly graduate to alternate weekend time – Where the expert firmly maintained that the reintroduction of time between the father and the children, particularly the daughter, needed to be supervised and therapeutically supported – Where the expert felt that it would be catastrophic for the daughter in particular to be prepared and supported for beginning to rebuild her relationship with the father through supervised time if that did not eventuate – Where the father informed the Court that he would not be able to afford even half of the cost of fees associated with supervised time with the children – Where the Independent Children’s Lawyer (“ICL”), after it came to light that the father was unwilling or unable to pay even half the fees associated with supervised time, proposed orders that the mother have sole parental responsibility for the children, the children live with her and that no orders be made for time with the father – Where the mother then adopted the orders sought by the ICL – Orders made as sought by the ICL and adopted by the mother. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 65D |
| Deiter & Deiter [2011] FamCAFC 82 |
| APPLICANT: | Ms Song |
| RESPONDENT: | Mr Wei |
| INDEPENDENT CHILDREN’S LAWYER: | Crawford Ryan Lawyers |
| FILE NUMBER: | PAC | 3027 | of | 2016 |
| DATE DELIVERED: | 15 May 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 28 January 2020 – 31 January 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schroder |
| SOLICITOR FOR THE APPLICANT: | Metta Legal |
| SOLICITOR FOR THE RESPONDENT: | Self-represented litigant |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Lioumis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Crawford Ryan Lawyers |
Orders
The mother have sole parental responsibility for the children X born … 2011 and Y born … 2013 (‘the children”).
The children live with the mother.
Both parties are restrained from taking either child to any therapist for the purpose of receiving treatment for sexual abuse.
Each party is restrained from denigrating or abusing the other party or their family or permitting anyone to do so in the presence of hearing of the children.
Each party is restrained from discussing these proceedings or from showing the children any documents in relation to these proceedings.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Song & Wei has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: PAC 3027 of 2016
| Ms Song |
Applicant
And
| Mr Wei |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
These proceedings concern the long term parenting arrangements for a girl now aged nine and a boy aged seven (“the children”) following the breakdown of their parents’ five and a half year marriage.
The parties’ relationship broke down after both children made complaints to the mother about the father’s conduct which the mother considered to be allegations of sexual abuse.
The mother’s position changed somewhat throughout the course of the proceedings. At their commencement she had sought orders that she have sole parental responsibility for the children and that the children live with her. Her application was otherwise silent as to the children’s time with the father. At the commencement of final hearing the mother sought orders that would see the parties equally share parental responsibility for the children and the children live with her. Her proposal for the children’s time with the father was that it initially be supervised and over a very lengthy period slowly graduate to alternate weekends with him.
While the mother had maintained throughout the proceedings and at trial that she believed the events disclosed by the children had occurred, at the time of hearing she did not press for a positive finding that the father had sexually abused the children and did not take the position that the father posed an unacceptable risk of harm to them.
The father’s position shifted significantly throughout the course of the proceedings. Initially he sought orders that the parents share parental responsibility for the children, the children live with the mother and spend each alternate weekend with him. At the time of the final hearing, the father sought orders that the children live with him and that for three months following that change of residence, the children spend no time with the mother. He sought that thereafter there be a graduating regime of time with the mother with the final result being that the children spend each alternate weekend with her.
An issue of significance in the proceedings was the expert’s recommendation that the reintroduction of time between the father and the children, particularly the daughter, needed to be supervised and therapeutically supported. Following cross-examination of the expert, the father informed the Court that he would not be able to afford even half of the cost of fees associated with supervised time with the children.
At the conclusion of the hearing, after it came to light that the father was unwilling or unable to pay even half the fees associated with supervised time, the Independent Children’s Lawyer (“ICL”) proposed orders that the mother have sole parental responsibility for the children, the children live with her and that no orders be made for time with the father. The mother then adopted these orders as proposed by the ICL as her final proposal.
The question for best to determine is which of the proposed parenting arrangements is proper having regard to the children’s best interests being the paramount consideration.
Background
The parents who are both of Chinese heritage met through a marriage agency in Australia and began a relationship in about 2009. At that time the mother was in Australia as a student and the father who had migrated from China in 1995 was an Australian citizen. The father had been married three times previously and had two children but remained in contact only with his adolescent daughter from his most recent marriage. The mother had also been married previously in China and had one child though that child lives with her father and has not had an ongoing relationship with the mother.
The parties began living together in 2010 and married that year.
In 2011 the parties’ first child, a daughter now aged nine (“the daughter”), was born. The maternal grandmother who had arrived in Australia shortly before the daughter’s birth lived with the family for about 12 months to help with the care of this child.
The mother contends that throughout the relationship the father was violent towards her with the first such instance of violence occurring in about 2012. She also alleges that the father hit the daughter on the head in 2012 and that this child required medical attention as a result. The father denies any violence on his behalf towards the mother or the children.
The parties’ second child a boy now aged six (“the son”) was born in 2013. Once again the maternal grandmother arrived in Australia in about January or February 2013 shortly before the birth of this child and lived with the family, on this occasion for a couple of months.
When the son was about two months old, the family including the maternal grandmother spent around four months in China. They returned to Australia bringing the maternal grandmother with them.
In April 2014 the maternal grandmother returned to China. About two months later in June 2014 the children were taken to China to be cared for by the maternal grandmother while the parents remained in Australia for about six months. In January 2015 the children spent a further month in China living with the paternal grandparents. The parents also spent time in China with the paternal grandparents and brought the children home with them.
In around February 2015 when they returned to Australia the family moved to a home that had been purchased by the father the previous month.
In about May 2015 the maternal grandmother returned to Australia again to assist in the care of the children.
In May 2015 the son experienced some health difficulties and was admitted to hospital. He was diagnosed with a medical condition for which he has been treated by a specialist paediatrician. A medical report of March 2018 tendered in the proceedings gives no indication of the seriousness of this condition but indicates the son was treated for his symptoms “with good effect”.
When the son was hospitalised the mother spent most of her time with him and the father was called upon to assist in the practical and day-to-day care of the daughter, a role with which he was not familiar.
On 18 May 2015, the mother alleges that the daughter made complaints to her about the father’s conduct which the mother considered to be allegations of sexual abuse. The mother confronted the father with this matter by telephone at work and when he returned home he suggested that they go to the police to resolve the matter. The parents were discouraged from going to the police or hospital about the matter by the maternal grandmother. The father denies any suggestion that he behaved in any improper or inappropriate manner towards the child and this is a significant issue to which I will return.
In about June 2015 the mother says that she observed the daughter to have a discharge from her genital region and took the child to a general practitioner for medical attention. The doctor’s records indicate that the mother raised the issue of discharge and an odour but there is no indication of any discussion concerning sexual abuse. The records also indicate that a swab was taken which came back negative and that the mother did not attend for follow up with the child.
The mother maintains that the doctor gave her advice to the effect that it was very likely that the daughter had been sexually abused and deposes to requesting that the doctor not make a record to this effect. There is no record of the doctor who is a mandatory reporter or any person notifying the Department then known as Family and Community Services (“the Department”) at that time about any concerns about sexual abuse.
A short time later the mother alleges that the son who was then aged two also complained that the father touched his penis which the child reportedly said was “annoying”. The father also denies in engaging in such behaviour and this matter is also considered later in this judgment.
In July 2015 the mother travelled to China with the children apparently for the purposes of obtaining a second opinion in relation to the son’s health difficulties but the daughter was also taken for a medical examination in relation to the allegations of sexual abuse.
There were telephone discussions between the parents in relation to the allegations of sexual abuse in July 2015 when the mother was in China and the father remained in Australia. The father apparently notified the Department of the mother’s allegations in an effort to have the matter investigated and this notification was passed onto police who determined that there should be a Joint Investigation and Response Team (“JIRT”) investigation.[1]
[1] The Joint Investigation and Response Team, made up of officers from police and the Department investigates allegations of serious child abuse.
The daughter was interviewed by JIRT on 14 August 2015, the day after she returned from China. Police records confirm that within a couple of weeks the investigation was complete and no criminal charges were to be proceeded with due to insufficient evidence from the complainant given her age and lack of context to the disclosure made by her. It is also noted in this record that the father had been interviewed and denied the allegation and that concerns were held that the mother and maternal grandmother had led the child to make the complaints.
It would appear that the parents’ relationship remained intact notwithstanding the allegations and that they continued to live together with the children and maternal grandmother albeit under extremely strained circumstances.
On 21 December 2015 the mother observed the daughter lying on a lounge rubbing her crotch over the top of her clothes which the mother found alarming. The mother asserts that when she asked the daughter what she was doing the child is said to have replied words to the effect of “daddy showed me”. The mother became alarmed with the daughter’s response and asked her further questions about this comment. The daughter is said to have explained that three days previously she was sitting in the lounge room watching television when the father called out to her from his bedroom. When the daughter went into the bedroom the father is alleged to have removed her clothes and touched her vagina.
The mother took the child to the police station the following day (22 December 2015) to report what the child had disclosed to her. When speaking to the police the mother demonstrated to them what she had observed the daughter doing the previous day. The investigators explained to the mother the importance of not leading any information from the daughter and asked her to ask the daughter in Mandarin the question “What did daddy show you”? It is recorded that after being asked this by the mother:
…[The daughter] placed her right hand over the top of her clothes, with her palm against her vagina and her fingers pointed down. This is the same action demonstrated by [the mother] prior to the question being asked. The [daughter] commenced to move her hand up and down in a vertical motion.
On 23 December 2015 the daughter was electronically interviewed by the Child Abuse Squad with the assistance of a Mandarin interpreter. The relevant police records are as follows:
The [daughter] did not disclose openly of any abuse but when led, did state the [father] touched her on her vagina. Due to the [daughter’s] age no context to this disclosure was obtained.
The parties separated on a final basis following this allegation and I understand the father moved to his own premises.
Following these reports in December 2015 the police applied for an Apprehended Violence Order (“AVO”) against the father for the daughter’s protection which was listed before a Local Court in January 2016. On 13 January 2016 an Interim AVO was made for the protection of the daughter restraining the father from living at the daughter’s home, approaching or contacting her by any means.
On 2 February 2016 the father was interviewed by police in relation to allegations of sexual abuse towards the daughter.
Police records indicate that two days later, 4 February 2016 it was reported to police that the son disclosed to the mother when being bathed that he “hates dad” and when asked why said that the father “always touches/pull my arse and it is hurting”.
On 8 February 2016 the mother attended the Child Abuse Squad with the son for the purpose of the son being interviewed. In a police statement obtained from the mother with the assistance of a Mandarin interpreter she told the interviewer that the son had said “It’s annoying daddy keep poking my bottom, I feel disgusted”.
A decision was made by police not to interview the son for various reasons including the child’s age, discrepancies in the terms of the disclosure and lack of corroborative evidence to support the disclosure.
On 13 May 2016 a final AVO was made against the father with his consent (without him making any admissions about his conduct) for the protection of the daughter. The AVO was in force for seven months and restrained the father from approaching or contacting the daughter by any means.
On 17 May 2016 the mother moved out of the former family home with the children into rental accommodation with assistance from a government agency.
The mother commenced proceedings in the Federal Circuit Court on 30 June 2016 seeking orders that she have sole parental responsibility for the children, that the children live with her and orders for the division of the parties’ property.
Events since the commencement of proceedings
In August 2016 interim parenting orders were made with the consent of the parties that the children live with the mother and restraining the father from attending the children’s school. Orders were also made appointing an ICL and requiring the parties to participate in a Child Dispute Conference.
In November 2016 orders were made with the consent of the parties appointing an expert to prepare a report in relation to the family to assist in determining the dispute.
In May 2017 orders were made which finalised the property aspect of the proceedings.
In May 2017 the expert’s report was also released. This is a matter to which I will return to consider in detail but it suffices to say for the purposes of the background that the expert believed that the children should resume contact with their father and recommended that this occur through a contact centre for up to six months depending on the daughter’s adjustment to seeing her father. The expert opined that there should be no move to overnight contact until there is clear acceptance by the daughter of spending time with the father and that both children’s English language competence has improved to such an extent that they can communicate with others.
Following release of the report in May 2017 further interim orders were made with the consent of the parties that the children spend supervised time at a contact centre with the father for at least two hours each fortnight and that the parties communicate via text message in relation to the children.
In September 2017 the children began spending supervised time with the father each alternate Saturday for a period of three hours on each occasion.
Records of the contact centre indicate that on all occasions the daughter was highly resistant to spending time with her father and said negative things about him including in Mandarin on occasions contrary to instructions. It is also recorded that the daughter was heard to instruct the son not to engage with the father. The records indicate better engagement between the father and the son though on occasions the son apparently followed the daughter and said negative things to the father or refused to engage with him. The daughter was also heard to express concern that her mother would reject her if she were seen to be enjoying the time with her father.
The daughter spent time with the father at the contact centre until March 2018. Records produced from the centre indicate that the mother told a staff member on the last occasion that the daughter’s psychologist did not think it was a good idea for the daughter to continue spending time with the father. The staff member agreed that given the daughter’s reactions and behaviours that day she did not believe it would be in the daughter’s best interests to continue attending for supervised visits at that point in time.
The father last spent supervised time with the son in August 2018. Records from the centre record that the mother was informed that the son had appeared distressed during supervised contact and was “asking the [staff member] to tell his mother he played bad with the father and didn’t eat his food”. It is recorded that the mother confirmed she had told the son “if he plays with his father he will have to go to the father’s house”. Apparently a decision was taken at this stage to cease providing a contact service between the father and the son as it was not considered to be in this child’s best interest.
On 28 June 2018 final hearing dates for July were vacated by a judge of the Federal Circuit Court and the proceedings were transferred to the Family Court.
On 13 August 2018 the expert was requested to provide the Court with an updated report prior to the commencement of final hearing. This was prepared and released to the parties in January 2019. The second report is also a matter to which I will return in greater detail. It suffices to say that the expert expressed concern about the enmeshed relationship between the mother and the children and opined that the mother is subjecting the children and people in the children’s orbit to false narratives that are causing them trauma. He had some concerns about the father’s parenting skill and emotional sensitivity but did consider that a change of residence could be contemplated for the son and made recommendations about the son’s contact with his mother and sister if this were to occur. The expert opined that it would be in the daughter’s best interest to remain in the care of her mother but recommended that an intensive program should begin to introduce the daughter to her father and resumption of time at a contact centre was a component of that recommended program for reintroduction.
In April 2019 orders were made with the consent of the parties that the ICL be granted liberty to provide the contact centre with a copy of the expert’s report and requiring the parties to do all things to facilitate the father’s time with the children at the contact centre. The mother contends that she made some enquiries with the contact centre about supervised time between the children and the father and was informed she would be told if the father contacted the centre.
The father made a conscious decision not to take up supervised time with the children and as a result he spent no further time with them.
The mother began attending upon a Chinese speaking psychologist (“the mother’s psychologist”) for therapy following the expert’s recommendation that this occur. The psychologist saw the mother on seven occasions from March 2019.
The final hearing proceeded over three days in January 2020 and judgment was reserved on 31 January 2020.
Issues to be resolved
Does the father pose an unacceptable risk of harm to the children?
Although the mother did not seek a finding that the father had sexually abused the children or either of them or contend that he posed an unacceptable risk of harm to them on this basis the ICL and the father did seek a finding as to these matters.
In my view this question does require resolution. As was explained by the Full Court in Deiter & Deiter[2] in the context of interim parenting orders, risk assessment comprises two elements being the prediction of the likelihood of the occurrence of harmful events and a consideration of the severity of impact caused by those events.
[2] [2011] FamCAFC 82.
It has always been the mother’s case and she continued to contend at the final hearing that she believes the father has sexually abused both of the children. If this were to have occurred or there was a finding that it possibly could occur in the future there is no doubt that the impact of such events is of the highest order. The harm occasioned to children by sexual abuse is beyond doubt so if there were a possibility that the father may do this in the future any proposal which would see him have unsupervised time with the children could place the children at an unacceptable risk of harm. For this reason this matter must be resolved.
The first issue to consider therefore is the likelihood of the father sexually abusing the children or one of them. In this case the suggestion that this may occur is based entirely upon the contention that the father has sexually abused the children in the past.
In M v M[3] the High Court said when discussing allegations of sexual abuse at [23] – [25]:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless….
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access….
In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, 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. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[3] (1988) 166 CLR 69; [1988] HCA 68.
In M v M (supra), the High Court also said at [18]:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
In Johnson & Page[4] the Full Court agreed that reference to the Evidence Act1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.
[4] [2007] FamCA 1235 at [72].
I also have regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk. One of the cases reviewed in Johnson & Page (supra) at [65] is W & W (Abuse Allegations: Unacceptable Risk)[5], where the Full Court noted at [111]:
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.
[5] (2005) FLC 93–235.
The mother appears to suggest in her affidavit that something of an untoward nature may have occurred to the daughter in early 2015 when the children were in China. When they returned in February of that year and the family resumed living together she deposes to changes in the daughter’s behaviour from this time and in particular this child “was frequently crying and started bed wetting”.
The mother then deposes to observing that the daughter was very teary on about 18 May 2015 and to the following occurring:
I had the following conversation in Mandarin to the effect of:
Me: What’s wrong [name of daughter]?
[The daughter] didn’t say anything and just looked at me
Me: Is it because you didn’t have a good time at kindy?
[The daughter]: No
Me: Tell mum what happened, why are you crying?
[The daughter]: Dad put his finger in my “pee-pee” (the child uses this word to mean vagina or bottom)
Me: What did you say?
[The daughter]: Dad put his finger in my “pee-pee”
Me: Did it hurt?
[The daughter]: Yes and it was bleeding. I cried
Me: When did this happen?
[The daughter]: When I was staying at grandad’s place
Me: Where was mummy at that time?
[The daughter]: You weren’t home
Me: How come you didn’t tell mummy?
[The daughter]: Dad told me not to tell you
Me: Which finger did dad use?
[The daughter] then put up her index finger and said “this one”
Me: How did dad do this?
[The daughter] knelt down on the bed and put her bottom up and said, “just like this”
[The daughter]: When dad was on the couch he did the same thing to me
Me: When was that?
[The daughter]: When I was watching TV. Can you stay at home with me I don’t want to be alone with daddy
The mother deposes that during this time she was spending significant time with the son in hospital while the daughter was at home with the father and maternal grandmother.
The mother says she was devastated by the daughter’s disclosures and confronted the father by calling him, telling him that “our daughter told me that you put your finger in her vagina”. The mother deposes that the father said that this statement was nonsense and that the child had lied and that if she did not believe him he would come home early and they could go to the police station together. The mother deposes that when the father arrived home at 9.00 pm he wanted to go to the police station but the maternal grandmother intervened and was concerned about “everyone” knowing about the allegation. The mother says that she was concerned about her children’s reputation and adversely affecting the daughter’s future and also questioned (the truth of) the disclosure because the father had denied it strongly. For these reasons they did not end up going to the police station.
The mother then deposes that “in or around June 2015” she observed that the daughter had a white discharge when assisting the child in the toilet and took her to a doctor the following day. The mother then deposes:
The doctor examined [the daughter’s] private parts and said to me words to the effect of “[the daughter’s] vagina entry is bigger than normal girls of her age so it is likely that [the daughter] has been sexually abused”. However, I requested the doctor not to record anything in writing as I thought it would adversely affect the [the daughter’s] future to have this in her records.
The mother deposes that when she returned home and spoke to the father he again denied the allegation and said the daughter is lying.
The mother makes no other reference in her affidavit to anything further involving this alleged disclosure of sexual abuse.
Under cross-examination the mother accepted that the reason why the daughter’s behaviour may have changed after she returned from China was because of her change in living arrangements and also added that the child had started at a new child care centre.
Under cross-examination the mother was asked about the exact language used by the daughter when complaining about the father’s conduct. She said that when she asked the child why she was crying the child said “daddy touched my buttock”. The mother described herself as feeling shocked and agreed that she wanted to protect the child and also agreed that she did not then take the daughter to a doctor or tell anyone in authority.
In the course of further cross-examination about the exact words used by the child the mother came up with another alternative version, saying that the child “says that dad used his finger to scratch her behind”. The mother subsequently confirmed that she was sure that the daughter had used those words.
The mother also confirmed that the daughter reported that she was bleeding but said that she did not see any blood herself, adding that she only came to know about this matter in May when it had occurred in February. The mother was asked many questions about when she believed this incident had occurred and was firm that it was her understanding that it had occurred when the family were in China together in February 2015.
Under cross-examination in relation to the attendance at the doctor in June 2015 the mother maintained her version of the conversation with the doctor.
The mother was taken to the doctor’s records which indicate that the child was brought in as she had a strong odour and vaginal discharge. When asked the reason why the doctor needed to see the child the mother said she told the doctor “my daughter told me her father used his finger to scratch her behind”. She confirmed that those were the exact words used in Mandarin and that the doctor who is also Chinese spoke to her in the same language.
The mother accepted that there was no record in the doctor’s notes about this conversation or the doctor’s alleged observations of the child’s genitals. The mother maintained that she had requested that the doctor not make any record about the conversation and seemed to struggle when confronted with the proposition that she asked the doctor to act dishonestly and was unable to answer a question about that proposition.
The mother appeared to have little memory about that attendance consistent with the doctor’s records. She was unable to comment upon the suggestion in the records that there had been a number of attempts to contact her in relation to the results of tests that had been taken due to the child’s vaginal discharge. When asked whether the doctor had conducted a test in relation to the daughter’s discharge the mother said that she did not remember and added that she “wasn’t thinking straight” at the time. At this point she was asked whether she may have been confused about what the doctor was telling her in relation to sexual abuse and the discharge which she denied.
Under cross-examination the mother said that she still believed that the daughter had been sexually abused by the father.
The father does not set out any account in his affidavit of being confronted by the mother in May or June 2015 (or at any other time) in relation to the allegation that he had sexually abused the daughter. He addresses the allegation that the sexual abuse occurred in early 2015 in China by deposing to spending a month there with the mother and children with the extended paternal family and that during this time the children slept with the mother in a bedroom together and that during the daytime he and his family spent time together. He denies abusing the children during this time and deposes to having no recollection of being alone with either child during that period.
The father “absolutely” denies sexually abusing either child at any time and deposes that he has only touched either child’s genitals for the purposes of meeting their hygiene needs such as changing nappies or wiping them after they have been to the toilet. He denies touching either of them in a sexual manner.
Under cross-examination the father was asked a few questions about the conversation between himself and the mother after the child had made the first disclosure. It was not put to him that he had sexually abused the child in May or February 2015 or at any other time.
The next allegation of sexual abuse made by the mother relates to the son. The mother deposes that on about 10 July 2015 when she was putting the son to bed he said to her (apparently spontaneously) in Mandarin words to the effect of “dad touched my pee-pee it’s annoying”. The mother describes that she was surprised to hear this and that she spoke to the father about it and he again denied it. There is no further detail concerning this allegation in the mother’s affidavit.
Under cross-examination the mother confirmed that the son had used the language that she deposed to in her affidavit and that she did not say anything in response to him or ask any other questions. The mother also confirmed that it was her understanding that the child was reporting sexual abuse and that was still her understanding now.
Under cross-examination the mother said that she first spoke to the father about the son’s complaints when she subsequently took the children to China a short time later.
The father does not refer to the mother bring to his attention any complaint made by the son along the lines that he had sexually abused this child. He however, “absolutely denies” ever sexually abusing either child.
The father was not cross-examined about any allegation in relation to the son.
As noted when setting out the background, when the mother was in China with the children in July 2015 and shortly before her return, the father contacted the Department for the purposes of investigating the allegations that he had sexually abused the children. Neither parent explains in their respective affidavit how these arrangements for the daughter’s subsequent interview with JIRT came about. The father simply deposes to being aware that the daughter was interviewed by Police and that they did not substantiate any claim that he had sexually abused her.
The mother deposes to receiving a message from the father that upon her return to Australia they were to go to the Department “to prove his innocence”. She deposes to attending the Child Abuse Squad with the daughter where the child was interviewed “in company with an interpreter”. The mother deposes to being aware that the child was unable to disclose information regarding any sexual offence committed by the father and for that reason the matter was finalised due to insufficient evidence and that the son was not interviewed because of his age.
Records of police produced on subpoena and admitted into evidence confirm that it was the father who notified the Department in relation to the allegation which caused the daughter to be interviewed. Under cross-examination the mother confirmed that the daughter was interviewed with an interpreter and the tenor of her evidence is that although there was information for the daughter to disclose she was unable to make that disclosure in the circumstances. The mother believes that the child didn’t want to say anything because she was scared but could not accept that the child did not report anything because nothing happened.
Under cross-examination the father said that the reason he spoke to the Department in order to have the matter investigated was because the mother had accused him of sexually abusing the daughter and because he wanted to find out whether the child may have been abused when she was living in China. Although the father was pressed under cross-examination that the purpose of seeking an investigation was to prove his innocence he agreed that this was the case but maintained that “the safety of children is the first priority”.
The next allegation that the father had sexually abused the daughter which caused the parties’ separation related to the incident on 21 December 2015 when the mother observed the daughter lying on the lounge in the living room “rubbing her crotch area over the top of her clothes”. The mother deposes to realising that the daughter was not just simply “scratching herself” and says that when the child noticed that she was watching her she immediately stopped what she was doing. The mother says that she then asked the child what she was doing to which the daughter replied in Mandarin words to the effect of “daddy showed me”. The mother deposes to becoming alarmed with the daughter’s response and speaking to her further about her “behaviour” asking “how come this happened because each night you sleep in my bedroom” to which the mother says the child replied “because daddy called me to his room, so I went”. The mother deposes that she then recalled that a few nights previously she found that the daughter was not in her bed and when she called out to the child the child returned to her room holding her underwear saying that she had wet them again.
According to the mother’s affidavit she attended a police station the following day and reported the child’s complaints and demonstrated the child’s actions. She deposed that the police officer asked her to ask the child in Mandarin “what did daddy show you” and that the child demonstrated the gesture to police.
At that point in mother’s affidavit (without any clear indication where this occurred in the sequence of events) the mother deposes:
[The daughter] told me words to the effect of “three days ago [on 19 December 2015] when I was sitting on the lounge watching tv, dad called me to his room. Daddy then removed my clothes and touched my pee-pee”.
As a result of the disclosure police obtained an AVO for the protection of the child but the father was not charged with any offence.
Under cross-examination the mother confirmed all aspects of her account of this incident in her affidavit but also agreed to some further details which were not contained in her affidavit. In particular she agreed that when she first spoke to the child about the incident on 21 December 2015 she told the child that what she was doing was “wrong” which she agreed accorded with her view of the child’s behaviour at the time.
The father does not address this issue in his affidavit except as previously noted, he denies any sexual abuse of either child. He deposes to the making of the AVO which he appears to suggest in his affidavit was the reason he did not see the children for the ensuing two years.
Under cross-examination the father was not asked about this incident and in particular it was not suggested to him that he had touched the daughter on the genitals or that anything he had done bore any relevance to this child’s actions in December 2015.
Under cross-examination the father agreed that he had been represented by a solicitor when the final AVO was made and understood that it expired in December 2016. He claimed not to have an awareness that he could have sought an order to spend time with the son and could not really explain why he had not sought advice in relation to family law except to say that he didn’t intend to go to court to solve the matter and wanted to sort it out with the mother.
I am not satisfied to the requisite standard that the father has sexually abused either of the children on any occasion for the following reasons.
So far as the first allegation is concerned I attach some weight to the fact that the circumstances of the alleged abuse still remain unclear, and in particular whether it is said to have occurred in China in around February 2015 or at the parent’s home in May 2015 when the father was caring for the daughter during the son’s hospitalisation.
I also attach significant weight to the fact that the mother has given three varying accounts of the terms of the child’s complaint in her affidavit and a further account to the expert.
I also consider it significant that the father denied the conduct from the outset and immediately suggested to the mother that they contact police to have the complaint investigated but the mother declined to do this or to raise the matter then with a doctor or the Department. The mother claims to have not reported the matter to police due to having concerns about some form of damage to the daughter’s reputation which is in contrast to her later preparedness to report the further allegation about the father’s conduct in December 2015. In my view it is likely that the mother was not entirely convinced of the veracity of the daughter’s complaints when they were first made in May 2015 or did not consider that they amounted to sexual abuse but were more consistent with the daughter having experienced some lack of comfort around the father attending to her hygiene which had previously been attended to by her mother or grandmother.
I do not accept the mother’s evidence that when she presented the child to a general practitioner a few weeks after the disclosure was said to have been made the issue of sexual abuse was raised. I consider that the doctor’s medical records are likely to be reliable and they include no reference to this matter. I am not prepared to accept that a medical practitioner who is a mandatory notifier both declined to make a record and to report abuse to the statutory authorities. In my view the mother’s evidence about the observations about the daughter’s genitals said to have been expressed by the doctor are inherently incredible. I consider it likely that the mother was quite confused about the advice she was given during that consultation, as she appears to have no understanding even of the matter for which the doctor was consulted, being the daughter’s vaginal discharge. There is in any event no evidence of any connection between a vaginal discharge and sexual abuse.
I also attach some weight to the observations of the expert about variance in the mother’s account to him of the child’s complaint and to his conclusion (given his expertise) that it is unlikely that the father had sexually abused the child.
I also note that although the mother continues to believe that the daughter was abused by the father, her case in these proceedings was not conducted consistent with this belief about abuse.
Another matter which I consider noteworthy in relation to the first allegation of sexual abuse is that the mother deposes to the child reporting that she was bleeding as a result of the father’s abusive conduct. There is no evidence of any adult observing the child to be bleeding on any occasion which in my view would be expected if that had happened given the child’s age.
In relation to the second incident of alleged abuse of the daughter I accept the opinion of the expert that the mother’s description of the child’s actions are a description of the child masturbating which is not unusual for a child of this age and that the mother’s rejection of the notion that this was in anyway normal represents a bias and error in understanding about the behaviour of children. I also accept the expert’s opinion that “in this second allegation certainly there is great opportunity for [the daughter] to realise that she was in trouble and to seek to cast blame onto somebody else in order to avoid the mother’s accusations”.
In relation to this incident there is also a lack of clarity about the terms of the daughter’s disclosure about the alleged abuse by her father. The mother’s affidavit is inconsistent as she deposes to the child variously reporting that the father called the child into his room at night and “showed me [how to masturbate]” and that three days prior to 21 December 2015 when the child was sitting on the lounge watching tv the father called her to his room, removed her clothes and “touched my pee-pee”.
The mother’s account given to the Child Abuse Squad is entirely different to either of the versions set out in her affidavit. According to this statement given to police on 28 January 2016 (forming part of Exhibit 2 being the annexures to the mother’s affidavit) when she first observed the daughter “patting her vagina” on 21 December 2015 she did and said the following:
I decided to record our conversation on my mobile telephone.
I said: Tell mum who taught you to do this?
She said: Dad pat the baby (demonstrating with placing her hand on her vagina and patting her vagina. In my northern Chinese village the word baby or doll means a females vagina). I pat the baby. Dad pat the baby I also pat the baby and I pat the baby by myself (sic).
I said: Yes correct but how can your dad find the chance to teach you. You always live with me.
She said: When daddy took me to a place.
I said: Where?
She said: Daddy took me to his room he taught me how to pat the baby. (sic).
I said: He taught you how to pat the baby? You can’t do this, this is wrong. Do you know?
She said: Yes
I said: It is a crime?
She said: Hmm
I said: Don’t do it again do you understand?
She said: Yes
The mother’s police statement also sets out an account of her confronting the father later that night about him “molesting the daughter again” as well as his suggestion again that they go to “the child protection” the next day and her own concern about “losing face”. None of this version of the child’s account of the father’s conduct or these events is contained in the mother’s affidavit or was put to the father in cross-examination. In these circumstances it is not possible to make positive findings about what the child said though if the mother’s account of her reaction to observing the child is to be accepted it corroborates the hypothesis of the expert about the child taking the opportunity to shift blame to the father.
I similarly am not satisfied that the father did anything in the nature of sexual abuse to the son. Once again the mother gives varying accounts in different circumstances of the language used by this child. In her affidavit she deposes that the son complained to her in July 2015 when the child was being put to bed, “dad touched my pee-pee, it’s annoying”. In her statement given to the police Child Abuse Squad in January 2016 about the July 2015 complaint the mother says that just after bathing the son he complained “it’s annoying, daddy keep poking my bottom, I feel disgusted” (sic) and in police records produced on subpoena and tendered in the proceedings it is recorded that the terms of the son’s complaint to the mother was “dad always touches/pulls my arse and it is hurting”.
Apart from the lack of clarity in relation to the terms of this child’s complaint nothing along these lines were put to the father. Further, given this child’s age and behavioural difficulties at the time he was said to have made this complaint I accept the opinion of the expert that he would not have been capable of such use of language.
In all of the foregoing circumstances I do not make a positive finding that the father sexually abused the children or either of them. I also find as sought by the ICL that the father did not sexually abuse the son given the highly problematic nature of the evidence in relation to that matter. However, I am unable to make the finding sought by the ICL that the father did not sexually abuse the daughter, as it is possible that he did, given her repeated complaints which cannot be entirely dismissed.
I am not of the view however that the possibility that the father sexually abused the daughter (which I consider remote in all the circumstances) gives rise to a finding that the he poses an acceptable risk of harm to the children on this basis. I note that the entirety of the mother’s case in relation to alleged risk posed by the father arises from her allegations that he has sexually abused the children in the past and may do so in the future. Having regard to all of the matters referred to when considering whether to make a positive finding of sexual abuse I am not satisfied that the father poses any unacceptable risk of harm to the children on this basis.
The expert’s evidence
The First Assessment
At the time of the first assessment by the expert in April 2017 the daughter was six and the son was four. Each of the parents and the children were interviewed alone and the children were also observed with each parent. At that stage the father had not seen the daughter since December 2015 and had last seen the son in May 2016 when he attended the home to collect his personal items. At that stage the father was seeking to spend alternate weekends with his children. It was then the mother’s proposal that the children live with her and spend no time with the father.
The father told the expert that he was in court because the mother had made false allegations of him abusing the children which had changed his life. He claimed the arguments with his wife started around mid-2014 after his son was discharged from hospital though he said he’d had earlier difficulties with his mother-in-law as he did not agree with the way she parented the children. He explained that while the son was in hospital attended to by the mother he cared for the daughter for three days supported by the maternal grandmother. There is also a constant theme to the father’s narrative about difficulties between the parties related to finances.
The father told the expert the mother alleges that at some point during the three days when he cared for the daughter during the son’s hospitalisation he inappropriately touched the daughter which the father denied, but explained that he did assist the daughter with her toileting during this period.
When interviewed the first time the father denied all allegations of family violence made against him by the mother. He also denied the allegation made against him in relation to sexual abuse of the son, which the expert said the father found “particularly reprehensible”.
The mother when interviewed through an interpreter told the expert that she was fighting over the future parenting arrangements for the children because of “unfortunate events” that had occurred in the family. The expert recorded that the mother said she tries to forget what the unfortunate events were and was extremely reluctant to go into details.
The mother complained that the father was “angry to everyone” and violent “all the time”. She told the expert that he attacked her with words almost every day and said on one occasion that she “deserved to die”. When the expert enquired as to how often the father physically assaulted her the mother said that it was not very often. Despite having described the father’s verbal abuse previously, later in the interview the mother made it clear that the father’s behaviour had generally been calm and pleasant and difficulties only became apparent after she became pregnant with the son.
As it appeared to the expert that the mother would not be forthcoming with information in relation to the allegations deposed to in her affidavit, the expert systematically went through the various allegations made in her affidavit with her.
He first asked the mother about an allegation that the father hit the daughter’s face causing a nose bleed (in 2012 when the child was about one year old). The expert observed that the mother’s account changed somewhat in the interview compared to what she had said in her affidavit. The mother told the expert that the daughter (who was sleeping in a cot next to the parents’ bed) was being noisy and coughing. The father is said to have awoken and hit the daughter on the head. The mother then took the child into the maternal grandmother’s room and a few hours later the child’s nose began to bleed. It appears that the hit to the head did not cause the bleed but rather it was more likely caused by allergies the daughter was experiencing. The expert opined that on the account given by both the mother and father the father acted in an intemperate manner and did hit his daughter on the head, and although it was not with sufficient force to cause the nose bleed it was nonetheless somewhat concerning behaviour.
The expert next asked the mother about the first allegation of sexual abuse in June 2015. The mother recounted that the daughter had been crying to herself and when the mother enquired with her whether she was being bullied at school the daughter is said to have disclosed that the father was “picking her bottom”. The mother asserts that she then asked the daughter what finger he used and the daughter is alleged to have shown her the second finger and demonstrated the action. When asked whether it hurt and whether there was any bleeding the daughter is said to have confirmed it did hurt and there was blood. When the mother asked the daughter when this occurred, the daughter is said to have reported it occurred when the mother and maternal grandmother were out shopping and they were living in China staying with the father’s parents. The expert noted that this is to be compared to the daughter’s account to him that it occurred when she was living in her “old house in Australia”.
When asked about the second allegation of sexual abuse in December 2015 the mother told the expert that she came into the room and noticed the daughter sitting on a couch and “picking at” her vagina, using her fingers and staring blankly at the TV. The mother told the expert that “no way would a child behave in this way unless someone had shown them how to do it” and said that when she asked the child who had taught her to do it, the child confirmed it was the father. When asked how the father had the opportunity to teach her this, the daughter is said to have explained that he picked her up one night and took her to another room.
The expert opined that in relation to this last allegation of abuse, there was a great opportunity for the daughter to realise that she was in trouble and seek to cast blame onto somebody else in order to avoid the mother’s accusations.
The expert then asked about the allegations in relation to the son. The expert regarded the mother’s account of this child’s complaints as “extremely problematic”. The son (who was two years old at the time) is alleged to have told the mother that it was “annoying” that the father would pick his bottom as the child was coming out of the shower or out of a bath. The expert expressed particular concern about the sophistication of the language allegedly used by the child.
The mother also told the expert that two weeks prior to their interview the son stated he had witnessed his father pick his sister’s bottom. The expert opined that there were real concerns about the capacity of a four year old for autobiographical knowledge and memory. He considered that this “is plain fantasy as far as I can tell and again raises the concerns that there is ongoing discussion in some form or another of the allegations”.
The mother denied any discussion by her of the allegations. She also told the expert that the daughter never mentions her father but thought that the son missed him.
The mother also indicated that prior to contact between the daughter and the father ceasing, the daughter had a “normal” relationship with her father which suggested to the expert that there was some kind of genuine parent-child relationship. The mother reported that following the alleged disclosures the daughter would act “strange” towards the father. The expert formed the impression that while the mother acknowledged that it would be distressing for the son to not see his father, she saw no reason for there to be a father figure in the daughter’s life at all.
The daughter described a warm relationship with her mother and her maternal grandmother and told the expert that she slept in the same bed as her mother. The expert recorded that the daughter spontaneously raised criticism of the father, saying that “he did nothing” to help the family and was in “big trouble” as he had “touched her bum”. The daughter told the expert that she could not think of anything nice about her father, nor could she remember when she last saw him but was adamant that she did not want to see him. The expert recorded that the daughter seemed anxious about the thought of the expert organising for her to see the father.
The expert interviewed the son extremely briefly and said that the son seemed to treat the interview like a game. When asked who was in his house he identified his sister, mother and grandmother and when asked about his father told the expert he did not have a dad. The expert ended the interview as he was unable to get any further sense of this child’s thoughts.
The expert observed the daughter to look anxious and show wariness of her father when seen with him. The expert observed that the father seemed at times to lack direction in how to engage with the children. The son was observed to interact well with the father.
Following the brief contact with her father the daughter was reinterviewed by the expert. She told the expert she found seeing the father scary and considered that seeing him in the future would cause her to be similarly scared.
The expert went on to opine that he was of the view that if the daughter remains living with her mother she will experience ongoing psychological harm but if she is removed from her mother’s care she will also experience psychological harm. He opined that “the lessor of two evils” suggests that she should likely stay with her mother, but her mother needs to attend on treatment to gain skills in “de-enmeshing” with her daughter…”
Even though the expert had considered a change of residence for the son he still considered it questionable whether the father had the capacity to parent this child especially as he is highly dependent with significant behavioural disturbance “and the father does not impress as having established parenting skills”.
In relation to the father’s parenting capacity the expert opined that he appeared rather focused on the educational attainment needs of his children and:
…is not by nature a person who considers the emotional world and he will need to seek advice and instruction on how to work at an emotional level with his children. His play is stiff and he is uncomfortable in engaging in the imaginative world of childhood and these are attributes he must gain if he is going to assist in the development of his children’s emotional world.
Although the father undertook two parenting courses as recommended by the expert and it appears that he genuinely desires a relationship with his children the expert ultimately did not recommend that either child should move to live with the father. The ongoing difficulties for the son if he alone were to move have been outlined previously when considering the expert’s evidence.
In my view the father’s unwillingness to accept the expert’s evidence about the psychological impact upon the children of moving to live with him and do all that was required of him to ensure that the most child focused parenting arrangement could be implemented by guaranteeing the payment even half of the cost of supervision reflects upon his capacity to meet the needs of the children.
Unfortunately for the children although the expert saw insurmountable difficulties for them in adjusting to their father’s care he remained concerned about aspects of the mother’s incapacity to provide for the needs of the children as well. Notwithstanding that some improvement had been made through the mother seeking psychological help she still held false beliefs about the children having been abused. It appears that the expert’s following view about the mother remained unshaken:
It is my view that [the mother] cannot distinguish between her emotional needs for a relationship with her children, and the children’s needs. In all other respects however, she presents as a caring and devoted mother.
As set out in detail when considering other best interest matters I accept the opinion of the expert that the proposal of the father for the children to live with him would be experienced by them as traumatic and is emotionally not viable for them. As also made clear when considering the foregoing matters the expert considered that the only change in the children’s circumstances that would be in their best interests (or as he conceded the least detrimental to them) was the arrangement the expert himself proposed that the children continue to live with the mother and spend increasing time with the father.
Attitude to the children and responsibilities of parenthood demonstrated by each parent
In his second report the expert opined the following with respect to the father’s attitude to the children and the responsibilities of parenthood:
Whilst both parents profess to be concerned about their children’s development and to seek the primary parent, it appears to me that when he had the opportunity to be a more effective parent [the father] did not take up those opportunities, defining his role as a parent as a provider. Although he now wishes to take a broader role, his not impress as having the skills necessary to do that, although these can to some extent only be acquired once he has the opportunity to parent and to acquire and demonstrate parental skill. (sic)
These observations in my view remain apposite and can be applied with even greater weight in circumstances where the father has been presented with an opportunity to develop a meaningful relationship with the children which he has effectively abandoned by refusing to agree to pay even half of the necessary fees associated with supervision. This in my view reflects poorly upon his attitude to the children and the responsibilities of parenthood.
Although the expert had much to say about the shortcomings of the mother he observed that she “has been assiduous parent, and has been loving and caring”. He noted however that this has been at the expense of the children developing a relationship with their father and has resulted in the inappropriate traumatisation of their behaviour. This again ultimately reflects poorly on her attitude towards the children and responsibilities of parenthood.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
As previously noted the children are of Chinese heritage. They will be able to remain in contact with the traditions and culture associated with this heritage under either of the proposals of the parties.
As also previously discussed the son has been diagnosed with ADHD that the expert considered severe. The mother has attended well to the therapeutic needs of this child ensuring that he attended upon a range of health professionals. It was of concern to the expert that although it had been identified in his reports that the father needed to take a greater interest in the child’s health needs especially if the child were to live with him, the father had failed to become more engaged as recommended.
Conclusion
In my view the parenting arrangement that was suggested by the expert and had been initially promoted by the ICL at the completion of the final hearing is the least detrimental to the children in that it provided a framework within which their relationships with the father had the best prospects of developing and provided a platform for the children to spend overnight time with him and receive the benefit of a meaningful relationship with him. For all the forgoing reasons this proposal is to be preferred over one which would see the children continue to live with their mother and have no time with their father (which is the proposal that was ultimately put forth by the ICL and agreed to by the mother).
The father’s failure to agree to pay for even half of the costs of supervision may seem at first blush a curious factor that caused the ICL to change her position. In my view this change in position was appropriate considering the expert’s firm and unshaken opinion that initial supervision of the father’s time in the community (as well as therapeutic support for the mother and daughter) was an essential component in his proposal. The expert also felt that it would be catastrophic for the daughter in particular to be prepared and supported for beginning to rebuild her relationship with the father through supervised time if that did not eventuate. For this reason it is essential that the father commit to the supervision by securing funding for at least half of it in advance. It seems inexplicable that the father could not make such a commitment. Ultimately in my view it reflects upon the father’s attitude towards having a relationship with his children and understanding their needs that he could not find a way to commit to this funding. For the reasons given I formed the view that he was unwilling rather than unable to do this.
The only alternative parenting arrangement to that ultimately promoted by the ICL and mother involves the children moving to live with the father. The expert with whom I agree could not be shaken from his view that this would be traumatising for the children and the daughter in particular. I cannot consider that his proposal is in the children’s best interests or even the least detrimental for them.
For all the foregoing reasons I propose making the orders as sought by the ICL and mother.
I certify that the preceding two hundred and fifty-five (255) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 15 May 2020.
Associate:
Date: 15 May 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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